Cite as: 512 U. S. 477 (1994)
Souter, J., concurring in judgment
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)).2
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
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.
495
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