Jones

concurring in the judgment:

I respectfully concur in the result. I write separately because, in my view, the Rutherford instruction submitted by the plaintiff was a correct statement of the law. It was properly refused only because it was not justified by the evidence. Specifically, the evidence at trial was not susceptible of the interpretation that the damage occurred while no one but the officers was present. To the contrary, the residents testified to what they say they witnessed the police officers doing. The police officers gave their opposing version of the story, and it was for the jury to decide which to believe.

As a general rule, a res ipsa-type instruction can be given in a case such as this if: first, the defendants are uniquely positioned, to the exclusion of others, to know the circumstances that caused the plaintiffs injury; and second, the injury would not normally occur without wrongdoing on the defendants’ part. See Reber v. United States, 951 F.2d 961 , 964 n. 1 (9th Cir.1991). Res ipsa belongs to the world of negligence. This case, like Rutherford, involves an intentional constitutional tort. However, the principle of proof is the same. If government…

ORDER DENYING PETITIONS FOR REHEARING AND REHEARING EN BANC AND OPINION

ORDER

This court’s previous opinion, filed on April 18, 2002, and published at 286 F.3d 1159 (9th Cir.2002), is withdrawn and the attached opinion is filed in its place. With the filing of this opinion, the panel has voted unanimously to deny the petition for rehearing.

Judges O’Scannlain and Silverman have voted to deny the petition for rehearing en banc, and Judge Reed so recommends. The petition for rehearing en banc was circulated to the full court, and no judge requested a vote on the petition. Fed. R.App. P. 35.

*933 With the filing of this opinion, the petition for rehearing and the petition for rehearing en banc are DENIED.

OPINION

This case presents a difficult question: can officers be held liable for an allegedly unlawful search when there is no, direct evidence of their individual participation? We conclude that in this case they cannot. This case also presents a difficult situation: a search of a house, pursuant to a warrant, that results in the destruction of personal property. Our reaction to the situation is great sympathy for Betty Jones.

On April 1, 1995, officers from the Los Angeles…