Richard John Lucibella v. Richard Ermeri

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-11056

Non-Argument Calendar

____________________

RICHARD JOHN LUCIBELLA,

Plaintiff-Appellee,

versus

TOWN OF OCEAN RIDGE,

Defendant,

RICHARD ERMERI,

Officer,

NUBIA PLESNIK,

Officer, a.k.a. Nubia Savino,

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2 Opinion of the Court 22-11056

Defendants-Appellants.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 9:20-cv-82156-AMC

____________________

Before WILSON, BRANCH, and LUCK, Circuit Judges.

PER CURIAM:

After an altercation between Plaintiff Richard Lucibella and

a couple of Ocean Ridge, Florida, police officers, Lucibella sued

under 42 U.S.C. § 1983, alleging that the officers violated his Fourth

Amendment rights. A district court denied Officer Richard Ermeri

and Officer Nubia Plesnik’s motion for summary judgment. The

officers now appeal, arguing that the district court erred by denying

them qualified immunity on Lucibella’s unreasonable search and

excessive force claims. Because we agree that Officers Ermeri and

Plesnik are not entitled to qualified immunity at this stage of the

proceedings, we affirm.

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I. Background

a. Factual Background 1

On October 22, 2016, Lucibella and Steven Wohlfiel, an off-

duty lieutenant for the Ocean Ridge Police Department, met at

Lucibella’s house to socialize. After attending a cocktail party at a

neighbor’s house, Lucibella and Wohlfiel returned to Lucibella’s

house and sat on Lucibella’s backyard patio with alcoholic

beverages. While sitting and discussing “family issues,” Wohlfiel

suddenly fired his handgun five times into the ground around ten

to twelve feet in front of him. Wohlfiel then placed the firearm on

a table, and Lucibella picked up the firearm and put it on his lap.

Soon thereafter, the Ocean Ridge Police Department

received a 911 call reporting shots in the area. Officer Ermeri

responded to the call. Unsure of the gunshots’ origin, he spoke to

a group of people walking in the area, who directed him to the area

1 At the summary judgment stage, “we view all evidence and factual

inferences in the light most favorable to the non-moving party—here,

[Lucibella]—and we resolve all issues of material fact in [Lucibella’s] favor.”

Perez v. Suszczynski, 809 F.3d 1213, 1217 (11th Cir. 2016) (quotation omitted);

see also Cantu v. City of Dothan, Ala., 974 F.3d 1217, 1228 (11th Cir. 2020)

(“When considering a motion for summary judgment, including one asserting

qualified immunity, courts must construe the facts and draw all inferences in

the light most favorable to the nonmoving party and when conflicts arise

between the facts evidenced by the parties, [they must] credit the nonmoving

party’s version.” (quotations omitted)). Thus, although the facts are hotly

disputed, the record supports the following factual account when viewed in

the light most favorable to Lucibella.

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of Lucibella’s and his neighbor’s homes. Officer Ermeri first

investigated the house next to Lucibella’s but left after he observed

that the situation appeared normal. Sergeant William Hallahan,

who also responded to the 911 call, joined Officer Ermeri, and the

two officers approached Lucibella’s backyard, looked through the

wrought iron gate, and saw Lucibella and Wohlfiel sitting on the

patio. 2 The patio area was dark with no outside lighting. Officer

Plesnik, another responder, met Sergeant Hallahan and Officer

Ermeri outside the gate but left two or three seconds later. Officer

Plesnik left because she knew Lucibella and Wohlfiel and “thought

at the time [that the officers were] wasting [their] time.” Officer

Ermeri asked if Lucibella and Wohlfiel had heard any gunfire, and

Wohlfiel responded: “get the fuck out of here.” Sergeant Hallahan

took that response to mean that “they didn’t see anything” and,

because he “didn’t see anything out of the ordinary,” Hallahan left

too. Officer Ermeri, however, entered Lucibella’s backyard

through the gate without a warrant and without permission.

As Officer Ermeri approached the men, he saw shell casings

on the ground and told Lucibella that he saw Lucibella sitting on a

firearm. Officer Ermeri radioed Sergeant Hallahan and told him

2 Lucibella’s backyard was surrounded by tall hedges and a five-foot concrete

wall and was accessible through a short, wrought iron gate. Officer Ermeri

recognized Lucibella from prior, friendly interactions and knew that Lucibella

was the town commissioner. Although Officer Ermeri knew Wohlfiel as a

superior officer with the Ocean Ridge Police Department, he did not

recognize Wohlfiel until he entered the backyard and approached the men.

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that he located the weapon, and Sergeant Hallahan and Officer

Plesnik reported to Lucibella’s backyard. 3 Officer Ermeri asked

Lucibella about the firearm, and Lucibella gave it to Officer Ermeri

without resistance. Lucibella also emptied his pockets and told

Officer Ermeri that he did not want to speak with him and asked

him to “get off [his] property.”

Sergeant Hallahan informed Lucibella and Wohlfiel that

they were investigating a report of gunshots in the area. Lucibella

did not respond to Sergeant Hallahan, and Wohlfiel stated: “we

don’t have to say anything.” Sergeant Hallahan then stepped away

from the situation and called the police chief. The police chief

stated that there was no cause to arrest anyone and—considering

that neither Lucibella nor Wohlfiel would talk to them—advised

the officers to leave Lucibella’s home and take the gun and the

casings back to the department to do a report and reevaluate the

situation.

During this time, Lucibella wanted to go into his house to

retrieve a drink. Officer Ermeri blocked Lucibella’s path to the

door, so Lucibella asked his significant other, Barbara Ceuleers,

who was in the doorway, to get him a drink. Ceuleers maintains

that Officer Plesnik permitted her to get Lucibella a drink. When

she returned with the drink, although Officer Ermeri told Ceuleers

3 When Officer Plesnik heard Officer Ermeri ask Sergeant Hallahan to come

to the backyard over the radio, she went as well.

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not to hand Lucibella the drink, Lucibella and others heard Officer

Plesnik say “[l]et him have a drink.”

When Lucibella attempted to retrieve the drink, Officer

Ermeri pushed him away. In an angry response, Lucibella poked

Officer Ermeri’s chest two or three times and said, “[t]ake your F-

ing hands off me.” Then, as Lucibella reached for the drink again,

Officer Ermeri grabbed each of Lucibella’s arms and performed a

“botched leg sweep,” causing Lucibella to fall face first into the

marble floor, which he alleges rendered him unconscious, broke

his glasses, and caused bleeding, swelling, the blackening of his left

eye socket, and a laceration above his eyebrow.

Once Lucibella was on the ground, Officer Plesnik

performed a “knee drop,” asserting her full weight onto Lucibella’s

back, which he alleges broke three of his ribs and rendered him

bedridden.

After Lucibella was handcuffed, he refused to follow Officer

Ermeri’s instructions and called him names. Eventually, Officer

Plesnik escorted Lucibella to a patrol vehicle to be transported to

the Ocean Ridge Police Department.

b. Procedural History

In response to the altercation, Lucibella was charged with

(1) battery on a law enforcement officer (a felony); (2) resisting

arrest with violence (a felony); and (3) using a firearm while under

the influence of alcoholic beverage (a misdemeanor). The

prosecutor later dismissed the charge for using a firearm while

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under the influence. The jury returned a verdict of not guilty on

the remaining two felony charges but found Lucibella guilty of a

lesser included offense—misdemeanor battery on Officer Ermeri.

Florida’s Fourth District Court of Appeal affirmed Lucibella’s

conviction.

Lucibella then filed a civil complaint against Officer Ermeri

and Officer Plesnik under § 1983. 4 Officers Ermeri and Plesnik

jointly moved for summary judgment on Lucibella’s claims for

excessive force and unreasonable search in violation of the Fourth

Amendment based on qualified immunity. The district court

denied the officers’ motion for summary judgment as to both

claims.

II. Standard of Review

We review de novo the district court’s denial of summary

judgment and determination that Officers Ermeri and Plesnik are

not entitled to qualified immunity. Perez v. Suszczynski, 809 F.3d

1213, 1216 (11th Cir. 2016). And, as mentioned above, “[w]e

4 Lucibella’s nine-count complaint, which was filed in state court, also named

the Town of Ocean Ridge as a defendant. After the Town of Ocean Ridge

removed the case to federal court, Defendants moved to dismiss seven of the

claims in Lucibella’s amended complaint, and the district court dismissed six

of the claims with prejudice. The parties then filed a joint stipulation

dismissing another claim, meaning that only Count II (excessive force in

violation of the Fourth Amendment against Officers Ermeri and Plesnik) and

Count VII (unreasonable search in violation of the Fourth Amendment against

Officers Ermeri and Plesnik) remained.

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review the evidence in the light most favorable to the nonmovant.”

Wade v. United States, 13 F.4th 1217, 1223 (11th Cir. 2021).

“Summary judgment is appropriate ‘if the movant shows that there

is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ.

P. 56(a)).

Accordingly, the legal question of whether Officers Ermeri

and Plesnik are entitled to qualified immunity must be determined

under Lucibella’s version of facts as the non-movant. Perez, 809

F.3d at 1218. “We must review the evidence in this manner

because the issues appealed here concern not which facts the

parties might be able to prove, but, rather, whether or not certain

given facts showed a violation of clearly established law.” Id. at

1217 (quotation omitted). Indeed, “what are considered the ‘facts’

may not turn out to be the ‘actual’ facts if the case goes to trial;

rather, they are the ‘facts’ at this stage of the proceedings.” Id.

III. Discussion

“Under the doctrine of qualified immunity, ‘government

officials performing discretionary functions[] generally are shielded

from liability [or suit] for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Wade,

13 F.4th at 1225 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). Here, the parties do not dispute that Officers Ermeri and

Plesnik were performing a job-related function and acting in their

discretionary authority during the October 22, 2016, events.

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Accordingly, the burden shifted to Lucibella to establish that the

officers were not entitled to qualified immunity by showing that

(1) taken in the light most favorable to Lucibella, the facts show

“that [the officers] violated a constitutional right and (2) that the

right was clearly established at the time of the alleged violation.”

Marbury v. Warden, 936 F.3d 1227, 1232 (11th Cir. 2019).

Under the clearly established prong, “the dispositive

question is whether the law at the time of the challenged conduct

gave the government official fair warning that his conduct was

unconstitutional.” Wade, 13 F.4th at 1225. “Thus, we consider

what an objectively reasonable official must have known at the

pertinent time and place and ask whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation

[he] confronted.” Id. at 1226 (quotations omitted).

A plaintiff may show that the law was clearly established in

three ways. Patel v. City of Madison, Ala., 959 F.3d 1330, 1343

(11th Cir. 2020). First, a plaintiff can point “to a materially similar

case [that] has already been decided.” Echols v. Lawton, 913 F.3d

1313, 1324 (11th Cir. 2019) (quotation omitted). “Second, if the

plaintiff cannot find a materially similar factual case from the

Supreme Court, our Court, or, in this case, the Supreme Court of

[Florida], a plaintiff can show that a broader, clearly established

principle should control the novel facts in this situation.” Patel, 959

F.3d at 1343 (quotation omitted). This broader principle “must

establish with ‘obvious clarity’ that ‘in the light of pre-existing law

the unlawfulness [of the official’s conduct is] apparent.’” Echols,

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913 F.3d at 1324 (quoting Vinyard v. Wilson, 311 F.3d 1340, 1353

(11th Cir. 2002)). “Third, a plaintiff may rely on the obvious clarity

path, which applies when the official’s conduct lies so obviously at

the very core of what the Fourth Amendment prohibits that the

unlawfulness of the conduct was readily apparent to the official,

notwithstanding the lack of caselaw.” Patel, 959 F.3d at 1343

(quotations omitted).

a. The officers are not entitled to qualified immunity

on Lucibella’s unreasonable search claim

i. Officers Ermeri and Plesnik violated

Lucibella’s Fourth Amendment rights by

executing an unreasonable search

Beginning with Lucibella’s unreasonable search claim,

Officers Ermeri and Plesnik argue that their entry and search of

Lucibella’s curtilage was justified, and therefore lawful, because

exigent circumstances existed. The officers maintain that they

“had an objectively reasonable basis for believing that medical

assistance was needed, that persons were in danger, or both when

they entered [Lucibella’s] back[]yard.” We disagree.

“[W]hen it comes to the Fourth Amendment, the home is

first among equals.” Florida v. Jardines, 569 U.S. 1, 6 (2013). “At

the Amendment’s ‘very core’” is the right of a person “to retreat

into his own home and there be free from unreasonable

governmental intrusion.” Id. (quotation omitted). This protection

extends to a home’s “curtilage,” which is “the area immediately

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surrounding and associated with the home.” Id. (quotation

omitted).

Warrantless searches of a home’s curtilage are

presumptively unreasonable. United States v. Walker, 799 F.3d

1361, 1363 (11th Cir. 2015). This general rule is “subject only to a

few jealously and carefully drawn exceptions.” McClish v. Nugent,

483 F.3d 1231, 1240 (11th Cir. 2007) (quotation omitted). One such

exception is made for “exigent circumstances.” Id. “The exigent

circumstances exception recognizes a warrantless entry by criminal

law enforcement officials may be legal when there is compelling

need for official action and no time to secure a warrant.” United

States v. Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002) (quotation

omitted).

The most urgent of these exigencies—known as the

emergency aid exception—excuses police compliance with the

warrant requirement in order “to protect or preserve life.” Id. at

1335; Kentucky v. King, 563 U.S. 452, 460 (2011). “Under the

‘emergency aid’ exception, . . . ‘officers may enter a home without

a warrant to render emergency assistance to an injured occupant

or to protect an occupant from imminent injury.’” United States

v. Timmann, 741 F.3d 1170, 1178 (11th Cir. 2013) (quoting Brigham

City, Utah, v. Stuart, 547 U.S. 398, 403 (2006)). “In order for the

exception to apply, officers must have an objectively reasonable

belief that someone inside is ‘seriously injured or threatened with

such injury,’ and is in need of immediate aid.” Id. (quoting

Brigham City, 547 U.S. at 403–04). “The officer’s subjective

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motivation is irrelevant.” Id. (quotation omitted). And “[t]he

government bears the burden of demonstrating that the exception

applies.” Id. at 1178–79.

Officer Ermeri contends that the emergency aid exception

justified his entry into Lucibella’s backyard. When Officer Ermeri

entered Lucibella’s backyard without permission and without a

warrant, Lucibella and Wohlfiel were sitting on the patio.

According to Lucibella, no tumultuous scene or chaos existed.

Officer Ermeri did not observe any violence, threatening behavior,

or an injured person. There was nothing to suggest the presence

of illicit or dangerous activity. Indeed, under Lucibella’s version of

the facts, at this point, Officer Ermeri did not see anything that

indicated that this was the house from which the gunshots

originated because Officer Ermeri did not see Lucibella with a

firearm until Officer Ermeri entered the backyard. 5 Indeed,

Sergeant Hallahan and Officer Plesnik had already peered through

the gate and left to continue the investigation elsewhere because

they did not see anything out of the ordinary in Lucibella’s

backyard.

This situation bears none of the typical “indicia of an urgent,

ongoing emergency.” Timmann, 741 F.3d at 1180. Considering

5 We note that whether Officer Ermeri saw the firearm before or after he

entered Lucibella’s backyard is a point that the parties vigorously dispute. At

this stage of the proceedings, we must credit Lucibella’s version of the facts.

See Cantu, 974 F.3d at 1228.

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the circumstances, it was not objectively reasonable for Officer

Ermeri to believe that someone inside of Lucibella’s house or in

Lucibella’s backyard was in danger or in need of immediate aid.

Accordingly, we conclude that under these facts, the emergency

aid exception did not justify Officer Ermeri’s warrantless entry

onto Lucibella’s curtilage.

And we reach the same conclusion with respect to Officer

Plesnik—who also relies on the emergency aid exception—for

largely the same reasons. Soon after Officer Ermeri entered

Lucibella’s property, he radioed Sergeant Hallahan that he located

the weapon, and both Sergeant Hallahan and Officer Plesnik

arrived on scene. Under Lucibella’s version of the facts, the scene

that Officer Plesnik entered was largely the same as the one that

Officer Ermeri first encountered. Although Officer Plesnik now

arrived with the knowledge that there was a firearm on site, the

mere presence of a firearm—without more—did not transform the

non-exigent scene into an exigent circumstance and trigger the

emergency aid exception. Indeed, by the time Officer Plesnik

arrived, Officer Ermeri had already taken the firearm from

Lucibella without incident. Accordingly, under these facts, it was

not objectively reasonable for an officer to believe that an ongoing

emergency existed or that anyone was in need of protection,

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injured, or in danger of imminent injury. As such, we conclude

that Officer Plesnik cannot satisfy the emergency aid exception.6

Without an exception to justify their entry onto and search

of Lucibella’s property, Officers Ermeri and Plesnik’s warrantless

search violated Lucibella’s Fourth Amendment rights.

6 The officers attempt to analogize this case to Holloway, but their argument

is unavailing. In Holloway, officers responded to emergency calls reporting

gunshots and arguing overheard at a mobile home. 290 F.3d at 1332. While

on their way to the scene, the officers received a second dispatch indicating

that a 911 caller reported continuing gunshots and arguing. Id. When they

arrived, the officers found Mr. and Mrs. Holloway on the porch of the mobile

home, and an officer “drew his service weapon as he exited his vehicle” “[d]ue

to the high-risk nature of the 911 call” and instructed the couple “to raise their

hands into view.” Id. Mrs. Holloway did not comply with the officer’s

instructions, prompting the officer to threaten to use his pepper spray. Id.

Eventually, a sergeant who had arrived to provide additional support “stepped

in to secure Mrs. Holloway.” Id. at 1333.

The Holloway circumstances are markedly different from those that

Officers Ermeri and Plesnik encountered. Neither officer even knew which

house the gunfire came from, and Officer Plesnik left Lucibella’s house to

continue searching for the source of the gunfire after observing that nothing

abnormal was occurring in Lucibella’s backyard. Unlike Holloway, where the

officer drew his weapon and threatened to use pepper spray, here, the officers

encountered no threat upon their arrival and had no occasion to draw their

weapons. Indeed, Lucibella obeyed Officer Ermeri’s instructions—unlike Mrs.

Holloway—and relinquished his gun without resistance.

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ii. Lucibella’s right to be free from an

unreasonable search was clearly established

Turning to the second prong of the qualified immunity

analysis, we conclude that the prohibition against warrantless

searches of a home’s curtilage, which is clearly established by the

Fourth Amendment and our caselaw, put Officers Ermeri and

Plesnik on notice that their conduct was unlawful and that no

reasonable officer would have believed that he faced exigent

circumstances that justified acting without a warrant. Patel, 959

F.3d at 1343 (explaining that a plaintiff may establish that the law is

clearly established by pointing to a “broader, clearly established

principle that should control the novel facts in [the] situation”

(quotation omitted)).

“The touchstone of qualified immunity is notice.” Moore v.

Pederson, 806 F.3d 1036, 1046 (11th Cir. 2015). “The violation of a

constitutional right is clearly established if a reasonable official

would understand that his conduct violates that right.” Id. at 1046–

47. As an initial matter, the Fourth Amendment and our caselaw

clearly establish that the warrantless search of a home’s curtilage is

presumptively unreasonable. See Walker, 799 F.3d at 1363. Even

so, we have repeatedly ruled that the emergency aid exception is

met when an officer enters a home “to render emergency

assistance to an injured occupant or to protect an occupant from

imminent injury.” Timmann, 741 F.3d at 1178 (quoting Brigham

City, 547 U.S. at 403). And we have explained that, “[i]n order for

the exception to apply, officers must have an objectively reasonable

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belief that someone inside is seriously injured or threatened with

such injury, and is in need of immediate aid.” Id. (quotation

omitted). The parameters of this exception were well-established

at the time of this incident: “the police [must] reasonably believe

an emergency exists which calls for an immediate response to

protect citizens from imminent danger.” Holloway, 290 F.3d at

1337.

Here, viewing the facts in Lucibella’s favor, the situation

that the officers confronted—two men quietly sitting on a back

patio—bears none of the indicia of an urgent, ongoing emergency.

Indeed, there are no facts indicating that there was an emergency

at all—much less one involving endangerment to life, an injured

person, or even imminent injury. Illustratively, Sergeant Hallahan

and Officer Plesnik left Lucibella’s house after observing that

everything appeared normal. Accordingly, no officer would have

had an objectively reasonable belief that someone “faced an

emergency that justified acting without a warrant.” Missouri v.

McNeely, 569 U.S. 141, 149 (2013). The officers’ decision to

proceed onto Lucibella’s property—without a warrant and without

a justification for a warrantless entry—violated clearly established

law. See Moore, 806 F.3d at 1046.

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b. The officers are not entitled to qualified immunity

on Lucibella’s excessive force claim

i. Officers Ermeri and Plesnik violated

Lucibella’s Fourth Amendment rights by using

excessive force

Turning to Lucibella’s second claim, Officers Ermeri and

Plesnik argue that their use of force against Lucibella was

objectively reasonable, not excessive, and that the amount of force

they used “was well within proportion to the need for application

of force to gain control of Lucibella and effectuate the arrest.” We

disagree.

“The Fourth Amendment’s freedom from unreasonable

searches and seizures encompasses the plain right to be free from

the use of excessive force in the course of an arrest.” Brown v. City

of Huntsville, Ala., 608 F.3d 724, 737 (11th Cir. 2010) (quoting Lee

v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002)). “Determining

whether an officer’s use of force is reasonable ‘requires a careful

balancing of the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.’” Prosper v.

Martin, 989 F.3d 1242, 1251 (11th Cir. 2021) (quoting Graham v.

Connor, 490 U.S. 386, 396 (1989)). “We measure excessive-force

claims under the Fourth Amendment under an objective-

reasonableness standard.” Patel, 959 F.3d at 1338. “That standard

requires us to ask whether the officer’s conduct was objectively

reasonable in light of the facts confronting the officer.” Id.

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(alteration adopted and quotation omitted). In assessing

reasonableness, “we judge the officer’s use of force on a case-by-

case basis from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.” Johnson v. City of

Miami Beach, 18 F.4th 1267, 1272 (11th Cir. 2021).

“Our Fourth Amendment jurisprudence has long

recognized that the right to make an arrest . . . necessarily carries

with it the right to use some degree of physical coercion or threat

thereof to effect it.” Baxter v. Roberts, 54 F.4th 1241, 1268–69 (11th

Cir. 2022). Therefore, during an arrest, “the application of de

minimis force, without more, will not support a claim for excessive

force in violation of the Fourth Amendment.” Id. at 1269.

To balance “the necessity of using some force attendant to

an arrest against the arrestee’s constitutional rights,” the Supreme

Court has directed that we consider (1) the severity of the crime at

issue; (2) whether the individual poses an immediate threat to the

safety of officers or others; and (3) whether the individual is actively

resisting arrest or attempting to evade arrest by flight. Lee, 284

F.3d at 1197–98. We also consider the need for the use of force, the

relationship between the need for force and the amount of force

used, and “the extent of the injury inflicted.” Mobley v. Palm

Beach Cnty. Sheriff Dep’t, 783 F.3d 1347, 1353 (11th Cir. 2015)

(quotation omitted).

We have held that an officer violates the Fourth

Amendment and is denied qualified immunity when he uses

“gratuitous and excessive force against a suspect who is under

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control, not resisting, and obeying commands.” Patel, 959 F.3d at

1339 (quotation omitted).

Construing the facts in the light most favorable to Lucibella,

as we must, we conclude that a jury could reasonably find that the

officers used excessive force during arrest. According to Lucibella,

when the officers approached him, he was peacefully sitting on his

patio. The officers were investigating alleged gunshots in the area

but were not aware of Lucibella committing any crime. When

asked, Lucibella readily surrendered the firearm to Officer Ermeri,

emptied his pockets, and did not attempt to evade arrest. And

although Lucibella admits to angrily poking Officer Ermeri in the

chest in response to Officer Ermeri pushing him, Lucibella

contends that he not otherwise pose any threat to the officers’

safety. Then, without notice, Lucibella claims that Officer Ermeri

grabbed him by the arms and kicked his legs out from under him

so that Lucibella fell face first into the marble floor. According to

Lucibella, this fall knocked him unconscious, broke his glasses, and

caused bleeding, swelling, bruising, and a laceration above his

eyebrow. Then, while he was in an unconscious state, Lucibella

claims that Officer Plesnik performed a “knee drop” on him by

asserting her full weight on his back and broke three of his ribs. 7

7 We emphasize that the parties’ versions of events directly conflict at every

turn. Officer Ermeri contends that Lucibella was “belligerent,” “very

confrontational,” and “recognizably intoxicated” when Officer Ermeri

approached him, and Lucibella disputes each of these assertions and maintains

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20 Opinion of the Court 22-11056

Under this version of events—where Lucibella was not

evading or resisting arrest and posed no threat to the officers—a

jury could reasonably find that Officer Ermeri used unnecessary

and excessive force during arrest when he performed a “botched

leg sweep” with no notice that rendered Lucibella unconscious and

that Officer Plesnik used unnecessary and excessive force during

arrest when she knee dropped Lucibella while he was unconscious,

breaking three of his ribs. See Patel, 959 F.3d at 1339 (explaining

that in cases where an officer uses “gratuitous and excessive force

against a suspect who is under control, not resisting, and obeying

commands,” we have “ruled that the officer violates the Fourth

Amendment and is denied qualified immunity”).

ii. Lucibella’s right to be free from an excessive

use of force was clearly established

Turning to the second prong of the qualified immunity

analysis, under Lucibella’s account of the facts, he can show that

that he and Wohlfiel were peacefully sitting on the patio when Officer Ermeri

entered Lucibella’s backyard. The same goes for the parties’ accounts of the

force used during Lucibella’s arrest. Officer Ermeri maintains that Lucibella

“aggressively” “attempted to walk through” Officer Ermeri, yelled at Officer

Ermeri, grabbed Officer Ermeri behind the head, and scratched Officer Ermeri

before Officer Ermeri restrained Lucibella. Lucibella vehemently denies this

occurred and instead alleges that Officer Ermeri performed a botched leg

sweep on Lucibella with no notice. As explained, we cannot resolve these

factual disputes on summary judgment and are restrained to apply the law to

the facts viewed in the light most favorable to Lucibella.

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the officers violated clearly established law. 8 See Patel, 959 F.3d at

1343 (explaining that a plaintiff can show that the law is clearly

established by showing “that a broader, clearly established

principle should control the novel facts in this situation” (quotation

omitted)).

Lucibella relies on Fils v. City of Aventura, 647 F.3d 1272,

1289 (11th Cir. 2011), to argue that our cases clearly establish that

certain “force is excessive where the suspect is non-violent and has

not resisted arrest.” In Fils, we concluded that the officers should

have known that their conduct clearly violated the plaintiff’s

Fourth Amendment rights when the officers tased the plaintiff

“even though he committed at most a minor offense; did not resist

arrest; he did not threaten anyone; and he did not disobey any

instructions . . . .” 647 F.3d at 1292. We reasoned that the facts in

Fils were “sufficiently similar to the facts of [Priester v. City of

Riviera Beach, Florida, 208 F.3d 919 (11th Cir. 2000)] and [Vinyard

v. Wilson, 311 F.3d 1340, 1353 (11th Cir. 2002)] [such that the

officers] were on notice that their conduct violated [the plaintiff’s

rights].” Id. “In Priester, the [officer] set his attack dog on the

plaintiff even though the plaintiff had submitted to the [officer’s]

8 Although the district court did not decide whether the law was clearly

established as to Lucibella’s excessive force claim, it ultimately denied

qualified immunity to the officers. Where a district court does “not state the

facts upon which it based its decision to deny summary judgment, we conduct

our own review of the record to determine what facts the district court likely

assumed.” Perez, 809 F.3d at 1218.

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22 Opinion of the Court 22-11056

every command and was laying flat on the ground.” Id. (citing

Priester, 208 F.3d at 927). And in Vinyard, “the [officer] sprayed

pepper spray into the eyes of a non-violent plaintiff, who was

handcuffed safely in the back seat of the [officer’s] police car, and

had threatened no one.” Id. (citing Vinyard, 311 F.3d at 1347–48).

We concluded that “[t]hese two cases clearly establish[ed] that such

force is excessive where the suspect is non-violent and has not

resisted arrest.” Id. “While these cases [were] not identical to [the

Fils plaintiff’s] case,” we explained that “they need not be

‘materially similar’; the precedent need only provide the [officers]

with ‘fair warning.’” Id. (quoting Hope v. Pelzer, 536 U.S. 730, 741

(2002)).

Accepting Lucibella’s version of the facts at this stage, a jury

could reasonably find that Officer Ermeri violated this principle.9

9 The Supreme Court and our Court have explained that “officials can still be

on notice that their conduct violates established law even in novel factual

circumstances,” Hope, 536 U.S. at 741, but cautioned that clearly established

law should not be defined “at too high a level of generality,” City of

Tahlequah, Okla. v. Bond, 142 S. Ct. 9, 11 (2021). See Mercado v. City of

Orlando, 407 F.3d 1152, 1159–60 (11th Cir. 2005) (explaining that “a broader,

clearly established principle [can] control the novel facts in [a] situation” and

relying on the broad principle that “[u]sing deadly force in a situation that

clearly would not justify its use is unreasonable under the Fourth

Amendment” to conclude that an officer was not entitled to qualified

immunity where the officer pointed to no “controlling case law” with

materially similar facts). Accordingly, in Fils—which involved the use of a

taser—we concluded that the law was clearly established based on cases

involving factually distinguishable circumstances (a dog attack and pepper

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Namely, a jury could reasonably find that Lucibella acted in a non-

violent manner, did not resist arrest, 10 and obeyed Officer Ermeri’s

commands to turn over the firearm and empty his pockets and that

Officer Ermeri used unprovoked and excessive force when he

grabbed Lucibella’s arms and threw him on the ground without

notice. See Fils, 647 F.3d at 1292; see also Patel, 959 F.3d at 1343

(explaining that a jury could reasonably find that an officer violated

clearly established Fourth Amendment law if it believed the

plaintiff’s version of events—under which the plaintiff was not

resisting and was complying with the officer’s commands when the

officer executed a leg sweep on the plaintiff). Thus, at this stage,

Lucibella satisfies his burden to show that Officer Ermeri violated

clearly established law.

And the same goes for Officer Plesnik. A jury could find that

Officer Plesnik used excessive force against a suspect who was non-

violent and had not resisted arrest when she performed a knee drop

spray). Fils, 647 F.3d at 1292; see also Hope, 536 U.S. at 743 (explaining that

“[t]he reasoning, though not the holding” in a prior case may “sen[d] the same

message to reasonable officers in that Circuit”). Likewise, we apply the rule

clearly established in Fils to this case.

10 We note that although Lucibella acknowledges that he poked Officer

Ermeri two or three times in the chest, Lucibella maintains that he did not act

violently or resist arrest when he poked Officer Ermeri’s chest. At the

summary judgment stage, we must “view all evidence and factual inferences

in the light most favorable to” Lucibella and conclude that a jury could

reasonably find that Lucibella was not using violence or resisting arrest when

he poked Officer Ermeri. Perez, 809 F.3d at 1217.

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24 Opinion of the Court 22-11056

on Lucibella—while he was lying on the ground unconscious—

with such force that she broke three of his ribs and he was rendered

bedridden. See Fils, 647 F.3d at 1292.

Considering the circumstances in this case and crediting

Lucibella’s version of events and the severity of his injuries, we

conclude that Officers Ermeri and Plesnik had fair warning that use

of excessive force on a suspect when that “suspect is non-violent

and has not resisted arrest” violates the Fourth Amendment but

nonetheless violated this clearly established principle. Fils, 647 F.3d

at 1292. Accordingly, we conclude that summary judgment was

properly denied to both officers at this stage in the proceedings.

IV. Conclusion

Although we affirm the district court, our holding does not

mean that the officers will ultimately be precluded from enjoying

qualified immunity. See Perez, 809 F.3d at 1223. Numerous

disputed issues of material fact exist—issues that we cannot resolve

but that a factfinder may ultimately resolve in the officers’ favor.

Id.; see Smith v. Mattox, 127 F.3d 1416, 1417 (11th Cir. 1997) (“This

court . . . avoids all credibility judgments.”). Accordingly, at this

stage of litigation, we must view the facts only in the light most

favorable to Lucibella and affirm the district court’s denial of

summary judgment.

AFFIRMED.