KENNEDY, J., concurring garnishment, or attachment statute. That answer is no. In so holding, however, we do not foreclose the possibility that private defendants faced with § 1983 liability under Lugar v. Edmondson Oil Co., 457 U. S. 922 (1982), could be entitled to an affirmative defense based on good faith and/or probable cause or that § 1983 suits against private, rather than governmental, parties could require plaintiffs to carry additional burdens. Because those issues are not fairly before us, however, we leave them for another day. Cf. Yee v. Escondido, 503 U. S., 519, 534-538 (1992). IV As indicated above, the District Court assumed that under Lugar v. Edmondson Oil Co., supra, Cole was liable under § 1983 for invoking the state replevin under bond statute, and intimated that, but did not decide whether, Robbins also was subject to § 1983 liability. The Court of Appeals never revisited this question, but instead concluded only that respondents were entitled to qualified immunity at least for conduct prior to the statute's invalidation. Because we overturn this judgment, we must remand, since there remains to be determined, at least, whether Cole and Robbins, in invoking the replevin statute, acted under color of state law within the meaning of Lugar. The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered. JUSTICE KENNEDY, with whom JUSTICE SCALIA joins, concurring. I join the opinion of the Court but find that a further and separate statement of my views is required. I agree with what THE CHIEF JUSTICE Writes in dissent respecting the historical origins of our qualified immunity jurisprudence but submit that the question presented to us requires that we reverse the judgment, as the majority holds. Indeed, the result reached by the Court is quite con KENNEDY, J., concurring sistent, in my view, with a proper application of the history THE CHIEF JUSTICE relates. Both the Court and the dissent recognize that our original decisions recognizing defenses and immunities to suits brought under 42 U. S. C. § 1983 rely on analogous limitations existing in the common law when § 1983 was enacted. See ante, at 163–164; post, at 176–177. In Tenney v. Brandhove, 341 U. S. 367, 376 (1951), we held that § 1983 had not eradicated the absolute immunity granted legislators under the common law. And in Pierson v. Ray, 386 U. S. 547, 555-557 (1967), we recognized that under § 1983 police officers sued for false arrest had available what we described as a "defense of good faith and probable cause," based on their reasonable belief that the statute under which they acted was constitutional. Id., at 557. Pierson allowed the defense because with respect to the analogous common-law tort, the Court decided that officers had available to them a similar defense. The good-faith and probable-cause defense evolved into our modern qualified-immunity doctrine. Ante, at 165-166. Our immunity doctrine is rooted in historical analogy, based on the existence of common-law rules in 1871, rather than in "freewheeling policy choice[s]." Malley v. Briggs, 475 U. S. 335, 342 (1986). In cases involving absolute immunity we adhere to that view, granting immunity to the extent consistent with historical practice. Ibid.; Burns v. Reed, 500 U. S. 478, 485 (1991); Hafer v. Melo, 502 U. S. 21, 28-29 (1991). In the context of qualified immunity for public officials, however, we have diverged to a substantial degree from the historical standards. In Harlow v. Fitzgerald, 457 U. S. 800 (1982), we “completely reformulated qualified immunity along principles not at all embodied in the common law, replacing the inquiry into subjective malice so frequently required at common law with an objective inquiry into the legal reasonableness of the official action." Anderson v. Creighton, 483 U. S. 635, 645 (1987). The transformation KENNEDY, J., concurring was justified by the special policy concerns arising from public officials' exposure to repeated suits. Harlow, supra, at 813-814; ante, at 165-166. The dissent in today's case argues that similar considerations justify a transformation of common-law standards in the context of private-party defendants. Post, at 179-180. With this I cannot agree. We need not decide whether or not it was appropriate for the Court in Harlow to depart from history in the name of public policy, reshaping immunity doctrines in light of those policy considerations. But I would not extend that approach to other contexts. Harlow was decided at a time when the standards applicable to summary judgment made it difficult for a defendant to secure summary judgment regarding a factual question such as subjective intent, even when the plaintiff bore the burden of proof on the question; and in Harlow we relied on that fact in adopting an objective standard for qualified immunity. 457 U. S., at 815-819. However, subsequent clarifications to summary-judgment law have alleviated that problem, by allowing summary judgment to be entered against a nonmoving party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U. S. 317, 322 (1986). Under the principles set forth in Celotex and related cases, the strength of factual allegations such as subjective bad faith can be tested at the summary-judgment stage. It must be remembered that unlike the common-law judges whose doctrines we adopt, we are devising limitations to a remedial statute, enacted by the Congress, which "on its face does not provide for any immunities." Malley, supra, at 342 (emphasis in original). We have imported commonlaw doctrines in the past because of our conclusion that the Congress which enacted § 1983 acted in light of existing legal principles. Owen v. City of Independence, 445 U. S. 622, 637-638 (1980). That suggests, however, that we may not KENNEDY, J., concurring transform what existed at common law based on our notions of policy or efficiency. My conclusions are a mere consequence of the historical principles described in the dissent of THE CHIEF JUSTICE. The common-law tort actions most analogous to the action commenced here were malicious prosecution and abuse of process. Post, at 176. In both of the common-law actions, it was essential for the plaintiff to prove that the wrongdoer acted with malice and without probable cause. Post, at 176, n. 1. AS THE CHIEF JUSTICE states, it is something of a misnomer to describe the common law as creating a goodfaith defense; we are in fact concerned with the essence of the wrong itself, with the essential elements of the tort. The malice element required the plaintiff to show that the challenged action was undertaken with an unlawful purpose, though it did not require a showing of ill will towards the plaintiff. J. Bishop, Commentaries on Non-Contract Law § 232, p. 92 (1889). To establish the absence of probable cause, a plaintiff was required to prove that a reasonable person, knowing what the defendant did, would not have believed that the prosecution or suit was well grounded, or that the defendant had in fact acted with the belief that the suit or prosecution in question was without probable cause. Id., § 239, at 95. Our cases on the subject, beginning with Harlow v. Fitzgerald, diverge from the common law in two ways. First, as THE CHIEF JUSTICE acknowledges, modern qualified immunity does not turn upon the subjective belief of the defendant. Post, at 178, n. 2. Second, the immunity diverges from the common-law model by requiring the defendant, not the plaintiff, to bear the burden of proof on the probable-cause issue. Supra this page. The decision to impose these requirements under a rule of immunity has implications, though, well beyond a mere determination that one party or the other is in a better position to bear the burden of proof. It implicates as well the law's definition of the wrong itself. At common law the ac KENNEDY, J., concurring tion lay because the essence of the wrong was an injury caused by a suit or prosecution commenced without probable cause or with knowledge that it was baseless. To cast the issue in terms of immunity, however, is to imply that a wrong was committed but that it cannot be redressed. The difference is fundamental, for at stake is the concept of what society considers proper conduct and what it does not. Beneath the nomenclature lie considerations of substance. Harlow was cast as an immunity case, involving as it did suit against officers of the Government. And immunity, as distinct, say, from a defense on the merits or an element of the plaintiff's cause of action, is a legal inquiry, decided by the court rather than a jury, and on which an interlocutory appeal is available to defendants. Mitchell v. Forsyth, 472 U. S. 511 (1985). Whether or not it is correct to diverge in these respects from the common-law model when governmental agents are the defendants, we ought not to adopt an automatic rule that the same analysis applies in suits against private persons. See ante, at 166-167, n. 2. By casting the rule as an immunity, we imply the underlying conduct was unlawful, a most debatable proposition in a case where a private citizen may have acted in good-faith reliance upon a statute. And as we have defined the immunity, we also eliminate from the case any demonstration of subjective good faith. Under the common law, however, if the plaintiff could prove subjective bad faith on the part of the defendant, he had gone far towards proving both malice and lack of probable cause. Moreover, the question of the defendant's beliefs was almost always one for the jury. Stewart v. Sonneborn, 98 U. S. 187, 194 (1879). It is true that good faith may be difficult to establish in the face of a showing that from an objective standpoint no reasonable person could have acted as the defendant did, and in many cases the result would be the same under either test. This is why Stewart describes the instances where the probable cause turns on subjective intent as the exceptional |