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Agents Deserve Ruling in Fast and Furious Case

(CN) - A federal judge must assess qualified immunity in a case brought by the family of a federal agent shot to death by drug cartel members allegedly using weapons from the bungled Operation Fast and Furious, the 5th Circuit ruled.

Orchestrated by the Bureau of Alcohol, Tobacco and Firearms, Operation Fast and Furious allowed arms smugglers to walk firearms into Mexico so that agents could try and track them to the cartels.

U.S. government agents reportedly lost track of about 1,400 weapons sold to straw buyers, and the murders of several federal agents including Border Partrol Agent Brian Terry .

Victor Avila, a special agent with Immigration and Customs Enforcement, likewise blames the program for the injuries he sustained in an ambush by drug cartel members in Mexico.

Agent Jaime Zapata was killed in that ambush, and Zapata's family joined Avila as plaintiffs for a federal complaint against 10 federal officers in Houston.

The agents moved to dismiss based on qualified immunity, arguing that plaintiffs "failed to allege facts sufficient to support the inference of a constitutional violation; failed to allege facts specifically addressing how each of the individual federal officers caused a deprivation of the plaintiffs' constitutional rights; and failed to state a claim for the deprivation of their clearly established constitutional rights," the ruling says.

Deferring to rule on that issue, however, the trial judge instead called for limited discovery on the qualified immunity defense.

A three-judge panel of the 5th Circuit reversed Friday, despite conceding that it usually lacks jurisdiction to "entertain" interlocutory orders. Here, however, the lower court's failure to rule on dismissal based on governmental immunity is an immediately appealable order.

"The District Court did not explicitly rule on the defendants' qualified-immunity defense other than to note that the plaintiffs 'set out the reasons [they] felt that qualified immunity did not apply,' that the defendants 'have not contradicted those allegations,' and that accordingly, whether the defendants are entitled to qualified immunity 'is certainly contested,'" Judge James Dennis wrote for the New Orleans-based panel. "The District Court failed to make an initial determination that the plaintiffs' allegations, if true, would defeat qualified immunity."

The six-page ruling vacated the discovery order and directed the lower court to rule on the federal agents' motion for dismissal.

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