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Kennedy, J., dissenting
liability, it is essential that qualified immunity claims be resolved at the earliest possible stage of litigation. Mitchell [v. Forsyth, 472 U. S. 511, 526 (1985)]. This necessarily expands the factfinding role that must be played by the district court judge. In some cases, district courts will be able to establish entitlement to qualified immunity before trial and, sometimes, even before discovery. . . . In some cases, however, further development of the record will be necessary. In this case it was proper for the court to require further development of the facts to determine whether the secret service reasonably could have interpreted the letter as violating § 871." 903 F. 2d, at 720-721.
Like Justice Scalia, I am satisfied that the Court of Appeals applied the correct legal standard when it affirmed the District Court's refusal to grant summary judgment in favor of petitioners. When the Court of Appeals opinion is read in its entirety, that conclusion is inescapable. Unlike Justice Scalia, however, I am also satisfied that when the proper legal standards are applied to this record, with the evidence examined in the light most favorable to the nonmoving party, petitioners have not yet established that a reasonable officer could have concluded that he had sufficient evidence to support a finding of probable cause at the time of respondent's arrest. I also think it unwise for this Court, on the basis of its de novo review of a question of fact, to reject a determination on which both the District Court and the Court of Appeals agreed.
Accordingly, I respectfully dissent.
Justice Kennedy, dissenting.
Petitioners in this case are agents of the Secret Service. Among the questions presented are the proper interpretation of 18 U. S. C. § 871(a), which prohibits mail threats against the President, and the proper standard for summary
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