178
Rehnquist, C. J., dissenting
lieved success was likely. See, e. g., 2 C. Addison, Law of Torts ¶ 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, ¶ 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
2 There is perhaps one small difference between the historic common-law 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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