176
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.1 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.
Page: Index Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 NextLast modified: October 4, 2007