i

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

JACK MILLER, ANNABEL CAMPBELL, 

MATTHEW PESINA, LISA PESINA, M.P., a 

minor, and J.G., a minor,

 Case No. 20-cv-00642-JKP

Plaintiffs,

v. Hon. Jason K. Pulliam

CHIEF JOSEPH SALVAGGIO, in his 

individual and official capacities, OFFICER 

JIM WELLS, in his individual and official 

capacities, OFFICER ANDERSON, in his 

individual and official capacities, OFFICER 

SAUCEDO, in his individual and official 

capacities, OFFICER J. VASQUEZ, in his 

individual and official capacities, STATE 

POLICE OFFICER JOHN DOE, in his 

individual and official capacities, BEXAR 

COUNTY MAGISTRATE, in their individual 

and official capacities, KIRBY POLICE 

DEPARTMENT, and LEON VALLEY 

POLICE DEPARTMENT, jointly and 

severally,

Defendants.

_______________________________________/

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ 

AMENDED MOTION TO DISMISS

NOW COME Plaintiffs, Jack Miller, Annabel Campbell, Matthew Pesina, 

Lisa Pesina, M.P., a minor, and J.G., a minor, by and through counsel, and file this 

response to Defendants Salvaggio, Wells, Anderson, Saucedo, and Vasquez’s

Amended Motion to Dismiss Counts I-V of Plaintiffs’ Complaint. (ECF # 8, p. 1-

Case 5:20-cv-00642-JKP Document 9 Filed 07/20/20 Page 1 of 27
ii

3).

1 For the reasons stated herein, Plaintiffs respectfully requests this Honorable 

Court deny Defendants’ motion. 

Respectfully submitted,

EXCOLO LAW, PLLC

Dated: July 20, 2020 By: /s/ Solomon M. Radner

Solomon M. Radner 

MI Bar No. P73653

Attorney for Plaintiffs

26700 Lahser Rd., Suite 401

Southfield, MI 48033

(866) 939-2656

sradner@excololaw.com

 1 Defendants only move to dismiss counts I-V of Plaintiffs’ Complaint. Accordingly, Plaintiffs

will only address the counts listed in Defendants’ Amended Motion to Dismiss. 

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STATEMENT OF ISSUES PRESENTED

Whether Plaintiffs have alleged sufficient facts to state a claim against 

Defendant Officers for retaliatory arrest, unlawful entry, excessive force, and 

malicious prosecution where Defendant Officers, among other things, procured a 

warrant based on knowingly false statements and in retaliation for constitutionally 

protected conduct and executed said warrant with excessive and unreasonable force.

STATEMENT OF LEGAL AUTHORITIES PRESENTED

Defendant Officers are not entitled to dismissal because the “[t]he pleadings 

on their face show an unreasonable violation of a clearly establish constitutional 

right, [and therefore] the defense of qualified immunity will not sustain a motion to

dismiss under Rule 12(b)(6).” Shipp v. McMahon, 234 F.3d 907, 912 (5th Cir. 2000), 

overruled in part on other grounds by McClendon v. City of Columbia, 305 F.3d 314, 

329 (5th Cir. 2002). 

The sufficiency of Plaintiffs’ pleadings is governed by Fed. R. Civ. P. 8(a)(2)

and Fed. R. Civ. P. 12(b)(6). 

Authority for making a claim for violations of the First and Fourth 

Amendment retaliatory arrests without probable cause can be found in Kennan v. 

Tejada, 290 F.3d 252, 258 (5th Cir. 2002) and Nieves v. Bartlett, 139 S. Ct. 1715, 

1727 (2019). 

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Authority for making a claim for Fourth Amendment violations based on false 

statements made in the procurance of a warrant can be found in Franks v. Delaware, 

438 U.S. 154, 171, 98 S. Ct. 2657 (1978), Hale v. Fish, 899 F.2d 390 (5th Cir. 1990),

and Hart v. O’Brien, 127 F.3d 424, 448 (5th Cir. 1997). 

Authority for making claims for Fourth Amendment violations based on 

excessive force during the execution of a search warrant can be found in Heitschmidt 

v. City of Houston, 161 F.3d 834 (5th Cir. 1998), Okorie v. Crawford, 921 F.3d 430, 

437 (2019), Flores v. City of Palacios, 381 F.3d 391 (5th Cir. 2004), and Flores v. 

Rivas, EP-19-CV-297-KC, 2020 U.S. Dist. LEXIS 22047 (W.D. Tex. Jan. 31. 2020).

Authority for making claims for Fourth Amendment violations based on a 

theory of malicious prosecution can be found in Winfrey v. Rogers, 901 F.3d 483 

(5th Cir. 2018). Authority for making a claim for supervisory liability under 42 

U.S.C. § 1983 can be found in Gates v. Tex. Dep’t of Protective &Regulatory Servs., 

537 F.3d 404 (5th Cir. 2008). 

STATEMENT OF FACTS

In the late afternoon of May 31, 2018, Jack Miller (“Mr. Miller” or “Plaintiff 

Miller”), was at city hall for the purpose of making a complaint against the police 

department. (ECF # 1, ¶ 13). Mr. Miller had previously been given a citation for 

unlawfully possessing a gun despite the reporting officers’ knowledge that the gun 

was indeed fake. (Id. at ¶ 15). When he arrived to deliver his complaint against the 

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police department, he had his fake gun again on his hip and in plain sight. (Id. at ¶ 

17). Having a fake gun at city hall is not an arrestable offense. (Id. at ¶ 18).

Defendant Officers knew Plaintiff’s gun was fake and thus had no probable cause or 

reasonable suspicion that Plaintiff had committed any crime. (Id. at ¶ 82). 

Upon his arrival to city hall, Mr. Miller was searched and “wanded” by 

security. (Id. at ¶ 19). Mr. Miller informed security that he was there to deliver a 

complaint and security asked him to stand to the side. (Id. at ¶ 20-21). Defendants 

Wells, Anderson, Saucedo, Vasquez and other officers began openly discussing Mr. 

Miller’s complaint. (Id. at ¶ 22, 11). Defendant Wells then approached Mr. Miller 

and asked him to leave with his gun. (Id. at ¶ 23). Mr. Miller and Defendant Wells 

then walked outside and Defendant Wells instructed Mr. Miller to place the gun in 

his car. (Id. at ¶ 24-25). Mr. Miller complied with Defendant Wells instruction. (Id. 

at ¶ 26). Defendant Anderson followed them outside and joined Mr. Miller and 

Defendant Wells at Mr. Miller’s car. (Id. at ¶ 27). Mr. Miller insisted that he be able 

to write a complaint for the officers requiring him to put his fake gun in the car. (Id. 

at ¶ 28). Mr. Miller remained outside with Defendants for 30 minutes while Wells 

and Anderson mocked him. (Id. at ¶ 29). Eventually Mr. Miller requested Defendant 

Wells get another officer to come outside. (Id. at ¶ 30). Defendant Saucedo then 

exited city hall and received Mr. Miller’s complaint. (Id. at ¶ 31). Afterwards, Mr. 

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Miller smoked a cigarette with is friend. (Id. at ¶ 32). Mr. Miller arrived at his home 

around midnight. (Id. at ¶ 33). 

As soon as Mr. Miller arrived at his home, Defendant Wells, Anderson, 

Saucedo, Vazquez, as well as officers from the Kirby Police Department and an 

unidentified State Police Officer, arrived at Mr. Miller’s home with a no-knock 

warrant. (Id. at ¶ 34). The officers had a warrant and affidavit in support. (Id.). The 

affidavit contained false statements about Mr. Miller’s actions. (Id. at ¶ 35-37). At 

no point did Mr. Miller enter the Leon Valley City court house and, the officers 

knew, from Mr. Miller’s complaints, that the firearm was fake. (Id., ¶ 15-21, ¶ 28-

30). The warrant was issued a few hours earlier at 10:30PM. (Id. at ¶ 38). The 

warrant permitted Defendant Officers to enter and search Mr. Miller’s home for a 

black semi-automatic hand gun, a Go Pro Camera, any cell phone media devices 

used to record, computer desktop or laptop, and photographic evidence related to 

Mr. Miller’s alleged armed entry to the Leon Valley City court house. (Id. at ¶ 39).

Defendant Officers then entered Mr. Miller’s home and forcefully pointed their guns 

at everyone inside, including Plaintiffs Annabel Campbell, Matthew Pesina, Lisa 

Pesina, and two minor children, M.P. and J.G. (Id. at ¶ 40). Mr. Miller was then 

arrested and charged with possessing a gun on government property. (Id. at ¶ 41-44). 

Mr. Miller was prosecuted for this charge and found not guilty. (Id. at ¶ 42). Plaintiffs 

filed suit on May 28, 2020. (ECF # 1).

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STANDARD OF REVIEW

All that is required under the Federal Rules of Civil Procedure is for Plaintiffs 

to plead “a short and plain statement of the claim showing that [they are] entitled to

relief.” Fed. R. Civ. P. 8(a)(2). The statement need only provide Defendants “fair

notice” of the claims and their respective factual bases. Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007). “Specific facts are not necessary.” Inhale, Inc. v. 

Gravitron, LLC, 2018 U.S. Dist. LEXIS 223241, at *3 (W.D. Tex. Dec. 10, 2018) 

(quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007))

In deciding a motion under Rule 12(b)(6), the Court views the pleadings in a

light most favorable to the Plaintiffs and assumes that all facts in Plaintiffs’ 

complaint are true. Club Retro, L.L.C., v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009). 

Finally, motions to dismiss under Rule 12(b)(6) “are viewed with disfavor and are 

rarely granted.” Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 231 (5th Cir. 2009).

LAW & ARGUMENT

I. DEFENDANT OFFICERS ARE NOT ENTITLED TO QUALIFIED 

IMMUNITY BECAUSE THEIR CONDUCT AS ALLEGED VIOLATED 

PLAINTIFFS’ CLEARLY ESTABLISHED RIGHTS 

“A public official is entitled to qualified immunity unless a plaintiff can show 

(1) that the official violated a statutory or constitutional right, and (2) that the right 

was ‘clearly established’ at the time of the challenged conduct.” Gerhart v. 

McLendon, 714 F. Appx. 327, 333 (5th Cir. 2017) (citing Ashcroft v. al-Kidd, 563 

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U.S. 731, 735 (2011). Qualified immunity “is an affirmative defense which must be 

established by the defendant.” Teladoc, Inc. v. Tex. Med. Bd., 2015 U.S. Dist. LEXIS 

166754, at *18-19 (W.D. Tex. Dec. 14, 2015) (collecting cases). In this analysis, 

“the pubic official’s state of mind is generally no longer relevant in deciding a claim 

of qualified immunity.” Floyd v. City of Kenner, 351 F. Appx. 890, 896 (5th Cir. 

2009) (quoting Tompkins v. Vickers, 26 F.3d 603, 607 (5th Cir. 1994)). 

“Nonetheless, [the Circuit] has explained that “motive or intent must be considered 

in the qualified immunity analysis where unlawful motivation or intent is a critical 

element of the alleged constitutional violation.”” Floyd, at 896 (quoting Tompkins, 

at 607). Here, Defendants have not established that they are entitled to qualified 

immunity for Plaintiffs’ claims. 

a. Constitutional Violation – Retaliatory Arrest (Count I-II)

“Any form of official retaliation for exercising one’s freedom of speech, 

including prosecution, threatened prosecution, bad faith investigation, and legal 

harassment, constitutes an infringement of that freedom.” Rodriguez v. Rutter, 310 

F. Appx. 623, 627 (5th Cir. 2009). As directed by the Fifth Circuit, “[c]ourts need to 

be alert to arrests that are prompted by constitutionally protected speech, even when 

the arrestee’s words are directed at a police officer performing official tasks. Trained 

officers must exercise restraint when confronted with a citizen’s anger over police 

action.” Mesa v. Prejean, 543 F.3d 264, 273 (5th Cir. 2008). “[G]overnment 

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retaliation against a private citizen for exercise of First Amendment rights cannot be 

objectively reasonable.” Brooks, at 989.

To state a claim for retaliatory arrest, one must allege “that (1) they were 

engaged in constitutionally protected activity, (2) the defendants’ actions caused 

them to suffer an injury that would chill a person of ordinary firmness from 

continuing to engage in that activity, and (3) the defendants’ adverse actions were 

substantially motivated against the plaintiffs’ exercise of constitutionally protected 

conduct.” Kennan v. Tejada, 290 F.3d 252, 258 (5th Cir. 2002); see also., Rodriguez 

v. Rutter, 310 F. Appx. 623, 627 (5th Cir. 2009) (reversing dismissal of retaliatory 

citation claim where district court drew inferences regarding the protected conduct

in favor of defendant deputies). In addition, a plaintiff must show an absence of 

probable cause, or, in the alternative, that plaintiff “was arrested when otherwise 

similarly situated individuals not engaged in the same sort of protected speech had 

not been.” Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019); see also., Keenan v. 

Tejeda, 290 F.3d 252, 260 (5th Cir. 2002) (retaliatory criminal prosecution claims 

require absence of probable cause). 

Here, Plaintiffs’ complaint sufficiently states a claim for retaliatory arrest. 

Plaintiff alleges he was exercising constitutionally protected conduct to make a 

formal complaint against law enforcement officers and engaging in conduct to audit 

the department’s response to protected conduct. (ECF # 1, ¶ 13-17). In response to 

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that protected conduct, Plaintiff alleges adverse actions were taken against him 

where he was instructed to leave and later was subject to a retaliatory arrest, 

malicious prosecution, and unlawful detainment and entry to his home without 

probable cause or any exigent circumstance as well as excessive force when the 

officers pointed loaded guns at everyone in his home without a lawful basis. (Id. at 

¶ 23-42, 43-84). Finally, Plaintiff alleged sufficient facts to show the adverse actions 

were taken in response to protected conduct. Previously he had been written a 

citation despite the officer knowing the gun was fake. (Id. at ¶ 15). Plaintiff’s 

complaint specifically alleges that Defendant Officers knew Plaintiff did not have a 

real gun and thus lacked probable cause to initiate any criminal proceeds. (Id. at ¶ 

82). Having a fake gun is not an arrestable offense. (Id. at ¶ 18). Plaintiff’s fake gun 

was clearly visible on his hip and did not trigger any security alarms when wanded. 

(Id. at ¶ 17, 19-21). Only when Defendant Officers knew and were openly discussing 

Plaintiff’s complaint was Plaintiff asked to leave and only after he made another 

complaint was a warrant secured for his arrest to charge him with a crime of having 

a gun (which the officers knew was fake) at the city court house (which doesn’t 

exist). (Id. at ¶ 22-36). Taking Plaintiff’s allegations as true and making all plausible 

inferences in Plaintiff’s favor, Club Retro, L.L.C., v. Hilton, 568 F.3d 181, 194 (5th 

Cir. 2009), Plaintiff has sufficiently stated a claim for retaliatory arrest against 

Defendant Officers and their motion should be denied. 

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b. Constitutional Violation – Unlawful Entry (Count III)

“Physical entry into the home is the chief evil against which the Fourth 

Amendment is directed.” Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 

F.3d 395, 405 n.12 (5th Cir. 2002) (quoting United States v. United States Dist. Ct., 

407 U.S. 297, 313 (1972)). “At the very core of the Fourth Amendment and the 

personal rights it secures stands the right of a man to retreat into his own home and 

there be free from unreasonable governmental intrusion.” Id. (quoting Silverman v. 

United States, 365 U.S. 505, 511 (1961)). “A reasonable officer would know that 

lying to a judge in order to procure a ... warrant was unlawful.” Hampton v. 

Oktibbeha County Sheriff Dept., 480 F.3d 358, 364 (5th Cir. 2007). Further, the Fifth 

Circuit has held that “the intentional or reckless omission of material facts from a 

warrant application may amount to a Fourth Amendment violation.” Floyd v. City of 

Kenner, 351 F. Appx. 890, 895 (5th Cir. 2009) (quoting Kohler v. Englade, 470 F.3d 

1104, 1113 (5th Cir. 2006)). Defendant Officers conduct of intentionally procuring 

a warrant based on knowingly false statements and executing it with excessive force 

violated this fundamental constitutional right.

“To prevail on a federal claim of unlawful search and seizure, a plaintiff must 

demonstrate a genuine issue of fact exists as to whether a defendant knowingly 

provided false information to secure the search warrant or gave false information in 

reckless disregard for the truth.” Arceneauz v. Louisiana, 2008 U.S. Dist. LEXIS 

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45356, at *11-12 (W.D. La. June 6, 2008) (citing Franks v. Delaware, 438 U.S. 154, 

171, 98 S. Ct. 2657 (1978)). “[I]f an officer, in an affidavit supporting a warrant, 

makes a false statement knowingly and intentionally, or with reckless disregard for 

the truth, the false statements must be disregarded in determining whether the 

affidavit is sufficient to support a finding of probable cause.” Hale v. Fish, 899 F.2d 

390, 400 n. 3 (5th Cir. 1990),

2 (citing Franks, 438 at 171-72 (1978)). An officer may 

be liable for his false statements resulting in a warrant being issued without probable 

cause “regardless of whether he signed the application or was present when the 

affiant appeared before the judge.” Michalik v. Hermann, 422 F.3d 252, 258 n.5 (5th 

Cir. 2005) (citing Franks v. Delaware, 438 U.S. at 155-156); see also., Hart v. 

O’Brien, 127 F.3d 424, 448 (5th Cir. 1997) (“Police [can] not insulate one officer’s 

deliberate misstatements merely by relaying it through an officer-affiant personally 

ignorant of its falsity...a deliberate or reckless misstatement or omission by a 

governmental official who is not the affiant may nevertheless form the basis of a 

Franks claim.”). 

Here, Plaintiff’s complaint sufficiently states a claim for unlawful entry. 

Plaintiff alleges that Defendant Officers knew the gun was fake and knew that 

Plaintiff did not enter a court house. (ECF # 1, ¶ 82, 35-37). With this knowledge 

Plaintiff alleges that Defendant Officers knowingly procured a no-knock warrant 

 2 “The holding in Franks applies to omissions as well.” Id. 

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based on false statements, and proceeded to forcefully enter and search his home in 

the late hours of the night while holding all occupants at gunpoint, including two 

minor children. (Id. at ¶ 34-42, 58-69). Plaintiff’s allegation that Defendant Officers 

conducted an entry and search of a private home based on a knowingly false warrant 

sufficiently states a claim for unlawful entry in violation of the Fourth Amendment.

Floyd, 351 F. Appx. at 895. Disregarding the false statements and omissions, and 

taking Plaintiff’s allegations as true, Plaintiff’s possession of what the officers knew 

to be a fake gun in city hall does not provide probable cause to procure a search 

warrant to search his home for the fake gun and video camera. Hale, 899 F.2d at 400 

n.3. No crime was committed to support a finding of probable cause. Further, the 

presence of a lawfully owned firearm, fake or real, that does not present a threat to 

the safety of anyone in the home or outside, and does not provide legitimate exigent 

circumstances permitting a warrantless search and seizure into a private home. See 

United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001) (non-exhaustive list of 

factors to assess whether an exigency justifies a warrantless search). Accordingly, 

Plaintiff has sufficiently alleged a lack of probable cause and thus an unlawful entry 

in violation of the Fourth Amendment. 

c. Constitutional Violation – Excessive Force (Count IV)

As pronounced by the Fifth Circuit long ago, “[a] police officer who terrorizes 

a civilian by brandishing a cocked gun in front of that civilian’s face may not 

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cause physical injury, but he has certainly laid the building blocks for a section 

1983 claim against him.” Checki v. Webb, 785 F.2d 534, 538 (5th Cir. 1986). Since 

then, the Fifth Circuit has established that “psychological,” and not just physical 

“injuries may sustain a Fourth amendment claim.” Flores v. City of Palacios, 381 

F.3d 391, 397-398 (5th Cir. 2004). “Any force found to be objectively unreasonable 

exceeds the de minimis threshold, and, conversely, objectively reasonable force will 

result in de minimis injuries only.” Alexander v. City of Round Rock, 854 F.3d 298, 

309 (5th Cir. 2017). Accordingly, the “sufficiency of a plaintiff’s injury turns not on 

the severity of the injury, but on the reasonableness of the officer’s use of force.” 

Scott v. White, 2018 U.S. Dist. LEXIS 73907, at *15 (W.D. Tex. Apr. 30, 2018).

In this district, it has been determined that it is “objectively unreasonable for 

a police officer to forcefully brandish a deadly weapon at citizens whom he could 

not reasonably have perceived to be dangerous.” Flores v. Rivas, 2020 U.S. Dist. 

LEXIS 22047, at *19-20 (W.D. Tex. Jan. 31. 2020).

3 The officers were not entitled 

to qualified immunity for such conduct. See id. at *21 (finding precedent sufficiently 

clear to put officers on notice that it is objectively unreasonable to brandish firearm 

 3 The court distinguished two Fifth Circuit cases, Brothers v. Zoss, 837 F.3d 513, 516-619 (5th 

Cir. 2016) and Hinojosa v. City of Terrell, 834 F.3d 1223, 1230-1231 (5th Cir. 1988), because “in 

both cases, police officers were confronted with either violent or otherwise non-compliant adults, 

engaged in suspected criminal behavior.” Flores v. Rivas, at *19-20. Unlike those cases, this case 

does not include facts that Plaintiffs were violent or non-compliant in any manner and Defendant 

Officers didn’t suspect anyone in the home of a crime. Further, two of the Plaintiffs here are minor 

children.

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under circumstances alleged).

4 As summarized by a district court in the case Bernard 

v. Maine, 2019 U.S. Dist. LEXIS 467705, at *23 (D. Me. March 22, 2019), it is 

established throughout the circuits that an officer’s act of pointing weapons at 

civilians can amount to unconstitutional excessive force under the Fourth 

Amendment: 

Under certain circumstances, police use of force “may be unreasonable 

under the Fourth Amendment even if officers do no more than threaten 

the occupants with firearms.” Terebesi v. Torreso, 764 F.3d 217, 240 (2d 

Cir. 2014). “[P]ointing a loaded gun at a suspect, employing the threat of 

deadly force, is use of a high level of force.” Espinosa v. City & Cty. of 

San Francisco, 598 F.3d 528, 537 (9th Cir. 2010). “While police are not 

entitled to point their guns at citizens when there is no hint of danger, they 

are allowed to do so when there is reason to fear danger.” Baird v. 

Renbarger, 576 F.3d 340, 346 (7th Cir. 2009). “The display of weapons, 

and the pointing of firearms directly at persons inescapably involves the 

immediate threat of deadly force. Such a show of force should be 

predicated on at least a perceived risk of injury or danger to the officers 

or others, based upon what the officers know at that time.” Holland ex rel. 

Overdorff v. Harrington, 268 F.3d 1179, 1192 - 93 (10th Cir. 2001); see 

also., Mlodzinski v. Lewis, 648 F.3d 24, 37 - 40 (1st Cir. 2011) (applying 

the Graham factors to an officer’s conduct in pointing a weapon); Stamps

v. Town of Framingham, 813 F.3d 27, 40 – 41 (1st Cir. 2016) (same). 

Further, “[o]ther circuits also have recognized excessive-force claims without 

physical contact and therefore rejected qualified immunity defenses under 

circumstances similar to those here.” Merrill v. Schell, 279 F. Supp. 3d 438, 447-49

 4 See also., Manis v. Cohen, 2001 U.S. Dist. LEXIS 19453, at *24-27 (N.D. Tex. Nov. 28, 2001); 

Hodge v. Layrisson, 1998 U.S. Dist. LEXIS 13930, at *17-19 (E.D. La. Aug. 31, 1998) (denying 

dispositive motions of officers who hold citizens at gunpoint and point weapons in their face 

without a lawful basis).

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(W.D.N.Y. 2017). “For example, the Seventh and Ninth Circuits have found that 

pointing a gun at a suspect when he or she does not present any significant danger 

to officers may constitute an unreasonable use of force under the Fourth 

Amendment.” Id. (collecting cases). Similarly, “[o]ther circuits have also held that 

pointing guns at persons who are compliant and present no danger is a constitutional 

violation.” Baird v. Renbarger, 578 F.3d 340, 346 (7th Cir. 2009) (citing Robinson 

v. Solano County, 278 F.3d 1007, 1015-16 (9th Cir. 2002) (en banc) (pointing a 

gun at an unarmed suspect who poses no danger constitutes excessive force); Baker 

v. Monroe Township, 50 F.3d 1186, 1193-94 (3d Cir. 1995) (detention at gunpoint 

violated the Fourth Amendment as there was “simply no evidence of anything that 

should have caused the officers to use the kind of force they are alleged to have 

used”).

While police officers may detain occupants of a home during the execution of 

a lawful search warrant for the home, see Michigan v. Summers, 452 U.S. 692 

(1981), it is established that “the lawfulness of a detention incident to execution of 

a warrant is not evaluated only at its inception; the length and intrusiveness of the 

detention may render is unreasonable.” Okorie v. Crawford, 921 F.3d 430, 437 

(2019) (citing Muehler v. Mena, 544 U.S. 93, 100 (2005) (noting that the duration 

of a detention can impact its lawfulness); Heitschmidt v. City of Houston, 161 F.3d 

834, 838-39 (5th Cir. 1998) (holding that a Summers detention was unreasonably 

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prolonged and intrusive)). “Unreasonable actions include the use of excessive force 

or restraints that cause unnecessary pain or are imposed for a prolonged and 

unnecessary period of time.” L.A. County v. Rettele, 550 U.S. 609, 614 (2007) (citing 

Muehler v. Mena, 544 U.S. at 100; Graham v. Connor, 490 U.S. 386, 396-399 

(2007)). 

Here, Plaintiffs have alleged sufficient facts to state a claim of excessive force 

against the officers. Any force used must be reasonable under the circumstances. 

Graham, 550 U.S. at 397. Plaintiffs’ complaint alleges that Defendant Officers 

knowingly executed an unconstitutional warrant procured by Defendant Officers 

through false statements and material omissions. During their execution of this ‘noknock’ warrant to search for a gun, as well as all of Mr. Miller’s recording devices

and photographic evidence, Defendant Officers held all Plaintiffs at gun point, 

including M.P. and J.G., two minor children, for the duration of the unlawful search

which caused harm to Plaintiffs. (ECF # 1, ¶ 13-42). Defendant Officers knowledge 

that Mr. Miller had a fake, not real gun that day at city hall, and knowledge that their 

warrant was based on intentionally false statements and omissions, are sufficient 

facts to permit the inference that Defendant Officers did not “reasonably perceive” 

Plaintiffs to be dangerous and accordingly their use of excessive force by detaining 

Plaintiffs at gunpoint for the duration of the knowingly unlawful search violated the 

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Fourth Amendment’s reasonableness requirement.5 See Flores v. Rivas, at *19-20; 

Heitschmidt v. City of Houston; 161 F.3d at 989-839; Graham v. Connor, 490 U.S. 

at 397. 

d. Constitutional Violation – Malicious Prosecution (Count V)

“The right to be free from malicious prosecution is guaranteed by the Fourth 

Amendment.” Rodriguez v. Rutter, 310 F. Appx. 623, 628 (5th Cir. 2009) (citing 

Kerr v. Lyford, 171 F.3d 330, 339 (5th Cir. 1999)). While this Circuit has determined

“there is no “freestanding constitutional right to be free from malicious prosecution,” 

“[t]he initiation of criminal charges without probable cause may set in force events 

that run afoul of explicit constitutional protection—the Fourth Amendment if the 

accused is seized and arrested, for example.”” Winfrey v. Rogers, 901 F.3d 483, 491 

(5th Cir. 2018) (quoting Castellano v. Fragozo, 253 F.3d 939, 953 (5th Cir. 2003)). 

As noted by the Fifth Circuit in Winfrey: 

In Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807, 127 L. Ed. 2d 114 

(1998), a plurality of the Supreme Court said that malicious-prosecution 

claims must be based on the Fourth Amendment, rather than on “the 

 5 Defendants cite to Strickland v. City of Crenshaw, Miss., 114 F. Supp. 3d 400 (N.D. Miss. 2015),

for the proposition that “pointing of weapons during the execution of a search warrant was not a 

constitutional violation.” (ECF # 8, p. 5). However, the court did not find that a constitutional 

violation could not occur from pointing weapons at unarmed and nonthreatening individuals 

suspected of no crimes for the duration of an unlawful search. To the contrary, the court did not 

believe the plaintiffs had presented enough evidence to support their claims, an issue not relevant 

to a motion to dismiss. Strickland, 113 F. Supp. at 417-418. In granting summary judgment to 

Defendant Officers, the court noted that Plaintiff had not provided a robust consensus of case law 

demonstrating the right was clearly established. Id. Conversely, as discussed herein, Plaintiff 

submits that he has demonstrated a “robust consensus” to overcome the qualified immunity 

defense at the motion to dismiss stage. See also., infra, p. 17-18. 

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more generalized notion of ‘substantive due process,’” because 

the Fourth Amendment is the explicit textual source against this type of 

government behavior. Id. at 273 (quoting Graham v. Connor, 490 U.S. 

386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)). And recently, 

in Manuel v. City of Joliet, 137 S. Ct. 911, 197 L. Ed. 2d 312 (2017), the 

Supreme Court considered whether a plaintiff had stated a Fourth 

Amendment claim when he was arrested and charged with unlawful 

possession of a controlled substance based upon false reports written by 

a police officer and an evidence technician. Id. at 915. There, the Court 

said the plaintiff's “claim fits the Fourth Amendment, and the Fourth 

Amendment fits [the plaintiff’s] claim, as hand in glove.” Id. at 917.

Thus, while the Fifth Circuit does not recognize a standalone claim for 

malicious prosecution, the Supreme Court and the Fifth Circuit have recognized 

malicious prosecution claims based on Fourth Amendment violations. Id. 

In Winfrey, the Court vacated the district court’s grant of summary judgment 

to a deputy for claims under the Fourth Amendment. In its opinion the Court found 

the plaintiff stated a claim for the tort of malicious prosecution “because [he] was 

arrested through the wrongful institution of the legal process: an arrest pursuant to a 

warrant, issued through the normal legal process, that is alleged to contain numerous 

material omissions and misstatements.” 901 F.3d at 493. The Court utilized a similar 

analysis with regard to false statements used to procure a search warrant as discussed 

supra, section b, Plaintiff’s claim of unlawful entry. See id. at 494-496 (utilizing 

Franks v. Delaware standard to determine whether officer’s misstatements in 

affidavit were product of deliberate falsehoods, denying summary judgment where 

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issue of material fact present as to how the misstatements and omissions were made 

and where corrected affidavit did not provide probable cause). 

Here, Plaintiff’s complaint contains sufficient allegations to state a claim for 

a violation of the Fourth Amendment for Defendant Officers malicious prosecution 

of Plaintiff. Similar to Winfrey, Plaintiff alleges he was “arrested through the 

wrongful institution of the legal process” based on “numerous material omissions 

and misstatements” where Defendant Officers knew he did not enter a court house 

with a firearm and did not violate any relevant laws when they arrested and charged 

him with a crime. 901 F.3d at 493; (ECF # 1, ¶ 34-42, 70-84). Plaintiff was 

prosecuted for the crime of possessing a gun on government property and found not 

guilty, as he did not have a weapon on government property. Accordingly, Plaintiff 

has stated a claim against Defendant Officers for a claim of malicious prosecution 

in violation of the Fourth Amendment. 

e. Supervisory Liability 

Defendant Salvaggio claims he is entitled to immunity because supervisory

officials cannot be liable under vicarious liability. (ECF # 8, p. 4). While Defendant 

Salvaggio cannot be held liable under a theory of vicarious liability, he can be held 

liable under a theory of supervisory liability under 42 U.S.C. § 1983. See Gates v. 

Tex. Dep’t of Protective &Regulatory Servs., 537 F.3d 404, 435 (5th Cir. 2008) (“A 

supervisory official may be held liable under § 1983 only if (1) he affirmatively 

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participates in the acts that cause the constitutional deprivation, or (2) he 

implements unconstitutional policies that causally result in the constitutional 

injury.”). Here the complaint alleges personal involvement by Defendant Salvaggio 

in the constitutional violations described by Defendant Officers. (ECF # 1, ¶ 11, 34-

42). Defendant Salvaggio can therefore be held liable for the claims alleged in 

Plaintiff’s complaint and his motion should be dismissed. 

f. Qualified Immunity - Clearly Established Law 

Defendants are not entitled to qualified immunity for their conduct alleged 

because they violated Plaintiffs’ clearly established constitutional rights to be free 

from excessive force and unlawful searches and seizures without probable cause. “In 

the context of a motion to dismiss, “if the pleadings on their face show an 

unreasonable violation of a clearly established constitutional right, the defense of 

qualified immunity will not sustain a motion to dismiss under Rule 

12(b)(6).”” Morales v. Gomez, No. EP-14-CV-00189-DCG, 2014 U.S. Dist. LEXIS 

202305, at *9 (W.D. Tex. Nov. 7, 2014) (quoting Shipp v. McMahon, 234 F.3d 907, 

912 (5th Cir. 2000) overruled on other grounds by McClendon v. City of Columbia, 

305 F.3d 314, 329 (5th Cir. 2002)). As discussed herein, Plaintiffs have alleged 

sufficient facts to support the claims of retaliatory arrest, unlawful entry, excessive 

force, and malicious prosecution. Defendant Officers are therefore not entitled to 

dismissal. 

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“In order for a right to be ‘clearly established,’ the relevant legal authorities 

must give the officer ‘fair warning’ that his or her conduct was unlawful.” Gerhart 

v. McLendon, 714 Fed. Appx. 327, 333 (5th Cir. 2017) (citing Hope v. Pelzer, 536 

U.S. 730, 739-41 (2002)). “Although the right cannot be defined too abstractly, the 

Supreme Court has rejected any requirement that the facts of prior cases be 

‘fundamentally’ or ‘materially’ similar.” Id. (citing Hope, at 741). “Thus, officials 

can still be on notice that their conduct violates established law even in novel factual 

circumstances. The key question is not whether there is a case directly on point, but 

whether a reasonable officer would understand that his or her conduct was 

unlawful.” Id. (citing Kinney v. Weaver, 367 F.3d 337, 349-50 (5th Cir. 2004)

(internal citation omitted). 

The court “need not immunize an officer from suit for an obvious violation 

simply because no case has held that the officer’s precise conduct was unlawful.”

Id. at 334-335. Where there is an absence of controlling authority, “a consensus of 

cases of persuasive authority” can be “sufficient to compel the conclusion that no 

reasonable officer could have believed that his or her actions were unlawful. Case 

law need not be directly on point, though it should be close, and if the conduct is 

particularly outrageous, the caselaw putting the officer on notice can be more general 

in character.” Graves v. Zachary, 277 Fed. Appx. 344, 348 n.4 (5th Cir. 2008) (citing 

McClendon v. City of Columbia, 305 F.3d 214, 329 (5th Cir. 2002) and Pierce v. 

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Smith, 117 F.3d 866, 882 (5th Cir. 1997) (“We recognize that in order to preclude 

qualified immunity it is not necessary that the very action in question has previously 

been held unlawful, or that the plaintiff point to a previous case that differs 

only trivially from his case. However, the facts of the previous case do need to 

be materially similar. We also recognize that the egregiousness and outrageousness 

of certain conduct may suffice to obviously locate it within the area proscribed by a 

more general constitutional rule . . . .”). 

“In the excessive force context, a constitutional violation is clearly 

established if no reasonable officer could believe the act was lawful.” Darden v. City

of Fort Worth, 880 F.3d 722, 727 (5th Cir. 2018) (citing Manis v. Lawson, 585 F.3d

839, 846 (5th Cir. 2009)). Here, Plaintiffs “had a clearly established right to be free 

from excessive force, and it was clearly established that the amount of force that the 

officers could use depended on the severity of the crime at issue, whether the suspect 

posed a threat to the officer’s safety, and whether the suspect was resisting arrest or 

attempting to flee.” Deville v. Marcantel, 567 F.3d 156, 169 (5th Cir. 2009). Relying 

on Fifth Circuit precedent, a court in this district has denied qualified immunity at 

the motion to dismiss stage finding it was clearly established that it is “objectively 

unreasonable for a police officer to forcefully brandish a deadly weapon at citizens 

whom he could not reasonably have perceived to be dangerous.” Flores v. Rivas, 

2020 U.S. Dist. LEXIS 22047, at *19-20 (W.D. Tex. Jan. 31. 2020). 

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In Hinojosa v. Terrell, 834 F.2d 1223, 1230 (5th Cir. 1988), the plaintiffs 

alleged excessive force and Court found that pointing a gun was not so “grossly 

disproportionate to the need for action under these circumstances.” Id. at 1230-1231. 

There, officers had responded to a pool hall where fights had and were continuing 

to occur and where one officer was “on the ground engaged in a physical 

altercation.” Id. The court placed emphasis on the fact that there was no physical 

injury resulted, a factor that is no longer dispositive of the analysis. Id. at 1230; 

Manis, at *25-26; Flores v. City of Palacios, 381 F.3d 391, 397-398 (5th Cir. 2004). 

While finding the act of pointing a gun was not excessive force under those facts, 

the Hinojosa court did not foreclose excessive force claims being brought when a 

citizen is unlawfully threatened with a gun by police officers where there is no lawful 

basis to do so. Accordingly, Plaintiffs submits that the right to be free from excessive 

force in having a gun pointed at him was clearly established law and Defendant 

Officers are not entitled to qualified immunity. 

While officers are permitted reasonable force to detain the occupants of a 

home to execute a lawful search warrant, Defendant Officers here knew there was 

no lawful basis to procure a warrant and search Plaintiff’s home holding all Plaintiffs 

at gunpoint causing harm. Defendant Officers knew there were no exigent 

circumstances requiring they enter Plaintiff’s home without a lawful warrant. No 

reasonable officer would believe it lawful to execute an unlawful warrant based on 

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knowingly false information and out of retaliation to constitutionally protected 

conduct and then proceed to conduct the unlawful search while holding all 

occupants, including two minor children, at gunpoint. “The requirement of probable 

cause has roots that are deep in our history.” Mich. v. Summers, 452 U.S. 692, 697 

(1981). This requirement is of “central importance...to the protection of a citizen’s 

privacy afforded by the Fourth Amendment’s guarantees.” Id. “Physical entry into 

the home is the chief evil against which the Fourth Amendment is directed.” Roe v. 

Tex. Dep’t of Protetive & Regulatory Servs., 299 F.3d 395, 405 n.12 (5th Cir. 2002). 

Defendant Officers execution of an unlawful no-knock warrant violated Plaintiff’s 

clearly established Fourth Amendment rights. 

It is clearly established that an officer may be liable for his false statements 

resulting in a warrant being issued without probable cause “regardless of whether he 

signed the application or was present when the affiant appeared before the judge.” 

Michalik v. Hermann, 422 F.3d 252, 258 n.5 (5th Cir. 2005). Plaintiff alleges 

Defendant Officers procured and executed the warrant based on knowingly false 

statements that Plaintiff had brought a weapon into the city court house. Plaintiff

alleges Defendant Officers knew the gun was fake and that their conduct was in 

response to his constitutionally protected conduct of filing a complaint with the 

police department. (ECF # 1, ¶ 13-57).

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Finally, it is clearly established that an arrest without probable cause and in 

retaliation violates the Fourth and First Amendments to the U.S. Constitution. See 

Keenan v. Tejada, 290 F.3d 252, 262 (5th Cir. 2002) (“If no reasonable police officer 

could have believed that probable cause existed for the law enforcement actions of 

Tejeda and Martinez against the plaintiffs, then their retaliation violated clearly 

established law in this circuit.”); Flores v. City of Palacios, 381 F.3d 391, 402 (5th 

Cir. 2004) (“An arrest is unlawful unless it was supported by probable cause.”). 

Plaintiffs’ allegations that Defendant Officers knowingly procured and 

executed a warrant based on intentionally false statements, i.e. that Plaintiff Miller 

brought a weapon on government property when the officers knew it was fake, and 

in response to him making a complaint against the police department, and then 

executed said warrant by holding all occupants of his home, including two minor 

children, at gunpoint for the duration of the search, state claims for “unreasonable 

violation[s] of [] clearly established constitutional right[s].” Morales v. Gomez, No. 

EP-14-CV-00189-DCG, 2014 U.S. Dist. LEXIS 202305, at *9 (W.D. Tex. Nov. 7, 

2014) (quoting Shipp v. McMahon, 234 F.3d 907, 912 (5th Cir. 2000)). The warrant 

was procured in response to constitutionally protected conduct and without probable 

cause that a crime was committed. Thus, “the defense of qualified immunity will not 

sustain a motion to dismiss under Rule 12(b)(6).” Id. 

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CONCLUSION

For the reasons stated herein, and where Defendants have only moved to 

dismiss the first five counts of a nine-count complaint, Plaintiffs respectfully request 

this Honorable Court deny Defendant Officers’ motion to dismiss. In the alternative, 

if this Court finds any pleading-related issues in Plaintiffs’ complaint, Plaintiffs 

respectfully request this Court grant an opportunity to amend. 

Respectfully submitted,

EXCOLO LAW, PLLC

Dated: July 20, 2020 By: /s/ Solomon M. Radner

Solomon M. Radner 

MI Bar No. P73653

Attorney for Plaintiffs

26700 Lahser Rd., Suite 401

Southfield, MI 48033

(866) 939-2656

sradner@excololaw.com

CERTIFICATE OF SERVICE

Undersigned hereby states that on July 20, 2020, he caused the 

foregoing document to be filed electronically with the United States 

District Court and that a copy of said document was sent to all counsel 

of record through the Court’s CM/ECF electronic filing system. 

/s/ Solomon M. Radner

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