Cite as: 504 U. S. 158 (1992)
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-
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