Metropolitan News-Enterprise


Thursday, January 6, 2011


Page 1


Court Reverses Ruling Allowing Cross-Gender Strip Search


By a MetNews Staff Writer


The partial strip search and pat-down of a male inmate by a female training cadet was unreasonable as a matter of law under the Fourth Amendment, the Ninth U.S. Circuit Court of Appeals ruled yesterday en banc.

The limited en banc court, in a 6-5 decision, reversed the ruling of a district judge who upheld the search, as did a 2-1 majority on the Ninth Circuit panel that heard the case in 2009.

Noting that the cadet touched the inmate’s “inner and outer thighs, buttocks, and genital area with her latex-gloved hand through very thin boxer shorts” and “moved his penis and scrotum in the process of conducting the search,” Judge Johnnie Rawlinson wrote:

“The scope of the intrusion in this case far exceeds searches we have previously sanctioned and weighs in favor of a finding of unreasonableness.”

Verdict Overturned

The court overturned a jury verdict in favor of Sheriff Joseph Arpaio and the Maricopa  County, Ariz. Sheriff’s Department, found the search of Charles Byrd to be unreasonable as a matter of law under the Fourth Amendment, and remanded to the U.S. District Court for the District of Arizona.

The judges unanimously, however, rejected Byrd’s equal protection and substantive due process claims. Judges Mary M. Schroeder, Sidney R. Thomas, Susan P. Graber, Raymond C. Fisher, and Richard A. Paez joined in Rawlinson’s opinion.

Judge N. Randy Smith, joined by Chief Judge Alex Kozinski and Judges Richard C. Tallman, Ronald M. Gould, and Carlos T. Bea argued in a partial dissent authored by Smith that the search was reasonable and that all of Byrd’s claims should be rejected.

District Judge Neil V. Wake ruled four years ago that the  October 2004 search conducted while Byrd was a pretrial detainee at the minimum-security Durango Jail did not violate the inmate’s rights to equal protection, granting partial summary judgment. After allowing the Fourth Amendment claim to go to a jury, he ruled as a matter of law that the search did not violate the Fourth Amendment because it was “necessary to security or...furthered a legitimate penological interest.”

Search Procedure

Byrd claimed that jail officers entered his cell and ordered him to remove all of his clothing, except for his thin, jail-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 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.

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.

County Policies

According to the county’s policies and customs, female officers and 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.

Rawlinson agreed with her colleagues that Byrd’s failure to allege that the defendants’ act of having a female cadet search him was motivated by discriminatory animus toward male prisoners was fatal to his equal protection claim.

She also concluded that there was no substantive due process violation because there was no evidence of malice or punitive intent. 

But the cross-gender strip search was patently unreasonable, the judge said.

Such searches carry with them a high potential for abuse, she said, citing the June 2009 report of the National Prison Rape Elimination Commission; the standards of the American Correctional Association, which permit cross-gender searches only in emergencies;  and Ninth Circuit cases upholding cross-gender patdown searches on the ground that they did not involve contact with intimate body parts.

Legitimacy Acknowledged

Rawlinson acknowledged that the sheriff had legitimate reasons for his search policy, given that there had been several recent fights and it was suspected that inmates had introduced contraband by hiding it on their persons.

But she agreed with the plaintiff that the search could have been conducted by a male officer, and said the district judge was wrong to hold that the cross-gender aspect of the search was not a consideration in determining its reasonableness.

Smith argued in dissent that the search was reasonably related to legitimate governmental needs, and that a non-emergency, cross-gender search, not involving the compelled removal of an inmate’s underwear, does not violate the Fourth Amendment unless it is conducted in such a manner as to cause pain.

The procedure Byrd underwent, Smith said, is properly described as a pat-down search, not a strip search. So viewed, he said, judgment for the defendant was consistent with the court’s precedents allowing female officers to perform minimally intrusive searches of clothed male inmates.

The appeal was argued by Robert J. Herrington of of Skadden, Arps, Slate, Meagher & Flom LLP’s Los Angeles office, with Douglas Adler and Byron McLain on the brief.  Phoenix attorney Eileen D. GilBride of Jones, Skelton & Hochuli represented the defendants.

The case is Byrd v. Maricopa County Sheriff’s Department, 07-16640.


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