Trial court did not follow 5th Circuit procedures on qualified immunity determination so must try again says panel.

Zapata v. Melson No. 13-40762 (5^th Cir., April 18, 2014).

This is an interlocutoray Bivens qualified immunity appeal where the family of a deceased immigration agent and a surviving agent brought suit after being ambushed by drug cartel in Mexico using weapons they allegedly obtained in the U.S.  The defendant officers allegedly had different roles in an operation which purposefully allowed arms smugglers to obtain firearms as part of a larger operation. The officers moved to dismiss based on qualified immunity. The trial court declined to rule on the motions, instead ordering discovery. The officers appealed noting the failure to rule is an implied dismissal.

The court noted that a plaintiff’s complaint must overcome a defendant’s qualified immunity defense and a careful set of procedures have been set forth under 5^th Circuit case law. Under these procedures, a district court must make an initial determination that allegations, if true, would defeat qualified immunity. The allegations must be sufficiently specific and are not subject to the “notice pleadings” requirements of other claims. The trial court must make an express ruling on the issue of qualified immunity and can only issue a discovery order on the subject after these steps.  It can only order discovery which is narrowly tailored to ascertain any specific facts it identifies as necessary to make a ruling. The 5^th Circuit panel expressly declined to rule on whether qualified immunity has been waived, instead remanding with instructions for the trial court to follow the procedures outlined.

If you would like to read this opinion click here. Panel: DENNIS and PRADO, Circuit Judges, and BROWN, District Judge. Attorney for Zapata is listed as Daniel Joseph Lenerz.  The attorney listed for Melson is Erin Ann Hudson.