Cite as: 536 U. S. 730 (2002)
Thomas, J., dissenting
the restraining bar, there were no further decisions clarifying the contours of the law in this area. Therefore, as another court interpreting Gates has noted: "There is no blanket prohibition against the use of punishment such as the hitching post in Gates which would signal to the Commissioner of Corrections [let alone ordinary corrections officers] that the mere use of the hitching post would be a constitutional 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 serious harm exists, and he must also draw the inference." Id., at 837. Because the Court of Appeals in Gates did not consider 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 restraining bar as well as a state regulation authorizing such conduct, 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 respondents in 1995 that their conduct was unlawful.
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It is most unfortunate that the Court holds that Officer McClaran, Sergeant Pelzer, and Lieutenant Gates are not
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