Bert Strand, Sheriff of San Diego County, State of California v. William Schmittroth

(dissenting).

The attorney general of the State of California has petitioned in behalf of Sheriff Strand for a rehearing en banc. Our Rule 23 reads as follows:

In conformity with our practice under the above rule, Judge Healy, Judge Bone and I have treated the petition as being before us who constituted the court for the consideration of the appeal when it was first heard. We have considered the “petition for an en banc hearing” as a “suggestion of a party.”

First, I vote for a rehearing. Second, I vote for a rehearing en banc. Neither of my associates joins me. In this posture of having the necessary will, but not the necessary votes, I desire to further comment on the case with particular reference to the petition for rehearing.

The federal statutes permit us to sit en banc. Our work load is such that we cannot hear all cases en banc. There is precedent in some circuits to rarely, if ever, grant rehearings en banc. Something can be said for that policy. In another circuit they are often granted. The latter practice tends to make not one appeal but two appeals from the district judgment. If certiorari is granted, that is three. A loose policy on rehearings en banc can stop a…