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Case No. 10-17118

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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 OFFICES 4535 W. Sahara Ave., Suite 101 Las Vegas, Nevada 89102 (702) 253-7068 Attorney for Appellants Scott Ray Asher and Kimberly Dawn Asher

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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 Asher’s Claims of False Arrest and False Imprisonment Must Remain

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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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 Asher’s 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 Asher’s

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 Asher’s 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 Asher’s 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

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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 Asher’s 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 Asher’s 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 Asher’s 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

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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)

insignia on the back. (EOR 232-234; EOR 235-236, ¶¶ 3-4) The burglar’s cap was no match
insignia on the back. (EOR 232-234; EOR 235-236, ¶¶ 3-4) The burglar’s cap was no match
insignia on the back. (EOR 232-234; EOR 235-236, ¶¶ 3-4) The burglar’s cap was no match

The burglar’s 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 body of this brief. (EOR 235-236, ¶¶ 3-4; EOR 241-243) The Appellee police officers of
the body of this brief. (EOR 235-236, ¶¶ 3-4; EOR 241-243) The Appellee police officers of
the body of this brief. (EOR 235-236, ¶¶ 3-4; EOR 241-243) The Appellee police officers of

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 Scott’s 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 Scott’s Heads-Up Poker

baseball cap obviously differed from the burglar’s baseball because (1) the front

logo on Scott’s Heads-Up Poker baseball cap did not match the front logo of the

burglar’s baseball cap, (2) Scott’s 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 burglar’s baseball cap

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

button on top, and the burglar’s 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 ID’d him off the video

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

home,

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

Because this is the guy, and we’ve got him on video

caught so bad like you can’t believe it. (EOR 168; EOR 236)

the

person is in his apartment in our

and

is it

I want him

we

have the news media here taking the story

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)

wrong, but their conclusions were absurd. (EOR 232, ¶ 9) As can be seen from the
wrong, but their conclusions were absurd. (EOR 232, ¶ 9) As can be seen from the
wrong, but their conclusions were absurd. (EOR 232, ¶ 9) As can be seen from the
wrong, but their conclusions were absurd. (EOR 232, ¶ 9) As can be seen from the

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

of this brief, the top of Scott’s 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.

¶ 10; EOR 247-249) and reprinted in the body of this brief. Again, the logo on
¶ 10; EOR 247-249) and reprinted in the body of this brief. Again, the logo on
¶ 10; EOR 247-249) and reprinted in the body of this brief. Again, the logo on

Again, the logo on the front of Scott’s Philadelphia Flyers baseball cap was

different than that worn by the burglar. Scott’s Philadelphia Flyers baseball cap

had an insignia on the back whereas the burglar’s baseball cap did not. Scott’s

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

burglar’s 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 media’s 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 media’s 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)

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

6

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

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The backpack the Metro defendants seized from the Asher’s 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’ son’s 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’ son’s backpack has a

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

has a drawstring enclosure. (EOR 238, ¶ 12; EOR 256). The police report reads as follows,
has a drawstring enclosure. (EOR 238, ¶ 12; EOR 256). The police report reads as follows,

The police report reads as follows,

238, ¶ 12; EOR 256). The police report reads as follows, On 10-22-07 at approximately 0517
238, ¶ 12; EOR 256). The police report reads as follows, On 10-22-07 at approximately 0517

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, NV 89128. 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 with identical 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 subject from 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 Ernst’s 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 Ernst’s interrogatory answers and deposition testimony to come into

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

Ernst’s identification was made based on her comparison of the surveillance

video with the media’s dry run video of Scott picking up his mail. According to

Ernst, “they looked similar in those videos, and that’s 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.

Ernst’s opinion of similar characteristics was in a word, reactionary, and it

was not objectively made in consideration of Scott’s different gait, different hat,

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

(Scott’s 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).

Ernst’s and Weber’s 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, “That’s 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 Court’s analysis of whether there was

probable cause for Asher’s 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).

McGhie’s Affidavit indicates that neither Weber nor Ernst really identified

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

resembling the burglar was seen earlier that day” (EOR, 169-170, p. 7), and, “a

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

McGhie’s 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 Orth’s 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 Asher’s 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

burglar’s 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 Asher’s

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 don’t 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 Orth’s 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, Orth’s information was merely second hand hearsay received

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from McGhie and Destito who Orth assumed were 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 Orth’s 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 Orth’s 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

landlord’s 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? I’m not charging this guy with anything.” The Postmaster also

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

think there’s a shot you’re 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 Scott’s 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 Scott’s 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 Scott’s 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 Albertson’s 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 son’s bed had been

broken, the shelving in their bedroom closet had been broken, and their son’s

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

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slammed their foot into the Ashers’ son’s 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

burglar shown in a still shot taken from the surveillance video (EOR 276) and reprinted in

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 burglar’s 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 court’s 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 Scott’s arrest,

and Scott’s 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 Asher’s 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 Circuit’s review of a district court’s 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 Orth’s

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 officer’s 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 Scott’s 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 Scott’s 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 Scott’s

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 Scott’s 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

accused’s 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

Scott’s 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 Scott’s 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 suspect’s 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 Scott’s guilt.

The Ashers’ Claims of False Arrest and False Imprisonment Must Remain.

Because the District Court found Scott’s arrest lawful, it also dismissed his

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

Because Scott’s 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 Scott’s son’s 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 Scott’s Forth and Fourteenth

Amendment rights and for a denial of Scott’s 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

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By

Robert J. Kossack, Esq.

/s/

ROBERT J. KOSSACK, ESQ. 4535 W. Sahara Ave., Suite 101 Las Vegas, Nevada 89102 Ph. (702) 253-7068 Fx. (702) 368-0471 Email rjkossack@cox.net 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.

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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 Las Vegas, Nevada 89102 Ph. (702) 253-7068 Fx. (702) 368-0471 Email rjkossack@cox.net Attorney for Appellants Scott Asher and 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 Las Vegas, Nevada 89102 rjkossack@cox.net Attorney for Appellants Scott Ray Asher and Kimberly Dawn Asher

Craig R. Anderson, Esq. MARQUIS & AURBACH 10001 Park Run Drive Las Vegas, Nevada 89145 canderson@marquisaurbach.com Attorneys for Appellees Las Vegas Metropolitan Police Department, Officer R. Oath, Officer G. McGhie and Officer J. Destito

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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 Las Vegas, Nevada 89145 Attorneys for Appellees Las Vegas Metropolitan Police Department, Officer R. Oath, Officer G. McGhie and Officer J. Destito

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