United States Court of Appeals
For the First Circuit
No. 05-2522
ADAM JENNINGS,
Plaintiff, Appellant,
v.
KENNETH JONES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Lynch, Lipez, and Howard, Circuit Judges.
ORDER OF COURT
Entered: August 17, 2007
Appellee Kenneth Jones’ petition for rehearing en banc is
denied.
Concurring statements follow.
BOUDIN, Chief Judge and LYNCH, Circuit Judge, concurring
in the denial of rehearing en banc. Properly, the revised panel
opinion withdraws its ruling that the appellant waived or forfeited
his right to a ruling on his conditional new trial motion by
failing to renew or argue it after the district judge granted
qualified immunity. The panel opinion adheres to its decision
overturning the district judge's belated grant of qualified
immunity; at a minimum, we are both doubtful as to the panel
majority's reasoning and result on this issue.
Nevertheless, at this time a new trial, in which all
issues can be assessed afresh, appears to us the best solution--
taking account of the unfortunate uncertainty about just what the
jury decided and the other demands on the en banc court. If the
district court grants the motion for a new trial and sets aside the
jury verdict, appellant will have an adequate opportunity to defend
himself on a fresh record and with proper instructions.
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Torruella, Circuit Judge, and LIPEZ, Circuit Judge,
concurring in the denial of rehearing en banc. The majority and
dissenting opinions speak for themselves. Whether or not there
should be a new trial on remand, and what issues should or should
not be addressed in any new trial, are entirely matters for the
district court to decide in the first instance.
By the Court:
Richard Cushing Donovan, Clerk.
___/s/__________________________
By: Margaret Carter, Chief Deputy Clerk
[Certified copies to Hon. Ernest C. Torres and Mr. David DiMarzio,
Clerk, United States District Court for the District of Rhode
Island. Copies to Mr. Bradley and Ms. Partington.]
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