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