170
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
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