Hope v. Pelzer, 536 U.S. 730, 15 (2002)

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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 officer "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 frequently ignored by corrections officers. If regularly observed, 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 practice 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 conclusion that "a reasonable person would have known," Harlow, 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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