Eric Mueller v. City of Boise

ORDER

The Opinion filed September 10, 2012, is amended as follows: on slip opinion page 10863, line 6, replace the first full paragraph (Part IV B, Battery) beginning “We conclude that the district court....” with the following text:

The panel has voted to deny the petition for panel rehearing. Judge Smith has voted to deny the petition for rehearing en banc and Judges Wallace and Trott so recommend.

The full court has been advised of the suggestion for rehearing en banc and no judge of the court has requested a vote on it. Fed. R.App. P. 35(b).

With this amendment, the petition for rehearing, and the petition for rehearing en banc are otherwise DENIED. No further petitions for rehearing will be accepted.

OPINION

Because the district court and the parties to this protracted lawsuit — as well as the judges of this panel hearing the issues for the second time — are well aware of its history, the trial record, and the proceedings in district court, we refer to them only as necessary to explain our decision. We have previously published an opinion on a related issue in Mueller v. Auker, 576 F.3d 979 (9th Cir.2009). That opinion exhaustively unfurls the facts giving rise to this…