concurring:
I concur in the majority’s well-thought-out opinion, but I write separately because of the majority’s determination to resolve the qualified immunity issues. I am inclined to agree with the substance of the majority’s resolution, but I would not reach these issues for prudential reasons. Rather, I would remand to allow the district court to decide them in the first instance.
“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). “Certainly there are circumstances in which a federal appellate court is justified in resolving an issue not passed on below, as where the proper resolution is beyond any doubt....” Id. at 121, 96 S.Ct. 2868. It seems, however, that the appellate courts have sometimes forgotten that resolving issues not addressed by the district court is the exception, not the rule. Compare Weiser v. United States, 959 F.2d 146, 147 (9th Cir.1992) (simply stating that “[o]ur review is not limited to a consideration of the grounds upon which the district court decided the issues”), with River City Markets, Inc. v. Fleming Foods West, Inc., 960 F.2d 1458, 1462 (9th Cir.1992) (recognizing discretion and electing to decide issue). Here, the qualified immunity issues are complex, and it seems to me that, despite conjecture about possible efficiency gains, the “wiser course is to allow the district court to rule on [them] in the first instance.” Barsten v. Department of the Interior, 896 F.2d 422, 424 (9th Cir.1990); see also Schneider v. County of San Diego, 28 F.3d 89, 93 (9th Cir.1994) (refusing to address qualified immunity arguments *1115where district court granted summary judgment without reaching those issues),