(dissenting).
Because I disagree with the majority determination that immunity can be invoked in the present circumstances, I respectfully dissent.
The trial court’s findings treat the facts in some detail, and from these we realize the impact of the conduct. The conscience of the trial court was shocked by it. Notwithstanding this, immunity was extended by the trial court and is extended by this court to the officials. This is based on the fact that the Attorney General had never told them that subjection of inmates to this treatment was a violation of the Constitution of the United States.
In my judgment it was not necessary to so advise them. Suppose the rack and screw were being employed pursuant to state law or custom. Would the officers be allowed to claim good faith because of a mistaken belief that the law allowed it? I submit not.
Furthermore, the statute relied on, K.S.A. 76 — 2423, does not come near to authorizing the strip cell.1 True, it allows the imposition of solitary confinement and distress, but this falls short of prescribing the strip cell in all of its indignity.
I disagree with the majority opinion that the Supreme Court’s decision in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d. 90 (1974) is relevant authority for the majority decision. That case emphasized the necessity for “reasonable grounds for the belief formed at the time and in light of all the circumstances * * *.”
None of our prior decisions, including Smith v. Losee, 485 F.2d 334 (10th Cir. 1973), support the present decision. See also Dearman v. Woodson, 429 F.2d 1288 (10th Cir. 1970). Cf. Bethea v. Crouse, 417 F.2d 504 (10th Cir. 1969). In Bethea the Kansas Penitentiary and the Kansas authorities were named. There the allegation was that the warden and deputy warden stood by while a fellow inmate inflicted beatings of an extreme nature on the two plaintiffs. The court held that it was error to grant summary judgment.
The Court of Appeals for the Second Circuit has treated a case which is very similar to ours involving as it does strip cells. I refer to Wright v. McMann, 460 F.2d 126 (2d Cir.), cert. denied, 409 U.S. 885, 93 S.Ct. 115, 34 L.Ed.2d 141 (1972). The court there affirmed an award of damages against the warden in the amount of $1500.00 based on violation of the Eighth Amendment. The trial court had refused the defense of good faith and this action was approved by the appeals court.
Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) does not extend immunity based on good faith to a clear-cut violation of the Eighth Amendment — one which shocks the conscience. That was an arrest and confinement situation arising under the Fourth Amendment and depending on the quantum of evidence of probable cause. No such factual evaluation is necessary here. Rather, the stark facts are brought home and the action is so excessive that it could not create the mistaken belief that it is legal. In final analysis this is the reason for my disagreement with my brothers.
. From a reading of the statute one could not conclude that it allows enforced nudity, lack of any toilet facilities excepting a hole in the floor, and a concrete floor without beds or bedding. This is far different from solitary confinement with deprivation of light and production of distress,