                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 22 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



SCOTT RAY ASHER and KIMBERLY                     No. 10-17118
DAWN ASHER,
                                                 D.C. No. 2:08-cv-00914-RCJ-RJJ
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

PACIFIC LEGENDS WEST
CONDMINIUM ASSOCIATION; et al.,

              Defendants,

  and

LAS VEGAS METROPOLITAN POLICE
DEPARTMENT; et al.,

              Defendants - Appellees.



                  Appeal from the United States District Court
                            for the District of Nevada
                Robert Clive Jones, Chief District Judge, Presiding

                    Argued and Submitted November 14, 2011
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: NOONAN and BEA, Circuit Judges, and WALTER, Senior District
Judge.**

      Scott Ray Asher and Kimberly Dawn Asher appeal summary judgment in

favor of the Las Vegas Metropolitan Police Department for the wrongful arrest of

Scott Asher during the investigation of a mailbox theft.

      The district court erred in finding that the officers had probable cause to

arrest Scott Asher. There was no evidence that the two residents, who had already

called in the media, had any first-hand observation of Scott Asher separate from

the surveillance video. The officers had a duty to independently investigate their

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

poor quality of the surveillance video made identification based on it improbable.

One officer said he’d seen a black jacket in the Asher residence, but after a search

warrant was executed, none was found. The actual thief’s surprise at seeing the

surveillance camera made it unlikely that he was a resident who regularly picked

up his mail in the mail room.

      Probable cause was lacking. The same facts establish that the officers are

not entitled to qualified immunity, a privilege forfeited by “the plainly

incompetent.” Malley v. Briggs, 475 U.S. 335, 341 (1986).


       **
             The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for Western Louisiana, sitting by designation.

                                           2
We affirm the other rulings of the district court.

Each party shall bear its own costs.

AFFIRMED IN PART, REVERSED AND REMANDED FOR TRIAL.




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