The district court denied qualified immunity. The Ninth Circuit reversed, albeit in a split opinion (that I discussed here) in which each of the three members of the panel felt compelled to write a separate opinion. Given those facts, as well as the issues involved, it's wasn't at all surprising to me that the case got taken en banc.
Then there's the draw for en banc court. Which ends up being about as conservative as you can get: one of the two Reagan appointees, the Bush I appointee, four of the five Bush II appointees, and Judge Tallman, who's essentially a Republican appointee. Only four of the eleven members of the panel are "real" Democratic appointees, and one of them -- Judge Silverman -- is far from the most liberal member of the court.
So you've got a draw that is far from representative of the Ninth Circuit as a whole.
Yet the outcome is nonetheless consistent with what a full en banc court would do. It's not even close: 8-3, with the en banc court reversing the panel and denying qualified immunity. With Judges Callhan, Tallman, and Silverman the dissenters, and the top side including such far-from-leftie judges as Judges Rymer, Bybee, Ikuta, and Milan Smith (plus Kozinski).
En banc draws matter sometimes. But sometimes they don't. Even when, as here, the draw is totally unrepresentative.
