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.

-2- 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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