9th Circuit Questions Constitutionality of Sheriff Joe's Pink Underwear Policy
The 9th Circuit Court of Appeals questions the constitutionality of Sheriff Joe Arpaio's policy of forcing male inmates to wear pink underwear.
It's a sad story. The opinion is here. The inmate, Eric Vogel, a paranoid, delusional, psychotic detainee, never convicted of any crime, is dead. Here's what happened. [More...]
Eric Vogel was 36. He had been suffering from mental illness since he was in the second grade. His parents pulled him out of school and kept him at home. He rarely left the home -- on a few occasions he attended funerals for relatives. His house had blankets over the windows so no one could see in.
One day, he left the house for no apparent reason. Police were looking for a burglar in the neighborhood and saw him. He seemed like a possible suspect to them. Their stop of him escalated into them trying to physically control him. He yelled "Kill me" and then said he had to speak to the President. The officers said they could oblige him, and took him to the jail -- Sheriff Joe's Maricopa County jail. He was booked for assault on a police officer.
He was interviewed at the jail, placed on a psychiatric hold and put in an isolation cell with a big window where he was observable by all.
The next morning, he was assessed by a psychological counselor who determined he was "disoriented, paranoid, and psychotic." The counselor obtained an order transferring him to the jail's inpatient psychiatric unit.
That afternoon, jailers told him he had to "dress out" into prison garb which included pink underwear. He refused.
The “dress-out” prison officer summoned assistance — four other officers, each to hold an arm or a leg while Vogel’s clothes were changed. He was placed on the ground, stripped of all his clothes, and forced into the jail ensemble including the pink underwear. As the process went on, he shouted that he was being raped. The officers were aware that he was being transferred to the Psychiatric Unit. At the end of the “dress-out” Vogel was wheeled there in “a restraint chair.”
Vogel received treatment for a week and was then bailed out by his mother. On December 6, 2001, he was in his mother’s car when she had a minor traffic accident. He was told that there was a warrant for his arrest for spitting on an officer during the dress-out, so he might be returned to jail. Hearing that the police were coming, he ran four or five miles from the car. He died the next day. The cause, according to the Maricopa County Medical Examiner, was acute cardiac arrhythmia.
The family sued. Their expert (who the judge improperly kept from testifying) was of the opinion his death resulted from "cardiac arrhythmia intensified by an increase in schizophrenia and that that increase in schizophrenia was “likely” due to Vogel’s recollection of his treatment at the jail and his fear of returning to it. The appeals court ruled it was error to bar the testimony as hearsay:
Indisputably, Wagner could have testified at trial about the impact the jail incident had on Vogel, how his mood was following the incident, how disturbed he seemed, and even what he thought happened to him during the incident, all without putting inadmissible hearsay before the jury. None of this testimony would have been put forth in order to establish the truth of what he had said. Wagner proposed to testify about how extremely delusional Vogel was following the incident, and more importantly, the emotional impact the incident had on him, including how humiliated he now felt by the pink underwear. She was not asserting the truth of anything that Vogel said had happened to him in jail....Exclusion of this evidence was erroneous and fatally prejudicial.
Even the defense, in its reply brief, said "“No one disputes the general proposition that persons with severe schizophrenia have an increased incidence of the kind of arrhythmia that killed Vogel. Everyone agrees that Vogel’s underlying mental illness was the factor that induced the cardiac arrhythmia.” They said it couldn't be proven the pink underwear caused the increased schizophrenia. (The trial court wouldn't let the Vogel's family or its experts mention the underwear was pink. )
The court sent the case back to the trial court on a remand. Even though neither party had raised the issue of whether the pink underwear is always a violation of due process when applied to persons not convicted of a crime, it invited the trial court to do so.
It appears to us that this question is still open for exploration at trial on remand. Alternatively, the plaintiff may prevail on the narrower proposition that to apply this procedure
automatically to a man known by his jailors to be in need of psychiatric treatment was itself a violation of due process. Because of the evidentiary rulings of the trial court neither
issue was presented to the jury.
So what's wrong with the pink underwear in the court's view?
When a color of such symbolic significance is selected for jail underwear, it is difficult to believe that the choice of color was random. The County offers no penalogical reason, indeed no explanation whatsoever for its jail’s odd choice. Given the cultural context, it is a fair inference that the color is chosen to symbolize a loss of masculine identity and power, to stigmatize the male prisoners as feminine.
...Unexplained and undefended, the dress-out in pink appears to be punishment without legal justification.
As applied to a mentally ill arrestee like Vogel, the court says:
That Vogel was delusional does not mean that he was incapable of seeing. If you pricked him, he bled. Just as his eyes saw the pink, so his mind made the association of the color.
Sheriff Joe Arpaio is a disgrace. It's time for him to go.
Here's the Justice Department's finding that his office engages in unconstitutional policing, including racial profiling.
Specifically, we find that MCSO, through the actions of its deputies, supervisory staff, and command staff, engages in racial profiling of Latinos; unlawfully stops, detains, and arrests Latinos; and unlawfully retaliates against individuals who complain about or criticize MCSO's policies or practices.
He's facing a separate civil racial-profiling lawsuit in Arizona, in which this week he moved to exclude citizen complaints and letters from evidence at trial on grounds they were "racially or ethnically discriminatory or insensitive" and hearsay.
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