Today the U.S. Court of Appeals for the Sixth Circuit denied rehearing en banc in Mitchell v. City of Benton Harbor, a case in which a divided panel concluded that Benton Harbor residents could sue the city and city officials for violating their substantive-due-process right to bodily integrity for failing to mitigate and adequately address lead contamination in the local water system. Judge Moore wrote the original panel opinion, joined by Judge Cole. Judge Larsen wrote separately, concurring in part and dissenting in part.
Today, Judge Larsen dissented from the courts denial of a petition for rehearing en banc, joined by Judges Kethledge, Thapar, Bush, Nalbandian, Readler, and Murphy. This dissent prompted a statement from Judge Moore, decrying the growing practice of dissents and other opinions or statements respecting en banc denials. (In this regard, Judge Moore echoed some concerns raised by Judge Wynn on the Fourth Circuit several years ago.) Judge Moore's opinion, in turn, prompted a second dissent from the en banc rehearing denial by Judge Readler, joined by Judge Bush, expressly addressing the question of whether there are two many opinions respecting the denial of rehearing en banc. (Answer: No.).
Judge Larsen's dissent begins:
