FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT STEVEN FISHER,  Plaintiff-Appellee, and SANDRA FISHER, Plaintiff, v. No. 04-16095 CITY OF SAN JOSE, D.C. No. CV-01-21192-PVT Defendant-Appellant, and  Northern District of California, CITY OF SAN JOSE POLICE San Jose DEPARTMENT; OFFICER BOLER; ORDER OFFICER BARNETT; OFFICER CORREA; OFFICER ESQUIVEL; OFFICER HONDA; OFFICER KINSWORTHY; OFFICER O’BRIEN; OFFICER RYAN; OFFICER NGUYEN, Defendants.  Filed March 14, 2008

ORDER KOZINSKI, Chief Judge: Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.

2653 PRINTED FOR ADMINISTRATIVE OFFICE—U.S. COURTS BY THOMSON/WEST—SAN FRANCISCO The summary, which does not constitute a part of the opinion of the court, is copyrighted © 2008 Thomson/West.