Case 7:17-cv-00005-O Document 1 Filed 01/18/17

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IN THE FEDERAL DISTRICT COURT

NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION
IN RE
BLACK 2007, FORD, F-150 &
AN ASSORTMENT OF WEAPONS,
AMMUNITION, AND ACCESSORIES

CASE NO.

COMPLAINT & PETITION FOR WRIT OF REPLEVIN

I.
Introdiuction
1.1

Plaintiffs / Petitioners, (Plaintiffs) Bryan Roland and Kristi Lyn Roland contend

that their inability to challenge, promptly after their vehicles and assorted weapons are
seized, the legitimacy of and justification for the City of Wichita Falls, Texas, (the City)
retention of the vehicles and weapons more than 30 days,1 and prior to judgment in any
civil forfeiture proceeding, violates their constitutional rights.
1.2

Plaintiffs bring this Civil Rights action and Petition for Writ of Replevin pursuant

to 42 U.S.C. 1983, for violating the Plaintiffs Second Amendment rights to keep and
bear arms, Fourth Amendment Rights against unreasonable seizures, Fourteenth
Amendment Right to due process, and for violation of Firearms Owners' Protection Act.
18 U,S,C, 24.

Artical 59.04 of the Texas Code of Criminal Procedure, section (a) If a peace officer seizes
property under this chapter, the attorney representing the state shall commence proceedings under this
section not later thanthe 30th day after the date of the seizure. Art. 59.04 (a).

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II.
Jurisdiction & Venue
2.1

This Court has subject matter jurisdiction pursuant to 1331 of Title 28 of the

United States Code (federal question jurisdiction), for all matters arising under federal
law.
2.2

Venue is proper under 28 U.S.C. 1391(b)(1) & (2) given that the Defendant is

located in Wichita County, Texas. Plaintiff resides in Wichita County, Texas, and the
conduct that forms the basis of this complaint all occurred in Wichita County, Texas.
III.
Parties
3.1

Plaintiffs / Petitioners, Bryan Roland and Kristi Lyn Roland are citizens of the

United States and reside at 5210 Tower, in Wichita Falls, Texas.

3.2

Defendant / Respondent, City of Wichita Falls, Texas is a political subdivision of

the State of Texas, created under the laws of the state of Texas.
IV.
Facts
4.0

Plaintiffs are innocent owners of a Black 2007, Ford F-150 (Ford F-150) truck

and an assortment of weapons, ammunition, and accessories (See Exhibit A) that were
seized by Wichita Falls peace officers pursuant to three separate search warrants between
September 4 th and 16 th of 2016.

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4.1

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Plaintiffs are also innocent owners of a 2002 Tan Chevrolet Tahoe (VIN No.

1GNEC13Z12R163646), seized on September 4, 2016 and is the subject matter of a State

Court forfeiture proceeding by virtue of Chapter 59 of the Texas Code of Criminal
Procedure in State of Texas vs. 2002 Tan Chevrolet Tahoe, No, 185,256B, 78 th District
Court of Wichita County, Texas, filed September 27, 2016 (still pending). Plaintiffs are
not contesting that matter.
4.2

Kody Austin Lott (Lott) is the son of Plaintiff, Kristi Lyn Roland and the stepson

to Bryan Roland.
4.3

Lott did not live with Plaintiffs, but had access to Plaintiffs apartment. Plaintiffs

were out of town on and before the following events occurred on September 2, 2016, and
were totally unaware of the events herein.
V.
Shooting
5.0

On September 2, 2016, Wichita Falls Police were dispatched to the 5100 block of

Kingston Dr, in Wichita Falls, Texas in reference to a shooting. On arrival, officers

discovered that two juvenile females were shot by an unknown white male suspect.
5.1

Both of the victims were transported to the hospital by ambulance. One of the

victims died as a result of the gunshot wounds.

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5.2

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Numerous witnesses in the area reported to officers, that the shooter was

driving a gold colored SUV. The suspect was described by witnesses as a white male, 16
to 18 years of age, with shaggy brown hair.
5.3

Detectives spoke with the surviving victim, Makayla Smith, in the emergency

room at United Regional Health Care Systems, also in Wichita Falls. According to
Officer Vermillions report, the victims were walking east through an alleyway to their
houses when, according to Smith, a black truck, driven by a young-looking white male
with shaggy brown hair, stopped on the roadway ahead of the victims. Smith said that
she saw the driver of the truck reach into the passenger area and produce a rifle type
firearm. Smith said that the suspect shot her, and she ran from the scene.
5.4

The police released the suspects description to the local news media, as well as

the description of the suspect vehicle, a goldish SUV or black truck.

VI.
Tan Tahoe Seizure
6.1

On September 4, 2016, a citizen called the police reporting that a male matching

the suspects description was seen driving a champaign colored Tahoe in the Fountain
Gate Apartments near the shooting location. The citizen saw the suspect was carrying an
object into Plaintiff apartment that was the same size and shape as a rifle concealed in
some type of cloth. The citizen watched the suspect leave the apartment and return to the
Tan Tahoe, and drive out of the apartment complex.

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6.2

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The responding officers located the Tan Tahoe and stopped the suspect in a

shopping center parking lot. The suspect, later identified as Kody Austin Lott, was in
possession of an illegal weapon (brass knuckles) and was arrested accordingly.
6.3

During Lotts arrest, he confessed to intentionally shooting the two young victims

with a .22 caliber rifle that belong to his stepfather, Plaintiff Bryan Roland, who had been
out of town for several days prior to the shooting.
6.4

Lott said that he did not live in Plaintiffs apartment, but had access to it. Lott told

officers that he had taken Plaintiff Bryan Rolands AR style .22 cal rifle without
Plaintiffs knowledge.
6.5

Plaintiff Bryan Roland kept his guns locked up in a cabinet, but Lott broke into it,

and stole the weapon and ammunition used in the shooting offenses.
6.6

Lott also declared to the arresting officers that he (Lott) worships the Satanic

Occult which influenced him to kill the victims.

6.7

During Lotts arrest, officers seized the Tan Tahoe driven by Lott as being used as

an instrumentality of the shooting offenses. (See, in State of Texas vs. 2002 Tan Chevrolet
Tahoe, No, 185,256B).
VII.
Unreasonable Retention of Black F-150
7.1

When being questioned by officers, Lott told them that his step father, Plaintiff

Bryan Roland, owns a Black F-150 and it was parked back at the Fountain Gate

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apartment complex. Officers located the Black F-150 which was legally parked at the
Fountain Gate Apartments.
7.2

Because of its possible, not probable, use in the commission in the shootings the

officers seized the Black F-150 without a warrant and towed it to the police impound lot
at 3101 Armory Rd. in Wichita Falls, Texas and has remained there ever since. See;
Krimstock v. Kelly, 306 F.3d 40 (Fed. 2nd Cir., 2002)2 Plaintiffs contend that their
inability to challenge, promptly after the vehicles are seized, the legitimacy of and
justification for the City's retention of the vehicles prior to judgment in any civil forfeiture
proceeding violates their constitutional rights.
VIII
Search Warrant for F-150
8.1

On September 15, 2016, based only on witness statements claiming that a black

truck was in the area at the time of the shooting and possibly, (not probably) involved in
the shooting, Detectives sought and obtained a search warrant for the interior of the black
F-150 under the theory that it is possible that there could be evidence related to the
crime being investigated such as ballistic evidence and other items unknown inside the
truck.

Sotomayer Cir. Judge (...retention of vehicles after their warrantless seizure by the police and
prior to the ultimate resolution of the forfeiture action in court. It is this intermediate deprivation, lasting
months or sometimes years without any prompt hearing before a neutral fact-finder, that we deem
constitutionally infirm. In the absence of a showing that continued impoundment constitutes a valid
deprivation, seized vehicles must be released during the pendency of civil proceedings ).

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8.2

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On September 16, 2016, criminal evidence tech Collins performed 4 GSR stubs

from various location in the black F-150 searching for gunshot residue from the F-150.
8.3

There has not been any additional inspections of the vehicle or explanation as to

why the Decedents need further retention of this vehicle nor has there been any due
process hearing to challenge the legitimacy of and justification promptly after the
vehicles and weapons are seized.
8.4

It is the policy for the Wichita Falls Police Department to retain vehicles seized by

officers of the department indefinitely, without due process, in violation of the Fourteenth
Amendment.
8.5

The continued retention of the F-150 is unecessary for this investigation and denies

Plaintiffs the use and pleasure of this vehicle without due process, and places an undue
burden and expense on Plaintiffs, who has had to pay for a rental vehicle in its place.
IX.
Unreasonable Retention of Unrelated Firearms
9.1

On September 4, 2016, Detectives obtained a search warrant for Plaintiffs

apartment based on possible standard rather than probable cause as required by the
Fourth Amendment.
9.2

Detectives seized the rifle used in the offense along with an assortment of other

weapons, ammunition, and accessories (See Exhibit A) that were not used in the offenses,

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and are not evidence of any criminal offense and defendant refuse to return them to
Plaintiffs.
9.3

These weapons have remained seized by the Wichita Falls Police Department for

more than one hundred and twenty days in violation of 18 U.S.C. 924(d)(1): "Any
action or proceeding for the forfeiture of firearms or ammunition shall be commenced
within one hundred and twenty days of such seizure." 3
9.4

Congress has imposed limits to protect firearm owners. Only those firearms

particularly named and individually identified as involved in or used in a violation of the

federal or state criminal laws are subject to seizure, forfeiture, and disposition where such
intent (wilfulness or intent to use firearm in the offense) is demonstrated by clear and
convincing evidence.4
9.5

The government must return the seized firearms to the owner "forthright" upon the

involuntary dismissal of charges against the owner or upon his acquittal.5 . Any action or
proceeding for the forfeiture of the firearms must be commenced within 120 days of the
seizure.6 18 U.S.C. 924(d)(1); accord, 27 C.F.R. 72.21(b); 27 C.F.R. 478.152(a).

In the Fifth Circuit, the Second Amendment "protects the rights of individuals, including those not
then actually a member of any militia or engaged in active military service or training, to privately possess
and bear their own firearms. . . ."United States v. Emerson, 270 F.3d 203, 260 (5th Cir. 2001). The Second
Amendment right is subject to "limited narrowly tailored specific exceptions or restrictions for particular
cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and
bear their private arms as historically understood in this country."id. At 461
4

18 U.S.C. 924(d)(2), accord, 27 C.F.R. 478.152(b).

18 U.S.C. 924(d)(1), accord, 27 C.F.R. 72.21

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9.6

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Defendant had no legal cause nor excuse to retain Plaintiffs property and

Defendant subjected Plaintiff to an excessive retention of Plaintiffs civil rights.

Defendant should have expeditiously investigated this matter and released Plaintiffs
property immediately.
9.7

Defendant' acts and omissions, performed under the color of state law and within

the scope of their authority, in gross and wanton disregard of Plaintiffs rights, deprived
Plaintiffs of their property when they subjected Plaintiffs to unlawful, illegal, and
excessive retention of there property in violation of their rights pursuant to the Second,
Fourth, and Fourteenth Amendments of the United States Constitution. In so acting,
Defendant abused their power and authority as peace officers of the Wichita Falls Police
Department under the color of state or local law.
X.
Prayer
10.1

Plaintiffs pray that this Honorable Court grant this Petition and Order a Writ of

Replevin for the immediate return of Plaintiffs Black F150 and the firearms,
ammunition, and accessories in the States possession that have no probative value in the
prosecution of Kody Lott. As result of the unreasonable retention of the Plaintiffs F-150,
it was necessary for Plaintiffs to lease a vehicle and Plaintiffs seek money damages for
that expense.

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10.2

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Pursuant to 42 U.S.C. 12205, 1988(b), Plaintiff is entitled to recover attorneys

fees, costs, and expenses.

Respectfully submitted,
By: /s/ Rick

Bunch

Rickey G. Bunch
Texas Bar No. 00792381
Email: rickbunch@sw.rr.com
2110 Hiawatha
Wichita Falls, Tx 76309
Tel. (940) 322-6611
Fax. (212) 954-5533

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