Anthony (Tony) Gaston v. Anna Ramirez Palmer

Order; Dissent by

Judge O’SCANNLAIN.

ORDER WITHDRAWING OPINION AND DENYING THE PETITION FOR REHEARING EN BANC

ORDER

This court’s opinion filed October 28, 2004 [387 F.3d 1004] is hereby withdrawn and replaced with the attached Opinion. With the filing of the new opinion, the petition for rehearing en banc filed November 12, 2004 is DENIED. Judge Kle-infeld would grant it.

A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed. R.App. P. 35(f).

We defer decision on the…