Reagan-Appointed Appeals Judge Suggests Sheriff Arpaio’s Pink Underwear Is Unconstitutional

The United States Court of Appeals for the Ninth Circuit handed down an opinion in a truly tragic case yesterday involving a mentally ill man named Eric Vogel who broke into another person’s home and yelled at police to kill him while also demanding to speak with the President of the United States. Vogel was tossed in a jail run by Sheriff Joe Arpaio, the Arizona sheriff currently under DOJ investigation for widespread legal violations, where he was ordered to wear the pink underwear Arpaio routinely requires inmates to don. After Vogel refused to do so, he was held down by four officers while a fifth stripped him naked and forced the pink undergarments on him. Vogel died about a week later, allegedly because the stress caused by this incident and his schizophrenia caused his heart to give out.

In an opinion by Reagan-appointed Judge John Noonan, the Ninth Circuit did not simply revive a lawsuit brought by Vogel’s survivors against Arpaio, it also suggested that Arpaio’s policy of choosing underwear intended to demean his inmates violates the Constitution:

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. . . .

As the Supreme Court has explained:

if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.” Conversely, if a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.

Unexplained and undefended, the dress-out in pink appears to be punishment without legal justification.

Because the question of the underwear’s constitutionality was not raised in the trial court, the Ninth Circuit did not hold outright that the pink garments are illegal. Nevertheless, they strongly hinted that the lower court should do so when it takes up the case again.