slip opinion

NOTE: Where it is feasible, a syllabus
(headnote) will be released, as is being
done in connection with this case, at
the time the opinion is issued.  The
syllabus constitutes no part of the
opinion of the Court but has been pre-
pared by the Reporter of Decisions for
the convenience of the reader.  See
United States v. Detroit Lumber Co., 200
U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

              Syllabus

        WYATT v. COLE et al.
 certiorari to the united states court of ap-
 peals for the fifth circuit
 No. 911.   Argued January 14, 1992"Decided
            May 18, 1992

With the assistance of respondent Robbins, an
attorney, respondent Cole filed a complaint
under the Mississippi replevin statute against
his partner, petitioner Wyatt.  After Cole re-
fused to comply with a state court order to
return to Wyatt property seized under the sta-
tute, Wyatt brought suit in the Federal District
Court under 42 U.S.C. 1983, challenging the
state statute's constitutionality and seeking
injunctive relief and damages.  Among other
things, the court held the statute unconstitu-
tional and assumed that Cole was subject to
liability under Lugar v. Edmondson Oil Co., 457 U.S.
922, in which this Court ruled that private
defendants invoking state replevin, garnish-
ment, and attachment statutes later declared
unconstitutional act under color of state law
for 1983 liability purposes.  The court also
intimated that, but did not decide whether,
Robbins was subject to 1983 liability.  Howev-
er, Lugar had left open the question whether
private defendants are entitled to qualified
immunity from suit in such cases, see id., at
942, n.23, and the District Court held that
respondents were entitled to qualified immunity
at least for conduct arising prior to the re-
plevin statute's invalidation.  The Court of
Appeals affirmed the grant of qualified immunity
to respondents without revisiting the question
of their 1983 liability.
Held:
1.Qualified immunity from suit, as enunciated
by this Court with respect to government offi-
cials, is not available to private defendants
charged with 1983 liability for invoking state
replevin, garnishment, or attachment statutes.
Immunity for private defendants was not so
firmly rooted in the common law and was not
supported by such strong policy reasons as to
create an inference that Congress meant to
incorporate it into 1983.  See, e. g., Owen v.
City of Independence, 445 U.S. 622, 637.  Even
if there were sufficient common law support to
conclude that private defendants should be
entitled to a good-faith and/or probable-cause
defense to suits for unjustified harm arising
out of the misuse of governmental processes,
that would still not entitle respondents to what
they obtained in the courts below:  the type of
objectively determined, immediately appealable,
qualified immunity from suit accorded govern-
ment officials under, e. g., Harlow v. Fitzgerald,
457 U.S. 800, and Mitchell v. Forsyth, 472 U.S.
511.  Moreover, the policy concerns mandating
qualified immunity for officials in such cas-
es"the need to preserve the officials' ability
to perform their discretionary functions and to
ensure that talented candidates not be de-
terred by the threat of damage suits from en-
tering public service"are not applicable to
private parties.  Although it may be that pri-
vate defendants faced with 1983 liability un-
der Lugar, supra, could be entitled to an affir-
mative good-faith defense, or that 1983 suits
against private, rather than governmental,
parties could require plaintiffs to carry addi-
tional burdens, those issues are neither before
the Court nor decided here.  Pp.511.
2.On remand, it must be determined, at least,
whether respondents, in invoking the replevin
statute, acted under color of state law within
the meaning of Lugar, supra.  P.11.
928 F.2d 718, reversed and remanded.

O'Connor, J., delivered the opinion of the Court,
in which White, Blackmun, Stevens, Scalia, and
Kennedy, JJ., joined.  Kennedy, J., filed a concur-
ring opinion, in which Scalia, J., joined.  Rehnqui-
st, C. J., filed a dissenting opinion, in which Sou-
ter and Thomas, JJ., joined.

Opinion
NOTICE: This opinion is subject to formal
revision before publication in the pre-
liminary print of the United States
Reports.  Readers are requested to
notify the Reporter of Decisions, Su-
preme Court of the United States, Wash-
ington, D.C. 20543, of any typographical
or other formal errors, in order that
corrections may be made before the
preliminary print goes to press.


SUPREME COURT OF THE UNITED STATES
             No. 911
 
HOWARD WYATT, PETITIONER v. BILL COLE and JOHN
                  ROBBINS, II
  on writ of certiorari to the united states
    court of appeals for the fifth circuit
                [May 18, 1992]

                    Justice O'Connor delivered the opinion of the
Court.
  In Lugar v. Edmondson Oil Co., 457 U. S. 922 (1982),
we left open the question whether private defen-
dants charged with 42 U. S. C. 1983 liability for
invoking state replevin, garnishment, and attach-
ment statutes later declared unconstitutional
are entitled to qualified immunity from suit.  Id.,
at 942, n. 23.  We now hold that they are not.

                       I
  This dispute arises out of a soured cattle
partnership.  In July 1986, respondent Bill Cole
sought to dissolve his partnership with petition-
er Howard Wyatt.  When no agreement could be
reached, Cole, with the assistance of an attorney,
respondent John Robbins II, filed a state court
complaint in replevin against Wyatt, accompanied
by a replevin bond of $18,000.
  At that time, Mississippi law provided that an
individual could obtain a court order for seizure
of property possessed by another by posting a
bond and swearing to a state court that the
applicant was entitled to that property, and that
the adversary ``wrongfully took and detain[ed] or
wrongfully detain[ed]'' the property.  1975 Miss.
Gen. Laws, ch. 508,1.  The statute gave the judge no discretion to
deny a writ of replevin.
  After Cole presented a complaint and bond, the
court ordered the County Sheriff to seize 24 head
of cattle, a tractor, and certain other personal
property from Wyatt.  Several months later, after
a postseizure hearing, the court dismissed Cole's
complaint in replevin and ordered the property
returned to Wyatt.  When Cole refused to comply,
Wyatt brought suit in Federal District Court,
challenging the constitutionality of the statute
and seeking injunctive relief and damages from
respondents, the County Sheriff, and the deputies
involved in the seizure.
  The District Court held that the statute's
failure to afford judges discretion to deny writs
of replevin violated due process.  710 F. Supp. 180,
183 (SD Miss. 1989).  It dismissed the suit against
the government officials involved in the seizure
on the ground that they were entitled to qualified
immunity.  App. 1718.  The court also held that
Cole and Robbins, even if otherwise liable under 1983,
were entitled to qualified immunity from suit for
conduct arising prior to the statute's invalida-
tion.  Id., at 1214.  The Court of Appeals for the
Fifth Circuit affirmed the District Court's grant
of qualified immunity to the private defendants.
928 F. 2d 718 (1991).
  We granted certiorari, 502 U. S. ___ (1991), to
resolve a conflict among the Courts of Appeals
over whether private defendants threatened with
42 U. S. C. 1983 liability are, like certain gov-
ernment officials, entitled to qualified immunity
from suit.  Like the Fifth Circuit, the Eighth and
Eleventh Circuits have determined that private
defendants are entitled to qualified immunity.
See Buller v. Buechler, 706 F. 2d 844, 850852 (CA8
1983); Jones v. Preuit & Mauldin, 851 F. 2d 1321,
13231325 (CA11 1988) (en banc), vacated on other
grounds, 489 U. S. 1002 (1989).  The First and Ninth Circuits,
however, have held that in
certain circumstances, private parties acting
under color of state law are not entitled to such
an immunity.  See Downs v. Sawtelle, 574 F. 2d 1,
1516 (CA1), cert. denied, 439 U. S. 910 (1978); Conner
v. Santa Ana, 897 F. 2d 1487, 1492, n. 9 (CA9), cert.
denied, 498 U. S. ___ (1990); Howerton v. Gabica, 708
F. 2d 380, 385, n. 10 (CA9 1983).  The Sixth Circuit
has rejected qualified immunity for private
defendants sued under 1983 but has established
a good faith defense.  Duncan v. Peck, 844 F. 2d
11 (CA6 1988).

                      II
  Title 42 U. S. C. 1983 provides a cause of
action against ``[e]very person who, under color of
any statute . . . of any State . . . subjects, or
causes to be subjected, any citizen . . . to the
deprivation of any rights, privileges, or immuni-
ties secured by the Constitution and laws . . . .''
The purpose of 1983 is to deter state actors
from using the badge of their authority to deprive
individuals of their federally guaranteed rights
and to provide relief to victims if such deter-
rence fails.  Carey v. Piphus, 435 U. S. 247, 2542-
57 (1978).
    In Lugar v. Edmondson Oil
Co., 457 U. S. 922 (1982), the Court considered the
scope of 1983 liability in the context of gar-
nishment, prejudgment attachment, and replevin
statutes.  In that case, the Court held that
private parties who attached a debtor's assets
pursuant to a state attachment statute were
subject to 1983 liability if the statute was
constitutionally infirm.  Noting that our garnish-
ment, prejudgment attachment, and replevin cases
established that private use of state laws to
secure property could constitute ``state action''
for purposes of the Fourteenth Amendment, id., at
932935, the Court held that private defendants
invoking a state-created attachment statute act
``under color of state law'' within the meaning of
1983 if their actions are ``fairly attributable to
the State.''  Id., at 937.  This requirement is
satisfied, the Court held, if two conditions are
met.  First, the ``deprivation must be caused by
the exercise of some right or privilege created by
the State or by a rule of conduct imposed by the
State or by a person for whom the State is re-
sponsible.''  Ibid.  Second, the private party must
have ``acted together with or . . . obtained signifi-
cant aid from state officials'' or engaged in
conduct ``otherwise chargeable to the State.''
Ibid.  The Court found potential 1983 liability in
Lugar because the attachment scheme was created
by the State and because the private defendants,
in invoking the aid of state officials to attach
the disputed property, were ``willful partici-
pant[s] in joint activity with the State or its
agents.'' Id., at 941 (internal quotation marks
omitted).
  Citing Lugar, the District Court assumed that
Cole, by invoking the state statute, had acted
under color of state law within the meaning of
1983, and was therefore liable for damages for
the deprivation of Wyatt's due process rights.
App. 12.  With respect to Robbins, the court noted
that while an action taken by an attorney in
representing a client ``does not normally consti-
tute an act under color of state law . . . an attor-
ney is still a person who may conspire to act
under color of state law in depriving another of
secured rights.''  Id., at 13.  The court did not
determine whether Robbins was liable, however,
because it held that both Cole and Robbins were
entitled to qualified immunity from suit at least
for conduct prior to the statute's invalidation.
Id., at 1314.
   Although the Court of Appeals did not review
whether, in the first instance, Cole and Robbins
had acted under color of state law within the
meaning of 1983, it affirmed the District Court's
grant of qualified immunity to respondents.  In so
doing, the Court of Appeals followed one of its
prior cases, Folsom Investment Co. v. Moore, 681
F. 2d 1032 (CA5 1982), in which it held that ``a 1983
defendant who has invoked an attachment statute
is entitled to an immunity from monetary liability
so long as he neither knew nor reasonably should
have known that the statute was uncon-stitution-
al.''  Id., at 1037.  The court in Folsom based its
holding on two grounds.  First, it viewed the
existence of a common law probable cause defense
to the torts of malicious prosecution and wrong-
ful attachment as evidence that ``Congress in
enacting 1983 could not have intended to subject
to liability those who in good faith resorted to
legal process.''  Id., at 1038.  Although it acknowl-
edged that a defense is not the same as an immuni-
ty, the court maintained that it could ``transfor[-
m] a common law defense extant at the time of
1983's passage into an immunity.''  Ibid.  Second,
the court held that while immunity for private
parties is not derived from official immunity, it is
based on ``the important public interest in permit-
ting ordinary citizens to rely on presumptively
valid state laws, in shielding citizens from mone-
tary damages when they reasonably resort to a
legal process later held to be unconstitutional,
and in protecting a private citizen from liability
when his role in any unconstitutional action is
marginal.''  Id., at 1037.  In defending the decision
below, respondents advance both arguments put
forward by the Court of Appeals in Folsom.  Nei-
ther is availing.

                      III
  Section 1983 ``creates a species of tort liabili-
ty that on its face admits of no immunities.''
Imbler v. Pachtman, 424 U. S. 409, 417 (1976).
Nonetheless, we have accorded certain government
officials either absolute or qualified immunity
from suit if the ``tradition of immunity was so
firmly rooted in the common law and was supported
by such strong policy reasons that `Congress
would have specifically so provided had it wished
to abolish the doctrine.''' Owen v. City of Indepen-
dence, 445 U. S. 622, 637 (1980) (quoting Pierson v.
Ray, 386 U. S. 547, 555 (1967)).  If parties seeking
immunity were shielded from tort liability when
Congress enacted the Civil Rights Act of 1871"1
of which is codified at 42 U. S. C. 1983"we infer
from legislative silence that Congress did not
intend to abrogate such immunities when it im-
posed liability for actions taken under color of
state law.  See Tower v. Glover, 467 U. S. 914, 920
(1984); Imbler, supra, at 421; Pulliam v. Allen, 466
U. S. 522, 529 (1984).  Additionally, irrespective of
the common law support, we will not recognize an
immunity available at common law if 1983's
history or purpose counsel against applying it in
1983 actions.  Tower, supra, at 920.  See also
Imbler, supra, at 424429.
  In determining whether there was an immunity at
common law that Congress intended to incorporate
in the Civil Rights Act, we look to the most close-
ly analogous torts"in this case, malicious prose-
cution and abuse of process.  At common law, these
torts provided causes of action against private
defendants for unjustified harm arising out of the
misuse of governmental processes.  2 C. Addison,
Law of Torts 1, p. 65, 852, and n. 2, p. 82,  868,
and n. 1 (1876); T. Cooley, Law of Torts 187190
(1879); J. Bishop, Commentaries on Non-Contract
Law 228250, pp. 91103, 490, p. 218 (1889).
   Respondents do not contend that private
parties who instituted attachment proceedings
and who were subsequently sued for malicious
prosecution or abuse of process were entitled to
absolute immunity.  And with good reason; although
public prosecutors and judges were accorded
absolute immunity at common law, Imbler v. Pachtm-
an, supra, at 421424, such protection did not
extend to complaining witnesses who, like respon-
dents, set the wheels of government in motion by
instigating a legal action.  Malley v. Briggs, 475
U. S. 335, 340341 (1986) (``In 1871, the generally
accepted rule was that one who procured the
issuance of an arrest warrant by submitting a
complaint could be held liable if the complaint was
made maliciously and without probable cause'').
  Nonetheless, respondents argue that at common
law, private defendants could defeat a malicious
prosecution or abuse of process action if they
acted without malice and with probable cause, and
that we should therefore infer that Congress did
not intend to abrogate such defenses when it
enacted the Civil Rights Act of 1871.  We adopted
similar reasoning in Pierson v. Ray, 386 U. S., at
555557.  There, we held that police officers sued
for false arrest under 1983 were entitled to the
defense that they acted with probable cause and
in good faith when making an arrest under a stat-
ute they reasonably believed was valid.  We
recognized this defense because peace officers
were accorded protection from liability at common
law if they arrested an individual in good faith,
even if the innocence of such person were later
established.  Ibid.
  The rationale we adopted in Pierson is of no
avail to respondents here.  Even if there were
sufficient common law support to conclude that
respondents, like the police officers in Pierson,
should be entitled to a good-faith defense, that
would still not entitle them to what they sought
and obtained in the courts below: the qualified
immunity from suit accorded government officials
under Harlow v. Fitzgerald, 457 U. S. 800 (1982).
       In Harlow, we altered the standard of qualified
immunity adopted in our prior 1983 cases be-
cause we recognized that ``[t]he subjective ele-
ment of the good-faith defense frequently [had]
prove[n] incompatible with our admonition . . . that
insubstantial claims should not proceed to trial.''
Id., at 815816.  Because of the attendant harms
to government effectiveness caused by lengthy
judicial inquiry into subjective motivation, we
concluded that ``bare allegations of malice should
not suffice to subject government officials
either to the costs of trial or to the burdens of
broad-reaching discovery.''  Id., at 817818.
Accordingly, we held that government officials
performing discretionary functions are shielded
from ``liability for civil damages insofar as their
conduct [did] not violate clearly established
statutory or constitutional rights of which a
reasonable person would have known.''  Id., at 818.
This wholly objective standard, we concluded,
would ``avoid excessive disruption of government
and permit the resolution of many insubstantial
claims on summary judgment.''  Ibid.
  That Harlow ``completely reformulated qualified
immunity along principles not at all embodied in
the common law'' Anderson v. Creighton, 483 U. S.
635, 645 (1987), was reinforced by our decision in
Mitchell v. Forsyth, 472 U. S. 511 (1985).  Mitchell
held that Harlow established an ``immunity from suit
rather than a mere defense to liability,'' which,
like an absolute immunity, ``is effectively lost if
a case is erroneously permitted to go to trial.''
472 U. S., at 5 (emphasis supplied).  Thus, we held
in Mitchell that the denial of qualified immunity
should be immediately appealable.  Id., at 530.
  It is this type of objectively determined,
immediately appealable immunity that respondents
asserted below.  But, as our precedents make
clear, the reasons for recognizing such an immuni-
ty were based not simply on the existence of a
good-faith defense at common law, but on the
special policy concerns involved in suing govern-
ment officials.  Harlow, supra, at 813; Mitchell,
supra, at 5.  Reviewing these concerns, we
conclude that the rationales mandating qualified
immunity for public officials are not applicable to
private parties.
  Qualified immunity strikes a balance between
compensating those who have been injured by
official conduct and protecting government's
ability to perform its traditional functions.
Harlow, supra, at 819; Pierson, supra, at 554;
Anderson, supra, at 638.  Accordingly, we have
recognized qualified immunity for government
officials where it was necessary to preserve
their ability to serve the public good or to
ensure that talented candidates were not de-
terred by the threat of damage suits from enter-
ing public service.  See, e. g., Wood v. Strickland,
420 U. S. 308, 319 (1975) (denial of qualified immu-
nity to school board officials ```would contribute
not to principled and fearless decision-making but
to intimidation''') (quoting Pierson, supra, at 554);
Butz v. Economou, 438 U. S. 478, 506 (1978) (immunity
for Presidential aides warranted partly ``to
protect officials who are required to exercise
their discretion and the related public interest
in encouraging the vigorous exercise of official
authority''); Mitchell, supra, at 5 (immunity
designed to prevent the ```distraction of officials
from their governmental duties, inhibition of
discretionary action, and deterrence of able
people from public service''') (quoting Harlow,
supra, at 816).  In short, the qualified immunity
recognized in Harlow acts to safeguard govern-
ment, and thereby to protect the public at large,
not to benefit its agents.
  These rationales are not transferable to
private parties.  Although principles of equality
and fairness may suggest, as respondents argue,
that private citizens who rely unsuspectingly on
state laws they did not create and may have no
reason to believe are invalid should have some
protection from liability, as do their government
counterparts, such interests are not sufficiently
similar to the traditional purposes of qualified
immunity to justify such an expansion.  Unlike
school board members, see Wood, supra, or police
officers, see Malley v. Briggs, 475 U. S. 335 (1986),
or Presidential aides, see Butz, supra, private
parties hold no office requiring them to exercise
discretion; nor are they principally concerned
with enhancing the public good.  Accordingly,
extending Harlow qualified immunity to private
parties would have no bearing on whether public
officials are able to act forcefully and decisively
in their jobs or on whether qualified applicants
enter public service.  Moreover, unlike with
government officials performing discretionary
functions, the public interest will not be unduly
impaired if private individuals are required to
proceed to trial to resolve their legal disputes.
In short, the nexus between private parties and
the historic purposes of qualified immunity is
simply too attenuated to justify such an exten-
sion of our doctrine of immunity.
  For these reasons, we can offer no relief today.
The question on which we granted certiorari is a
very narrow one: ``[W]hether private persons, who
conspire with state officials to violate constitu-
tional rights, have available the good faith
immunity applicable to public officials.''  Pet. for
Cert. i.  The precise issue encompassed in this
question, and the only issue decided by the lower
courts, is whether qualified immunity, as enunci-
ated in Harlow, supra, is available for private
defendants faced with 1983 liability for invoking
a state replevin, garnishment or attachment
statute.  That answer is no.  In so holding, howev-
er, 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 govern-
mental, 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, ___ U. S. ___
(1992) (draft op., at 1317).

                      IV
  As indicated above, the District Court assumed
that under Lugar v. Edmondson Oil Co., 457 U. S. 922
(1982), Cole was liable under 1983 for invoking
the state replevin under bond statute, and inti-
mated that, but did not decide whether, Robbins
also was subject to 1983 liability.  The Court of
Appeals never revisited this question, but in-
stead concluded only that respondents were
entitled to qualified immunity at least for con-
duct 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, supra.  The decision of the Court of
Appeals is reversed and the case is remanded for
proceedings consistent with this opinion.
                             It is so ordered.


Concur
      SUPREME COURT OF THE UNITED STATES
               No. 911
 
HOWARD WYATT, PETITIONER v. BILL COLE and JOHN
                  ROBBINS, II
  on writ of certiorari to the united states
    court of appeals for the fifth circuit
                [May 18, 1992]

  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
consistent, 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
56; post, at 12.  In Tenney v. Brandhove, 341 U. S.
367, 376 (1951) we held that 1983 had not eradi-
cated the absolute immunity granted legislators
under the common law.  And in Pierson v. Ray, 386
U. S. 547, 555557 (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 reason-
able 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 78.
  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.  Id.;
Burns v. Reed, 500 U. S. ___, ___ (1991) (slip op., at
7); Hafer v. Melo, 502 U. S. ___, ___ (1991) (slip op.,
at 7).  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 objec-
tive inquiry into the legal reasonableness of the
official action.  Anderson v. Creighton, 483 U. S.
635, 645 (1987).  The transformation was justified
by the special policy concerns arising from public
officials' exposure to repeated suits.  Harlow,
supra, at 813814; ante, at 78.  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 45.  With this I cannot agree.
  We need not decide whether or not it was appro-
priate for the Court in Harlow to depart from
history in the name of public policy, reshaping
immunity doctrines in light of those policy consid-
erations.  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 sum-
mary 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
815819.  However, subsequent clarifications to
summary-judgment law have alleviated that prob-
lem, 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 alle-
gations 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, enact-
ed by the Congress, which  on its face does not
provide for any immunities.  Malley, supra, at 342
(emphasis in original).  We have imported common-
law doctrines in the past because of our conclu-
sion that the Congress which enacted 1983 acted
in light of existing legal principles.  Owen v. City
of Independence, 445 U. S. 622, 637638 (1980).
That suggests, however, that we may not trans-
form 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 opinion 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 1.  In both of the common-law actions, it was
essential for the plaintiff to prove that the
wrong doer acted with malice and without probable
cause.  Post, at 1, n. 1.  As The Chief Justice
states, it is something of a misnomer to describe
the common law as creating a good faith 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 re-
quire 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 defen-
dant did, would not have believed that the prose-
cution 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 34, 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,at 3.
  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 action lay
because the essence of the wrong was an injury
caused by a suit or prosecution commenced with-
out 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 consider-
ations 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 auto-
matic rule that the same analysis applies in suits
against private persons.  See ante, at 8, 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 case.  Ibid.; post, at 34, n. 2.
That does not mean, however, that we may deprive
plaintiffs of the opportunity to make their case.
In some cases eliminating the defense based on
subjective good faith can make a real difference,
and again the instant case of alleged reliance on
a statute deemed valid provides the example.  It
seems problematic to say that a defendant should
be relieved of liability under some automatic rule
of immunity if objective reliance upon a statute
is reasonable but the defendant in fact had
knowledge of its invalidity.  Because the burden
of proof on this question is the plaintiff's, the
question may be resolved on summary judgment if
the plaintiff cannot come forward with facts from
which bad faith can be inferred.  But the question
is a factual one, and a plaintiff may rely on
circumstantial rather than direct evidence to
make his case.  Siegert v. Gilley, 500 U. S. ___, ___
(1991 (Kennedy, J., concurring in judgment).  The
rule of course also works in reverse, for the
existence of a statute thought valid ought to
allow a defendant to argue that he acted in
subjective good faith and is entitled to exonera-
tion no matter what the objective test is.
  The distinction I draw is important because
there is support in the common law for the propo-
sition that a private individual's reliance on a
statute, prior to a judicial determination of
unconstitutionality, is considered reasonable as
a matter of law; and therefore under the circum-
stances of this case, lack of probable cause can
only be shown through proof of subjective bad
faith.  Birdsall v. Smith, 158 Mich. 390, 394, 122
N.W. 6, 627 (1909).  Thus the subjective element
dismissed as exceptional by the dissent may be
the rule rather than the exception.
  I join the opinion of the Court because I believe
there is nothing contrary to what I say in that
opinion.  See ante, at 1011 ( we do not foreclose
the possibility that private defendants faced
with 1983 liability . . . could be entitled to an
affirmative defense based on good faith and/or
probable cause or that 1983 suits against
private . . . parties could require plaintiffs to
carry additional burdens).  Though they described
the issue before them as  good faith immunity,
both the District Court and the Court of Appeals
treated the question as one of law.  App. 1214;
928 F. 2d 718, 721722 (CA5 1991).  The Court of
Appeals in particular placed heavy reliance on the
policy considerations favoring a rule that citi-
zens may rely on statutes presumed to be valid.
Ibid.  The latter inquiry, as Birdsall recognizes
however, goes mainly to the question of objective
reasonableness.  I do not understand either the
District Court or the Court of Appeals to make an
unequivocal finding that the respondents before
us acted with subjective good faith when they
filed suit under the Mississippi replevin statute.
Furthermore, the question on which we granted
certiorari was the narrow one of whether private
defendants in 1983 suits are entitled to the
same qualified immunity applicable to public
officials, ante, at 10, which of course would be
subject to the objective standard of Harlow v.
Fitzgerald.  Under my view the answer to that
question is no.  Though it might later be deter-
mined that there is no triable issue of fact to
save the plaintiff's case in the matter now before
us, on remand it ought to be open to him at least
in theory to argue that the defendant's bad faith
eliminates any reliance on the statute, just as it
ought to be open to the defendant to show good
faith even if some construct of a reasonable man
in the defendant's position would have acted in a
different way.
  So I agree the case must be remanded for fur-
ther proceedings.

Dissent
      SUPREME COURT OF THE UNITED STATES
             No. 911
 
HOWARD WYATT, PETITIONER v. BILL COLE and JOHN
                  ROBBINS, II
  on writ of certiorari to the united states
    court of appeals for the fifth circuit
                [May 18, 1992]

  The Chief Justice, with whom Justice Souter and
Justice Thomas join, dissenting.
  The Court notes that we have recognized an
immunity in the 1983 context in two circumstanc-
es.  The first is when a similarly situated defen-
dant would have enjoyed an immunity at common law
at the time 1983 was adopted (ante, at 5).  The
second is when important public policy concerns
suggest the need for an immunity (ante, at 89).
Because I believe that both requirements, as
explained in our prior decisions, are satisfied
here, I dissent.
  First, I think it is clear that at the time 1983
was adopted, there generally was available to
private parties a good-faith defense to the torts
of malicious prosecution and abuse of process.
See authorities cited ante, at 6; Malley v. Briggs,
475 U. S. 335, 340341 (1986) (noting that the
generally accepted rule at common law was that a
person would be held liable if ``the complaint was
made maliciously and without probable cause'');
Pierson v. Ray, 386 U. S. 547, 555 (1967) (noting
that at common law a police officer sued for false
arrest can rely on his own goodfaith in making the
arrest).  And while the Court is willing to assume
as much (ante, at 7), it thinks this insufficient to
sustain respondents' claim to an immunity because
the ``qualified immunity'' respondents' seek is not
equivalent to such a ``defense'' (ante, at 78).
  But I think the Court errs in suggesting that
the availability of a good-faith common law de-
fense at the time of 1983's adoption is not
sufficient to support their claim to immunity.  The
case on which respondents principally rely,
Pierson, considered whether a police officer sued
under 1983 for false arrest could rely on a
showing of good-faith in order to escape liability.
And while this Court concluded that the officer
could rely on his own goodfaith, based in large
part on the fact that a good-faith defense had
been available at common law, the Court was at
best ambiguous as to whether it was recognizing a
``defense'' or an ``immunity.''  Compare 386 U. S., at
556 (criticizing Court of Appeals for concluding
that no ``immunity'' was available) with id., at 557
(recognizing a good-faith ``defense'').  Any initial
ambiguity, however, has certainly been eliminated
by subsequent cases; there can be no doubt that
it is a qualified immunity to which the officer is
entitled.  See, Malley, supra, at 340.  Similarly, in
Wood v. Strickland, 420 U. S. 308, 318 (1975), we
recognized that, ``[a]lthough there have been
differing emphases and formulations of the com-
mon-law immunity,'' the general recognition under
state law that public officers are entitled to a
good-faith defense was sufficient to support the
recognition of a 1983 immunity.
  Thus, unlike the Court, I think our prior prece-
dent establishes that a demonstration that a
good-faith defense was available at the time
1983 was adopted does, in fact, provide substan-
tial support for a contemporary defendant claim-
ing that he is entitled to qualified immunity in the
analogous 1983 context.  While we refuse to
recognize a common law immunity if 1983's history
or purpose counsel against applying it, ante, at 6,
I see no such history or purpose that would so
counsel here.
  Indeed, I am at a loss to understand what is
accomplished by today's decision"other than a
needlessly fastidious adherence to nomencla-
ture"given that the Court acknowledges that a
good-faith defense will be available for respon-
dents to assert on remand.  Respondents presum-
ably will be required to show the traditional
elements of a good-faith defense"either that
they acted without malice or that they acted with
probable cause.  See n.1, supra; Stewart v. Sonneb-
orn, 98 U. S. 187, 194 (1879); W. Prosser, Handbook of
the Law of Torts 120, p.854 (4th ed. 1971).  The
first element, ``maliciousness,'' encompasses an
inquiry into subjective intent for bringing the
suit.  Stewart, supra, at 192193; Prosser, supra,
120, p.855.  This quite often includes an inquiry
into the defendant's subjective belief as to
whether he believed success was likely.  See, e.g.,
2 C. Addison, Law of Torts 1, 854 (1876) (``[P]roof
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 princi-
pally on objective reasonableness.  Stewart,
supra, at 194; Prosser, supra, 120, p.854.  Thus,
respondents can successfully defend this suit
simply by establishing that their reliance on the
attachment statute was objectively reasonable
for someone with their knowledge of the circum-
stances.  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 estab-
lished statutory or constitutional rights of which
a reasonable person would have known''). 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 193194;
2 Addison, supra, 1, 853, n.(p); J. Bishop, Com-
mentaries 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 immunity claims.  Harlow, supra, at 818.
Thus, private defendants who have invoked a state
attachment law are put in the same position
whether we recognize that they are entitled to
qualified immunity or if we instead recognize a
good-faith defense.  Perhaps the Court believes
that the ``defense'' will be less amenable to sum-
mary disposition than will the ``immunity;'' perhaps
it believes the defense will be an issue that must
be submitted to the jury (see ante, at 11, referring
to cases such as this ``proceed[ing] to trial'').
While I can see no reason why this would be so
(given that probable cause is a legal question), if
it is true, today's decision will only manage to
increase litigation costs needlessly for hapless
defendants.
  This, in turn, leads to the second basis on which
we have previously recognized a qualified immuni-
ty"reasons of public policy.  Assuming that some
practical difference will result from recognizing
a defense but not an immunity, I think such a step
is neither dictated by our prior decisions nor
desirable.  It is true, as the Court points out,
that in abandoning a strictly historical approach
to 1983 immunities we have often explained our
decision to recognize an immunity in terms of the
special needs of public officials.  But those cases
simply do not answer"because the question was
not at issue"whether similar (or even completely
unrelated) reasons of public policy would warrant
immunity for private parties as well.
            I believe there are such reasons.  The normal
presumption that attaches to any law is that
society will be benefitted if private parties rely
on that law to provide them a remedy, rather than
turning to some form of private, and perhaps
lawless, relief.  In denying immunity to those who
reasonably rely on presumptively valid state law,
and thereby discouraging such reliance, the Court
expresses confidence that today's decision will
not ``unduly impai[r],'' ibid., the public interest.
I do not share that confidence.  I would have
thought it beyond peradventure that there is
strong public interest in encouraging private
citizens to rely on valid state laws of which they
have no reason to doubt the validity.  Buller v.
Buechler, 706 F. 2d 844, 851 (CA8 1983); Folsom
Investment Co. v. Moore, 681 F. 2d 1032, 10371038
(CA5 1982).
  Second, as with the police officer making an
arrest, I believe the private plaintiff's lot is
``not so unhappy'' that he must forgo recovery of
property he believes to be properly recoverable
through available legal processes or to be ``mulc-
ted in damages'' Pierson, 386 U S., at 555, if his
belief turns out to be mistaken.  For as one Court
of Appeals has pointed out, it is at least passing
strange to conclude that private individuals are
acting ``under color of law'' because they invoke a
state garnishment statute and the aid of state
officers, see Lugar v. Edmonson Oil Co., 457 U. S.
922 (1982), but yet deny them the immunity to which
those same state officers are entitled, simply
because the private parties are not state em-
ployees.  Buller, supra, at 851.  While some of the
strangeness may be laid at the doorstep of our
decision in Lugar, see 457 U. S., at 943 (Burger,
C. J., dissenting); and id., at 944956 (Powell, J.,
dissenting), there is no reason to proceed still
further down this path.  Our 1983 jurisprudence
has gone very far afield indeed, when it subjects
private parties to greater risk than their public
counterparts, despite the fact that 1983's
historic purpose was ``to prevent state officials
from using the cloak of their authority under
state law to violate rights protected against
state infringement.''  Id., at 948 (emphasis added).
See also, Monroe v. Pape, 365 U. S. 167, 175176
(1961).
  Because I find today's decision dictated neither
by our own precedent nor by any sound consider-
ations of public policy, I dissent.
