LOS ANGELES, March 7 (Reuters) - Firebrand Arizona
sheriff Joe Arpaio's requirement that jail inmates wear pink
underwear may be unconstitutional when applied to prisoners who
have not been convicted of a crime, a federal appeals court said
Two members of a three-judge appeal panel raised the issue
while ruling for the majority in a related lawsuit against
Arpaio and Maricopa County. But they stopped short of striking
down the pink-underwear practice, saying it had not been
formally challenged by plaintiffs in the case.
Pink underwear for male jail inmates is famously part of the
tough stance against crime taken by Arpaio, the sheriff of
Maricopa County who has come under fire by the U.S. Justice Department for a crackdown on illegal immigration that the
government said involved racial profiling.
"Unexplained and undefended, the dress-out in pink appears
to be punishment without legal justification," 9th U.S. Circuit Court of Appeals Judge John Noonan wrote for the majority.
Noonan said the U.S. Supreme Court allowed jail officials to
use unpleasant measures so long as such moves served a
legitimate purpose, such as the safety of the institution.
But the high court had ruled that arbitrary or purposeless
requirements may be construed as punishments, which could not be
imposed on people who had not been found guilty of a crime.
"It appears to us that this question is still open for
exploration at trial on remand," Noonan wrote of the pink
underwear practice in a 12-page opinion.
"The parties have not raised the question of whether the
dress-out procedure is in every case a violation of due process
when applied to persons convicted of no crime."
The opinion came just months after the Justice Department
found that Arpaio and his deputies had violated civil rights
laws by racially profiling Latinos and making unlawful arrests
in an attempt to crack down on illegal immigration.
A spokesperson for the Maricopa County Sheriff's office
could not immediately be reached for comment on the matter.
The appeals court took up the pink-underwear policy in
reinstating a lawsuit against Arpaio and Maricopa County by the
estate of a mentally ill man who died of an acute cardiac
arrhythmia in 2001, weeks after being forcibly dressed in the
underwear by jail officers.
Attorneys for Eric Vogel's estate did not argue that the
practice itself was unconstitutional but said guards who were
aware of his mental condition should not have subjected him to
the dress-out procedure.
A jury returned a verdict on behalf of the defendants in the
case after the trial judge limited testimony by Vogel's mother
and sister recounting his state of mind following the jail
incident, a ruling that the majority of the 9th Circuit panel
said was erroneous and prejudicial.
(Reporting by Dan Whitcomb)
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