Is a state attorney permitted to pursue in the court of appeals a claim of legal error by a magistrate judge of the 9th Circuit?

4 While the rule in this circuit is that a party may pursue in the court of appeals claims of legal error by a magistrate judge even where no objection was raised in the district court, Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir.1986), that principle is not dispositive here. In this case, the state failed to raise the relevant issue before the magistrate judge or the district court.

5 The majority's decision is ironic in light of the holding of another panel of this court that civil rights plaintiffs who fail to cite the relevant qualified immunity cases to the district court forfeit their right to have the court of appeals correct the judge's legal errors. Elder v. Holloway, 951 F.2d 1112 (9th Cir.1991), amended 975 F.2d 1388 (9th Cir.1992), cert. granted, --- U.S. ----, 113 S.Ct. 3033, 125 L.Ed.2d 721 (1993). Given the disparity in resources between civil rights plaintiffs and states' attorneys, the double standard is particularly surprising.