dissenting.
I respectfully dissent. The majority has overlooked a factual issue which should be submitted to a jury. On this basis I would affirm the district court.
In the early morning hours of September 15, 1985, Trooper Patrick Chase of the Minnesota State Highway Patrol discovered an abandoned Blazer which had just rolled over on Interstate 35 West (I-35W). Chase immediately radioed for assistance and then searched the scene to no avail for the driver of the vehicle. Trooper Floyd Hanson soon arrived to assist Chase. Together they searched the vehicle and discovered that it was registered to Richard Gorra. They also discovered several traffic citations that had been issued to Richard Gorra for alcohol-related driving offenses. The troopers suspected that Richard Gorra had been driving the vehicle when it rolled and that he had fled because his license had been revoked.
In the meantime, Michael Gorra, Richard’s father, received a phone call from his son informing him that he had rolled his Blazer on I-35W. According to Michael, Richard hung up without telling his father the location from where he was calling. Michael Gorra immediately drove to the scene of the accident. Upon arriving on the scene, he began picking up keys which had been in the Blazer but were strewn about the highway due to the accident. These were master keys to apartment houses that Michael Gorra owned. Hanson approached Gorra and asked him who he was and what he was doing. Gorra stated that he was Richard’s father and that his son had called him about the accident. Upon further questioning, he denied having any knowledge of his son’s whereabouts. Hanson suspected that Gorra was lying and warned him that doing so would subject him to arrest for obstruction of legal process. Chase, who also questioned Gor-ra, harbored the same suspicions and issued the same warning.
Michael Gorra eventually left the scene of the accident to search for his son. He found Richard hiding in the bushes near the home of a relative and told his son to meet him at his office. Meanwhile Chase, who had unsuccessfully attempted to follow Michael Gorra,1 went to Gorra’s office with Hanson on the chance that they would find Richard hiding there. Upon arriving at the address, the troopers spotted Michael Gorra’s car in the parking lot. They proceeded to Gorra’s office where they found both Michael and Richard. Hanson placed Richard under arrest and led him out to the patrol car. Michael followed them and advised his son to remain silent. At that point, Chase placed Michael under *99arrest for obstruction of legal process. Minn.Stat. § 609.50 (1984).2 Gorra was processed on this charge which was subsequently dismissed at the prosecution’s behest.
Michael Gorra filed an action against the troopers and the Minnesota State Highway Patrol in federal district court under section 1983 alleging unlawful arrest. Gorra claims that the arrest was made in retaliation for advising his son to remain silent. The troopers contend that there was sufficient probable cause based on their belief that Gorra had lied to them and concealed his son’s whereabouts. The district court3 denied defendants’ motion for summary judgment. The court determined that it could not rule on the availability of the qualified immunity defense without further development of the facts surrounding Gor-ra’s arrest.
There is no dispute in this case on the matters of when and where Michael Gorra was placed under arrest. The district court denied defendants’ summary judgment because there is a genuine issue of material fact concerning whether there was sufficient probable cause to arrest Gorra.
The constitutionality of an arrest is determined by whether it was made with or without probable cause. If there is probable cause for the arrest, then plaintiff’s section 1983 action is barred. Deary v. Three Un-named Police Officers, 746 F.2d 185, 192-93 (3d Cir.1984). See also Mark v. Furay, 769 F.2d 1266, 1268-69 (7th Cir.1985). If the arrest was made without probable cause, then it was unconstitutional and the test for immunity is whether the police officer “knew or reasonably should have known that the action he took within the sphere of official responsibility would violate the [plaintiffs] constitutional rights * * *.” Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2737, 73 L.Ed.2d 396 (original emphasis).
In this case, Gorra claims that there was no probable cause but that in fact he was arrested in retaliation for having told his son he need only speak to a lawyer. The officers argue that they believed that Gor-ra had concealed his son’s whereabouts and that this provided probable cause to arrest him for obstruction of legal process. The circumstances in Gorra do not provide a way of circumventing the need to answer the factual issues surrounding plaintiff’s arrest and deciding the issue of probable cause as a matter of law. Indeed, it is difficult to imagine too many instances that would allow a law enforcement officer to arrest an individual because he informed someone of the right to remain silent. Thus, the issue of whether Gorra was arrested because the troopers had reasonable suspicion to believe he had lied to them or because he told his son to remain silent is an issue that should be determined by a jury. Wagenmann v. Adams, 829 F.2d 196, 206 (1st Cir.1987); Wilson v. Attaway, 757 F.2d 1227, 1236 (11th Cir.1985); Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1347 (7th Cir.1985); Bilbrey v. Brown, 738 F.2d 1462, 1467 (9th Cir.1984). Cf. Losch v. Borough of Parkersburg, Pa., 736 F.2d 903, 908 (3d Cir.1984).
Gorra’s position that there was no probable cause for his arrest may be argued under two different but equally viable theories. First, he contends that the arrest was retaliatory. Rather than arresting him for obstruction of legal process, the officers actually took Gorra into custody in retaliation for the statement he made at the time of his son’s arrest. In a case similar to Gorra, the Seventh Circuit Court of Appeals found that the reason for an arrest was material to determining whether a constitutional violation had occurred. Bailey v. Andrews, 811 F.2d 366 (7th Cir.1987). In Bailey, plaintiff was arrested for disorderly conduct following a heated exchange of words with a police officer. Id. at 368. Plaintiff brought suit under section 1983 alleging that he had been unlawfully arrested. The Seventh Circuit affirmed a verdict in favor of plaintiff stating that it *100was for the jury to decide whether plaintiff had been arrested for disorderly conduct or for exercising his first amendment right to speak freely. Id. at 372. Similarly, in the instant case there is a factual issue for the jury to determine with regard to whether plaintiff was arrested for obstruction of legal process or for advising his son to remain silent. At this juncture of the case, the court must presume that Gorra will be able to prove that he was arrested in retaliation for having advised his son to remain silent. Such action constitutes obvious infringement of well established first and fourth amendment rights.
Second, even if the officers arrested Gor-ra for obstruction of legal process, the arrest would nonetheless have been unconstitutional absent the existence of probable cause. The undisputed facts in this case are as follows: (1) Gorra’s son had an accident and left the scene; (2) Gorra received a phone call from his son and went to the scene of the accident; (3) Officer Hanson and Chase later found Gorra with his son at Gorra’s office; (4) the son was placed under arrest and, as the officers left with the son in custody, Gorra told his son that he need only speak to a lawyer; (5) upon making this statement Gorra was immediately placed under arrest; and (6) Gor-ra was not prosecuted.
Objectively viewing the above-stated factual circumstances to determine the existence of probable cause, it cannot be said that as a matter of law probable cause existed for the arrest. Plaintiff alleges that he was at all times honest in discussions with the officers and that they were unreasonable in their behavior toward him. Viewing the facts most favorable to the plaintiff, the appropriate standard of review of a denial of summary judgment, a jury could find that the officers could not reasonably have believed that Gorra had obstructed legal process. A jury could find that Gorra had not lied to the officers, and that he was not simultaneously arrested with the son but rather arrested immediately after he had told his son that he had a right to remain silent. Cf. Bailey, 811 F.2d at 371.4 Under these circumstances, I find that reasonable people could draw different inferences on the question of whether there was probable cause for the arrest. Thus, the district court correctly denied the defendants’ motion for summary judgment because, viewing all of the facts “in the light most favorable to plaintiff, there is [a] genuine issue, triable to a jury, of improper motivation.” Wright v. South Ark. Regional Health Care, Inc., 800 F.2d 199, 203 (8th Cir.1986).
Until the factual issues of whether the officers’ arrest was pretextual and whether there was probable cause are decided, the court need not and cannot pass upon the question of good faith immunity. Reardon v. Wroan, 811 F.2d 1025, 1030 (7th Cir.1987). If the jury would find sufficient probable cause for the arrest, then the court would not have to pass on the issue of qualified immunity since no unconstitutional arrest would have occurred. If probable cause for the arrest was lacking either because the jury would find the officers’ conduct was retaliatory for Gorra exercising free speech or because there were insufficient facts for a reasonable officer to arrest Gorra for obstruction of legal process, then and only then would it be necessary to pass upon the question of qualified immunity.5
. Trooper Chase contends that Gorra became aware of the tail and attempted to elude the trooper. These attempts were successful when Gorra, according to Chase, shut off his lights and turned down a side street. Chase Dep. at 35.
. The court notes that this statute has recently survived an attack of its constitutionality. State v. Krawsky, 426 N.W.2d 875, 879 (Minn.1988).
. The Honorable James M. Rosenbaum, United States District Judge for the District of Minnesota.
. In striking similarity to the present facts, the Seventh Circuit observed:
The jury was instructed on the elements of Indiana’s disorderly conduct statute, and also on the concept of probable cause. If the jury believed Bailey’s testimony and that of witness Gary Lueck, it could reasonably have found that Andrews did not have probable cause to arrest Bailey under that statute. The jury also could have found that Andrews acted in bad faith in arresting Bailey. The jury thus could have found that Andrews’s arrest of Bailey violated Bailey’s fourth amendment right to be free from unreasonable seizures.
Id. at 373.
. This holding would not be contrary to the objective good faith test now required under Harlow. Post-Harlow cases exclude the subjective intent of the arresting officer in determining good faith relevant to the issue of qualified immunity. Here the issue is not one of good *101faith but whether the officers made an illegal arrest outside of the constitutional sphere of probable cause. And although one may view probable cause to arrest within the objective sphere of existing factual circumstances, the issue of probable cause is for the jury where there exists a dispute of fact as to whether the arrest was pretextual. Bailey v. Andrews, 811 F.2d 366 (7th Cir.1987).