Opinion

Katie Ruth Anderson v. J. J. Nosser, James Bradley v. J. J. Nosser

  • 438 F.2d 183
Court
Court of Appeals for the Fifth Circuit
Filed
May 27, 1971
Status
Published
Author
Bell
On the bench
Bell, Tuttle, Goldberg
Cited by
144 cases
Authority
More cited than 24.9%

Modified by Katie Ruth Anderson v. J. J. Nosser, James Bradley v. J. J. Nosser, 456 F.2d 835 (1972)

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.