noting that the pre-trial detainment of "unconvicted misdemeanants" was a "[p]unitive measure[ ] ... out of harmony with the presumption of innocence"
How later courts described this case
- noting that the pre-trial detainment of "unconvicted misdemeanants" was a "[p]unitive measure[ ] ... out of harmony with the presumption of innocence"
- forced nudity of male prisoners for up to 36 hours constituted an Eighth Amendment violation under the circumstances
- good faith effort was made but time was too short for full compliance
Written by the judges who cited it.
The opinion
BELL, Circuit Judge
(concurring specially) :
I concur specially to indicate my agreement with the result reached by the majority, and also to record a continuing belief that all police and ancillary personnel in this nation, whether state or federal, should be subject to the same accountability under law for their conduct. In a sense, this is a resurrection of the dissenting opinion of Judge Gewin in Norton v. McShane, 5 Cir., 1964, 332 F.2d 855, 863 .
Here we properly hold defendants responsible for cruel and unusual punishment in violation of the Civil Rights Statute, 42 U.S.C.A. § 1983 . They were acting under color of state law but in Norton v. McShane, we held the same law inapplicable to federal officers charged with conduct equally reprehensible. We went further and found the federal officers immune from accountability under the common law cause of action. I agreed then with Judge Gewin’s strong dissent to the effect that the federal officers should not have been treated with impunity. It is regrettable that we have one law for Athens and another for Rome.
Such a conditión is difficult for the average citizen to understand and makes an already complex system of federalism heedlessly more complex. In a case involving federal officers, I would terminate this anomaly by seeking to overrule Norton v. McShane to the end of making all police and jailers subject to the same standard of accountability in their treatment of the citizen.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
Before JOHN R. BROWN, Chief Judge, and TUTTLE, WISDOM, GE-WIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.
BY THE COURT:
A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en bane,
It is ordered that the cause shall be reheard by the Court en banc on briefs without oral argument. The Clerk will specify a briefing schedule for the filing of supplemental briefs.