Briscoe v. St. Louis County

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

LINDELL BRISCOE, et al., )

)

Plaintiffs, )

)

vs. ) Case No. 4:24-cv-440-MTS

)

ST. LOUIS COUNTY, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Before the Court is Defendants St. Louis County and Detective Joseph Percich

(collectively, “Defendants”)’s Motion to Dismiss pursuant to Federal Rule of Civil Procedure

12(b), Doc. [10]. Plaintiffs Lindell Briscoe, Brittany Arlesia Shamily, and Brittany Arlesia

Shamily as next friend of her five minor children (collectively, “Plaintiffs”) filed their opposition,

Doc. [14], and Defendants replied, Doc. [17]. For the reasons that follow, the Court will grant

Defendants’ Motion.

Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a claim for

“failure to state a claim upon which relief can be granted.” The purpose of such a motion is to test

the legal sufficiency of a complaint. When considering a Rule 12(b)(6) motion, the Court assumes

a complaint’s factual allegations are true and makes all reasonable inferences in favor of the

nonmoving party, but the Court “need not accept as true a plaintiff’s conclusory allegations or

legal conclusions drawn from the facts.” Glick v. W. Power Sports, Inc., 944 F.3d 714, 717 (8th

Cir. 2019). Indeed, the complaint “must allege more than ‘[t]hreadbare recitals of the elements of

a cause of action, supported by mere conclusory statements’” and instead must “allege sufficient

facts that, taken as true, ‘state a claim to relief that is plausible on its face.’” K.T. v. Culver-

Stockton Coll., 865 F.3d 1054, 1057 (8th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)). The plausibility of a complaint turns on whether the facts alleged allow a court to “draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Lustgraaf v.

Behrens, 619 F.3d 867, 873 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at 678).

Background1

This 42 U.S.C. § 1983 action arises out of the search of Plaintiffs’ home at 1022 Wylin

Court, conducted by the St. Louis County Tactical Operations Unit or, colloquially, the SWAT

team. Doc. [1] at 1, ¶¶ 87–88. Officers performed the search pursuant to a warrant sought by

Detective Percich and issued by the Honorable Megan Julian, judge of the Twenty-First Judicial

Circuit of Missouri. Doc. [1-5] at 1. The warrant authorized a search of Plaintiffs’ home for stolen

property, firearms, and other evidence related to a carjacking that occurred earlier that day. Id.

¶ 30. Judge Julian signed the warrant upon review of a nineteen-paragraph affidavit submitted by

Detective Percich, explaining the basis for the search. Id. ¶ 28. Because Detective Percich’s

statements in his affidavit are crucial to resolving this motion, the Court recites the relevant

portions of the affidavit below.

1. This affiant . . . has been a St. Louis County Police Officer for over sixteen

years, the last eleven assigned as a detective to the Bureau of Crimes Against

Persons. . . . Your affiant has had vast specialized training regarding the

investigation of violent crime.

1 The Court accepts as true the factual allegations in Plaintiffs’ Complaint. Although courts generally cannot consider

matters outside of the pleadings when ruling on a Rule 12 motion to dismiss, see Fed. R. Civ. P. 12(d), a court “may

consider documents attached to the complaint and matters of public and administrative record referenced in the

complaint.” Owen v. General Motors Corp., 533 F.3d 913, 918 (8th Cir. 2008). This includes “exhibits attached to

the complaint whose authenticity is unquestioned.” Miller v. Redwood Toxicology Lab’y, Inc., 688 F.3d 928, 931 n.3

(8th Cir. 2012). Here, Plaintiffs attached as exhibits Defendant Percich’s warrant application, Doc. [1-3], his

accompanying affidavit, Doc. [1-4], and the search warrant that was ultimately issued, Doc. [1-5]. Accordingly, the

Court will consider these documents when ruling on Defendants’ Motion. See Kiesling v. Holladay, 859 F. 3d 529,

533 (8th Cir. 2017) (construing a search warrant and warrant affidavit as “part of the complaint” when attached as

exhibits for the purpose of evaluating a motion to dismiss).

2. On Friday, May 26, 2023, at approximately 6:26 AM, police officers . . .

responded to [a St. Louis County] Waffle House . . . for a report of a First

Degree Robbery/Vehicle Hijacking.[2]

3. While the victims ate, a black male in a light blue hooded sweatshirt entered

the restaurant and [sat] at the counter. The subject then returned to two vehicles

in the parking lot. Those vehicles were described as a white Kia passenger car

and a silver Chevrolet passenger car.

4. After breakfast, the victims exited the business and entered their vehicle,

described as a 2021 Dodge Charger, black in color. The victims were

approached by two masked black male suspects. It was reported both suspects

displayed firearms, with at least one equipped with a drum magazine. Both

suspects provided verbal directives to the victims to exit the vehicle. The

suspects entered the vehicle and departed the scene.

5. Video surveillance footage revealed the suspects arrived in the aforementioned

silver and white passenger cars. One suspect was dressed in a red hooded

sweatshirt. The suspects take possession of the vehicle and flee.

6. A witness and friend to the victims . . . reported his Apple AirPods were inside

the Dodge Charger at the time of the vehicle hijacking. [He] assisted

investigators by tracking the Apple AirPods using Apple’s “Find My”

application. After a short time, the stolen AirPods were determined to be at the

residence of 1022 Wylin Court.

7. Surveillance was initiated at 1022 Wylin Court.

8. At 8:10 AM . . . patrol officers . . . located the stolen Dodge Charger. . . . A

vehicle pursuit was initiated.

9. [When the pursuit culminated,] [t]wo males abandoned the vehicle and fled on

foot. Two females also abandoned the vehicle but were immediately taken into

custody. The unoccupied stolen Dodge Charger then struck the front of a

marked police vehicle.

2 In Missouri, as relevant here, “[a] person commits the offense of robbery in the first degree if he or she forcibly steals

property and in the course thereof, he or she, or another participant in the offense . . . [i]s armed with a deadly weapon;

or . . . [u]ses or threatens the immediate use of a dangerous instrument against any person.” Mo. Rev. Stat. § 570.023.

Additionally, “[a] person commits the offense of vehicle hijacking when he or she knowingly uses or threatens the

use of physical force upon another person to seize or attempt to seize possession or control of a vehicle . . . from the

immediate possession or control of another person. Id. § 570.027.

10. Police officers initiated a foot chase of the two male suspects. Both were taken

into custody. . . . In the path of the foot chase, police officers located two pistols

with drum magazines and a satchel containing the victim’s property.

11. The driver of the Dodge Charger was positively identified as Carlos Strickland

Jr. . . . while a passenger was identified as Jeremiah Ewing. . . . Jeremiah was

dressed in a red sweatsuit. It appeared as if Carlos disrobed himself of a gray

hooded sweatshirt at the time of the foot chase.

12. Detectives conducted a formal video recorded interview of Jardyn Williams,

[one of the female passengers]. She reported being [present] with . . . the above

named males, along with two other unknown males, near the St. Louis

Riverfront throughout the overnight hours. . . . She reported the group . . .

proceeded to Waffle House. Jardyn reported the male in the red sweatshirt,

known to investigators as Jeremiah Ewing, and the male in the blue sweatshirt,

whose identity remained unknown, approached the victims and relieved them

of the Dodge Charger.

13. [The rest of her group] followed behind the Dodge Charger until reaching a gas

station in/near the City of Normandy. While at the gas station, [she] reported

the suspects discarded several backpacks from the victim’s Dodge Charger into

a green trash can near the gas pumps. Based upon the description of the trash

can, detectives believed the group stopped at a BP gas station.

14. After departing the gas station, the group separated.

15. Detectives responded to the BP gas station at 1790 S. Florissant Road and

located three backpacks containing property associated with the robbery

victims. The items were seized as evidence. Video surveillance footage

revealed three vehicles, the Dodge Charger, white Kia and silver Chevrolet

arrived and departed in tandem. The occupants of the vehicles appeared to

communicate with one another. The vehicles were last seen departing the

parking lot northbound on S. Florissant Road, toward Woodstock Road.

16. As of this writing, information gleaned from Apple’s “Find My” application

revealed the stolen Apple AirPods were still at 1022 Wylin Court. The address

in question is located a short distance from the intersection of S. Florissant Road

and Woodstock Road.

17. The vehicle hijacking described above occurred through the use or threatened

use of deadly force during which the suspects displayed firearms in a crime of

violence. At least one suspect remains unidentified and detectives have reason

to believe that person resides at or frequents 1022 Wylin Court. As a result,

detectives seek authorization to serve this search warrant in a “no knock”

manner, if deemed appropriate by personnel assigned to the St. Louis County

Police Department's Tactical Operations Unit.

18. Through training and experience, your affiant is aware evidence of criminal

offenses is frequently retained by the suspect and stored within his/her

residence.

19. Because this affidavit is being submitted for the limited purpose of securing a

search warrant, your affiant has not included each and every fact known to me

concerning this investigation. Rather, only the facts that are believed to be

necessary to establish probable cause are stated above.

Doc. [1-4] at 1–3.

Based on these statements, Judge Julian issued a no-knock warrant authorizing officers to

search the residence at 1022 Wylin Court for “firearms, ammunition, holsters, [and] firearm related

material” as well as “cellular devices, receipts, documentations, writing, clothing, video recording

devices, [and] stolen/personal property” related to the earlier carjacking. Doc. [1-5] at 1. Tactical

Operations Unit officers executed the warrant that same evening. Doc. [1] ¶ 115. Plaintiffs allege,

on information and belief, that Detective Percich was the leader of the Tactical Unit operation and

was responsible for the tactical decisions made during the search. Id. ¶¶ 116, 172

Numerous officers dressed in “combat regalia” and “heavily armed with military style

weapons” arrived at Plaintiffs’ home. Id. ¶¶ 117–18. The officers approached the home’s two

exterior doors with shields and weapons drawn. Id. ¶ 119. Despite the no-knock authorization,

officers knocked at the door and announced their presence. Id. ¶ 120. After approximately twenty-

five seconds of knocking and shouting, they eventually used a battering ram to break through the

door. Id. ¶ 121. After entry, the officers trained their guns on Plaintiff Brittany Shamily. Id.

¶ 123. They ordered her to exit the home immediately, leaving her three-month-old baby inside.

Id. ¶ 126. She was forced to walk out into the front yard dressed in a top and her underwear. Id.

¶ 127.

As those events unfolded, Plaintiff Lindell Briscoe was sitting in a commercial truck

parked in the driveway. Id. ¶ 113, 128. He was accompanied by two children. Id. ¶ 128. Officers

approached the truck, pointed their guns at Lindell, and ordered him and the children to exit the

vehicle. Id. ¶ 130. The family was detained on the sidewalk in front of their home. Id. ¶ 134.

After four or five minutes, a Tactical Operations Unit officer reunited Plaintiff Shamily with her

baby. Id. ¶¶ 135–36. At that time, she was able to wrap a blanket around both herself and the

infant. Id. ¶ 137. In total, officers detained the family for approximately thirty minutes during the

search. Id. ¶ 134.

The officers left Plaintiffs’ home in disarray. Id. ¶ 143. They “punched a hole larger than

a basketball in the bedroom drywall,” broke through a drop ceiling, and turned over the drawers.

Id. No stolen property or contraband was found inside. Id. ¶ 153. Officers eventually located the

stolen AirPods near trash cans on the street in front of Plaintiffs’ home. Id. ¶ 104. Realizing that

the family had no connection to the carjacking earlier that day, the officers released them from

detention and left the scene. Id. ¶ 152.

On September 14, 2023, Plaintiffs submitted a Missouri Sunshine Act Request to St. Louis

County for documents related to the search of their home. Id. ¶ 192; see Mo. Rev. Stat.

§§ 610.010–26. Their request sought a copy of the warrant and its attachments, police

investigative reports, incident reports, body-camera or dash-camera footage, dispatch records,

witness statements, and statements made by County employees. Id. ¶ 193. Through their attorney,

Plaintiffs followed up with St. Louis County seven times regarding their request. Id. ¶ 195.

Although St. Louis County provided body-cam footage of the search, the documentary requests

went unfulfilled. The County responded on December 20, 2023, explaining that it needed more

time to respond fully, and it expected to do so on January 05, 2024. Id. ¶ 197–98. When Plaintiffs

received no response, Plaintiffs’ counsel sent a demand letter seeking documents no later than

February 02, 2024, and threatening litigation if the County did not comply. Id. ¶ 199. The County

made no production in response to the demand letter.

In response to the above, Plaintiffs initiated this lawsuit against St. Louis County and

Detective Percich in his individual capacity. Plaintiffs’ thirty-one-page Complaint lists six counts,

including five for violations of their constitutional rights pursuant to 42 U.S.C. § 1983. More

specifically, they assert four claims against Detective Percich for “Unreasonable Search Based on

Inaccurate Affidavit,” or a Franks3 violation (Count I); Excessive Force regarding the decision to

authorize a SWAT team (Count II); Excessive Force regarding the conduct of the SWAT team

(Count III), and Unreasonable Seizure (Count IV). Doc. [1] 26–39. Plaintiffs also assert a claim

for municipal liability against St. Louis County (“the County”) (Count V), alleging an

unconstitutional “SWAT Team Raid Policy.” Finally, Plaintiffs assert a Missouri Sunshine Act

claim against the County, pursuant to Mo. Rev. Stat. § 610.027, for its knowing and purposeful

refusal to respond to Plaintiffs’ document request. (Count VI). Defendants move to dismiss each

Count. Doc. [10].

Discussion

I. Section 1983 Claims

Section 1983 provides a federal cause of action against officials acting under color of state

law for damages caused by violations of federal constitutional or statutory rights. 42 U.S.C.

§ 1983. In response to such claims, an individual official can assert the defense of qualified

immunity, which provides immunity from suit, Mitchell v. Forsyth, 472 U.S. 511, 526 (1985),

“insofar as [an official’s] conduct does not violate clearly established statutory or constitutional

3 Franks v. Delaware, 438 U.S. 154, 171–72 (1978)

rights of which a reasonable person would have known,” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). “Qualified immunity gives government officials breathing room to make reasonable but

mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate

the law.” Stanton v. Sims, 571 U.S. 3, 6 (2013).

“To overcome qualified immunity at the motion to dismiss stage, a plaintiff ‘must plead

facts showing (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.’” Watkins v. City of St. Louis, 102

F.4th 947, 951 (8th Cir. 2024) (quoting Dillard v. O’Kelley, 961 F.3d 1048, 1052 (8th Cir. 2020)).

To be clearly established, the law at the time of the officer’s conduct must be “sufficiently clear

that every reasonable official would understand that what he is doing is unlawful.” Mogard v. City

of Milbank, 932 F.3d 1184, 1188 (8th Cir. 2019) (citation omitted).

A. Detective Percich is entitled to qualified immunity on Count I because Plaintiffs have

failed to plead facts showing that Detective Percich committed a Franks violation.

The Fourth Amendment protects “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.

In addition, warrants must be supported by probable cause. Id. Ordinarily, “getting a warrant

from a neutral magistrate is a clear indication that an officer has acted in an objectively reasonable

manner.” Hartman v. Bowles, 39 F.4th 544, 546 (8th Cir. 2022) (per curiam) (cleaned up).

However, as first held in Franks v. Delaware, an officer violates the Fourth Amendment if he or

she intentionally or recklessly makes a false statement in the warrant affidavit and the “remaining

content” in the affidavit “is insufficient to establish probable cause.” Davis v. City of Little Rock,

122 F.4th 326, 330 (8th Cir. 2024). Relatedly, a Fourth Amendment violation occurs when an

officer “[i]ntentionally or recklessly omit[s] key facts” when applying for a warrant and “the

affidavit, if supplemented by the omitted information, could not support a finding of probable

cause.” Hartman, 39 F.4th at 546 (citing Franks, 438 U.S. at 155–56).

Taken together, to prevail on a Franks challenge, a § 1983 plaintiff must demonstrate

(1) the affiant officer knowingly and intentionally, or with reckless disregard for

the truth, included a false or misleading statement in, or omitted information from,

the affidavit in support of the warrant; and (2) the affidavit would not establish

probable cause if the allegedly false information is ignored or the omitted

information is supplemented.

United States v. Smith, 715 F.3d 1110, 1118 (8th Cir. 2013); accord Estate of Nash v. Folsom, 92

F.4th 746, 754 (8th Cir. 2024) (Section 1983 action).

“A statement in an affidavit must be truthful in the sense that the information put forth is

believed or appropriately accepted by the affiant as true.” Davis, 122 F.4th at 330 (internal

quotations omitted). This standard is satisfied “if the affiant had a reasonable basis for the

conclusion.” Id. (cleaned up). Recklessness “may be inferred from the fact of omission of

information from an affidavit . . . [that] would have been ‘clearly critical’ to the finding of probable

cause.” United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986).

The probable cause determination is therefore crucial when assessing a Franks challenge.

“Probable cause to issue a search warrant exists if, in light of the totality of the circumstances,

there is a fair probability that contraband or evidence of a crime will be found in a particular place.”

Z.J. by & through Jones v. Kan. City Bd. of Police Comm’rs, 931 F.3d 672, 686 (8th Cir. 2019).

“[T]here must be evidence of a nexus between the contraband and the place to be searched.”

United States v. Tellez, 217 F.3d 547, 550 (8th Cir. 2000). Such a nexus may be reasonably

inferred given all the circumstances, see id., and relevant factors include “the nature of the crime

and the reasonable, logical likelihood of finding useful evidence,” United States v. Johnson, 848

F.3d 872, 878 (8th Cir. 2017).

“The probable-cause standard is a practical, nontechnical conception that deals with the

factual and practical considerations of everyday life on which reasonable and prudent men, not

legal technicians, act.” Maryland v. Pringle, 540 U.S. 366, 370 (2003) (internal quotations

omitted). To that end, “probable cause leaves plenty of room to draw reasonable inferences from

less-than-perfect evidence,” United States v. James, 3 F.4th 1102, 1105–06 (8th Cir. 2021) (citing

Cronin v. Peterson, 982 F.3d 1187, 1197 (8th Cir. 2020)), and the determination is not evaluated

“in hindsight, based on what a search does or does not turn up,” Florida v. Harris, 568 U.S. 237,

249 (2013). Although “not without limits,” officers have “substantial latitude in interpreting and

drawing inferences from factual circumstances.” Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir.

1999). Finally, the Court is mindful that reviewing courts “owe substantial deference to the

determination of probable cause by the issuing judge,” United States v. LaMorie, 100 F.3d 547,

552 (8th Cir. 1996), and “the resolution of doubtful or marginal cases in this area should be largely

determined by the preference to be accorded to warrants,” Illinois v. Gates, 462 U.S. 213, 237

n.10 (1983).

To state their claim, Plaintiffs direct the Court to twenty-one alleged insufficiencies in

Detective Percich’s warrant affidavit, see Doc. [1] ¶ 102(a)–(u); see also Doc. [14] at 8–9.

Plaintiffs assert that Detective Percich “intentionally or recklessly included false statements and

material omissions in the affidavit” and, if properly supplemented and corrected, his affidavit

“would not have been sufficient to support a finding of probable cause.” Doc. [1] ¶¶ 110–11. In

response, Defendants assert that Detective Percich is entitled to qualified immunity on this claim

because Plaintiffs have failed to plausibly allege a constitutional violation. Doc. [11] at 7.

Defendants argue that none of the alleged deficiencies in the affidavit “amount[] to intentional

deception or recklessness.” Id. Further, Defendants argue that none of the alleged omissions or

misstatements “are material to the probable cause or sufficiency analysis of the warrant or its

supporting affidavit.” Id. at 8–9. The Court agrees with Defendants. After a careful review of the

many omissions and misstatements that allegedly impair Detective Percich’s warrant, the Court

finds that “the alleged insufficiencies [are] either non-existent or harmless because [Judge Julian]

nonetheless had a substantial basis for finding probable cause.” United States v. Daigle, 947 F.3d

1076, 1081–82 (8th Cir. 2020).

To begin, Plaintiffs allege several omissions relating to the AirPods and their apparent

location. These include Detective Percich’s failure in his affidavit to “state how the [Find My]

App works,” or say “whether the officers who were using the [Find My] App were trained in its

use.” Doc. [1] ¶ 102 (g)–(h). Plaintiffs also assert that Detective Percich failed to include an image

from the application “showing the location of the AirPods” and omitted a more precise description

of the Find My application results to specify whether the AirPods were “on the street in front of

the home, in the yard of the home, or in the home.” Id. ¶ 102(e),(i).

As an initial matter, the Court cannot conclude that the officers’ training or experience

level concerning the Find My application would have been clearly critical to Judge Julian’s finding

of probable cause. See Daigle, 947 F.3d at 1082 (“An officer’s testimony about his experience,

although relevant, is not a necessary element of a probable cause determination.” (quoting United

States v. Brown, 374 F.3d 1326, 1328 (D.C. Cir. 2004) (cleaned up))). The same is true for a

description of the application’s functionality or accuracy, especially given the fact that GPS-based

tracking4 is relatively common, and its accuracy has been generally assumed for some time. See

United States v. Brooks,715 F.3d 1069, 1078 (8th Cir. 2013) (remarking that “courts generally

have assumed” the accuracy of GPS tracking technology). Therefore, Detective Percich cannot be

4 Plaintiffs allege that the “accuracy of the [Find My] App depends on the configuration of adjoining buildings, the

location of cell towers, Bluetooth connectivity, WiFi and GPS networks, and other factors.” Doc. [1] ¶ 47.

considered reckless when omitting these non-critical facts, and they do not supply the basis for a

Franks violation. See Reivich, 793 F.2d at 961.

The AirPods’ apparent location, however, was undoubtedly critical to the probable cause

determination here. Put differently, it “was the kind of thing the judge would wish to know,”

United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir. 2007), because their location at 1022 Wylin

Court provided “evidence of a nexus between [evidence of the carjacking] and [Plaintiffs’ home].”

Tellez, 217 F.3d at 550. The Court therefore proceeds to the second step of the Franks analysis

and asks whether Detective Percich’s affidavit would still support probable cause to search if the

allegedly omitted information were added. More specifically, if Detective Percich included an

image or statement explaining that the Find My application indicated, as Plaintiffs allege, that the

AirPods were located on the street in front of Plaintiffs home, id. ¶ 51, would there still be a fair

probability of finding evidence of the armed carjacking inside?

The Court concludes that the answer is yes. In the first place, although generally reliable,

GPS-based tracking is still an estimate within a targeted area. See, e.g., In re Application of U.S.

for an Ord. Authorizing Disclosure of Location Info. of a Specified Wireless Tel., 849 F. Supp. 2d

526, 533 (D. Md. 2011) (“[C]urrent GPS technology would almost certainly enable law

enforcement to locate the subject cellular telephone with a significantly greater degree of

accuracy—possibly within ten meters or less.”). Thus, a Find My application ping showing stolen

AirPods on the street in front of Plaintiffs’ suburban residence could still support a reasonable

inference that the AirPods were located inside.5 Moreover, given that AirPods are electronic

5 The Court recognizes that the opposite inference—that the AirPods’ true location was that much farther away from

Plaintiffs’ home—is equally reasonable. But “the availability of alternative inferences does not prevent a finding of

probable cause so long as the inference upon which the officer relies is reasonable.” Charron v. County of York, 49

F.4th 608, 618 (1st Cir. 2022) (finding probable cause to arrest); see also Cox v. Hainey, 391 F.3d 25, 32–33 (1st Cir.

2004) (“[W]hen conflicting inferences are available to resolve the issue of probable cause and both of them are

plausible, it does not matter which inference is correct.” (citation omitted)).

devices, typically kept out of the elements, it was perhaps more reasonable for police to infer that

the AirPods’ true location was inside Plaintiffs’ home rather than on the street out front.

Finally, at least two district courts have found that probable cause existed to search inside

a residence when the Find My application pinged stolen property at the corresponding address.

See United States v. Thorne, 4:18-cr-00029-FL-1, 2019 WL 5608845, at *5 (E.D N.C. Oct. 30,

2019) (finding probable cause to search a residence after the application depicted “a map with a

red pin and [defendant’s address]”);6 see also United States v. Rivera, 234 F. Supp. 3d 346, 351–

52 (D.P.R. 2017) (finding probable cause to search after “the iPhone app was utilized to zero-in

on a particular stolen piece of property until a specific and identifiable residence had been

pinpointed”). Therefore, even after supplementing Detective Percich’s affidavit with Plaintiffs’

alleged omission—that the Find My application indicated that the stolen AirPods were positioned

on the street in front of Plaintiffs’ home—the affidavit would still establish a “fair probability”

that evidence of the earlier carjacking would be found inside. United States v. Garcia, 179 F.3d

265, 269 (5th Cir. 1999) (“In short, the requisite ‘fair probability’ is something more than a bare

suspicion, but need not reach the fifty percent mark.”).

The Court proceeds to Plaintiffs’ assertion that Detective Percich had no reasonable basis

to state that “detectives have reason to believe [the still-unidentified carjacking suspect] resides at

or frequents 1022 Wylin Court.” See Doc. [1] ¶ 91 (“The Affidavit does not explain how detectives

would have reason to believe an unidentified person resided at or frequented any particular home,

particularly Plaintiffs’ home.”). Plaintiffs thus contend that this statement in Detective Percich’s

6 The Court notes that Thorne is perhaps distinguishable because officers searched inside defendant’s home only after

engaging in a knock-and-talk and receiving permission to search defendant’s yard for the stolen phone before

proceeding inside. Thorne, 2019 WL 5608845, at *2. But the crime at issue in Thorne was not a crime of violence—

only the potential theft of a missing iPhone. Here, given the armed carjacking under investigation and the fact that a

potentially armed suspect remained at large, the Court does not fault police for declining to take the same preliminary

steps to search for the stolen AirPods while investigating an armed carjacking.

affidavit was false, and it must be deleted from the affidavit as part of the Franks analysis. The

Court disagrees. Statements in a warrant affidavit must be true in that the affiant had “a reasonable

basis for the conclusion.” Davis, 122 F.4th at 330 (internal quotations omitted). The question for

the Court is whether Detective Percich, “in fact entertained serious doubts as to the truth of the

[affidavit] or had obvious reasons to doubt the accuracy of the information contained therein.” Id.

Here, the Court cannot conclude that Detective Percich had obvious reasons to doubt that

the unidentified suspect frequented or resided at Plaintiffs’ home. Accepting Plaintiffs allegations

as true, the officers tracked a pair of AirPods, stolen during the underlying carjacking, to a point

on the street in front of Plaintiffs’ home via GPS-based technology. Doc. [1-4] ¶ 6; Doc. [1] ¶ 51.

The affidavit also indicates that the AirPods were deposited there relatively quickly after the crime

occurred. Doc. [1-4] ¶¶ 2–6 (describing how officers learned of the AirPods’ location “after a

short time” while interviewing the carjacking victims and witnesses). It was therefore reasonable

for Detective Percich to believe that 1022 Wylin Court was known to one or more suspects and

was readily accessible to them—in other words, an address where they resided or frequented.

In addition, it is generally held that officials “may infer that a criminal suspect keeps the

‘instrumentalities and fruits’ of his crime in his residence.” United States v. Williams, 544 F.3d

683, 688 (8th Cir. 2008) (quoting United States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993))

(collecting cases). Having tracked the fruits of the unidentified suspect’s crime to 1022 Wylin

Court, see Doc. [1-4] ¶ 12 (interviewee stating that the unidentified suspect was one of the two

alleged carjackers), the Court does not find that it was altogether unreasonable for officers to

believe that the address was a place where the suspect resided or frequented. Cf. United States v.

Glover, 746 F.3d 369, 373 (8th Cir. 2014) (explaining in the arrest-warrant context that an officer’s

“reasonable belief that the suspect resides at the place to be entered” is determined from the totality

of the circumstances); United States v. Graham, 553 F.3d 6, 13 (1st Cir. 2009) (“[P]olice need not

possess such rock-solid indicators of residence [such as utility bills or mail] in order to form a

‘reasonable belief’ that a suspect resides at a given place.”).

But that is not all. By the time Detective Percich completed the affidavit, police had

apprehended four out of six total carjacking suspects or accomplices, each of whom had gone to

great lengths to avoid arrest. Id. ¶ 8–11 (describing a car chase and foot chase). As police

surveilled Plaintiffs’ home, id. ¶ 7, and continued to investigate, a still unidentified and possibly

armed suspect remained unaccounted for, id. ¶ 17. All the while, the apparent location of the stolen

AirPods remained consistent throughout the day. Id. ¶ 16. Under the totality of these

circumstances and considering the officers’ “substantial latitude in interpreting and drawing

inferences from factual circumstances,” Kuehl, 173 F.3d at 650, there was a reasonable basis to

believe that the AirPods’ GPS-based location signaled the unidentified suspect’s last known

location and—not improbably—his present location, hidden indoors in an attempt to evade police

detection.7 Taken together, the Court finds that the totality of the circumstances gave Detective

Percich a reasonable basis for his statement that there was “reason to believe that [the unidentified

suspect] resides at or frequents 1022 Wylin Court.” Doc. [1-4] ¶ 17. Because it does not appear

7 Plaintiffs assert that this cannot be the case because, as they recite the facts in Detective Percich’s affidavit, gas-

station surveillance footage “showed all six of the original criminals interacting with one another.” Doc. [1] ¶ 76

(reciting what the affidavit states “at paras. 13-15”). Relatedly, Plaintiffs allege that Detective Percich omitted the

timestamp of that video from the affidavit, and “if surveillance at 1022 Wylin Court began before . . . all six criminals

were on tape . . . there would be no chance one or both of the uncaptured criminals was at 1022 Wylin Court at the

time of the SWAT Team Raid.” Id. ¶ 102(n). But Plaintiffs misstate the affidavit. The cited paragraph states only

that “[t]he occupants of the vehicles appeared to communicate with one another.” Doc. [1-4] ¶ 15. It does not say

that all six individuals were visible or, indeed, that any individuals were visible at all. Accordingly, even if the Court

(1) found that this omitted information was “clearly critical” to the finding of probable cause, Reivich, 793 F.2d at

961, (2) supplemented the affidavit with the allegedly omitted timestamp, and (3) the timestamp indicated that the

surveillance of Plaintiffs’ home began before the video was recorded, the affidavit would still support a reasonable

inference that the unidentified suspect was present inside Plaintiffs’ home. See Smith, 715 F.3d at 1118 (explaining

that the relevant question under Franks is whether the affidavit would still support probable cause after being

supplemented or corrected). After all, the surveillance of Plaintiffs’ home can only have started after the stolen

AirPods reached that location as indicated by the Find My application, and the affidavit does not say that the

unidentified suspect was visible in the surveillance video, no matter when it was recorded.

that Detective Percich “entertained serious doubts as to the truth of [his statement] or had obvious

reasons to doubt [its] accuracy,” Davis, 122 F.4th at 330, the statement is not false such that it can

form the basis of a Franks violation.

The Court next addresses Plaintiffs’ contention that Detective Percich “actually had no

reason to believe that any of the items in his list of items (‘firearms, ammunition, holsters, [and]

firearm related material’) were at Plaintiffs’ home.” Compare Doc. [1] ¶ 102(a), with Doc. [1-4]

at 1. Given the circumstances, the Court concludes that he did. At the time Detective Percich

prepared his affidavit, a group of high-school students had been carjacked by two suspects, both

of whom reportedly displayed firearms, “with at least one equipped with a drum magazine.” Doc.

[1-4] ¶ 3–4. AirPods stolen during the carjacking were tracked to Plaintiffs’ address, and they

appeared to remain there during the day. Id. ¶¶ 6, 17. Officers later learned that a group of six

individuals were affiliated with the carjacking, only four had been apprehended, and two were still

missing, including one of the alleged carjackers. Id. ¶ 12 (reporting that the “male in the blue

sweatshirt, whose identity remained unknown, approached the victims and relieved them of [their

car]”). As four of the suspects were placed under arrest, officers found two firearms with drum

magazines along with a collection of the victims’ stolen property. Further, as already discussed,

“detectives had reason to believe that the [unidentified suspect] resided at or frequented 1022

Wylin Court.” Id. ¶ 17.

Collectively, these circumstances provided Detective Percich with a reasonable basis to

believe that there were additional firearms, ammunition, and firearm-related material inside

Plaintiffs’ home. Put differently, there were not “obvious reasons to doubt” that this was the case.

Davis, 122 F.4th at 330. “[Drawing] on its judicial experience and common sense,” Iqbal, 556

U.S. at 679, the Court finds that it was reasonable for Detective Percich to infer that a violent

criminal would possess multiple firearms in addition to ammunition and related gear. What is

more, the violent nature of the crime under investigation here, the number of people seemingly

involved, the fact that the firearms that police had already recovered were modified with

accessories to fire additional rounds, and the fact that officers reasonably believed the missing

suspect frequented or resided at Plaintiffs’ address suffice to establish Detective Percich’s

reasonable belief that the relevant contraband would be found at 1022 Wylin Court.

Cf. Messerschmidt v. Millender, 565 U.S. 535, 548–49 (2012) (concluding that, in the context of

a challenge to a warrant’s overbreadth, it was not “entirely unreasonable” for officers to search for

“all firearms and firearm-related materials” based on the violent nature of the underlying crime,

the fact that the specific firearm involved was a modified sawed-off shotgun with a pistol grip, the

suspect’s known gang affiliation, and the fact that the items would “aid in the prosecution of the

criminal act at issue” (cleaned up)); accord Kiesling, 859 F.3d at 536–37 (holding that officers

were entitled to qualified immunity for executing a search warrant with a broad firearms category

given the nature of the crime and the fact that the evidence would aid in its eventual prosecution).

The remaining alleged omissions run headlong into the general principle that, “in a warrant

affidavit, the government need only show facts sufficient to support a finding of probable cause.”

United States v. Ozar, 50 F.3d 1440, 1445 (8th Cir. 1995); see also Technical Ordnance, Inc. v.

United States, 244 F.3d 641, 649 (8th Cir. 2001) (“A law enforcement official is not required to

include everything he knows about a subject in his affidavit, whether it is material to a finding of

probable cause or not.”). After all, “the very process of selecting facts to include for the

demonstration of probable cause must also be a deliberate process of omitting pieces of

information.” United States v. Tate, 524 F.3d 449, 455 (4th Cir. 2008). With these principles in

mind, even if Plaintiffs plausibly allege that Detective Percich knew all of the additional

information he omitted, see Hartman, 39 F.4th at 546 (8th Cir. 2022) (per curiam) (“[A]n officer

who does not personally know information cannot intentionally or recklessly omit it.”), the Court

finds that the information would not have vitiated the substantial basis for probable cause to search

Plaintiffs’ home, established by the totality of circumstances described above.8

Because the Court finds no constitutional violation, it need not reach the “clearly

established right” prong of the qualified immunity analysis. Watkins, 102 F.4th at 951. However,

even if a violation were found, the Court observes that Plaintiffs allege no facts indicating that

Detective Percich omitted material information or made misstatements intentionally or knowingly.

Moreover, the Complaint on its face fails to show that Detective Percich was plainly incompetent

when preparing the search warrant affidavit here. To the extent this can be described as a close

case with respect to Count I, such a description would support the availability of qualified

immunity. See Batistini v. Aquino, 890 F.2d 535, 538 (1st Cir. 1989) (joined by Breyer, J.) (“The

very fact that a question is close,” though, “strengthens [Defendants’] qualified immunity defense

by indicating that the law was not clearly established in [P]laintiff’s favor.”). In short, qualified

immunity should be available to Detective Percich under these circumstances. See Bagby v.

Brondhaver, 98 F.3d 1096, 1099 (8th Cir. 1996) (“We have doubts about . . . [the proposition] that

defendant is never entitled to qualified immunity if the corrected affidavit is insufficient [to support

probable cause] because that rule may in some cases fail to serve the qualified immunity purpose

8 These remaining omissions largely include: the names of the other investigating officers, Doc. [1] ¶ 102(b), whether

Waffle House surveillance video showed the carjackers displaying firearms, id. ¶ 102(c); but see Doc. [1-4] ¶ 4

(describing eyewitness reports that “both suspects displayed firearms”), what surveilling officers might have seen

while watching Plaintiffs’ home, id. ¶ 102(j), a description of “any later effort” to locate the carjacking suspects’ other

two passenger cars, id. ¶ 102(l), whether the four apprehended suspects were detained, released, or arrested, id.

¶ 102(m), whether detectives asked the detained suspects about the AirPods or 1022 Wylin Court, id. ¶ 102(o), how

detectives learned that the AirPods’ GPS-based location remained at Plaintiffs’ home later in the day, id. ¶ 102(p),

additional information about the no-knock authorization, id. ¶ 102(q)–(r) and (t), and a delineation of information that

was personally known to Detective Percich versus that which he gleaned from other officers, id. ¶ 102(u).

of sparing all but the plainly incompetent from § 1983 damage liability.”); see also Banks v.

Hawkins, 999 F.3d 521, 532 (8th Cir. 2021) (Stras, J., dissenting) (“The Supreme Court has told

us over and over again that any generalized right . . . must be clearly established in a particularized

sense to overcome qualified immunity.” (cleaned up)); but see Turpin v. County of Rock, 262 F.3d

779, 783 (8th Cir. 2001) ( “The law was clearly established at the time in question in this case that

an affidavit for a search warrant containing materially false statements or omissions knowingly or

recklessly made in conscious disregard for the truth violates the Fourth Amendment.”).

Because Plaintiffs have failed to allege material omissions that, if added, would have

sufficiently disrupted Judge Julian’s probable cause determination, or any false statements

sufficient to establish a Franks violation, the Court will grant Defendants’ Motion to Dismiss with

respect to Count I.

B. Excessive Force and Unreasonable Seizure Claims (Counts II, III, and IV)

Next, Plaintiffs assert three interrelated claims against Detective Percich for excessive use

of force and unreasonable seizure in violation of the Fourth Amendment. See Carter v. Huterson,

831 F.3d 1104, 1109 (8th Cir. 2016) (“The right to be free from excessive force is a clearly

established right under the Fourth Amendment’s prohibition against unreasonable seizures of the

person.”). Defendants move to dismiss all three. Doc. [10]. The Court addresses each in turn.

a. Detective Percich is entitled to qualified immunity for the decision to authorize

the Tactical Operations Unit (Count II).

First, Plaintiffs assert that Detective Percich violated their Fourth Amendment rights when

he decided to authorize the Tactical Operations Unit to search their home. Doc. [1] ¶¶ 218–19.

Plaintiffs assert that the use of the Unit constitutes excessive force because “it was not reasonably

necessary in order to investigate the carjacking.” Id. Defendants move to dismiss this claim

because (1) Plaintiffs provide no factual support for the allegation that Detective Percich decided

to use the Tactical Operations Unit, and (2) using the Tactical Operations Unit was justified under

the circumstances. Doc. [11] at 10, 10 n.3.

Beginning with the former argument, it is true that “[i]n a § 1983 case an official is only

liable for his own misconduct.” Z.J., 931 F.3d at 688 (8th Cir. 2019) (quoting Briscoe v. City of

St. Louis, 690 F.3d 1004, 1011 (8th Cir. 2012)). Section 1983 liability “requires a causal link to,

and direct responsibility for, the deprivation of rights.” Id. (quoting Clemmons v. Armontrout, 477

F.3d 962, 967 (8th Cir. 2007)). The question at the motion to dismiss stage is whether Plaintiffs

have put forth allegations that, taken as true, permit the Court to “draw the reasonable inference

that [Detective Percich] is liable for the misconduct alleged.” See Iqbal, 556 U.S. at 678.

In his affidavit, Detective Percich asks Judge Julian for “authorization to serve this search

warrant in a ‘no knock’ manner, if deemed appropriate by personnel assigned to the [Tactical

Operations Unit].” Doc. [1-4] ¶ 17. He recites facts seeking to justify such an authorization. Id.

The affidavit indicates that Detective Percich sought no-knock authorization on behalf of the

Tactical Operations Unit, independent from the Unit’s ultimate decision whether a no-knock

execution of the warrant would be necessary under the circumstances. Id. The Court will assume

that these facts are sufficient to demonstrate Detective Percich’s direct responsibility over the

decision to authorize the Tactical Operations Unit because, even if he made the decision, it was

reasonable under the circumstances to do so. United States v. Lewis, 864 F.3d 937, 945 (8th Cir.

2017) (“Reasonableness is always the touchstone of Fourth Amendment Analysis.”).

The Eighth Circuit has held that “[a]n officer’s decision to authorize a SWAT team to

execute a warrant can, in some cases, constitute a Fourth Amendment violation.” Z.J., 931 F.3d

at 688 (8th Cir. 2019) (citing Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1189–92

(10th Cir. 2001)). Further, “it is clear the decision to send a SWAT team into a residence must be

reasonable.” Id. The reasonableness of such a decision is measured by “balanc[ing] the nature

and quality of the intrusion on the individual’s Fourth Amendment interests against the importance

of the governmental interests alleged to justify the intrusion.” Holland, 268 F.3d at 1190 (quoting

Tennessee v. Garner, 471 U.S. 1, 8 (1985)) (alteration in the original).

Defendants direct the Court to Ramage v. Louisville/Jefferson County Metro Government

to illustrate that the decision to authorize the Tactical Operations Unit was reasonable here.

520 F. App’x 341 (6th Cir. 2013). There, the Sixth Circuit found that the SWAT-team

authorization was justified because “detectives had reason to expect that [defendant] would be on

the property; [and] from his criminal history, they reasonably anticipated that he might be armed.

Id. at 346. Under those circumstances, there was “substantial risk for the officers executing the

warrant.” Id.

The same rationale clearly applies. As discussed above, Detective Percich asked for and

received a properly supported, no-knock warrant to search Plaintiffs’ home because there was

probable cause to believe that they would find evidence of an armed carjacking inside, including

firearms and ammunition. One of the allegedly armed suspects had evaded police throughout the

day, and officers had a reasonable basis to believe that he frequented or resided at the home. Under

these circumstances, the Court cannot find that it was unreasonable to authorize the Tactical

Operations Unit to undertake the search because the governmental interest in officer safety

outweighed Plaintiffs’ Fourth Amendment interests in avoiding such a show of force. See United

States v. Lewis, 864 F.3d 937, 945 (8th Cir. 2017) (characterizing “the Government’s interest in

minimizing the risk of harm to the officers” as “an important interest” (internal quotations

omitted)).

Moreover, the Eighth Circuit has previously described a “close question of whether the

detectives’ decision to use [a] SWAT team . . . violated the Fourth Amendment,” Z.J., 931 F.3d at

688 (emphasis added), where detectives authorized a SWAT team to search what they believed to

be the home of an already-apprehended, suspected murderer, id. at 677–78, but “had no

information that would have supported the need to send the SWAT team to execute the search

warrant . . . [and had undertaken] virtually no investigation that would have provided them with

more information about whether the use of the SWAT team was appropriate,” id. at 688. By

contrast, the question of whether Detective Percich reasonably authorized the Tactical Operations

Unit is not as close as the one described above. For all these reasons, the Court concludes that the

decision to authorize the Tactical Operations Unit was reasonable under the circumstances.

Accordingly, the Court will grant Defendants’ Motion to Dismiss with respect to Count II.

b. To the extent Plaintiffs state a claim, Detective Percich is entitled to qualified

immunity for the amount of force used during the search (Count III).

Plaintiffs’ second excessive force claim fares no better. Plaintiffs seek to hold Detective

Percich liable for the conduct of the officers executing the search warrant. Plaintiffs argue that the

actions of those officers, including breaking down Plaintiffs’ door, wearing “combat regalia,”

pointing guns at Plaintiffs Briscoe and Shamily, ransacking their house, forcing Plaintiff Shamily

outside in her underwear, and separating her from her baby constituted excessive force because it

“was not reasonably necessary in order to investigate the carjacking.” Doc. [1] ¶¶ 117–44, 223.

Plaintiffs fail to state a claim for two reasons. First, neither the facts alleged in Plaintiffs’

Complaint nor those recited in the search warrant affidavit support a “reasonable inference” that

Detective Percich was responsible for the conduct of those officers such that he can be held liable

under § 1983 for their alleged excessive force. See Lustgraaf, 619 F.3d at 873. To rephrase,

Plaintiffs’ allegations for this claim “do not permit the court to infer more than the mere possibility

of misconduct” on the part of Detective Percich. Iqbal, 556 U.S. at 679. Second, even if Detective

Percich was responsible for the actions of the Tactical Operations Unit that evening, their actions

were reasonable under the circumstances.

As explained in the prior section, liability under 42 U.S.C. § 1983 is personal. Frederick

v. Motsinger, 873 F.3d 641, 646 (8th Cir. 2017). That is, “[g]overnment officials are personally

liable only for their own misconduct.” S.M. v. Krigbaum, 808 F.3d 335, 340 (8th Cir. 2015).

“[D]irect responsibility” for the deprivation of rights is required. Madewell v. Roberts, 909 F.2d

1203, 1208 (8th Cir. 1990) (“Liability under § 1983 requires a causal link to, and direct

responsibility for, the deprivation of rights.”). To establish Detective Percich’s direct

responsibility for the conduct of the various officers who searched their home, Plaintiffs describe

the officers as “Detective Percich’s SWAT team,” id. ¶ 221, but allege only that, “[o]n information

and belief Detective Percich was the leader of the SWAT Team Raid,” id. ¶ 116, and “[o]n

inference, Defendant Officer Percich was responsible for the tactical decisions made in the course

of the SWAT Team Raid,” id. ¶ 172. These “on information and belief” allegations are

inappropriate under the facts alleged.

The Eighth Circuit has held that “allegations pled on information and belief are not

categorically insufficient to state a claim for relief where the proof supporting the allegation is

within the sole possession and control of the defendant or where the belief is based on sufficient

factual material that makes the inference of culpability plausible.” Ahern Rentals, Inc. v.

EquipmentShare.com, Inc., 59 F.4th 948, 954 (8th Cir. 2023). But neither principle applies here.

In the first place, “proof supporting the allegation” that Detective Percich led the search of

Plaintiffs’ home or directed the officers’ conduct is not within Defendants’ sole possession

because, by Plaintiffs’ own statements in their Complaint, they possess bodycam footage of the

events at issue. Ahern Rentals, 59 F.4th at 954. More than that, Plaintiffs were at the scene.

Doc. [1] ¶¶ 145, 194. Surely Plaintiffs should be able to point to interactions they had with

officers, conversations they overheard, events they witnessed, or events depicted on the camera

footage that is now in their possession to plead facts that plausibly show Detective Percich’s role

in leading the search of their home or otherwise directing the officers’ actions during the search.

See, e.g., Zeikos Inc. v. Walgreen Co., 1:23-cv-00303, 2023 WL 3947775, at *5 (N.D. Ill. June 12,

2023) (finding “on information and belief” allegations improper and insufficient to state a claim

where defendant did “not have exclusive control over the information underlying [the] allegations”

and plaintiff “should know” facts underpinning his assertions).

Moreover, the facts alleged do not “make[] the inference of [Detective Percich’s]

culpability plausible.” Ahern Rentals, 59 F.4th at 954. There are no factual allegations tying

Detective Percich to the actions of the Tactical Operations Unit officers. Indeed, the affidavit

suggests that Detective Percich was not responsible for the conduct of the Tactical Operations Unit

during the search of Plaintiffs’ home because, as the warrant affidavit indicates, Unit personnel

had the ultimate decision-making authority about what practices and tactics were appropriate

during the search. See Doc. [1-4] ¶ 17 (“[D]etectives seek authorization to serve this search

warrant in a ‘no knock’ manner, if deemed appropriate by personnel assigned to the . . . Tactical

Operations Unit (emphasis added)). Therefore, Plaintiffs’ Complaint fails to plead facts that

“permit the court to infer more than the mere possibility” that Detective Percich was sufficiently

responsible for the officers’ conduct such that he can be held liable for their alleged excessive

force. Iqbal, 556 U.S. at 679. To find otherwise would require holding Detective Percich liable

for more than his own misconduct, and § 1983 does not permit the Court to do so. See S.M., 808

F.3d at 340 (“Government officials are personally liable only for their own misconduct.”).

But even if the factual allegations permitted the Court to infer Detective Percich was

responsible for the officers’ actions, Defendants argue that the officers’ conduct was reasonable.

Doc. [11] at 10–11. In support, Defendants again direct the Court to Ramage where SWAT

officers seized a woman while displaying their weapons, forced her to the ground, and handcuffed

her during the search. 520 F. App’x at 347. The Sixth Circuit found no excessive force, noting

that “[w]hile hindsight may show that these actions were unnecessary, the officers’ actions are not

judged in hindsight, but by whether they were objectively reasonable at the time.” Id.

The Supreme Court has explained that, in the context of securing a residence when

executing a search warrant, there are “three legitimate law enforcement interests that provide

substantial justification for detaining an occupant: ‘preventing flight in the event that incriminating

evidence is found;’ ‘minimizing the risk of harm to the officers;’ and facilitating ‘the orderly

completion of the search.’” Muehler v. Mena, 544 U.S. 93, 98 (2005) (quoting Michigan v.

Summers, 452 U.S. 692, 701–05 (1981)). The authority to detain includes the ability “to use

reasonable force to effectuate the detention.” Id. at 98–99. “An officer’s use of force violates the

Fourth Amendment when it is objectively unreasonable, given the facts and circumstances of the

particular case, as ‘judged from the perspective of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight.’” Chambers v. Pennycook, 641 F.3d 898, 905–06 (8th Cir.

2011) (quoting Graham v. Connor, 490 U.S. 386, 396–97 (1989)).

To find the officers’ alleged conduct unreasonable here would require the benefit of

hindsight. During the “tense, uncertain, and rapidly evolving” events as the search of Plaintiffs’

home began, Graham, 490 U.S. at 397, officers reasonably believed that they were entering a home

resided at or frequented by an armed-carjacking suspect. Further, there was a fair probability that

firearms and property stolen during the earlier carjacking would be found inside.

Tactical Unit officers shouted and displayed firearms to quickly gather Plaintiff Shamily,

Plaintiff Briscoe, and their children on the sidewalk in front of their house. It is clear that this was

done in an effort to further the officers’ legitimate interests in effectuating the search, preventing

flight, and minimizing safety risks. Muehler, 544 U.S. at 98. True, Ms. Shamily was compelled

to abandon her baby and proceed into the yard in a state of undress, but the allegations in the

Complaint indicate that this was for a period of four or five minutes before she was reunited with

her child and given an opportunity to cover herself. Doc. [1] ¶¶ 135–37. In total, the family was

detained for thirty minutes while officers searched for the contraband listed in the warrant. Id.

¶ 147. They were not otherwise restrained or physically injured during the search. Although this

unfortunate incident was undoubtedly “frustrat[ing], embarrass[ing], and humiliat[ing]” for

Plaintiffs, the Court does not find that the officers’ alleged conduct was a Fourth Amendment

violation under the circumstances. See Los Angeles County v. Rettele, 550 U.S. 609, 616 (2007)

(“When officers execute a valid warrant and act in a reasonable manner to protect themselves from

harm . . . the Fourth Amendment is not violated.”); see also Muehler, 544 U.S. at 100 (finding that

a two-to-three-hour detention in handcuffs did not outweigh the government’s continuing safety

interests where a warrant authorized “a search for weapons and a wanted gang member reside[d]

on the premises”); see also P.M. ex rel. Whitworth v. Bolinger, 2:10-cv-4208-NKL, 2011 WL

5838406, at *5 (W.D. Mo. Nov. 21, 2011) (finding no violation to yell and point guns at non-

threatening individuals where “a reasonable officer could, in the heat of the moment, rely on such

tactics to prod individuals to move swiftly through a potentially dangerous situation”).

Nor does the level of property damage alleged in the Complaint rise to the level of a

constitutional violation, especially given the nature of the items listed as contraband in the warrant

and the fact that those items could reasonably be concealed throughout the home in a variety of

places, including inside drawers and within a drop ceiling. See, e.g., Cook v. Gibbons, 308 F.

App’x. 24, 28 (8th Cir. 2009) (“[O]fficers executing search warrants on occasion must damage

property in order to perform their duty.” (quoting Dalia v. United States, 441 U.S. 238, 258

(1979)); see also 2 Wayne R. LaFave, Search and Seizure § 4.10(d) (6th ed.) (“The destruction of

property in carrying out a search is not favored, but it does not necessarily violate the Fourth

Amendment; the standard is reasonableness.”). cf. DeArmon v. Burgess, 388 F.3d 609, 611 (8th

Cir. 2004) (granting qualified immunity to officers who “broke entry doors and locks on interior

doors, [and] damaged drywall and furniture”); Therefore, for all these reasons, the Court will grant

Defendants’ Motion to Dismiss with respect to Count III.

C. Plaintiffs’ Unreasonable Seizure claim (Count IV) must fail under the facts alleged.

As indicated in their briefing, Plaintiffs assert Count IV against Detective Percich as an

“alternative and inconsistent theor[y]” to Counts I, II, and III. Doc. [14] at 14. Plaintiffs argue

that Detective Percich “seized each Plaintiff when investigating the carjacking, and . . . the seizures

were unreasonable because [they were] not necessary to investigate the carjacking.” Doc. [1] ¶¶

226–27. However, considering the Court’s findings regarding Plaintiffs’ other Counts against

Detective Percich, it is clear that Plaintiffs have failed to state a claim against him for an

unreasonable seizure. See Muehler, 544 U.S. at 98 (“An officer’s authority to detain incident to a

search is categorical; it does not depend on the quantum of proof justifying detention or the extent

of the intrusion to be imposed by the seizure.”). Even if the Complaint plausibly alleged that

Detective Percich seized Plaintiffs, the Court has found that (1) the warrant authorizing the search

of Plaintiffs’ home was valid under the facts alleged, and (2) the amount of force allegedly used

to execute the search was not a constitutional violation. It follows that the Plaintiffs’ seizure during

the search of their home was not unreasonable under the facts alleged. The Court will therefore

dismiss Count IV for failure to state a claim.

D. Plaintiffs have failed to state a plausible claim against St. Louis County (Count V).

Turning now to Plaintiffs’ claim against Defendant St. Louis County, they argue that the

County should be subject to municipal liability for the search of their home because “it is the policy

of St. Louis County to use SWAT in circumstances when it is not justified.” Doc. [1] ¶ 231.

Plaintiffs further allege that “St. Louis County slowly, methodically, intentionally and deliberately

put into place its SWAT team policies, procedures, and customs that invited [the] excessive use of

force” in this case, id. ¶ 160, and that “St. Louis County has a continuing, widespread, and

persistent pattern of routinely using SWAT when it is not justified, id. ¶ 168.

In the Eighth Circuit, “[m]unicipal liability will not attach unless individual liability is

found on an underlying substantive claim.” White v. Jackson, 865 F.3d 1064, 1075 (8th Cir. 2017)

(internal quotations omitted). Thus, having found that Plaintiffs have failed to state a claim on

Counts I–IV, Plaintiffs have necessarily failed to state a municipal-liability claim against

Defendant St. Louis County. But even if the Court found that Plaintiffs had sufficiently alleged

individual liability on the part of Detective Percich, the Court would still find Plaintiffs’ allegations

insufficient to plausibly state a claim as to Count V.

The pleading standard for municipal-liability claims is the same as any other; a plaintiff

“must allege facts sufficient to state a claim for relief that is plausible on its face.” Watkins, 102

F.4th at 953 (quoting Ulrich v. Pope County, 715 F.3d 1054, 1061 (8th Cir. 2013)). “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements” are

insufficient. K.T., 865 F.3d at 1057 (internal quotations omitted). Thus, to avoid dismissal for

failure to state a claim, Plaintiffs “must allege facts which would support the existence of an

unconstitutional policy or custom.” Watkins, 102 F.4th at 954 (quoting Doe ex rel. Doe v. Sch.

Dist. of City of Norfolk, 340 F.3d 588, 591 (8th Cir. 2003). They have not done so.

Plaintiffs’ allegations that St. Louis County has “slowly, methodically, intentionally, and

deliberately” put into place unconstitutional policies and that the County “has a continuing,

widespread, and persistent patten of routinely using SWAT when it is not justified” are wholly

conclusory statements that—adverbs notwithstanding—merely recite the elements of a municipal

liability claim. Such allegations are insufficient. See K.T., 865 F.3d at 1057. As to the issue of

an unconstitutional official policy, Plaintiffs’ allegations are inadequate because they fail to

identify “a deliberate choice of a guiding principle or procedure made by the municipal official

who has final authority regarding such matters.” Watkins, 102 F.4th at 954 (quoting Mettler v.

Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999)) (finding no plausible municipal-liability claim).

Plaintiffs also fail to allege “facts that support the existence of an unconstitutional

unofficial custom.” Id. In order to do so, a complaint must set forth factual allegations “plausibly

suggesting ‘(1) the existence of a continuing, widespread, persistent pattern of unconstitutional

misconduct by the [municipality’s] employees; (2) deliberate indifference to or tacit authorization

of such conduct by the governmental entity’s policymaking officials after notice to the officials of

that misconduct; and (3) an injury by acts pursuant to the [municipality’s] custom.’” Id. (quoting

Mitchell v. Kirchmeier, 28 F.4th 888, 899 (8th Cir. 2022). Here, the facts alleged relate solely to

the May 2023 search of Plaintiffs’ home, a single incident of alleged police misconduct. This is

simply not enough to plausibly allege the existence of a municipal custom. See id. (“[G]enerally,

an isolated incident of alleged police misconduct cannot, as a matter of law, establish a municipal

policy or custom creating liability under § 1983.” (quoting Ulrich, 715 F.3d at 1061)). For all of

these reasons, the Court will grant Defendants’ Motion to Dismiss with respect to Count V.

II. Missouri Sunshine Law Violation (Count VD

Finally, Plaintiffs assert a state-law claim against Defendant St. Louis County for a

violation of the Missouri Sunshine Act, Doc. [1] §f] 235-43; see Mo. Rev. Stat § 610.027, arguing

that the Court has supplemental jurisdiction over their claim. Doc. [1] | 4. However, assuming

supplemental jurisdiction exists,’ the Court declines to exercise it because the Court has dismissed

all of Plaintiffs’ federal claims. See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to

exercise supplemental jurisdiction over a claim . . . [where] the district court has dismissed all

claims over which it has original jurisdiction.”). The Court will therefore grant Defendants’

Motion with respect to Count VI and dismiss the claim without prejudice.

Accordingly,

IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss, Doc. [10], is

GRANTED.

IT IS FURTHER ORDERED that a separate Order of Dismissal will be filed herewith.

Dated this 26th day of March 2025.

tug Pe

ATTHEW T. SCHELP

UNITED STATES DISTRICT JUDGE

° The Court is not convinced that this state-law claim “derive[s] from a common nucleus of operative fact” with

Plaintiffs’ § 1983 claim such that “the [Court] may “try them all in one judicial proceeding.’” Hunter v. Page County,

102 F.4th 853, 868 (8th Cir. 2024). See Benyi v. Broome County, 887 F. Supp. 395, 401 (N.D.N.Y. 1995) (finding no

supplemental jurisdiction over an inmate’s claim under the New York Freedom of Information Law, joined with a

§ 1983 claim, because “[t]he Constitutional right to personal safety [under the Eighth Amendment] and a request for

documents are distinct factually and legal[ly]”). Setting aside the subject matter of Plaintiffs’ requests, the operative

facts giving rise to Plaintiffs’ § 1983 claims for violations of their Fourth Amendment rights are wholly separate from

any operative facts giving rise to the alleged violation of the Missouri Sunshine Act, especially because the latter claim

arises out of “separate events that took place more than a year” after the search of Plaintiffs’ home. Stroud v. Steffen,

4:23-cv-01118, 2024 WL 379344, at *4 (E.D. Mo. 2024) (declining to exercise supplemental jurisdiction over a

Missouri Sunshine Act claim in conjunction with plaintiff's § 1983 claims). The Court does not reach Defendants’

abstention argument. Doc. [11] at 14-15.

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