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Ninth Circuit Finds Maricopa County Jail’s Cross-Gender Strip Searches Unreasonable

On January 5, 2011, the en banc Ninth Circuit Court of Appeals reversed a district court’s dismissal of a prisoner’s lawsuit against the Maricopa County Sheriff’s Office (MCSO) and Sheriff Joe Arpaio.

Charles Edward Byrd, while a pre-trial detainee in a minimum-security MCSO facility, sought relief for a cross-gender strip search conducted while he and other prisoners were clad in their boxer shorts. Byrd alleged that there were sufficient male guards available to perform the search, which involved a female police cadet “grab[ing] [his] balls and [his] scrotum.”

Byrd alleged in his complaint that the method of the search violated his “right under the Fourth Amendment to be free from unreasonable searches, and [his] rights under the Fourteenth Amendment to equal protection under the laws and substantive due process protection to be free from punishment.”

Maricopa County Special Response Team officers, responding to several fights and a suspicion of contraband, had ordered a search of a 90-bed housing unit where Byrd was held. Once the prisoners were lined up, four to six at a time were told to remove all of their clothing except for their thin, pink boxer shorts. Cadets from the detention office training academy then searched the prisoners with training supervisors present.

The district court had previously granted judgment as a matter of law in favor of Sheriff Arpaio, finding the search was constitutionally valid. The court had also narrowed the issues to be presented to the jury as to whether the search methods constituted an unreasonable search, whether said acts deprived Byrd of due process of law, and whether the search “deprived [Byrd] of his right against unreasonable search by conducting a search not done for [an] identified security need.”

The Ninth Circuit noted in its en banc decision that “the district court’s formulation of these three issues completely eliminated the jury’s contemplation of whether the cross-gender search violated Byrd’s right under the Fourth Amendment to be free of unreasonable search.”

The Court of Appeals found that the MCSO’s contraband control policy distinguished between frisk searches of prisoners based on gender, as the policy stated “Female inmates will only be searched by female officers.” The Court also noted that the policy did not establish the reasonableness of the search under the circumstances Byrd experienced, where he was forced to remove his clothing for an aggressive frisk search to be conducted.

The appellate court then found that “no basis exists for concluding that the provisions of the Contraband Policy defeat Byrd’s equal protection claim.” The Court of Appeals also held that an equal protection claim based upon disparate treatment of male and female prisoners was viable, citing Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003) [PLN, March 2003, p.24]. The Ninth Circuit did agree that a substantive due process claim could not be sustained absent a showing of intent to punish.

According to the appellate court, “Whether a search is reasonable under the Fourth Amendment requires a case-by-case ‘balancing of the need for the particular search against the invasion of personal rights that the search entails...,’” citing Bell v. Wolfish, 441 U.S. 520 (1979). The required factors that courts must consider include: 1) the scope of the particular intrusion, 2) the manner in which the search is conducted, 3) the justification for initiating the search and 4) the place where the search is conducted.

The Court of Appeals also recognized that “the desire to shield one’s unclothed figure from [the] view of strangers ... of the opposite sex is implied by elementary self respect and personal dignity,” citing York v. Story, 324 F.2d 450 (9th Cir. 1963).

Additionally, the Ninth Circuit referenced standards adopted by the American Correctional Association, which state, “Written policy, procedure and practice provide that, except in emergency situations, visual inspections of inmate body cavities are conducted by officers of the same sex, in private....”

“Applying the Bell factors ... [and] giving credence to the compelling findings made by the [National Prison Rape Elimination] Commission ... we conclude that the cross-gender search of Byrd was unreasonable as a matter of law.... The scope of the intrusion in this case far exceeds searches we have previously sanctioned and weighs in favor of a finding of unreasonableness,” the appellate court wrote.

The Ninth Circuit noted that the First, Fourth and Seventh Circuits had reached similar conclusions, and reversed and remanded the case to the district court for further proceedings. See: Byrd v. Maricopa County Sheriff’s Department, 629 F.3d 1135 (9th Cir. 2011), cert. denied.

Related legal case

Byrd v. Maricopa County Sheriff’s Department


 

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