# Heck v. Humphrey/Concurrence Souter

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Justice Souter, with whom Justice Blackmun, Justice Stevens, and Justice O'Connor join, concurring in the judgment.
The Court begins its analysis as I would, by observing that "[t]his case lies at the intersection of the two most fertile sources of federal-court prisoner litigation—the Civil Rights Act of 1871, . . . 42 U.S.C. § 1983, and the federal habeas corpus statute, 28 U.S.C. § 2254," two statutes that [p492] "provide access to a federal forum for claims of unconstitutional treatment at the hands of state officials," while "differ[ing] in their scope and operation." Ante, at 480. But instead of analyzing the statutes to determine which should yield to the other at this intersection, the Court appears to take the position that the statutes were never on a collision course in the first place because, like the common-law tort of malicious prosecution, § 1983 requires (and, presumably, has always required) plaintiffs seeking damages for unconstitutional conviction or confinement to show the favorable termination of the underlying proceeding. See ante, at 484–487.
While I do not object to referring to the common law when resolving the question this case presents, I do not think that the existence of the tort of malicious prosecution alone provides the answer. Common-law tort rules can provide a "starting point for the inquiry under § 1983," Carey v. Piphus, 435 U.S. 247, 258 (1978), but we have relied on the common law in § 1983 cases only when doing so was thought to be consistent with ordinary rules of statutory construction, as when common-law principles have textual support in other provisions of the Civil Rights Act of 1871, see, e.g., id., at 255–256 (damages under § 1983), or when those principles were so fundamental and widely understood at the time § 1983 was enacted that the 42d Congress could not be presumed to have abrogated them silently, see, e.g., Tenney v. Brandhove, 341 U.S. 367, 376 (1951) (immunity under § 1983); Pierson v. Ray, 386 U.S. 547, 553–554 (1967) (same). At the same time, we have consistently refused to allow common-law analogies to displace statutory analysis, declining to import even well-settled common-law rules into § 1983 "if [the statute's] history or purpose counsel against applying [such rules] in § 1983 actions." Wyatt v. Cole, 504 U.S. 158, 164 (1992); see also Tower v. Glover, 467 U.S. 914, 920–921 (1984). Cf. Anderson v. Creighton, 483 U.S. 635, 645 (1987) ("[W]e have never suggested that the precise contours of official immunity [p493] [under § 1983] can and should be slavishly derived from the often arcane rules of the common law").
An examination of common-law sources arguably relevant in this case confirms the soundness of our hierarchy of principles for resolving questions concerning § 1983. If the common law were not merely a "starting point" for the analysis under § 1983, but its destination, then (unless we were to have some authority to choose common-law requirements we like and discard the others) principle would compel us to accept as elements of the § 1983 cause of action not only the malicious-prosecution tort's favorable-termination requirement, but other elements of the tort that cannot coherently be transplanted. In addition to proving favorable termination, [p494] a plaintiff in a malicious-prosecution action, according to the same sources the Court relies upon, must prove the "[a]bsence of probable cause for the proceeding" as well as "'[m]alice,' or a primary purpose other than that of bringing an offender to justice." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 871 (5th ed. 1984) (hereinafter Prosser and Keeton); see also 8 S. Speiser, C. Krause, & A. Gans, American Law of Torts § 28:7, p. 38, § 28:11, p. 61 (1991). As § 1983 requirements, however, these elements would mean that even a § 1983 plaintiff whose conviction was invalidated as unconstitutional (premised, for example, on a confession coerced by an interrogation-room beating) could not obtain damages for the unconstitutional conviction and ensuing confinement if the defendant police officials (or perhaps the prosecutor) had probable cause to believe the plaintiff was guilty and intended to bring him to justice. Absent an independent statutory basis for doing so, importing into § 1983 the malicious-prosecution tort's favorable-termination requirement but not its probable-cause requirement would be particularly odd since it is from the latter that the former derives. See Prosser and Keeton 874 ("The requirement that the criminal prosecution terminate in favor of the malicious prosecution plaintiff . . . is primarily important not as an independent element of the malicious prosecution action but only for what it shows about probable cause or guilt-in-fact"); M. Bigelow, Leading Cases on Law of Torts 196 (1875) ("The action for a malicious prosecution cannot be maintained until the prosecution has terminated; for otherwise the plaintiff might obtain judgment in the one case and yet be convicted in the other, which would of course disprove the averment of a want of probable cause").
If, in addition, the common law were the master of statutory analysis, not the servant (to switch metaphors), we would find ourselves with two masters to contend with here, for we would be subject not only to the tort of malicious [p495] prosecution but to the tort of abuse of process as well, see Wyatt v. Cole, supra, at 164 (calling these two actions "the most closely analogous torts" to § 1983), the latter making it "unnecessary for the plaintiff to prove that the proceeding has terminated in his favor" Prosser and Keeton 897. The Court suggests that the tort of malicious prosecution provides "the closest analogy to claims of the type considered here" because "it permits damages for confinement imposed pursuant to legal process." Ante, at 484. But the same appears to be true for the tort of abuse of process. See Restatement (Second) of Torts § 682, Illustration 1 (1977) (indicating that a person who, by causing a court to issue a writ of capias against someone to whom he lent money, caused the borrower to be "arrested . . . and kept in prison" is properly held liable for the arrest and imprisonment if the lender's purpose in using legal process was wrongful (and regardless of favorable termination or want of probable cause)).
Furthermore, even if the tort of malicious prosecution were today marginally more analogous than other torts to the type of § 1983 claim in the class of cases before us (because it alone may permit damages for unlawful conviction or postconviction confinement, see n. 3, infra), the Court overlooks a significant historical incongruity that calls into question the utility of the analogy to the tort of malicious [p496] prosecution insofar as it is used exclusively to determine the scope of § 1983: the damages sought in the type of § 1983 claim involved here, damages for unlawful conviction or postconviction confinement, were not available at all in an action for malicious prosecution at the time of § 1983's enactment. A defendant's conviction, under Reconstruction-era common law, dissolved his claim for malicious prosecution because the conviction was regarded as irrebuttable evidence that the prosecution never lacked probable cause. See T. Cooley, Law of Torts 185 (1879) ("If the defendant is convicted in the first instance and appeals, and is acquitted in the appellate court, the conviction below is conclusive of probable cause"). Thus the definition of "favorable termination" with which the framers of § 1983 were aware (if they were aware of any definition) included none of the events relevant to the type of § 1983 claim involved in this case ("revers[al] on direct appeal, expunge[ment] by executive order, [a] declar[ation] [of] invalid[ity] by a state tribunal authorized to make such determination, or [the] call[ing] into question by a federal court's issuance of a writ of habeas corpus," ante, at 487), and it is easy to see why the analogy to the tort of malicious prosecution in this context has escaped the collective wisdom of the many courts and commentators to have addressed the issue, previously, as well as the parties to this case. Indeed, relying on the tort of malicious prosecution to dictate the outcome of this case would logically drive one to the position, untenable as a matter of statutory interpretation (and, to be clear, disclaimed by the Court), that conviction of a crime wipes out a person's § 1983 claim for damages for unconstitutional conviction or postconviction confinement.
[p497] We are not, however, in any such strait, for our enquiry in this case may follow the interpretive methodology employed in Preiser v. Rodriguez, 411 U.S. 475 (1973) (a methodology uniformly applied by the Courts of Appeals in analyzing analogous cases, see, e.g., Young v. Kenny, 907 F.2d 874, 875–876 (CA9 1990)). In Preiser, we read the "general" § 1983 statute in light of the "specific federal habeas corpus statute," which applies only to "person[s] in custody," 28 U.S.C. § 2254(a), and the habeas statute's policy, embodied in its exhaustion requirement, § 2254(b), that state courts be given the first opportunity to review constitutional claims bearing upon a state prisoner's release from custody. 411 U.S., at 489. Though in contrast to Preiser the state prisoner here seeks damages, not release from custody, the distinction makes no difference when the damages sought are for unconstitutional conviction or confinement. (As the Court explains, nothing in Preiser nor in Wolff v. McDonnell, 418 U.S. 539 (1974), is properly read as holding that the relief sought in a § 1983 action dictates whether a state prisoner can proceed immediately to federal court. See [p498] ante, at 481–483.) Whether or not a federal-court § 1983 damages judgment against state officials in such an action would have preclusive effect in later litigation against the State, mounting damages against the defendant-officials for unlawful confinement (damages almost certainly to be paid by state indemnification) would, practically, compel the State to release the prisoner. Because allowing a state prisoner to proceed directly with a federal-court § 1983 attack on his conviction or sentence "would wholly frustrate explicit congressional intent" as declared in the habeas exhaustion requirement, Preiser, 411 U.S., at 489, the statutory scheme must be read as precluding such attacks. This conclusion flows not from a preference about how the habeas and § 1983 statutes ought to have been written, but from a recognition that "Congress has determined that habeas corpus is the appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement, [a] specific determination [that] must override the general terms of § 1983." Id., at 490.
That leaves the question of how to implement what statutory analysis requires. It is at this point that the malicious-prosecution tort's favorable-termination requirement becomes helpful, not in dictating the elements of a § 1983 cause of action, but in suggesting a relatively simple way to avoid collisions at the intersection of habeas and § 1983. A state prisoner may seek federal-court § 1983 damages for unconstitutional conviction or confinement, but only if he has previously established the unlawfulness of his conviction or confinement, as on appeal or on habeas. This has the effect of requiring a state prisoner challenging the lawfulness of his confinement to follow habeas's rules before seeking § 1983 damages for unlawful confinement in federal court, and it is ultimately the Court's holding today. It neatly resolves a problem that has bedeviled lower courts, see 997 F.2d 355, 357–358 (CA7 1993) (decision below); Young v. Kenny, supra, at 877 (discussing cases), legal commentators, see Schwartz, The Preiser Puzzle, 37 DePaul L. Rev. 85, 86–87, n. 6 (1988) [p499] (listing articles), and law students (some of whom doubtless have run up against a case like this in law-school exams). The favorable-termination requirement avoids the knotty statute-of-limitations problem that arises if federal courts dismiss § 1983 suits filed before an inmate pursues federal habeas, and (because the statute-of-limitations clock does not start ticking until an inmate's conviction is set aside) it does so without requiring federal courts to stay, and therefore to retain on their dockets, prematurely filed § 1983 suits. See ante, at 489.
It may be that the Court's analysis takes it no further than I would thus go, and that any objection I may have to the Court's opinion is to style, not substance. The Court acknowledges the habeas exhaustion requirement and explains that it is the reason that the habeas statute "intersect[s]" [p500] in this case with § 1983, which does not require exhaustion, see ante, at 480; it describes the issue it faces as "the same" as that in Preiser, ante, at 483; it recites the principle that common-law tort rules "'provide the appropriate starting point for the inquiry under § 1983,'" ibid., (quoting Carey v. Piphus, 435 U.S., at 257–258); and it does not transpose onto § 1983 elements of the malicious-prosecution tort that are incompatible with the policies of § 1983 and the habeas statute as relevant to claims by state prisoners. The Court's opinion can be read as saying nothing more than that now, after enactment of the habeas statute and because of it, prison inmates seeking § 1983 damages in federal court for unconstitutional conviction or confinement must satisfy a requirement analogous to the malicious-prosecution tort's favorable-termination requirement. Cf. ante, at 491 ({sc|Thomas}}, J., concurring).
That would be a sensible way to read the opinion, in part because the alternative would needlessly place at risk the rights of those outside the intersection of § 1983 and the habeas statute, individuals not "in custody" for habeas purposes. If these individuals (people who were merely fined, for example, or who have completed short terms of imprisonment, probation, or parole, or who discover (through no fault of their own) a constitutional violation after full expiration of their sentences), like state prisoners, were required to show the prior invalidation of their convictions or sentences in order to obtain § 1983 damages for unconstitutional conviction or imprisonment, the result would be to deny any federal forum for claiming a deprivation of federal rights to those who cannot first obtain a favorable state ruling. The reason, of course, is that individuals not "in custody" cannot invoke federal habeas jurisdiction, the only statutory mechanism besides § 1983 by which individuals may sue state officials in federal court for violating federal rights. That would be an untoward result.
[p501] It is one thing to adopt a rule that forces prison inmates to follow the federal habeas route with claims that fall within the plain language of § 1983 when that is necessary to prevent a requirement of the habeas statute from being undermined. That is what the Court did in Preiser v. Rodriguez, 411 U.S., at 489–492, and that is what the Court's rule would do for state prisoners. Harmonizing § 1983 and the habeas statute by requiring a state prisoner seeking damages for unconstitutional conviction to establish the previous invalidation of his conviction does not run afoul of what we have called, repeatedly, "[t]he very purpose of" § 1983: "to interpose the federal courts between the States and the people, as guardians of the people's federal rights." Mitchum v. Foster, 407 U.S. 225, 242 (1972); see also Pulliam v. Allen, 466 U.S. 522, 541 (1984); Patsy v. Board of Regents of Fla., 457 U.S. 496, 503 (1982). A prisoner caught at the intersection of § 1983 and the habeas statute can still have his attack on the lawfulness of his conviction or confinement heard in federal court, albeit one sitting as a habeas court; and, depending on the circumstances, he may be able to obtain § 1983 damages.
It would be an entirely different matter, however, to shut off federal courts altogether to claims that fall within the plain language of § 1983. "[I]rrespective of the common law support" for a general rule disfavoring collateral attacks, the Court lacks the authority to do any such thing absent unambiguous congressional direction where, as here, reading § 1983 to exclude claims from federal court would run counter to "§ 1983's history" and defeat the statute's "purpose." Wyatt v. Cole, 504 U.S., at 158. Consider the case of a former slave framed by Ku Klux Klan-controlled law-enforcement officers and convicted by a Klan-controlled state court of, for example, raping a white woman; and suppose that the unjustly convicted defendant did not (and could not) discover the proof of unconstitutionality until after his [p502] release from state custody. If it were correct to say that § 1983 independently requires a person not in custody to establish the prior invalidation of his conviction, it would have been equally right to tell the former slave that he could not seek federal relief even against the law-enforcement officers who framed him unless he first managed to convince the state courts that his conviction was unlawful. That would be a result hard indeed to reconcile either with the purpose of § 1983 or with the origins of what was "popularly known as the Ku Klux Act," Collins v. Hardyman, 341 U.S. 651, 657 (1951), the statute having been enacted in part out of concern that many state courts were "in league with those who were bent upon abrogation of federally protected rights," Mitchum v. Foster, supra, at 240; cf. Cong. Globe, 42d Cong., 1st Sess., 577 (1871) (Sen. Trumbull explaining that, under the Civil Rights Act of 1871, "the Federal Government has a right to set aside . . . action of the State authorities" that deprives a person of his Fourteenth Amendment rights). It would also be a result unjustified by the habeas statute or any other post–§ 1983 enactment.
Nor do I see any policy reflected in a congressional enactment that would justify denying to an individual today federal damages (a significantly less disruptive remedy than an order compelling release from custody) merely because he was unconstitutionally fined by a State, or to a person who discovers after his release from prison that, for example, state officials deliberately withheld exculpatory material. And absent such a statutory policy, surely the common law can give us no authority to narrow the "broad language" of § 1983, which speaks of deprivations of "any" constitutional rights, privileges, or immunities, by "[e]very" person acting under color of state law, and to which "we have given full effect [by] recognizing that § 1983 'provide[s] a remedy, to be broadly construed, against all forms of official violation of federally protected rights.'" Dennis v. Higgins, 498 U.S. 439, 443, 445 (1991) (quoting Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 700–701 (1978)).
[p503] In sum, while the malicious-prosecution analogy provides a useful mechanism for implementing what statutory analysis requires, congressional policy as reflected in enacted statutes must ultimately be the guide. I would thus be clear that the proper resolution of this case (involving, of course, a state prisoner) is to construe § 1983 in light of the habeas statute and its explicit policy of exhaustion. I would not cast doubt on the ability of an individual unaffected by the habeas statute to take advantage of the broad reach of § 1983.

## Notes

1. ↑ Our recent opinion in Wyatt v. Cole, 504 U.S. 158 (1992), summarized the manner in which the Court has analyzed the relationship between the common law and § 1983 in the context of immunity:
"Section 1983 'creates a species of tort liability 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 Independence, 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 imposed 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 424–429." Id., at 163–164.
In his concurrence, Justice Kennedy stated: "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.'" Id., at 171 (quoting Malley v. Briggs, 475 U.S. 335, 342 (1986)) (emphasis added in Malley).
2. ↑ As the Court observes, there are differences between the tort of abuse of process and that of malicious prosecution. Ante, at 486, n. 5. While "the gist of the tort [of malicious prosecution] is . . . . commencing an action or causing process to issue without justification," abuse of process involves "misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish." Prosser and Keeton 897. Neither common-law tort, however, precisely matches the statutory § 1983 claim for damages for unlawful conviction or confinement; and, depending on the nature of the underlying right alleged to have been violated (consider, for example, the right not to be selected for prosecution solely because of one's race), the tort of abuse of process might provide a better analogy to a § 1983 claim for unconstitutional conviction or confinement than the malicious-prosecution tort.
3. ↑ Some of the traditional common-law requirements appear to have liberalized over the years, see Prosser and Keeton 882 ("There is a considerable minority view which regards the conviction as creating only a presumption, which may be rebutted by any competent evidence showing that probable cause for the prosecution did not in fact exist"), strengthening the analogy the Court draws. But surely the Court is not of the view [p497] that a single tort in its late 20th–century form can conclusively (and retroactively) dictate the requirements of a 19th–century statute for a discrete category of cases. Defending the historical analogy, the Court suggests that Chief Justice Cooley did not mean what he clearly said and that, despite the Cooley treatise, the Reconstruction-era common law recognized a limited exception to the rule denying a malicious-prosecution plaintiff the benefit of the invalidation of his conviction: an exception for convictions "obtained by some type of fraud." Ante, at 485, n. 4 (citing Crescent City Live Stock Co. v. Butchers' Union Slaughter-House Co., 120 U.S. 141, 151 (1887)). Even if such a narrow exception existed, however, the tort of malicious prosecution as it stood during the mid–19th century would still make for a weak analogy to a statutory action under which, as even the Court accepts, defendants whose convictions were reversed as violating "any righ[t] . . . secured by the Constitution," 42 U.S.C. § 1983, may obtain damages for the unlawful confinement associated with the conviction (assuming, of course, no immunity bar). Nor, of course, would the existence of such an exception explain how one element of a malicious-prosecution action may be imported into § 1983, but not the others.
4. ↑ The requirement that a state prisoner seeking § 1983 damages for unlawful conviction or confinement be successful in state court or on federal habeas strikes me as soundly rooted in the statutory scheme. Because "Congress has determined that habeas corpus is the appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement, [a] specific determination [that] override[s] the general terms of § 1983," Preiser v. Rodriguez, 411 U.S. 475, 490 (1973), a state prisoner whose constitutional attacks on his confinement have been rejected by state courts cannot be said to be unlawfully confined unless a federal habeas court declares his "custody [to be] in violation of the Constitution or laws or treaties of the United States," 28 U.S.C. § 2254(a). An unsuccessful federal habeas petitioner cannot, therefore, consistently with the habeas statute, receive § 1983 damages for unlawful confinement. That is not to say, however, that a state prisoner whose request for release has been (or would be) rejected by state courts or by a federal habeas court is necessarily barred from seeking any § 1983 damages for violations of his constitutional rights. If a § 1983 judgment in his favor would not demonstrate the invalidity of his confinement he is outside the habeas statute and may seek damages for a constitutional violation even without showing "favorable termination." A state prisoner may, for example, seek damages for an unreasonable search that produced evidence lawfully or harmlessly admitted at trial, or even nominal damages for, say, a violation of his right to procedural due process, see Carey v. Piphus, 435 U.S. 247, 266 (1978). See ante, at 487, and n. 7.
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