Metropolitan News-Enterprise


Wednesday, October 7, 2009


Page 3


Ninth Circuit to Rule En Banc on Strip Search of Male Inmate by Female




A limited en banc panel of the Ninth U.S. Circuit Court of Appeals will review the constitutionality of a partial strip search and pat down of a male inmate by a female training cadet, the court said yesterday.

Chief Judge Alex Kozinski said in a brief order that a majority of the court’s active judges had voted to grant review in Byrd v. Maricopa County Sheriff’s Department, 07-16640.

A panel ruled 2-1 in May that an October 2004 search conducted while Charles Byrd was a pretrial detainee at the minimum-security Durango Jail in Maricopa County, Ariz., did not violate the Fourth Amendment, the Equal Protection Clause or the inmate’s right to substantive due process.

Byrd claimed that jail officers entered his cell and ordered him to remove all of his clothing, except for his thin, prison-issued boxer shorts. He was then ordered to walk to an open common area where 25 to 30 cadets from the Maricopa County Sheriff’s Office Training Academy and 10 to 15 uniformed detention officers were present. Approximately one-third of the officers and cadets were female, Byrd said.

Then-cadet Kathleen O’Connell conducted a search of Byrd, during which, Byrd claimed, she caused “wanton and unnecessary infliction of pain” when she “grabbed his genitals twice, then ram[m]ed her index finger through the crack of his butto[cks].”

He also alleged that there was no need for a female cadet to touch him because there were several male detention officers present who could have performed the search, but the jail officials were deliberately indifferent to the “public humiliation” and “psychological trauma” that a cross-gender body search was likely to cause.

After the search, Byrd filed inmate grievances with the Maricopa County Sheriff’s Office, and he eventually filed a pro se complaint in U.S. District Court against the county, various officers and O’Connell alleging the search had violated his Fourth Amendment right to be free from unreasonable searches, his substantive due process right to be free from punishment and his Fourteenth Amendment right to equal protection of the laws.

U.S. District Judge Neil V. Wake granted summary judgment on the equal protection claimp but allowed the other two claims to go to trial.

At trial, O’Connell demonstrated the search to the jury and testified that it lasted between 10 and 20 seconds. Byrd testified that the search had lasted 60 seconds.

The county said cadets are not permitted to observe or conduct cross-gender strip searches if all of an inmate’s clothing has been removed. They are permitted to observe and conduct searches if an inmate is wearing underwear, but are not permitted to look into a male inmate’s underwear when conducting such a search.

The jury found against Byrd, and the trial court issued judgment for all defendants.

Writing for the three-judge Ninth Circuit panel, Judge Sandra S. Ikuta explained that Byrd failed to allege that the defendants’ act of having a female cadet search him was motivated by discriminatory animus toward male prisoners, which was fatal to his equal protection claim.

As the search was reasonably related to legitimate governmental needs, and because Byrd did not introduce any evidence which a rational jury could conclude that the search was conducted with “deliberate indifference” to pain the cross-gender aspect of the search might cause, Ikuta declined to infer that the purpose of the search was punitive.

Ikuta concluded that the search was reasonable under the Fourth Amendment because it was done in response to reports of contraband and fighting in Byrd’s housing unit, contraband could have been concealed in the areas of Byrd’s person that were searched, the search was conducted swiftly and professionally, and the jail’s staffing situation required that some searches of male inmates be conducted by female officers.

However, Ikuta noted the question was “close” and said she was “troubled by the overall circumstances of the search,” which she characterized as “invasive” because it involved Byrd’s genital region, and because the embarrassment inherent in such a search was “amplified” by the female officer conducting the search, and the presence of many officers and cadets, including several females, during the search.

Judge Consuelo M. Callahan joined Ikuta in her opinion, but Senior Judge Ferdinand F. Fernandez dissented in part, arguing that “cross-gender strip searches are generally uncalled for and unreasonable” and that the search of Byrd was a violation of the Fourth Amendment.


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