Judge Says Deputies Acted Properly In Rush Guitarist Fracas

By John Henderson, Naples Daily News, April 11, 2007

Collier County sheriff's deputies didn't use excessive force in subduing an international rock star at the Ritz-Carlton, Naples, on New Year's Eve 2003, a federal judge has ruled.

U.S. District Judge Paul A. Magnuson has ruled against the civil claims brought against Collier deputies by Alex Zivojinovich. He is known on stage as "Alex Lifeson," lead guitarist for the rock group Rush.

Deputies used a high-voltage Taser stun gun on Alex and his son, Justin, in the altercation in the stairwell of the hotel. They also broke Alex's nose.

Alex Zivojinovich, his son, Justin, and daughter-in-law, Michelle, had filed suit, alleging that the deputies violated their civil rights based on "illegal detention" and "excessive force."

But Magnuson, in his ruling issued through the U.S. District Court Middle District of Florida's Fort Myers division, didn't agree.

The judge ruled that the deputies' actions "we're objectively reasonable."

"In sum, the plaintiffs have not established that any of the defendant deputies violated their constitutional right to be free of excessive force," Magnuson wrote in his recent ruling.

The judge ruled that the deputies are entitled to qualified immunity on all of the excessive force claims.

Magnuson's ruling means the trial that was slated to occur this month won't take place.

The judge also ruled that the Ritz hotel and its security employee, Frank Barner, weren't negligent in the case.

Zivojinovich's lawyer, Michael McDonnell, had argued that hotel security simply should have asked Justin to leave before calling in Collier deputies.

Magnuson ruled that under state statute, the hotel wasn't obligated to take that step.

And the judge ruled that Barner didn't use excessive force on Justin Zivojinovich when he handcuffed him with Deputy Christopher Knott's permission.

Hotel spokesman Bruce Seigel said Wednesday he had no comment about the ruling or case.

In April 2005, Alex Zivojinovich and his son escaped what could have been a lengthy prison sentence when they reached a plea deal on the criminal charges. Their deal called for a year of probation.

Zivojinovich was facing two felony battery-on-a-law-enforcement officer charges that each carried a potential five-year prison sentence.

Zivojinovich and his son were guests at the bash at the Ritz-Carlton, ringing in 2004, when the skirmish with deputies occurred.

Justin Zivojinovich agitated hotel security when, without permission, he twice got up on a platform where the house band had been performing.

Security called deputies, who escorted Justin out of the hotel with Alex Zivojinovich following behind.

Witnesses who saw what happened in the stairwell gave conflicting statements. There was no security camera recording.

Alex Zivojinovich was accused of pushing deputy Amy Stanford down a stairwell and spitting his blood on deputy Knott.

Alex Zivojinovich had his nose broken by Deputy Scott Russell, who leaned over a railing and struck him in the face as Zivojinovich was charging up the stairwell of the hotel to go to the aid of his son, who was being zapped with a stun gun by deputies.

Despite the recent ruling, the Zivojinoviches aren't ready to give up on their civil case.

Zivojinovich's Naples defense lawyer, Michael McDonnell, said he plans to appeal.

The deputies' attorney, Fort Lauderdale attorney Richard Giuffreda, said he believes this judge's ruling will be affirmed by the 11th Circuit Court of Appeals in Atlanta, which is a court one notch down from the U.S. Supreme Court.

Magnuson's ruling also dismissed "without prejudice" deputy Knott's battery claim against Alex Zivojinovich, which means it can be revised and filed again.

"I have to refile it (that case) in state court. It is going to proceed forward," Giuffreda said.

Stanford, who suffered injuries after tumbling down the stairwell with Alex Zivojinovich during the scuffle, also has a pending lawsuit against him in state court.

"It's been very stressful for them (the deputies) that they have been accused of these things falsely, and they are very happy this is behind them, at least at this point," Giuffreda said.