On 6-5 Vote, Circuit Says Cross-Gender Frisking of Prisoner Crossed the Line

A female cadet’s search of a nearly nude male inmate at an Arizona lockup violated his Fourth Amendment right to be free of unreasonable searches, the Ninth Circuit U.S. Court of Appeals said today in a split decision.

In the en banc opinion, the majority, made up of a bloc of mostly liberal judges, focused on the cross-gender aspect of the search, noting the female jailer twice touched the inmate’s penis, scrotum and anus through his underwear during the nonemergency search.

The suit, one of many aimed at the controversial policies under Maricopa County Sheriff Joe Arpaio, was on behalf of Charles Byrd, then a pretrial detainee at the minimum security Durango jail. During a facility wide shakedown, Byrd was ordered to strip down to his county-issued — and now infamous — skimpy, pink boxer shorts, and was patted down by a jailer-in-training in a room with other inmates, guards and cadets.

“In this case, the indignity of the nonemergency strip search conducted by an unidentified female cadet was compounded by the fact there were onlookers, at least one of whom videotaped the humiliating event,” wrote Judge Johnnie Rawlinson, who was joined by Judges Mary Schroeder, Sidney Thomas, Susan Graber, Raymond Fisher and Richard Paez.

Five judges dissented, saying that considering the deference owed to prison officials, the jury’s fact finding and court precedent, the search — which they call a pat down — was reasonable.

“It is axiomatic that prison officials know better than a panel of judges how to run a prison,” wrote Judge N. Randy Smith. He was joined by Chief Judge Alex Kozinski and Judges Ronald Gould, Richard Tallman and Carlos Bea.

Regarding the manner of the search, the mostly conservative dissenters deemed it professional, swift and appropriate, with no intentional squeezing or kneading of Byrd’s penis or scrotum and conducted for an identified security need.

“Not lightly do I find reasonable a female officer’s probing search of a male detainee wearing only thin boxer shorts,” Smith wrote. “Nevertheless, I believe and the precedent and the facts compel this result, unsavory to our sensibilities though that result may be.”

The ruling overturns a panel’s 2-1 decision that upheld the constitutionality of the search.

Melissa Rothstein, a lawyer for Just Detention International, an amicus curiae in the case, noted the court’s recognition of a link between cross-gender searches and sexual abuse in jails and that the link is just as relevant for male inmates as it is for females.

“Hopefully, this court’s opinion will result in more systems limiting the use of cross-gender searches, even in their men’s facilities, and in greater scrutiny of these searches when they do occur,” she said.

Eileen GilBride, of Jones, Skelton & Hochuli in Phoenix, who represented the county and jailer Kathleen O’Connell, was out of the office and did not immediately respond to questions.

Robert Herrington, then at Skadden, Arps, Slate, Meagher & Flom, argued the case on behalf of Byrd.

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