HOPE v. PELZER et al.

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730 OCTOBER TERM, 2001
Syllabus
HOPE v. PELZER et al.
certiorari to the united states court of appeals for
the eleventh circuit
No. 01–309. Argued April 17, 2002—Decided June 27, 2002
In 1995, petitioner Hope, then an Alabama prison inmate, was twice hand-
cuffed to a hitching post for disruptive conduct. During a 2-hour period
in May, he was offered drinking water and a bathroom break every 15
minutes, and his responses were recorded on an activity log. He was
handcuffed above shoulder height, and when he tried moving his arms
to improve circulation, the handcuffs cut into his wrists, causing pain
and discomfort. After an altercation with a guard at his chain gang’s
worksite in June, Hope was subdued, handcuffed, placed in leg irons,
and transported back to the prison, where he was ordered to take off
his shirt, thus exposing himself to the sun, and spent seven hours on
the hitching post. While there, he was given one or two water breaks
but no bathroom breaks, and a guard taunted him about his thirst.
Hope filed a 42 U. S. C. § 1983 suit against three guards. Without decid-
ing whether placing Hope on the hitching post as punishment violated
the Eighth Amendment, the Magistrate Judge found that the guards
were entitled to qualified immunity. The District Court entered sum-
mary judgment for respondents, and the Eleventh Circuit affirmed.
The latter court answered the constitutional question, finding that the
hitching post’s use for punitive purposes violated the Eighth Amend-
ment. In finding the guards nevertheless entitled to qualified immu-
nity, it concluded that Hope could not show, as required by Circuit prece-
dent, that the federal law by which the guards’ conduct should be
evaluated was established by cases that were “materially similar” to the
facts in his own case.
Held: The defense of qualified immunity was precluded at the summary
judgment phase. Pp. 736–748.
(a) Hope’s allegations, if true, establish an Eighth Amendment viola-
tion. Among the “ ‘unnecessary and wanton’ inflictions of pain [consti-
tuting cruel and unusual punishment forbidden by the Amendment] are
those that are ‘totally without penological justification.’ ” Rhodes v.
Chapman, 452 U. S. 337, 346. This determination is made in the con-
text of prison conditions by ascertaining whether an official acted with
“deliberate indifference” to the inmates’ health or safety, Hudson v. Mc-
Millian, 503 U. S. 1, 8, a state of mind that can be inferred from the
fact that the risk of harm is obvious, Farmer v. Brennan, 511 U. S. 825.

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The Eighth Amendment violation here is obvious on the facts alleged.
Any safety concerns had long since abated by the time Hope was hand-
cuffed to the hitching post, because he had already been subdued, hand-
cuffed, placed in leg irons, and transported back to prison. He was
separated from his work squad and not given the opportunity to return.
Despite the clear lack of emergency, respondents knowingly subjected
him to a substantial risk of physical harm, unnecessary pain, unneces-
sary exposure to the sun, prolonged thirst and taunting, and a depriva-
tion of bathroom breaks that created a risk of particular discomfort and
humiliation. Pp. 736–738.
(b) Respondents may nevertheless be shielded from liability for their
constitutionally impermissible conduct if their actions did not violate
“clearly established statutory or constitutional rights of which a reason-
able person would have known.” Harlow v. Fitzgerald, 457 U. S. 800,
818. In its assessment, the Eleventh Circuit erred in requiring that the
facts of previous cases and Hope’s case be “materially similar.” Quali-
fied immunity operates to ensure that before they are subjected to suit,
officers are on notice that their conduct is unlawful. Officers sued in a
§ 1983 civil action have the same fair notice right as do defendants
charged under 18 U. S. C. § 242, which makes it a crime for a state official
to act willfully and under color of law to deprive a person of constitu-
tional rights. This Court’s opinion in United States v. Lanier, 520 U. S.
259, a § 242 case, makes clear that officials can be on notice that their
conduct violates established law even in novel factual situations. In-
deed, the Court expressly rejected a requirement that previous cases
be “fundamentally similar.” Accordingly, the salient question that the
Eleventh Circuit should have asked is whether the state of the law in
1995 gave respondents fair warning that Hope’s alleged treatment was
unconstitutional. Pp. 739–741.
(c) A reasonable officer would have known that using a hitching post
as Hope alleged was unlawful. The obvious cruelty inherent in the
practice should have provided respondents with some notice that their
conduct was unconstitutional. In addition, binding Circuit precedent
should have given them notice. Gates v. Collier, 501 F. 2d 1291, found
several forms of corporal punishment impermissible, including hand-
cuffing inmates to fences or cells for long periods, and Ort v. White, 813
F. 2d 318, 324, warned that “physical abuse directed at [a] prisoner after
he terminate[s] his resistance to authority would constitute an action-
able eighth amendment violation.” Relevant to the question whether
Ort provided fair notice is a subsequent Alabama Department of Correc-
tions (ADOC) regulation specifying procedures for using a hitching post,
which included allowing an inmate to rejoin his squad when he tells an
officer that he is ready to work. If regularly observed, that provision

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would have made Hope’s case less like the kind of punishment Ort de-
scribed as impermissible. But conduct showing that the provision was
a sham, or that respondents could ignore it with impunity, provides
equally strong support for the conclusion that they were fully aware of
their wrongful conduct. The conclusion here is also buttressed by the
fact that the Justice Department specifically advised the ADOC of the
constitutional infirmity of its practices before the incidents in this case
took place. Pp. 741–746.
240 F. 3d 975, reversed.
Stevens, J., delivered the opinion of the Court, in which O’Connor,
Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J.,
filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J.,
joined, post, p. 748.
Craig T. Jones argued the cause for petitioner. With him
on the brief were James Mendelsohn, J. Richard Cohen, and
Rhonda Brownstein.
Austin C. Schlick argued the cause for the United States
as amicus curiae urging reversal. With him on the brief
were Solicitor General Olson, Assistant Attorneys General
McCallum and Boyd, Deputy Solicitor General Clement,
Barbara L. Herwig, and Richard A. Olderman.
Nathan A. Forrester, Solicitor General of Alabama, argued
the cause for respondents. With him on the brief were Bill
Pryor, Attorney General, Alyce S. Robertson, Deputy Solici-
tor General, and Margaret Fleming and Ellen Leonard-
Thomas, Assistant Attorneys General.
Gene C. Schaerr argued the cause for the State of Missouri
et al. as amici curiae urging affirmance. With him on the
brief were Jeremiah W. Nixon, Attorney General of Mis-
souri, and James R. Layton, State Solicitor, Robert H. Kono,
Acting Attorney General of Guam, and Carter G. Phillips,
joined by the Attorneys General for their respective States
as follows: Richard Blumenthal of Connecticut, Earl I.
Anzai of Hawaii, Steve Carter of Indiana, Richard P. Ieyoub
of Louisiana, Mike Moore of Mississippi, Don Stenberg of
Nebraska, Frankie Sue Del Papa of Nevada, W. A. Drew
Edmondson of Oklahoma, Hardy Myers of Oregon, D. Mi-

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chael Fisher of Pennsylvania, Sheldon Whitehouse of Rhode
Island, Mark L. Shurtleff of Utah, and Darrell V. McGraw,
Jr., of West Virginia.*
Justice Stevens delivered the opinion of the Court.
The Court of Appeals for the Eleventh Circuit concluded
that petitioner Larry Hope, a former prison inmate at the
Limestone Prison in Alabama, was subjected to cruel and
unusual punishment when prison guards twice handcuffed
him to a hitching post to sanction him for disruptive conduct.
Because that conclusion was not supported by earlier cases
with “materially similar” facts, the court held that the re-
spondents were entitled to qualified immunity, and therefore
affirmed summary judgment in their favor. We granted cer-
tiorari to determine whether the Court of Appeals’ qualified
immunity holding comports with our decision in United
States v. Lanier, 520 U. S. 259 (1997).
I
In 1995, Alabama was the only State that followed the
practice of chaining inmates to one another in work squads.
It was also the only State that handcuffed prisoners to
“hitching posts” if they either refused to work or otherwise
disrupted work squads.1 Hope was handcuffed to a hitching
*Mark R. Brown, James K. Green, and Steven R. Shapiro filed a brief
for the American Civil Liberties Union et al. as amici curiae urging
reversal.
1 In its review of the summary judgment, the Court of Appeals viewed
the facts in the light most favorable to Hope, the nonmoving party. 240
F. 3d 975, 977 (CA11 2001) (case below). We do the same. Saucier v.
Katz, 533 U. S. 194, 201 (2001). The Court of Appeals also referenced
facts established in Austin v. Hopper, 15 F. Supp. 2d 1210 (MD Ala. 1998).
240 F. 3d, at 978, n. 6. This was appropriate because Austin is a class-
action suit brought by Alabama prisoners, including Hope, and the District
Court opinion in that case discusses Hope’s allegations at some length.
15 F. Supp. 2d, at 1247–1248. In their summary judgment papers, both
Hope and respondents referenced the findings in Austin, and thus those

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post on two occasions. On May 11, 1995, while Hope was
working in a chain gang near an interstate highway, he got
into an argument with another inmate. Both men were
taken back to the Limestone prison and handcuffed to a
hitching post. Hope was released two hours later, after the
guard captain determined that the altercation had been
caused by the other inmate. During his two hours on the
post, Hope was offered drinking water and a bathroom break
every 15 minutes, and his responses to these offers were re-
corded on an activity log. Because he was only slightly
taller than the hitching post, his arms were above shoulder
height and grew tired from being handcuffed so high.
Whenever he tried moving his arms to improve his circu-
lation, the handcuffs cut into his wrists, causing pain and
discomfort.
On June 7, 1995, Hope was punished more severely. He
took a nap during the morning bus ride to the chain gang’s
worksite, and when it arrived he was less than prompt in
responding to an order to get off the bus. An exchange of
vulgar remarks led to a wrestling match with a guard. Four
other guards intervened, subdued Hope, handcuffed him,
placed him in leg irons and transported him back to the
prison where he was put on the hitching post. The guards
made him take off his shirt, and he remained shirtless all
findings are part of the record in this case. See, e. g., Plaintiff ’s Prelimi-
nary Response to Defendants’ Special Report, Record 30; Defendants’ Re-
sponse to Court Order, App. 61. Accordingly, for purposes of our review
of the grant of summary judgment, the Austin findings may also be as-
sumed true, and we reference them when appropriate.
As Austin explained, the hitching post is a horizontal bar “ ‘made of
sturdy, nonflexible material,’ ” placed between 45 and 57 inches from the
ground. Inmates are handcuffed to the hitching post in a standing posi-
tion and remain standing the entire time they are placed on the post.
Most inmates are shackled to the hitching post with their two hands rela-
tively close together and at face level. 15 F. Supp. 2d, at 1241–1242.

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day while the sun burned his skin.2 He remained attached
to the post for approximately seven hours. During this 7-
hour period, he was given water only once or twice and was
given no bathroom breaks.3 At one point, a guard taunted
Hope about his thirst. According to Hope’s affidavit: “[The
guard] first gave water to some dogs, then brought the water
cooler closer to me, removed its lid, and kicked the cooler
over, spilling the water onto the ground.” App. 11.
Hope filed suit under Rev. Stat. § 1979, 42 U. S. C. § 1983,
in the United States District Court for the Northern District
of Alabama against three guards involved in the May inci-
dent, one of whom also handcuffed him to the hitching post
in June. The case was referred to a Magistrate Judge who
treated the responsive affidavits filed by the defendants as a
motion for summary judgment. Without deciding whether
“the very act of placing him on a restraining bar for a period
of hours as a form of punishment” had violated the Eighth
Amendment, the Magistrate concluded that the guards were
entitled to qualified immunity.4 Supplemental App. to Pet.
for Cert. 21. The District Court agreed, and entered judg-
ment for respondents.
The United States Court of Appeals for the Eleventh Cir-
cuit affirmed. 240 F. 3d 975 (2001). Before reaching the
2 “The most repeated complaint of the hitching post, however, was the
strain it produced on inmates’ muscles by forcing them to remain in a
standing position with their arms raised in a stationary position for a long
period of time. In addition to their exposure to sunburn, dehydration,
and muscle aches, the inmates are also placed in substantial pain when the
sun heats the handcuffs that shackle them to the hitching post, or heats
the hitching post itself. Several of the inmates described the way in
which the handcuffs burned and chafed their skin during their placement
on the post.” Id., at 1248.
3 The Court of Appeals noted that respondents had not produced any
activity log for this incident, despite the policy that required that such a
log be maintained. 240 F. 3d, at 977, n. 1.
4 Supplemental App. to Pet. for Cert. 21–27.

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qualified immunity issue, however, it answered the constitu-
tional question that the District Court had bypassed. The
court found that the use of the hitching post for punitive
purposes violated the Eighth Amendment. Nevertheless,
applying Circuit precedent concerning qualified immunity,
the court stated that “ ‘the federal law by which the gov-
ernment official’s conduct should be evaluated must be pre-
existing, obvious and mandatory,’ ” and established, not by
“ ‘abstractions,’ ” but by cases that are “ ‘materially similar’ ”
to the facts in the case in front of us.” Id., at 981. The
court then concluded that the facts in the two precedents on
which Hope primarily relied—Ort v. White, 813 F. 2d 318
(CA11 1987), and Gates v. Collier, 501 F. 2d 1291 (CA5
1974)—“[t]hough analogous,” were not “ ‘materially similar’
to Hope’s situation.’ ” 240 F. 3d, at 981. We granted certio-
rari to review the Eleventh Circuit’s qualified immunity
holding. 534 U. S. 1073 (2002).
II
The threshold inquiry a court must undertake in a quali-
fied immunity analysis is whether plaintiff ’s allegations, if
true, establish a constitutional violation. Saucier v. Katz,
533 U. S. 194, 201 (2001). The Court of Appeals held that
“the policy and practice of cuffing an inmate to a hitching
post or similar stationary object for a period of time that
surpasses that necessary to quell a threat or restore order is
a violation of the Eighth Amendment.” 240 F. 3d, at 980–
981. The court rejected respondents’ submission that Hope
could have ended his shackling by offering to return to work,
finding instead that the purpose of the practice was puni-
tive,5 and that the circumstances of his confinement created
5 In reaching this conclusion, the Court of Appeals stated: “While the
DOC claims that Hope would have been released from the hitching post
had he asked to return to work, the evidence suggests this is not the case.
First, Hope never refused to work. During the May incident, he was the
victim in an altercation on the work site, but he never refused to do his

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a substantial risk of harm of which the officers were aware.
Moreover, the court relied on Circuit precedent condemning
similar practices6 and the results of a United States Depart-
ment of Justice (DOJ) report that found Alabama’s system-
atic use of the hitching post to be improper corporal pun-
ishment. 7 We agree with the Court of Appeals that the
attachment of Hope to the hitching post under the circum-
stances alleged in this case violated the Eighth Amendment.
“ ‘[T]he unnecessary and wanton infliction of pain . . . con-
stitutes cruel and unusual punishment forbidden by the
Eighth Amendment.’ ” Whitley v. Albers, 475 U. S. 312, 319
(1986) (some internal quotation marks omitted). We have
said that “[a]mong ‘unnecessary and wanton’ inflictions of
pain are those that are ‘totally without penological justifica-
tion.’ ” Rhodes v. Chapman, 452 U. S. 337, 346 (1981). In
making this determination in the context of prison condi-
job. During the June incident, Hope was involved in an altercation with
prison guards. There is nothing in the record, however, claiming that he
refused to work or encouraged other inmates to refuse to work. There-
fore, it is not clear that the solution to his hitching post problem was to
ask to return to work. Second, Hope was placed in a car and driven back
to Limestone to be cuffed to the hitching post on both occasions. Given
the facts, it is improbable that had Hope said, ‘I want to go back to work,’
a prison guard would have left his post at Limestone to drive Hope back
to the work site. It is more likely that the guards left Hope on the post
until his work detail returned to teach the other inmates a lesson.” 240
F. 3d, at 980.
6 “Since abolishing the pillory over a century ago, our system of justice
has consistently moved away from forms of punishment similar to hitching
posts in prisons. In Gates v. Collier, 501 F. 2d 1291 (5th Cir. 1974), in
regard to ‘handcuffing inmates to the fence and to cells for long periods of
time’ and other such punishments, we stated that ‘[w]e have no difficulty
in reaching the conclusion that these forms of corporal punishment run
afoul of the Eighth Amendment, offend contemporary concepts of decency,
human dignity, and precepts of civilization which we profess to possess.’
Gates, 501 F. 2d at 1306.” Id., at 979.
7 The DOJ report apparently was not before the District Court in this
case, but the Court of Appeals took judicial notice of the report and refer-
enced it throughout the decision below. Id., at 979, n. 8.

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tions, we must ascertain whether the officials involved acted
with “deliberate indifference” to the inmates’ health or
safety. Hudson v. McMillian, 503 U. S. 1, 8 (1992). We
may infer the existence of this subjective state of mind from
the fact that the risk of harm is obvious. Farmer v. Bren-
nan, 511 U. S. 825, 842 (1994).
As the facts are alleged by Hope, the Eighth Amendment
violation is obvious. Any safety concerns had long since
abated by the time petitioner was handcuffed to the hitching
post because Hope had already been subdued, handcuffed,
placed in leg irons, and transported back to the prison. He
was separated from his work squad and not given the oppor-
tunity to return to work. Despite the clear lack of an emer-
gency situation, the respondents knowingly subjected him to
a substantial risk of physical harm, to unnecessary pain
caused by the handcuffs and the restricted position of con-
finement for a 7-hour period, to unnecessary exposure to the
heat of the sun, to prolonged thirst and taunting, and to a
deprivation of bathroom breaks that created a risk of partic-
ular discomfort and humiliation.8 The use of the hitching
post under these circumstances violated the “basic concept
underlying the Eighth Amendment[, which] is nothing less
than the dignity of man.” Trop v. Dulles, 356 U. S. 86, 100
(1958). This punitive treatment amounts to gratuitous in-
fliction of “wanton and unnecessary” pain that our precedent
clearly prohibits.
8 The awareness of the risk of harm attributable to any individual re-
spondent may be evaluated in part by considering the pattern of treatment
that inmates generally received when attached to the hitching post. In
Austin v. Hopper, the District Court cited examples of humiliating inci-
dents resulting from the denial of bathroom breaks. One inmate “was not
permitted to use the restroom or to change his clothing for four and one-
half hours after he had defecated on himself.” 15 F. Supp. 2d, at 1246.
“Moreover, certain corrections officers not only ignored or denied inmates’
requests for water or access to toilet facilities, but taunted them while
they were clearly suffering from dehydration . . . .” Id., at 1247.

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III
Despite their participation in this constitutionally imper-
missible conduct, respondents may nevertheless be shielded
from liability for civil damages if their actions did not violate
“clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U. S. 800, 818 (1982). In assessing whether
the Eighth Amendment violation here met the Harlow test,
the Court of Appeals required that the facts of previous
cases be “ ‘materially similar’ to Hope’s situation.” 240
F. 3d, at 981. This rigid gloss on the qualified immunity
standard, though supported by Circuit precedent,9 is not con-
sistent with our cases.
As we have explained, qualified immunity operates “to en-
sure that before they are subjected to suit, officers are on
notice their conduct is unlawful.” Saucier v. Katz, 533 U. S.,
at 206. For a constitutional right to be clearly established,
its contours “must be sufficiently clear that a reasonable of-
ficial would understand that what he is doing violates that
right. This is not to say that an official action is protected
by qualified immunity unless the very action in question has
previously been held unlawful, see Mitchell [v. Forsyth, 472
U. S. 511,] 535, n. 12; but it is to say that in the light of
pre-existing law the unlawfulness must be apparent.” An-
derson v. Creighton, 483 U. S. 635, 640 (1987).
Officers sued in a civil action for damages under 42 U. S. C.
§ 1983 have the same right to fair notice as do defendants
charged with the criminal offense defined in 18 U. S. C. § 242.
Section 242 makes it a crime for a state official to act “will-
fully” and under color of law to deprive a person of rights
protected by the Constitution. In United States v. Lanier,
520 U. S. 259 (1997), we held that the defendant was entitled
9 See, e. g., Suissa v. Fulton County, 74 F. 3d 266–270 (CA11 1996); Las-
siter v. Alabama A&M Univ. Bd. of Trustees, 28 F. 3d 1146, 1150 (CA11
1994); Hill v. Dekalb Regional Youth Detention Center, 40 F. 3d 1176,
1185 (CA11 1994).

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to “fair warning” that his conduct deprived his victim of a
constitutional right, and that the standard for determining
the adequacy of that warning was the same as the standard
for determining whether a constitutional right was “clearly
established” in civil litigation under § 1983.10
In Lanier, the Court of Appeals had held that the indict-
ment did not charge an offense under § 242 because the con-
stitutional right allegedly violated had not been identified in
any earlier case involving a factual situation “ ‘fundamentally
similar’ ” to the one in issue. Id., at 263 (citing United
States v. Lanier, 73 F. 3d 1380, 1393 (CA6 1996)). The Court
of Appeals had assumed that the defendant in a criminal case
was entitled to a degree of notice “ ‘substantially higher than
the “clearly established” standard used to judge qualified im-
munity’ ” in civil cases under § 1983. 520 U. S., at 263. We
reversed, explaining that the “fair warning” requirement is
identical under § 242 and the qualified immunity standard.
We pointed out that we had “upheld convictions under § 241
or § 242 despite notable factual distinctions between the
precedents relied on and the cases then before the Court, so
long as the prior decisions gave reasonable warning that the
conduct then at issue violated constitutional rights.” Id., at
269. We explained:
“This is not to say, of course, that the single warning
standard points to a single level of specificity sufficient
in every instance. In some circumstances, as when an
10 “[T]he object of the ‘clearly established’ immunity standard is not dif-
ferent from that of ‘fair warning’ as it relates to law ‘made specific’ for
the purpose of validly applying § 242. The fact that one has a civil and
the other a criminal law role is of no significance; both serve the same
objective, and in effect the qualified immunity test is simply the adaptation
of the fair warning standard to give officials (and, ultimately, govern-
ments) the same protection from civil liability and its consequences that
individuals have traditionally possessed in the face of vague criminal stat-
utes. To require something clearer than ‘clearly established’ would, then,
call for something beyond ‘fair warning.’ ” 520 U. S., at 270–271.

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earlier case expressly leaves open whether a general
rule applies to the particular type of conduct at issue, a
very high degree of prior factual particularity may be
necessary. But general statements of the law are not
inherently incapable of giving fair and clear warning,
and in other instances a general constitutional rule al-
ready identified in the decisional law may apply with
obvious clarity to the specific conduct in question, even
though ‘the very action in question has [not] previously
been held unlawful,’ Anderson, supra, at 640.” Id., at
270–271 (citation omitted).
Our opinion in Lanier thus makes clear that officials can
still be on notice that their conduct violates established law
even in novel factual circumstances. Indeed, in Lanier, we
expressly rejected a requirement that previous cases be
“fundamentally similar.” Although earlier cases involving
“fundamentally similar” facts can provide especially strong
support for a conclusion that the law is clearly established,
they are not necessary to such a finding. The same is true
of cases with “materially similar” facts. Accordingly, pursu-
ant to Lanier, the salient question that the Court of Appeals
ought to have asked is whether the state of the law in 1995
gave respondents fair warning that their alleged treatment
of Hope was unconstitutional. It is to this question that we
now turn.
IV
The use of the hitching post as alleged by Hope “unneces-
sar[ily] and wanton[ly] inflicted pain,” Whitley, 475 U. S., at
319 (internal quotation marks omitted), and thus was a clear
violation of the Eighth Amendment. See Part II, supra.
Arguably, the violation was so obvious that our own Eighth
Amendment cases gave respondents fair warning that their
conduct violated the Constitution. Regardless, in light of
binding Eleventh Circuit precedent, an Alabama Depart-
ment of Corrections (ADOC) regulation, and a DOJ report

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informing the ADOC of the constitutional infirmity in its use
of the hitching post, we readily conclude that the respond-
ents’ conduct violated “clearly established statutory or con-
stitutional rights of which a reasonable person would have
known.” Harlow, 457 U. S., at 818.
Cases decided by the Court of Appeals for the Fifth Cir-
cuit before 1981 are binding precedent in the Eleventh Cir-
cuit today. See Bonner v. Prichard, 661 F. 2d 1206 (CA11
1981). In one of those cases, decided in 1974, the Court of
Appeals reviewed a District Court decision finding a number
of constitutional violations in the administration of Mississip-
pi’s prisons. Gates v. Collier, 501 F. 2d 1291. That opinion
squarely held that several of those “forms of corporal punish-
ment run afoul of the Eighth Amendment [and] offend con-
temporary concepts of decency, human dignity, and precepts
of civilization which we profess to possess.” Id., at 1306.
Among those forms of punishment were “handcuffing in-
mates to the fence and to cells for long periods of time, . . .
and forcing inmates to stand, sit or lie on crates, stumps, or
otherwise maintain awkward positions for prolonged peri-
ods.” Ibid. The fact that Gates found several forms of
punishment impermissible does not, as respondents suggest,
lessen the force of its holding with respect to handcuffing
inmates to cells or fences for long periods of time. Nor, for
the purpose of providing fair notice to reasonable officers
administering punishment for past misconduct, is there any
reason to draw a constitutional distinction between a prac-
tice of handcuffing an inmate to a fence for prolonged periods
and handcuffing him to a hitching post for seven hours. The
Court of Appeals’ conclusion to the contrary exposes the dan-
ger of a rigid, overreliance on factual similarity. As the
Government submits in its brief amicus curiae: “No reason-
able officer could have concluded that the constitutional hold-
ing of Gates turned on the fact that inmates were handcuffed
to fences or the bars of cells, rather than a specially designed
metal bar designated for shackling. If anything, the use of

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743 Cite as: 536 U. S. 730 (2002)
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a designated hitching post highlights the constitutional prob-
lem.” Brief for United States as Amicus Curiae 22. In
light of Gates, the unlawfulness of the alleged conduct should
have been apparent to respondents.
The reasoning, though not the holding, in a case decided
by the Eleventh Circuit in 1987 sent the same message to
reasonable officers in that Circuit. In Ort v. White, 813 F. 2d
318, the Court of Appeals held that an officer’s temporary
denials of drinking water to an inmate who repeatedly re-
fused to do his share of the work assigned to a farm squad
“should not be viewed as punishment in the strict sense, but
instead as necessary coercive measures undertaken to obtain
compliance with a reasonable prison rule, i. e., the require-
ment that all inmates perform their assigned farm squad du-
ties.” Id., at 325. “The officer’s clear motive was to en-
courage Ort to comply with the rules and to do the work
required of him, after which he would receive the water like
everyone else.” Ibid. The court cautioned, however, that
a constitutional violation might have been present “if later,
once back at the prison, officials had decided to deny [Ort]
water as punishment for his refusal to work.” Id., at 326.
So too would a violation have occurred if the method of coer-
cion reached a point of severity such that the recalcitrant
prisoner’s health was at risk. Ibid. Although the facts of
the case are not identical, Ort’s premise is that “physical
abuse directed at [a] prisoner after he terminate[s] his resist-
ance to authority would constitute an actionable eighth
amendment violation.” Id., at 324. This premise has clear
applicability in this case. Hope was not restrained at the
worksite until he was willing to return to work. Rather, he
was removed back to the prison and placed under conditions
that threatened his health. Ort therefore gave fair warning
to respondents that their conduct crossed the line of what is
constitutionally permissible.
Relevant to the question whether Ort provided fair warn-
ing to respondents that their conduct violated the Constitu-

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744 HOPE v. PELZER
Opinion of the Court
tion is a regulation promulgated by ADOC in 1993.11 The
regulation authorizes the use of the hitching post when an
inmate refuses to work or is otherwise disruptive to a work
squad. It provides that an activity log should be completed
for each such inmate, detailing his responses to offers of
water and bathroom breaks every 15 minutes. Such a log
was completed and maintained for petitioner’s shackling in
May, but the record contains no such log for the 7-hour
shackling in June and the record indicates that the periodic
offers contemplated by the regulation were not made. App.
43–48. The regulation also states that an inmate “will be
allowed to join his assigned squad” whenever he tells an of-
ficer “that he is ready to go to work.” Id., at 103. The
findings in Austin v. Hopper, 15 F. Supp. 2d 1210, 1244–1246
(MD Ala. 1998), as well as the record in this case, indicate
that this important provision of the regulation was fre-
quently ignored by corrections officers. If regularly ob-
served, a requirement that would effectively give the inmate
the keys to the handcuffs that attached him to the hitching
post would have made this case more analogous to the prac-
tice upheld in Ort, rather than the kind of punishment Ort
described as impermissible. A course of conduct that tends
to prove that the requirement was merely a sham, or that
respondents could ignore it with impunity, provides equally
strong support for the conclusion that they were fully aware
of the wrongful character of their conduct.
Respondents violated clearly established law. Our con-
clusion that “a reasonable person would have known,” Har-
low, 457 U. S., at 818, of the violation is buttressed by the
fact that the DOJ specifically advised the ADOC of the un-
constitutionality of its practices before the incidents in this
case took place. The DOJ had conducted a study in 1994
of Alabama’s use of the hitching post. 240 F. 3d, at 979.
11 The regulation was not provided to the District Court, but it was
added to the record at the request of the Court of Appeals. See App.
100–106.

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Among other findings, the DOJ report noted that ADOC’s
officers consistently failed to comply with the policy of
immediately releasing any inmate from the hitching post
who agrees to return to work. The DOJ concluded that
the systematic use of the restraining bar in Alabama consti-
tuted improper corporal punishment. Ibid. Accordingly,
the DOJ advised the ADOC to cease use of the hitching post
in order to meet constitutional standards. The ADOC re-
plied that it thought the post could permissibly be used
“ ‘to preserve prison security and discipline.’ ” Ibid. In re-
sponse, the DOJ informed the ADOC that, “ ‘[a]lthough an
emergency situation may warrant drastic action by correc-
tions staff, our experts found that the “rail” is being used
systematically as an improper punishment for relatively triv-
ial offenses. Therefore, we have concluded that the use
of the “rail” is without penological justification.’ ” Ibid.
Although there is nothing in the record indicating that the
DOJ’s views were communicated to respondents, this ex-
change lends support to the view that reasonable officials
in the ADOC should have realized that the use of the hitch-
ing post under the circumstances alleged by Hope violated
the Eighth Amendment prohibition against cruel and un-
usual punishment.
The obvious cruelty inherent in this practice should have
provided respondents with some notice that their alleged
conduct violated Hope’s constitutional protection against
cruel and unusual punishment. Hope was treated in a way
antithetical to human dignity—he was hitched to a post for
an extended period of time in a position that was painful,
and under circumstances that were both degrading and dan-
gerous. This wanton treatment was not done of necessity,
but as punishment for prior conduct. Even if there might
once have been a question regarding the constitutionality of
this practice, the Eleventh Circuit precedent of Gates and
Ort, as well as the DOJ report condemning the practice, put
a reasonable officer on notice that the use of the hitching

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746 HOPE v. PELZER
Opinion of the Court
post under the circumstances alleged by Hope was unlawful.
The “fair and clear warning,” Lanier, 520 U. S., at 271, that
these cases provided was sufficient to preclude the defense
of qualified immunity at the summary judgment stage.
V
In response to Justice Thomas’ thoughtful dissent, we
make the following three observations. The first is that in
granting certiorari to review the summary judgment entered
in favor of the officers, we did not take any question about
the sufficiency of pleadings and affidavits to raise a genuine
possibility that the three named officers were responsible for
the punitive acts of shackling alleged. All questions raised
by petitioner (the plaintiff against whom summary judgment
was entered) go to the application of the standard that no
immunity is available for official acts when “it would be clear
to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Saucier v. Katz, 533 U. S., at 202.
The officers’ brief in opposition to certiorari likewise ad-
dressed only the legal standard of what is clearly established.
The resulting focus in the case was the Eleventh Circuit’s
position that a violation is not clearly established unless it is
the subject of a prior case of liability on facts “ ‘materially
similar’ ” to those charged. 240 F. 3d, at 981. We did not
take, and do not pass upon, the questions whether or to what
extent the three named officers may be held responsible for
the acts charged, if proved. Nothing in our decision fore-
closes any defense other than qualified immunity on the
ground relied upon by the Court of Appeals.
Second, we may address the immunity question on the as-
sumption that the act of field discipline charged on each occa-
sion was handcuffing Hope to a hitching post for an extended
period apparently to inflict gratuitous pain or discomfort,
with no justification in threatened harm or a continuing
refusal to work. Id., at 980 (on neither occasion did Hope
“refus[e] to work or encourag[e] other inmates to refuse to

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work”). The Court of Appeals clearly held the act of cuffing
petitioner to the hitching post itself to suffice as an unconsti-
tutional act: “We find that cuffing an inmate to a hitching
post for a period of time extending past that required to
address an immediate danger or threat is a violation of the
Eighth Amendment.” Ibid. Although the court continued
that “[t]his violation is exacerbated by the lack of proper
clothing, water, or bathroom breaks,” ibid., this embellish-
ment was not the basis of its decision, and our own decision
adequately rests on the same assumption that sufficed for
the Court of Appeals.
Third, in applying the objective immunity test of what a
reasonable officer would understand, the significance of fed-
eral judicial precedent is a function in part of the Judiciary’s
structure. The unreported District Court opinions cited by
the officers are distinguishable on their own terms. 12 But
regardless, they would be no match for the Circuit prece-
dents 13 in Gates v. Collier, 501 F. 2d, at 1306, which held that
“handcuffing inmates to the fence and to cells for long peri-
ods of time” was unconstitutional, and Ort v. White, 813
F. 2d, at 326, which suggested that it would be unconstitu-
tional to inflict gratuitous pain on an inmate (by refusing
him water) when punishment was unnecessary to enforce
12 In three of the decisions, the inmates were given the choice between
working or being restrained. See Whitson v. Gillikin, No. CV–93–H–
1517–NE (ND Ala., Jan. 24, 1994), p. 4, App. 84; Dale v. Murphy,
No. CV–85–1091–H–S (SD Ala., Feb. 4, 1986), p. 2; Ashby v. Dees,
No. CV–94–U–0605–NE (ND Ala., Dec. 27, 1994), p. 6. In others, the
inmates were offered regular water and bathroom breaks. See Lane v.
Findley, No. CV–93–C–1741–S (ND Ala., Aug. 4, 1994), p. 9; Williamson
v. Anderson, No. CV–92–H–675–N (MD Ala., Aug. 18, 1993), p. 2; Hollis
v. Folsom, No. CV–94–T–0052–N (MD Ala., Nov. 4, 1994), p. 9. Finally,
in Vinson v. Thompson, No. CV–94–A–268–N (MD Ala., Dec. 9, 1994), the
inmate was restrained for approximately 45 minutes. Id., at 2.
13 There are apparently no decisions on similar facts from other Circuits,
presumably because Alabama is the only State to authorize the use of the
hitching post in its prison system.

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Thomas, J., dissenting
on-the-spot discipline. The vitality of Gates and Ort could
not seriously be questioned in light of our own decisions
holding that gratuitous infliction of punishment is unconstitu-
tional, even in the prison context, see supra, at 737 (citing
Whitley v. Albers, 475 U. S., at 319; Rhodes v. Chapman, 452
U. S., at 346).
The judgment of the Court of Appeals is reversed.
It is so ordered.
Justice Thomas, with whom The Chief Justice and
Justice Scalia join, dissenting.
The Court today subjects three prison guards to suit based
on facts not alleged, law not clearly established, and its own
subjective views on appropriate methods of prison discipline.
Qualified immunity jurisprudence has been turned on its
head.
I
Petitioner Larry Hope did not file this action against the
State of Alabama. Nor did he sue all of the Alabama prison
guards responsible for looking after him in the two instances
that he was handcuffed to the restraining bar.1 He chose
instead to maintain this lawsuit against only three prison
guards: Officer Gene McClaran, Sergeant Mark Pelzer, and
Lieutenant Jim Gates. See 240 F. 3d 975, 977, n. 2 (CA11
2001).2 It is therefore strange that in the course of deciding
that none of the three respondents is entitled to qualified
1 Despite the Court’s consistent use of the term “hitching post,” the ap-
paratus to which petitioner was handcuffed is a “restraining bar.” See
Ala. Dept. of Corrections Admin. Reg. No. 429, p. 1 (Oct. 26, 1993), re-
printed in App. 102.
2 While petitioner also sued five other guards in connection with the
fight that occurred before he was affixed to the restraining bar on June
7, 1995, he later withdrew his claims against them and asked that they
be dismissed from the case. See 240 F. 3d, at 977, n. 2; Plaintiff ’s Special
Report and Brief in Response to Defendants’ Motion for Summary Judg-
ment (ND Ala.), pp. 1–2, 5–6, Record, Doc. No. 33.

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immunity the Court does not even bother to mention the
nature of petitioner’s specific allegations against McClaran,
Pelzer, and Gates. The omission is both glaring and telling.
When one examines the alleged conduct of the prison guards
who are parties to this action, as opposed to the alleged con-
duct of other guards, who are not parties to this action, peti-
tioner’s case becomes far less compelling.
The Court’s imprecise account of the facts requires that
the specific nature of petitioner’s allegations against the
three respondents be recounted. Petitioner claims that:
(1) on May 11, 1995, Officer McClaran ordered that petitioner
be affixed to the restraining bar; 3 (2) Sergeant Pelzer, on
that same date, affixed him to the restraining bar; 4 and
(3) Lieutenant Gates, on May 11 and June 7, 1995, affixed
petitioner to the bar.5 That is the sum and substance of
petitioner’s allegations against respondents.6
With respect to McClaran and Pelzer, petitioner has never
alleged that they participated in the June 7 incident that so
3 See Second Affidavit of Larry Hope (ND Ala.), at 2–3, Record, Doc.
No. 32.
4 Id., at 3.
5 Id., at 3–4.
6 There is some confusion as to who actually affixed petitioner to the
restraining bar on May 11. While petitioner “believe[s]” that Sergeant
Pelzer did so, id., at 3, the “Institutional Incident Report” produced by
respondents and written by Officer McClaran indicates that Officers Keith
Gates and Mark Dempsey placed petitioner on the bar, see id., Exh. 2.
Petitioner acknowledged that fact and attached the report to his second
affidavit. See id., at 3. Consequently, interpreting petitioner’s pleadings
in the light most favorable to him, I will assume that petitioner has alleged
that Pelzer, Gates, and Dempsey cuffed him to the bar on May 11. Addi-
tionally, I will assume that the “Officer Keith Gates” mentioned in Officer
McClaran’s report is the same person as the Lieutenant Jim Gates who is
a respondent in this case. It is worth noting, however, that respondents
vigorously dispute petitioner’s assertion that Lieutenant Jim Gates and
Officer Keith Gates are one and the same, see Brief for Respondents i,
and petitioner has yet to produce any evidence to support this somewhat
incredible claim.

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Thomas, J., dissenting
appalls the Court.7 And with respect to Lieutenant Gates,
petitioner has never alleged that Gates either participated in
or was responsible for any of the June 7 events recounted by
the Court other than attaching petitioner to the bar. Peti-
tioner has never contended that Gates looked after or other-
wise supervised him while he was on the bar. See Second
Affidavit of Larry Hope (ND Ala.), Record, Doc. No. 32.
Nor has petitioner ever claimed that Gates was responsible
for keeping him on the bar for seven hours, removing his
shirt,8 denying him water, taunting him about his thirst, or
giving water to dogs in petitioner’s plain view. See ibid.
The relevance of these facts, repeatedly referenced by the
Court during the course of its legal analysis, see, e. g., ante,
at 738, 744, therefore escapes me.
Then there are the events referenced in the Court’s opin-
ion that cannot even arguably be gleaned from the record.
For instance, while the Court claims that on June 7 peti-
tioner “was given no bathroom breaks,” ante, at 735, during
his time on the bar, petitioner has never alleged that Gates
or any other prison guard refused him bathroom breaks on
that date. See Second Affidavit of Larry Hope, Record,
Doc. No. 32. As a matter of fact, the District Court ex-
pressly found below that petitioner “was not denied restroom
7 See, e. g., Plaintiff ’s Special Report and Brief in Response to Defend-
ant’s Motion for Summary Judgment 1–2, Record, Doc. No. 33 (“[T]he only
remaining claims are those against Defendants McClaran, Pelzer, and
Gates in connection with the May 11, 1997 hitching post incident, and
Defendant Gates in connection with the June 7 hitching post incident”);
Second Affidavit of Larry Hope, Record, Doc. No. 32.
8 It is important to note that petitioner has never maintained that Gates
placed him on the bar without a shirt. Rather, petitioner’s first affidavit,
see Affidavit of Larry Hope 2, Record, Doc. No. 1, as well as photographs
appended as exhibits to petitioner’s second affidavit, see Second Affidavit
of Larry Hope, Exhs. 3–5, Record, Doc. No. 32, which were verified by
petitioner as “taken while [he] was on the hitching post on June 7,” id., at
5, indicate that petitioner’s shirt was removed, if at all, after he was
attached to the bar.

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Thomas, J., dissenting
breaks.” Supplemental App. to Pet. for Cert. 2. In addi-
tion, photographs taken of petitioner attached to the re-
straining bar on June 7 show him wearing a t-shirt, revealing
at a minimum that petitioner was not shirtless “all day.”
See Second Affidavit of Larry Hope, Exhs. 3–5, Record, Doc.
No. 32; id., at 5 (verifying that the photographs were “taken
while [he] was on the hitching post on June 7”).
Once one understands petitioner’s specific allegations
against respondents, the Eighth Amendment violation in this
case is far from “obvious.” Ante, at 738. What is “ob-
vious,” however, is that the Court’s explanation of how
respondents violated the Eighth Amendment is woefully
incomplete. The Court merely recounts petitioner’s allega-
tions regarding the events of June 7 and concludes that “[t]he
use of the hitching post under these circumstances violated
the ‘basic concept underlying the Eighth Amendment[,]
[which] is nothing less than the dignity of man.’ ” Ibid.
(quoting Trop v. Dulles, 356 U. S. 86, 100 (1958)). The
Court, however, fails to explain how respondents McClaran
and Pelzer violated the Eighth Amendment, given that they
had no involvement whatsoever in affixing petitioner to the
restraining bar on June 7. The Court’s reasoning as applied
to respondent Gates is similarly inadequate since petitioner
has never alleged that Gates bore any responsibility for most
of the conduct on June 7 that supposedly renders the Eighth
Amendment violation “obvious.” 9
9 In an effort to rehabilitate the Court’s opinion, Justice Stevens ar-
gues that the specific nature of respondents’ connection to the events of
May 11 and June 7 falls outside the scope of the questions presented. See
ante, at 746. In conducting qualified immunity analysis, however, courts
do not merely ask whether, taking the plaintiff ’s allegations as true, the
plaintiff ’s clearly established rights were violated. Rather, courts must
consider as well whether each defendant’s alleged conduct violated the
plaintiff ’s clearly established rights. For instance, an allegation that De-
fendant A violated a plaintiff ’s clearly established rights does nothing to
overcome Defendant B’s assertion of qualified immunity, absent some alle-
gation that Defendant B was responsible for Defendant A’s conduct. Sim-

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Thomas, J., dissenting
II
Once petitioner’s allegations regarding respondents’ con-
duct are separated from his other grievances and the mis-
treatment invented by the Court, this case presents one sim-
ple question: Was it clearly established in 1995 that the mere
act of cuffing petitioner to the restraining bar (or, in the case
of Officer McClaran, ordering petitioner’s attachment to the
restraining bar) violated the Eighth Amendment? The an-
swer to this question is also simple: Obviously not.
A
The Court correctly states that respondents are entitled
to qualified immunity unless their conduct violated “ ‘clearly
established statutory or constitutional rights of which a rea-
sonable person would have known.’ ” Ante, at 739 (quoting
Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982)). But the
Court then fails either to discuss or to apply the following
important principles. Qualified immunity protects “all but
the plainly incompetent or those who knowingly violate the
law.” Malley v. Briggs, 475 U. S. 335, 341 (1986). If “it
would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted,” then qualified im-
munity does not apply. Saucier v. Katz, 533 U. S. 194, 202
(2001). But if, on the other hand, “officers of reasonable
competence could disagree on th[e] issue, immunity should
be recognized.” Malley, supra, at 341.
In evaluating whether it was clearly established in 1995
that respondents’ conduct violated the Eighth Amendment,
the Court of Appeals properly noted that “[i]t is important
to analyze the facts in [the prior cases relied upon by peti-
tioner where courts found Eighth Amendment violations],
ilarly here, in the absence of any allegation by petitioner that respondents
were in any way responsible for the behavior of other prison guards on
May 11 and June 7, the conduct of those other guards should not be consid-
ered in analyzing whether respondents are entitled to qualified immunity.

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Thomas, J., dissenting
and determine if they are materially similar to the facts in
the case in front of us.” 240 F. 3d, at 981 (internal quotation
marks omitted). The right not to suffer from “cruel and un-
usual punishments,” U. S. Const., Amdt. 8, is an extremely
abstract and general right. In the vast majority of cases,
the text of the Eighth Amendment does not, in and of itself,
give a government official sufficient notice of the clearly es-
tablished Eighth Amendment law applicable to a particu-
lar situation.10 Rather, one must look to case law to see
whether “the right the official is alleged to have violated
[has] been ‘clearly established’ in a more particularized, and
hence more relevant, sense: The contours of the right must
be sufficiently clear that a reasonable official would under-
stand that what he is doing violates that right.” Anderson
v. Creighton, 483 U. S. 635, 640 (1987).
In conducting this inquiry, it is crucial to look at precedent
applying the relevant legal rule in similar factual circum-
stances. Such cases give government officials the best indi-
cation of what conduct is unlawful in a given situation. If,
for instance, “various courts have agreed that certain con-
duct [constitutes an Eighth Amendment violation] under
facts not distinguishable in a fair way from the facts pre-
sented in the case at hand,” Saucier, supra, at 202, then a
plaintiff would have a compelling argument that a defendant
is not entitled to qualified immunity.
That is not to say, of course, that conduct can be “clearly
established” as unlawful only if a court has already passed
on the legality of that behavior under materially similar cir-
cumstances. Certain actions so obviously run afoul of the
law that an assertion of qualified immunity may be overcome
even though court decisions have yet to address “materially
similar” conduct. Or, as the Court puts it, “officials can still
10 Cf. Saucier v. Katz, 533 U. S. 194, 201–202 (2001) (discounting as too
general the principle that a police officer’s use of force violates the Fourth
Amendment if it is excessive under objective standards of reasonableness).

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754 HOPE v. PELZER
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be on notice that their conduct violates established law even
in novel factual circumstances.” Ante, at 741.
Although the Court argues that the Court of Appeals has
improperly imposed a “rigid gloss on the qualified immunity
standard,” ante, at 739, and n. 9, requiring that the facts of
a previous case be materially similar to a plaintiff ’s circum-
stances for qualified immunity to be overcome, this sugges-
tion is plainly wrong. Rather, this Court of Appeals has re-
peatedly made clear that it imposes no such requirement on
plaintiffs seeking to defeat an assertion of qualified immu-
nity. See, e. g., Priester v. Riviera Beach, 208 F. 3d 919, 926
(CA11 2000) (stating that qualified immunity does not apply
if an official’s conduct “was so far beyond the hazy border
between excessive and acceptable force that [the official] had
to know he was violating the Constitution even without case-
law on point” (internal quotation marks omitted)); Smith
v. Mattox, 127 F. 3d 1416, 1419 (CA11 1997) (noting that a
plaintiff can overcome an assertion of qualified immunity
by demonstrating “that the official’s conduct lies so obviously
at the very core of what the [Constitution] prohibits that
the unlawfulness of the conduct was readily apparent to
the official, notwithstanding the lack of caselaw”); Lassiter
v. Alabama A&M Univ., 28 F. 3d 1146, 1150, n. 4 (CA11
1994) (“[O]ccasionally the words of a federal statute or fed-
eral constitutional provision will be specific enough to estab-
lish the law applicable to particular circumstances clearly
and to overcome qualified immunity even in the absence of
case law”).
Similarly, it is unfair to read the Court of Appeals’ decision
as adopting such a “rigid gloss” here. Nowhere did the
Court of Appeals state that petitioner, in order to overcome
respondents’ assertion of qualified immunity, was required
to produce precedent addressing “materially similar” facts.
Rather, the Court of Appeals merely (and sensibly) evalu-
ated the cases relied upon by petitioner to determine
whether they involved facts “materially similar” to those

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Thomas, J., dissenting
present in this case. See 240 F. 3d, at 981 (“It is important
to analyze the facts in these cases, and determine if they are
‘materially similar’ to the facts in the case in front of
us”).
To be sure, the Court of Appeals did not also ask whether
respondents’ conduct so obviously violated the Eighth
Amendment that respondents’ assertion of qualified immu-
nity could be overcome in the absence of case law involving
“materially similar” facts. The majority must believe that
the Court of Appeals, therefore, has implicitly abandoned its
prior qualified immunity jurisprudence. I, on the other
hand, believe it is far more likely that the Court of Appeals
omitted such a discussion from its opinion for a much simpler
reason: Given petitioner’s allegations, it thought that the ar-
gument was so weak, and the alleged actions of respondents
so far removed from “ ‘the hazy border between excessive
and acceptable force,’ ” Priester, supra, at 926 (quoting
Smith, supra, at 1419), that it was not worth mentioning.
B
Turning to the merits of respondents’ assertion that they
are entitled to qualified immunity, the relevant question is
whether it should have been clear to McClaran, Pelzer, and
Gates in 1995 that attaching petitioner to a restraining bar
violated the Eighth Amendment. As the Court notes, at
that time Alabama was the only State that used this particu-
lar disciplinary method when prisoners refused to work or
disrupted work squads. See ante, at 733. Previous litiga-
tion over Alabama’s use of the restraining bar, however, did
nothing to warn reasonable Alabama prison guards that at-
taching a prisoner to a restraining bar was unlawful, let
alone that the illegality of such conduct was clearly estab-
lished. In fact, the outcome of those cases effectively fore-
closes petitioner’s claim that it should have been clear to re-
spondents in 1995 that handcuffing petitioner to a restraining
bar violated the Eighth Amendment.

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756 HOPE v. PELZER
Thomas, J., dissenting
For example, a year before the conduct at issue in this case
took place, the United States District Court for the Northern
District of Alabama rejected the Eighth Amendment claim
of an Alabama prisoner who was attached to a restraining
bar for five hours after he refused to work and scuffled with
guards. See Lane v. Findley, No. CV–93–C–1741–S (Aug.
4, 1994). The District Court reasoned that attaching the
prisoner to a restraining bar “was a measured response to a
potentially volatile situation and a clear warning to other
inmates that refusal to work would result in immediate disci-
pline subjecting the offending inmate to similar conditions
experienced by work detail inmates rather than a return to
inside the institution.” Id., at 9. The District Court there-
fore concluded that there was a “substantial penological jus-
tification” for attaching the plaintiff to the restraining bar.
Ibid.
Both the Court and petitioner attempt to distinguish this
case from Lane on the grounds that the prisoner in Lane
was “offered regular water and bathroom breaks” while on
the restraining bar. See ante, at 747, n. 12; Reply Brief for
Petitioner 16, n. 5. But this argument fails for two reasons:
(1) Respondents McClaran and Pelzer were involved only in
the May 11 incident, and it is undisputed that petitioner was
offered water and a bathroom break every 15 minutes during
his 2 hours on the bar that day; and (2) petitioner, as pre-
viously mentioned, has never alleged that respondent Gates
was responsible for denying him water or bathroom breaks
on June 7.
The same year that it decided Lane, the United States
District Court for the Northern District of Alabama dis-
missed another complaint filed by an Alabama prisoner who
was handcuffed to a restraining bar. In that case, the pris-
oner, after refusing to leave prison grounds with his work
squad, was handcuffed to a restraining bar for eight hours.
Temperatures allegedly reached 95 degrees while the pris-
oner was attached to the bar, and he was allegedly denied

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food, water, and any opportunities to use bathroom facilities.
See Whitson v. Gillikin, No. CV–93–H–1517–NE (Jan. 24,
1994), p. 7, App. 81. As a result of being handcuffed to the
bar, the prisoner “suffered lacerations, pain, and swelling in
his arms.” Id., at 85. The District Court, without deciding
whether the defendants’ conduct violated the Eighth Amend-
ment, held that “there was no clearly established law identi-
fying [their behavior] as unconstitutional.” Id., at 88.
Federal District Courts in five other Alabama cases de-
cided before 1995 similarly rejected claims that handcuffing
a prisoner to a restraining bar or other stationary object
violated the Eighth Amendment. See, e. g., Ashby v. Dees,
No. CV–94–U–0605–NE (ND Ala., Dec. 27, 1994) (fence);
Vinson v. Thompson, No. CV–94–A–268–N (MD Ala., Dec.
9, 1994) (restraining bar); Hollis v. Folsom, No. CV–94–
T–0052–N (MD Ala., Nov. 4, 1994) (fence); Williamson v.
Anderson, No. CV–92–H–675–N (MD Ala., Aug. 18, 1993)
(fence); Dale v. Murphy, No. CV–85–1091–H–S (SD Ala.,
Feb. 4, 1986) (light pole).11 By contrast, petitioner is unable
to point to any Alabama decision issued before respondents
11 The Court’s attempt to distinguish away all of these decisions only
serves to undermine further its qualified immunity analysis. The Court
appears to suggest that affixing a prisoner to a restraining bar is not
clearly unlawful so long as (1) guards provide the prisoner with water and
regular bathroom breaks, or (2) the prisoner is placed on the restraining
bar as a result of his refusal to work. See ante, at 747, n. 12. But as
previously explained, see supra, at 756, petitioner was offered water and
bathroom breaks every 15 minutes during his May 11 stay on the bar, and
there has never been any allegation either that respondents McClaran and
Pelzer were involved at all in the June 7 incident or that respondent Gates
was responsible for denying petitioner water or bathroom breaks on that
date. As a result, even under the Court’s own view of the law, respond-
ents are entitled to qualified immunity. Moreover, the Court nowhere
explains how respondents were supposed to figure out in 1995 that it was
permissible to affix prisoners to a restraining bar if they refused to work
but it was unlawful to do so if they were disruptive while on work duty.
The claim that such a distinction was clearly established in Eighth Amend-
ment jurisprudence at that time is nothing short of incredible.

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758 HOPE v. PELZER
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affixed him to the restraining bar holding that a prison guard
engaging in such conduct violated the Eighth Amendment.
In the face of these decisions, and the absence of contrary
authority, I find it impossible to conclude that respondents
either were “plainly incompetent” or “knowingly violat[ing]
the law” when they affixed petitioner to the restraining bar.
Malley, 475 U. S., at 341. A reasonably competent prison
guard attempting to obey the law is not only entitled to look
at how courts have recently evaluated his colleagues’ prior
conduct, such judicial decisions are often the only place that
a guard can look for guidance, especially in a situation where
a State stands alone in adopting a particular policy.
C
In concluding that respondents are not entitled to qualified
immunity, the Court is understandably unwilling to hold that
our Eighth Amendment jurisprudence clearly established in
1995 that attaching petitioner to a restraining bar violated
the Eighth Amendment.12 Ante, at 742. It is far from “obvi-
ous,” ante, at 738, 741, that respondents, by attaching peti-
tioner to a restraining bar, acted with “deliberate indiffer-
ence” to his health and safety. Hudson v. McMillian, 503
U. S. 1, 8 (1992). Petitioner’s allegations do not come close to
suggesting that respondents knew that the mere act of at-
12 I continue to believe that “[c]onditions of confinement are not punish-
ment in any recognized sense of the term, unless imposed as part of a
sentence.” Farmer v. Brennan, 511 U. S. 825, 859 (1994) (Thomas, J., con-
curring in judgment). As a result, I do not think, as an original matter,
that attaching petitioner to the restraining bar constituted “punishment”
under the Eighth Amendment. See ibid. Nevertheless, I recognize that
this Court has embraced the opposite view—that the Eighth Amendment
does regulate prison conditions not imposed as part of a sentence, see, e. g.,
Estelle v. Gamble, 429 U. S. 97 (1976)—so I will apply that jurisprudence in
evaluating whether respondents’ conduct violated clearly established law.
I note, however, that I remain open to overruling our dubious expansion
of the Eighth Amendment in an appropriate case. See Farmer, supra, at
861–862 (Thomas, J., concurring in judgment).

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taching petitioner to the restraining bar imposed “a substan-
tial risk of serious harm” upon him. See Farmer v. Bren-
nan, 511 U. S. 825, 847 (1994). If, for instance, attaching
petitioner to a restraining bar amounted to the “gratuitous
infliction of ‘wanton and unnecessary’ pain,” ante, at 738, it
is curious that petitioner, while handcuffed to the bar on May
11, chose to decline most of the bathroom breaks offered to
him. Respondents also affixed petitioner to the restraining
bar for a legitimate penological purpose: encouraging his
compliance with prison rules while out on work duty.
Moreover, if the application of this Court’s general Eighth
Amendment jurisprudence to the use of a restraining bar
was as “obvious” as the Court claims, ante, at 738, 741, one
wonders how Federal District Courts in Alabama could have
repeatedly arrived at the opposite conclusion, and how re-
spondents, in turn, were to realize that these courts had
failed to grasp the “obvious.”
D
Unable to base its holding that respondents’ conduct vio-
lated “ ‘clearly established . . . rights of which a reasonable
person would have known,’ ” ante, at 742 (quoting Harlow,
457 U. S., at 818), on this Court’s precedents, the Court in-
stead relies upon “binding Eleventh Circuit precedent, an
Alabama Department of Corrections (ADOC) regulation, and
a [Department of Justice] report informing the ADOC of the
constitutional infirmity in its use of the hitching post,” ante,
at 741–742. I will address these sources in reverse order.
The Department of Justice report referenced by the Court
does nothing to demonstrate that it should have been clear
to respondents that attaching petitioner to a restraining
bar violated his Eighth Amendment rights. To begin with,
the Court concedes that there is no indication the Justice
Department’s recommendation that the ADOC stop using
the restraining bar was ever communicated to respondents,
prison guards in the small town of Capshaw, Alabama. See

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760 HOPE v. PELZER
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ante, at 745. In any event, an extraordinarily well-informed
prison guard in 1995, who had read both the Justice Depart-
ment’s report and Federal District Court decisions address-
ing the use of the restraining bar, could have concluded only
that there was a dispute as to whether handcuffing a prisoner
to a restraining bar constituted an Eighth Amendment viola-
tion, not that such a practice was clearly unconstitutional.
The ADOC regulation relied upon by the Court not only
fails to provide support for its holding today; the regulation
weighs in respondents’ favor because it expressly authorized
prison guards to affix prisoners to a restraining bar when
they were “disruptive to the work squad.” App. 102. Ala-
bama prison guards were entitled to rely on the validity of a
duly promulgated state regulation instructing them to attach
prisoners to a restraining bar under specified circumstances.
See Wilson v. Layne, 526 U. S. 603, 617 (1999) (crediting offi-
cer’s reliance on Marshals Service policy as “important” to
the conclusion that qualified immunity was warranted in an
area where the state of the law “was at best undeveloped”).
And, as the Court recounts, petitioner was placed on the re-
straining bar after entering into an argument with another
inmate while on work duty (May 11) and a wrestling match
with a guard when arriving at his work site (June 7).
Ante, at 734.
The Court argues that respondents must have been
“aware of the wrongful character of their conduct” because
they did not precisely abide by the policy set forth in the
ADOC regulation. Ante, at 744. Even taking petitioner’s
allegations as true, however, I am at a loss to understand
how respondents failed to comply with the regulation. With
respect to respondents McClaran and Pelzer, who were in-
volved only in the May 11 incident, the Court concedes that
the required activity log was filled out on that date, and peti-
tioner was offered water and bathroom breaks every 15 min-
utes. Ante, at 734, 744. With respect to respondent Gates,
the Court complains that no such log exists for petitioner’s

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June 7 stay on the bar and the record suggests that the peri-
odic water and bathroom-break offers contemplated by the
regulation were not made. Petitioner, however, has never
alleged that Gates was responsible for supervising or looking
after him once he was handcuffed to the post. He has only
alleged that Gates placed him there.
While the Court also observes that the regulation provides
that an inmate “ ‘will be allowed to join his assigned squad’ ”
whenever he tells an officer “ ‘that he is ready to go to
work,’ ” ante, at 744 (quoting App. 103), the Court again does
not explain how any of the respondents in this case failed to
observe this requirement. Petitioner has never alleged that
he informed respondents or any other prison guard while he
was on the bar that he was ready to go to work.
Finally, the “binding Eleventh Circuit precedent” relied
upon by the Court, ante, at 741–743, was plainly insufficient
to give respondents fair warning that their alleged conduct
ran afoul of petitioner’s Eighth Amendment rights. The
Court of Appeals held in Ort v. White, 813 F. 2d 318 (CA11
1987), that a prison guard did not violate an inmate’s Eighth
Amendment rights by denying him water when he refused
to work, and the Court admits that this holding provides no
support for petitioner. Instead, it claims that the “reason-
ing” in Ort “gave fair warning to respondents that their
conduct crossed the line of what is constitutionally permissi-
ble.” Ante, at 743. But Ort provides at least as much
support to respondents as it does to petitioner. For in-
stance, Ort makes it abundantly clear that prison guards
“have the authority to use that amount of force or those coer-
cive measures reasonably necessary to enforce an inmate’s
compliance with valid prison rules” so long as such measures
are not undertaken “maliciously or sadistically.” 813 F. 2d,
at 325.
To be sure, the Court correctly notes that the Court of
Appeals in Ort suggested that it “might have reached a dif-
ferent decision” had the prison officer denied the inmate

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water after he had returned to the prison instead of while
he was out with the work squad. Id., at 326. But the sug-
gestion in dicta that a guard might have violated a prisoner’s
Eighth Amendment rights by denying him water once he
returned from work duty does not come close to clearly es-
tablishing the unconstitutionality of attaching a disruptive
inmate to a restraining bar after he is removed from his
work squad and back within prison walls.
Admittedly, the other case upon which the Court relies,
Gates v. Collier, 501 F. 2d 1291 (CA5 1974), is more on point.
Nevertheless, Gates is also inadequate to establish clearly
the unlawfulness of respondents’ alleged conduct. In Gates,
the Court of Appeals listed “handcuffing inmates to [a] fence
and to cells for long periods of time” as one of many unac-
ceptable forms of “physical brutality and abuse” present at
a Mississippi prison. Id., at 1306. Others included adminis-
tering milk of magnesia as a form of punishment, depriving
inmates of mattresses, hygienic materials, and adequate
food, and shooting at and around inmates to keep them
standing or moving. See ibid. The Court of Appeals had
“no difficulty in reaching the conclusion that these forms
of corporal punishment run afoul of the Eighth Amend-
ment.” Ibid.
It is not reasonable, however, to read Gates as establishing
a bright-line rule forbidding the attachment of prisoners to
a restraining bar. For example, in referring to the fact that
prisoners were handcuffed to a fence and cells “for long peri-
ods of time,” the Court of Appeals did not indicate whether
it considered a “long period of time” to be 1 hour, 5 hours,
or 25 hours. The Court of Appeals also provided no expla-
nation of the circumstances surrounding these incidents.
The opinion does not indicate whether the handcuffed prison-
ers were given water and suitable restroom breaks or
whether they were handcuffed in a bid to induce them to
comply with prison rules. In the intervening 21 years be-
tween Gates and the time respondents affixed petitioner to

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the restraining bar, there were no further decisions clarify-
ing the contours of the law in this area. Therefore, as an-
other court interpreting Gates has noted: “There is no blan-
ket prohibition against the use of punishment such as the
hitching post in Gates which would signal to the Commis-
sioner of Corrections [let alone ordinary corrections officers]
that the mere use of the hitching post would be a constitu-
tional violation.” Fountain v. Talley, 104 F. Supp. 2d 1345,
1354 (MD Ala. 2000).
Moreover, Eighth Amendment law has not stood still since
Gates was decided. In Farmer v. Brennan, 511 U. S. 825
(1994), this Court elucidated the proper test for measuring
whether a prison official’s state of mind is one of “deliberate
indifference,” holding that “a prison official cannot be found
liable under the Eighth Amendment for denying an inmate
humane conditions of confinement unless the official knows
of and disregards an excessive risk to inmate health or
safety; the official must both be aware of facts from which
the inference could be drawn that a substantial risk of seri-
ous harm exists, and he must also draw the inference.” Id.,
at 837. Because the Court of Appeals in Gates did not con-
sider this subjective element, Gates alone could not have
clearly established that affixing prisoners to a restraining
bar was clearly unconstitutional in 1995. Also, in the face of
recent Federal District Court decisions specifically rejecting
prisoners’ claims that Alabama prison guards violated their
Eighth Amendment rights by attaching them to a restrain-
ing bar as well as a state regulation authorizing such con-
duct, it seems contrary to the purpose of qualified immunity
to hold that one vague sentence plucked out of a 21-year-old
Court of Appeals opinion provided clear notice to respond-
ents in 1995 that their conduct was unlawful.
* * *
It is most unfortunate that the Court holds that Officer
McClaran, Sergeant Pelzer, and Lieutenant Gates are not

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Thomas, J., dissenting
entitled to qualified immunity. It was not at all clear in 1995
that respondents’ conduct violated the Eighth Amendment,
and they certainly could not have anticipated that this Court
or any other would rule against them on the basis of non-
existent allegations or allegations involving the behavior
of other prison guards. For the foregoing reasons, I would
affirm the judgment of the Court of Appeals. I respect-
fully dissent.