Pellegrino

Opinion by Judge HAWKINS; Partial Concurrence and Partial Dissent by Chief Judge WALLACE.

This is one of those difficult cases for which there is no simple solution. It arises in the context of the use of deadly force by federal law enforcement agents and deals, at bottom, with the reasonableness of their actions. Marie Pellegrino, individually and in her capacity as administratrix of the estate of John Pellegrino (“John”), and Joseph Pelle-grino (“Joseph”), who was present at the scene of the shooting, filed an action (“the Pellegrino claims”) against United States Customs Agents Stephen Fanter (“Fanter”) and Jeffrey Woods (‘Woods”) under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971).

Woods and Fanter moved to dismiss or for summary judgment arguing that they were entitled to qualified immunity. The district court granted summary judgment as to Fan-ter and Woods on the basis of qualified immunity on all claims against Woods and all those against Fanter save those alleging Fanter’s use of excessive force. As to this claim, the district court concluded that a genuine issue of material fact existed…

concurring and dissenting:

I agree with the majority outcome affirming the summary judgment in favor of Agent Woods and that in favor of Agent Fanter on the false imprisonment claims. But that is as far as I go with the majority.

The majority concludes that, under Johnson v. Jones, — U.S. -, 115 S.Ct. 2151 , 132 L.Ed.2d 238 (1995) (Johnson), any summary judgment on a record which contains “genuine issues” of material fact is not a final judgment and is, therefore, not appealable. This conclusion contradicts Mitchell v. Forsyth, 472 U.S. 511 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985), where the Supreme Court ruled that a district court’s denial of qualified immunity is an appealable “final decision” for which a court of appeals has jurisdiction. Id. at 524-30 , 105 S.Ct. at 2817 . The majority’s approach would seem to deny appellate jurisdiction over appeals from denials of qualified immunity for any ease with disputed facts. Because I believe the majority misunderstands Johnson , I respectfully dissent.

In Mitchell , the Court held that qualified immunity is not a mere defense but rather an immunity from suit which would be lost if the case erroneously went to trial; therefore,…