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KENNEDY, J., concurring

case. Ibid.; post, at 178, n. 2. That does not mean, however, that we may deprive plaintiffs of the opportunity to make their case. In some cases eliminating the defense based on subjective good faith can make a real difference, and again the instant case of alleged reliance on a statute deemed valid provides the example. It seems problematic to say that a defendant should be relieved of liability under some automatic rule of immunity if objective reliance upon a statute is reasonable but the defendant in fact had knowledge of its invalidity. Because the burden of proof on this question is the plaintiff's, the question may be resolved on summary judgment if the plaintiff cannot come forward with facts from which bad faith can be inferred. But the question is a factual one, and a plaintiff may rely on circumstantial rather than direct evidence to make his case. Siegert v. Gilley, 500 U. S. 226, 236 (1991) (KENNEDY, J., concurring in judgment). The rule, of course, also works in reverse, for the existence of a statute thought valid ought to allow a defendant to argue that he acted in subjective good faith and is entitled to exoneration no matter what the objective test is.

The distinction I draw is important because there is support in the common law for the proposition that a private individual's reliance on a statute, prior to a judicial determination of unconstitutionality, is considered reasonable as a matter of law; and therefore under the circumstances of this case, lack of probable cause can only be shown through proof of subjective bad faith. Birdsall v. Smith, 158 Mich. 390, 394, 122 N. W. 626, 627 (1909). Thus the subjective element dismissed as exceptional by the dissent may be the rule rather than the exception.

I join the opinion of the Court because I believe there is nothing contrary to what I say in that opinion. See ante, at 169 (“[W]e do not foreclose the possibility that private defendants faced with § 1983 liability ... could be entitled to an affirmative defense based on good faith and/or probable cause or that $ 1983 suits against private ... parties could

REHNQUIST, C. J., dissenting

require plaintiffs to carry additional burdens”). Though they described the issue before them as “good-faith immunity,” both the District Court and the Court of Appeals treated the question as one of law. App. 12–14; 928 F. 2d 718, 721–722 (CA5 1991). The Court of Appeals in particular placed heavy reliance on the policy considerations favoring a rule that citizens may rely on statutes presumed to be valid. Ibid. The latter inquiry, as Birdsall recognizes, however, goes mainly to the question of objective reasonableness. I do not understand either the District Court or the Court of Appeals to make an unequivocal finding that the respondents before us acted with subjective good faith when they filed suit under the Mississippi replevin statute. Furthermore, the question on which we granted certiorari was the narrow one whether private defendants in § 1983 suits are entitled to the same qualified immunity applicable to public officials, ante, at 168, which of course would be subject to the objective standard of Harlow v. Fitzgerald. Under my view the answer to that question is no. Though it might later be determined that there is no triable issue of fact to save the plaintiff's case in the matter now before us, on remand it ought to be open to him at least in theory to argue that the defendants' bad faith eliminates any reliance on the statute, just as it ought to be open to the defendants to show good faith even if some construct of a reasonable person in the defendants' position would have acted in a different way.

So I agree the case must be remanded for further proceedings.

CHIEF JUSTICE REHNQUIST, with whom JUSTICE SOUTER and JUSTICE THOMAS join, dissenting.

The Court notes that we have recognized an immunity in the § 1983 context in two circumstances. The first is when a similarly situated defendant would have enjoyed an immunity at common law at the time § 1983 was adopted. Ante, at 163–164. The second is when important public policy con

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REHNQUIST, C. J., dissenting

cerns suggest the need for an immunity. Ante, at 166–167. Because I believe that both requirements, as explained in our prior decisions, are satisfied here, I dissent.

First, I think it is clear that at the time § 1983 was adopted, there generally was available to private parties a good-faith defense to the torts of malicious prosecution and abuse of process. See authorities cited ante, at 164; Malley v. Briggs, 475 U. S. 335, 340–341 (1986) (noting that the generally accepted rule at common law was that a person would be held liable if “the complaint was made maliciously and without probable cause”); Pierson v. Ray, 386 U. S. 547, 555 (1967) (noting that at common law a police officer sued for false arrest can rely on his own good faith in making the arrest). And while the Court is willing to assume as much, ante, at 165, it thinks this insufficient to sustain respondents' claim to an immunity because the “qualified immunity” respondents' seek is not equivalent to such a “defense,” ante, at 165-166.

But I think the Court errs in suggesting that the availability of a good-faith common-law defense at the time of $ 1983's adoption is not sufficient to support their claim to immunity. The case on which respondents principally rely, Pierson, considered whether a police officer sued under § 1983 for false arrest could rely on a showing of good faith in order to escape liability. And while this Court concluded that the officer could rely on his own good faith, based in large part on the fact that a good-faith defense had been available at common law, the Court was at best ambiguous as to whether it

1 Describing the common law as providing a “defense” is something of a misnomer—under the common law it was plaintiff's burden to establish as elements of the tort both that the defendant acted with malice and without probable cause. T. Cooley, Law of Torts 184–185 (1879); J. Bishop, Commentaries on Non-Contract Law $ 225, p. 90 (1889). Referring to the defendant as having a good-faith defense is a useful shorthand for capturing plaintiff's burden and the related notion that a defendant could avoid liability by establishing either a lack of malice or the presence of probable cause.

REHNQUIST, C. J., dissenting

was recognizing a “defense” or an “immunity.” Compare 386 U. S., at 556 (criticizing Court of Appeals for concluding that no “immunity” was available), with id., at 557 (recognizing a good-faith "defense”). Any initial ambiguity, however, has certainly been eliminated by subsequent cases; there can be no doubt that it is a qualified immunity to which the officer is entitled. See Malley, supra, at 340. Similarly, in Wood v. Strickland, 420 U. S. 308, 318 (1975), we recognized that, “[a]lthough there have been differing emphases and formulations of the common-law immunity,” the general recognition under state law that public officers are entitled to a good-faith defense was sufficient to support the recognition of a $ 1983 immunity.

Thus, unlike the Court, I think our prior precedent establishes that a demonstration that a good-faith defense was available at the time § 1983 was adopted does, in fact, provide substantial support for a contemporary defendant claiming that he is entitled to qualified immunity in the analogous § 1983 context. While we refuse to recognize a common-law immunity if § 1983's history or purpose counsel against applying it, ante, at 164, I see no such history or purpose that would so counsel here.

Indeed, I am at a loss to understand what is accomplished by today's decision-other than a needlessly fastidious adherence to nomenclature-given that the Court acknowledges that a good-faith defense will be available for respondents to assert on remand. Respondents presumably will be required to show the traditional elements of a good-faith defense—either that they acted without malice or that they acted with probable cause. See n. 1, supra; Stewart v. Sonneborn, 98 U. S. 187, 194 (1879); W. Prosser, Law of Torts $ 120, p. 854 (4th ed. 1971). The first element, “maliciousness," encompasses an inquiry into subjective intent for bringing the suit. Stewart, supra, at 192–193; Prosser, supra, $ 120, at 855. This quite often includes an inquiry into the defendant's subjective belief as to whether he be

REHNQUIST, C. J., dissenting

lieved success was likely. See, e. g., 2 C. Addison, Law of Torts 1 854 (1876) (“Proof of the absence of belief in the truth of the charge by the person making it ... is almost always involved in the proof of malice"). But the second element, "probable cause,” focuses principally on objective reasonableness. Stewart, supra, at 194; Prosser, supra, $ 120, at 854. Thus, respondents can successfully defend this suit simply by establishing that their reliance on the replevin statute was objectively reasonable for someone with their knowledge of the circumstances. But this is precisely the showing that entitles a public official to immunity. Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982) (official must show his action did not "violate clearly established statutory or constitutional rights of which a reasonable person would have known”).2

Nor do I see any reason that this “defense” may not be asserted early in the proceedings on a motion for summary judgment, just as a claim to qualified immunity may be. Provided that the historical facts are not in dispute, the presence or absence of “probable cause” has long been acknowledged to be a question of law. Stewart, supra, at 193–194; 2 Addison, supra, 1853, n. (p); J. Bishop, Commentaries on NonContract Law $ 240, p. 95 (1889). And so I see no reason that the trial judge may not resolve a summary judgment motion premised on such a good-faith defense, just as we have encouraged trial judges to do with respect to qualified

2 There is perhaps one small difference between the historic commonlaw inquiry and the modern qualified immunity inquiry. At common law, a plaintiff can show the lack of probable cause either by showing that the actual facts did not amount to probable cause (an objective inquiry) or by showing that the defendant lacked a sincere belief that probable cause existed (a subjective inquiry). Bishop, Commentaries on Non-Contract Law $ 239, at 95. But relying on the subjective belief, rather than on an objective lack of probable cause, is clearly exceptional. See Stewart v. Sonneborn, 98 U. S. 187, 194 (1879) (describing subjective basis for finding lack of probable cause as exception to general rule). I see no reason to base our decision whether to extend a contemporary, objectively based qualified immunity on the exceptional common-law case.

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