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 that the defendant’s actions were in fact unlawful.” Id. at 529 n. 10, 105 S.Ct. 2806. We have also recognized that the proper inquiry in an appeal similar to this is only whether there is qualified immunity, not whether the complaint states a claim. Figueroa v. United States, 7 F.3d 1405, 1409 (9th Cir.1993).