concurring:
I concur in the result reached by the majority in this sad and difficult case and join in the court’s opinion in all respects except for Part III.A.1. I write separately because I am troubled by the court’s holding that we can, as a matter of law, say that Thomas Wilkinson’s constitutional rights were not violated by the SRS investigation. Since, however, the unreasonableness of a probe like the one conducted in this case was not clearly established when Wilkinson was falsely labeled a child abuser and deprived of his children, qualified immunity applies and suffices to support the court’s judgment.
I
Relying on a line of recent Supreme Court decisions that stem from Footnote Five of County of Sacramento v. Lewis, 523 U.S. 833, - 118 S.Ct. 1708, 1714 n. 5 (1998), see Wilson v. Layne, — U.S. -, -, 119 S.Ct. 1692, 1696, 143 L.Ed.2d 818 (1999); Conn v. Gabbert, — U.S. -, -, 119 S.Ct. 1292, 1295, 143 L.Ed.2d 399 (1999), the majority argues that it is appropriate to separate the discussion of whether Wilkinson’s rights were violated from the question of whether those rights, even if infringed, were clearly established at the time the SRS investigation occurred. Ante at 107 n. 10. To accomplish this feat, the majority necessarily engages in a “dual reasonableness” analysis and considers first whether the conduct of the SRS officials was so unreasonable that it violated Wilkinson’s parental rights, and then whether, even if Wilkinson’s rights were infringed, the SRS officials could reasonably believe that they were not violating his rights and therefore still benefit from qualified immunity. I am skeptical that reasonableness can remain a coherent standard when it is piled layer upon layer in this fashion. On the other hand, I do believe that the majority’s effort to identify when a child abuse investigation goes beyond the constitutional pale is admirable, and so I would be inclined to adopt the majority’s framework despite my doubts *111as to whether this kind of analysis can be pulled off successfully.
My reason for not joining the majority’s opinion derives instead from a different uncertainty, one based on the facts of the case. If I read the facts the way the majority does, I would probably join in its conclusion that Wilkinson’s parental rights were not violated. The majority asserts that the “evidence was sufficient — though marginally — to establish the requisite reasonable basis for defendants’ substantiation determination to comport with plaintiffs’ constitutional right to family integrity.” Ante at 106. While conceding that Adams “should have been considerably more thorough in his work” and that he conducted the interviews with the children in an unprofessional manner, the majority believes that Adams reasonably relied on Dr. Balsam’s emphatic statements that Wilkinson had abused the children. See ante at 105. Adams reasonably treated Dr. Balsam as fully credible, the majority states, despite the doctor’s relationship with Linda Wie-gand — the children’s mother and Wilkinson’s estranged wife — since that relationship was too attenuated to matter. The majority adds that, in any event, the defendants had no basis “for suspecting the existence of such a conflicted relationship.” See ante at 105 & n. 9.
I believe that these statements rely on factual premises that are not clear enough to justify the district court’s grant of a Rule 50(a) judgment for the defendants (if that judgment is to be grounded not on qualified immunity, but on the notion that there was no violation of Wilkinson’s constitutional rights). The evidence that the SRS credited to substantiate Wilkinson as a child abuser was admittedly flimsy. All that the defendants had were (1) Wie-gand’s allegations, (2) the seriously flawed interview of the children, and (3) Dr. Balsam’s assertions. It may well be, as the majority argues, that Adams should not have questioned Dr. Balsam’s judgment about who was abusing the children simply because Dr. Balsam had seen Wiegand professionally on some occasions. On the other hand, the record indicates (1) that Adams was aware — before the substantiation decision was made — that Dr. Balsam had seen Wiegand professionally,1 and (2) that Adams failed to inquire into the extent of that relationship and the possible conflict that it might present for Dr. Balsam. Given the terrible consequences that flow from depriving a parent of his or her child, I believe that once a social worker knows that a crucial source of information in the investigation has a potential conflict, it is unreasonable for the worker to disregard that conflict without inquiry.2
The majority does not read the facts that way. Essentially, it says that when a child abuse investigation (1) instigated by a parent (2) unearths ambiguous statements made by children — during a negligently conducted interview — suggesting that they may have been horrendously abused, and (3) these charges are supported by reports from a doctor who had seen the children, but whom the social workers knew had also had what they believed was a minor professional relationship with the complaining parent, then the decision of the investigators to declare the other parent a sexual abuser does not violate that parent’s rights. But the majority does not adequately consider the possibility that a jury could properly find on the evidence in this case that the relationship between the reporting physician and the complaining parent was either sufficiently strong to make a reasonable social worker skeptical of the doctor’s opinions, or, at *112least, to mandate further inquiry into that relationship. I believe instead that the reasonableness of Adams’ reliance on the doctor’s conclusion was, on the facts before us, a jury question (or would have been but for the existence of qualified immunity).
II
The majority does state, and powerfully, that even a little less evidence would lead to the conclusion that Wilkinson’s rights were violated. With that statement I fully concur. There is, however, another consideration that has so far gone unmentioned in this regard. The discussion of whether or not Wilkinson’s rights were infringed comes in a post-Sacramento qualified immunity context. That is, we are all in agreement that, whether or not a constitutional violation occurred, the defendants are still entitled to qualified immunity because the law in this area was not clearly established at the time the SRS investigation took place. In one sense, therefore, it does not matter whether the majority or I read the facts correctly, since the entire discussion of the scope of Wilkinson’s parental right is, necessarily, dicta.
Indeed, all statements about constitutional lights made in the Sacramento framework (i.e., where qualified immunity exists notwithstanding the violation of a right since the right was not clearly established at the time the conduct allegedly occurred) are dicta, see Horne v. Coughlin, 178 F.3d 603, 604 (2d Cir.1999) (petition for rehearing), and hence provisional only. The significance of such Sacramento statements must rest, therefore, not in ultimately determining what are or are not constitutional rights, for as Horne also pointed out, rights can only be established through holdings. See id. The importance of defining rights provisionally in a Sacramento context lies elsewhere. Its function is to place government officials on notice that they ignore such “probable” rights at their peril. The Supreme Court, moreover, said as much when it told the lower courts to issue dicta declaring that certain conduct violates a fundamental right in order to “promote! ] clarity in the legal standards for official conduct.” Wilson, 119 S.Ct. at 1697. Footnote Five of Sacramento, as expounded in Wilson, stands for the proposition that lucid and unambiguous dicta concerning the existence of a constitutional right can without more make that right “clearly established” for purposes of a qualified immunity analysis.3
As the High Court has told us, the thrust of Sacramento is to keep the existence of qualified immunity from preventing the clarification of constitutional rights. By providing that the first statement about a given right will usually be in dicta that is explicit enough to put state actors on notice,4 Sacramento creates a situation in which the next time that particular right is alleged, qualified immunity will not be a defense. On that occasion, the court will therefore face the ultimate questions about the existence and scope of the right that is being contested. The court may then decide to back down from the prior dicta about the right, or it may instead establish that right by turning the prior dicta into a holding. Either way, however, by permit*113ting a subsequent court (and often a second panel of the same court of appeals) to take up a constitutional right in the absence of a qualified immunity defense, Sacramento increases the probability that the courts of appeals will receive full briefings and arguments before making final decisions on important constitutional issues. Cf. Horne, 178 F.3d at 604-07. (expressing the concern that deciding such constitutional issues in cases where the result would not be altered was dangerous). It goes without saying that dicta from a prior panel concerning a constitutional right deserves respect. It certainly ranks with holdings from other circuits. Nevertheless, it is not binding, and therein lies its unusual significance in the constitutional scheme.
Ill
The majority today finds no violation of a constitutional right. And yet in doing so it draws a line beyond which it means for state actors to operate at their peril. That line is, of course, asserted in dicta. But, in a Sacramento context, it is dicta that cannot casually be ignored.
The charge of “child abuse” is one of the most potent and destructive that our society can level against a parent. Once made, its effects cannot be undone. Even if disproved, a deep scar remains. We cannot permit agents of the state to credit such accusations lightly. Nevertheless, even though in my view SRS’s conduct was — on facts that could be found by a jury — unreasonable, the unreasonableness of that behavior was not clearly established when Thomas Wilkinson was “abused” by the social workers investigating him. Qualified immunity therefore applies — as it must — to protect these social workers from liability. They did not have adequate previous guidance from the courts, and it is both unfair and on our precedents not permitted, given that uncertainty, to make them pay for Wilkinson’s undoubted injury. For this reason, I concur in the court’s judgment.
. There are also indications that the SRS worker who took Wiegand’s initial complaint knew of Dr. Balsam's dual role.
. Of course, there may well be cases in which there is enough evidence — independent of the potentially conflicted source — to support the substantiation decision. But that is not so here. Without Dr. Balsam's statements that Wilkinson was the abuser, it seems clear that SRS would not have had enough evidence to declare the charges substantiated.
. In this respect, it is worth emphasizing that the Supreme Court has never stated that the point of Sacramento is actually to create rights. The court has instead carefully adhered to language that justifies the Sacramento inquiry as a way of clarifying standards of official conduct. See Sacramento, 523 U.S. at - n. 5, 118 S.Ct. at 1714 n. 5.
. Of course, there are some situations in which the first statement about a right will be a holding. For example, the defense of quali- . tied immunity might be waived, which would allow a court to locus exclusively on the existence of the contested right. Another possibility is that there could be enough clear statements about a right in dicta from other cases so that a court could declare that the right had been clearly established even without any holdings to that effect. See Wilson, 119 S.Ct. at 1702 (Stevens, concurring in part and dissenting in part).