Cross-Gender Strip Search Was Wrong, Court Rules

PHOENIX (CN) - A male pretrial detainee was subjected to an unreasonable strip search at a Maricopa County jail by a female cadet, the 9th Circuit ruled. Except in cases of emergency, cross-gender strip searches violate inmates' Fourth Amendment right to be free from unreasonable searches.

Charles Byrd had sued Maricopa County Sheriff Joe Arpaio; the female cadet, Kathleen O'Connell; and Captain Austin Peterson, O'Connell's supervisor, for civil rights violations under the Fourth and 14th amendments.

The trial court dismissed Arpaio and Peterson, finding that they had not participated in the search, and the jury ruled in favor of O'Connell on all counts.

Jail officials ordered the search of Byrd and about 90 other inmates in his housing unit after several fights occurred and contraband was suspected in the jail.

Byrd was ordered to remove all his clothing, except for the pink, thin boxer shorts he was wearing, and enter a common area with a group of other inmates. Cadets from the detention officer training academy were waiting in the room to search the inmates in the presence of their training supervisors.

"O'Connell touched Byrd's inner and outer thighs, buttocks and genital area with her latex-gloved hand through very thin boxer shorts," the ruling claims. "She moved his penis and scrotum in the process of conducting the search."

The cadets wore jeans and white T-shirts with their last names printed on the back, but did not have any other forms of identification. Byrd claimed that male detention officers stood by watching the search, but did not participate, and at least one person videotaped the search of the inmates.

On appeal, the three-judge panel in San Francisco ruled that the district court "eliminated the jury's contemplation of whether the cross-gender strip search violated Byrd's right under the Fourth Amendment to be free from unreasonable search."

"Instead, the district court's formulation of the factual issues presented to the jury limited the determination of reasonableness under the Fourth Amendment to whether O'Connell 'intentionally squeezed or kneaded [Byrd's] penis or scrotum or improperly touched his anus through his underwear,'" Judge Johnnie Rawlinson wrote for the panel on Wednesday.

Cross-gender supervision was determined to have its benefits by the National Prison Rape Elimination Commission, the ruling states, but ultimately the commission determined that the "extraordinarily intrusive" searches should be prohibited to prevent abuse among cross-gender, nonmedical staff, except in the case of emergency.

Maricopa County's own policy prohibits cross-gender strip searches, but it "painstakingly attempted to establish that the cross-gender search Byrd underwent was not a strip search," and was actually a pat-down search, Rawlinson wrote.

The 9th Circuit defines pat-down searches as searches "done briefly and while the inmates are fully clothed, and thus do not involve intimate contact with the inmates' bodies."

Byrd was only wearing boxers at the time, and the female officer twice touched his penis and scrotum, and searched inside his anus. There also was "by no means an overwhelming number" of inmates searched at a time, and other than her name printed on the back of the T-shirt, O'Connell was unidentified, the ruling states.

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