Robert M. Jasinski, Plaintiff-appellee, v. R.a. Adams, Joe Mongiello, and United States Border Patrol,defendants-appellants,, 788 F.2d 694 (11th Cir. 1986)

In his brief on petition for rehearing, appellant Mongiello urges this court to reverse its decision affirming the district court's denial of summary judgment on grounds of qualified immunity. Appellant contends that appellee's case cannot survive a summary judgment motion because the reasonableness of the Florida City checkpoint has twice been approved in federal court. As we observed in the panel opinion, plaintiff has alleged substantially changed circumstances which arguably prevent any prior adjudication of reasonableness from being grounds for reversal of the district court order. This observation applies with equal force to appellant's citation to the opinion and order in Hartfield v. Commissioner, No. 82-807 (April 26, 1982). Despite our rejection of appellant's arguments, we wish to emphasize that our panel opinion is not intended to establish the law of the case with respect to appellant Mongiello's affirmative defense of qualified immunity. Our holding is simply that summary judgment was not proper at this stage of the proceeding. Furthermore, there is no indication in the record that the district court, in its denial of summary judgment, considered appellant's alleged reliance on prior adjudications of reasonableness. That contention should be directed to the district court in proceedings on remand.

The Petition for Rehearing is DENIED and 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 Appellant Procedure; Eleventh Circuit Rule 26), the Suggestion for Rehearing En Banc is DENIED.