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Ninth Circuit Orders New Trial in “Pink Underwear” Lawsuit; Case Settles for $240,000

On February 13, 2013, in an amended ruling, the Ninth Circuit Court of Appeals ordered a new trial for the estate of a deceased mentally ill prisoner, finding the district court had improperly excluded admissible testimony and a rebuttal closing argument.

Eric Vogel had been severely mentally ill since age six. He was removed from public school in the second grade and rarely left the family residence where he lived with his mother. On November 12, 2001, police confronted Vogel, 36, while they were investigating a burglary call in his neighborhood.

As police struggled to control him, Vogel shouted “kill me.” He calmed down when the officers said they would grant his wish to see the president.

Instead, charged with assaulting a police officer, Vogel was transported to a jail run by Maricopa County Sheriff Joseph “Joe” Arpaio. A jail classification officer placed a psychiatric hold on Vogel and a counselor concluded that he needed psychiatric care.

Vogel was placed in an isolation cell. The next morning he was disoriented, paranoid and psychotic. He told a staff member that he was at the World Trade Center, getting messages from satellites.

Later that day, jailers ordered Vogel to “dress out,” or change into jail clothes, including pink underwear. According to Sheriff Arpaio, he makes prisoners wear pink underwear because it reduces theft of the undergarments when they are released. His critics have contended that the underwear is simply a means of humiliating and emasculating prisoners.

When Vogel refused to change into the pink underwear, four guards restrained and stripped him, then forced him into the underwear and other jail clothing. Throughout that violent process, Vogel screamed that he was being gang raped – due to his mental illness, he thought being placed in pink underwear meant he was being raped. He was then wheeled to the jail’s psychiatric unit in a restraint chair; he remained in the unit for a week before his mother bailed him out.

Almost a month later, on December 6, 2001, Vogel and his mother were in a minor traffic accident and Vogel, fearful of the police due to his traumatic experience at the jail, attempted a four-to-five mile walk back to his house. He died the next day of acute cardiac arrhythmia.

Vogel’s estate filed suit in state court, alleging that his death was proximately caused by his treatment at the jail. “Essentially, Mr. Vogel died of a heart attack caused by the stress and intense trauma triggered by the November 12, 2001 beating at the County Jail,” the complaint stated, referring to the violent “dress out” process.

“The initial triggering problem is the agony he went through, which was forcibly being stripped naked [in jail], while he believed he was being raped, while he’s screaming he’s being raped,” said Joel Robbins, one of the attorneys representing Vogel’s family. “That created a real stress on him. When he believed he was going to be handcuffed and taken to the jail, he ran and died of a heart attack.”

The defendants removed the case to federal court, which precluded Vogel’s family members from testifying about events at the jail – including Vogel being forced to wear pink underwear and his belief that he was being gang raped. The court also prohibited the estate’s expert from testifying that Vogel’s death was caused, in part, by the jail guards forcibly changing his clothing and traumatizing him. The case went to trial and the jury predictably returned a verdict for the defendants. [See: PLN, Feb. 2014, p.46; Jan. 2011, p.16].

On appeal, the Ninth Circuit reversed and remanded for a new trial, finding the district court had improperly excluded testimony about Vogel’s state of mind related to his treatment at the jail, the impact of the forcible clothing change on his mental state, and his fear that the pink underwear meant he was being gang raped. The district court had also abused its discretion in denying a rebuttal closing argument by Vogel’s attorneys. One circuit judge issued a dissenting opinion. See: Wagner v. County of Maricopa, 706 F.3d 942 (9th Cir. 2013), amended, 747 F.3d 1048 (9th Cir. 2013), cert. denied.

Following remand, and before a retrial was held, the case settled on September 10, 2014 with the Maricopa County Board of Supervisors agreeing to pay $240,000 to Vogel’s estate.

“We’re happy it was resolved and we hope that the Sheriff’s Office, rather than spending money like this in the future, changes the way they do business,” Robbins stated. “Sometimes, it’s better to bring medication to the mentally ill person than to try to force the mentally ill person to do things they just can’t do. This is not like some kind of highly technical requirement that no one would understand. This is just basic common sense and human decency.”

Arpaio, self-described as “America’s Toughest Sheriff,” is also one of the nation’s most abusive lawmen. According to an April 3, 2015 news report, Arpaio has cost Maricopa County almost $200 million over the past 15 years as a result of “inmate abuses and misuse of funds in the jail system he oversees.”

PLN has reported numerous prisoner deaths and injuries in Arpaio’s jails that resulted in multi-million dollar verdicts and settlements. He has also been accused of misapplying funds intended to improve jail facilities, targeting political rivals with baseless investigations, racially profiling Hispanics and pursuing personal vendettas. Arpaio’s deputies even arrested the editors of the Phoenix New Times – a publication that regularly criticizes the Maricopa County Sheriff’s Office – on spurious charges, resulting in a $3.75 million settlement in December 2013. [See: PLN, May 2012, p.18; Aug. 2008, p.12].

In April 2015, Maricopa County agreed to pay $3.5 million to settle a lawsuit filed by the family of a developmentally disabled girl who was sexually abused by her uncle. The sheriff’s office had failed to investigate the case even though there was DNA evidence of the crime; as a result, the abuser remained free for five years and continued to molest the victim. That case was one of over 400 sexual abuse or assault cases mishandled by the sheriff’s office.

Arpaio testified in federal court in April 2015, trying to avoid a contempt order in a lawsuit challenging the systemic racial profiling of Hispanics by the sheriff’s office. Arpaio admitted he had secretly investigated the wife of the federal judge hearing the case, and asked the Ninth Circuit Court of Appeals to have the judge disqualified. On July 24, 2015, the federal district court ordered U.S. Marshals to seize records from the sheriff’s office that had not been turned over to a court-appointed monitor. The monitor, Robert Warshaw, said he was informed that the records were going to be destroyed and that sheriff’s officials were told they shouldn’t “voluntarily reveal” the existence of the records.

The contempt proceedings against Arpaio have been temporarily stayed, but hopefully will resume soon.

Additional sources: Arizona Republic,, Phoenix New Times,


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Wagner v. County of Maricopa

Wagner v. County of Maricopa