The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_0126/91_0126.zd

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SUPREME COURT OF THE UNITED STATES
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No. 91-126
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HOWARD WYATT, PETITIONER v. BILL COLE and
JOHN ROBBINS, II
on writ of certiorari to the united states court of
appeals for the fifth circuit
[May 18, 1992]

  The Chief Justice, 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 5).  The second is when important public policy
concerns suggest the need for an immunity (ante, at 8-9).
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 6; 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 goodfaith in making the
arrest).  And while the Court is willing to assume as much
(ante, at 7), it thinks this insufficient to sustain respon-
dents' claim to an immunity because the ``qualified immuni-
ty'' respondents' seek is not equivalent to such a ``defense''
(ante, at 7-8).
  But I think the Court errs in suggesting that the avail-
ability 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 goodfaith, 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 was recognizing a ``defense'' or an ``immuni-
ty.''  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 quali-
fied 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 6, I see no such history or
purpose that would so counsel here.
  Indeed, I am at a loss to understand what is accom-
plished 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, Handbook
of the 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, p.855.  This quite often
includes an inquiry into the defendant's subjective belief as
to whether he believed success was likely.  See, e.g., 2 C.
Addison, Law of Torts 1, -854 (1876) (``[P]roof 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, p.854.  Thus, respondents can
successfully defend this suit simply by establishing that
their reliance on the attachment 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'').
  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, 1, -853, n.(p); J. Bishop,
Commentaries on Non-Contract 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 immunity claims.  Harlow, supra, at
818.  Thus, private defendants who have invoked a state
attachment law are put in the same position whether we
recognize that they are entitled to qualified immunity or if
we instead recognize a good-faith defense.  Perhaps the
Court believes that the ``defense'' will be less amenable to
summary disposition than will the ``immunity;'' perhaps it
believes the defense will be an issue that must be submit-
ted to the jury (see ante, at 11, referring to cases such as
this ``proceed[ing] to trial'').  While I can see no reason why
this would be so (given that probable cause is a legal
question), if it is true, today's decision will only manage to
increase litigation costs needlessly for hapless defendants.
  This, in turn, leads to the second basis on which we have
previously recognized a qualified immunity-reasons of
public policy.  Assuming that some practical difference will
result from recognizing a defense but not an immunity, I
think such a step is neither dictated by our prior decisions
nor desirable.  It is true, as the Court points out, that in
abandoning a strictly historical approach to 1983 immuni-
ties we have often explained our decision to recognize an
immunity in terms of the special needs of public officials.
But those cases simply do not answer-because the ques-
tion was not at issue-whether similar (or even completely
unrelated) reasons of public policy would warrant immunity
for private parties as well.
  I believe there are such reasons.  The normal presump-
tion that attaches to any law is that society will be benefit-
ted if private parties rely on that law to provide them a
remedy, rather than turning to some form of private, and
perhaps lawless, relief.  In denying immunity to those who
reasonably rely on presumptively valid state law, and
thereby discouraging such reliance, the Court expresses
confidence that today's decision will not ``unduly impai[r],''
ibid., the public interest.  I do not share that confidence.  I
would have thought it beyond peradventure that there is
strong public interest in encouraging private citizens to rely
on valid state laws of which they have no reason to doubt
the validity.  Buller v. Buechler, 706 F. 2d 844, 851 (CA8
1983); Folsom Investment Co. v. Moore, 681 F. 2d 1032,
1037-1038 (CA5 1982).
  Second, as with the police officer making an arrest, I
believe the private plaintiff's lot is ``not so unhappy'' that he
must forgo recovery of property he believes to be properly
recoverable through available legal processes or to be
``mulcted in damages'' Pierson, 386 U S., at 555, if his belief
turns out to be mistaken.  For as one Court of Appeals has
pointed out, it is at least passing strange to conclude that
private individuals are acting ``under color of law'' because
they invoke a state garnishment statute and the aid of state
officers, see Lugar v. Edmonson Oil Co., 457 U. S. 922
(1982), but yet deny them the immunity to which those
same state officers are entitled, simply because the private
parties are not state employees.  Buller, supra, at 851.
While some of the strangeness may be laid at the doorstep
of our decision in Lugar, see 457 U. S., at 943 (Burger,
C. J., dissenting); and id., at 944-956 (Powell, J., dissent-
ing), there is no reason to proceed still further down this
path.  Our 1983 jurisprudence has gone very far afield
indeed, when it subjects private parties to greater risk than
their public counterparts, despite the fact that 1983's
historic purpose was ``to prevent state officials from using
the cloak of their authority under state law to violate rights
protected against state infringement.''  Id., at 948 (emphasis
added).  See also, Monroe v. Pape, 365 U. S. 167, 175-176
(1961).
  Because I find today's decision dictated neither by our
own precedent nor by any sound considerations of public
policy, I dissent.