494
Souter, J., concurring in judgment
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 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
Page: Index Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NextLast modified: October 4, 2007