Jensen

Officer James Jensen was shot and killed by a fellow officer during a SWAT Unit raid to serve a search warrant on an unoccupied residence. His widow, Jennifer Jensen, brought a 42 U.S.C. § 1983 action against the City of Oxnard, its police chief and several individual officers. The defendants moved to dismiss for failure to state a claim under Rule 12(b)(6). The district court denied this motion. We affirm.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of March 13, 1996, the Special Weapons and Tactics (“SWAT”) team of the Oxnard Police Department stormed a two-story townhouse to serve a search warrant on what turned out to be an unoccupied residence. As part of the operation, Officer James Jensen (“Officer Jensen”) threw a “flash-bang” grenade from a staircase onto a second floor landing. The grenade exploded with a blast of light, emitting smoke into the surrounding rooms. Officer Jensen and several other SWAT team *1082 members, including Sergeant Daniel Christian (“Sergeant Christian”), went up the staircase to the second floor. Shortly thereafter, Sergeant Christian fired three rounds from his 12-gauge shotgun, killing Officer Jensen.

Although the parties dispute…

concurring:

For the reasons stated in part II, I concur in the affirmance of the holding of the district court that the appellants are not entitled to qualified immunity as a matter of law, and, therefore, the district court properly denied the motion to dismiss the action. I would not get to the merits of the action under part I.

The Supreme Court has limited what we may decide on appeal to the question of immunity separate from the merits of the underlying action. Mitchell v. Forsyth, 472 U.S. 511, 529 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985). “An appellate court reviewing the denial of the defendant’s claim of immunity need not consider the correctness of the plaintiffs version of the facts, nor even determine whether the plaintiffs allegations actually state a claim. Ml it need determine is a question of law: whether the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions____” Id. at 528 , 105 S.Ct. 2806 . “[T]he legal determination that a given proposition of law was not clearly established at the time the defendant committed the alleged acts does not entail a determination of the ‘merits’ of the plaintiffs claim…