Richard John Lucibella v. Richard Ermeri, et al.

[DO NOT PUBLISH]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,
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 1 of 24

-- 1 of 24 --

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 W ILSON, B RANCH, and L UCK , 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.
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 2 of 24

-- 2 of 24 --

22-11056 Opinion of the Court 3
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.
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 3 of 24

-- 3 of 24 --

4 Opinion of the Court 22-11056
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.
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 4 of 24

-- 4 of 24 --

22-11056 Opinion of the Court 5
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.
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 5 of 24

-- 5 of 24 --

6 Opinion of the Court 22-11056
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
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 6 of 24

-- 6 of 24 --

22-11056 Opinion of the Court 7
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.
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 7 of 24

-- 7 of 24 --

8 Opinion of the Court 22-11056
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.
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 8 of 24

-- 8 of 24 --

22-11056 Opinion of the Court 9
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,
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 9 of 24

-- 9 of 24 --

10 Opinion of the Court 22-11056
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
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 10 of 24

-- 10 of 24 --

22-11056 Opinion of the Court 11
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
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 11 of 24

-- 11 of 24 --

12 Opinion of the Court 22-11056
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.
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 12 of 24

-- 12 of 24 --

22-11056 Opinion of the Court 13
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,
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 13 of 24

-- 13 of 24 --

14 Opinion of the Court 22-11056
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.
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 14 of 24

-- 14 of 24 --

22-11056 Opinion of the Court 15
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
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 15 of 24

-- 15 of 24 --

16 Opinion of the Court 22-11056
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.
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 16 of 24

-- 16 of 24 --

22-11056 Opinion of the Court 17
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.
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 17 of 24

-- 17 of 24 --

18 Opinion of the Court 22-11056
(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
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 18 of 24

-- 18 of 24 --

22-11056 Opinion of the Court 19
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
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 19 of 24

-- 19 of 24 --

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.
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 20 of 24

-- 20 of 24 --

22-11056 Opinion of the Court 21
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.
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 21 of 24

-- 21 of 24 --

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
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 22 of 24

-- 22 of 24 --

22-11056 Opinion of the Court 23
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.
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 23 of 24

-- 23 of 24 --

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.
USCA11 Case: 22-11056 Document: 33-1 Date Filed: 04/07/2023 Page: 24 of 24

-- 24 of 24 --