By Steve Plunkett
A federal judge has dismissed six counts of former Ocean Ridge Vice Mayor Richard Lucibella’s police brutality lawsuit — including two specifically targeting the town — but ruled his claim that police officers illegally entered his backyard will be decided by a jury.
“Taking Plaintiff’s allegations as true, Defendants have not met their burden at this stage to show the existence of exigent circumstances sufficient to justify … the warrantless entry onto Plaintiff’s curtilage,” U.S. District Judge Aileen M. Cannon wrote in her Nov. 23 order.
Jurors will also consider two more counts that defense attorneys left out of their motion to dismiss — whether officers Richard Ermeri and Nubia Plesnik battered Lucibella as they arrested him on Oct. 22, 2016, and whether they used excessive force.
The “exigent circumstances” exception, Cannon wrote, applies “when there is a compelling need for official action but no time for law enforcement to secure a warrant, and it includes situations involving … ‘the need to protect or preserve life’ in an emergency situation.”
Case law defines curtilage, she said, as “an area near and closely associated with the home; at the founding, it was considered part of the house for Fourth Amendment purposes” protecting citizens against unreasonable searches.
Cannon scheduled the trial for March 28 at the federal courthouse in Fort Pierce.
Meanwhile a separate civil lawsuit filed by Plesnik, who has married and is now known as Nubia Savino, is set for a jury trial in Palm Beach County Circuit Court in May. The police officer alleges Lucibella battered her during the arrest.
Lucibella filed his lawsuit against Ermeri, Plesnik and the town on Oct. 20, 2020, in the Circuit Court. Because he alleged Fourth Amendment violations the defendants quickly had the case transferred to the U.S. District Court.
The lawsuit centers on Lucibella’s arrest five years ago. Plesnik, Ermeri and Sgt. William Hallahan, who has since retired, went to Lucibella’s home that night after neighbors reported hearing gunfire. They confiscated a .40-caliber handgun and found five spent shell casings on the patio.
One of the officers’ supervisors, Lt. Steven Wohlfiel, was with Lucibella; police later determined the handgun belonged to him.
During the arrest, Lucibella was pinned to the patio pavers and suffered injuries to his face and ribs. Before he was taken to the ground he forcefully poked Ermeri’s chest with his finger.
He was charged in state court with battery on a police officer and resisting the officer with violence, both felonies, as well as a misdemeanor count of using a firearm while under the influence of alcohol. The firearm charge was dropped at the beginning of the criminal trial; on Feb. 1, 2019, the jury found Lucibella not guilty of the felonies but guilty of the lesser included offense of misdemeanor simple battery.
Plaintiff’s conviction a factor
In her ruling in federal court, Cannon said because Lucibella was convicted of simple battery he could not pursue two counts of false arrest against Ermeri and Plesnik. In fact, she wrote, Lucibella in another filing had conceded that the conviction barred the false arrest claims.
Cannon also dismissed two counts of malicious prosecution against the officers, again partly because of the battery conviction and because Lucibella was not the victim of a Fourth Amendment-protected unreasonable seizure.
Ocean Ridge Police Chief Richard Jones said he understood Cannon’s dismissal of the claims against the town to mean the town is no longer separately liable to pay damages.
“The ruling further allows the town’s insurance carrier to actually go after Lucibella to collect legal fees paid by the town. At this time, those fees are estimated to exceed $150,000,” Jones said.
The case against Emeri and Plesnik remains ongoing, he noted. “The town is currently defending the officers since it does not appear that they did anything wrong in this case,” Jones said.
The two counts against Ocean Ridge alleged that the town contributed to malicious prosecution of Lucibella through the actions of then-Police Chief Hal Hutchins by failing to train, investigate or discipline Plesnik and Ermeri, and that the officers used excessive force against him while acting for the town.
Cannon used similar reasoning to dismiss the malicious prosecution claim against the town as she did for the claim against the officers, “because Plaintiff does not allege a seizure pursuant to legal process under the Fourth Amendment.”
The judge also ruled that Lucibella’s excessive force claim against the town “appears to allege … liability based on a failure to train theory, but Plaintiff’s allegations are devoid of any facts to support such a theory.”
Cannon set a deadline of Dec. 29 for the parties to file all pretrial motions.
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