SCOTT RAY ASHER and KIMBERLY DAWN ASHER v. Pacific Legends West Condminium Association;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTT RAY ASHER and KIMBERLY
DAWN ASHER,
Plaintiffs - Appellants,
v.
PACIFIC LEGENDS WEST
CONDMINIUM ASSOCIATION; et al.,
Defendants,
and
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT; et al.,
Defendants - Appellees.
No. 10-17118
D.C. No. 2:08-cv-00914-RCJ-RJJ
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Argued and Submitted November 14, 2011
San Francisco, California
FILED
DEC 22 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable Donald E. Walter, Senior District Judge for the U.S.**
District Court for Western Louisiana, sitting by designation.
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Before: NOONAN and BEA, Circuit Judges, and WALTER, Senior District
Judge.**
Scott Ray Asher and Kimberly Dawn Asher appeal summary judgment in
favor of the Las Vegas Metropolitan Police Department for the wrongful arrest of
Scott Asher during the investigation of a mailbox theft.
The district court erred in finding that the officers had probable cause to
arrest Scott Asher. There was no evidence that the two residents, who had already
called in the media, had any first-hand observation of Scott Asher separate from
the surveillance video. The officers had a duty to independently investigate their
allegations. See Fuller v. M.G. Jewelry, 950 F.2d 1437, 1444 (9th Cir. 1991). The
poor quality of the surveillance video made identification based on it improbable.
One officer said he’d seen a black jacket in the Asher residence, but after a search
warrant was executed, none was found. The actual thief’s surprise at seeing the
surveillance camera made it unlikely that he was a resident who regularly picked
up his mail in the mail room.
Probable cause was lacking. The same facts establish that the officers are
not entitled to qualified immunity, a privilege forfeited by “the plainly
incompetent.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

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We affirm the other rulings of the district court.
Each party shall bear its own costs.
AFFIRMED IN PART, REVERSED AND REMANDED FOR TRIAL.

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