Cross-sex strip searches ruled unconstitutional

(01-05) 18:05 PST SAN FRANCISCO -- A female jail guard's strip search of a male inmate was a "humiliating event" that violated his rights, a divided federal appeals court in San Francisco ruled Wednesday.

Such searches of a prisoner by a guard of the opposite sex are unconstitutional except in an emergency, the Ninth U.S. Circuit Court of Appeals said in a 6-5 decision.

The ruling, in a case from Arizona, sets standards for nine Western states, including California. Dissenting judges said the court was improperly second-guessing jail officials.

The judges also disagreed on whether the guard - who checked the inmate's genitals and buttocks through virtually transparent underwear in an attempt to find drugs or weapons - had conducted a strip search. Dissenters said it was only a pat-down.

The inmate, Charles Byrd, was in Maricopa County's minimum-security jail awaiting trial in October 2004 when officials ordered searches of everyone in his unit after a series of fights.

Byrd was ordered to strip down to his shorts - colored pink, as required for all inmates by Joe Arpaio, the county's hard-line sheriff - and was searched by a female cadet from a training academy. She said she had taken no more than 20 seconds, while Byrd estimated the time at a minute. No contraband was found.

A three-judge appeals court panel ordered Byrd's civil rights suit dismissed in 2009, citing the jail's security needs and past rulings allowing female guards to pat down clothed male prisoners and observe naked male inmates.

But after the full appeals court ordered a rehearing, a majority of Wednesday's panel said cross-gender probes of intimate areas violate the constitutional ban on unreasonable searches.

"The right to be free from strip searches and degrading body inspections is ... basic to the concept of privacy," Judge Johnnie Rawlinson said in the majority opinion, quoting an earlier ruling.

No emergency existed, Rawlinson said, because male guards were present and could have conducted the search. She said the "humiliating event" was aggravated by the presence of onlookers, one of whom videotaped the search.

Dissenting Judge N. Randy Smith said the cadet had conducted the search professionally and, although it was "unsavory to our sensibilities," the action met legal standards.

"Prison officials know better than a panel of judges how to run a prison," he said.

Lawyers for the inmate and the county were unavailable for comment. The county could appeal the ruling to the U.S. Supreme Court.

The ruling can be viewed at links.sfgate.com/ZKUN.

E-mail Bob Egelko at begelko@sfchronicle.com.

This article appeared on page C - 3 of the San Francisco Chronicle