Case 5:23-cv-00916 Document 4 Filed 07/24/23 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

MARIA TIJERINA, INDIVIDUALLY, AND§

AS REPRESENTATIVE OF THE ESTATE §
OF NEIDA TIJERINA, DECEASED, AND § CIVIL ACTION NO.
AS NEXT OF FRIEND FOR J.P., R.D.,§
A.R. AND E.S. §
5:23-cv-00916
PLAINTIFF §
§
VS. §
§
THE CITY OF SAN ANTONIO; WILLIAM § JURY TRIAL
MCMANUS, CHIEF OF THE SAN §
DEMANDED
ANTONIOPOLICE DEPARTMENT, AND §
UNKNOWN OFFICERS OF THE SAN §
ANTONIO POLICE DEPARTMENT, §
DEFENDANTS §

PLAINTIFF’S FIRST AMENDED ORIGINAL COMPLAINT

TO THE HONORABLE UNITED STATES DISTRICT COURT:

Now comes MARIA TIJERINA (hereafter referred to as Plaintiff), Individually and as

Representative of the Estate of NEIDA TIJERINA, Deceased, and as Next of Friend for J.P., R.D.,

A.R., and E.S., by and through her undersigned attorneys of record and in accordance with T HE

CIVIL RIGHTS ACT, 42 U.S.C. § 1983 in the Federal Rules of Civil Procedure, and files her First

Amended Original Complaint against THE CITY OF SAN ANTONIO; WILLIAM MCMANUS,

Chief of the San Antonio Police Department, in his individual and official capacities; and

UNKNOWN OFFICERS OF THE SAN ANTONIO POLICE DEPARTMENT, in their individual

and official capacities. In support of this cause of action Plaintiff would respectfully show unto

the Court the following:

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NATURE OF ACTION

42 U.S.C. § 1983 (“The Civil Rights Act”), provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom or
usage, of any state or territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or any other person within the
jurisdiction thereof to the deprivation of any laws, privileges or immunities secured
by the Constitution and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress.

1. This is a civil rights action brought by Plaintiff, pursuant to 42 U.S.C. § 1983,

against the Defendants for their conduct, acting under the color of law and resulting in the

death of NEIDA TIJERINA, in violation of her individual rights as secured by the Fourteenth

Amendment of the United States Constitution.

2. Plaintiff is the natural, surviving mother and personal representative of the estate

of the deceased NEIDA TIJERINA as well as the next of friend for NEIDA TIJERINA’s minor

children. As such, Plaintiff is entitled to recover damages arising from NEIDA TIJERINA’S

wrongful death pursuant to the Texas Wrongful Death and Survival Statutes, Tex. Civ. Prac. &

Rem. Ann. Code § 71.

3. Plaintiff alleges that THE CITY OF SAN ANTONIO and its policy makers, City

Manager, Erik Walsh, Chief of Police, William McManus (“McManus), the San Antonio City

Council, and Mayor of San Antonio, Ron Nirenberg (hereinafter referred to as the

“Policymakers”) failed to properly train, supervise, screen, discipline, transfer, counsel, or

otherwise control officers in the use of excessive deadly force. The Policymakers, had a duty,

but failed to implement and/or enforce policies, practices and procedures for SAPD that

respected NEIDA TIJERINA’S safety and constitutional rights as secured by the Fourteenth

Amendment. This duty was delegated to McManus who was hired to carry out the actions and

policies of the council by overseeing the operations of the San Antonio Police Department.

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The CITY OF SAN ANTONIO and its Policymakers’ failure to implement and enforce

necessary policies and procedures intentionally and recklessly deprived NEIDA TIJERINA of

her constitutionally protected right to life.

4. The UNKNOWN OFFICERS OF THE SAN ANTONIO POLICE DEPARTMENT

were acting under color of law and by virtue of their state authority while performing their

official duties as police officers in the events which led to NEIDA TIJERINA’S injury and

subsequent death. The UNKNOWN OFFICERS misused and abused their official power by

recklessly exercising excessive deadly force in conscious disregard of substantial risk of harm

to innocent parties such as NEIDA TIJERINA. These UNKNOWN OFFICERS took such

actions knowing that the Policymakers would approve their actions.

5. For these constitutional rights violations and other causes of action discussed

herein, Plaintiff seeks answers and compensation for her damages and the wrongful death of

NEIDA TIJERINA.

PARTIES

6. Plaintiff, MARIA TIJERINA, is a citizen of the United States and resident of San

Antonio, Texas. Plaintiff is the natural, surviving mother of the decedent NEIDA TIJERINA,

and brings her claims under 42 U.S.C. § 1983 and pursuant to the Texas Wrongful Death

Statute, Tex. Civ. Prac. & Rem. Code Ann. § 71.001, et seq., the Texas Survival Statute, Tex.

Civ. Prac. & Rem. Ann. Code § 71.021, and all other applicable laws complaining of the

various acts listed below. Additionally, Plaintiff brings claims as managing custodial guardian

of NEIDA TIJERINA’S surviving minor children: J.P., R.D., A.R., and E.S. and as the

Administrator of NEIDA TIJERINA’S estate.

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7. Defendant CITY OF SAN ANTONIO is a municipal governmental entity within

the State of Texas and the public employer of the UNKNOWN OFFICERS OF THE SAN

ANTONIO POLICE DEPARTMENT. The CITY OF SAN ANTONIO may be served with

summons by serving the Mayor of the City of San Antonio, Ron Nirenberg; the City Manager

of the City of San Antonio, Erik Walsh; the City Attorney of the City of San Antonio, Andrew

Segovia; or the City Clerk of the City of San Antonio, Debbie Racca-Sittre, TRMC, CMC at

P.O. Box 839966, San Antonio, Texas 78283-3966, or wherever they may be found.

8. Defendant, WILLIAM A. MCMANUS, CHIEF OF THE SAN ANTONIO POLICE

DEPARTMENT, is an individual and, at the time of the incident, was employed by the CITY

OF SAN ANTONIO. He may be served with summons by serving him at 315 S. Santa Rosa

Ave., San Antonio, Texas 78207, or wherever he may be found.

9. Defendants, the UNKNOWN OFFICERS OF THE SAN ANTONIO POLICE

DEPARTMENT are individuals of majority and, upon information and belief, are residents of

the Western District of Texas. The true identities of these officers are unknown at this time but

they will be properly identified when their names are learned in the course of discovery and

investigation. At the time of the incident, the UNKNOWN OFFICERS were duly appointed

and acting officers of the San Antonio Police Department and the CITY OF SAN ANTONIO,

acting under the color of law, under the color of the statutes, ordinances, regulations, policies,

customs and usages of the City of San Antonio. The UNKNOWN OFFICERS may be served

with summons by serving them at 315 S. Santa Rosa Ave., San Antonio, Texas 78207.

VENUE and JURISDICTION

10. Plaintiff asserts her claims against Defendants under the Fourteenth Amendment,

to redress the deprivation of rights, privileges, and immunities guaranteed to decedent, Neida

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Tijerina by constitutional statutes and provisions. This Court has jurisdiction over this action

pursuant to 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1343(3) (civil rights). This

Court also has supplemental jurisdiction pursuant to 28 U.S.C. § 1367 to hear state law claims

that will also be set forth below.

11. Because Defendants’ actions, inactions, failure to comply with T HE CIVIL RIGHTS

ACT, 42 U.S.C. § 1983, of which Plaintiff complains all occurred or failed to occur in Bexar

County, San Antonio, Texas, venue in the San Antonio division of the Western District of Texas

under 28 U.S.C. § 1391(b) is appropriate.

STATEMENT OF FACTS

12. On July 26, 2021, at approximately 8:19 p.m., Neida Tijerina was held hostage by

her boyfriend, Angel Sanchez, with three (3) of her four (4) minor children, J.P., R.D., and

E.S., at La Posada Del Rey Apartments, 3135 Roosevelt Ave., Apt. 118 (“The Apartment”),

San Antonio, Texas, 78214.

13. Tijerina called the emergency “911” telephone number at approximately 7:59 p.m.

Emergency personnel did not respond. Tijerina then texted her cousin, Esteffany Tristan, at

approximately 8:48 p.m. Tristan called the emergency “911” telephone number at

approximately 8:49 p.m.

14. At approximately 9:53 p.m., Elizabeth Arizela called 911 to ask if the police officers

at the scene could be contacted. Arizela is the aunt of Angel Sanchez and had been on the phone

with Angel Sanchez. Arizela claimed that the police officers were escalating this dangerous

situation by yelling and banging on the door.

15. Several San Antonio Police Department officers were called to the scene to aid with

the hostage situation, arriving at varying times throughout the evening.

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16. A team of officers took their position around a small shed facing the stairs leading

up to Neida Tijerina’s apartment entrance. These officers had a clear view of the stairs leading

up to Neida Tijerina’s apartment. These officers were assigned to the “React” team. Their job

was to react to any persons exiting the target location and the area surrounding the front door

of the apartment.

17. Officers John Aguirre, Jose Claire, and Nicholas Rodgers came onto the scene and

positioned themselves on the roof of the recreational center, across from the apartment front

door. These officers lay prostrate behind the cover of a cement chimney. Their angle allowed

them to look downward in the direction of the door and stairs of the apartment. A basketball

court separated the recreational center from the apartment building.

18. Over the course of the following hours Angel Sanchez exited the apartment multiple

times. Neida Tijerina was positioned behind Sanchez on these occasions. During one of his

exits from the apartment, Angel Sanchez carried his biological, infant son with Neida Tijerina,

E.S., in front of him.

19. On the final occasion that Angel Sanchez exited the apartment, he pointed his

firearm at the officers near the shed. Angel Sanchez did not fire his weapon. The officers near

the shed never discharged their weapons.

20. The three (3) officers on top of the roof of the recreational center discharged their

AR-15 assault rifles in Angel Sanchez’s direction. Officer John Aguirre discharged his AR-15

assault weapon nine (9) times, Officer Jose Claire discharged his once, and Officer Nicholas

Rodgers discharged his rifle twice. One of the AR-15 shells missed Angel Sanchez entirely and

killed Neida Tijerina who was positioned in the apartment behind Angel Sanchez, as she had

been positioned in all of Angel Sanchez’s previous exits from the apartment.

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21. All three (3) officers on the roof were aware that Neida Tijerina was in the

apartment directly behind Angel Sanchez. All three (3) officers were aware that three (3) minor

children were inside of the apartment beyond the apartment doorway. However, the officers

fired no less than twelve, high-caliber, assault rifle shells in the direction of the apartment,

while neither Angel Sanchez nor the React team fired their weapons.

22. An Affidavit for Search Warrant was produced by San Antonio Police Department

Detective William Karman. The Affidavit for Search Warrant was presented at the scene. The

facts attested to within the Affidavit for Search Warrant are inconsistent with the facts

contained within the investigative report.

23. No actions were taken by San Antonio Police Chief William McManus, or other

Policymakers, against the police officers who discharged their weapons. No investigation was

performed to determine the projectile that killed Neida Tijerina. Both the autopsy and available

investigative reports fail to take a definitive stand as to whose weapon fired the shell that killed

Neida Tijerina.

PLAINTIFF’S CLAIMS

(1) FIRST CLAIM: EXCESSIVE AND RECKLESS USE OF FORCE BY OFFICERS

42 U.S.C. § 1983 – PEACE OFFICER LIABILITY

24. Plaintiff restates, re-alleges, and hereby incorporates by reference any and all

allegations contained in the above paragraphs as set forth herein.

25. Plaintiff brings a claim against Defendants, the UNKNOWN OFFICERS OF THE

SAN ANTONIO POLICE DEPARTMENT, individually, pursuant to 42 U.S.C. § 1983, for

depriving NEIDA TIJERINA of her life without due process in violation of her rights as

secured by the Fourteenth Amendment to the United States Constitution.

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26. At all times material hereto, the UNKNOWN OFFICERS had a duty to avoid

infliction of unjustified bodily injury to NEIDA TIJERINA, to protect her bodily integrity, and

to not trample her constitutionally protected right to life.

27. Plaintiff would show that the UNKNOWN OFFICERS failed to act as reasonable

police officers would and should act in the same or similar circumstances. Specifically, the

UNKNOWN OFFICERS, without sufficient provocation, justification, or necessity, opened

fire and used excessive and unreasonable deadly force, as described above, with conscious

disregard of the risk to innocent bystanders. When the UNKNOWN OFFICERS opened fire,

one (1) of their shots struck NEIDA TIJERINA in the torso, and she died as a result of this

wound. The unjustified and reckless actions of the UNKNOWN OFFICERS directly and

proximately caused the needless death of NEIDA TIJERINA without probable cause or legal

justification.

28. The UNKNOWN OFFICERS were acting within customs, policies, practices, or

procedures of the CITY OF SAN ANTONIO when they killed NEIDA TIJERINA. These

customs, policies, practices, or procedures were objectively unreasonable because they failed

to account for and ensure the safety of innocent bystanders such as NEIDA TIJERINA.

29. The UNKNOWN OFFICERS acted with knowledge that their unnecessary,

excessive, and reckless use of deadly force would be met with approval by CHIEF WILLIAM

MCMANUS and the Policymakers of the CITY OF SAN ANTONIO.

30. As a result of the Constitutional violations to NEIDA TIJERINA and the injuries

she sustained, Plaintiff seeks compensation as set forth more specifically in the section of this

Complaint entitled “Damages.”

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(2) SECOND CLAIM: MUNICIPAL LIABILITY

42 U.S.C. § 1983 – CITY OF SAN ANTONIO

31. Plaintiff restates, re-alleges and re-avers and hereby incorporates by reference any

and all allegations contained in the above paragraphs as if fully set forth herein.

32. Plaintiff brings this claim against Defendants, the CITY OF SAN ANTONIO and

CHIEF WILLIAM MCMANUS, pursuant to 42 U.S.C. § 1983, for depriving NEIDA

TIJERINA of her life without due process in violation of her rights as secured by the Fourteenth

Amendment to the United States Constitution.

33. The UNKNOWN OFFICERS OF THE SAN ANTONIO POLICE DEPARTMENT

who shot and killed NEIDA TIJERINA were acting under color of law and pursuant to the

customs, practices, policies, and procedures of the Policymakers of the CITY OF SAN

ANTONIO and CHIEF WILLIAM MCMANUS regarding the use of deadly force and the

protection of innocent bystanders, when they killed NEIDA TIJERINA.

34. The CITY OF SAN ANTONIO and SAPD failed to adequately advise and train its

employees regarding the use of deadly force and the protection of innocent bystanders. SAPD

policies and training procedures regarding use of excessive and deadly force were inadequate

in that they failed to account for the safety and protection of innocent bystanders in

circumstances where deadly force is used. This failure to formulate adequate policies and

procedures and to properly train its employees shocks the conscience and reflects a deliberate

indifference of the CITY OF SAN ANTONIO, SAPD, and CHIEF WILLIAM MCMANUS to

the rights of innocent bystanders in the community. These severe deficiencies directly and

proximately caused the needless death of NEIDA TIJERINA and deprived her of her protected

right to life without probable cause or legal justification.

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35. The CITY and CHIEF MCMANUS knew or should have known of the dangerous

inadequacies of their policies and training. The death of NEIDA TIJERINA and the

deprivation of her rights were foreseeable consequences of their failure to formulate proper

policies and implement effective training.

36. On information and belief, Defendants, THE CITY OF SAN ANTONIO, SAPD,

City Manager Walsh and Chief McManus, acting through official policies, practices, and

customs, and with deliberate, callous, and conscious indifference to the constitutional rights of

Tijerina, failed to implement and/or enforce the policies, procedures; and practices necessary

to provide constitutionally adequate protection and assistance to Tijerina during her struggle

to survive and implemented policies, procedures, and practices which actually interfered with

or prevented Tijerina from receiving the protection, assistance and care she deserved.

(3) STATE CAUSE OF ACTION

WRONGFUL DEATH

37. Plaintiff restates, re-alleges, hereby incorporates by reference any and all

allegations contained in the above paragraphs as if fully set forth herein.

38. Plaintiff also claims that the CITY OF SAN ANTONIO and CHIEF WILLIAM

MCMANUS, in his official capacity, are liable for the wrongful death of NEIDA TIJERINA

pursuant to Chapter 101 of the Texas Civil Practices and Remedies Code, known as the Texas

Tort Claims Act (TTCA). This Court has jurisdiction to hear these claims pursuant to 28 U.S.C.

§ 1367.

39. The UNKNOWN OFFICERS OF THE SAN ANTONIO POLICE DEPARTMENT,

while acting within the scope of their employment, negligently used tangible personal property,

namely: firearms, which proximately caused the death of NEIDA TIJERINA. The

UNKNOWN OFFICERS were negligent in failing to take account for and take reasonable

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steps to ensure the safety of innocent bystanders during their exercise of deadly force, and said

negligent conduct resulted in NEIDA TIJERINA being shot and killed by the UNKNOWN

OFFICERS.

40. The CITY OF SAN ANTONIO and CHIEF WILLIAM MCMANUS are liable for

the wrongful acts, omissions, and negligence of the UNKNOWN OFFICERS, pursuant to

Section 101.021 of the Texas Civil Practices and Remedies Code. Pursuant to the TTCA’s

election of remedies requirement, Plaintiff’s state cause of action is brought against CITY OF

SAN ANTONIO and CHIEF WILLIAM MCMANUS, in his official capacity, rather than the

UNKNOWN OFFICERS individually.

41. Plaintiff timely provided notice under the TTCA. Alternatively, CITY OF SAN

ANTONIO and CHIEF WILLIAM MCMANUS had timely, actual notice of this claim and the

circumstance of this case.

42. No exception to the waiver of immunity bars this claim because no exception

applies.

DAMAGES

43. Plaintiff restates, re-alleges and re-avers and hereby incorporates by reference any

and all allegations contained in the above paragraphs as if fully set forth herein. Defendants’

acts and/or omissions, jointly and severally, were a proximate cause of the following Injuries

suffered by Plaintiff and decedent:

a. Actual damages;

b. Loss of affection, consortium, comfort, financial assistance, protection, affection,

and care in the past;

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c. Loss of affection consortium, comfort, financial assistance, protection, affection,

and care will in all reasonable probability be incurred in the future;

d. Mental anguish and emotional distress suffered by Plaintiff;

e. Loss of quality of life;

f. Loss of earnings and contributions to Plaintiff;

g. Exemplary and punitive damages;

h. Pursuant to 42 U.S.C. § 1988, and other applicable laws, Plaintiff should be

awarded reasonable attorney’s fees for the preparation and trial of this cause of

action, and for its appeal, if required;

i. Pre-judgment interest; and

j. Post-judgment interest;

k. All other damages allowed by law and equity.

44. Additionally, Plaintiff, as representative of the Estate of NEIDA TIJERINA,

deceased, seeks to recover survival damages, on behalf of Tijerina pursuant to Texas Civil

Practice and Remedies Code § 71.021, including:

a. Funeral and burial expenses related to the subject incident;

b. Conscious pain and suffering.

45. Plaintiff seeks unliquidated damages in an amount that is within the jurisdictional

limits of the court.

PUNITIVE &EXEMPLARY DAMAGES

46. Plaintiff restates, re-alleges, and hereby incorporates by reference any and all

allegations contained in the above paragraphs as if fully set forth herein.

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47. The UNKNOWN OFFICERS’ reckless disregard for NEIDA TIJERINA’S rights,

safety and welfare is more than momentary thoughtlessness, inadvertence or misjudgment.

Such unconscionable conduct goes beyond ordinary negligence, and as such Plaintiff requests

punitive and exemplary damages are awarded against UNKNOWN OFFICERS in a sum which

is within the jurisdictional limits of this Court.

COSTS AND ATTORNEY’S FEES

48. Plaintiff restates, re-alleges, and hereby incorporates by reference any and all

allegations contained in the above paragraphs as if fully set forth herein.

49. Plaintiff is entitled to recover attorney’s fees and costs under 42 U.S.C. § 1988(b).

Plaintiff hereby requests that the Court and jury award her attorney’s fees and expenses

incurred in Plaintiff’s prosecution of this litigation.

CONDITIONS PRECEDENT

50. Plaintiff reserves her rights to plead and prove the damages to which she is entitled

to at the time of trial. All conditions to Plaintiff’s recovery have been performed or have

occurred.

JURY DEMAND

Plaintiff respectfully demands a jury trial pursuant to FED.R.CIV.P. 38 (b).

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff seeks judgment against

Defendants THE CITY OF SAN ANTONIO; WILLIAM MCMANUS, Chief of the San

Antonio Police Department, in his individual and official capacities; and UNKNOWN

OFFICERS OF THE SAN ANTONIO POLICE DEPARTMENT Individually and in their

Official Capacities, jointly and severally, for actual damages above the jurisdictional minimum

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of the Court, exemplary damages, pre-judgment interest, post-judgment interest, costs of

Court, attorney fees and expenses and all other relief to which Plaintiff is justly entitled, at law

or in equity.

Respectfully Submitted:

/s/ Mark Anthony Acuna

______________________________
MARK ANTHONY ACUNA
Federal Bar No. 997078
mark.acuna@martinez-law.com
DESI I. MARTINEZ
(Pro Hac Vice Forthcoming)
Texas Bar No. 24053342
MARTINEZ &ASSOCIATES, PLLC
2828 Goliad Road, Suite 125
San Antonio, Texas 78223
2103598250
desi.martinez@martinez-law.com

PATRICK BALLANTYNE
Texas Bar No. 24053759
LaHood Norton Law Group
40 N.E. Loop 410, Ste. 525
San Antonio, Texas 78216
2107977700
patrick@lahoodnorton.com

ATTORNEYS FOR PLAINTIFF

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