Page:United States Reports 502 OCT. TERM 1991.pdf/393

 502us1$18Z 08-21-96 15:27:37 PAGES OPINPGT

Cite as: 502 U. S. 224 (1991)

235

Kennedy, J., dissenting

judgment on grounds of qualified immunity. Whether implied or expressed, our resolution of these questions will be parsed by the Service and by later courts. The importance of these questions suggests that we should not dispose of them in summary fashion. For the reasons stated in today’s per curiam opinion and in the dissent by Judge Trott in the Court of Appeals, I must agree that the holding of the Court of Appeals is open to serious question. The majority opinion of that court seems not to have considered all of the facts on which the agents relied, in particular the statements made by Bryant and his responses (or nonresponses) to the agents’ questions. This calls in question its determination that qualified immunity has not been established on summary judgment. To reverse in this case, however, the Court considers an issue on which some doubt has been expressed, which is whether the Court of Appeals applied the correct legal standard to resolve the qualified immunity issue on summary judgment. Two Members of the Court disagree with the statement in the per curiam opinion that the Court of Appeals misstated the law. See ante, at 227; ante, at 229 (Scalia, J., concurring in judgment); ante, at 234 (Stevens, J., dissenting). Given this disagreement, as well as the precedential weight that later courts will accord to all of the questions presented in the case and addressed here in express terms or by clear implication, the case does not lend itself to summary disposition. I would set the case for full briefing and oral argument. For these reasons, I dissent from the judgment of summary reversal in this case.