Bazelon, Chief Judge, and McGowan and Robinson, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BAZELON
This is a suit to compel the Attorney General and the Director of the Federal Bureau of Investigation to remove appellant's fingerprints and an accompanying notation regarding his detention by California police from the FBI's criminal identification files. According to his complaint, appellant was picked up without probable cause and held for two days by the Los Angeles police. Never accorded a judicial hearing on the legality of his detention, he was finally released when the police were "fully satisfied" that no basis existed for charging him with crime. Subsequently, the FBI obtained appellant's fingerprints and the additional information at issue, which it maintains in its criminal identification files. *fn1 According to the complaint, the information retained is misleading and incomplete; and it will become available, to appellant's detriment, to law enforcement officers, potential employers, and other persons. Accordingly, appellant seeks to have it purged from the files. *fn2
Both sides moved in the District Court for summary judgment; appellant's motion was denied, and appellees' was granted. On this appeal, the parties agree that the case was ripe for decision on the cross-motions for summary judgment; they differ only as to the proper outcome. For the reasons hereafter set forth, however, we believe that final decision should have awaited a more complete factual development. Consequently, we remand the case for trial. *fn3 I.
In support of his motion for summary judgment, appellant did not rely upon the full breadth of his complaint. Instead, he reasoned as follows. Appellees admit that their files contain a card bearing appellant's fingerprints and a notation indicating that he had been picked up by the California police and released without formal charges being lodged against him. A California statute provides that, with exceptions not here relevant, such a procedure is proper only if the police are satisfied "that there is no ground for making a criminal complaint against the person arrested." *fn4 Subsequently, the incident "shall not be deemed an arrest but a detention only." *fn5 Appellant strenuously argues that the FBI has statutory authority to maintain in its criminal identification files only "criminal" records; that the material at issue cannot, in light of the California statute referred to, fairly be characterized as a "criminal" record; *fn6 and that therefore it must be removed from the FBI's files. *fn7
Assuming that the FBI's statutory authority is limited as appellant suggests, *fn8 we do not believe that the facts established on the motion for summary judgment *fn9 are such as to bring the records of appellant's detention outside of a fair reading of the term "criminal records." For we cannot say that Calif.Penal Code, § 849(b) (1), the provision relied upon, was intended to limit the substantial element of discretion normally exercised at the intake stages of the criminal process in deciding who, of the many persons who may be guilty of criminal activity, shall be formally charged and prosecuted. *fn10 Release under 849(b) (1) does not necessarily imply that investigation has exonerated the one arrested; it is proper if
(1) further investigation exonerated the arrested party, (2) the complainant withdrew the complaint, (3) further investigation appeared necessary before prosecution could be initiated, (4) the ascertainable evidence was insufficient to proceed further, (5) the admissible or adducible evidence was insufficient to proceed further, or (6) other appropriate [reasons]. *fn11
Despite the statutory difference in denomination, *fn12 therefore, nothing established on the motion for summary judgment would differentiate the incident involving appellant from any other arrest and release without charge. Appellant does not suggest that Congress intended to deny the FBI power, in some circumstances at least, to maintain records of an arrest not followed by the filing of formal charges. "On summary judgment the inferences to be drawn from the underlying facts contained in [the supporting] materials must be viewed in the light most favorable to the party opposing the motion." *fn13 Accordingly, appellant's motion for summary judgment was properly denied. *fn14 II.
Appellees, on the other hand, would have us uphold the award of summary judgment in their favor on the theory that, once it be admitted that appellant was arrested by the California police, they are justified in maintaining his fingerprints and a record of his detention in the criminal identification files of the FBI. *fn15 We do not find the question so simple.
Information denominated a record of arrest, if it becomes known, may subject an individual to serious difficulties. Even if no direct economic loss is involved, the injury to an individual's reputation may be substantial. *fn16 Economic losses themselves may be both direct and serious. Opportunities for schooling, employment, or professional licenses may be restricted or nonexistent as a consequence of the mere fact of an arrest, even if followed by acquittal or complete exoneration of the charges involved. *fn17 An arrest record may be used by the police in determining whether subsequently to arrest the individual concerned, *fn18 or whether to exercise their discretion to bring formal charges against an individual already arrested. *fn19 Arrest records have been used in deciding whether to allow a defendant to present his story without impeachment by prior convictions, *fn20 and as a basis for denying release prior to trial or an appeal; *fn21 or they may be considered by a judge in determining the sentence to be given a convicted offender. *fn22
Adverse action taken against an individual because of his arrest record is premised upon certain assumptions regarding the meaning of an arrest. *fn23 Insofar as these assumptions differ from reality, the adverse actions will have an erroneous basis. *fn24 We do not understand appellees to be asserting, for example, that they would be entitled to maintain, use, or disseminate the records at issue if no arrest had ever taken place. Yet it is not obvious to us why a different rule should obtain if the arrest was made without probable cause. There is, to say the least, serious question whether the Constitution can tolerate any adverse use of information or tangible objects obtained as the result of an unconstitutional arrest of the individual concerned. *fn25 Even if an unlawful arrest may, for some purposes, subsequently be legitimized by the later development of incriminating information, *fn26 it is hard to see how an arrest not based on probable cause, followed by complete exoneration of the person arrested, *fn27 could be used to support any adverse inferences whatsoever regarding him. We do not understand appellees to be suggesting that the uses made of appellant's arrest record will be benign; in consequence, if appellant can show that his arrest was not based on probable cause *fn28 it is difficult to find constitutional justification for its memorialization in the FBI's criminal files.
Even if the arrest was made with probable cause, it does not necessarily follow that no relief may be warranted. Particularly if the FBI has actual knowledge that further investigation exonerated appellant, *fn29 it may be under a duty at the very least to supplement its files to indicate that fact. *fn30 Of course no system of records may reasonably be expected to contain every scrap of information about a particular incident, and presumably the FBI is vested with substantial discretion in determining how detailed their criminal identification files shall be. Yet it is clear that the government may not, wittingly or unwittingly, engage in wanton defamation of individuals and groups, *fn31 and there is limit beyond which the government may not tread in devising classifications that lump the innocent with the guilty. *fn32 Of course the point at which that limit has been passed may vary with the extent to which the information may be disseminated; that is, a record may be sufficiently complete for some purposes but woefully inadequate for others. The present record gives no indication of the extent to which appellant's record may be disseminated, within or without the government, *fn33 or of the uses to which it may be put. *fn34 Even if we assume that the cryptic reference on appellant's fingerprint card to release "in accordance with 849(b) (1)" would be understood by police, it is questionable whether it would be understood by potential employers or the general public. If appellant can show that his record may, as he alleges, be widely disseminated, *fn35 it may well be that he has a right to limit its dissemination or to require its amplification. *fn36 III.
We do not underestimate the magnitude of the problems suggested by the present record. It is certain that, every year, a multitude of persons guilty of no criminal activity are arrested and charged with crime. An arrest may be made if there is "probable cause" to believe that an offense has been committed and that the person to be arrested committed it. Since "probable cause" necessarily implies substantially less than absolute certainty, *fn37 it follows that a ...