Kennedy v. City of Ridgefield

dissenting from denial of rehearing en banc.

It is regrettable that the court declines to hear this case en banc. Contrary to Supreme Court precedent, the Kennedy *1092 opinion expands the judge-made “state-created danger” doctrine to impose imper-missibly broad 42 U.S.C. § 1983 civil rights liability on police officers under circumstances that at most evidence negligence. Its expansive new holding opens the floodgates to § 1983 lawsuits by citizens who will claim deliberate indifference following any failure on the part of the police to adequately protect them from harm after they report a crime, notwithstanding that the danger of retaliation by criminal suspects often exists when citizens report crimes. Kennedy will all but foreclose officers from invoking qualified immunity before trial; a jury will have to decide whether to impose liability and damages.

The slippery slope of liability created by the court’s opinion has implications of great magnitude for public safety officers everywhere and the ruling cannot be confined to extraordinary cases. This unjustifiable expansion of the state-created danger doctrine raises the possibility of liability every time a person dials…

ORDER WITHDRAWING OPINION AND DENYING PETITION FOR REHEARING EN BANC

ORDER

The opinion filed June 23, 2005, and amended September 12, 2005, appearing at 411 F.3d 1134 and 423 F.3d 1117 respectively, and the opinion concurring in part and dissenting in part, appearing at 411 F.3d at 1146, are withdrawn and may not be cited as precedent by or to this court or any district court of the Ninth Circuit. An opinion and dissenting opinion are published by separate order.

Judge Bybee votes to grant the petition for rehearing en banc. Judges Browning and Tashima recommend denying the petition for rehearing en banc.

The fall court was advised of the petition for rehearing en banc, and a judge requested a vote on whether to rehear the matter en banc. The case failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35. The petition for rehearing en banc is DENIED. No further petitions shall be entertained.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIMBERLY KENNEDY, individually  No. 03-35333 and in her capacity as personal representative of the estate and as D.C. No. guardian for her children aka CV-01-05631-JKA Kimberly Gorton; JAY D. Western District KENNEDY, aka JD Kennedy; KEITH of Washington, TEUFEL; TERA TEUFEL, Tacoma Plaintiffs-Appellees,  ORDER v. WITHDRAWING

OPINION AND

RIDGEFIELD CITY OF, a municipal

DENYING

corporation and political

PETITION FOR

subdivision of the State of WA;

REHEARING

NOEL SHIELDS,

EN BANC

Defendants-Appellants.  Filed March 7, 2006

Before: James R. Browning, A. Wallace Tashima, and Jay S. Bybee, Circuit Judges.

Order; Dissent by Judge Tallman

ORDER

The opinion filed June 23, 2005, and amended September 12, 2005, appearing at 411 F.3d 1134 and 423 F.3d 1117 respectively, and the opinion concurring in part and dissenting in part, appearing at 411 F.3d 1146, are withdrawn and may not be cited as precedent by or to this court or any district 2279 2280 KENNEDY v.…