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SUPREME COURT OF THE UNITED STATES
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No. 93-6188
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ROY HECK v. JAMES HUMPHREY et al.
on writ of certiorari to the united states court
of appeals for the seventh circuit
[June 24, 1994]

  Justice Souter, with whom Justice Blackmun,
Justice Stevens, and Justice O'Connor join, concur-
ring 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 -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 3.  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 mali-
cious prosecution, 1983 requires (and, presumably, has
always required) plaintiffs seeking damages for unconsti-
tutional conviction or confinement to show the favorable
termination of the underlying proceeding.  See ante, at
7-10.
  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 prosecu-
tion 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.
__, __ (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 [under 1983] can
and should be slavishly derived from the often arcane
rules of the common law-).
  An examination of common-law sources arguably rele-
vant in this case confirms the soundness of our hierar-
chy 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 termina-
tion, 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 the Law of Torts 871 (5th ed. 1984); 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 confes-
sion 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, supra, at 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 the Law
of Torts 196 (1875) (-The action for a malicious prosecu-
tion 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 meta-
phors), we would find ourselves with two masters to
contend with here, for we would be subject not only to
the tort of malicious prosecution but to the tort of abuse
of process as well, see Wyatt v. Cole, supra, at __ (slip
op., at 6) (calling these two actions -the most closely
analogous torts- to 1983), the latter making it -unneces-
sary for the plaintiff to prove that the proceeding has
terminated in his favor.-  Prosser and Keeton, supra, at
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 7.  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 prosecution insofar as it is used
exclusively to determine the scope of 1983: the damages
sought in the type of 1983 claim involved here, dam-
ages for unlawful conviction or postconviction confine-
ment, were not available at all in an action for mali-
cious 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 autho-
rized to make such determination, or [the] call[ing] into
question by a federal court's issuance of a writ of habeas
corpus,- ante, at 10), 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 previously addressed
the issue, 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 to drive one to
the position, untenable as a matter of statutory interpre-
tation (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 post-
conviction confinement.
  We are not, however, in any such strait, for our
enquiry in this case may follow the interpretive method-
ology 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
ante, at 4-6.)  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 convic-
tion or sentence -would wholly frustrate explicit congres-
sional 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 intersec-
tion of habeas and 1983.  A state prisoner may seek
federal-court 1983 damages for unconstitutional convic-
tion or confinement, but only if he has previously
established the unlawfulness of his conviction or confine-
ment, 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) (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 13.
  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]- in this case with 1983, which does
not require exhaustion, see ante, at 3-4; it describes the
issue it faces as -the same- as that in Preiser, ante, at
6; it recites the principle that common-law tort rules
-`provide the appropriate starting point for the inquiry
under 1983,'- ante, at 7 (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 confine-
ment must satisfy a requirement analogous to the
malicious-prosecution tort's favorable-termination
requirement.  Cf. ante, at 2 (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 invali-
dation 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 cus-
tody- 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.
  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 prison-
ers.  Harmonizing 1983 and the habeas statute by
requiring a state prisoner seeking damages for unconsti-
tutional 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 Florida, 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 lawful-
ness of his conviction or confinement heard in federal
court, albeit one sitting as a habeas court; and, depend-
ing 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. __.  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 exam-
ple, raping a white woman; and suppose that the
unjustly convicted defendant did not (and could not)
discover the proof of unconstitutionally until after his
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, 407 U. S., at 240; cf. Cong. Globe,
42d Cong., 1st Sess., 577 (1871) (Sen. Trumbull explain-
ing 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 Services, 436
U. S. 658, 700-701 (1978)).
  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.