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Aisenbergs' Suit To Go On, Judge Says

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By THOMAS W.  KRAUSE | The Tampa Tribune

Published: March 12, 2005

TAMPA — A lawsuit against Hillsborough County sheriff's deputies, filed by a couple who once were under investigation in the disappearance of their baby daughter, will continue despite the deputies' contention that law enforcement officers cannot be sued.

In a ruling Friday, Hillsborough Circuit Judge William Levens agreed with the deputies' attorneys that law enforcement investigators are immune from the suit if they are doing their jobs. They will lose that immunity, however, if they broke the law — whether through incompetence or on purpose — the judge ruled. That has not been determined, so for now the case against the deputies will go forward, the judge ruled.

Steven and Marlene Aisenberg were investigated and prosecuted on charges that they lied to investigators about the 1997 disappearance of their daughter. The charges were dropped and federal prosecutors conceded they wrongfully prosecuted the couple.

The Aisenbergs sued the sheriff's office, the deputies and federal prosecutors. The case against the prosecutors was thrown out last year after a federal judge determined they could not be sued. Last month, sheriff's attorneys tried to convince a circuit judge that they, too, were immune and their case should be dismissed, as well.

In the lawsuit, which claims malicious prosecution and conspiracy, the Aisenbergs say the deputies lied to a judge so he would approve placement of a listening device in the couple's house.

Thomas Gonzalez, an attorney for the deputies, said he will continue to show the judge that the deputies did not break the law during their investigation and, therefore, cannot be sued. Whether the case goes to court or is thrown out, Gonzalez said, the deputies will be vindicated.

The Aisenbergs are "absolute, 180-degrees wrong about these individuals," Gonzalez said.

Also in Friday's ruling, the judge threw out a section of the lawsuit against the sheriff's office, but the agency likely will be named again in the suit.

Levens determined that the agency is not immune from lawsuits but the Aisenbergs did not have enough evidence to show that its polices or training led to their rights being violated.

Todd Foster, the Aisenbergs' attorney, said that even though the sheriff's office was dismissed as a defendant, he would provide the judge with more information and refile that part of the suit within 30 days. Even though the agency has been removed temporarily, the ruling was significant, Foster said.

"We're encouraged by this," he said. "The sheriff's office said, "As a matter of law, we're immune from suit.' The judge said, "As a matter of law, no you're not.' "

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