Kimberly KENNEDY, individually and in her capacity as personal representative of the estate and as guardian for her children aka Kimberly Gorton; Jay D. Kennedy, aka JD Kennedy; Keith Teufel; Tera Teufel, Plaintiffs-Appellees, v. RIDGEFIELD CITY OF, a municipal corporation and political subdivision of the State of WA; Noel Shields, Defendants-Appellants, 440 F.3d 1091

ORDER WITHDRAWING OPINION AND DENYING PETITION FOR REHEARING EN BANC ORDER The opinion filed June 23, 2005, and amended September 12, 2005, appearing at 411 F.3d 1134 and 423 F.3d 1117 respectively, and the opinion concurring in part and dissenting in part, appearing at 411 F.3d at 1146, are withdrawn and may not be cited as precedent by or to this court or any district court of the Ninth Circuit. An opinion and dissenting opinion are published by separate order. Judge Bybee votes to grant the petition for rehearing en banc. Judges Browning and Tashima recommend denying the petition for rehearing en banc.

The fall court was advised of the petition for rehearing en banc, and a judge requested a vote on whether to rehear the matter en banc. The case failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35. The petition for rehearing en banc is DENIED. No further petitions shall be entertained.