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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BRYAN RISER, §

§

Plaintiff, §

§

v. § CIVIL ACTION NO. 3:22-cv-1014

§

§

ESTEBAN MONTENEGRO, §

§

Defendant. §

______________________________________________________________________________

PLAINTIFF’S RULE 7(a) REPLY TO

DEFENDANT ESTEBAN MONTENEGRO’S ANSWER

______________________________________________________________________________

TO THE HONORABLE UNITED STATES DISTRICT JUDGE:

Plaintiff Bryan Riser files his Reply under Rule 7(a) of the Federal Rules of Civil 

Procedure to Defendant Esteban Montenegro’s (“Montenegro”) Answer (Doc. 13) and would

respectfully show the Court the following:

I.

OVERVIEW OF PLAINTIFF’S COMPLAINT

This is a civil rights action brought under 42 U.S.C. § 1983 and arising from 

Montenegro’s arrest without probable cause of Riser for allegedly arranging two murders.

1 Riser 

filed his detailed, extensive Complaint on May 5, 2022. Riser hereby incorporates by reference 

all factual allegations set forth in his Complaint. To summarize, the arrest was based entirely on 

the uncorroborated statements of a person directly linked to five murders. Montenegro knew the 

 

1 Montenegro submitted two substantially similar probable cause affidavits; one concerning the murder of 

Liza Saenz and the other concerning the murder of Albert Douglas. Both affidavits contained material 

misrepresentations and/or omissions for the reasons set forth in Plaintiff's Complaint and herein.

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witness was entirely unreliable for a number of reasons, including that his statements were flatly 

contradicted by those of other co-conspirators, and because a fellow police officer had directly 

informed Montenegro that the witness was unreliable and had a habit of deceiving law 

enforcement. 

In late 2019, the Dallas District Attorney’s office had told Montenegro that there was no 

probable cause to arrest Riser. More than a year later, not a single piece of additional evidence 

had been found. Nonetheless, Montenegro went ahead with the arrest that he had already been 

told was unsupported by probable cause. 

Furthermore, the probable cause affidavits Montenegro submitted to obtain the warrants

for Riser’s arrest contained various misrepresentations and omissions, including a patently false 

assertion that cell tower analysis placed Riser and his squad car in the area of the murders at the 

time they were committed. 

Riser spent over a month in jail as a result of the wrongful murder charge. He was 

finally released when a court found there was no probable cause to hold him. At that examining 

trial, the prosecution took the highly unusual position that there was in fact no probable cause 

and that Riser should not have been arrested. In fact, Dallas County District Attorney John 

Creuzot himself stated that there had been no probable cause to arrest Riser.

Montenegro filed his Original Answer, Affirmative Defenses and Jury Demand to 

Plaintiff’s Original Complaint on September 30, 2022 (Doc. 13). He did not file a Motion to 

Dismiss asserting qualified immunity, although qualified immunity is raised in his Answer in his 

second affirmative defense. The Court has ordered Riser to file this Rule 7(a) Reply in its Order 

on Qualified Immunity, filed June 8, 2023 (Doc. 22), and Riser timely files his Reply. 

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II.

REPLY TO MONTENEGRO’S AFFIRMATIVE DEFENSES

Under Section III of his Answer, Montenegro has pleaded fourteen affirmative defenses; 

several are repetitive and merely restate the same concept in a slightly different way. For 

purposes of clarity, Riser uses the same corresponding paragraph numbering that Montenegro 

used for the affirmative defenses pleaded in his Answer.

1. Riser denies that Montenegro did not deprive him of any Federal or 

Constitutionally protected rights and/or interests guaranteed under the United States Constitution 

or Federal law. (Answer at 10) Riser’s lengthy, detailed Complaint explains precisely how 

Montenegro arrested Plaintiff for Capital Murder without probable cause. Montenegro 

knowingly or recklessly made false statements, and/or omitted material exculpatory facts, in the 

probable cause affidavits which formed the basis of Riser’s arrest. Riser’s arrest was a seizure 

unsupported by probable cause and violated his rights as guaranteed by the Fourth Amendment 

of the United States Constitution.

2. Riser denies that Montenegro is entitled to qualified immunity. (Answer at 10-11) 

Montenegro claims that on the occasion in question, he was a public official acting within the 

scope of his discretionary authority and in the course of his official responsibilities, and his 

conduct did not violate clearly established law of which a reasonable person would have known 

at the time, and was further objectively reasonable.

If a state actor’s alleged misconduct could have been reasonably believed to be lawful, he 

may assert qualified immunity against a potential tort claim. McLin v. Ard, 866 F.3d 682, 688 

(5th Cir. 2017). To overcome this defense, a plaintiff must 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.” Id. Regarding the second prong, “[T]he salient question . . . is whether the 

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state of the law at the time of an incident provided fair warning to the defendants that their 

alleged [conduct] was unconstitutional.” Tolan v. Cotton, 572 U.S. 650, 655 (2014).

When examining qualified immunity in a Franks violation, the court should only ask 

whether it was clearly established that making misrepresentations or omissions in a probable 

cause affidavit was unlawful, and whether a reasonable officer would know that making those 

particular misrepresentations or omissions would violate a person’s right to a good faith showing 

of probable cause.

It is clearly established that a warrant is not evidence of probable cause “if (1) the 

affiant, in support of the warrant, includes ‘a false statement [made] knowingly 

and intentionally, or with reckless disregard for the truth’ and (2) ‘the allegedly 

false statement is necessary to the finding of probable cause.’”

Terwilliger v. Reyna, 4 F.4th 270, 285 (5th Cir. 2021). 

A defendant in a Franks claim should not get a second bite at the qualified-immunity 

apple, as it were, by also applying qualified immunity analysis to the circumstances of the 

underlying false arrest. This was specifically addressed by the Fifth Circuit in Winfrey v. Rogers, 

in which the Fifth Circuit analyzed qualified immunity and found that the law was clearly 

established by Franks itself, without looking at any other precedent:

Here, the clearly established constitutional right asserted by Junior is to be free 

from police arrest without a good faith showing of probable cause. Since Franks 

v. Delaware, it has been clearly established that a defendant’s Fourth Amendment 

rights are violated if (1) the affiant, in support of the warrant, includes a false 

statement knowingly and intentionally, or with reckless disregard for the truth and 

(2) the allegedly false statement is necessary to the finding of probable cause. 

Winfrey v. Rogers, 901 F.3d 483, 493–94 (5th Cir. 2018).

The Fifth Circuit has concluded that a “reasonable officer would know that lying to a 

judge in order to procure an arrest warrant was unlawful.” Hampton v. Oktibbeha Cty. Sheriff 

Dep’t, 480 F.3d 358, 364 (5th Cir. 2007). An officer is liable for swearing to false information 

in an affidavit in support of a warrant, provided that: (1) the affiant knew the information was 

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false or would have known it was false except for the affiant’s reckless disregard for the truth; 

and (2) the warrant would not establish probable cause without the false information. Franks v. 

Delaware, 438 U. S. 154, 171 (1978). Allegations of material omissions are treated similarly to 

claims of material misstatements. United States v. Park, 531 F.2d 754, 758-59 (5th Cir. 1976); 

Hale v. Fish, 899 F.2d 390, 400 (5th Cir. 1990) (district court’s determination that an affidavit 

for arrest warrant containing misstatements and omissions constituted constitutional violations 

under Franks v. Delaware was affirmed; affidavit that omitted facts negating probable cause was 

insufficient to support a finding of probable cause).

In his Complaint, Riser has cited facts that show Montenegro knowingly misrepresented

and omitted material facts to the magistrate for the purpose of establishing probable cause.

Riser’s alleged connection to the murders was based entirely on statements made by Emmanuel 

Kilpatrick, who had admitted to killing Liza Saenz, Albert Douglas, and others. Montenegro 

misrepresented facts to falsely establish probable cause, including the following: (1) 

Montenegro knew that the FBI Cell Site Location data did not place Riser near the places of 

Saenz’s and Douglas’s disappearance and killing when they occurred, but represented that this 

data did place Riser in or about the area during the time frame of Douglas’s and Saenz’s 

disappearance and killing; (2) Montenegro presented the narrative provided by Kilpatrick as 

factual assertions, rather than making it clear that the assertions were simply statements made by 

Kilpatrick, who himself had admitted to the murders; (3) Montenegro made false statements in 

attempting to identify corroboration of Kilpatrick’s story; and (4) Montenegro asserted that “FBI 

analysis placed the suspect’s phone and squad car at the locations where the witness stated they 

met and planned the kidnapping of [Douglas and Saenz],” which was misleading and omitted 

critical context that would have shown its falsity.

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In addition, Montenegro made material omissions; he did not disclose to the magistrate

the following: (1) Kilpatrick’s crystal-clear motive to lie: he was offered a reduced charge from 

capital murder to murder with the possibility of parole in exchange for offering information that 

Dallas police officer Riser was paying him to commit the murders of Saenz and Douglas; (2) 

Montenegro had been informed by a fellow Dallas police officer that Kilpatrick was not only 

unreliable, but also had a history of attempting to con law enforcement; and (3) Montenegro’s

interview with Kilpatrick’s co-conspirator Kevin Kidd did not corroborate Kilpatrick’s account; 

instead, Kidd’s version of events contradicted Kilpatrick’s in several key ways.

Additional Facts Showing that Montenegro is Not Entitled to Qualified Immunity

Adding an even greater level of specificity than is already set forth in the Complaint,

Riser has additional facts that put a finer point to what Montenegro knew at the time he sought 

the arrest warrants for Riser: 

• Montenegro was aware that Kilpatrick brutally murdered five people in four separate 

killing sprees over a three-week span in 2017 that claimed the lives of five individuals.

Montenegro was aware of Kilpatrick’s special level of viciousness. 

• In March 2017, shortly after his killing spree, Kilpatrick was arrested for two of the 

murders. He sat in jail for more than two years, never mentioning Riser—until just 

before his trial for Capital Murder—when he claimed for the first time that Riser was 

involved in the killing spree.

• Montenegro’s awareness that Kilpatrick was not truthful is proven in his own notes of his 

witness interviews of Kilpatrick. In July 2017, two years before Riser was implicated, 

Montenegro knew of Kilpatrick’s untruthfulness when he wrote, “Kilpatrick is making up 

a story” that implicated a co-conspirator. 

• Later, when interviewing Kilpatrick in August 2019, Montenegro again knew that 

Kilpatrick was untruthful; Montenegro wrote, “Wrong date, wrong timeline of murders.”

• In the same interview, Kilpatrick claimed that the planning for the Saenz murder took 

place on a date after the murder had actually occurred. Any reasonable officer who 

watches Kilpatrick’s interview would recognize that the interview is replete with false 

statements such as those just described. It is blatantly obvious that Kilpatrick was not 

telling the truth.

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• Kilpatrick claimed that he and two co-conspirators (Kidd and Simmons) met with Riser 

at Miller Park in Dallas, at which time Kilpatrick claimed that they met Riser for 

instructions, and Riser showed all three of them a picture of Liza Saenz, and indicated 

that he wanted her killed. In separate interviews, Kidd denied ever seeing Riser when he 

was at Miller Park with Kilpatrick, and Simmons denied ever being at Miller Park with 

Kilpatrick on any occasion. Montenegro was the one who personally interviewed

Kilpatrick, Kidd and Simmons and knew of these material inconsistencies in Kilpatrick’s 

account.

• During the interview, Kilpatrick said there was a pre-determined plan to kill Douglas at 

Riser’s request. When Montenegro interviewed Kidd, Kidd denied that there had ever 

been a plan to kill Douglas, and that Kilpatrick made a spontaneous decision to shoot 

Douglas in the head when the robbery of Douglas did not go as planned. 

• Kilpatrick also claimed in an interview with Montenegro that a woman (with initials T.S.) 

was told by Riser to visit Kilpatrick in jail and tell him to keep his mouth shut. When 

Montenegro interviewed T.S., she said there was no truth whatsoever to that; she 

admitted to visiting Kilpatrick but denied any contact with Riser or that any such 

instructions had taken place. 

• In the interview with Montenegro in which Kilpatrick first implicated Riser, he also 

implicated a second Dallas police officer (name withheld for security reasons) as being 

involved in criminal activity. The police clearly found this story so lacking in credibility 

that they waited more than two years to interview the other officer about it. 

• At the time Montenegro interviewed Kilpatrick, he was a habitual offender with multiple 

felony convictions who had already done two prison stints in the Texas Department of 

Criminal Justice.

• In these interviews, Kilpatrick never raised with Montenegro any motive for why Riser 

would have wanted either of the two individuals dead, as he had no connection to either 

of them.

• Montenegro chose to believe a pathological liar and serial killer over a fellow Dallas 

police officer. 

Riser has cited facts that show Kilpatrick’s unreliability as a witness precludes a finding 

of probable cause to arrest Riser for Capital Murder. Montenegro’s implicit assertion in his 

affidavits that Emmanuel Kilpatrick was reliable lacks any foundation in the evidence. 

Kilpatrick was neither credible nor reliable; his statements were wildly inconsistent and 

Montenegro knew they were contradicted by the established facts/evidence. No credible facts 

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from a reliable witness existed to support any reasonable belief of probable cause to arrest Riser 

on two counts of Capital Murder. 

Montenegro is not entitled to qualified immunity because the facts that Riser has alleged 

make out a violation of a constitutional right; and (2) the right at issue was clearly established at 

the time of Montenegro’s misconduct. Jennings v. Patton, 644 F. 3d 297, 300 (5th Cir. 2011).

3. Riser admits that in Carswell v. Camp, 54 F.4th 307 (5th Cir. 2022), the Fifth 

Circuit held that in light of a defendant’s assertion of qualified immunity, discovery is not 

appropriate until any challenges to the pleadings have been adjudicated. (Answer at 11)

4. Riser denies that he has failed to state a claim upon which relief may be granted.

(Answer at 11) Riser’s Complaint pleads facts that are more than sufficient to support the 

elements of his federal claim against Montenegro for unlawful seizure under 42 U.S.C. § 1983.

5. Riser denies that Montenegro complied with all federal laws. (Answer at 11) 

Riser’s Complaint pleads facts that are more than sufficient to support the elements of his federal 

claim against Montenegro for unlawful seizure under 42 U.S.C. § 1983. 

6. Riser denies that Montenegro’s actions were lawful, proper, and justified under 

the circumstances. (Answer at 11) Montenegro knowingly or recklessly made false statements, 

and/or omitted material exculpatory facts, in the probable cause affidavits which formed the 

basis of Riser’s arrest. Riser’s arrest was a seizure unsupported by probable cause and violated 

his rights as guaranteed by the Fourth Amendment of the United States Constitution.

7. Riser denies that Montenegro is not liable for punitive/exemplary damages or that 

he did not act with reckless or callous disregard for Riser’s rights. (Answer at 11) Montenegro 

knowingly or recklessly made false statements, and/or omitted material exculpatory facts, in the 

probable cause affidavits which formed the basis of Riser’s arrest. Riser’s arrest was a seizure 

unsupported by probable cause and violated his rights as guaranteed by the Fourth Amendment 

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of the United States Constitution. The facts alleged in Riser’s complaint clearly indicate that 

Montenegro acted either knowingly or with intentional disregard for Riser’s constitutionally 

protected rights when he swore to probable cause affidavits that he knew to contain material 

misrepresentations/omissions as described in the Complaint and in the response to Affirmative 

Defense 2 above.

8. Riser denies that a warrant and/or probable cause existed to arrest and seize Riser.

(Answer at 11) The warrant was obtained by Montenegro’s material misrepresentations and 

omissions in the probable cause affidavits. The unlawful arrest was an unreasonable seizure of 

Riser and violated his rights, as guaranteed by the Fourth Amendment of the United States 

Constitution and 42 U.S.C. § 1983. Montenegro misrepresented the facts surrounding the 

murders in affidavits he presented to a magistrate to obtain an arrest warrant for Riser, even 

though probable cause did not otherwise exist, and Montenegro also omitted from his affidavits

material facts within his knowledge which would have negated probable cause. Without the false 

or misleading statements and omissions, the affidavits contain nothing more than uncorroborated 

statements made by an alleged accomplice—an accomplice who had already been promised the 

chance of parole for his own crime, and therefore had ample incentive to implicate Riser.

9. Riser denies Montenegro’s assertion that probable cause was found by an 

independent intermediary thereby breaking the causal chain and insulating Montenegro from 

liability, or that Montenegro is entitled to the protections of the independent intermediary 

doctrine. (Answer at 11) The holding of Franks v. Delaware is an exception to the independent 

intermediary doctrine, which provides that “if facts supporting an arrest are placed before an 

independent intermediary such as a magistrate or grand jury, the intermediary’s decision breaks 

the chain of causation for false arrest, insulating the initiating party.” Cuadra v. Houston Indep. 

Sch. Dist., 626 F.3d 808, 813 (5th Cir. 2010) (citation and internal quotation marks omitted). But 

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“the chain of causation remains intact if it can be shown that the deliberations of that 

intermediary were in some way tainted by the actions of the defendant.” Id.

To determine taint, the essential inquiry is whether “there remains sufficient content in 

the warrant affidavit to support a finding of probable cause” after the “material that is the subject 

of the alleged falsity or reckless disregard is set to one side.” Franks, 438 U.S. at 171-72, 98 S. 

Ct. at 2684. After Montenegro’s material misrepresentations and omissions are set to one side, 

absolutely nothing is left to support a probable cause finding. Without the false or misleading 

statements and omissions, the affidavits contain nothing more than uncorroborated statements 

made by an alleged accomplice—an accomplice who had already been promised the chance of 

parole for his own crime, and therefore had ample incentive to implicate Riser.

10. Riser denies Montenegro’s actions were lawful, proper, and justified under the 

circumstances. (Answer at 11) Despite the total lack of probable cause to establish the existence 

of any crime, Montenegro caused Riser to be charged and detained for the offense of Capital 

Murder. Montenegro knowingly or recklessly made false statements, and/or omitted material 

exculpatory facts, in the probable cause affidavits which formed the basis of Riser’s arrest.

11. Riser denies that Montenegro did not act with reckless or callous disregard for 

Riser’s rights. (Answer at 11) Montenegro knowingly or recklessly made false statements, and/or 

omitted material exculpatory facts, in the probable cause affidavits which formed the basis of 

Riser’s arrest. When the facts omitted from an affidavit for arrest warrant are clearly critical to a 

finding of probable cause, the fact of recklessness may be inferred from proof of the omission 

itself. United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980). Riser’s assertion that 

Montenegro was at least reckless in misrepresenting facts and omitting material facts in order to 

obtain a warrant for his arrest states a valid cause of action under the Fourth Amendment. Hart 

v. O’Brien, 127 F.3d 424, 442 (5th Cir. 1997).

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12. Riser denies that Montenegro did not act with malice, recklessness, callous 

indifference, or deliberate indifference to Riser’s Constitutional or Federal statutory rights.

(Answer at 11-12) Despite the total lack of probable cause to establish the existence of any 

crime, Montenegro caused Riser to be charged and detained for the offense of Capital Murder. 

The arrest of Riser was malicious and intentional on the part of Montenegro. Montenegro 

knowingly or recklessly made false statements, and/or omitted material exculpatory facts, in the 

probable cause affidavits which formed the basis of Riser’s arrest. When the facts omitted from 

an affidavit for arrest warrant are clearly critical to a finding of probable cause, the fact of 

recklessness may be inferred from proof of the omission itself. United States v. Martin, 615 F.2d 

318, 329 (5th Cir. 1980). Riser’s assertion that Montenegro was at least reckless in 

misrepresenting facts and omitting material facts in order to obtain a warrant for his arrest states 

a valid cause of action under the Fourth Amendment. Hart v. O’Brien, 127 F.3d 424, 442 (5th 

Cir. 1997).

13. Riser denies his own acts or omissions caused or contributed to his alleged 

injuries. Riser denies that his intentional and/or negligent acts constituted the sole proximate 

cause of his injuries and damages. (Answer at 12) As shown in his detailed Complaint, Riser’s 

damages were caused solely by Montenegro’s civil rights violations.

14. Finally, Montenegro’s final affirmative defense is not substantive but simply 

asserts that he reserves the right to raise additional affirmative defenses. (Answer at 12) Riser has 

no objection to this statement.

Respectfully submitted,

By: /s/ Don Tittle

Don Tittle

State Bar No. 20080200

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don@dontittlelaw.com

Law Offices of Don Tittle

8350 N Central Expressway, Suite M1085 

(214) 522-8400

(214) 389-1002 (fax)

ATTORNEY FOR PLAINTIFF

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