Byrd v. Maricopa County Sheriff's Dept.

• Decision Date: 05 January 2011
• Docket Number: No. 07-16640,07-16640
• Citation: 629 F.3d 1135
• Parties: Charles Edward BYRD, Plaintiff-Appellant, v. MARICOPA COUNTY SHERIFF'S DEPARTMENT; Joseph M. Arpaio; Kathleen O'Connell; Austin Peterson; Durango Jail, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

629 F.3d 1135

Charles Edward BYRD, Plaintiff-Appellant,

v.MARICOPA COUNTY SHERIFF'S DEPARTMENT; Joseph M. Arpaio; Kathleen O'Connell; Austin Peterson; Durango Jail, Defendants-Appellees.

No. 07-16640.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 15, 2009.

Filed Jan. 5, 2011.

Douglas B. Adler, Robert J. Herrington (argued), and Byron McLain, Skadden, Arps, Slate, Meagher & Flom LLP, Los Angeles, CA, for the plaintiff-appellant.

Eileen D. GilBride, Jones, Skelton & Hochuli, P.L.C., Phoenix, AZ, for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona, Neil V. Wake, District Judge, Presiding. D.C. No. CV-04-02701-NVW.

Before: ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, SIDNEY R. THOMAS, SUSAN P. GRABER, RAYMOND C. FISHER, RONALD M. GOULD, RICHARD A. PAEZ, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, CARLOS T. BEA and N. RANDY SMITH, Circuit Judges.

Opinion by Judge RAWLINSON; Partial Concurrence and Partial Dissent by Judge N.R. Smith.

OPINION

RAWLINSON, Circuit Judge:

Charles E. Byrd (Byrd), a pretrial detainee at the time, was subjected to a cross-gender strip search of his genital area. Because the strip search was unreasonable under the facts of this case, we reverse the district court's entry of judgment in favor of Defendants-Appellees Maricopa County Sheriff's Department and then-cadet Kathleen O'Connell (O'Connell).

I. BACKGROUND

While Byrd was a pretrial detainee in a minimum-security facility, Maricopa County jail officials ordered a search of Byrd's entire housing unit (approximately ninety inmates). It is undisputed that no emergency existed. Rather, the search was precipitated by the occurrence of several fights and a suspicion of contraband in the jail.

Maricopa County Special Response Team officers carrying pepper ball guns and tasers entered the facility. They ordered Byrd to remove all clothing except his boxer shorts, which were pink and made of a very thin material. Once the inmates in the housing unit formed a line, jail officials ordered four to six inmates at a time into the "day room," a common area, to be searched. Cadets from the detention officer training academy searched the inmates with training supervisors present. The cadets wore jeans and white t-shirts with their last names printed on the back. They were not otherwise identified.¹ Approximately twenty-five to thirty cadets and ten to fifteen uniformed detention officers were present in the day room. However, none of the detention officers participated in the searches. Atleast one person videotaped the cadets' search of the inmates.

Byrd was searched by a female cadet. He testified that, during the searches, male detention officers stood by watching. The record clearly reflects that only four inmates were searched at a time, by no means an overwhelming number. ² Although no factual finding was made on this point by either the judge or the jury, contrary to the dissent, it was by no means "undisputed ... that the County did not have sufficient numbers of male detention officers to conduct searches of male inmates without the assistance of female officers." Dissenting Opinion, p. 1151.

When Byrd entered the day room, the cadets were lined up and waiting. O'Connell ordered him to turn away from her, spread his feet and raise his arms above his head. Wearing latex rubber gloves, she pulled out Byrd's waistband a few inches and felt the waistband to make sure nothing was hidden in it. O'Connell did not look inside Byrd's boxer shorts.

Next, O'Connell placed one hand on Byrd's lower back holding the back part of the boxer shorts and, with her other hand, searched over his boxer shorts, his outer thigh from his hip to the bottom of the shorts. She then moved her hand from his outer thigh to the bottom of the shorts on his inner thigh and applied slight pressure to feel his inner thigh for contraband. Using the back of her hand, O'Connell moved Byrd's penis and scrotum out of the way applying slight pressure to search the area. O'Connell then searched the other side using the same technique.

Finally, O'Connell placed her hand at the bottom of Byrd's buttocks and ran her hand up to separate the cheeks while applying slight pressure, to search for contraband inside his anus. O'Connell estimated that the search lasted ten to twenty seconds, and Byrd estimated that the search took sixty seconds. After the search was completed, Byrd was directed to go to the opposite end of the day room, and sit facing the wall.

On the day of the search, Byrd filed an inmate grievance complaining that O'Connell "grab[bed] [his] balls and [his] scrotum." Byrd filed three additional inmate grievances to no avail. Byrd subsequently filed a pro se complaint naming Maricopa County Sheriff Joseph Arpaio (Arpaio), O'Connell, and Captain Austin Peterson (Peterson) as defendants. The complaint alleged that the search violated Byrd's right under the Fourth Amendment to be free from unreasonable searches, and Byrd's rights under the Fourteenth Amendment to equal protection of the laws and substantive due process protection to be free from punishment.³

The district court dismissed Byrd's equal protection claim but denied Maricopa County's motion for summary judgmenton Byrd's Fourth Amendment unreasonable search claim and his Fourteenth Amendment substantive due process claims. The court also appointed counsel to represent Byrd at trial.

Following the presentation of evidence, the district court granted judgment as a matter of law in favor of Peterson, O'Connell's supervisor, on the premise that Peterson was not connected to the search. Byrd does not challenge this ruling on appeal.

Additionally, the district court granted judgment as a matter of law in favor of Arpaio, finding that Byrd presented no evidence that Arpaio had instituted an unconstitutional policy or had personally participated in the search. The court also ruled as a matter of law that the search was constitutionally valid. Thus, with O'Connell as the only defendant, the district court narrowed the issues to be presented to the jury to these three: ⁴ (1) whether "O'Connell deprived [Byrd] of his right against unreasonable search by intentionally squeezing or kneading his penis or scrotum or improperly touching his anus through his underwear;" (2) whether "O'Connell deprived [Byrd] of due process of law" by "intentionally squeez[ing] or knead[ing] [Byrd's] penis or scrotum or improperly touch[ing] his anus through his underwear," with "[O'Connell's] actions inflict[ing] [wanton] pain on [Byrd];" and (3) whether "O'Connell deprived [Byrd] of his right against unreasonable search by conducting a search not done for [an] identified security need." ⁵

The district court's formulation of these three issues for the jury's consideration completely eliminated the jury's contemplation of whether the cross-gender strip search violated Byrd's right under the Fourth Amendment to be free from unreasonable search. Instead, the district court's formulation of the factual issues presented to the jury limited the determination of reasonableness under the Fourth Amendment to whether O'Connell "intentionally squeezed or kneaded [Byrd's] penis or scrotum or improperly touched his anus through his underwear." The jury found in favor of O'Connell on all counts.

In Byrd v. Maricopa County Sheriff's Dep't, 565 F.3d 1205 (9th Cir.2009), a divided panel of this court affirmed the district court's judgment. We subsequently granted rehearing en banc, 583 F.3d 673 (9th Cir.2009).

II. STANDARD OF REVIEW

We review an order granting or denying judgment as a matter of law de novo. See Mangum v. Action Collection Serv., Inc., 575 F.3d 935, 938 (9th Cir.2009). "Judgment as a matter of law is appropriate when the evidence presented at trial permits only one reasonable conclusion. That is, a motion for judgment as a matter of law is properly granted only if no reasonable juror could find in the non-moving party's favor." Id. at 938-39 (citations, alteration, and internal quotation marks omitted).

III. DISCUSSION

A. Substantive Due Process and Equal Protection Claims

Byrd did not strenuously press his substantive due process and equal protection claims during the en banc argument. In fact, Byrd's counsel candidly acknowledged that there was "a basis" for the panel's affirmance of the district court's decision to dismiss Byrd's equal protection claim for failure to state a claim. We review this basis for dismissal de novo, and may affirm the dismissal for any reason supported by the record. See Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.2008).

A peripheral equal protection issue was in the air because of the text of Maricopa County's Contraband Control Policy (Contraband Policy) distinguishing between male and female inmates when a frisk search is involved. According to the Contraband Policy, "[m]ale inmates may be frisk searched by either male or female officers[,]" but "[f]emale inmates will only be searched by female officers, absent exigent circumstances." However, there are two considerations that counsel against delving too deeply into the equal protection issue. The first is Byrd's concession of "a basis" for the ultimate dismissal of his equal protection claim. The second is the lack of a factual record to properly analyze the equal protection claim.

It is important to note that Byrd did not challenge the Contraband Policy on which Maricopa County relied in its opposition to Byrd's claims. Rather, Byrd's equal protection claim was couched generally in terms of the treatment of male inmates, without reference to the policy. In any event, the Contraband Policy does not establish the reasonableness of the search. The Contraband Policy expressly provides that "[s]trip searches will be conducted by an officer of the same sex as the inmate...." Under the Contraband Policy a strip search is defined as a "visual scan of the inmate's skin after all clothing has been...