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Published December 12, 2016
A Circuit Court of Appeals has questioned the legal justification of having inmates wear pink underwear in Arizona's largest county, a hallmark of America's self proclaimed toughest sheriff - Joe Arpaio, as the court noted that it was fair to infer the underwear color was meant to symbolize the loss of prisoners' masculinity.
The underwear has become the target of criticism by the 9th U.S. Circuit Court of Appeals considering the case of a mentally ill man who mistakenly viewed officers' efforts to forcibly clothe him as a rape attempt.
Unexplained and undefended, the dress-out in pink appears to be punishment without legal justification.
The 9th U.S. Circuit Court of Appeals ruled Wednesday that strip searches and other steps may be necessary for jail security, but questioned the legal justification in one particular case for Maricopa County Sheriff Joe Arpaio's policy of dressing an inmate in pink undergarments.
"Unexplained and undefended, the dress-out in pink appears to be punishment without legal justification," the court said in its majority decision. It also noted earlier in the ruling that it's fair to infer that the selection of pink as the underwear color was meant to symbolize the loss of prisoners' masculinity.
The court pointed out, however, that no attorney on either side of the case questioned whether the dressing of prisoners in Arpaio's jails is, in every case, a due process violation when applied to inmates who are not convicted of a crime.
Early on in his nearly 20-year tenure as sheriff, Arpaio won points with voters for making inmates wear pink underwear, housing them in canvas tents during Phoenix's triple-digit summer heat, and dressing them in old-time striped jail uniforms.
Arpaio has joked about the popularity of the pink underwear issue with voters. In January 2010, he told The Associated Press that "you know what my joke is: I can get elected on pink underwear. I don't need this illegal immigration to get elected."
The sheriff said Thursday that he plans to ask for a larger panel of the appeals court to reconsider the case. "What do they do next — take away the striped uniforms?" Arpaio said.
In its 2-1 ruling, the appeals court threw out a 2010 jury verdict in favor of Arpaio's office and ordered a new trial in a lawsuit brought by the estate of Eric Vogel.
Vogel refused to get out of his street clothes after he was arrested in November 2001 for assaulting an officer who was responding to a burglary call. A group of officers in Arpaio's jail stripped Vogel and put him in pink underwear and other prison clothing as he shouted that he was being raped.
The lawyer for Vogel's estate has said the officers didn't sexually assault Vogel and that his client didn't suffer injuries at the jail.
Vogel, who was determined by a counselor to be paranoid and psychotic, died less than a month later, after he and his mother got in a minor car accident. When the officer handling the accident told Vogel that he might be jailed on a warrant stemming from his previous struggle to wear jail clothes, Vogel ran several miles from the scene back to his home. He died the next day, and medical examiners concluded the cause was cardiac arrhythmia.
Vogel's attorney, who appealed the 2010 verdict, had been barred by a lower-court judge from calling Vogel's sister to testify about what he told her about the jail incident and his sense of humiliation stemming from the underwear.
Joel Robbins, the attorney representing Vogel's estate, said the use of pink underwear has long been a source of amusement for some members of the public. But it's not funny when a mentally ill man who believes he is going to be raped has officers forcing pink underwear on him, Robbins said.
"That's where it loses its humor value," Robbins said.
Jack MacIntyre, a deputy chief for Arpaio, said the court's decision had serious flaws. The sheriff's office started dyeing the jail-issued underwear in the 1990s as a way to discourage inmates from taking home the undergarments after they were released from custody.
The Arpaio aide rejected the appeals court's note about the underwear's color to "stigmatize the male prisoners as feminine."
"That seems like a thing made up by a law clerk from the East Coast," MacIntyre said.
Robbins had argued the testimony of Vogel's sister wasn't meant to provide details about the jail incident. It was intended to show her brother's state of mind and establish the impact of the incident, he said.
In the dissenting opinion, Judge N.R. Smith wrote that the testimony fell outside of the court's exception to hearsay rules. He said his colleagues on the appeals court erroneously concluded the sister's testimony wasn't offered to prove what Vogel had asserted.
Based on reporting by the Associated Press.