Sanchez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROCIO SANCHEZ; OLGA CASTRO; 

MYRNA MARTINEZ; KAREN

BJORLAND; CHERYL MACLYMAN;

RHONDA KERN,

Plaintiffs-Appellants, v.

COUNTY OF SAN DIEGO; SAN DIEGO

COUNTY BOARD OF SUPERVISORS;

SAN DIEGO COUNTY DEPARTMENT OF

HEALTH AND HUMAN SERVICES; No. 04-55122 STEVEN ESCOBOZA, Director of the D.C. No. San Diego County Health and  CV 00-1467 JTM Human Services Agency, in his SD Cal. official capacity; SAN DIEGO ORDER

OFFICE OF DISTRICT ATTORNEY;

PAUL PFINGST, District Attorney of the County of San Diego, in his official capacity, Defendants-Appellees, and AURORA, on behalf of themselves and all others similarly situated, Defendant.  Filed April 16, 2007

Before: Andrew J. Kleinfeld, A. Wallace Tashima, and Raymond C. Fisher, Circuit Judges.

Order; Dissent by Judge Pregerson; Dissent by Judge Kozinski

4283 4284 SANCHEZ v. COUNTY OF SAN DIEGO

ORDER

Judge Kleinfeld voted to deny the petition for rehearing en banc, and Judge Tashima so recommended. Judge Fisher voted to grant the petition for rehearing…

dissenting, joined by REINHARDT, WARDLAW, WILLIAM A. FLETCHER, FISHER, PAEZ, and BERZON, Circuit Judges:

I dissent from the denial of the petition for rehearing en banc. I disagree with the majority’s decision and strongly believe that this case requires en banc review. This case strikes an unprecedented blow at the core of Fourth Amendment protections. The majority opinion clings to Wyman v. James, 400 U.S. 309 , 91 S.Ct. 381 , 27 L.Ed.2d 408 (1971), asserting that it directly controls this case. This is unsupportable for three reasons. First, as clearly outlined in Judge Fisher’s dissent, the program upheld in Wyman was significantly different in scope and goal from San Diego’s program. Second, allowing Wy-man to constrict the bounds of our Fourth Amendment jurisprudence ignores over thirty-five years of intervening law. Third, allowing this opinion to stand is an assault on our country’s poor as we require them to give up their rights of privacy in exchange for essential public assistance.

I. Wyman v. James Does Not Control This Case

“Project 100%” is a mandatory part of San Diego’s public assistance program. The San Diego District Attorney’s Public Assistance Fraud Division…

ORDER

Judge Kleinfeld voted to deny the petition for rehearing en banc, and Judge Ta-shima so recommended. Judge Fisher voted to grant the petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. On such a vote, a majority of the active judges failed to vote in favor of en banc rehearing.

The petition for rehearing en banc is DENIED.

dissenting from the order denying the petition for rehearing en banc:

I dissent for the reasons expressed in Judge Fisher’s trenchant panel dissent.