Presented with this disparate treatment of the jurisdictional issue in the circuit, we are compelled to choose the view we find persuasive. We believe that the analysis of
Rich and
McDaniel conforms best to the Supreme Court precedent and the policies supporting both qualified immunity and summary judgment.
Harlow sought to limit a determination of qualified immunity to objective issues that could be handled as a matter of law.
102 S.Ct. at 2737–38. Mitchell then facilitated this decision by permitting interlocutory appeals. It would run counter to this policy to deny appealability any time a factual dispute arises. Indeed, according to the
Goddard analysis, the court might never make the necessary determination of the clearly established law prior to trial.
Harlow and
Mitchell, however, demand that courts determine the clearly established law prior to trial in order to preserve the defendant's right to be free from the burdens of trial. In a situation where factual
development is necessary, such development can occur through further discovery prior to trial, while still preserving the opportunity to determine the legal issues, and to appeal, before trial. In the situation of a factual dispute, however, only the fact-finder could resolve the dispute and the
Harlow analysis of clearly established law would be lost.
See Goddard, 847 F.2d at 770 (Johnson, J., dissenting).