concurring:
I concur. When the defendants first moved for qualified immunity, the district court denied it as untimely. On appeal, a panel of this Court issued a writ of mandamus directing the district court to rule prior to trial on defendants’ defense of qualified immunity. The district court responded by deciding that the defendants are not entitled to qualified immunity on this record. It seems to me that we have jurisdiction and the responsibility to decide, prior to trial, whether the district court properly denied that motion. Even if we do not, no harm is done. The trial would continue either way. I understand Judge Farris’s opinion as deciding only an issue of law, squarely presented by the motion for qualified immunity, and although evidentiary and factual issues may have been argued on this appeal, the affirmance by this Court does not hinge on a resolution of those factual issues.
BIRCH, Circuit Judge,