Can’t do it, right? Petition for a writ of mandate, instead. Right?
Not so fast, as we are reminded by today’s decision in KRL v. Aquaro, case no. 06-16282 (9th Cir. Jan. 16, 2008). The case is an appeal from the denial of summary judgment that was sought on qualified immunity grounds, and the court notes that interlocutory appeal is allowed in such cases. The rule dates back to Mitchell v. Forsyth, 472 U.S. 511 (1985), which applied as its starting point the general rule that
a decision of a district court is appealable if it falls within “that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” [Citation.]
In analysis a little too detailed for me to go into here, the Mitchell court concluded that the denial of a claim of qualified immunity fit this test. Read Mitchell, and you’ll learn of a few others.