E.j. Wilson, et al., Dearest Davis, et al., and Cassandralinder, Plaintiffs-appellants, v. Roland Attaway, et al., Defendants-appellees, 764 F.2d 1411 (11th Cir. 1985)

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US Court of Appeals for the Eleventh Circuit - 764 F.2d 1411 (11th Cir. 1985) July 9, 1985

Brian Spears, Atlanta, Ga., Ralph Goldberg, Atlanta, Ga., John Carroll, Montgomery, Ala., Floyd Mincey, Dublin, Ga., for plaintiffs-appellants.

W.W. Larsen, Dublin, Ga., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Georgia; Dudley H. Bowen, Jr., Judge.

ON PETITION FOR REHEARING AND REHEARING EN BANC

(Opinion April 16, 1985, 11 Cir., 1985, 757 F.2d 1227).

Before GODBOLD, Chief Judge, CLARK, Circuit Judge, and THOMAS* , District Judge.

GODBOLD, Chief Judge:


We agree with the contention made by appellants in their petition for rehearing that they did include in their various directed verdict motions the matter of sufficiency of the evidence relating to constitutionality of arrests of appellants Snell, Rouse, Horton, Davis, Linder, Martin and Wilson. The standard of review of sufficiency is, therefore, the familiar standard of Boeing Company v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc). We have reexamined the evidence under this standard, and we reach the same conclusions as before. There was sufficient evidence to submit to the jury the issue of the constitutionality of the arrests of Horton, Snell, Rouse, Martin and Wilson. There was not sufficient evidence to submit to the jury the issue of the constitutionality of the arrests of Davis and Linder; judgment n.o.v. should have been entered with respect to them.

Except as set out in this order, the petition for rehearing is DENIED. No member of this panel nor other judge in regular active service on the court having requested that the court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 26), the suggestion for rehearing en banc is DENIED.

 *

Honorable Daniel H. Thomas, U.S. District Judge for the Southern District of Alabama, sitting by designation