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Ninth Circuit Questions Constitutionality of Requiring Jail Prisoners to Wear Pink Underwear

by Matt Clarke

On March 7, 2012, the Ninth Circuit Court of Appeals issued a decision in which it questioned the constitutionality of a Maricopa County, Arizona jail policy that requires male pretrial detainees who have not been convicted of a crime to wear pink underwear. The appellate court did not specifically rule on the issue, as it had not been presented to the court due to erroneous limitations on the evidence introduced at trial.

Eric Vogel, 36, suffered from mental illness that caused him to be delusional. He lived with his mother and, other than attending schools in his youth, had left home only two or three times as an adult to attend funerals. The windows of his house were covered with blankets and tape to prevent anyone from looking in.

On November 12, 2001, Vogel wandered away from his home. A police officer, responding to a report of a suspected burglar in the area, stopped him. He struggled with the officer, shouting “Kill me.” A second officer arrived and Vogel told him that he needed to see the president. The officers said they would take him to the president, but instead delivered him to the Maricopa County Jail where he was charged with assaulting a police officer.

During the booking process, a classification officer interviewed Vogel and placed a psychiatric hold on him. He was held overnight in an isolation cell with a large glass window that allowed staff and other prisoners to see him at all times.

A psychological counselor examined Vogel the next morning and, noting that he was disoriented, paranoid and psychotic, determined that he required psychiatric care and ordered him transferred to the jail’s inpatient psychiatric unit. That afternoon, guards told Vogel he must change into jail clothing, including pink underwear and pink slippers. He refused.

Four guards held Vogel down while a fifth forcibly changed his clothes. During this “dress-out” procedure, Vogel shouted for help and yelled that he was being raped. All of the guards involved in the dress-out knew he was being transferred to the inpatient psychiatric unit.

A week later, Vogel’s mother bailed him out. Several weeks after his release from jail, Vogel was a passenger in his mother’s car when she was in a minor accident. He had been told there was a warrant out for his arrest for spitting on a guard during the dress-out, and that he might be returned to jail. Informed that the police were on their way, he ran four or five miles to get away. He died of acute cardiac arrhythmia the next day. [See: PLN, Jan. 2011, p.16].

Vogel’s estate sued Maricopa County and Sheriff Joe Arpaio, alleging violations of Vogel’s federal civil rights and state torts. At trial, the district court refused to allow testimony by Vogel’s relatives that he believed he had been raped during the dress-out procedure and that the pink underwear was forced on him to feminize him and prepare him to be abused by guards during a sex party. The court also declined to allow expert testimony that could have linked the stress Vogel experienced during the dress-out to his fatal cardiac arrhythmia, and to show that people with schizophrenia were at increased risk of cardiac arrhythmia. The jury found in favor of the defendants and Vogel’s estate appealed.

The Ninth Circuit held that the district court’s rulings were erroneous under either the abuse of discretion or de novo standard of review and were highly prejudicial, cutting out the heart of the estate’s case. The testimony of Vogel’s relatives was not offered to prove that he had been raped, but rather to show that he thought he had been raped and what his emotional state was as a result of that belief. The experts, who were excluded because their opinions were based upon the excluded testimony, should have been permitted to testify, the Court of Appeals held.

The district court also erred in refusing to allow the estate a rebuttal argument for no reason and without informing the estate before closing arguments began. The Ninth Circuit further noted that requiring male prisoners who have not been convicted of a crime to wear pink underwear and slippers may be a violation of due process, as it could be seen as punishment because it has no apparent connection to the safety and security of the jail but rather appears to be intended to humiliate. If so, that practice would violate the due process clause by punishing people who have not been convicted of a crime. No ruling was made on this issue, however, because the erroneous evidentiary rulings by the lower court prevented it being developed at trial.

“When a color of such symbolic significance is selected for jail underwear, it is difficult to believe that the choice of color was random,” the appellate court wrote. “The County offers no penalogical reason, indeed no explanation whatsoever for its jail’s odd choice. Given the cultural context, it is a fair inference that the color is chosen to symbolize a loss of masculine identity and power, to stigmatize the male prisoners as feminine.”

The case was reversed and remanded to the district court, and the jury verdict and judgment were vacated. One panel judge filed a dissenting opinion that was longer than the majority opinion. See: Wagner v. County of Maricopa, 673 F.3d 977 (9th Cir. 2012), rehearing and rehearing en banc denied. The Ninth Circuit issued three amended rulings, most recently on February 13, 2013 [see: Wagner v. County of Maricopa, 706 F.3d 942 (9th Cir. 2013)], though the outcome remained the same. The U.S. Supreme Court denied the defendants’ petition for writ of certiorari in March 2013.

The case remains pending on remand.

Additional sources: Reuters, Chicago Tribune

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