(dissenting in part) :
The majority opinion neatly avoids examination of the constitutionality of Vermont’s body attachment statute, repealed on March 29, 1972, by finding that, under Vermont law, all of the appellees were accorded a qualified privilege of good faith conduct in defense to a suit for false imprisonment. Although I appreciate the doctrine of judicial restraint which counsels against needless resolution of constitutional questions, I cannot subscribe to the alternative course chosen by the majority—an expansion of the applicability of the qualified privilege wholly without support in general principles of tort law, in policy considerations governing liability or, most importantly, in the law of Vermont.
The common law tort of false imprisonment ordinarily requires proof merely that the defendant acted intentionally, not that he was motivated by malice or bad faith. W. Prosser, Law of Torts (3d ed. 1964) at 61. Where, as in this case, the false imprisonment is the product of a false arrest, however, a substantial number of jurisdictions recognize a qualified privilege of good faith conduct for an arresting officer. F. Harper and F. James, The Law of Torts (1956) at 269-270. Vermont is one of these. Williams v. Franzoni, 217 F.2d 533 (2d Cir. 1954), and cases cited therein.
The policy behind this limitation of liability is sound. The Supreme Court, in holding the good faith privilege applicable to a § 1983 action based on an unconstitutional arrest, gave this rationale:
A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.
Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). In this case, both Lagrow and Keenan were under a statutory duty to enforce an apparently valid capias writ. I agree with the majority, therefore, that both properly were accorded a good faith privilege as a defense to Mrs. Fleming’s claim of false imprisonment.
Similar considerations of public policy, however, do not apply to Kissane or McEnany. Neither Mrs. McEnany nor her attorney, Kissane, was under any statutory duty or obligation to seek or issue the capias writ eventuating in the imprisonment of Mrs. Fleming. Their course was wholly a discretionary one, *1361guided inevitably by an adversary’s desire for victory with its spoils. If they erred in their choice of weaponry, albeit without deliberation, why should they not suffer the consequences rather than Mrs. Fleming—who after all was deprived of her liberty? To be sure, their good faith will carry weight in mitigation of damages but it should not be an absolute bar to recovery.
Vermont law, moreover, subscribes to this dichotomous classification between public officers on the one hand and private parties on the other, in determining liability in actions for false imprisonment. In a prior excursion into the intricacies of Vermont false imprisonment law, this Court commented:
The decisions of the Supreme Court of Vermont in cases raising issues as to false arrest and imprisonment on mesne process fall into two distinct classifications: those dealing with suits brought against a party at whose instance the process was issued and those brought against the officer who served the process.
Williams v. Franzoni, supra, 217 F.2d at 534. The majority recognizes this distinction, noting that “the legal defenses afforded lawyers and clients for the issuance of a defective capias are not as broad as those which protect state officers.” Yet, my brothers fail to suggest in what manner Vermont law, or indeed the general principles governing the law of intentional torts, further parse the qualified privilege for good faith conduct. I submit that no such sub-classifications exist: the good faith privilege either attaches or it does not.
The cases cited by the majority do not persuade me to the contrary. McMullen v. Erwin, 69 Vt. 338, 38 A. 62 (1897), exonerated the attorney for the complainant in a false imprisonment suit arising out of a defective capias writ because there was evidence in the record that someone had altered the writ after it had been issued by the attorney. Accordingly, the court held that the attorney, who was found to have originally issued a valid writ, could not be liable unless there was proof of complicity between the attorney and the individual who had subsequently tampered with the capias. In the instant case, however, if the Vermont capias writ statute were to be held unconstitutional, the writ issued by Kissane would have been invalid ab initio. McMullen, therefore, is inapposite.
Nor do I find Aldrich v. Weeks, 62 Vt. 89, 19 A. 115 (1889) particularly relevant here, for again, the court relied on the validity of the capias when issued by the attorney to exonerate him and his client from liability. Appellee Kissane cites Pierson v. Gale, 8 Vt. 508 (1836) to support his contention that the attorney issuing the writ has a good faith privilege in defense to a claim of false imprisonment. A careful reading of the case, however, reveals only that the court recognized a good faith privilege for judicial officers where the court had issued the capias writ. By way of contrast and not of little significance is that Kissane rather than an officer of the court issued the writ in this case. As the attorney for the complainant, he can hardly be considered a neutral decisionmaker whose role deserves the protection accorded judicial officers. Cf. Lynch v. Household Finance Corp., 405 U.S. 538, 552-556 and n. 25, 92 S.Ct. 1983 (1972).
Because I conclude that Vermont law does not accord a good faith privilege to private parties in a suit for false imprisonment, I am constrained to reach the question of the constitutional validity of the Vermont statutory provisions which authorized summary prejudgment body attachment.1 I must confess that I *1362find my discussion of the question of constitutionality to border on the rhetorical, for I consider the archaic and uncivilized practice utilized here transparently unconstitutional.
Several decisions of the Supreme Court confirm my belief. In Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), for example, the Court was called upon to consider the validity of statutory procedures which authorized the seizure or replevin of property without prior notice or hearing. After a thorough examination of the Pennsylvania and Florida summary pre judgment replevin statutes, the Court concluded that neither was “narrowly drawn to meet any . . . unusual condition. Sniadach v. Family Finance Corp., supra, 395 U.S. at 339, 89 S.Ct. 1820.” Id. 407 U.S. at 93, 92 S.Ct. at 2001. Accordingly both statutes were found to run afoul of the Due Process Clause of the Fourteenth Amendment.
Application of the Sniadach test to the Vermont statute before us produces the same result.2 Although there may be “extraordinary situations” which justify departure from traditional notions of due process, Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), the Court, in Fuentes, pointedly emphasized that such situations, “must be truly unusual.” Fuentes v. Shevin, supra, 407 U.S. at 90, 92 S.Ct. 1983. Specifically, the Court rejected any attempt to equate statutes which serve important governmental or general public interests with those, like the Pennsylvania and Florida replevin statutes, which permit immediate and summary deprivation “when no more than private gain is directly at stake.” Id., at 92, 92 S.Ct. at 2000. Considering the raison d’etre behind Vermont’s summary pre judgment body attachment procedure—-to ensure by trading the defendant’s freedom for bail the collectability of a private civil judgment should the complainant prove successful—it hardly stands on loftier footing than the replevin statutes examined in Fuentes.3
*1363Nor could the Vermont statute before us be considered “narrowly drawn.” Indeed, the impermissibly broad contours of the statutes in Fuentes are, if anything, surpassed by Vermont’s capias writ procedure. Like the statutes condemned in Fuentes, the Vermont statute permitted the complainant’s attorney to issue the writ without application to any judicial officer. Accordingly, there was no intervening state official to assess the merits of the underlying claim the attorney was asserting or the need for the drastic action he was implementing. Vermont, moreover, did not even require the complainant to post a security bond, a minimal safeguard against abuse present in the statutes struck down in Fuentes-, or did the body seized have less value than the merchandise replevied?
There is, finally, one characteristic of the Vermont statute that to my mind dispels any question about its constitutionality—the extent of the deprivation it authorized. Unlike wage garnishment in Wisconsin or replevin in Florida and Pennsylvania, body attachment in Vermont struck at the very core of liberty by infringing upon personal freedom. Although the importance of property rights is not to be downgraded, see Lynch v. Household Finance Corp., 405 U.S. 538, 552, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), the right of an individual to be free in his person from governmental interference remains paramount. The Vermont capias writ procedure simply did not provide the process due when the deprivation of a right as sacred as liberty was involved.
Appellees have argued that even were we now to conclude that the Vermont statute was unconstitutional, that finding should not be applied retroactively to render their conduct in 1969 unlawful. This contention has little merit in light of the Supreme Court’s decision in Pierson v. Ray, supra.
In Pierson, white and black ministers brought suit against Jackson, Mississippi police and a justice of the peace under 42 U.S.C. § 1983, and for the common law torts of false arrest and imprisonment. Their claims arose out of their arrest in 1961 pursuant to a statute which was not declared unconstitutional by the Supreme Court until 1965. Although there was dissent among the justices concerning the scope of privilege properly accorded to judicial officers, there was no dispute over whether the plaintiff-ministers had established a prima facie ease. Thus, a unanimous Court necessarily accepted the principle that lawful justification could not be said to exist for acts pursuant to a statute subsequently found unconstitutional.
The Pierson rationale, therefore, squarely supports Mrs. Fleming’s prima facie claim for false imprisonment. The state officials, Lagrow and Keenan, under a statutory duty to enforce the capias writ, have properly raised the qualified privilege of good faith conduct. But, a similar privilege should not and does not extend under Vermont law to. private parties, acting solely in their own interests. Accordingly, I would reverse the directed verdict as to Mc-Enany and Kissane and remand for a new trial.
. There is no doubt that Vermont’s body attachment practice constituted a summary prejudgment procedure. Although Mrs. Fleming was brought before a magistrate prior to incarceration, her liberty was certainly invaded upon her arrest. The hearing she had, moreover, was restricted solely to setting bail. The Vermont statute, 12 V.S.*1362A. § 3573(a), did not require inquiry into the underlying merits of the predicate claim, and the magistrate in this case did not go beyond his duty under the statute.
. Although the majority suggests that the import of Sniadach is still unclear, its unmistakable thrust was not lost upon the two able judges, the late Chief Judge Gibson and the late Judge Leddy, serving on the Vermont District Court at the time the Sniadach decision was announced. On September 24, 1969, the United States District Court for the District of Vermont adopted Local Rule 5, “in view of the United States Supreme Court ruling in Sniadach,” which states in pertinent part:
When a civil suit is filed, and the plaintiff seeks to invoke trustee process, attachment by seizure, or body attachment, a hearing for the purpose of establishing the validity of the underlying claim against the defendant and the equitable necessity of the process sought shall be held before a U. S. District Judge for the District of Vermont on or before ten days after service of the summons.
No disclosure by a Trustee, seizure of property or seizure of body shall be made until tile probable validity of the underlying claim against the defendant and the equitable necessity of the process sought are established.
Nor was the impact of Sniadach and its progeny on the constitutionality of Vermont’s body attachment practice seriously doubted by the revisers of the Vermont Rules of Civil Procedure. The Reporter’s Notes for Rule 4.3, Vt.R.Civ.P., which abolished all forms of civil arrest before final judgment except for contempt of court and for failure to obey a subpoena read in relevant part:
While the Court has held civil arrest not in violation of the due process clause, LaFlamme v. Milne, 127 Vt. 301, 248 A.2d 692 (1968), cert. denied 395 U.S. 965 [89 S.Ct. 2111, 23 L.Ed.2d 751], 396 U.S. 915 (1969), the remedy is within the scope of Sniadacli v. Family Finance Corp. of Bay View, 395 U.S. 337 [89 S.Ct. 1820, 23 L.Ed.2d 349) (1969), which made clear that provisional remedies depriving defendant of property even temporarily prior to adjudication on the merits of the claim against him will be permitted only as a matter of urgent necessity.
There is every reason to suppose that the United States Supreme Court would restrict even more severely or forbid altogether a remedy that is a deprivation of personal liberty.
. It should be noted that body attachment cannot find justification as the singular means by which the state court’s jurisdiction *1363can be secured. Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837 (1920). Although foreign property attachment may serve this purpose as a necessary substitute for in personam jurisdiction, it hardly need be stated that if an individual can be served with a capias writ, then lie can be served as well with the complaint, thereby establishing in personam jurisdiction.