Iesha Mitchell, guardian and next friend of A.M. v. City of Benton Harbor, Michigan

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0219p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
IESHA MITCHELL, guardian and next friend of A.M. et
al.,
Plaintiffs-Appellants,
v.
CITY OF BENTON HARBOR, MICHIGAN; MARCUS
MUHAMMAD; MICHAEL O’MALLEY; DARWIN
WATSON; LIESL CLARK; ERIC OSWALD; ERNEST
SARKIPATO; BRANDON ONAN; ELHORN ENGINEERING
COMPANY,
Defendants-Appellees.
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No. 23-1970
On Petition for Rehearing En Banc
United States District Court for the Western District of Michigan at Grand Rapids.
No. 1:22-cv-00475—Hala Y. Jarbou, District Judge.
Argued: October 29, 2024
Decided and Filed: August 12, 2025
Before: MOORE, COLE, and LARSEN, Circuit Judges.
_________________
COUNSEL
ON PETITION FOR REHEARING EN BANC: Thomas J. Rheaume, Jr., Alexandra C. Markel,
Walter G. Pelton, BODMAN PLC, Detroit, Michigan, for City of Benton Harbor Appellees.
ON RESPONSE: Melanie Daly, Corey Stern, LEVY KONIGSBERG LLP, New York, New
York, for Appellants.
The court delivered an ORDER denying the petition for rehearing en banc. MOORE, J.
(pp. 3–9), delivered a separate opinion concurring in the denial of the petition for rehearing en
banc. LARSEN, J. (pp. 10–16), delivered a separate opinion dissenting from the denial of the
petition for rehearing en banc, in which KETHLEDGE, THAPAR, BUSH, NALBANDIAN,
READLER, and MURPHY, JJ., concurred. READLER, J. (pp. 17–23), delivered a separate
opinion dissenting from the denial of the petition for rehearing en banc, in which BUSH, J.,
concurred.
>

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No. 23-1970 Mitchell et al. v. City of Benton Harbor, Mich. et al. Page 2
_________________
ORDER
_________________
The court received a petition for rehearing en banc. The original panel has reviewed the
petition for rehearing and concludes that the issues raised in the petition were fully considered
upon the original submission and decision.
The petition was then circulated to the full court.* Less than a majority of the judges voted
in favor of rehearing en banc.
Therefore, the petition is denied.
*Hon. Whitney D. Hermandorfer did not participate in this decision.

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No. 23-1970 Mitchell et al. v. City of Benton Harbor, Mich. et al. Page 3
__________________
CONCURRENCE
__________________
KAREN NELSON MOORE, Circuit Judge, concurring in the denial of rehearing en banc.
There is a rising trend in our circuit of publishing separate statements when rehearing is denied
after a poll of the en banc court. I have serious concerns about this practice. In this case, the
opinions of the majority and the dissent have already been fully and carefully explained. Drafting
CliffsNotes versions of our views is not only unnecessary, but it is also offensive to our system of
panel adjudication. “The trust implicit in delegating authority to three-judge panels to resolve
cases as they see them would not mean much if the delegation lasted only as long as they resolved
those cases correctly as others see them.” Issa v. Bradshaw, 910 F.3d 872, 877–78 (6th Cir. 2018)
(Sutton, J., concurring in the denial of rehearing en banc). By accumulating votes for or against
the positions articulated in the panel opinions, we cast doubt on circuit precedent, erode our faith
in the panel system, and give rise to our own “shadow docket.” But when, as here, the dissenting
judge accuses the panel majority of “brazenly def[ying] Supreme Court precedent,” Principal
Dissental at 10, I cannot allow that accusation to go unanswered.1 See United States v. New York,
New Haven & Hartford R.R., 276 F.2d 525, 553–54 (2d Cir. 1960) (statement of Friendly, J.),
overruled in part, Chappell & Co. v. Frankel, 367 F.2d 197 (2d Cir. 1966). So, I write in response
to re-explain the panel majority’s reasoning.
This case concerns a lead-water crisis in Benton Harbor, Michigan, which played out in
the wake of the highly publicized water crisis in Flint, Michigan. In October 2018, routine water
testing revealed that Benton Harbor’s municipal water supply was tainted with dangerous
quantities of lead. See Mitchell v. City of Benton Harbor, 137 F.4th 420, 425 (6th Cir. 2025). As
is well known, lead is a toxic metal that is particularly hazardous to children. Id. Even low-level
exposure can cause lifelong consequences. Id. Despite these serious risks, and with the situation
1As the astute reader can discern, this concurrence in the denial of rehearing en banc was necessitated by the
panel dissenter now dissenting from the denial of rehearing en banc. Absent this dissental, there would have been no
reason to write defending the denial of rehearing en banc. Yet this simple paragraph of explanation has now produced
a new dissental from another judge actually proving my point: nothing of substance regarding the merits is gained by
this series of dissentals other than reiterating the points made in the original panel opinions. For further proof, please
see the panel opinions in Mitchell v. City of Benton Harbor, 137 F.4th 420 (6th Cir. 2025).

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No. 23-1970 Mitchell et al. v. City of Benton Harbor, Mich. et al. Page 4
in Flint barely in the rearview mirror, Plaintiffs allege that Benton Harbor City officials encouraged
residents to drink water that they knew was contaminated with lead, leading hundreds of children
to be exposed to lead and suffer symptoms of lead poisoning. See id. at 428–29, 437–38. Because
this would clearly violate those individuals’ constitutional right to bodily integrity, the panel
majority allowed the case against the City officials to proceed in the district court past a motion to
dismiss. I concur in the court’s decision to deny rehearing en banc.
I.
The Fourteenth Amendment prohibits state and local officials from “depriv[ing] any person
of life, liberty, or property, without due process of law.” Mitchell, 137 F.4th at 430 (quoting U.S.
Const. amend. XIV, § 1). Certain rights are so fundamental that their deprivation is prohibited
“regardless of the fairness of the procedures used to implement them.” Id. (quoting Guertin v.
Michigan, 912 F.3d 907, 918 (6th Cir. 2019) (quoting Daniels v. Williams, 474 U.S. 327, 331
(1986)), reh’g en banc denied, 924 F.3d 309 (6th Cir. 2019), cert. denied, 140 S. Ct. 933 (2020)).
Among these is the right to bodily integrity: “to be free from forcible intrusions on their bodies
against their will, absent a compelling state interest.” Id. (quoting Guertin, 912 F.3d at 919)
(quoting Planned Parenthood Sw. Ohio Region v. DeWine, 696 F.3d 490, 506 (6th Cir. 2012))).
“Involuntarily subjecting nonconsenting individuals to foreign substances with no known
therapeutic value . . . is a classic example of invading the core of the bodily integrity protection.”
Id. (quoting Guertin, 912 F.3d at 920–21). To establish a violation of this right, a plaintiff must
demonstrate that her bodily integrity was infringed by the conscience-shocking actions of a
government official. Id. (citing Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 725 (6th Cir.
1996)).
When does government action shock the conscience? It depends. Although our case law
demonstrates that unjustifiable and intentionally injurious actions usually shock the conscience,
and merely negligent actions do not, official conduct often defies neat classification. See id. at
430–31. When government action “falls somewhere between these bookends—in the
neighborhood of recklessness or gross negligence—we evaluate the conduct in context to
determine if the official was deliberately indifferent to a known risk of harm.” Id. (emphasis
added) (citing County of Sacramento v. Lewis, 523 U.S. 833, 850 (1998)). Contextual clues

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No. 23-1970 Mitchell et al. v. City of Benton Harbor, Mich. et al. Page 5
include “the time for deliberation, the nature of the relationship between the government and the
plaintiff, and whether a legitimate government purpose motivated the official’s act.” Id. at 431
(quoting Guertin, 912 F.3d at 924).
Our court has applied these principles to lawsuits arising from the well-known lead-water
crisis in Flint. There, it was alleged that City and state officials switched the City’s water supply
from Lake Huron to the Flint River for cost-cutting reasons, even though they knew that the
combination of river water and aging pipes would cause lead to leach into the drinking water.
Guertin, 912 F.3d at 915; In re Flint Water Cases, 960 F.3d 303, 312–14 (6th Cir. 2020). Carefully
applying substantive-due-process principles, we allowed the case to proceed against officials who
knowingly caused residents to drink lead-contaminated water, but granted qualified immunity to
those who were merely negligent and failed to blow the whistle. Guertin, 912 F.3d at 926–32.
II.
In this case, the panel was tasked with deciding whether Plaintiffs plausibly alleged that
officials in Benton Harbor engaged in similarly conscience-shocking conduct. As in Guertin, the
majority carefully separated out those officials who might have been merely negligent from those
plausibly alleged to have been deliberately indifferent to a known risk of poisoning their
constituents with lead.
The panel majority began with the state officials, who parachuted in to help when the
elevated lead levels were discovered. Plaintiffs alleged that the state officials encouraged the City
to use a corrosion-control chemical that was not sufficiently studied, failed to take vigorous action
to correct issues with the water supply, and made too little effort to correct City officials’
misstatements. Mitchell, 137 F.4th at 432–36. These allegations came up short of deliberate
indifference because they suggested, at most, “negligence and poor policy choices.” Id. A post-
hoc critique of arguably lackluster efforts to clean up Benton Harbor’s water supply did not amount
to a plausible constitutional violation.
The allegations against the City officials were different. Unlike the allegations concerning
the state officials, the complaint contained plausible allegations that City officials, including
Mayor Marcus Muhammad, knowingly misled the public about Benton Harbor’s lead-water

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No. 23-1970 Mitchell et al. v. City of Benton Harbor, Mich. et al. Page 6
contamination, encouraging residents unwittingly to drink the toxic water. Notably, at a press
conference following the lead-water discovery, Mayor Muhammad told the public that a notice
about elevated lead levels was “not being . . . delivered as a high alert, emergency 911, panic
frenzy” but just as an “FYI.” Id. at 437 (quoting R. 1 (Compl. ¶ 174) (Page ID #55)). We
considered this statement in the context in which it was made. Mayor Muhammed made this
remark at a press conference at which another City official, Darwin Watson, allegedly lied about
the presence of lead in the City’s water lines, characterizing issues as confined to individual homes
when he knew that they were systemic. Id. Both these statements were followed by letters from
the City of Benton Harbor, of which Muhammad was the mayor, indicating the water was safe to
drink. Id. These statements were reinforced by repeated assurances by the City’s drinking water
superintendent, Michael O’Malley, that the water was safe and the problem was getting under
control when it was not. Id. And they came amid months of inaction by the City in addressing the
lead-water crisis. Id. at 437–38. Read fairly and as a whole, these statements—attributable to each
City defendant—lend plausibility to Plaintiffs’ general allegations that the City officials knowingly
misled the public about the safety of the water, falsely assuring them of its safety, and causing
people to unknowingly ingest lead. Id. Considering that these statements were made with the
benefit of time to deliberate and to an audience of individuals involuntarily connected to the public
water supply, they give rise to a plausible inference of deliberate indifference. Id. at 436–38.
The panel majority’s conclusion is consistent with our court’s decision in Guertin. In
Guertin, we considered whether liability could be imposed on a communications professional,
Bradley Wurfel, who declared the water safe to drink and belittled efforts to challenge that
assertion. 912 F.3d at 928. We decided that liability could be imposed, even though Wurfel did
not “cause the contamination,” Principal Dissental at 13, because his affirmative
misrepresentations plausibly caused residents to ingest lead-contaminated water, Guertin, 912
F.3d at 928–29; accord In re Flint Water Cases, 960 F.3d at 329–30 (rejecting Wurfel’s argument
that “‘mere’ public statements cannot violate a person’s right to bodily integrity”). We reasoned
in Guertin that “[m]isleading Flint’s residents as to the water’s safety . . . is no different than the
forced, involuntary invasions of bodily integrity that the Supreme Court has deemed
unconstitutional.” Guertin, 912 F.3d at 926 (citations omitted). So too here. Because it was

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No. 23-1970 Mitchell et al. v. City of Benton Harbor, Mich. et al. Page 7
plausibly alleged that certain City officials knowingly misled the public about the dangers of the
lead-water contamination, the panel majority allowed the claims to proceed past the motion-to-
dismiss stage.
The principal dissental reaches the opposite conclusion by improperly drawing inferences
in favor of the City officials. The dissental recharacterizes the record as a series of well-meaning
efforts to publicize the lead-water discovery to the City’s residents, and interprets Mayor
Muhammad’s remark at the press conference as merely “alerting the public to a possible danger
while urging them not to panic.” Principal Dissental at 12–13. This is not the proper role of the
court at the motion-to-dismiss stage. At this juncture of the case, we must accept the factual
allegations as true and draw all reasonable inferences in favor of the Plaintiffs. After all, “a well-
pleaded complaint may proceed even if it strikes a savvy judge that . . . recovery is very remote
and unlikely.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (emphasis added) (citation
omitted). The dissental’s reliance on Lombardi v. Whitman, 485 F.3d 73 (2d Cir. 2007), is
misplaced. That case, which we distinguished in Guertin, 912 F.3d at 929, involved the sui generis
events of the immediate aftermath of the September 11, 2001, terrorist attacks. The officials in
Benton Harbor were not faced with comparable risks of “mass displacement” and “civil disorder”
that the Second Circuit viewed as sufficient to outweigh the imposition of liability for
disseminating false and damaging information affecting public health. Lombardi, 485 F.3d at 85.
Of course, the panel majority left the City officials free to renew their arguments on a factual
record at summary judgment.
III.
Next, the panel majority considered whether the City officials were entitled to qualified
immunity at this early stage of the litigation because the alleged constitutional violations were not
clearly established at the time they occurred. In concluding that the alleged substantive-due-
process violation was clearly established, the panel majority looked to Guertin. Guertin held that
the plaintiffs plausibly alleged a substantive-due-process violation by Wurfel, who allegedly lied
about the lead-water contamination, resulting in the consumption of lead-tainted water by the
residents of Flint—and that this conduct violated clearly established law. See Guertin, 912 F.3d
at 927–29, 932–35. Guertin recognized that this due-process violation was already clearly

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No. 23-1970 Mitchell et al. v. City of Benton Harbor, Mich. et al. Page 8
established at the time that Wurfel’s statements were made in 2015. As the Guertin panel
explained, the Flint “plaintiffs’ bodily integrity claim implicates a clearly established right that
‘may be inferred from [the Supreme Court’s] prior decisions.’” 912 F.3d at 934; see id. at 933–35
(relying on Washington v. Harper, 494 U.S. 210 (1990); and Cruzan v. Mo. Dep’t of Health, 497
U.S. 261 (1990)). It followed, then, that the same right, violated in the same way in this case, was
already clearly established by the time that the events in this case took place. As in Guertin,
affirmatively misleading the public about lead-water contamination and encouraging them to drink
lead-tainted water was a clearly established constitutional violation at the time the events in this
case occurred. Mitchell, 137 F.4th at 440–41.
The principal dissental misconstrues the panel majority’s opinion to rely on Guertin as the
originating source of clearly established law, even though Guertin was decided after much of the
conduct alleged in Benton Harbor. Principal Dissental at 14. But that was not the panel majority’s
analysis. Instead, as explained above, the panel majority relied on Guertin’s precedential analysis
of prior caselaw, which recognized a right that was already clearly established. Mitchell, 137 F.4th
at 440–41. To avoid this conclusion, the dissental also misreads Guertin as resting on the
obviousness of the violation there, which is arguably more egregious than the facts alleged here.
Principal Dissental at 11. True, Guertin cites Hope v. Pelzer, 536 U.S. 730 (2002), but the point
in Guertin was that the constitutional violation was also obvious. Guertin, 912 F.3d at 933.
Principally, Guertin rested on the guidance of prior caselaw. And again, the panel majority left
the City officials free to renew their qualified-immunity arguments at summary judgment.
Mitchell, 137 F.4th at 441; see Wesley v. Campbell, 779 F.3d 421, 433–34 (6th Cir. 2015) (“[I]t is
generally inappropriate for a [] court to grant a 12(b)(6) motion to dismiss on the basis of qualified
immunity.”).
IV.
In closing, I must address the principal dissental’s alarmist premonition about the
consequences of the panel majority’s decision for “officials who inform the public of an
environmental danger [and] must now sound the alarm in the constitutionally required perfect
pitch.” Principal Dissental at 15. Respectfully, the position advocated in the dissental poses a
grave risk for the individuals affected by these public-health disasters. Guertin and its progeny

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No. 23-1970 Mitchell et al. v. City of Benton Harbor, Mich. et al. Page 9
encourage public officials to investigate and communicate what they know about public-health
crises. And they discourage such officials from engaging in unjustified public-health experiments
and affirmative misrepresentations of public-health risks. The dissental encourages the opposite.
It advises public officials that they can be liable only in those rare cases when they actively poison
the water supply and tells officials that they will benefit from inferences in their favor, even at the
earliest stage of the litigation. Such a position contravenes the principles articulated in Guertin
and undermines the public’s interest in holding their officials accountable for violations of their
constitutional rights. For these reasons, I concur in the court’s decision to deny en banc rehearing
in this case.2
2For interested readers, I offer judicial perspectives and academic literature critiquing the practice of issuing
dissentals after the denial of rehearing en banc. Dissents from the denial of rehearing en banc are undoubtedly on the
rise. See Allison Orr Larsen & Neal E. Devins, The Judicial Voice on the Courts of Appeals, 111 Iowa L. Rev. __
(forthcoming 2026) (manuscript at 46–47), https://perma.cc/B6UF-SFDX; Jeremy D. Horowitz, Not Taking “No” for
an Answer: An Empirical Assessment of Dissents from Denial of Rehearing En Banc, 102 Geo. L.J. 59, 69–70 (2013).
The practice of writing dissentals has been criticized by many well-respected scholars and jurists. Although these
thinkers recognize the value of reasoned debate within the judicial process, they have argued that the issuance of
statements respecting the grant or denial of rehearing en banc has serious drawbacks. See Doe v. Fairfax Cnty. Sch.
Bd., 10 F.4th 406, 407–08 (4th Cir. 2021) (order) (Wynn, J., concurring in the denial of rehearing en banc). As many
have noted, dissentals often read like “press release[s],” David McGowan, Judicial Writing and the Ethics of the
Judicial Office, 14 Geo. J. Legal Ethics 509, 576 (2001), and serve as “thinly disguised invitations to certiorari,” Judge
Patricia M. Wald, D.C. Circuit: Here and Now, 55 Geo. Wash. L. Rev. 718, 719 (May & Aug. 1987). Unlike “[p]anel
dissents and concurrences[,] [which] improve internal decision-making processes . . . , dissents from the denial of en
banc are often thinly (or not so thinly) veiled entreaties to the Supreme Court. They are, essentially, judicial petitions
for certiorari.” Judge Marsha S. Berzon, Dissent, Dissentals, and Decision Making, 100 Calif. L. Rev. 1479, 1491
(2012); see Indep. Ins. Agents of Am., Inc. v. Clarke, 965 F.2d 1077, 1080 (D.C. Cir. 1992) (order) (statement of
Randolph, J.) (finding it “inappropriate” for a judge to “step[] out of the robe and into the role of an advocate, urging
the Supreme Court to take the case on certiorari and correct the panel’s judgment.”). Judges and commenters have
also recognized that dissentals are, as a structural matter, “not respectful of legitimate authorities, precedent, or judicial
tradition.” Judge William Pryor Jr., The Perspective of a Junior Circuit Judge on Judicial Modesty, 60 Fla. L. Rev.
1007, 1022 (2008). Judge Pryor argues that is so because the dissental respects neither “the decision of the original
panel, which now represents the binding precedent for the circuit” nor the “considered decision of the full court not to
rehear the appeal.” Id.; see Horowitz, supra, at 88 (“If a court cannot respect the finality of its own judgments, one
cannot expect the public to respect it either. As a result, the value of precedent decreases, the law appears less fixed,
and the courts become merely another arena for political debate, rather than a site where disputes receive a conclusive
resolution.”). These thinkers have expressed particular concern about statements from dissenters who were not
members of the initial panel, but merely sit as a “scholar-in-residence provid[ing] academic criticism of the court.”
Pryor, supra, at 1021. Having failed to engage fully with the case through the deliberative panel process, such
statements “often reflect incorrect or incomplete understandings of the record or the legal arguments at issue.” Berzon,
supra, at 1491. Finally, it has been observed that such statements, frequently filled with rhetorical language, challenge
the collegiality of the court. See Pryor, supra, at 1023.

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No. 23-1970 Mitchell et al. v. City of Benton Harbor, Mich. et al. Page 10
_________________
DISSENT
_________________
LARSEN, Circuit Judge, dissenting from the denial of rehearing en banc. The court
concludes that several City of Benton Harbor officials plausibly violated city residents’ clearly
established substantive due process right to bodily integrity. How? Each official is alleged to have
engaged in slightly different conduct.1 But to take one, consider the case of Mayor Marcus
Muhammad. At a press conference, he informed residents that the water in some city homes had
dangerous levels of lead, and he advised them that they could work with the City to test their water.
He also urged them not to panic; and that, according to the court, crossed a clearly established
constitutional line because it “undermined” the rest of the message. Mitchell v. City of Benton
Harbor, 137 F.4th 420, 437 (6th Cir. 2025). In other words, the court strips Muhammad of
qualified immunity for not delivering the warning with the (now) constitutionally required tone of
alarm.
Muhammad’s failure to speak with sufficient alarm is in no way “conscience shocking”
behavior that violates the Constitution. And until today, no case has come close to holding that it
is. Accordingly, Muhammad is entitled to qualified immunity.2
The court’s conclusion to the contrary brazenly defies Supreme Court precedent, which
alone merits en banc review. And the importance of the question at issue—the constitutional
liability of government officials responding to naturally occurring environmental crises—deepens
1City Manager Darwin Watson allegedly violated the right by misstating that the City had no lead lines (a
statement he corrected within one month) and telling homeowners they were responsible for replacing service lines
running from sidewalks to homes. Drinking Water Superintendent Mike O’Malley allegedly violated the same right
by telling one unidentified resident that the water was safe to drink, publicly overstating the progress of the corrosion
control treatment, and attempting to obscure lead testing results.
2The majority opinion also denies qualified immunity to Watson and O’Malley. See Mitchell, 137 F.4th at
437–38, 440–41. My partial dissent from the panel opinion explains why I disagree with respect to Watson. See id.
at 447–52 (Larsen, J., concurring in part, concurring in the judgment in part, and dissenting in part). I concurred in
the judgment with respect to O’Malley because this court, in Braziel v. Whitmer, No. 23-1954, 2024 WL 3966238
(6th Cir. Aug. 28, 2024), had already denied him qualified immunity based on identical allegations. See Mitchell, 137
F.4th at 443 (Larsen, J., concurring in part, concurring in the judgment in part, and dissenting in part). But, as noted
there, I question Braziel’s holding as to O’Malley for the reasons articulated in Judge Nalbandian’s partial dissent in
Braziel. See 2024 WL 3966238, at *11–13 (Nalbandian, J., concurring in part and dissenting in part).

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No. 23-1970 Mitchell et al. v. City of Benton Harbor, Mich. et al. Page 11
the need for the full court’s consideration of this case. I thus respectfully dissent from the denial
of rehearing en banc.
I.
In Guertin v. Michigan, this court considered government actors’ constitutional liability
stemming from the Flint Water Crisis, an “infamous government-created environmental disaster”
involving lead contamination in the water. 912 F.3d 907, 915 (6th Cir. 2019) (emphasis added).
In that context, Guertin held that “a government actor violates individuals’ right to bodily integrity
by knowingly and intentionally introducing life-threatening substances into individuals without
their consent, especially when such substances have zero therapeutic benefit.” Id. at 921 (emphasis
added). And it denied qualified immunity to the officials responsible because the “obvious
cruelty” in “taking affirmative steps to systematically contaminate a community through its public
water supply,” while “assuring the public in the meantime that it was safe,” put officials on notice
that their actions were unconstitutional. Id. at 933 (quoting Hope v. Pelzer, 536 U.S. 730, 745
(2002)). Guertin made clear, however, that “the Constitution does not guarantee a right to live in
a contaminant-free, healthy environment.” Id. at 921–22.
Several members of our court thought that the en banc court should take another look at
the Guertin decision. See Guertin v. Michigan, 924 F.3d 309, 315–17 (6th Cir. 2019) (order)
(Kethledge, J., dissenting from the denial of rehearing en banc). But whatever one thought of
Guertin, this case breaks new ground. Here, the lead contamination occurred naturally, and the
officials alerted the community to the presence of potentially toxic lead levels. That places this
case well below the constitutional threshold set out in Guertin. Yet the court deems the plaintiffs
to have plausibly alleged a violation of their clearly established constitutional rights. And it does
so even though the actions alleged here took place before this court decided Guertin, and without
even suggesting that this is the “obvious” case. See District of Columbia v. Wesby, 583 U.S. 48,
65 (2018) (noting that a “body of relevant case law is not needed” when the constitutional violation
was “obvious” (quotation marks and citation omitted)). At each step, then, the majority opinion
contravenes binding authority to let Plaintiffs’ insufficient claims proceed.

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No. 23-1970 Mitchell et al. v. City of Benton Harbor, Mich. et al. Page 12
A.
In October 2018, the City of Benton Harbor discovered elevated lead levels in parts of its
drinking water. Not every home was contaminated; at the time, the City knew that roughly a
quarter of tested homes (eight out of thirty) had elevated lead levels. And no one disputes that
natural corrosion of the City’s old lead pipes was the cause.
That month, city officials held a press conference to notify residents. Mayor Marcus
Muhammad told residents that there was lead in some of the City’s water but that the
announcement was not being “delivered as a high alert, emergency 911, panic frenzy. This is FYI,
and you can work with our city staff to find out ways to get tested.” R. 1, Compl., PageID 55.
Following this press conference, the City took further steps to inform residents and resolve
the crisis. The City routinely distributed lead advisories to residents. The advisories warned of
possible lead contamination and informed residents how to minimize exposure. Though not all
households received the notices, most did, and Plaintiffs don’t allege that the City deliberately
omitted households from the mailings. At the same time, the City worked to mitigate the
contamination, implementing a corrosion control treatment within months of the discovery. This
timeline was quicker than state regulations required, and Plaintiffs acknowledge that the corrosion
control was meant to “prevent or minimize corrosion of lead pipes.” Id. at 48.
B.
Muhammad’s conduct at the October 2018 press conference did not plausibly violate
Plaintiffs’ constitutional right to bodily integrity. In evaluating intrusions upon bodily integrity
under the Due Process Clause, we apply the shocks-the-conscience test. Guertin, 912 F.3d at 922.
Mere negligence is not enough. Id. at 923. Rather, an official’s actions must have evinced at least
“deliberate indifference” that “violates the decencies of civilized conduct.” Id. at 918, 923
(quoting County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). Guertin found
conscience-shocking deliberate indifference where government officials knowingly contaminated
the water supply—thereby “caus[ing] Flint residents to consume a toxin with no known benefit”—
“did so without telling [residents], and made affirmative representations that the water was safe to
drink.” Id. at 934.

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No. 23-1970 Mitchell et al. v. City of Benton Harbor, Mich. et al. Page 13
Mayor Muhammad did none of those things. He did not cause the contamination, he
warned residents of it, and he advised them on how to test their water’s safety. Plaintiffs
nevertheless allege, and the court accepts, that Muhammad violated the Constitution because, by
casting his statement as an “FYI” and disclaiming a “high alert” emergency, he “diminished the
effect” of the water-contamination notice. Mitchell, 137 F.4th at 437, 439. With respect, alerting
the public to a possible danger while urging them not to panic is in no way “shocking to the
universal sense of justice”—the “sort of egregious behavior” that violates due process. Guertin,
912 F.3d at 923 (citations omitted).
In finding Muhammad plausibly liable, the court dilutes the robust constitutional
deliberate-indifference standard to the weakest of tea. Deliberate indifference requires finding
both that the defendant had “a subjective awareness of substantial risk of serious injury” and that
he “did not act in furtherance of a countervailing governmental purpose that justified taking that
risk.” Id. at 924 (citation omitted). At least one circuit has correctly identified that when it comes
to managing a crisis, officials fulfill an “essential government function” when they “avoid panic”
and “keep order.” Lombardi v. Whitman, 485 F.3d 73, 83 (2d Cir. 2007). Muhammad’s disclaimer
of a “high alert, emergency 911, panic frenzy” served those very functions. R. 1, Compl., PageID
55. The majority nonetheless deems Muhammad’s disclaimer clearly unconstitutional because it
“undermined” other parts of the message—that lead was in some of the water and was dangerous.
Mitchell, 137 F.4th at 437. The Constitution, however, does not insist that public officials perfectly
balance competing government interests. Neither “imprudence” nor “poor execution” shocks the
conscience, Ewolski v. City of Brunswick, 287 F.3d 492, 516 (6th Cir. 2002); only actions taken
with “callous disregard or intent to injure” do, Guertin, 912 F.3d at 924 (citation omitted).
Finding constitutional liability here does the very thing the shocks-the-conscience test
guards against: it turns what is at most a “run-of-the-mill tort claim[]” into a constitutional
violation. Id. at 923. The majority opinion—and now this circuit’s caselaw—drains the test of its
essence and abnegates our responsibility to “preserv[e] the constitutional proportions of
substantive due process.” Lewis, 523 U.S. at 850.

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C.
The majority opinion’s clearly established analysis only makes matters worse. To
overcome qualified immunity, a plaintiff must show that government actors ran afoul of specific
legal precedents that clearly outlawed their actions “at the time of the challenged conduct.”
Ashcroft v. al-Kidd, 563 U.S. 731, 735, 741 (2011) (emphasis added). Plaintiffs pointed to Guertin
and In re Flint Water Cases, 960 F.3d 303 (6th Cir. 2020), as having clearly established the law.
But those cases were published in 2019 and 2020, respectively, after Muhammad made his
statement at the October 2018 press conference.3 To defeat qualified immunity, then, Plaintiffs
needed to show that this is the “rare ‘obvious case’” with facts so egregious that the
unconstitutionality of Muhammad’s actions was “beyond debate.” Wesby, 583 U.S. at 64 (citations
omitted).
The panel opinion doesn’t even attempt to cast this as the obvious case. Instead, it says
that “a long line of due-process case law clearly establish[ed]” a right to bodily integrity, which is
“sacred, founded upon informed consent, and may be invaded only upon a showing of a
government interest.” Mitchell, 137 F.4th at 441 (citation omitted). But “sweeping statements
about constitutional rights do not provide officials with the requisite notice.” Guertin, 912 F.3d at
934. And the Supreme Court has “repeatedly” admonished lower courts for “defin[ing] clearly
established law at too high a level of generality.” City of Tahlequah v. Bond, 595 U.S. 9, 12 (2021)
(per curiam). To deprive an officer of qualified immunity, the “rule’s contours must be so well
defined that it is ‘clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.’” Id. (citation omitted). Yet the “clearly established” law that the panel majority
identifies—a “sacred” right to “bodily integrity” that is “founded upon informed consent”—is as
hazy as it gets. Mitchell, 137 F.4th at 441 (citation omitted).
3In my partial dissent, I explain why, even if Guertin and In re Flint Water had been clearly established at
the time, they would not have put the defendants on notice that their actions violated the Constitution. See Mitchell,
137 F.4th at 451–52 (Larsen, J., concurring in part, concurring in the judgment in part, and dissenting in part).

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Muhammad’s only specifically alleged action here, conveying that a burgeoning crisis was
“cause for concern” but not for panic, did not violate the Constitution—much less obviously so.
R. 92-14, State Defs.’ Ex. 13, PageID 1010. The majority’s conclusion that he nevertheless
violated a “clearly established” right to bodily integrity defies Supreme Court precedent. See
Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam) (explaining that, for a legal rule “cast
at a high level of generality” to have clearly established the law, the constitutional violation must
have been “obvious”).
II.
Creating constitutional liability in this context will have consequences. Crises that call for
prompt government action, and criticisms thereof, pepper the news cycle. In our circuit, officials
who inform the public of an environmental danger must now sound the alarm in the
constitutionally required perfect pitch. If not, their failure to strike the right tone will be deemed
an affront to the Constitution.
This change will come at a cost to both government actors and their communities. When
dealing with public crises, government officials often act on imperfect information and confront
competing obligations. See Lombardi, 485 F.3d at 83. Facing constitutional liability for “the
disclosure of incomplete, confusingly comprehensive, or mistakenly inaccurate information,
officials might default to silence in the face of the public’s urgent need for information.” Id. at 84.
After all, absent a special relationship, “a government official’s failure to warn of a known danger,
without more, does not violate substantive due process.” Id.; see also Guertin, 912 F.3d at 930
(dismissing claims against government actors who “failed to protect and notify the public” because
“the Due Process Clause is a limitation only on government action” (quotation marks omitted)).
Alternatively, officials may overreact to avoid blame for not doing enough, thereby needlessly
fostering panic in the present and minimizing the efficacy of alerts in the long run.

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In short, imposing constitutional liability for public statements like Muhammad’s risks
harm for local governments and communities alike. The results will not be inevitable byproducts
of the Constitution, but rather avoidable byproducts of our misguided caselaw.
* * *
I respectfully dissent from the order denying rehearing en banc.

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_________________
DISSENT
_________________
READLER, Circuit Judge, dissenting from the denial of rehearing en banc. I join fully in
Judge Larsen’s dissent. Our concurring colleague’s broader concern over separate writings at the
en banc stage, Concurring Op. 3, ironically enough, prompts me to add one more writing to the
mix.
Our colleague has “serious concerns” over what she sees as the “rising trend in our circuit
of publishing separate statements when rehearing is denied” by the en banc court. Id. If past
practice is any indicator, our colleague’s distaste for separate writings, dissents from the denial of
rehearing en banc in particular, appears to be a very recent phenomenon. See, e.g., United States
v. Esteras, 95 F.4th 454, 454 (6th Cir. 2024) (order) (Moore, J., dissenting from denial of rehearing
en banc); United States v. Esteras, 88 F.4th 1170, 1170 (6th Cir. 2023) (order) (Moore, J.,
dissenting from denial of rehearing en banc); Doster v. Kendall, 65 F.4th 792, 794 (6th Cir. 2023)
(order) (Moore, J., dissenting from the denial of rehearing en banc); Bristol Reg’l Women’s Ctr.,
P.C. v. Slatery, 993 F.3d 489, 489 (6th Cir. 2021) (order) (Moore, J., dissenting from the grant of
initial hearing en banc); Martinez v. Larose, 980 F.3d 551, 555 (6th Cir. 2020) (order) (Moore, J.,
dissenting from the denial of rehearing en banc); see also United States v. Carpenter, 80 F.4th 790,
790, 795 (6th Cir. 2023) (order) (Moore, J., joining opinion dissenting from the denial of rehearing
en banc); Robinson v. Long, 966 F.3d 521, 521 (6th Cir. 2020) (order) (Moore, J., joining opinion
dissenting from denial of rehearing en banc); cf. Boone Cnty. Republican Party Exec. Comm. v.
Wallace, 140 F.4th 797, 797 (6th Cir. 2025) (order) (Moore, J., concurring in the denial of
rehearing en banc); Fenner v. Gen. Motors, LLC, 121 F.4th 1117 (6th Cir. 2024) (order) (Moore,
J., concurring in the denial of rehearing en banc); Snyder-Hill v. Ohio State Univ., 54 F.4th 963,
964 (6th Cir. 2022) (order) (Moore, J., concurring in the denial of rehearing en banc); In re MCP
No. 165, 20 F.4th 264, 267 (6th Cir. 2021) (order) (Moore, J., concurring in the denial of initial
hearing en banc); Davenport v. MacLaren, 975 F.3d 537, 537–38 (6th Cir. 2020) (order) (Moore,
J., joining separate opinion concurring in the denial of rehearing en banc). It is also difficult to
reconcile with the current arc of legal discourse.

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No. 23-1970 Mitchell et al. v. City of Benton Harbor, Mich. et al. Page 18
Debate over weighty issues is the heart and soul of the legal profession. In nearly all
respects, we encourage the exchange of ideas. For lawyers and litigants, their efforts benefit from
legal analysis by peers and judges alike, all of which helps shape legal practice and strategy going
forward. See Georgia v. Public.Resource.Org., Inc., 590 U.S. 255, 288 (2020) (Thomas, J.,
dissenting) (explaining that the existence of multiple opinions helps readers “understand[] the
reasoning that animates the rule” and thus “provides pivotal insight into how the law will likely be
applied in future judicial opinions”). The same is true for judges, whose “legal analysis” is
likewise “elevate[d]” by “healthy and respectful discussion about important ideas.” United States
v. Boler, 115 F.4th 316, 333 (4th Cir. 2024) (Quattlebaum, J., dissenting). After all, in ultimately
resolving the difficult legal questions put before us, we customarily are aided by more thought and
inspection, not less.
That is what separate writings—concurrences, dissents, concurrals, dissentals, and the
like—aim to achieve. They flesh out legal issues beyond what prior opinions have done, either
reinforcing earlier conclusions or raising questions over them. These writings thus “serve an
important function and,” for that reason, “are taken seriously by courts, the public, the academy,
and the legal profession.” Alex Kozinski & James Burnham, I Say Dissental, You Say Concurral,
121 Yale. L.J. Online 601, 607 (2012). Indeed, contrary to our colleague’s concern about
“erod[ing] faith in the panel system,” Concurring Op. 1, the practice of writing at the en banc stage
in fact increases our Court’s legitimacy: “It does honor to the law, promotes justice, and serves
the interests of an informed public when citizens learn that appellate judges have given difficult
and important cases exacting scrutiny—not just one judge or even the three-judge panel, but an
entire court of appeals.” Kozinski & Burnham, supra, at 612. Few jurists would understand all of
this better than our concurring colleague, who has contributed as much to the legal discourse in
our Circuit as has anyone over the last three decades.
True, in some instances an en banc–stage writing may reiterate points in an underlying
panel opinion. See Concurring Op. 1 (critiquing separate writings that are “CliffNotes versions”
of panel opinions). But see Martinez, 980 F.3d at 556 (Moore, J., dissenting from the denial of
rehearing en banc) (reiterating panel dissent’s reasoning); Fenner, 121 F.4th at 1118 (Moore,
J., concurring in the denial of rehearing en banc) (reiterating panel opinion’s reasoning); Snyder-

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Hill, 54 F.4th at 964 (Moore, J., concurring in the denial of rehearing en banc) (same). Yet even
then, the writing serves an important function: it allows other judges apart from those randomly
assigned to the panel to join in the effort, which further informs issues in the current case, to say
nothing of the next one. See Kozinski & Burnham, supra, at 604 (defending the legitimacy of
“off-panel judge[s]” writing at the en banc stage). The esteemed Judge J. Harvie Wilkinson
summed up the en banc process exactly this way. “Judges vote on th[e] [en banc] poll, and judges
are entitled to explain their reasons for that vote. Giving reasons is what we do. Reasoning adds
to judicial transparency; it does not detract from it. And debate on issues of legal and public
importance is to be welcomed, not disapproved.” Doe v. Fairfax Cnty. Sch. Bd., 10 F.4th 406, 414
(4th Cir. 2021) (order) (Wilkinson, J., dissenting from denial of en banc rehearing).
Members of the Supreme Court understandably hew to this same practice. At the certiorari
stage, justices will sometimes craft separate opinions expressing their views on why a case should
(or should not) have been accepted for review, views that often inform related cases going
forward. E.g., MacRae v. Mattos, 145 S. Ct. 2617, 2617 (2025) (mem.) (Thomas, J., statement
respecting the denial of certiorari); Snope v. Brown, 145 S. Ct. 1534, 151534 (2025) (mem.)
(Kavanaugh, J., statement respecting the denial of certiorari); Rimlawi v. United States, 145 S. Ct.
518, 518 (2025) (mem.) (Gorsuch, J., dissenting from the denial of certiorari); Nicholson v. W.L.
York, Inc., 145 S. Ct. 1528, 1528–29 (2025) (mem.) (Jackson, J., dissenting from the denial of
certiorari); Shockley v. Vandergriff, 145 S. Ct. 894, 894 (2025) (mem.) (Sotomayor, J., dissenting
from the denial of certiorari); see also Eugene Gressman et al., Supreme Court Practice § 5.5, at
330–31 (9th ed. 2007) (noting, nearly two decades ago, the rise in “the practice of publicly
recording dissents from the denial of certiorari” and cataloguing the “[m]any different purposes”
these writings serve, including providing “signals to the bar” or “to the litigants”).
But there is one more reason why these writings are valued: The Supreme Court relies on
them in overseeing our legal system. The Supreme Court faces a daunting task. Among all of the
cases in the federal courts, it must select the most deserving for review. See Sup. Ct. R. 10 (“A
petition for a writ of certiorari will be granted only for compelling reasons.”). To do so, it relies
on the development of legal opinions across the “inferior courts.” U.S. CONST., art. III, § 1.
As cases “percolate[]” in those courts, jurists add their “independent evaluation” of the issues

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No. 23-1970 Mitchell et al. v. City of Benton Harbor, Mich. et al. Page 20
presented, meaning that when the Supreme Court eventually is asked to review those issues, it
“has the benefit of the experience of those lower courts.” See Samuel Estreicher & John E. Sexton,
A Managerial Theory of the Supreme Court’s Responsibilities: An Empirical Study, 59 N.Y.U. L.
Rev. 681, 716 (1984). And that percolation process, it is well understood, informs the Supreme
Court’s decisionmaking, both which cases to decide, and how to decide them. See, e.g., United
States v. Mendoza, 464 U.S. 154, 160 (1984) (“[T]his Court . . . benefit[s] . . . from permitting
several courts of appeals to explore a difficult question before this Court grants certiorari.”);
Calvert v. Texas, 141 S. Ct. 1605, 1606 (2021) (mem.) (Sotomayor, J., statement respecting the
denial of certiorari) (“The legal question Calvert presents is complex and would benefit from
further percolation in the lower courts prior to this Court granting review.”).
Separate writings in the courts of appeals, including at the en banc stage, are critical pieces
to this puzzle. In case after case, the Supreme Court has cited those writings and explained how
they informed the Supreme Court’s review process. Examples from just the last two Supreme
Court terms abound. See, e.g., Medina v. Planned Parenthood S. Atl., 145 S. Ct. 2219, 2228 (2025)
(citing N.Y. State Citizens’ Coal. for Children v. Poole, 935 F.3d 56, 60 (2d Cir. 2019) (mem.)
(Livingston, J., dissenting from the denial of rehearing en banc)); Fuld v. Palestine Liberation
Org., 145 S. Ct. 2090, 2109 (2025) (citing 101 F.4th 190, 208 (2d Cir. 2024) (mem.) (Menashi, J.,
dissenting from the denial of rehearing en banc)); Cath. Charities Bureau, Inc. v. Wis. Lab. &
Indus. Rev. Comm’n, 145 S. Ct. 1583, 1597 (2025) (Thomas, J., concurring) (citing McRaney v.
N. Am. Mission Bd. S. Baptist Convention, 980 F.3d 1066, 1076–78 (5th Cir. 2020) (per curiam)
(Oldham, J., dissenting from the denial of rehearing en banc)); Hittle v. City of Stockton, 145 S.
Ct. 759, 764 (2025) (mem.) (Thomas, J., dissenting from the denial of certiorari) (citing 101 F.4th
1000, 1022 (9th Cir. 2024) (order) (VanDyke, J., dissenting from the denial of rehearing en banc));
Davis v. Smith, 145 S. Ct. 93, 97 (2025) (mem.) (Thomas, J., dissenting from the denial of
certiorari) (citing Cassano v. Shoop, 10 F.4th 695, 696–97 (6th Cir. 2021) (order) (Griffin, J.,
dissenting)); Kennedy v. Benson, --- S. Ct. ---, 2024 WL 4607563, at *1 (Oct. 29, 2024) (mem.)
(Gorsuch, J., dissenting) (first citing 119 F.4th 464, 471 (6th Cir. 2024) (order) (Thapar, J.,
dissenting from the denial of rehearing en banc); then citing id. at 476 (Readler, J., dissenting from
the denial of rehearing en banc); and then citing id. at 486 (McKeague, J., statement respecting the

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No. 23-1970 Mitchell et al. v. City of Benton Harbor, Mich. et al. Page 21
denial of rehearing en banc)); Moody v. Netchoice, LLC, 144 S. Ct. 2383, 2408 (2024) (citing U.S.
Telecom Ass’n v. FCC, 855 F.3d 381, 432 (D.C. Cir. 2017) (per curiam) (order) (Kavanaugh, J.,
dissenting from the denial of rehearing en banc)); City of Grants Pass v. Johnson, 144 S. Ct. 2202,
2214 (2024) (citing, inter alia, 72 F.4th 868, 925 (9th Cir. 2023) (order) (O’Scannlain, J., statement
respecting the denial of rehearing en banc)); Erlinger v. United States, 144 S. Ct. 1840, 1856 n.4
(2024) (citing United States v. Brown, 77 F.4th 301, 303 (4th Cir. 2023) (order) (Wynn, J.,
dissenting from the denial of rehearing en banc)); Moore v. United States, 144 S. Ct. 1680, 1703
(2024) (Barrett, J., concurring in the judgment) (citing 53 F.4th 507, 508 (9th Cir. 2022) (order)
(Bumatay, J., dissenting from the denial of rehearing en banc)); Rudisill v. United States, 144 S.
Ct. 945, 960 (2024) (Kavanaugh, J., concurring) (citing Kisor v. McDonough, 995 F.3d 1347, 1350
(Fed. Cir. 2021) (per curiam) (order) (Prost, C.J., concurring in the denial of the petition for
rehearing en banc)); see also Kozinski & Burnham, supra, at 607 nn.40–42 (cataloging additional
citations as well as further uses in oral argument).
In so doing, the Supreme Court often highlights the number of judges who joined the
writing, which I take to reflect the weight justices place upon these efforts in the appeals courts.
E.g., Dep’t of State v. Munoz, 144 S. Ct. 1812, 1820 (2024) (“The Ninth Circuit denied en banc
review over the dissent of 10 judges . . . .”); Thornell v. Jones, 144 S. Ct. 1302, 1309 (2024) (“Ten
judges dissented from the denial of en banc review. Judge Ikuta, joined by two other judges,
argued that the panel should have deferred to the state postconviction review court on the
Strickland prejudice inquiry. Judge Bennett, joined by eight others, assumed without deciding that
the panel could consider the new evidence.”); A. J. T. ex rel. A. T. v. Osseo Area Sch., Indep. Sch.
Dist. No. 279, 145 S. Ct. 1647, 1654 (2025) (“A. J. T.’s petition for rehearing en banc was denied,
with three judges dissenting.”); Doe ex rel. Roe v. Snap, Inc., 144 S. Ct. 2493, 2493 (2024) (mem.)
(Thomas, J., dissenting from the denial of certiorari) (“The Court of Appeals denied rehearing en
banc over the dissent of Judge Elrod, joined by six other judges.”); Johnson v. Prentice, 144 S. Ct.
11, 14 (2023) (mem.) (Jackson, J., dissenting from the denial of certiorari) (“With five judges
dissenting, the entire Court of Appeals subsequently denied Johnson's petition for rehearing en
banc . . . .”). A notable example on this front is the Supreme Court’s recent opinion in Grants

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Pass, which lays out in detail how the Supreme Court views separate writings at an appeals court’s
en banc stage:
The city sought rehearing en banc, which the court denied over the objection of 17
judges who joined five separate opinions. Judge O’Scannlain, joined by 14 judges,
criticized Martin’s “jurisprudential experiment” as “egregiously flawed and deeply
damaging—at war with constitutional text, history, and tradition.” Judge Bress,
joined by 11 judges, contended that Martin has “add[ed] enormous and unjustified
complication to an already extremely complicated set of circumstances.” And
Judge Smith, joined by several others, described in painstaking detail the ways in
which, in his view, Martin had thwarted good-faith attempts by cities across the
West, from Phoenix to Sacramento, to address homelessness.
144 S. Ct. at 2214 (citations omitted). In particular, the separate en banc–stage writings of our
colleagues on the Ninth Circuit highlighted both the repeat-player legal doctrines commonly at
issue in that circuit and the damaging practical consequences flowing from those doctrines, all of
which likely informed the Supreme Court’s ultimate resolution of the case. As this and other cases
reflect, “the jurisprudential benefits that come with” writing separately at the en banc stage “more
than merit a continuing and vibrant community of dissental writing.” Diarmuid F. O’Scannlain, A
Decade of Reversal: The Ninth Circuit’s Record in the Supreme Court Through October Term
2010, 87 Notre Dame L. Rev. 2165, 2178 (2012).
Much more could be said on the topic, but the point seems easy enough to
understand. Most of us welcome, indeed encourage, the exchange of ideas, the Supreme Court
included. Perhaps one who does not want a panel opinion placed in the spotlight might bristle at
colleagues adding their dissenting voices, as a collection of judges, led by Judge Larsen, have done
here. See Jonathan H. Adler, Are There Too Many Dissents from Denial of En Banc Petitions?,
Volokh Conspiracy (Aug. 31, 2021), https://perma.cc/228V-E5TX (“I get that judges do not like
to be criticized, and they like even less to be overruled. And if a judge’s overall judicial philosophy
is out-of-step with that of the Supreme Court, such reversals may be more common. Yet if such
reversals are a problem, it seems the better course would be for circuit courts to decide cases in
accord with prevailing legal principles than to complain about dissents from denial of en banc
review.”); see also Kozinski & Burnham, supra, at 604 (describing the practice of limiting non-
panel participation at the en banc stage as “the judicial equivalent of the fox guarding the
henhouse”). Happily, that sentiment appears to be a minority one in our Circuit.

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ENTERED BY ORDER OF THE COURT
___________________________________
Kelly L. Stephens, Clerk

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