Nevarez v. Coleman

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JULIE NEVAREZ, ET AL. CIVIL ACTION

VERSUS NO. 21-1855

DANA COLEMAN, ET AL. SECTION “R” (5)

ORDER AND REASONS

Before the Court is defendants Anthony Dorris and Justin Leonard’s

motion to dismiss Count II of plaintiffs’ second amended complaint.1

Plaintiff Julie Nevarez opposes defendants’ motion.2 For the following

reasons, the Court denies defendants’ motion.

I. BACKGROUND

This case arises out of the fatal shooting of Miguel Nevarez by officers

from the Houma Police Department (“HPD”) and the Terrebonne Parish

Sheriff’s Office (“TPSO”). On October 13, 2020, at 9:00 p.m., defendant

Walter Tenney, an HPD officer, was investigating reports of gunshots in Mr.

Nevarez’s neighborhood.3 Tenney allegedly approached Mr. Nevarez, who

1 R. Doc. 49.

2 R. Doc. 50.

3 R. Doc. 26 ¶¶ 29-30.

was sitting on the driver’s side of his vehicle, parked in his driveway.4 Tenney

reportedly asked Mr. Nevarez to speak with him, and when he refused,

Tenney “drew his service weapon and called for backup.”5 Plaintiffs allege

that Tenney, “without any basis in fact,” reported that Mr. Nevarez possibly

had a gun in his car.6 Tenney and other officers further reported that Mr.

Nevarez had “barricaded” himself in his vehicle.7 Plaintiffs represent that, at

this point, the officers “continued to escalate the situation” by blocking off

the surrounding streets, and calling for additional backup, which resulted in

nearly fifty officers from HPD and TPSO arriving at the scene.8

Plaintiffs allege that when Julie Nevarez, Mr. Nevarez’s wife, tried to

access her and Mr. Nevarez’s home, she was denied access to her street.9 Ms.

Nevarez alleges that she was approached by Lt. Travis Theriot, a “purported

negotiator,” and that she identified herself as Mr. Nevarez’s wife.10 She

contends that during her conversation with Theriot, Mr. Nevarez called her

4 Id. ¶ 30.

5 Id.

6 Id. ¶¶ 31-32.

7 Id. ¶ 34.

8 Id. ¶¶ 35-36.

9 Id. ¶ 37.

10 Id.

cell phone, and that Theriot seized her phone, refusing to let her talk to Mr.

Nevarez.11

At 10:26 p.m. that night, Mr. Nevarez allegedly left his vehicle and ran

toward the back of his house, and toward, unbeknownst to him, HPD officers

Sidney Theriot and Tenney.12 In an effort to stop Mr. Nevarez, Officer

Theriot allegedly shot at Mr. Nevarez with his 40 mm “impact munition,”

and Officer Tenney attempted to tase him.13 Mr. Nevarez allegedly stumbled

but regained his footing and began to run toward the front corner of his

house, at which point, according to defendants, Mr. Nevarez “raised a gun

towards [HPD Officer] Bolgiano.”14 Plaintiffs dispute that Mr. Nevarez

raised a gun towards Bolgiano.15 Allegedly in response, Bolgiano fired at Mr.

Nevarez as he emerged from the west side of the yard.16 Several other

defendants also reported firing on Mr. Nevarez,17 and plaintiffs assert that

Mr. Nevarez was ultimately shot at approximately 20 times.18

11 Id.

12 Id. ¶ 42.

13 Id. ¶¶ 43-46.

14 Id. ¶ 49.

15 See id. (“Upon information and belief, discovery will contradict

Bolgiano’s allegation.”).

16 Id. ¶ 50.

17 Id. ¶¶ 50-51, 53-54.

18 Id. ¶ 52.

The Houma Police Administration allegedly asked the Louisiana State

Police (“LSP”) to investigate the circumstances surrounding Mr. Nevarez’s

death.19 As part of this investigation, on October 14, 2020, hours after Mr.

Nevarez’s death, LSP State Trooper Justin Leonard secured a search warrant

for the Nevarezes’ home and the vehicle Mr. Nevarez was seated in the night

before.20 The warrant was obtained based on Leonard’s affidavit in which he

certified, under oath, that probable cause existed for the search, on the

grounds that the car and house contained evidence of “aggravated assault

upon a peace officer,” in violation of Louisiana Revised Statute § 14:37.2.21

Also as part of the investigation, on October 19, 2020, five days after Mr.

Nevarez’s death, LSP State Trooper Anthony Dorris secured a search warrant

for Ms. Nevarez’s cell phone that was seized the night of her husband’s

death.22 Like Leonard, Dorris submitted an affidavit in which he attested,

under oath, that the warrant was needed “to locate any and all evidence that

may aid the Louisiana State Police in their active investigation of the crime

of LRS 14:37.2 Aggravated Assault Upon a Peace Officer.”23

19 Id. ¶ 62.

20 Id. ¶ 63.

21 Id. ¶¶ 64-65.

22 Id. ¶ 67.

23 Id. ¶ 69.

On October 12, 2021, Ms. Nevarez and Mr. Nevarez’s children filed a

complaint in this Court that included claims for, among other things,

unreasonable seizure in violation of the Fourth Amendment, unreasonable

searches in violation of the Fourth Amendment, excessive force, wrongful

death, battery, assault, and violations of Louisiana Public Records Law. At

issue here is plaintiffs’ claim for unreasonable searches in violation of the

Fourth Amendment. In support of this claim, plaintiffs aver that defendants

Leonard and Dorris conducted illegal searches of Ms. Nevarez’s home, car,

and cell phone. Specifically, plaintiffs contend that Leonard and Dorris

“knowingly and intentionally submitted affidavits containing false or

insufficient factual statements and material omissions to procure the search

warrants, building up the narrative of an active criminal investigation where

there was none.”24 Both Leonard and Dorris are sued in their individual

capacities.25

Dorris and Leonard moved to dismiss plaintiffs’ complaint, arguing

that: (1) plaintiffs could not assert a section 1983 claim on behalf of a

decedent, and (2) plaintiffs could not overcome qualified immunity because

plaintiffs did not have the affidavits allegedly containing false statements and

24 R. Doc. 47 at 23 ¶ 76.

25 Id. at 7 ¶¶ 25-26.

material omissions.26 In plaintiffs’ opposition, they contended that after LSP

turned over the warrant affidavits, plaintiffs filed an amended complaint that

specifically cited the affidavits. Plaintiffs also clarified that their section 1983

claim was brought on behalf of Ms. Nevarez, not her husband.27 After

plaintiffs filed their amended complaint, Dorris and Leonard filed a second

motion to dismiss, arguing that plaintiffs failed to plausibly allege

constitutional violations. They also reasserted their argument that they are

entitled to qualified immunity.28

The Court issued an Order and Reasons on July 7, 2022, that resolved

both of the motions to dismiss. The Court granted defendants’ first motion

to dismiss as to the claims asserted by Mr. Nevarez’s children on the grounds

that they had no standing to challenge defendants’ search of the car, house,

and cell phone.29 Because Ms. Nevarez asserted a privacy interest in the

areas searched, however, the Court denied defendants’ first motion to

dismiss as to the claims premised on the violation of Ms. Nevarez’s Fourth

Amendment rights.30 The Court then granted defendants’ second motion to

dismiss in its entirety on the grounds that the warrants were facially valid

26 R. Doc. 12-1 at 6-11.

27 Id. at 5-6.

28 R. Doc. 35-1 at 5-12.

29 R. Doc. 46 at 12.

30 Id. at 11.

and that plaintiffs failed to establish that the alleged misrepresentations and

omissions contained in defendants’ search warrant affidavits were material

to the magistrate judge’s finding of probable cause.31 The Court granted

leave to amend.

Plaintiffs then filed a second amended complaint. In the latest

iteration of their complaint, plaintiffs provide more detailed allegations

regarding the deficiencies of the warrant affidavits.32 In particular, plaintiffs

emphasize that no one “still living—let alone residing in the home—had

anything to do with” the alleged crime underlying the warrants, and that law

enforcement could not “charge [Mr. Naverez] with a crime posthumously,

obviating the need for such evidence.”33 Plaintiffs also reiterate their

allegations from the last version of their complaint about the affirmative

misrepresentations contained in defendants’ affidavits.34 The thrust of

plaintiffs’ claims is that defendants obtained warrants to search for

information “supporting a defensive narrative to retroactively justify the

excessive use of force” that resulted in Mr. Nevarez’s death and to intimidate

his family rather than to seek evidence of Mr. Nevarez’s alleged crime.35

31 Id. at 33-34, 37-38.

32 R. Doc. 47 at 15-18 ¶ 65, 21-22 ¶ 72.

33 Id. ¶¶ 65(s), 67.

34 Id. at 15-18 ¶ 65.

35 Id. at 3 ¶ 5.

Leonard and Dorris filed a third motion to dismiss in which they argue

that plaintiffs’ second amended complaint contains no new allegations that

warrant revisiting the Court’s conclusion in its July 7, 2022 Order and

Reasons.36 Plaintiffs oppose defendants’ motion, again arguing that if

defendants had disclosed to the magistrate judge “the material facts

surrounding Mr. Nevarez’s death and the true nature of [defendants’]

investigation,” the challenged warrants would not have been issued.37

After the motion was fully briefed, this Court asked the parties to

submit supplemental briefing on the question of “whether the Fourth

Amendment permits law enforcement officers to seek a warrant to

investigate a crime for which the alleged perpetrator cannot be convicted

because the alleged perpetrator whose conduct was the focus of the warrant

was dead at the time the warrant was sought.”38 Both parties submitted

supplemental briefing pursuant to the Court’s order.39

The Court considers the parties’ arguments below.

36 R. Doc. 49-1 at 7.

37 R. Doc. 50 at 4.

38 R. Doc. 57.

39 R. Docs. 58 & 59.

II. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead

enough facts to “state a claim to relief that is plausible on its face.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 547 (2007)). A claim is facially plausible “when the plaintiff

pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. at 678. The Court

must accept all well-pleaded facts as true and must draw all reasonable

inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d

228, 239, 244 (5th Cir. 2009). But the Court is not bound to accept as true

legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.

On a Rule 12(b)(6) motion, the Court must limit its review to the

contents of the pleadings, including attachments. Brand Coupon Network,

L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014). The Court

may also consider documents attached to a motion to dismiss or an

opposition to that motion when the documents are referred to in the

pleadings and are central to a plaintiff’s claims. Id. “In addition to facts

alleged in the pleadings, however, the district court ‘may also consider

matters of which [it] may take judicial notice.’” Hall v. Hodgkins, 305 F.

App’x 224, 227 (5th Cir. 2008) (citing Lovelace v. Software Spectrum, Inc.,

78 F.3d 1015, 1017-18 (5th Cir. 1996)).

While conducting this analysis, the Court must limit its review to the

contents of the pleadings, including attachments. Brand Coupon Network,

L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014). “It is well-

established that ‘[d]ocuments that a defendant attaches to a motion to

dismiss are considered part of the pleadings if they are referred to in the

plaintiff’s complaint and are central to her claim.’” Carter v. Target Corp.,

541 F. App’x 413, 416-17 (5th Cir. 2013) (per curiam) (quoting Collins v.

Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)).

Defendants attached the following materials to their second motion to

dismiss: (1) Leonard’s affidavit for a search warrant of the Nevarezes’ car and

house, and the accompanying search warrant; (2) Dorris’s affidavit for a

search warrant of Ms. Nevarez’s phone, and the accompanying search

warrant; and 3) Dorris’s affidavit for a search warrant of the Nevarezes’ DVR

Security System, and the accompanying search warrant.40 Because these

documents are referred to and quoted extensively in plaintiffs’ complaint, the

Court may consider them in ruling on defendants’ motions to dismiss. Id.;

Guillot v. Lopinto, No. 20-1604, 2021 WL 779180, at *7 (E.D. La. Mar. 1,

40 R. Doc. 35-3.

2021) (considering medical records attached to defendants’ motion to

dismiss because the records “are referenced in detail throughout the

Complaint” and “are central to Plaintiffs’ claims”).

III. DISCUSSION

Section 1983 of Title 42 of the United States Code provides a cause of

action for plaintiffs whose federal rights are violated under the color of state

law. 42 U.S.C. § 1983; Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th

Cir. 1998). To state a claim under section 1983, a plaintiff must first show a

violation of the Constitution or of federal law, and then show that the

violation was committed by someone acting “under color of state law.” Id.

The qualified-immunity defense to such claims shields government officials

who perform discretionary functions from suit and liability under section

1983, “unless their conduct violates clearly established statutory or

constitutional rights of which a reasonable person would have known.” Babb

v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994) (internal quotation marks

omitted). At the motion-to-dismiss stage, the Court looks to “defendant’s

conduct as alleged in the complaint” to determine whether a defendant is

entitled to qualified immunity. Behrens v. Pelletier, 516 U.S. 299, 309

(1996).

“Once a defendant invokes the qualified immunity defense, the

plaintiff carries the burden of demonstrating its inapplicability.” Floyd v.

City of Kenner, 351 F. App’x 890, 893 (5th Cir. 2009) (citing Club Retro,

L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009)). To satisfy that burden

at the motion-to-dismiss stage, the plaintiff must allege facts sufficient to

demonstrate (1) that the defendant violated a constitutional right, and (2)

that the violated right was “clearly established” at the time of defendants’

alleged actions. Pearson v. Callahan, 555 U.S. 223, 231 (2009). Thus, an

“officer will be entitled to qualified immunity if no constitutional violation

occurred or if the conduct ‘did not violate law clearly established at the

time.’” Davis v. Hodgkiss, 11 F.4th 329, 333 (5th Cir. 2021), cert. denied, 142

S. Ct. 1127 (2022). It is within the Court’s discretion to decide which prong

to address first. Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (citing

Pearson v. Callahan, 555 U.S. 223, 236 (2009)).

A. Fourth Amendment Claim

In plaintiffs’ second amended complaint, they allege that defendants

Leonard and Dorris are liable under section 1983 because they “knowingly

and intentionally submitted affidavits containing false or insufficient factual

statements and material omissions to procure the search warrants” of Ms.

Nevarez’s cell phone, house, and car.41 Because defendants contend that

plaintiffs have failed to state a claim for a Fourth Amendment violation, the

Court begins with the threshold question of whether plaintiffs have plausibly

alleged that defendants violated a constitutional right. See Lytle v. Bexar

Cnty., 560 F.3d 404, 410 (5th Cir. 2009) (“If we determine that the alleged

conduct did not violate a constitutional right, our inquiry ceases because

there is no constitutional violation for which the government official would

need qualified immunity.”).

As discussed in this Court’s July 7, 2022 Order and Reasons, the Fifth

Circuit “has recognized two different kinds of claims against government

agents for alleged Fourth Amendment violations in connection with a search

or arrest warrant: (1) claims under Franks v. Delaware, 438 U.S. 154

(1978),” and “(2) claims under Malley v. Briggs, 475 U.S. 335 (1986).”

Melton v. Phillips, 875 F.3d 256, 270 (5th Cir. 2017) (en banc) (J. Dennis

dissenting); see also Wilson v. Stroman, 33 F.4th 202, 206 (5th Cir. 2022)

(analyzing plaintiffs’ “two alternative” Fourth Amendment claims, “one

premised on Malley . . . and the other premised on Franks”).

Under the first type of claim, known as Franks liability, “a defendant’s

Fourth Amendment rights are violated if (1) the affiant, in support of the

41 R. Doc. 47 at 23 ¶ 76.

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, 494 (5th Cir. 2018) (quoting Franks, 438 U.S. at 155-56). The Fifth

Circuit has likewise held that “the intentional or reckless omission of

material facts from a warrant application [or affidavit] may amount to a

Fourth Amendment violation.” Kohler v. Englade, 470 F.3d 1104, 1113 (5th

Cir. 2006). To determine whether the false statements or omissions are

necessary to the probable-cause finding, courts look to 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.’” Terwilliger v. Reyna, 4 F.4th 270, 281-

82 (5th Cir. 2021) (quoting Franks, 438 U.S. at 171-72).

Under the second type of claim, premised on the Supreme Court’s

holding in Malley v. Briggs, “an officer can be held liable for a search

authorized by a warrant when the affidavit presented to the magistrate was

‘so lacking in indicia of probable cause as to render official belief in its

existence unreasonable.’” Mayfield v. Currie, 976 F.3d 482, 487 (5th Cir.

2020) (quoting Malley, 475 U.S. at 344-45). “The Malley wrong is not the

presentment of false evidence, but the obvious failure of accurately presented

evidence to support the probable cause required for the issuance of a

warrant. Blake v. Lambert, 921 F.3d 215, 220 (5th Cir. 2019) (citation

omitted). If a “reasonably well-trained officer . . . would have known that his

affidavit failed to establish probable cause and that he should not have

applied for the warrant,” the officer’s “shield of immunity [will] be lost.”

Malley, 475 U.S. at 344-45.

Because “the principles of Franks have never been applied to facially

invalid warrants,” the Court begins its analysis by considering whether the

warrant affidavits at issue support a finding of probable cause on their faces.

Kohler, 470 F.3d at 1114 (explaining that the Franks materiality analysis

presumes that the warrant affidavit, on its face, supports a finding of

probable cause, because a plaintiff “cannot hold an officer liable under

Franks for intentionally omitting important exculpatory information from a

warrant affidavit when the officer has also committed a Malley violation”).

Both warrant affidavits at issue include the same description of the

facts: They explain that on October 13, 2020, police officers approached Mr.

Nevarez when responding to a complaint of a person illegally discharging a

weapon. At the time, Mr. Nevarez was in a car parked in a driveway. The

police unsuccessfully attempted to negotiate with Mr. Nevarez, who

eventually fled the vehicle. The officers attempted to subdue Mr. Nevarez

with “less lethal attempts” before they ultimately “responded to the threat”

of Mr. Nevarez raising a firearm toward the police officers by “discharg[ing]

their weapons,” after which Mr. Nevarez, who “was struck,” “succumbed to

his injuries.”42 Both affidavits indicate that the police were investigating the

felony of aggravated assault upon a peace officer.43

Plaintiffs contend that the affidavits, which refer to Mr. Nevarez as

“succumb[ing]” to his injuries after he was “struck,” do not effectively convey

that Mr. Nevarez was killed in his altercation with the police.44 Plaintiffs

argue that if the affidavits clearly stated that Mr. Nevarez had died, they

would fail to support a finding of probable cause. They argue that because

“a dead suspect cannot be charged with or prosecuted for a crime,” any

probable cause “would be for naught.”45

The Court finds that the warrant affidavits make clear that Mr. Nevarez

died. Both affidavits state that the police made unsuccessful “less lethal

attempts” to stop Mr. Nevarez before ultimately “discharg[ing] their

weapons,” at which point Mr. Nevarez was “struck and succumbed to his

injuries.”46 In light of the fact that the affidavits make clear that Mr. Nevarez

42 R. Doc. 35-3 at 1, 6.

43 Id.

44 Id.

45 Id.

46 Id.

died during the altercation with the police, and the affidavits do not include

any information that suggests that others may have been involved with the

alleged assault on a peace officer, the Court finds that the warrants do not

support a finding of probable cause.

The parties have identified no binding cases, nor is this Court aware of

any, that squarely addresses the question of whether probable cause can

support a warrant to search for evidence of a crime that cannot be prosecuted

because the suspect has died. A factually similar case from the Eastern

District of Michigan, however, is instructive here. In Coopshaw v. Figurski,

police officers unsuccessfully attempted to stop a woman for a traffic

violation, which resulted in a car chase. 2008 WL 324103, at *1 (E.D. Mich.

Feb. 6, 2008). During the pursuit, a police officer shot the woman through

her car window. Id. She died from the gunshot wound the next morning. Id.

Thereafter, a police officer was assigned to investigate the circumstances of

the woman’s death. Id. The officer obtained a search warrant to search the

decedent’s home with the help of a local prosecutor, who advised the officer

on how to craft the warrant affidavit. Id. The officer conceded that the

decedent could not be charged with a crime, but testified that the warrant

was relevant to investigating the “totality of the incident,” including a

determination of whether the decedent was suicidal. Id. at *2. The

prosecutor who assisted the officer conceded that there was no suggestion of

criminal activity on the part of anyone else. Id. The plaintiffs dismissed their

claims against the police officer involved in the incident, but maintained that

the prosecutor who helped prepare the warrant affidavit violated the Fourth

Amendment. They argued that the true motive for obtaining the search

warrant was to intimidate and harass the plaintiffs, to improve the public

image of law enforcement, and to search for potentially exculpatory evidence

in anticipation of litigation. Id. at *5. The prosecutor moved for summary

judgment on the issue of immunity to suit. Id. at *6.

The court held that there was a genuine issue of material fact as to

whether the search warrant was supported by probable cause. Id. at *13. In

so doing, the court emphasized that “[t]he search warrant application itself

does not provide information indicating suspicion of any chargeable criminal

activity on the part of [decedent],” because she had already died when the

warrant application was prepared, and that “there was no probable cause to

suspect that any other past or ongoing criminal activity was connected to”

decedent’s home. Id. The purpose of seeking the warrant was “essentially to

find out what happened, not for the purpose of charging [decedent]

posthumously with a crime.” Id. Accordingly, the court concluded that the

circumstances of the search warrant “support[ed] the plaintiffs’ theory that

the defendants used the warrant to further a ‘fishing expedition’ in order to

discover information about [decedent’s] mental state, and not to pursue any

criminal investigation.” Id.

The same is true here. Nothing in the warrant affidavits indicates that

others were involved in Mr. Nevarez’s alleged crime, nor do the affidavits

give any indication that the crime could be ongoing. Much like the officer in

Coopshaw who applied for a warrant “essentially to find out what

happened,” 2008 WL 324103, at *2, defendants concede in their motion to

dismiss that they applied for the warrants to “investigat[e] the events which

unfolded on the night of the incident which necessitated the use of force.”47

They do not dispute that Mr. Nevarez could not be posthumously charged of

a crime, nor do they contend they were actively investigating anyone else in

connection with the alleged assault on a peace officer. Plaintiffs have

plausibly alleged that here, as in Coopshaw, law enforcement secured the

warrants to uncover exculpatory evidence they could use to defend their own

use of force.

Probable cause exists “when there are reasonably trustworthy facts

which, given the totality of the circumstances, are sufficient to lead a prudent

person to believe that the items sought constitute fruits, instrumentalities,

47 R. Doc. 49-1 at 13.

or evidence of a crime.” Kohler, 470 F.3d at 1109 (citing Illinois v. Gates,

462 U.S. 213, 238-39 (1983)). “There must, of course, be a nexus . . . between

the item to be seized and criminal behavior.” Warden, Md. Penitentiary v.

Hayden, 387 U.S. 294, 307 (1967). Such a nexus is “automatically provided

in the case of fruits [of a crime], instrumentalities, or contraband.” Id. But

it is well-settled law that “in the case of ‘mere evidence’ [of a crime], probable

cause must be examined in terms of cause to believe that the evidence sought

will aid in a particular apprehension or conviction.” Id.; see also United

States v. Pena, 418 F. App’x 335, 346 (5th Cir. 2011) (same). In this case, the

evidence defendants purportedly sought to uncover could not possibly “aid

in a particular apprehension or conviction.” Hayden, 387 U.S. at 30.

Although the Court accords “great deference” to a magistrate judge’s finding

of probable cause, the Court will not “defer to a warrant based on an affidavit

that does not ‘provide the magistrate with a substantial basis for determining

the existence of probable cause.’” Id.

In their supplemental brief, defendants rely on Blanchard-Daigle v.

Geers, 802 F. App’x 113 (5th Cir. 2020). In that case, the police pulled over

a man they suspected of driving while intoxicated. Id. at 114. When the man

reached for something in his car, the police fatally shot him. Id. Eight hours

after the man was killed, the police obtained a warrant to search the

decedent’s home “to investigate an aggravated assault.” Id. at 115. Much like

plaintiffs here, the plaintiff in Blanchard-Daigle argued that the police

purported to investigate a crime as a pretext. The Fifth Circuit declined to

address the plaintiff’s claim based on the “well-settled precedent . . . that the

deceased have no rights to be protected or invalidated under the

Constitution.” Id. at 121. This case thus does not help defendants.48

Because the Court finds that plaintiffs have plausibly alleged that the

warrant affidavits, on their face, do not support a finding of probable cause,

the Court does not address the question of Franks liability. Mayfield v.

Currie, 976 F.3d 482, 488 (5th Cir. 2020) (“[A] plaintiff cannot hold an

officer liable under Franks for intentionally omitting important exculpatory

information from a warrant affidavit when the officer has also committed a

Malley violation by presenting a facially deficient warrant affidavit to the

issuing judge.” (internal quotation marks omitted)).

B. Qualified Immunity

48 As discussed in this Court’s July 7, 2022 Order and Reasons, plaintiffs’

claim for an unreasonable search under the Fourth Amendment is

premised on the violation of Ms. Nevarez’s constitutional rights, not

Mr. Nevarez’s. R. Doc. 46 at 11.

Defendants contend that even if the Court finds that they violated Ms.

Nevarez’s constitutional rights, they are entitled to qualified immunity. “The

doctrine of qualified immunity protects government officials from civil

damages liability when their actions could reasonably have been believed to

be legal.” Id. (quoting Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011)

(en banc)). “Evaluating qualified immunity is a two-step process.” Michalik

v. Hermann, 422 F.3d 252, 258-59 (5th Cir. 2005). First, a court must

determine “whether the plaintiff has alleged a violation of a clearly

established constitutional or statutory right.” Id. “If the plaintiff has alleged

a violation of a clearly established right, the next step . . . is to determine

whether the official’s conduct was objectively reasonable under the law at the

time of the incident.” Id. Qualified immunity does not attach if “a reasonably

well-trained officer in [the officer’s] position would have known that his

affidavit failed to establish probable cause.” Malley, 45 U.S. at 345.

The Court finds that defendants are not entitled to dismissal on the

basis of qualified immunity. The Fourth Amendment right that plaintiffs

contend defendants violated—to be free from a search pursuant to a warrant

that, on its face, was “so lacking in indicia of probable cause as to render

official belief in its existence unreasonable,” Malley, 475 U.S. at 344-45—was

clearly established at the time defendants submitted their warrant affidavits.

See Blake, 921 F.3d at 220-21 (defendant’s warrant affidavit that “does not

provide any supporting facts from which a magistrate could independently

determine probable cause” violated a right that was “clearly established

when [defendant] swore his affidavit,” as “[t]he general Malley rule dates

from the 1980s”). A reasonable officer would understand that there is no

probable cause to support a search warrant where, as here, the police were

investigating their own use of force rather than pursuing an active criminal

investigation. See Wooley v. City of Baton Rouge, 211 F.3d 913, 919 (5th Cir.

2000) (a right is clearly established if its contours are “sufficiently clear that

a reasonable official would understand that what he is doing violates that

right” (internal citations omitted)); see also Mayfield, 976 F.3d at 487 (“The

question to be asked, under Malley, is whether a reasonably well-trained

officer in [defendants’] position would have known that his affidavit failed to

establish probable cause and that he should not have applied for a warrant.”).

Plaintiffs have also plausibly alleged that defendants acted in an

objectively unreasonable manner in applying for the affidavit. Like the

plaintiffs in Coopshaw, plaintiffs here contend that defendants obtained

their search warrants “not for the purpose of seeking evidence related to any

alleged crimes, but rather to search for information supporting a defensive

narrative to retroactively justify the excessive use of force that caused [Mr.

Nevarez’s] death.”49 2008 WL 324103, at *5; see also Floyd v. City of

Kenner, La., 351 F. App’x 890, 895 (reversing district court’s dismissal of

plaintiff’s Fourth Amendment claim on the basis of qualified immunity

because “at the pleading stage, [plaintiff’s] allegation that the [police’s]

actions were spurred by . . . ill will suffices”).

The Court recognizes that this decision is a departure from its

conclusion in its July 7, 2022 Order and Reasons. The dispositive issue—

whether probable cause exists to support a warrant to search for evidence of

a crime that cannot lead to the prosecution of a criminal—is more thoroughly

briefed in plaintiffs’ opposition to the instant motion than it was in plaintiffs’

oppositions to defendants’ first and second motions to dismiss. The Court

has reconsidered the issue of the constitutional sufficiency of defendants’

warrant affidavits in light of plaintiffs’ additional allegations and argument

and concludes that plaintiffs have plausibly alleged a Fourth Amendment

violation, and that defendants are not entitled to dismissal on their qualified

immunity defense.

49 R. Doc. 47 ¶ 5.

IV. CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss is DENIED.

New Orleans, Louisiana, this__24th_ day of January, 2023.

bernk Yorer

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

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