                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-15-2001

Foley v. Local 98 Pension
Precedential or Non-Precedential:

Docket 00-2767




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Recommended Citation
"Foley v. Local 98 Pension" (2001). 2001 Decisions. Paper 262.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/262


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Filed November 15, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1846

KIM BROWN; DAVID BROWN, H/W,
       Appellants

v.

MUHLENBERG TOWNSHIP; BOARD OF SUPERVISORS OF
MUHLENBERG TOWNSHIP; MUHLENBERG TOWNSHIP
POLICE DEPARTMENT; ROBERT M. FLANAGAN,
individually and/or as Chief of Police of Muhlenberg
Township; ROBERT D. EBERLY, individually and/or as
Patrolman of Muhlenberg Township; HARLEY SMITH,
individually and/or as Chief of Police of
Muhlenberg Township

(E.D. of PA. Civ. No. 99-cv-01076)

SUR PETITION FOR REHEARING

Present: BECKER, Chief Judge,
SLOVITER, MANSMANN, SCIRICA, NYGAARD, ALITO,
ROTH, McKEE, BARRY, AMBRO, FUENTES, GARTH* and
STAPLETON*, Circuit Judges



_________________________________________________________________
* As to panel rehearing only.
The petition for rehearing filed by appellee, Robert D.
Eberly, in the above-entitled case having been submitted to
the judges who participated in the decision of this Court
and to all the other available circuit judges of the circuit in
regular active service, and no judge who concurred in the
decision having asked for rehearing, and a majority of the
circuit judges of the circuit in regular service not having
voted for rehearing, the petition for rehearing by the panel
and the Court en banc, is denied.

       By the Court,

       /s/ Anthony J. Sirica Circuit Judge

Dated: 15 November 2001

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Brown v. Muhlenberg,

No. 00-1846

OPINION SUR DENIAL OF PETITION FOR REHEARING

Garth, Circuit Judge, Sur denial of Petition for Rehearing:

As a senior judge, I may only vote for panel rehearing but
I have not done so here because I recognize that the panel
majority is committed to its position. Unfortunately, the
Court has not voted for rehearing in this case. I regret that
the Court has not seen fit to amplify and clarify the
qualified immunity standard particularly as it pertains to
the second prong of that analysis, i.e., the"clearly
established" prong.

My dissenting panel opinion assumed that a
constitutional right had been violated, but I qualified that
assumption in my dissent because of the peculiar nature of
the factual context involved: does the Fourth Amendment
right involving seizure apply to the shooting by a police
officer of an unleashed, uncontrolled Rottweiler dog
running at large? My much more serious concern was the
failure of the panel to announce a standard for the second
prong of the qualified immunity test -- i.e. , how does the
bench and the bar know when even an undisputed and
unchallenged violation of a constitutional right has been
"clearly established?"

I have suggested in my panel dissent a standard which I
had hoped the Court would adopt because it not only has
the authority of the Second Circuit behind it, see Horne v.
Coughin, 155 F.3d 26, 29 (2d Cir. 1998), but because it
makes sound sense. We approached some aspects of the
"clearly established" standard in Judge Roth's recent
opinion, Doe v. Delie, 257 F.3d 309 (3d Cir. 2001). However,
neither the "clearly established" standard nor the
parameters of that standard were ever articulated as such.
Accordingly, I am disappointed that having had an
opportunity (and I believe an obligation) to do so, the entire
Court has now failed to discharge its responsibility in this
respect. It is primarily for that reason I wrote and filed my
panel dissent and that I have written and filed the within

                               3
statement Sur denial of Officer Eberly's Petition for
Rehearing.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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