Thursday, May 5, 2011
Gambler’s Use of Phony Name Was Probable Cause for Arrest—Court
By KENNETH OFGANG, Staff Writer
Nevada authorities had probable cause to arrest a gambler who attempted to collect winnings using a false name, then and he showed identification with the phony name to a gaming agent from whom he sought assistance, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel affirmed a judgment in favor of the Nevada Gaming Control Board, its agent Arthur Vaughn, and the Mirage Casino-Hotel. Alex Fayer sued for false arrest and conspiracy to commit false arrest under 42 U.S.C. Sec. 1983, and for battery, false arrest, false imprisonment and premises liability under Nevada law.
Fayer alleged that he is an “advantage gambler,” a regular winner at Las Vegas casinos; that he won $8,000 in sports wagers at the Bellagio and Circus Circus casinos on Oct. 9, 2008, and that officials of MGM Resorts International—the corporate parent of the Bellagio, Circus Circus, Mirage, and other casino properties—refused to cash his tickets when he attempted to obtain payment at the Mirage.
He further alleged that when he asked the gaming board to assist him, Vaughn confronted him with MGM records suggesting that he had redeemed previous winnings both as Alex Fayer and as James McLynn. After he admitted using both names and possessing a credit card in the name James McLynn, as well as having previously used non-governmental identification in the latter name, Vaughn arrested him for possession of false identification documents, among other charges. .
The charges were eventually dismissed, leading to the lawsuit, which was removed from state to federal court. Senior U.S. District Judge Edward C. Reed of the District of Nevada ruled that Fayer failed to state a claim and dismissed the case in its entirety.
In a per curiam opinion, the panel—Judge N. Randy Smith, Senior Judge Alfred T. Goodwin, and visiting District Judge Raner C. Collins of the District of Arizona—said Reed was correct.
Fayer could not have been falsely arrested or imprisoned, the judges explained, because his admission that he used a credit card and other identification using the name James McLynn established probable cause to believe that he was using those items “for the purpose of establishing a...false identity for himself,” a crime under state law.
In a footnote, the panel explained that Nevada’s false identity law abrogates the common law rule allowing the use of a name other than the person’s legal name, as long as done without intent to defraud, to the extent that a person possesses documentation in the false name.
As for Fayer’s battery claim, the judges went on to say, the plaintiff’s claim that he suffered “discomfort” and “embarrassment”—as a result of being handcuffed in public and taken into custody—does not amount to an allegation of excessive force.
Nor could Fayer plead a claim for premises liability, the panel said, because he did not allege he was physically injured on the premises.
The case is Fayer v. Vaughn, 10-15520.
Copyright 2011, Metropolitan News Company