52 F.4th 258 (Mem)
Michael WEARRY, Plaintiff—Appellee,
v.
Paulette H. FOSTER, as the Personal Representative of Appellant Marlon Kearney Foster, for substitution in the place and stead of the Appellant Marlon Kearney Foster, deceased; Scott M. Perrilloux, in his Individual Capacity and in his Official Capacity as District Attorney for the 21st Judicial District of Louisiana; Kearney Matthew Foster, as the Personal Representative of Appellant Marlon Kearney Foster, for substitution in the place and stead of the Appellant Marlon Kearney Foster, deceased; William Aaron Foster, as the Personal Representative of Appellant Marlon Kearney Foster, for substitution in the place and stead of the Appellant Marlon Kearney Foster, deceased; Annette Foster Alford, as the Personal Representative of Appellant Marlon Kearney Foster, for substitution in the place and stead of the Appellant Marlon Kearney Foster, deceased, Defendants—Appellants.
No. 20-30406
United States Court of Appeals, Fifth Circuit.
FILED October 27, 2022
James W. Craig, Eric Andrew Foley, Emily M. Washington, Roderick & Solange MacArthur Justice Center, New Orleans, LA, for Plaintiff-Appellee.
Druit George Gremillion, Jr., Esq., Attorney, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, for Defendants-Appellants Paulette H. Foster, Kearney Matthew Foster, William Aaron Foster, Annette Foster Alford.
Christopher M. Moody, Albert David Giraud, Moody Law Firm, Hammond, LA, for Defendant-Appellant Scott M. Perrilloux.
Brianne Jenna Gorod, Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center, Washington, DC, for Amicus Curiae Constitutional Accountability Center.
Jay Remington Schweikert, Cato Institute, Washington, DC, for Amicus Curiae Cato Institute.
Before King, Dennis, and Ho, Circuit Judges.
Per Curiam:
Treating the petition for rehearing en banc, as to Appellant, Scott M. Perrilloux, as a petition for panel rehearing ( 5TH CIR. R. 35 I.O.P.), the petition for panel rehearing is DENIED. The petition for rehearing en banc is DENIED because, at the request of one of its members, the court was polled, and a majority did not vote in favor of rehearing ( FED. R. APP. P. 35 and 5TH CIR. R. 35 ).
Treating the petition for rehearing en banc, as to Appellants, Paulette H. Foster, Kearney Matthew Foster, William Aaron Foster and Annette Foster Alford, as a petition for panel rehearing ( 5TH CIR. R. 35 I.O.P.), the petition for panel rehearing is DENIED. The petition for rehearing en banc is DENIED because, at the request of one of its members, the court was polled, and a majority did not vote in favor of rehearing ( FED. R. APP. P. 35 and 5TH CIR. R. 35 ).
In the en banc poll, seven judges voted in favor of rehearing (Judges Richman, Jones, Smith, Southwick, Duncan, Oldham, and Wilson), and nine voted against rehearing (Judges Stewart, Dennis, Elrod, Haynes, Graves, Higginson, Willett, Ho, and Engelhardt).
James C. Ho, Circuit Judge, concurring in denial of rehearing en banc:
I agree with much of the dissent, as the dissent rightly points out. Yet I vote to deny rehearing en banc. I write to briefly explain why.
Respected judges and scholars have said that absolute prosecutorial immunity is inconsistent with the text and original understanding of 42 U.S.C. § 1983, and I tend to agree. See Wearry v. Foster , 33 F.4th 260, 273, 279–80 (5th Cir. 2022) (Ho, J., dubitante) (discussing authorities). I've also said that "we [should] decide every case faithful to the text and original understanding of the Constitution, to the maximum extent permitted by a faithful reading of binding precedent." Texas v. Rettig , 993 F.3d 408, 409 (5th Cir. 2021) (Ho, J., dissenting from denial of rehearing en banc).
Of course, as a three-judge panel deciding a case on the merits, we're required to follow governing Supreme Court and circuit precedent. That's why I would've granted prosecutorial immunity, despite my personal views.
But unlike a panel decision on the merits, the decision whether to rehear a case en banc is entirely discretionary. Nothing in the rules of federal appellate procedure requires us to take a case en banc—not even when a panel decision conflicts with Supreme Court or circuit precedent. So I exercise my discretion to maximize for the original meaning. See id.
Moreover, declining en banc rehearing here is consistent with the conceptual framework I've previously set forth for cases involving qualified immunity for public officials: When public officials are forced to make split-second, life-and-death decisions in a good-faith effort to save innocent lives, they deserve some measure of deference. By contrast, when public officials make the deliberate and considered decision to trample on a citizen's constitutional rights, they deserve to be held accountable. See Horvath v. City of Leander , 946 F.3d 787, 799–803 (5th Cir. 2020) (Ho, J., concurring); see also Hoggard v. Rhodes , ––– U.S. ––––, 141 S. Ct. 2421, 2422, 210 L.Ed.2d 996 (2021) (Thomas, J., respecting denial of certiorari) ("[W]hy should university officers, who have time to make calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting?"); Villarreal v. City of Laredo , 44 F.4th 363, 371 (5th Cir. 2022) ("There is a big difference between ‘split-second decisions’ by police officers and ‘premeditated plans to arrest a person for her journalism, especially by local officials who have a history of targeting her because of her journalism.’ ") (quoting the Institute for Justice).
This framework explains my votes on a number of recent en banc rehearing petitions that have sharply divided our court. Compare Winzer v. Kaufman County , 940 F.3d 900 (5th Cir. 2019) ; Ramirez v. Guadarrama , 2 F. 4th 506 (5th Cir. 2021), with Oliver v. Arnold , 19 F.4th 843 (5th Cir. 2021).
I voted in favor of the police officers in Winzer and Ramirez —and against the officials here and in Oliver (and Villarreal too). What...
