Bill Mears, Appeals court: Cross-gender strip searches of inmates unconstitutional, CNN, January 6, 2011

An Arizona inmate has won an appeal of the civil rights lawsuit he filed against county jail officials after a female cadet conducted a search of the man's genital areas and buttocks.

A federal appeals court in San Francisco on Thursday concluded such cross-gender searches are "unreasonable" and unconstitutional, and held officials in Maricopa County liable for damages.

"The indignity of the non-emergency strip search conducted by an unidentified female cadet was compounded by the fact that there were onlookers, at least one of whom videotaped the humiliating event," wrote the en banc panel of 11 judges. "For these reasons, we conclude that the cross-gender strip search, as conducted in this case, was unreasonable."

Charles Byrd had been arrested in 2004 and held as a pretrial detainee at a minimum-security jail in Phoenix. Corrections officers had ordered a non-emergency search of the entire housing unit, where some 90 inmates were detained. Officials had justified the search because of recent fights and suspicions of contraband in the facility.

The prisoners were ordered to remove all their clothes except their state-issued pink boxer shorts. Byrd was among a group of four inmates taken to a separate room and searched by cadets from the detention officer training academy. Only cadets conducted those searches, not detention officers, even though 10 to 15 uniformed officers were present in the room.

Byrd claims the cadet -- wearing latex gloves -- conducted a search that lasted about a minute and included squeezing and kneading his private areas. The cadet testified the search lasted 10 to 20 seconds and was condcuted in accordance with accepted procedures. The inmate filed a grievance and later a lawsuit, claiming his due process rights and his right against unreasonable searches were violated.

Under the county's "contraband control policy," male inmates may be frisked by either male or female officers, but female inmates may only be searched by female officers. The county argued that the action taken with Byrd was not a strip search because his shorts were not removed, and that it prohibits cross-gender strip searches. But the appeals court concluded Byrd was subjected to a strip search.

A trial court jury had initially dismissed the claims.

The majority of the appeals court said it was "recognizing the privacy interest of inmates in their personal dignity" to be free from searches by someone from the opposite sex.

A civil rights group that had filed a legal brief supporting Byrd applauded the court's ruling.

"This is an important decision, as cross-gender searches of male detainees rarely are recognized as a serious problem , even though they are directly linked to sexual abuse," said Melissa Rothstein, senior program director of Just Detention International.

The county had no initial reaction to the ruling. It has the option of appealing it to the Supreme Court in coming months.

The case is Byrd v. Maricopa Sheriff's Department (07-16640).

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