appellants opening brief file-stamped s

8/3/2019 Appellants Opening Brief File-stamped s

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Case No. 10-17118

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SCOTT RAY ASHER and KIMBERLY )

DAWN ASHER, )

)

Plaintiffs - Appellants, )

) APPELLANTS

v. ) OPENING BRIEF

)

PACIFIC LEGENDS WEST )CONDOMINIUM ASSOCIATION; et al. )

)

Defendants, )

)

and )

)

LAS VEGAS METROPOLITAN )

POLICE DEPARTMENT; et al., )

)

Defendants - Appellees. )

___________________________________ )

Appeal from an Order issued by the Honorable Robert C. Jones of the United

States District Court, District of Nevada, Southern Division

Robert J. Kossack, Esq.

KOSSACK LAW OFFICES4535 W. Sahara Ave., Suite 101

Las Vegas, Nevada 89102

(702) 253-7068

Attorney for Appellants Scott Ray Asher

and Kimberly Dawn Asher

Case: 10-17118 01/18/2011 Page: 1 of 43 ID: 7616359 DktEntry: 11


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TABLE OF CONTENTS

TABLE OF CONTENTS..................................................................................... i

TABLE OF AUTHORITIES............................................................................... ii

JURISDICTIONAL STATEMENT.................................................................... iv

ISSUES ON APPEAL......................................................................................... vi

STATEMENT OF FACTS.................................................................................. 1

SUMMARY OF LEGAL ARGUMENT............................................................. 24

LEGAL ARGUMENT......................................................................................... 25

Standard of Review................................................................................... 25

The Metro Officers Arrested Scott Without Probable Cause................... 26

The Metro Officers Have No Qualified or Discretionary Immunity........ 30

The Ashers Claims of False Arrest and False Imprisonment MustRemain....................................................................................................... 30

The Ashers Claim of Intentional Infliction of Emotional Distress

Must Remain.............................................................................................. 30

CONCLUSION.................................................................................................... 31

CERTIFICATION PURSUANT TO FED. R. APP. P. 32(a)(7)(C) AND

CIRCUIT RULE 32-1................................................................................ 32

CERTIFICATE OF ELECTRONIC FILING...................................................... 33

CERTIFICATE OF MAILING............................................................................ 34



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TABLE OF AUTHORITIES

Constitutional provisions

Fourth Amendment............................................................................................24, 25

Fourteenth Amendment...............................................................................24, 25, 26

Statutes

28 USC 1983.............................................................................................26, 29, 31

Cases

Baptiste v. J.C. Penny Co., 147 F.3d 1252, n. 8 (10 Cir. 1998)..............................27

Brass v. County of Los Angeles, 10 Fed.Appx. 412, 414

(9th Cir. 2001)...............................................................................................28

Butler v. Elle, 281 F.3d 1014, 1021 (9th Cir. 2002)................................................30

Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1489

(9th Cir. 1996)...............................................................................................26

Franks v. Delaware, 338 U.S. 154, 155-56, 98 S.Ct. 2674 (1978).........................26

Fuller v. M.G. Jewelry, 950 F.2d 1437, 1444 (9th Cir. 1991)................................27

Griffin v. California, 380 U.S. 609, 616, 85 S.Ct. 1229 (1960)..............................28

Lee v. City of Los Angeles, 250 F.3d 668, 685 (9th Cir. 2001)...............................26

Maryland v. Pringle, 540 U.S. 366, 371 (2003)......................................................30

Nelson v. City of Las Vegas, 99 Nev. 548, 554,

665 P.2d 1141, 1145 (1983)..........................................................................31



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TABLE OF AUTHORITIES, CONT.

Cases, cont.

Oliver v. Keller, 289 F.3d 623, 626 (9th Cir. 2002)................................................25

United States v. Gibson, 19 F.3d 1449, 1451 (C.A.D.C. 1994)........................26, 28

Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982)........................25



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v

JURISDICTIONAL STATEMENT

Appellants, Scott Ray Asher and Kimberly Dawn Asher (the Ashers),

originally filed their Complaint against Appellees, Las Vegas Metropolitan Police

Department; Officer R. Orth, P#6475; Officer G. McGhie, P#2883 and Officer J.

Destito, P#4056 (the Metro defendants) and Pacific Legends West

Condominium Association; Toni Weber and Tammy Lynn Ernst (the

Condominium Association defendants) , in the Eighth Judicial District Court,

Clark County, Nevada. Along with state tort claims, the Ashers made a claim

against the Metro defendants pursuant to 42 USC 1983.

The Metro defendants removed the Ashers case to the United States

District Court, District of Nevada (the federal District Court), pursuant to

28 USC 1441, as the federal District Court had jurisdiction to hear the Ashers

Complaint pursuant to 28 USC 1331.

The United States Court of Appeals for the Ninth Circuit has jurisdiction to

hear this appeal pursuant to 28 USC 1291.

The federal District Court dismissed the Metro defendants by granting a

motion for summary judgment on March 18, 2010, and the date of the Judgement

granting the Metro defendants summary judgment was issued on March 18, 2010.



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The federal District Court later dismissed the Ashers suit against the

Condominium Association defendants by stipulation of the parties after a

settlement was reached, and the Order for Dismissal with Prejudice was filed on

August 24, 2010.

The Ashers then filed a Notice of Appeal pursuant to Federal Rule of

Appellant Procedure 3 within the time prescribed by Federal Rule of Appellant

Procedure 4 on September 22, 2010, within 30 days of the final Order of Dismissal

disposing all the parties claims before the federal District Court.



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ISSUES ON APPEAL

1. Did the Metro officers have an obligation to view the same videos as the

witnesses to come to their independent conclusion of whether the

appearance of the burglar on the surveillance video matched the appearance

of Scott Asher? (Yes.)

2. Did Officer R. Orth give false information in support of his application for a warrant to

search the Asher condominium in violation of Scott Ashers Fourth Amendment rights?

(Yes.)

3. Was the fact that Scott Asher exercised his right not to speak to the police without his

attorney present improperly used by the police to help establish probable cause under a

totality of circumstances test for the issuance of a search warrant of the Asher residence a

violation of Scott Ashers Fifth Amendment rights? (Yes.)

4. In consideration of the graininess of the surveillance video and all the obvious differences

between the appearance of the suspect seen on the surveillance video and Scott Asher was

there reasonably trustworthy information sufficient to warrant a prudent police officer to

believe that Scott Asher had committed the offense of burglary? (No.)

5. Did the Metro officers making up false stories to secure the search warrant, not letting

Scott Asher go to the bathroom and making him wet his pants then laughing about it,

creating needless destruction to the Ashers property when executing the search warrant,

and falsely telling the booking officer at the jail that Scott had been unruly and pissed



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himself, so Scott would be placed in the drunk tank and need to sleep on the floor for

two days under a bench in his urine soaked clothes until the time of his arraignment

intentional infliction of emotional distress? (Yes.)



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STATEMENT OF FACTS

On October 22, 2007, the mailbox room at the Pacific Legends West

Condominiums (Pacific Legends) was burglarized, and the incident was

recorded by a surveillance camera. As appears the still snapshot taken from the

surveillance video and reprinted in the body of this brief [Excerpt of Record

(EOR) 232], the face of the burglary suspect shown on the video is too grainy to

be identified as any one particular person. The burglar was wearing a baseball

style cap, black or dark in color with a large, light-colored, badge-shaped insignia

on the front, white or light colored air holes, a white or light-colored button on the

top and no insignia on the back. (EOR 232-234; EOR 235-236, 3-4)

The burglars cap was no match to the Heads-Up Poker baseball cap worn

by Appellant Scott Ray Asher (Scott) which was seized by the police as appears

. . . .



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in the excerpts and reprinted in the body of this brief. (EOR 235-236, 3-4;

EOR 241-243)

The Appellee police officers of the Las Vegas Metropolitan Police

Department (Metro), Officer R. Orth (Orth), Officer G. McGhie (McGhie)

and Officer J. Destito (Destito) (the Metro officers) seized Scotts Heads-Up

baseball cap from the condominium rented by Scott and his wife, Appellant

Kimberly Dawn Asher (Kimberly), and Orth claimed in his Application and

Affidavit for Search Warrant that McGhie and Destito immediately recognized it

as the cap worn by the burglar. (EOR 215-216) Based on hearsay information

received from McGhie and Destito, Orth falsified his Arrest Report and his

Application and Affidavit for Search Warrant because Scotts Heads-Up Poker

baseball cap obviously differed from the burglars baseball because (1) the front

logo on Scotts Heads-Up Poker baseball cap did not match the front logo of the

burglars baseball cap, (2) Scotts Heads-Up Poker baseball cap had an insignia on



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the back of it, and there was no insignia on the back of the burglars baseball cap

and, (3) Scotts Heads-Up Poker baseball cap had black air vents and a black

button on top, and the burglars baseball cap had white (or light colored) air holes

and button on top.

When McGhie and Destito first questioned Scott, they were allowed into the

Ashers condominium and began to look around, but Scott denied them permission

to search. (EOR 236, 6)

The police had been called because Scott had walked through the Pacific

Legends mailbox room to get his mail on October 24, 2007, and one of the Pacific

Legends Homeowners Association Board members, Tammy Lynn Ernst (Ernst)

irrationally called the Las Vegas Metropolitan Police Department (Metro) and

told the 911 operator,

I have a video of the person that did it. I now know who that person

is. I IDd him off the video...the person is in his apartment in our

complex. He does live hear. I know that unit number and he is

home,...we have the news media here taking the story...and is it

possible to come with a search warrant to fingerprint the whole thing?

Because this is the guy, and weve got him on video...I want him

caught so bad like you cant believe it. (EOR 168; EOR 236)

Ernst claimed Scott looked the same as the burglar when comaring the video

of Scott walking through the mailbox room with the video of the burglar walking

. . . .



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through the mailbox room, but Scott was significant larger than the burglar, had a

different gait and had a lighter complexion. (EOR 237, 9)

In discovery, photos were taken from the same location as the surveillance

camera of Scott in the mailbox room as Scott stood in the same locations as the

burglar, and side by side comparisons were made. Further, side by side

photographs comparing the burglary video and the dry run video taken by the

television station which Ernst and the Metro defendants claim they viewed to

come to their conclusion were also made showing that not only were Ernst and the

Metro defendants wrong, but their conclusions were absurd. (EOR 232, 9)

As can be seen from the in the excerpts of record and reprinted in the body

of this brief, the top of Scotts head lines up with the top of the row of mailboxes

which is at least five inches higher than the height of the burglar. Scott also has

. . . .



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sideburns as he did at the time of the incident, and the burglar does not.

(EOR 237, 9; EOR 245; EOR 246)

At the time of the incident, Scott did not own a pair of white tennis shoes

which explains why none were found in the Ashers condominium. The shorts

Scott is wearing in the photo of him taken during discovery are similar to the ones

he was wearing as he passed through the mailbox room on the day in question, and

they are shorter than the shorts worn by the burglar. (EOR, 237, 9)

The Metro officers also seized another baseball cap found in the Ashers

condominium, not the one the Metro officers claimed was the same as the one

worn by the burglar, which was also no match as show in the excerpts of record

(EOR 237, 10; EOR 247-249) and reprinted in the body of this brief.

Again, the logo on the front of Scotts Philadelphia Flyers baseball cap was

different than that worn by the burglar. Scotts Philadelphia Flyers baseball cap

had an insignia on the back whereas the burglars baseball cap did not. Scotts



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Philadelphia Flyers baseball cap had black air vents and button on top, and the

burglars baseball cap had white (or light colored) air holes and button on top.

(EOR 237, 10)

A television news crew attempted to recreate what was viewed by the

surveillance camera as people walked in and out of the mailbox room, and

according to Ernst, she and fellow Pacific Legends board member, Karen Toni

Weber (Weber), watched the footage of the medias dry run film and compared

it with the surveillance video and, according to Ernst, It looked like the same

person. (EOR 157, p. 19). As can be seen in a comparison of stills taken from

the surveillance film and the medias dry run film contained in the excerpts of

record (EOR 250-254) and reprinted in the body of this brief, Scott is

considerably taller than the burglar, walks more erect and has a shorter walking

pace. (EOR 238, 11)



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The backpack the Metro defendants seized from the Ashers condominium

which belonged to their son did not match the backpack the burglar used to stash

the stolen mail. As can be seen in the excerpts of record (EOR 238, 12;

EOR 255-256) and reprinted in the body of this brief, the Ashers sons backpack

(shown in the clearer pictures) is not the same shape, does not have the same

insignia and is two-town in color, and as can be seen, and more discernable by

viewing the actual video surveillance video (EOR 167), the burglar is stuffing mail

into his backpack through a zipper top, but the Ashers sons backpack has a

drawstring enclosure. (EOR 238, 12; EOR 256).

The police report reads as follows,

On 10-22-07 at approximately 0517 hours, per video

surveillance, a white male adult wearing a black baseball cap with a

white logo on the front along with a black jacket with a collar and

dark colored shorts entered the enclosed mail room at the Pacific

Legends Condominium Complex at 1830 N. Buffalo Las Vegas, NV89128. The white male also had a mustache and goatee. While inside

the mail room the subject looked up to the ceiling at the video

. . . .



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surveillance camera and quickly turned away and kept his head down

as if trying to conceal his identity. The subject looked around the

mail room for a few moments then exited.

Approximately 2 minutes later a white mail subject withidentical physical descriptors wearing the same black baseball cap

with a white logo, an unknown type mask, a black jacket, dark shorts,

and white tennis type shoes carrying a dark colored backpack entered

the mail room. The suspect removes a long silver pry tool and pried

open the main door to the mailboxes, exposing several individual

mailboxes. The suspect then removed numerous pieces of mail and

placed them in his backpack. After removing the mail, the suspect

moved to the next set of mailboxes closest to the rear of the room and

again pried the main door to a group of mailboxes exposing several

individual mailboxes. The suspect removed more pieces of mail and

concealed them in his backpack. The suspect then exited the mail

room. (EOR 258)

The police report goes on to state,

On 10-24-07 at approximately 1200 hours Pacific Legends

property Management was speaking to the news media about the

burglary in front of the mail room. The management observed a

white male subject who they immediately recognized as the subjectfrom video surveillance who burglarized the mail room on 10-22-07.

The subject entered the mail room and went to mailbox #2071 and

used a key to retrieve mail. After observing the mail box number the

management identified the subject as living in building #12 unit

#2071. Management then called police. (EOR 257-238)

The white male turned out to be Scott, but Ernst and Weber, the

management mentioned in the report (EOR 155, p. 9) did not immediately

[recognize Scott] as the subject from the video surveillance who burglarized the

mail room as written in the report.



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The date of the break-in was on October 22, 2007, which is a Monday. The

following day at the Tuesday meeting of the Pacific Legends Board of Directors

open to both condominium owners and renters, the people in attendance were

asked if the face on the video looked familiar to anybody, and no response was

received from the 18 to 25 people in attendance. (EOR 155-156, pp. 12-13;

EOR 135, p. 11-12). The Ashers had been leasing their condominium for almost

five months at the time. (EOR 238, 15) Considering that the film of the burglar

is too blurry to be identified as any one particular person, it would not be

surprising that no one could identify Scott or anyone else living at the complex as

the suspect.

Not previously receiving any satisfaction from the police or the postal

service (EOR 155, pp. 10-11), Ernst call the television news media who responded

to the scene. (EOR 156, p. 15; EOR 135, pp. 11-12). Ernst admitted in her

Answers to Interrogatories and at her deposition that she could not identify Scott

as the burglary suspect; at best, Ernst could only say that the burglar and Scott had

similar characteristics. (EOR 261-262; EOR 161, p. 35)

Although the transcript of Ernsts 911 call to the police (which the Metro

officers did not have available to them at the time they investigated the crime)

. . . .



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causes Ernsts interrogatory answers and deposition testimony to come into

question, Ernst claims she did not make a positive identification.

Ernsts identification was made based on her comparison of the surveillance

video with the medias dry run video of Scott picking up his mail. According to

Ernst, they looked similar in those videos, and thats what I was going by.

Period. (EOR 161, p. 36, ll. 1-5) In deposition, Ernst admitted she could not

identify the person in the video. (EOR 161, p. 35) Scott also did not hide his face

from the cameras or perform any actions similar to the burglar. (EOR 238-239,

18). He simply retrieved his mail.

Ernsts opinion of similar characteristics was in a word, reactionary, and it

was not objectively made in consideration of Scotts different gait, different hat,

different footwear (sandals instead of sneakers), and slightly different shorts

(Scotts shorts being shorter than those worn by the burglar).

Weber could not identify Scott as the burglar, and did not identify Scott to

the police as the suspect in the surveillance video. (EOR 265, Ans. 3) The most

Weber could say in deposition is that she had her suspicions, (EOR 138, p. 22,

p. 23, ll. 2-3), and Weber did not feel Scott was the same height or weight or that

he was wearing the same hat. (EOR 139, p. 28). Weber testified she had no

intention of Scott being arrested, and she could not identify Scott from a blow-up



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of the still shot of the burglar as shown in the surveillance video. (EOR 140,

pp. 29-32).

Ernsts and Webers suspicions and sort of identifications of Scott as the

mailbox burglar were solely based on watching the surveillance video and

comparing it with the dry run video taken by the television new crew, not from

their direct observation. (EOR 155, p. 9). They did not immediately recognize

Scott as the mailbox burglar. According to Weber, when Scott walked out of the

mailbox room, she does not recall Ernst saying, Thats our guy. (EOR 146,

p. 55; EOR 157, p. 18).

The Metro defendants were also shown the two videos, and Ernst merely

said, This person looks the same to me. (EOR 158, p. 21). Of primary

importance, and what is critical to this Courts analysis of whether there was

probable cause for Ashers arrest, is that Officers Orth, McGhie and Destito

viewed the same video tapes as did Ernst and Weber (several times in fact) in

coming to their irrational, unobjective conclusion that probable cause existed to

arrest Scott as the mailbox thief. (EOR 178, pp. 9-10; EOR 210, pp. 41-42) The

Metro defendants watched the video and had it stopped to view the still picture

several times (EOR 179, p. 13), thus seeing exactly what Ernst and Weber saw,

thus seeing the same images shown in this brief and in the excerpts of record



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referenced herein and, therefore, the Metro defendants were in a position to come

to their own conclusions after sufficient time to deliberate whether they had

reasonably trustworthy information sufficient to warrant a prudent person to

believe that Scott Asher was the mailbox burglar.

The Metro officers testimonies and affidavit are disingenuous. On the one

hand, McGhie and Destito claim they did not enter the Ashers condominium

(sometimes referred to as their apartment), but they told Orth the entered the

Ashers condominium (EOR 202, pp. 10-11), and Orth wrote in the Arrest Report,

Officers entered unit #2071 (EOR 258), and the Ashers also confirmed that

McGhie and Destito entered their condominium. (EOR 058, p. 11; EOR 108-109,

pp. 28-29).

McGhies Affidavit indicates that neither Weber nor Ernst really identified

Scott as the burglary suspect by using the phrases, told us that a person

resemblingthe burglar was seen earlier that day (EOR, 169-170, p. 7), and, a

person resembling the burglar. (EOR 170, p. 9)

McGhies statement that in his opinion Asher closely resembled the

burglar (EOR 170, 12) does not mean that his opinion was reasonably prudent.

The Metro officers argued a number of points which they felt established

probable cause (EOR 171, 18), but each point is of little value.



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McGhie argues that Scott had access to the mailbox room [EOR 171,

18(a)] but so did all the other residents (and potentially prior residents) of Pacific

Legends, and there was no evidence presented of no forced entry or how easy it

was to make it past the gate.

McGhie claimed Scott was identified by Ernst and Weber as the burglar

[EOR 171, 18(b)], but that claim was debunked.

McGhie claimed Scott bore a striking resemblance to the burglar in physical

appearance [EOR 171, 18(c)], but that claim is demonstrably false since Scott is

significantly taller and heavier, had visible sideburns which he could not have

grown in two days, has a wider face, lighter complexion, walked more erect and

took shorter steps.

McGhie claimed Scott bore a striking resemblance to the burglar in dress

[EOR 171, 18(c)], but that claim is demonstrably false since Scott was wearing

sandals instead of sneakers, shorter shorts, a white T-shirt instead of a black

jacket, and a different baseball cap. If the police thought the shorts Scott had on at

the time he walked through the mailbox room were the same as worn by the

burglar, they would not have needed to listed dark shorts on the Application and

Affidavit for Search Warrant as one of the items they sought to seize pursuant to

their search of the Ashers condominium. (See, EOR 218)



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In his Affidavit, McGhie claimed he viewed a dark cap similar to the one

worn by the burglary suspect [EOR 171, 18(e)]. In Orths Application and

Affidavit for Search Warrant, he claims, Officers entered [the Asher

condominium] and observed a black baseball cap with a white logo which they

immediately recognized as the one worn by the suspect on the video surveillance.

(EOR 216) Similar is hardly sufficient. As for the Ashers Heads-Up Poker

baseball cap being immediately recognized as the one worn by the burglar, the

only similarity between the baseball caps is that they are both dark in color;

however, they are demonstrably different in all other respects. McGhie denied in

his deposition that he immediately recognized the black baseball cap he observed

in the Ashers condominium as the own worn by the suspect on the video

surveillance tape; he testified the cap merely resembled the cap, and he admitted

that neither of the two baseball caps seized from the Ashers condominium

matched the baseball cap worn by the burglar or even closely resembled the

burglars baseball cap (EOR 180, p. 19; EOR 184, pp. 33-34) Destito admitted in

deposition that he did not see a black hat inside the Ashers condominium.

(EOR 191, p. 9)

McGhie claims he viewed a black jacket on the couch in the Ashers

condominium (EOR 171, 15), and Orth wrote in his Application and Affidavit



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for Search Warrant, Officers ...observed a black jacket with a collar which they

recognized as the jacket worn by the suspect on video surveillance.

However, the Ashers condominium was completely secure between the

time the police first entered and the time of the search, and no one had an

opportunity to go into the condominium to remove a black jacket (EOR 088,

p. 132; EOR 183, p. 29; EOR 209, p. 39) because standard police procedure is that

once a person is arrested and outside their dwelling, and a search warrant is

sought, no one is allowed in or out so that no one can tamper with any of the

evidence, and this procedure was followed. (EOR 183, pp. 29-30; EOR 209,

p. 38) The Search Warrant authorized the police to search for a black jacket with

collar (EOR 218), and Orth admitted he was specifically looking for a black jacket

with collar during the search. (EOR 206, p. 26) Four Metro officers searched the

Ashers 969 square foot condominium (EOR 076, p. 83; EOR 203, p. 14;

EOR 239, 25; EOR 273) for one and one-half to two hours. (EOR 203, p. 13)

All items seized were listed on the Return. (EOR 206, p. 27) No black jacket is

listed on the Return. (EOR 089, p. 133; EOR 220) No black jacket was

recovered. (EOR 203, p. 13). There never was a black jacket in the Ashers

condominium. (EOR 075, pp. 78-79; EOR 078, pp. 89-90; EOR 088 p. 132;

EOR 122, pp. 81-82; EOR 191, p. 9)



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The Metro officers lastly claim that Scotts exercising his constitutional

rights not to speak with the police without his attorney being present and requiring

the police to have a search warrant before searching his residence helped establish

probable cause for his arrest. [EOR 171, 18(f)] This argument has no merit, and

McGhie and Destito were gravely mistaken when they said to Scott at the time,

Innocent people dont request an attorney, and they would let us walk around and

look in your house and look at your papers. (EOR 109, pp. 30-31)

The evidence shows that Orths Arrest Report (EOR 257-258) and his

Declaration of Arrest (EOR 274-275) contained false statements regarding

McGhie and Destito observing in the Ashers condominium a baseball cap which

Orth claimed, they immediately recognized as the one worn by the suspect on the

video surveillance (EOR 258; EOR 275), and Orth also made a false statement

when he claimed McGhie and Destito observed in the Ashers condominium a

black jacket with collar which they recognized as the jacket worn by the suspect

on video surveillance. (EOR 258; EOR 275) These false statements were carried

over into the Application and Affidavit for Search Warrant (EOR 215-216) which

Orth authored (EOR 205-206, pp. 24-25), and although Orth was sworn in person

and offered the facts contained in his Affidavit as something of which he had

personal knowledge, Orths information was merely second hand hearsay received



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from McGhie and Destito who Orth assumedwere telling the truth. (EOR 209,

pp. 37-38) Orth also falsely stated in his Application and Affidavit for Search

Warrant that management (meaning Weber and Ernst) observed a white male

subject who they immediately recognized the subject from video surveillance as

the one who burglarized the mail room again enter the mail room. (EOR 215)

Without such false statements made in Orths application, the Search Warrant

would not have been issued because without all the false statements all the police

would have been left with would have been that Scott resembled the burglar, had

access to the mailbox room, asked to have an attorney present before questioning

and failed to voluntarily consent to a search of his residence.

As for witness credibility, McGhie most assuredly lied in his deposition

when he stated, I definitely saw a black jacket that was laying on the sofa that

was right inside the apartment. (EOR 180, p. 17, ll. 17-19)

As a result of Orths false Application and Affidavit for Search Warrant, a

Search Warrant was wrongfully issued allowing the police to search the Ashers

condominium (but not their cars which were also searched by the police) for mail

in the names other than Scott and Kimberly Asher, for a black jacket with collar,

for dark shorts, for white tennis shoes, for a black backpack with long hanging

black straps and for a silver colored pry tool. (EOR 218). During the search no



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black jacket was found, no dark shorts were found, no white tennis shoes were

found and no silver colored pry tool was found. (EOR, 207, p. 29; EOR 220) An

empty backpack was seized which was black and purple (EOR 206, p. 27) which

would have shown up two-tone and, thus, did not match the one used by the

burglar, and two baseball caps were seized neither of which matched the one worn

by the burglar. No mail addressed to any other resident living at the Pacific

Legends complex was found. (EOR 204, p. 19)

The mail that was seized had to do with the Ashers prior bankruptcy and

had the Ashers address on it either to their former landlord in care of the Ashers

which was addressed to the Ashers former address, junk mail to their former

landlords mother addressed to the Ashers former address, or to the Ashers son.

(EOR 067, p. 48; EOR 078-079, pp. 92-94; EOR 079-080, pp. 96-97)

The police called the FBI, and the Special Agent told the police, Are you

kidding me? Im not charging this guy with anything. The Postmaster also

arrived, went into the Asher condominium during the search and told the police, I

think theres a shot youre got the wrong guy here, and he then left shaking his

head. (EOR 060, p. 18)

There is abundant evidence of police malice and misconduct in addition to

the made-up stories used to secure the search warrant. During the initial



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questioning, Scott felt threatened because the officers were actually making

accusations as if her were the burglar, so Scott said, Wait a minute, told the

officers to get a warrant and that he wanted to speak to his attorney, and that is

when McGhie and Destito placed Scott in handcuffs. (EOR 074, p. 75; EOR 109,

p. 30) Kimberly called the Ashers attonrey and tried to relay the information the

attorney was saying to Scott, but the officers prevented them from speaking to one

another. (EOR 109, p. 32)

Scott did not have his shoes on, and he requested his shoes. Kimberly

offered to go in and retrieve Scotts sandles and told the officers they were by the

door, and Kimberly gave the officer permission to enter the condominium to

retrieve the sandles, but McGhie exceeded the scope of his permission to reenter

the Ashers condominium, was inside for quite some time, and when he came back

out, he had Scotts baseball cap tucked behind his back trying to hide it as he

handed Scott his sandals (or flip-flops) and walked down the stairs. (EOR 110,

p. 33; EOR 123, pp. 85-86)

The Ashers son arrived home from school at about 3:00 P.M. When

Kimberly asked if she could leave with her sone more than an hour later, McGhie

allowed it, but only if Kimberly surrendered her car keys. McGhie never asked

permission to search either of the Ashers motor vehicles. (EOR 111, pp. 37-39;



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EOR 122, pp. 82-83) Before the plice had a search warrant, Kimberly gave

McGhie their car keys, and McGhie pulled up both cars, and the Ashers cares

were searched. (EOR 111, pp. 37-38) The Ashers cars were not within the area

allowed to be searched by the Search Warrant. (EOR 218)

Destito talked about wanting to go home and that Scott should have

cooperated, and the officers were really upset because Scott asked for an attorney

and because they needed to secure a search warrant. (EOR 110, p. 34) McGhie

and Destito tried to intimidate Scott by taunting him. (EOR 059, p. 13)

Scott had a serious prostate issue. (EOR 112, p. 43) He asked to go to the

bathroom, and the officers told him No. Scott had already been allowed to go to

the bathroom one time when he was first placed in handcuffs. (EOR 112,

pp. 42-43) Scott had alerted the officers that he had a prostate problem and asked

to go to the bathroom, but Scott was forced to urinate on himself after being held

for five and one-half to six hours without water or the ability to go to the

bathroom. (EOR 061, p. 22; EOR 075-076, pp. 80-81) When Scott asked to go to

the bathroom, he was told, tough, and that he needed to pee in his pants. The

urine ran down Scotts leg, people could see it, and the Metro officers chuckled.

(EOR 095, p. 157)

. . . .



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After six hours, Scott was taken to the police station although he had no

idea for what he was actually being arrested. (EOR 059, p. 14) The Metro

officers had referred to Scott as Tool. (EOR 061, p. 22; EOR 077, p. 86, l. 1)

Although Scott has said nothing to the police officers except to ask to go to the

bathroom (EOR 061, p. 22) and simply sat in handcuffs the whole time and was

then transported to jail, the booking officer was falsely told that Scott had been

unruly and pissed himself, so Scott was placed in the drunk tank where he

needed to sleep on the floor for two days under a bench in his urine soaked clothes

until the time of his arraignment. (EOR 061, p.21; EOR 095, pp. 159-160)

After being allowed to leave the landing outside their condominium by the

police, she walked across the street to the Albertsons center and stayed until

about 9:00 P.M. when the police called and told her she could come back and said

they were taking Scott downtown (EOR 113, pp. 45-46). Kimberly was not

specifically told where the police were taking Scott, and the Ashers attorney did

not find out where Scott was incarcerated until the next day. (EOR 113, p. 48)

The Ashers condominium was left unsecured, the door was not latched,

foot tracks were up and down the flooring, the rail on their sons bed had been

broken, the shelving in their bedroom closet had been broken, and their sons

laptop computer had been broken. (EOR 113, p. 47) The police had actually



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slammed their foot into the Ashers sons laptop computer screen, and they left

greasy boot prints all over the carpet. (EOR 067, p. 46) The police told an older

lady living downstairs from the Ashers, [W]]e just got us a mail thief.

(EOR 084, p. 115)

Scott was emotionally devastated by the events. He saw a doctor who

referred him to a specialist for his emotional injuries, and he was given a

prescription for Xanax. (EOR 084, p. 116; EOR 096, p. 164) According to

Kimberly, Scott went into a deep depression. (EOR 120, p. 74) Prior to the

incident, Scott worked at his computer 12 hours a day, and after the incident, Scott

broke down, became catatonic on the couch, went through some very serious

emotional issues, and Kimberly needed to beg him to get him to the doctor

because his condition was very bad. Scott was barely putting any time into his

work, and he would hardly touch his computer; he refused to take phone calls and

was a broken man. (EOR 125, p. 93). For 73 days, Scott needed to worry about

whether he would go to prison. (EOR 096, p. 161) During that time, he was

sleeping very badly and was needing to take his Xanax; he was only able to sleep

three or four hours a night and would wake up around the clock. (EOR 096, pp.

162-163) Minutes before the preliminary hearing, the Deputy District Attorney

announced that the State had no interest in pursuing the case (EOR 080, p. 99)



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obviously due to a lack of probable cause since Scott towered over the burglar as

shown in the photos.

At the time of the October 22, 2007, mailbox room break-in, Scott was

actually visiting Alexander Flores off of Coronado Island near San Diego,

California, working on an Internet website deal. Scott was the EEO of Online

Solutions, and he had driven the Ashers Malibu over to visit with Mr. Flores.

(EOR 082, p. 106; EOR 086-087, pp. 124-125; EOR 121, pp. 77-78)

What is so dangerously extreme is what would have happened if the videos

had been accidently destroyed or lost. Unable to admit to having made a horrible

error in judgment, Orth testified in deposition that even though he admitted he

could not tell if the burglar

shown on the surveillance

video had a mustache and a

goatee (EOR 208, p. 34),

Orth was still willing to

testify under oath that the

burglar shown in a still shot

taken from the surveillance

video (EOR 276) and reprinted in the body of this brief above was, in fact, Scott



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Asher. (EOR 210, pp. 42-43) Even though one cannot see the burglars forehead,

eyebrows or eyes, and even though the remainder of the surveillance photo is not

of sufficient pixel resolution to see anything more than a blurry, unidentifiable

image, Orth would have had no qualms giving false testimony to send an innocent

man to prison which is both scary and highly malicious.

SUMMARY OF LEGAL ARGUMENT

The district courts grant of the Metro defendants motion for summary

judgment is reviewed de novo, and the facts must be viewed in a light most

favorable to the Ashers.

An arrest without probable cause violates the Fourth and Fourteenth

Amendments. A strong suspicion that a person has committed a crime is

insufficient. Instead, the police must have reasonably trustworthy information

sufficient to warrant a prudent person to believe that he accused has committed the

offense with which he is charged, and the police must examine the basis of the

witness knowledge, which, in this case, required the officers to view the video

tapes and arrive at their own conclusions.

The poor quality of the surveillance video made it impossible for any

reasonably prudent officer to conclude there was probable cause for Scotts arrest,

and Scotts exercise of his constitutional rights could not be used against him to



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help establish probable cause. Orth made false statements in his application for

search warrant which violated Ashers Fourth and Fourteenth Amendment rights,

without which the Search Warrant should not have been issued, and the search

would not have occurred. The officers have no qualified or discretionary

immunity because the law regarding probable cause is well established, and this is

not a case of the officers deciding how to use a finite amount of resources.

Because the arrest and the search were not supported by probable cause, the

Ashers pendent state tort claims of false arrest and false imprisonment should be

reinstated, and because of the conduct of the officers evidence malice and

malicious intent, the Ashers pendent state tort claim for intentional infliction of

emotional distress should be reinstated, and the individual Metro officers should

go to trial on the issue of punitive damages to be assessed against them in their

individual capacities.

LEGAL ARGUMENT

Standard of Review

The Ninth Circuits review of a district courts grant of summary judgment

is de novo. Oliver v. Keller, 289 F.3d 623, 626 (9th Cir. 2002). The evidence

must be viewed in a light most favorable to the non-movant parties, in this case,

the Ashers. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). In



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the present case, the Metro defendants moved for summary judgment, and the

statement of facts presented by the Ashers must be assumed to be true.

The Ninth Circuit may also review the propriety of the issue of the Search

Warrant for the Ashers condominium. If the Ashers demonstrate that Orths

Application and Affidavit for Search Warrant contained intentionally or recklessly

false statements and that without said false statements, the affidavit was

insufficient to establish probable cause, then the search warrant is void and the

fruits of the search must be excluded. Franks v. Delaware, 338 U.S. 154, 155-56,

98 S.Ct. 2674 (1978).

The Metro Officers Arrested Scott Without Probable Cause

An arrest without probable cause violates the Fourteenth Amendment and

gives rise to a claim for damages under 42 USC 1983. Lee v. City of Los

Angeles, 250 F.3d 668, 685 (9th Cir. 2001). Here, the Metro officers arrested

Scott on bare suspicion, and probable cause lies somewhere beyond bare

suspicion. United States v. Gibson, 19 F.3d 1449, 1451 (C.A.D.C. 1994). A

strong reason to suspect is not enough; there must be reasonable trustworthy

information sufficient to warrant a prudent person in believing that the accused

has committed the offense. Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d

1486, 1489 (9th Cir. 1996).



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The mere fact that a citizen witness is presumptively reliable does not

relieve a police officer of his duty to further examine the basis of the witness

knowledge. Fuller v. M.G. Jewelry, 950 F.2d 1437, 1444 (9th Cir. 1991). If there

is a video of the event, the officer must view the video so as to avoid improperly

delegating the officers duty to determine probable cause. Baptiste v. J.C. Penny

Co., 147 F.3d 1252, n. 8 (10 Cir. 1998). In the present case, the poor quality of the

surveillance video made it virtually impossible for anyone to identify any one

particular person as the suspect shown on the video with any reasonable certainty;

however, because of Scotts greater height, greater weight, lighter facial

complexion, increased face width, evident sideburns and shorter walking cadence,

none of which matched that of the burglar, he could have been, and should have

been, excluded from consideration. It is evident that the Metro officers were

overly anxious to make an arrest to the point of becoming reckless and malious

because the women were telling them what to do in front of the cameras and

because Scott had exercised his constitutional rights.

It was highly improper for the Metro offiers to use Scotts demand they

have a search warrant to search the his condominium as a further reason for a

search warrant to be issued or as evidence in support of probable cause for Scotts

arrest. The Fourth Amendment stands in the way of the police arresting people



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simply because they appear suspicious and may be hiding something. United

States v. Gibson, 19 F.3d 1449 (C.A.D.C. 1993). Similarly, the police were

improper in using Scotts choice to exercise his Fifth Amendment right to remain

silent as evidence of probable cause for a search warrant or for his arrest as silence

is no evidence of guilt. See, Griffin v. California, 380 U.S. 609, 616, 85 S.Ct.

1229 (1960) (Fifth Amendment in its bearing on the states by reason of the

Fourteenth Amendment forbids either comment by the prosecution on the

accuseds silence or instructions by the court that such silence is evidence of

guilt).

The fact that Scott was considered physically similar to the burglary suspect

(which assertion by the police is highly questionable) was, in itself, insufficient.

Physical similarities standing alone are not enough to establish probable cause to

arrest a suspect. Brass v. County of Los Angeles, 10 Fed.Appx. 412, 414 (9th Cir.

2001). When looking at the totality of the circumstances, the differences between

Scotts appearance and the fuzzy appearance of the burglar shown on the

surveillance video when combined with the mismatched baseball caps, and no

black coat, no white tennis shoes, no silver pry bar, no mail addressed to other

residents of the complex being found in the Ashers condominium, and what is left

is only evidence of Metro officers over anxiousness to go off duty, their malice



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and the television cameras being there to record whether or not the police were

going to do something to put an end the mail thefts as being the motivational

forces behind (1) falsely identifying Scott as the mailbox burglar, (2) insulting

Scott for standing on his constitutional rights, (3) detaining Kimberly for several

hours, (4) falsifying of the Application and Affidavit for Search Warrant, (5)

searching the Ashers vehicles without a search warrant, (6) intentionally

damaging the Ashers property during the search, (7) taunting Scott and making

him wet his pants, (8) falsely arresting Scott without probable cause, (9) failing tot

tell Kimberly to which facility they were taking Scott, (10) failing to tell Scott

with what he was being charged, (11) lying to the jailer to get Scott thrown into

the drunk tank and, finally, in the greatest sign of misguided malice, (12) Orth

claiming he would still testify under oath that Scott was the burglar, guilty or not.

At best, the evidence is compelling that the Metro defendants lacked

prudence and objectively and falsely arrested Scott giving him a cause of action

against them under 42 USC 1983. At worst, the evidence is clear that the Metro

defendants acted recklessly and with malicious intent causing them to be

individually liable to the Ashers for punitive damages.

. . . .

. . . .



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The Metro Officers Have No Qualified or Discretionary Immunity.

Since the Metro defendants violated Scotts constitutional rights, the court

must determine whether qualified immunity applies by examining (1) whether the

violated right was clearly established and, (2) whether a reasonable public official

would have believed that the particular conduct was unlawful. Butler v. Elle, 281

F.3d 1014, 1021 (9th Cir. 2002). In the present case, the law related to what

establishes probable cause was definitively ruled upon prior to the incident of

October 22, 2007. Belief in the suspects guilt must be particularized with respect

to the person to be seized. Maryland v. Pringle, 540 U.S. 366, 371 (2003). Here,

there could be no particularized belief in Scotts guilt.

The Ashers Claims of False Arrest and False Imprisonment Must

Remain.

Because the District Court found Scotts arrest lawful, it also dismissed his

pendent state tort claims for negligence, false arrest and false imprisonment.

Because Scotts arrest was not lawful, those claims should be reinstated.

The Ashers Claim of Intentional Infliction of Emotional Distress Must

Remain.

To state a claim for intentional infliction of emotional distress, the Ashers

must prove (1) that the Metro defendants conduct was extreme and outrageous, (2)

that they intended or recklessly disregarded the causing of distress, (3) that Scott



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suffered severe or extreme emotional distress and, (4) that the Metro officers

conduct actually or proximately caused the distress. Nelson v. City of Las Vegas,

99 Nev. 548, 554, 665 P.2d 1141, 1145 (1983). In the present case, making Scott

wet his pants, purposefully destroying Scotts sons laptop computer, lying to the

jailer so Scott would be placed in the drunk tank, goading Scott and calling him

Tool, lying in the application for the search warrant, arresting Scott without

probable cause, not telling Kimberly where they were taking Scott to make it more

difficult for her to locate him and bail him out, were all designed to inflict, and did

inflict, enough emotional distress to put Scott on his couch in a catatonic state for

several months and constituted an intentional infliction of emotional distress.

CONCLUSION

In conclusion, the Order and Judgment of the District Court should be

reversed, and this case should be remanded to go to trial on the Ashers

42 USC 1983 claims for false arrest in violation of Scotts Forth and Fourteenth

Amendment rights and for a denial of Scotts Fourteenth Amendment due process

rights because of the fabrications made by Orth in his Application and Affidavit

for Search Warrant and for the needless intentional destruction of the Ashers

personal property at the time of the search. The Ashers pendent state tort claims

of false arrest, false imprisonment and intentional infliction of emotional distress



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should also be reinstated and remanded to the District Court for further

proceedings.

Dated this 18th day of January, 2011.

KOSSACK LAW OFFICES

By Robert J. Kossack, Esq. /s/

ROBERT J. KOSSACK, ESQ.

4535 W. Sahara Ave., Suite 101


Ph. (702) 253-7068

Fx. (702) 368-0471

Email [email protected]

Attorney for Appellants Scott Asher

and Kimberly Asher

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .



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CERTIFICATION PURSUANT TO FED. R. APP. P. 32(a)(7)(C) AND

CIRCUIT RULE 32-1

I hereby certify that pursuant to Federal Rule of Appellant Procedure

32(a)(7)(C) and Circuit Rule 32-1, the attached opening brief is proportionalely

spaced, has a typeface of 14 points and contains 7856 words.

Dated this 18th day of January, 2011.

KOSSACK LAW OFFICES

By Robert J. Kossack, Esq. /s/

ROBERT J. KOSSACK, ESQ.

4535 W. Sahara Ave., Suite 101


Ph. (702) 253-7068

Fx. (702) 368-0471

Email [email protected]

Attorney for Appellants Scott Asherand Kimberly Asher

. . . .

. . . .

. . . .

. . . .

. . . .

. . . .



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CERTIFICATE OF ELECTRONIC FILING

I hereby certify under penalty of perjury, that I am an employee of Kossack

Law Offices, and pursuant to Federal Rule of Appellant Procedure 25(d) and the

Ninth Circuit Court of Appeals ECF filing system, on the 18th day of January,

2011, I caused to be electronically filed with the Clerk of the Court a true and

correct copy of APPELLANTS OPENING BRIEF and APPELLANTS

EXCERPTS OF RECORD, VOLUMES I, II, AND III using the CM/ECF system

and, thereby, such Notice of Electronic Filing constitutes service of the filed

document upon each party in the case who is registered as an electronic case filing

user with the Clerk of the Court of which such parties attorneys of record are on

the following list:

Robert J. Kossack, Esq.KOSSACK LAW OFFICES

4535 West Sahara Avenue, Suite 101


[email protected]

Attorney for Appellants Scott Ray Asher and Kimberly Dawn Asher

Craig R. Anderson, Esq.

MARQUIS & AURBACH

10001 Park Run DriveLas Vegas, Nevada 89145

[email protected]

Attorneys for Appellees Las Vegas Metropolitan Police Department, Officer

R. Oath, Officer G. McGhie and Officer J. Destito



43/43

CERTIFICATE OF MAILING

I hereby certify that on the 18th day of January, 2011, I mailed a true and

correct copy of APPELLANTS OPENING BRIEF and APPELLANTS

EXCERPTS OF RECORD, VOLUMES I, II, AND III via first class mail, in a

sealed envelope with all necessary postage prepaid and affixed thereto, by

depositing same in a receptacle marked for mailing with the United States Postal

Service and addressed to the following:

Craig R. Anderson, Esq.

MARQUIS & AURBACH

10001 Park Run Drive


Attorneys for Appellees Las Vegas Metropolitan Police Department, Officer

R. Oath, Officer G. McGhie and Officer J. Destito


appellants opening brief file-stamped s

Documents