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CORTEZ v. McCAULEY

No. 04-2062.

478 F.3d 1108 (2007)

Rick CORTEZ and Tina Cortez, Plaintiffs-Appellees, v. John McCAULEY, James Gonzales, Curtis Sanchez, Shureke Covington, and Joe Bowdich in their individual capacities, the Board of Commissioners of the County of Bernalillo, New Mexico, Defendants-Appellants. and Raquel Villegas, Defendant.

United States Court of Appeals, Tenth Circuit.

February 16, 2007.

Attorney(s) appearing for the Case

Paul J. Kennedy (Mary Y.C. Han with him on the briefs), of Kennedy & Han, P.C., Albuquerque, NM, and Caren I. Friedman, Santa Fe, NM, for Plaintiffs-Appellees.

William D. Slease (Jonlyn M. Martinez with him on the briefs), of Slease & Martinez, P.A., Albuquerque, NM, for Defendants-Appellants.

Before TACHA, Chief Judge, EBEL, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ, O'BRIEN, McCONNELL, TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.

ON REHEARING EN BANC

KELLY, Circuit Judge, joined by TACHA, Chief Judge, EBEL, HENRY, BRISCOE, LUCERO, and MURPHY, Circuit Judges, and joined in part by HARTZ, O'BRIEN, McCONNELL, TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.

We granted rehearing en banc primarily to consider under what circumstances, if any, an excessive force claim is subsumed in an unlawful arrest claim. The panel opinion upheld the district court's denial of qualified immunity except...

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