(dissenting)—Regretfully, I must again dissent from the majority opinion for reasons similar to those discussed in my dissent in Turngren v. King Cy., 33 Wn. App. 78, 649 P.2d 153 (1982) (Turngren I). The majority opinion mistakes the basic function of an appellate court in *335reviewing a motion for summary judgment. Rather than determining whether there are genuine issues of material fact requiring consideration by a trier of fact, the majority opinion resolves these factual issues in favor of the defendants.
The facts of the case are given in detail in Turngren I. Briefly, the Turngrens2 filed the present action alleging malicious prosecution, defamation, negligence, excessive use of force and other causes against King County, the City of Redmond, and other defendants, in connection with the issuance and execution of a search warrant. The Turngrens alleged that Detectives Niehl and Rutherford obtained the warrant based on the statements of an informant, later identified as Robert Smith, who told them he saw 4 M-16 automatic rifles, 15 hand grenades, and a pipe bomb in the Turngrens' home. At 10:30 p.m. approximately 30 officers, including a SWAT team, sharpshooters, and federal DEA officers, converged on the Turngrens' home to execute the warrant. Some of these officers contacted the Turngrens' neighbors and told them to leave the area because there might be "trouble in the neighborhood."
The Turngrens further alleged that the officers made Mr. and Mrs. Turngren and their 10-year-old daughter Marri come out of the house and stand at gunpoint on the front lawn while the house was searched. Finally, they alleged that the police information officer issued defamatory press releases about the incident. No contraband was found in the search.
The Turngrens submitted an affidavit stating that the informant, Robert Smith, said that he lied when he told the officers that he had seen weapons in the Turngrens' home, and that he told the officers before the raid that the Turngrens' house was the "wrong one." The affidavit further stated that, according to Smith, Detective Niehl told him that it was "too late" because Niehl had already "stuck his *336neck out" by overstating Smith's credibility. In a later deposition Smith admitted making these statements, but claimed that they were false and that he told the detectives the truth. The Turngrens also alleged that Detective Niehl misrepresented Smith's credibility as an informant, seriously overstating the number of prior verified reports he had received from Smith.
After a year of discovery, the trial court granted the defendants' motion for summary judgment on the grounds of governmental immunity; this court affirmed. The Supreme Court took review, but remanded to us for reconsideration in light of Bender v. Seattle, 99 Wn.2d 582, 664 P.2d 492 (1983).
There are several well established principles guiding appellate review of a summary judgment. The reviewing court considers the same record as that before the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). The court must consider all facts submitted and all reasonable inferences from the facts in the light most favorable to the nonmoving party. Wilson, at 437. Now that the Supreme Court has clarified, in Bender, that governmental immunity is not applicable, the only issue properly before us is whether there are genuine issues of material fact in the affidavits, depositions, and other material before the court. CR 56(c); Blenheim v. Dawson & Hall, Ltd., 35 Wn. App. 435, 440, 667 P.2d 125 (1983).
Defamation
A word must be said about the majority's assertion that the defamation claim is barred by a "qualified privilege" because the plaintiffs did not make the requisite showing of " 'knowledge or reckless disregard as to the falsity' of any of the police statements to the press and public." Majority opinion, at 322-23. Knowledge and reckless disregard are the type of facts which generally must be inferred from circumstantial and other evidence. The rule stated in Preston v. Duncan, 55 Wn.2d 678, 681-82, 349 P.2d 605 (1960) is particularly appropriate:
*337It seems obvious that in situations where, though evidentiary facts are not in dispute, different inferences may be drawn therefrom as to ultimate facts such as intent, knowledge, good faith, negligence, et cetera, a summary judgment would not be warranted.
The evidentiary facts in this case are disputed and different inferences may be drawn from the facts; the existence of malice or reckless disregard is a disputed question of fact. Summary judgment is therefore inappropriate.
Tort Claims
The majority opinion discusses burden of proof and the quality and quantity of proof necessary to win defamation and malicious prosecution actions. These issues are not relevant to this appeal. The relevant "burden" here is the burden the defendants bear, as the moving party, of showing by uncontroverted facts that there are no factual issues and that they are entitled to judgment as a matter of law. LaPlante v. State, 85 Wn.2d 154, 158, 531 P.2d 299 (1975). The moving party has this burden regardless of which party would have the burden of proof on the issue at a trial on the merits. State ex rel. Bond v. State, 62 Wn.2d 487, 490, 383 P.2d 288 (1963).
The real question to be decided by this court on reviewing a summary judgment is whether there are genuine issues of fact. CR 56(c); Wilson v. Steinbach, supra. The rule previously quoted from Preston v. Duncan is also applicable to the other tort claims. The record contains a factual basis from which reasonable inferences can be drawn supporting the plaintiffs' claims, making summary judgment inappropriate.
Similar arguments apply to the majority's discussion of the absence of probable cause, an element of the malicious prosecution claim. An unsuccessful search establishes a prima facie case of lack of probable cause. Peasley v. Puget Sound Tug & Barge Co., 13 Wn.2d 485, 125 P.2d 681 (1942). We need not, and should not, determine here whether "judicial policy" makes it desirable to limit the applicability of "malicious prosecution Rule D" as the *338majority calls it, or whether application of the rule will make the State the "guarantor" of all search warrants. Nor must we determine whether, as the majority suggests, the alleged "warlord" learned of the impending search and fled, taking his arsenal with him, or whether he was an innocent and aggrieved citizen. These are matters for a jury to decide.
Rather than contumaciously refusing to give the plaintiffs their day in court, we should reverse the dismissal of the actions by summary judgment and remand this matter for trial.
Review granted by Supreme Court December 7, 1984.
Mr. Turngren is disabled and retired and Mrs. Turngren is a former employee of the Kirkland Police Department.