Where, however, officials are forced to go to trial because their right to immunity turns on the resolution of disputed facts, early determination is not possible. Although some of the reasons for the existence of the immunity doctrine are moot when trial is necessary, other equally important ones remain. First, officials should be shielded from liability for reasonable exercises of judgment in the execution of their duties, even where their conduct is ultimately shown to have been unconstitutional.
Id. at 814, 816, 102 S.Ct. at 2736, 2737 (officials should not be inhibited from taking discretionary action). Second, shielding officials from personal liability for reasonable exercises of discretion will help prevent the “deterrence of able people from public service.”
Id. at 816, 102 S.Ct. at 2737. These reasons do not, however, suggest that a
judicial determination at this stage is necessarily better than a jury verdict. The advantage of timing is already lost.
In fact, sending the factual issues to the jury but reserving to the judge the ultimate “reasonable officer” determination leads to serious logistical difficulties. Special jury verdicts would unnecessarily complicate easy cases, and might be unworkable in complicated ones.
See Act Up!, 988 F.2d at 876–77 (Norris, J., dissenting from failure of court to hear case en banc).