Alford

ORDER GRANTING PETITION FOR REHEARING, DENYING PETITION FOR REHEARING EN BANC, AND AFFIRMING

ORDER

Judges Browning and Gould voted to grant the petition for rehearing; Judge B. Fletcher voted to deny it. The petition for rehearing en banc was circulated to the full court. No judge has requested a vote on rehearing en banc. The petition for rehearing is GRANTED and the petition for rehearing en banc is DENIED. The Order filed on August 9, 2005, appearing at 418 F.3d 1004 , is withdrawn.

This case returns to us on remand from the Supreme Court. Devenpeck v. Alford, 543 U.S. 146 , 125 S.Ct. 588 , 160 L.Ed.2d 537 (2004), reversing Alford v. Haner, 333 F.3d 972 (9th Cir.2003). We must now address whether or not Defendants had probable cause to arrest Alford for the offenses of obstructing a law enforcement officer or impersonating a law enforcement officer. See id. at 156 , 125 S.Ct. 588 . Alford argues we should remand because there are disputed material facts as to the existence of probable cause and the possibility of qualified immunity. We disagree.

We review a denial of a motion for new trial for abuse of discretion, and we can reverse such a denial only if the district court…

dissenting:

I respectfully dissent.

Our prior order remanding to the district court because the issue of probable cause for impersonating an officer was not before the jury, was correct. Any evidence of other conduct by Alford was presented only in the context of whether he had the requisite intent under the Privacy Act. The instructions to the jury were in the context of violation of the Privacy Act. The jury was not asked to consider other possible crimes for which Alford could have been arrested.

The arguments of both counsel focused on the Privacy Act and witness-credibility. Neither suggested that the jury was to decide whether there was probable cause to arrest for impersonating a police officer. Granting the government’s Petition for Rehearing and affirming the acquittal is inconsistent with the testimony, the jury instructions, and counsels’ arguments all of which indicate that the jury was not presented with the theory that the officers may have probable cause to arrest for an offense other than Privacy Act violations. The remand to the district court, leaving those proceedings open on the issue of qualified immunity, is appropriate. We should deny the government’s…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEROME ANTHONY ALFORD,  No. 01-35141 Plaintiff-Appellant, D.C. No. v. CV-99-05586-RJB JOI HANER, a Washington State ORDER Patrol Officer; JANE DOE HANER, GRANTING his wife; GERALD DEVENPECK, Sgt.,  PETITION FOR Washington State Patrol; JANE DOE REHEARING, DEVENPECK, his wife, DENYING Defendants-Appellees. PETITION FOR

REHEARING EN

BANC, AND

 AFFIRMING

Filed April 26, 2006

Before: James R. Browning, Betty B. Fletcher, and Ronald M. Gould, Circuit Judges.

Order; Dissent by Judge B. Fletcher

ORDER

Judges Browning and Gould voted to grant the petition for rehearing; Judge B. Fletcher voted to deny it. The petition for rehearing en banc was circulated to the full court. No judge has requested a vote on rehearing en banc. The petition for rehearing is GRANTED and the petition for rehearing en banc is DENIED. The Order filed on August 9, 2005, appearing at 418 F.3d 1004, is withdrawn.

4643 4644 ALFORD v. HANER This case returns to us on…