[39] COLEMAN, Circuit Judge, with whom BROWN, Chief Judge, WISDOM, GOLDBERG, MORGAN and RONEY, Circuit Judges, join, dissenting:

The original panel opinion in this case is reported at 539 F.2d 394.

I need not repeat here all of the facts and circumstances detailed in that panel opinion.

Suffice it to say, a woman, a citizen of the United States, entitled to the protections of the Constitution, wholly innocent of any crime against the United States, with no suggestion from any source that she was guilty of such a crime, was caused to be indicted, arrested, and held in bail for many months, all because of the acts and conduct, of an agent of the United States.

In my opinion, if there is any specific constitutional guarantee to which any citizen should be entitled it is the right not to be indicted and arrested for crimes which they know nothing about and of which they are altogether innocent. Indeed, the courts have frequently held that to be convicted when there is no evidence of guilt is a violation of due process.

The panel did not hold that Agent Arwine was guilty of such a violation but it did say, and I adhere to that opinion, that reasonable minds could differ about the validity of his asserted defenses and that he should not have had the benefit of a summary judgment; in other words, there was enough to justify submitting the case to the jury for a determination of whether all of his many, many gross errors of judgment and procedure amounted to such a reckless disregard of Mrs. Rodriguez's constitutional rights as to amount to willfulness.

I do not look upon this as being a tort case. It does not fit within the usual outlines of a tort case. I think it is a case of deprivation of constitutional rights, which occupies a special category, well recognized in our jurisprudence.

Neither would I attribute any controlling significance to the fact that the plaintiff mistakenly referred in her complaint to a violation of Fourth Amendment rights. The real issue was well known, well understood, and thoroughly developed on the proceedings which led up to a summary judgment. To deny Mrs. Rodriguez a chance for relief on this ground is to apply the old rules of common law pleading, long since discarded.

I would leave Mr. Arwine to the sound judgment of a jury as to whether constitutional rights were so recklessly ignored in this case that the luckless victim, injured but now left without a remedy, should be entitled to damages.

I respectfully dissent.

[49] GOLDBERG, Circuit Judge, with whom BROWN, Chief Judge, WISDOM, COLEMAN, MORGAN, and RONEY, Circuit Judges, join, dissenting:

I agree with everything Judges Coleman has said but wish to add a few thoughts of my own. I cannot remain silent while the court traduces and reduces to a nullity an individual's right to remain free of unconstitutional intrusions by governmental agents.

In this case the plurality adopts the view that the Constitution leaves government agents free to testify falsely before a grand jury, to procure a baseless indictment, to arrest a totally innocent woman without any basis for believing her guilty of any crime, and to maintain a groundless prosecution for over a year before conceding the woman's innocence and dismissing the charges. In order to conform such atrocities to constitutional standards, says the plurality, the agents need only convince a grand jury to return an indictment. To place such reliance on grand juries is to ignore the abuses to which those bodies are subject and, more importantly, to abdicate our solemn responsibilities for constitutional adjudication in favor of non-adversarial proceedings before lay persons. The plurality offers no reasons in support of its blind obeisance to the single grand jury determination, relying instead on a few precedents that arose in a completely different context and that speak not at all to the issues before us.

Judge Hill, concurring in the plurality's rejection of appellant's claims but not in the plurality's sweeping opinion, refuses to afford such unjustifiable conclusiveness to the grand jury's decision to indict. He apparently agrees with the district court that the government agents succeeded in marshaling undisputed facts that establish a good faith defense. While I find Judge Hill's position much less troublesome than that of the plurality, I disagree with him on the facts. I believe appellant Rodriguez is entitled to have a jury decide whether two of the agents acted in "good faith" as that term is used in the governing Supreme Court decisions. The rather remarkable facts demonstrate that the agents bungled their investigation so badly that their good faith is subject to considerable doubt. They reasonably should have known that they were failing to comply with constitutional norms. Moreover, one of the agents made false statements when explaining to the Department of Justice the steps he took to verify Rodriguez's alleged role in the gambling operation being investigated. Because the facts are so crucial to a proper resolution of the case, I set them forth in greater detail than does the plurality.

I. Facts

In the fall of 1971, defendant James S. Kinne, a special agent of the Federal Bureau of Investigation (FBI), applied to a United States District Court for authorization to intercept messages to and from a particular telephone. On September 30, 1971, the district court issued the authorization. See 18 U.S.C. §§ 2510- 2520. The wiretapped phone was in the residence of Franks Vega, who allegedly used it to operate an illegal gambling business. The judge also authorized the use of a pen register, a device for recording telephone numbers dialed from the particular phone.

On October 5, 1971, defendant John J. Batley, another FBI special agent, intercepted a call placed by Vega from the wiretapped telephone to an unknown woman. The pen register recorded the dialed number as 935-9024. The actual number, it has now been determined, was 935-0024. No one questions Batley's authority to intercept the call.

Batley prepared a handwritten log concerning the call, identifying the female recipient of the call as "Barbara." A transcript that was later prepared identified the person called as "Margo." Defendant Joseph F. Santoiana, Jr., the special agent in charge of the investigation, assigned defendant Joseph A. Arwine to determine the identity and the residence of the call's recipient. Arwine, also a special agent, received copies of the handwritten log and of the transcript. He believed the number called had been 935-9024. He never listened to the recording of the conversation to attempt to determine whether the person for whom he was looking was named "Barbara" or "Margo"; instead, he proceeded to attempt to identify "Margo."

Exactly what the conversation revealed about "Margo" has never been established. Arwine asserts in his affidavit that the conversation pertained to gambling operations and indicated that "Margo" was a bookmaker. The transcript of the conversation, however, has never been produced. Rodriguez's attorney had initiated normal discovery procedures to obtain the transcript, but the district court granted summary judgement before the government produced it.

Arwine began his investigation by using the 1971 Hill-Donnelly Criss Cross Telephone Directory and the 1971 City Directory. He determined that neither listed 935-9024. What he did next is a matter of dispute.

Arwine avers in his affidavit that he contacted an "unrecalled" employee of the telephone company. Arwine claims that that employee advised him that unlisted telephone number 935-9024 was subscribed to by Margaret S. Rodriguez of 3420 Grace Street in Tampa. That is the name and address of the appellant here.

Arwine's allegation, however, is contravened by a whole list of inconsistent undisputed facts. First, Rodriguez's telephone number is not and has never been 935-9024. Here number is 876-5646, a number that resembles 935-9024 only in that it contains seven digits. More importantly, there is no telephone subscribed in the name Margaret S. Rodriguez. Rodriguez's telephone is subscribed in the name of her business, "Margo's Beauty Salon." The telephone company records do not contain the name Margaret S. Rodriguez. In addition, the telephone company's records on Rodriguez's telephone are housed in a different building from that Arwine claims he contacted. Thus, the "unrecalled" employee did not have access to the relevant records. Finally, telephone company policy was to release information concerning unlisted numbers only in response to subpoenas or in emergency situations. Except for oral responses in emergency situations, the company maintained records of all requests. The company has no record of any request with respect to 935-9024.

In sum, for Arwine's affidavit to be true, the following scenario would have had to transpire. Upon receiving Arwine's request, the "unrecalled" telephone company employee would have had to transcribe incorrectly all seven digits of the relevant telephone number, magically retrieve the records on that number from a building located across town, miraculously discern that the owner of "Margo's Beauty Salon" was Margaret S. Rodriguez (a name not appearing in any telephone company records), and relay this information to Agent Arwine, all while Arwine patiently waited. Under these circumstances, whether Arwine contacted the telephone company is a disputed issue of fact. For purposes of assessing the agent's summary judgment motion, we must assume that he did not.

Arwine determined that Margaret S. Rodriguez lived at 3420 Grace Street and that neither the Tampa police nor the Hillsborough County Sheriff's Office had ever arrested her. Arwine also checked with the Greater Tampa Credit Bureau, apparently learning that Rodriguez paid her bills. He received no adverse information about her at all. He learned that she had operated her own business for approximately sixteen years.

Arwine took one further step that seemed to him to indicate that Rodriguez was the "Margo" for whom he was looking. On December 5, 1971, he spoke to Sergeant John Fairbanks of the Tampa Police Department vice squad. Neither Arwine nor Fairbanks had access to their files at the time of the discussion. Arwine asked Fairbanks for information concerning a Margaret Rodriguez. Arwine gave no description at all of the Rodriguez for whom he was looking. He did not provide her address or the address of the beauty salon. According to Arwine, Fairbanks responded that he had "previously conducted an investigation of a Margaret Rodriguez, and it was his recollection that she was involved in gambling matters and had formerly owned a beauty salon." Arwine did not ask Fairbanks to verify the information from his files, and Arwine made no further effort to determine the status of Fairbanks experience with "Margaret Rodriguez." In fact, it now appears, gambling charges were then pending against the Margaret Rodriguez of whom Fairbanks was speaking. Because Arwine had already determined that the Margaret S. Rodriguez involved here had never been arrested, he could easily have determined that he and Fairbanks were speaking about different people. Arwine did not bother, however, to take the few seconds that would have been required to call Fairbanks at his office to determine whether they were concerned with the same Margaret Rodriguez. In a city with a large Spanish-surnamed population, Arwine could hardly have believed that "Margaret Rodriguez" could describe only one person.

In his affidavit and in his answers to interrogatories, Arwine took the position that he reached his conclusion solely on the basis of the investigation recounted above. In answering interrogatories Arwine denied that he had placed a call to 935-9024 in an effort to verify that Margaret Rodriguez did in fact subscribe to that telephone. A Justice Department internal memorandum, however, indicates that Arwine had earlier taken a contrary position. That memorandum, which is not in the record but which might become available if discovery were allowed to proceed, stated that Arwine had called 935-9024 on a pretext for the purpose of comparing the voice to the voice on the recording of the October 5, 1971 call. It is now conceded, though, that Margaret Rodriguez has never had any connection with telephone number 935-9024. It would have been impossible for Arwine to call that number and speak to Margaret Rodriguez as the memorandum asserted he had done. Apparently upon realizing that the earlier statement was palpably false, Agent Arwine changed his story. He explained that when he made the verification call, he did not have his file in front of him, and he "must have" looked up the telephone number of Margo's Beauty Salon and made the call to the listed number, 876-5646. But that story, too, is remarkable. Arwine, who alleges that he had gone to great lengths to determine the subscriber of an unlisted telephone number, now asserts that when attempting to verify the subscriber of that number, he used a directory. No one has attempted any explanation of why an FBI special agent would use a telephone directory to determine an unlisted number. I believe this maze of contradictory and untenable assertions places Arwine's credibility substantially in doubt.

Arwine related to Agent Kinne that he believed the person for whom they were looking was Margaret S. Rodriguez. Kinne testified before the grand jury on February 1, 1972. That same day, the grand jury indicted Margaret S. Rodriguez. Our record does not disclose the contents of Kinne's testimony. The complaint alleges that Kinne testified falsely, and indeed that conclusion seems inescapable. We have no reason to believe that Kinne deliberately fabricated any of his testimony, but we certainly know that to the extent the testimony implicated Margaret S. Rodriguez, the testimony was false. Arrest warrants for Rodriguez and the fifty-six other persons indicted simultaneously issued February 1, 1972.

On February 3, 1972, two days after the indictment, Kinne spoke to Gene Bennett, whom he believed to be the "Gene" to whom the parties to the October 5, 1971 telephone call had referred. Kinne read Bennett a transcript of the call. Bennett acknowledged that he was the person discussed in the call but denied knowing any "Margo" who was a bookmaker. Kinne did not pursue the conversation or take any steps to investigate the possibility that the "Margo" he had had indicted was not a bookmaker. On March 3, 1972, FBI special agents Donald E. Ritchey and Geral W. Sosbee arrested Rodriguez in the presence of her family and a customer.

Over a year later, when Rodriguez's attorney succeeded in piercing the investigation's elaborate facade, Kinne again interviewed Bennett. This time Kinne took the conversation further. Bennett said that the only "Margo" he knew was "a woman who worked for the Li'l General Store on Armenia Avenue in Tampa" and who "used to play the dogs occasionally." Further investigation revealed that the Margo of the Li'l General Store, Margaret Waltz, was indeed the Margo who received the October 5, 1971 telephone call. Her telephone number was not 935-9024, the number recorded by the pen register, but 935-0024. From this little additional effort, which presumably would have produced the same result in February 1972 when Kinne first interviewed Bennett (or, indeed, before the indictment), Kinne was able to determine conclusively that Rodriguez had had no role whatsoever in the gambling operation. In May 1973, a little over a month after Kinne learned Rodriguez had been erroneously indicted, the indictment was finally dismissed.

II. The Complaint and the Proper Analytical Framework

Apparently believing that the government's dismissal of the charges constituted inadequate recompense for the abuses she had suffered, Rodriguez filed this suit for damages against the agents involved. When she filed the suit she was unaware of most of the facts recounted above; she knew only that her government's criminal justice system had grievously malfunctioned, resulting in her arrest without any cause whatsoever. Because of her lack of knowledge at that time, her complaint was understandably lacking in elaborate detail. Rather than embellishing the complaint with the kind of exaggerated, meaningless rhetoric that often accompanies meritless allegations, she delivered a "short and plain statement of the claim." Fed.R.Civ.P. 8(a). She alleged that unknown FBI agents committed errors in the investigative process, that one or more agents testified falsely before the grand jury, that no probable cause existed for her arrest or for the underlying charges, and that as a result she had suffered considerable damage.

I have little difficulty concluding that this complaint states a claim upon which relief could be granted and that summary judgment is inappropriate. The crucial first step in assessing these issues is to clarify the analytical framework. Too often, distinct problems become merged, obfuscating the analysis. I believe three issues should be kept separate and addressed in turn.

The first question is whether the defendants violated the Constitution. If the answer is no, the case is at an end; the complaint fails to state a claim. If the answer is yes, the second question comes into play: whether, given the constitutional violation, Rodriguez has a cause of action for damages against the agents. Again, if the answer is no, the case is at an end; Rodriguez seeks no relief other than damages. If the answer is yes, the final question arises: whether the agents are immune from liability because they acted in good faith.

In the sections that follow, I explain my view that Rodriguez should prevail on each of these three questions. With respect to the first question — constitutionality — I would have thought no discussion necessary to establish that the Constitution proscribes the arrest without probable cause of a totally innocent woman. The Constitution also proscribes the agents' antecedent conduct that brought about the indictment and arrest. The second question — the existence of a cause of action for damages — is answered by Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Damages are an available remedy for the agents' constitutional transgressions. The third question — qualified immunity — requires a careful analysis of the record against the backdrop of recent Supreme Court pronouncements. Because there exists a disputed issue of fact with respect to whether agents Arwine and Kinne reasonably should have known that their conduct exceeded constitutional bounds, their good faith defense presents a jury question. The other agents are entitled to summary judgment.

III. Constitutionality [74] A. The Governing Provisions

It is hardly a novel doctrine that the Constitution imposes limits upon the criminal justice system. When a federal agent conducts an investigation knowing that his recommendation will result in the lodging of criminal charges and then in arrest, he is under a constitutional duty to conform his behavior to some broad outer limit. That duty derives from both the fourth and fifth amendments. The fourth amendment prohibits arrests absent probable cause, the inevitable result of sufficiently incompetent investigative techniques and sufficiently careless grand jury testimony. The fifth amendment's due process clause embodies principles of fundamental fairness sufficient to guarantee those living under our Constitution that they may conduct their lives free to a reasonable extent from the prospect of totally baseless criminal charges.

B. The Standard of Care

I have no occasion in this dissent to attempt a precise articulation of the "broad outer limit" that the fourth and fifth amendments impose. Surely an investigator assigned to identify a call's recipient must exercise some care. Here a jury could reasonably conclude that Arwine exercised virtually none. Surely an agent who receives another agent's reports and testifies before a grand jury, knowing his testimony will result in indictment and arrest, must make some attempt to conform his testimony to the information provided him. To the extent the testifying agent draws conclusions rather than relates raw data others have given him, he must make some attempt to derive those conclusions reliably. Here a jury could reasonably conclude, for all that appears in this incomplete record, that Kinne failed to make even minimal gestures in these directions. Kinne's testimony may have inaccurately reproduced Arwine's reports or incorporated Kinne's own baseless conclusions. In sum, whatever the precise location of the constitutional boundary, a jury could conclude that agents Arwine and Kinne have transgressed it. Summary judgment was inappropriate.

My conclusion remains firm despite the complaint's single use of the word "negligence." Admittedly, one approach to measuring the agents' fourth and fifth amendment duty would be to press into service traditional tort concepts. We could ask whether the Constitution proscribes conduct that is negligent, grossly negligent, reckless, or intentional. Before we rush into a debate over which standard to adopt, however, a preliminary observation deserves emphasis.

Any attempt to give universal constitutional effect to a single standard would be misguided. Varying constitutional provisions serve distinct purposes. There is no reason to insist on uniformity in the standards those provisions impose upon government officials. We know, for example, that a prison doctor's delivery of medical care transgresses the eighth amendment only if it constitutes "deliberate indifference." Gamble v. Estelle, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1977). On the other hand, a prosecutor runs afoul of constitutional dictates when his failure to disclose sufficiently probative exculpatory evidence constitutes mere negligence. See, e. g., United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342, 353 (1976) ("If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor"). I see no reason to attempt to catalog the various constitutional rights in terms of whether mere negligence would establish a violation. The important point is that the standards would vary.

I therefore find little value in an abstract discussion of whether governmental negligence, or gross negligence, or recklessness, is unconstitutional across the board. The proper approach is to assess the values underlying a particular constitutional provision and the governmental interests that prevent giving unbridled recognition to those values. The problem is then to devise a constitutional standard that best accommodates the individual and governmental interests. The government should always afford due care; the issue is how much care is due in the various settings.

Applying this approach to the case at bar, I perceive no obvious reason why the Constitution should allow an agent to fail to act as a reasonable person. Others on the court, however, apparently believe that FBI negligence should escape constitutional condemnation. Whatever the proper resolution of that issue, surely some level of FBI recklessness contravenes the appropriate standard. Resolving factual disputes in appellant's favor, this incomplete record discloses sufficient recklessness to require the case to go forward. And the complaint's isolated use of the word "negligence" surely does not compel a different result.

C. Relevance of the Indictment

The plurality ignores the constitutional standards that I have described. Not once adverting to the possibility that the agents' pre-indictment conduct might have contravened the Constitution, the plurality narrows its focus to the precise instant of arrest. The plurality reasons that the arrest itself could not have been illegal because the grand jury mandated it. Once a grand jury has returned an indictment, the theory runs, arrest is proper. The plurality apparently embraces this broad principle even when agents have post-indictment information suggesting innocence, information that was not available to the grand jury.

The cases upon which the plurality relies for its unbounded deference to grand juries all arose in a different context and are completely inapplicable here. Those cases establish only that a grand jury indictment is a sufficient determination of probable cause to require the indicted person to stand trial. The court need not consider an indicted defendant's pretrial motion to dismiss a prosecution for lack of probable cause. Solely for that purpose, the indictment conclusively establishes probable cause.

The weakness of the plurality's precedential base is demonstrated by the first case upon which it relies, Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). Procedural due process fans will immediately recognize Mitchell as part of the progeny of Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) and Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). Mitchell rejected a procedural due process attack on a Louisiana procedure allowing a lien creditor to obtain judicial sequestration of the debtor's property prior to a hearing. Holding that under the circumstances the opportunity for a post-seizure hearing satisfied due process, the Court cited Ewing v. Mytinger Casselberry, Inc., 339 U.S. 594, 599, 70 S.Ct. 870, 94 L.Ed. 1088 (1950). Ewing had approved the multiple seizure of misbranded drugs despite the absence of a pre-seizure hearing. In Mitchell the Court quoted Ewing: "It is sufficient, where only property rights are concerned, that there is at some stage an opportunity for a hearing and a judicial determination." Mitchell, supra, 416 U.S. at 612, 94 S.Ct. at 1902, quoting Ewing, supra, 339 U.S. at 599, 70 S.Ct. 870. In passing, the Court appended the footnote upon which the plurality here relies so heavily:

Conceding that the multiple seizure might cause irreparable damage to a business, the Court responded: "The impact of the initiation of judicial proceedings is often serious. Take the case of the grand jury. It returns an indictment against a man without a hearing. It does not determine his guilt; it only determines whether there is probable cause to believe he is guilty. But that determination is conclusive on the issue of probable cause. As a result the defendant can be arrested and held for trial. See Beavers v. Henkel, 194 U.S. 73, 85, 24 S.Ct. 605, 48 L.Ed. 882; Ex parte United States, 287 U.S. 241, 250, 53 S.Ct. 129, 77 L.Ed. 283. The impact of an indictment is on the reputation or liberty of a man. The same is true where a prosecutor files an information charging violations of the law. The harm to property and business can also be incalculable by the mere institution of proceedings. Yet it has never been held that the hand of government must be stayed until the courts have an opportunity to determine whether the government is justified in instituting suit in the courts. Discretion of any official may be abused. Yet it is not a requirement of due process that there be judicial inquiry before discretion can be exercised." 339 U.S., at 599, 70 S.Ct. 870, 94 L.Ed. 1088.

Mitchell v. W. T. Grant Co., 416 U.S. 600, 612 n. 11, 94 S.Ct. 1895, 1902, 40 L.Ed.2d 406 (1974).

The plurality accords undue significance to the Mitchell footnote. The Court did say that the indictment was "conclusive on the issue of probable cause." But in the very next sentence the Court made clear that that "conclusiveness" related only to the issue of whether the defendant could be held for trial, not to collateral proceedings dealing with separate claims. The entire footnote relates to the sentence in text to which it was appended: "It is sufficient . . . that there is at some stage an opportunity for a hearing and a judicial determination." (Emphasis added). In the case at bar, of course, the plurality would deprive appellant Rodriguez of any opportunity at all for a hearing and judicial determination.

Mitchell is not the only case upon which the plurality places undue reliance. The other cases deal with the same irrelevant problem, the sufficiency of an indictment to require a defendant to stand trial despite assertions of innocence. Not one of the plurality's cases indicates that the grand jury determination should carry any weight at all in a separate proceeding unconcerned with the government's authority to bring the defendant to trial.

The significance of that distinction is readily apparent. It is one thing to give effect to an ex parte determination for the purpose of initiating contested, adversarial adjudication of the underlying dispute. It is quite another thing, however, to assign res judicata effect to an ex parte decision by lay persons. The plurality has, in effect, precluded Ms. Rodriguez from litigating her constitutional claim because the disputed issues were resolved unfavorably to her in an action to which she was not a party, at which her adversary presided, and at which the decision makers were lay persons who had before them only inaccurate and incomplete information.

So far as I am aware, no one has ever before taken such a position. Traditional res judicata law of course establishes that a decision is binding only against parties and their privies. Surely even the plurality would concede that the grand jury determination can have no res judicata or collateral estoppel effect on Rodriguez. To bind her on the basis of a proceeding to which she was not a party would raise significant procedural due process problems and would, at the very least, be eminently unfair.

I submit that what the plurality has done is precisely that. Its insistence that the grand jury determination establishes probable cause once and for all constitutes, in effect, an unwarranted extension of the res judicata concept. Moreover, the plurality's approach is inconsistent with long-standing common law principles of malicious prosecution. It has never been the case that an indictment conclusively establishes probable cause for purposes of a subsequent action based on wrongful prosecution and arrest. Indeed, under some circumstances the fact of indictment provides a necessary prerequisite — not a bar — to a malicious prosecution action. Such an action lies only when the criminal proceeding has been commenced. "[W]here prosecution is begun by indictment . . ., it seems clear that this should be enough. . . ." W. Prosser, Handbook of the Law of Torts 836 (4th ed. 1971). Because a malicious prosecution action lies only when charges are brought without probable cause, see id. at 841, a grand jury indictment clearly is not a conclusive determination that probable cause exists. In numerous cases plaintiffs have been allowed to look behind grand jury determinations of probable cause. See, e.g., Cook v. Proskey, 138 F. 273 (2d Cir. 1905); Dennis v. Ryan, 65 N.Y. 385 (1875).

I believe that it is incumbent upon the plurality to explain its sharp break with these well established principles. I reject the plurality's approach because the constitutional restraints on the criminal justice system are important and because the federal courts should be available to remedy sufficiently egregious departures from the governing standards. Adversarial hearings provide a method for safeguarding cherished constitutional rights that is far superior to ex parte determinations by lay persons. Even if grand juries were not subject to well documented abuses, they would constitute an unacceptable forum for finally adjudicating constitutional claims.

Moreover, even if the plurality were correct that an indictment conclusively establishes the constitutionality of an arrest, its disposition of this case would not follow. For here we deal not solely with the arrest itself, but with a whole array of antecedent conduct. Surely some constitutional standard governs an agent's giving of false testimony. Here Kinne undeniably gave false testimony. Whether his conduct at that point was unconstitutional seems to me a question wholly unrelated to whether the grand jury chose to indict. The same is true of the issue of whether Arwine's investigative conduct transgressed the governing norms. Unconstitutional police conduct does not become constitutional merely because it results in indictment. To use Judge Hill's apt phrasing, the conduct of an officer who maliciously seeks an unfounded indictment does not become constitutional merely because the deceptive officer "did such a good job that the grand jury indicted." See ante, at 1195. (Hill, J., specially concurring).

The plurality gives no reason at all for its conclusion that the Constitution sets no outer limits on FBI investigatory tactics and the FBI's giving of false testimony before a grand jury. Whatever their exact scope, constitutional standards do have a sphere of operation that encompasses FBI investigations intended to bring to bear the state's awesome criminal justice scheme. Among the primary functions of the Bill of Rights is to assure that when the government undertakes to interfere drastically with someone's life, it does so for a reason. Here the government leveled a devastating onslaught at Ms. Rodriguez. To say that the Constitution does not even address the manner in which the government agents mounted their assault is to ignore the fundamental values that underlie that document. People ought not be arrested for no reason. The government should structure its investigative system and its scheme for delivering information to grand juries in a manner that minimizes baseless arrests. Surely the Constitution embodies these values. The Constitution does impose a duty upon government investigators.

The grand jury does not have any power of constitutional repeal, nor is it vested with the power to administer the rites of absolution for constitutional sins. Our law enforcement officers deserve our assistance and respect in the performance of their duties, but the grand jury cannot forgive their derelictions. The grand jury may have majestic splendor and even can have some aspects of an autocratic body, but it has never been suggested that it is supra-constitutional. No inscription above the grand jury room announces that those who suffer harm herein may abandon hope for justice from those who enter here. It is a sacred precinct, but it resides within the constitutional enclave. An indictment cannot metamorphose a constitutional error by any purging powers of a grand jury. The grand jury does not have the powers of an alchemist, changing the gold of constitutional rights into the brass of constitutional deprivation. Grand juries are charging bodies, but it has never been suggested that they are vested with the ability to discharge a person from violating the constitution.

The grand jury simply does not concern itself with the methods by which evidence is gathered to be presented to it. Yet the plurality would allow the grand jury to immunize, however grave the error might be, just by returning an indictment. The plurality would monumentalize this act of indicting, attributing to it such effect as to abrogate the constitutional right of people to be free of unconstitutional molestations. I must disagree. Grand juries have many powers, but I have never thought exorcism to be among them. Indictment or no indictment, Rodriquez has squarely alleged a constitutional violation.

IV. Cause of Action for Damages

Having found a constitutional violation, the next question is whether damages are an available remedy. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) provides the answer. There the Court held that damages against the offending officials are an available remedy for fourth amendment violations. The violation in the case at bar involves both the fourth and fifth amendments.

Even if this case involved no fourth amendment violation, Bivens would provide a remedy. The plurality acknowledges that the circuits have uniformly concluded that Bivens applies to the fifth amendment as well as to the fourth. Ante, at 1192 n. 24. Thus, whether this case is conceived as a fourth or fifth amendment action, Bivens provides a damages remedy.

V. Good Faith Defense

My conclusion that the Constitution and Bivens extend to FBI investigatory tactics does not, of course, subject helpless FBI agents to the prospect of uncontrollable damages judgments. Agents remain free to assert the good faith defense. But on the facts here, agents Arwine and Kinne have failed to demonstrate sufficient good faith to warrant summary judgment.

In his concurrence, Judge Hill seems to articulate the governing standard as whether the agents acted "maliciously or in bad faith." This formulation fails to accord with Supreme Court pronouncements. The leading case is Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). The Court squarely rejected the notion that an official's "subjective" motivation could, without more, provide a valid defense. The Court held that the proper standard contains an "objective" as well as a "subjective" element. 420 U.S. at 321, 95 S.Ct. at 1000, 43 L.Ed.2d at 225. Officers are immune from liability for "action taken in the good-faith fulfillment of their responsibilities and within the bounds of reason." 420 U.S. at 321, 95 S.Ct. at 1000, 43 L.Ed.2d at 224 (emphasis added). But an officer "is not immune from liability for damages . . . if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the [plaintiff's] constitutional rights." 420 U.S. at 322, 95 S.Ct. at 1001, 43 L.Ed.2d at 225 (emphasis added). See also Bivens v. Six Unknown Named Agents, 456 F.2d 1339, 1348 (2d Cir. 1972) (on remand) (to establish defense "the officer must allege and prove not only that he believed, in good faith, that his conduct was lawful, but also that his belief was reasonable").

In the case at bar we confront a classic jury question whether agents Arwine and Kinne acted in good faith under the Supreme Court's test. Arwine's assignment was to identify the person who received the October 5, 1971 call to 935-9024. At trial he would apparently contend that a telephone company employee said that that was the unlisted phone of Margaret S. Rodriguez of 3420 Grace Street. Arwine would say he learned that Rodriguez had owned a beauty salon for many years and had never been arrested. He would add that Tampa Police Sergeant Fairbanks said that he previously investigated a Margaret Rodriguez who had formerly owned a beauty salon. On that basis, Arwine would apparently contend, he reasonably concluded Margaret S. Rodriguez was the person who received the call at 935-9024.

For all that I can glean from this record, the response would be devastating. The phone company's records did not contain the name "Margaret S. Rodriguez" and did not indicate that she lived at 3420 Grace Street. In any event the company's records were warehoused across town from the building Arwine claimed he contacted, and the records were thus inaccessible to any employee with whom Arwine could have spoken. And telephone company policy was to release information on unlisted numbers only in response to subpoenas or in emergency situations. The jury, on this showing, could reasonably choose to disbelieve this aspect of Arwine's story.

The jury would also confront Arwine's inconsistent statements with respect to whether he dialed 935-9024 to attempt "voice identification." His original story was apparently that he did. He later asserted that he utilized a directory to determine an unlisted number and then dialed the listed number to attempt voice identification. He concedes, however, that he never listened to the tape of the suspect's voice. Thus whatever number he called (or did not call), he could not have attempted to match the voices. These inconsistencies in Arwine's explanations cast considerable doubt on his good faith.

Even taking the facts in the light most favorable to Arwine — which is of course not the appropriate standard in assessing Arwine's own motion for summary judgment — a jury question is present in regard to good faith. Arwine never attempted to resolve the conflicting descriptions of the suspect as "Barbara" or "Margo". He never dialed 935-9024 to determine whether Margaret S. Rodriguez answered the phone or could be reached there. He never listened to the tape in order to match the voices. He never asked Sergeant Fairbanks to check his records to verify the identity of the person he had previously investigated.

Surely a jury could reasonably conclude that these actions failed to come "within the bounds of reason." Wood v. Strickland, 420 U.S. 308, 321, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214 (1975). A jury could conclude that Arwine "reasonably should have known" that he had wholly failed to assemble a suggestion of probable cause and that forwarding someone's name for indictment on the basis of so sloppy an investigation infringed constitutional rights. See 420 U.S. at 322, 95 S.Ct. at 1001, 43 L.Ed.2d at 225. It is at least a jury question whether a special agent of the FBI could reasonably believe that he complied with constitutional prescriptions when he exhibited so little concern for the possibility that his actions would bring about the indictment and arrest of a totally innocent person.

The same is true of Agent Kinne. Our record presents a less compelling case against Kinne, but it does not exclude the possibility that his good faith will constitute a jury question. For all we know, Kinne's grand jury testimony was the sole basis for Rodriguez's indictment. Perhaps Kinne testified accurately that the FBI had conducted an incompetent investigation and that there was little reason to believe Margaret S. Rodriguez had committed any crime. But the grand jury did return an indictment, and I find it much more likely that Kinne's testimony distorted the character of the investigation or drew unjustified conclusions with respect to Rodriguez's role in the gambling operation. Did Kinne state positively that the call's recipient was Margaret S. Rodriguez? If so, his reckless manner of drawing conclusions from inadequate data might not fall within the bounds of reason required to establish a good faith defense. Did Kinne testify that an agent had called 935-9024 and compared Margaret S. Rodriguez's voice to that on the October 5, 1971 recording? If so, did Kinne have an adequate reason to believe that that testimony was true? Did Kinne have an adequate reason to believe the October 5 call's recipient was involved in bookmaking, or did he draw unwarranted conclusions and relate them to the grand jury without sufficient qualification? Further discovery would produce answers to some of these questions. Without answers summary judgment for Kinne is inappropriate. If Kinne accurately related information Arwine provided him and if Kinne did not himself draw unjustifiable conclusions, he need only establish those facts. At this point he has not done so.

Moreover, Kinne's post-indictment conduct may also have exceeded the bounds of reason. Two days after the grand jury returned the indictment, but before Rodriguez was arrested, Kinne spoke to Gene Bennett, who had been discussed by the parties to the October 5 call. Bennett denied knowing any "Margo" who was a bookmaker. Had Kinne shown any concern at all for avoiding baseless charges against innocent people, he could have pursued the conversation with Bennett one step further. He could have asked Bennett whether he knew anyone named "Margo." The answer to that question would have led Kinne to the real Margo. Margaret S. Rodriguez would have avoided arrest, over a year under indictment, and the attendant humiliation, attorney fees, and loss of business goodwill. Kinne's callous disregard of a lead suggesting Rodriguez's innocence presents a jury question in regard to whether Kinne "reasonably should have known" his actions transgressed constitutional limitations.

I do not wish to add to the verbal ennui by reciting the bromide of numberless cases that summary judgment should be reserved for those instances when the relevant facts are not in dispute. No one reading this record could deny that the digital miscalculations and nomenclatural confusions were reproachful. Negligence can so accumulate as to disprove good faith. Government agents are entitled to some immunity and protection in the prosecution of their task, but they should not be permitted to run afoul of the Constitution without some justification based on acceptable norms and standards. Even a badge should have some limitations on its authority. The populace should respect officers of the law, but officers of the law should respect the constitutional rights of the populace. There are two parts to this equation, and I would give each equal status. A badge does not entitle one to defile the Constitution. The immunity of governmental agents must not be automatic and self-anointed.

All of the facts are not yet clear. What is clear is that the FBI hopelessly bungled its investigation and that the agents, in their extreme recklessness, showed little concern for the possibility that their net was gathering innocent people along with the guilty. Something was rotten in Tampa. The constitutional restraints on the criminal justice system do not tolerate such unjustified behavior. The agents' good faith is a jury question. I respectfully dissent.

[112] BROWN, Chief Judge, dissenting:

I concur in Judge Goldberg's dissent, except that in part V, Good Faith Defense I do not embrace the extended factual analysis and the characterizations placed upon some of the supposed responses by the agents, some of which come to the brink of declarations as a matter of law. I predict that this case will come back to us and hence the Trial Court and perhaps another appeal. I wish to leave myself free to determine the issue without the sometime dramatic embellishments.