Byrd v. Maricopa County Sheriff's Department

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES EDWARD BYRD, 

Plaintiff-Appellant,

v. No. 07-16640

MARICOPA COUNTY SHERIFF’S  D.C. No.

CV-04-02701-NVW

DEPARTMENT; JOSEPH M. ARPAIO;

KATHLEEN O’CONNELL; AUSTIN OPINION

PETERSON; DURANGO JAIL,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Arizona

Neil V. Wake, District Judge, Presiding

Argued and Submitted

December 15, 2009—San Francisco, California

Filed January 5, 2011

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

365

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 369

COUNSEL

Douglas B. Adler, Robert J. Herrington (argued), and Byron

McLain, Skadden, Arps, Slate, Meagher & Flom LLP, Los

Angeles, California, for the plaintiff-appellant.

Eileen D. GilBride, Jones, Skelton & Hochuli, P.L.C., Phoe-

nix, Arizona, for the defendants-appellees.

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

370 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

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 sus-

picion 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 acad-

emy 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. At least one person videotaped the cadets’ search of

the inmates.

1

This fact is important because of our undisputed recognition of the

“feelings of humiliation and degradation associated with forcibly exposing

one’s nude body to strangers . . .” Way v. County of Ventura, 445 F.3d

1157, 1160 (9th Cir. 2006), quoting Thompson v. City of Los Angeles, 885

F.2d 1439, 1446 (9th Cir. 1989); see also Hayes v. Marriott, 70 F.3d 1144,

1147 (10th Cir. 1995). After years of litigation, the dissent in hindsight

declares that “it was surely apparent that the cadets were present in an

official capacity.” Dissenting Opinion, p. 401. n.5. However, that appar-

entness is not reflected in the record.

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 371

Byrd was searched by a female cadet. He testified that, dur-

ing 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.” Dis-

senting Opinion, pp. 397-98.

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 hid-

den 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 contra-

band. 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.

2

The dissent takes issue with Byrd’s testimony that male officers were

standing idly by. See Dissenting Opinion, p. 397 n.4. However, this is pre-

cisely the type of evidence considered by the Fifth Circuit in Moore v.

Carwell, 168 F.3d 234, 237 (5th Cir. 1999) (giving credence to Plaintiff’s

contention that male officers were present during the search, thereby sug-

gesting that male officers were available to conduct the searches). Indeed,

the referenced testimony of Officer Peterson does not specifically address

the availability of the male officers to conduct the searches in question.

See id.

372 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

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 sec-

onds. 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 judgment

on 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.

3

Byrd’s complaint actually referenced his Eighth Amendment right to

be free from cruel and unusual punishment. The district court properly

recharacterized this claim as a substantive due process claim under the

Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 & n.16

(1979) (explaining that the Due Process Clause applies when “considering

the claims of pretrial detainees”).

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 373

Additionally, the district court granted judgment as a matter

of law in favor of Arpaio, finding that Byrd presented no evi-

dence 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 contem-

plation 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 determi-

nation of reasonableness under the Fourth Amendment to

whether O’Connell “intentionally squeezed or kneaded

[Byrd’s] penis or scrotum or improperly touched his anus

4

Because O’Connell was acting in her capacity as a cadet with the Mari-

copa County Sheriff’s Office, Maricopa County remained a putative

defendant. See Palomar Pomerado Health Sys. v. Belshe, 180 F.3d 1104,

1108 (9th Cir. 1999) (“The general rule is that relief sought nominally

against a state officer is in fact against the sovereign if the decree would

operate against the latter.”) (citations, alterations, and internal quotation

marks omitted).

5

Because this description is virtually identical to that articulated by our

colleagues in dissent, see Dissenting Opinion, p. 393, we are puzzled by

the accusation that we “paint[ed] the facts differently on appeal.” Id.

374 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

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 dis-

trict 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 mat-

ter 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 per-

mits only one reasonable conclusion. That is, a motion for

judgment as a matter of law is properly granted only if no rea-

sonable 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 deci-

sion 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

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 375

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 circum-

stances.” 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 dis-

missal of his equal protection claim. The second is the lack of

a factual record to properly analyze the equal protection

claim.

[1] 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 removed.” Maricopa County seizes on

this definition to argue that the search performed on Byrd was

not a strip search because Byrd was wearing very thin boxer

shorts. Rather, Maricopa County maintains that Byrd was sub-

jected to a frisk search.

[2] The Contraband Policy defines a frisk search as

“[c]arefully examining an inmate by inspecting his clothing,

and feeling the contours of his clothed body . . .” (emphasis

added). The Contraband Policy provides that “[t]he inmate’s

shoes and socks may be removed . . .” However, no mention

is made of the removal of other clothing as part of a frisk

search. In sum, the search was not properly conducted as a

strip search under the Contraband Policy because it was not

conducted by staff of the same gender, and it was not limited

to a visual inspection of Byrd’s body. The search was not

properly conducted as a frisk search under the Contraband

376 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

Policy because Byrd was not clothed as contemplated in the

policy. The particular search conducted in this case simply

does not fall within the contours of the Contraband Policy.

Therefore, no basis exists for concluding that the provisions

of the Contraband Policy defeat Byrd’s equal protection

claim.

[3] The district court dismissed Byrd’s equal protection

claim as one premised on the disparate treatment of prisoners

and found, without acknowledging the gender element, that

prisoners are not a suspect class. However, given the exis-

tence of a facially discriminatory contraband policy, an equal

protection claim based on the disparate treatment of male and

female prisoners was viable. See Wyatt v. Terhune, 315 F.3d

1108, 1111-12 (9th Cir. 2003) (acknowledging a male

inmate’s equal protection claim based on prison grooming

regulations that did not apply to female inmates); Jeldness v.

Pearce, 30 F.3d 1220, 1231 (9th Cir. 1994) (recognizing dis-

parate treatment of male and female prisoners, but declining

to reach the equal protection question); Roubideaux v. N.D.

Dep’t of Corr. & Rehab., 570 F.3d 966, 974 (8th Cir. 2009)

(applying heightened review standard to statutes containing a

“gender-based classification on their face”); Pitts v. Thorn-

burgh, 866 F.2d 1450, 1453 (D.C. Cir. 1989) (same for prison

policies).

[4] Although the Contraband Policy was part of the record

before the district court, Byrd’s complaint made no reference

to it and his equal protection allegation largely repeated the

facts that formed the basis of his other claims. Even constru-

ing Byrd’s pro se complaint liberally, the allegations failed to

state an equal protection claim because they asserted only

allegedly harmful treatment and mentioned nothing about dis-

parate treatment, much less about the specific jail policy or

gender classification in general. See Weilburg v. Shapiro, 488

F.3d 1202, 1205 (9th Cir. 2007) (“Pro se complaints are to be

construed liberally . . .”); see also Pena v. Gardner, 976 F.2d

469, 471 (9th Cir. 1992) as amended (noting that “a liberal

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 377

interpretation of a pro se civil rights complaint may not sup-

ply essential elements of the claim that were not initially pled

. . .”). For that reason, we do not take issue with the ultimate

ruling dismissing Byrd’s equal protection claim.

[5] As for the substantive due process claim, Byrd failed

to allege or produce evidence that O’Connell or Arpaio

expressed an intent to punish Byrd or that the search was

unrelated to a “legitimate governmental objective.” Bell, 441

U.S. at 538-39 (explaining that the critical inquiry is “whether

particular restrictions and conditions accompanying pretrial

detention amount to punishment in the constitutional sense of

that word” and that, “if a particular condition or restriction of

pretrial detention is reasonably related to a legitimate govern-

mental objective, it does not, without more, amount to punish-

ment”) (footnote reference and internal quotation marks

omitted).

[6] In the alternative, punitive intent may be inferred. See

id. (“[I]f 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 be constitutionally inflicted

upon detainees qua detainees.” (citation and footnote omit-

ted)). It is undisputed that the search in this case was

prompted by several recent fights and suspicion of contra-

band. Because a search premised on such security concerns is

reasonably related to legitimate goals of detention officials,

see, e.g., Michenfelder v. Sumner, 860 F.2d 328, 333 (9th Cir.

1988), no basis exists to draw an inference of intent to punish

Byrd. In the absence of evidence of an intent to punish, or evi-

dence that Maricopa’s actions were unrelated to a “legitimate

governmental objective,” the district court properly granted

judgment as a matter of law in favor of O’Connell and Arpaio

on Byrd’s Fourteenth Amendment substantive due process

claim. Bell, 441 U.S. at 539 n.20 (“[I]n the absence of a show-

ing of intent to punish, a court must look to see if a particular

restriction or condition, which may on its face appear to be

378 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

punishment, is instead but an incident of a legitimate nonpuni-

tive governmental objective.”) (citations omitted).

B. Unreasonable Search and Seizure

[7] The district court granted judgment as a matter of law

in favor of O’Connell on the issue of whether the cross-

gender strip search violated Byrd’s right under the Fourth

Amendment to be free from unreasonable searches. We

review this decision de novo, keeping in mind that

“[j]udgment as a matter of law is appropriate when the evi-

dence presented at trial presents only one reasonable conclu-

sion. . .” Mangum, 575 F.3d at 938 (citation and internal

quotation marks omitted). In the context of this case, judg-

ment as a matter of law would be appropriate only if the evi-

dence presented at trial led inevitably to the conclusion that

the cross-gender strip search was reasonable. Whether a

search is reasonable under the Fourth Amendment requires a

case-by-case “balancing of the need for the particular search

against the invasion of personal rights that the search entails

. . .” Bell, 441 U.S. at 559. The required factors for courts to

consider include: (1) “the scope of the particular intrusion,”

(2) “the manner in which it is conducted,” (3) “the justifica-

tion for initiating it,” and (4) “the place in which it is conduct-

ed.” Id. (citations omitted).6

We approach this issue by reiterating our longstanding rec-

ognition that “[t]he desire to shield one’s unclothed figure

from [the] view of strangers, and particularly strangers of the

opposite sex, is impelled by elementary self-respect and per-

sonal dignity.” York v. Story, 324 F.2d 450, 455 (9th Cir.

1963); see also Michenfelder, 860 F.2d at 333 (same); Grum-

6

Because Byrd did not challenge the constitutionality of the Contraband

Policy, and because the district court focused on the facts of the actual

search conducted rather than on the provisions of the Contraband Policy,

we apply the Bell factors rather than those articulated in Turner v. Safley,

482 U.S. 78, 81 (1987), which addresses inmate challenges to regulations.

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 379

mett v. Rushen, 779 F.2d 491, 496 (9th Cir. 1985) (distin-

guishing cross-gender searches that “are done briefly and

while the inmates are fully clothed, and thus do not involve

intimate contact with the inmates’ bodies”) (emphasis added).

It is not surprising that a connection has been made between

cross-gender searches and the level of sexual impropriety

between inmates and corrections personnel. See, e.g., Nicho-

las D. Kristof, Op-Ed., Kids in Crisis (Behind Bars), N.Y.

TIMES, Jan. 28, 2010, at A33 (discussing a “stunning new Jus-

tice Department special report” finding that cross-gender

assignments in prisons foster abuse of inmates by male and

female officers); Connie Rice and Pat Nolan, Op-Ed, Policing

Prisons, L.A. TIMES, Apr. 5, 2010, at A13 (citing to the June,

2009, National Prison Rape Elimination Commission Report

(Commission Report)).

In the preface to the Commission Report, The Honorable

Reggie B. Walton, Chair of the Commission, noted that the

Commission was “challenged to examine problems that we

wish did not exist and confronted with accounts of sexual

abuse that shocked and saddened us . . .” Commission Report

at vi. The Commission explicitly recognized that “searches

carried out by staff of the opposite gender heighten the poten-

tial for abuse . . . . In the Commission’s view, the risks are

present whether the officers are male or female.” Id. at 62

(footnote reference omitted).7

7

The dissent denigrates our citation to the findings of this esteemed

body of experts, accusing us of failing to defer to the judgment of the

prison officials. See Dissenting Opinion, p. 393 n.2. Our response is two-

fold: (1) There is nothing nefarious or unusual about citing to secondary

sources to illuminate our analysis, see, e.g., United States v. Weber, 451

F.3d 552, 561 n.13 (9th Cir. 2006) (listing cases relying on secondary

sources to explain the court’s analysis); and (2) the Maricopa County offi-

cials never exercised their “collective wisdom” in this case to decide that

cross-gender strip searches were in order. In fact, the officials denied that

any strip search was ever conducted. It would be strange indeed if the offi-

cials in their “collective wisdom” ordered cross-gender strip searches in

this instance when the “collective wisdom” memorialized in the written

policy expressly prohibits cross-gender strip searches.

380 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

Although the Commission acknowledged that cross-gender

supervision “can have benefits,” it nevertheless determined

that “[t]o prevent abuse, . . . the standard on this subject

strictly prohibits non-medical staff from conducting cross-

gender strip and visual body cavity searches—except in the

case of emergency—because of their extraordinarily intrusive

nature.” Id. at 63.

The Commission’s findings are consistent with the stan-

dards adopted by the American Correctional Association, the

accrediting body for adult correctional facilities. See Stan-

dards For Adult Correctional Institutions (2003).

Section 4-4194 addresses cross-gender strip searches, artic-

ulating the standard as follows:

Written policy, procedure and practice provide that,

except in emergency situations, visual inspections of

inmate body cavities are conducted by officers of the

same sex, in private . . .

Id. at 53.

[8] Applying the Bell factors in the context of our prece-

dent recognizing the privacy interest of inmates in their per-

sonal dignity, giving credence to the compelling findings

made by the Commission, and acknowledging the applicable

accrediting standards, we conclude that the cross-gender strip

search of Byrd was unreasonable as a matter of law.

O’Connell touched Byrd’s inner and outer thighs, buttocks,

and genital area with her latex-gloved hand through very thin

boxer shorts. She moved his penis and scrotum in the process

of conducting the search. The scope of this intrusion totally

thwarted any desire on Byrd’s part to “shield [his] unclothed

figure from [the] view of strangers . . . of the opposite sex .

. .” York, 324 F.2d at 455. The scope of the intrusion in this

case far exceeds searches we have previously sanctioned and

weighs in favor of a finding of unreasonableness.

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 381

In Grummett, 779 F.2d at 493, 495, we upheld a system of

assigning female officers within a correctional facility such

that they occasionally viewed male inmates in various states

of undress and regularly conducted routine pat-down searches

of inmates that did not involve intimate contact with the

inmate’s body. We expressly noted that “female officers

[were] not assigned positions in which they conduct or

observe strip or body cavity searches.” Id. at 495 (emphases

added). Although the dissent characterizes the search of Byrd

as a pat-down search, see Dissenting Opinion, p. 399, we

offered a different description of a pat-down search in Grum-

mett. There, we defined pat-down searches as searches “done

briefly and while the inmates are fully clothed, and thus do

not involve intimate contact with the inmates’ bodies.” Grum-

mett, 779 F.2d at 496. In contrast, Byrd was barely clothed at

all, and it is undisputed that the female officer twice touched

Byrd’s penis and scrotum, and searched inside his anus.

In Michenfelder, 860 F.2d at 334, we reiterated that “infre-

quent and casual observation, or observation at [a] distance,

. . . are not so degrading as to warrant court interference” (cit-

ing Grummett, 779 F.2d at 494-95) (parallel citations omit-

ted). Our holding in Michenfelder offers no support for a

cross-gender strip search. If the panel in Michenfelder

intended to approve cross-gender strip searches, it would have

distinguished Grummett, rather than citing the case in support

of the panel’s ruling.

None of the other cases cited by our colleagues, see Dis-

senting Opinion, p. 395-96, purports to approve cross-gender

strip searches in the absence of an emergency. Indeed, neither

Bell, 441 U.S. at 559-60; Rickman v. Avaniti, 854 F.2d 327,

328 (9th Cir. 1988); nor Thompson v. Souza, 111 F.3d 694,

700 (9th Cir. 1997), involved cross-gender strip searches, the

issue we address in this case.

[9] The manner in which the search was conducted weighs

in favor of a determination of unreasonableness. Byrd was

382 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

searched by a female cadet who was dressed in jeans and a

white t-shirt. Other than the name printed on the back of the

t-shirt, the officer who conducted Byrd’s search was unidenti-

fied. Ten to fifteen non-participating officers watched the

strip search, and at least one person videotaped the search.

Although the dissent relies on the fact that the search was

conducted “professionally,” see Dissenting Opinion, p. 396,

we have consistently recognized the “ ‘frightening and humil-

iating’ invasion” occasioned by a strip search, “even when

conducted ‘with all due courtesy.’ ” Way, 445 F.3d at 1160,

quoting Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 1984)

(per curiam). Furthermore, the dissent’s reliance on the jury’s

finding that the manner of O’Connell’s search was appropri-

ate because O’Connell “did not intentionally squeeze or knead

Byrd’s penis or scrotum or improperly touch his anus through

his boxer shorts,” Dissenting Opinion, p. 397, ignores the dis-

trict court’s ruling that the cross-gender aspect of the search

was constitutional as a matter of law. Thus, the jury was not

deciding whether the manner of the search was appropriate

despite being performed by a member of the opposite sex.

[10] The justification for conducting the search weighs in

favor of a determination of reasonableness. It is undisputed

that the search was initiated due to several recent fights and

suspicion of contraband. These circumstances constituted

valid reasons to search the inmates, even though no immedi-

ate emergency existed. See Thompson, 111 F.3d at 700 (not-

ing that the purpose of the search was to “detect illicit

drugs”); see also Michenfelder, 860 F.2d at 332-33 (recogniz-

ing that a search for contraband constitutes adequate justifica-

tion). Nevertheless, although valid reasons to search the

inmates existed generally, there was no justification given for

conducting a cross-gender strip search. The dissent glosses

over this distinction when emphasizing the jury’s finding that

there were valid reasons to search the inmates. See Dissenting

Opinion, p. 393-94. The jury had been specifically instructed

not to consider the cross-gender element of the search, and

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 383

therefore the jury’s finding that a search was justified does not

amount to a finding that a search by a woman was justified.

[11] The final Bell factor, the place of the search, similarly

weighs in favor of a finding of reasonableness. Byrd was

searched in the day room, a common area. Other inmates were

present, making it less likely that improper conduct would

occur. See Thompson, 111 F.3d at 701 (upholding visual strip

search of inmate that took place on the tier just outside the

inmate’s cell within view of other prisoners).

[12] Although the last two factors weigh in favor of a

determination of reasonableness, the effect of the first two

factors is so extreme that a conclusion of unreasonableness is

compelled. Courts throughout the country have universally

frowned upon cross-gender strip searches in the absence of an

emergency or exigent circumstances.8

8

The dissenting opinion minimizes the intrusiveness of the search by

describing it as a “pat-down of a partially-clothed male inmate.” Dissent-

ing Opinion, p. 395. However, the facts of this case clearly reflect that

more than a “pat down” occurred. We have defined a “pat-down search”

as one involving no intimate contact with the inmate’s body. Grummett,

779 F.2d at 495-96. In contrast, Byrd was subjected to a search that

involved twice moving his penis and scrotum aside and separating the

cheeks of his buttocks to search inside his anus. Neither was Byrd partially

clothed, legally speaking. Rather, he was wearing only pink, nearly see-

through underwear. In most jurisdictions within this circuit, one could not

appear in public dressed, (or more precisely undressed) in that manner.

See, e.g., Ariz. Rev. Stat. § 13-3501(4) (defining “nudity” as “the showing

of the human male or female genitals, pubic area or buttocks with less than

a full opaque covering . . .”); Haw. Rev. Stat. § 712-1210 (defining “nude”

as unclothed or in attire, including but not limited to sheer or see-through

attire, so as to expose to view any portion of the pubic hair, anus, cleft of

the buttocks, genitals . . .”). Indeed, the dissent’s characterization is incon-

sistent with Grummett, 779 F.2d at 496, in which we approved cross-

gender searches “done . . . while the inmates are fully clothed, and thus

do not involve intimate contact with the inmates’ bodies.” (emphasis

added).

If the search conducted were in fact a pat-down search of a partially

clothed inmate, we would probably agree that the search was reasonable.

However, because Byrd was subjected to a cross-gender strip search while

nearly nude, we conclude that the search was patently unreasonable.

384 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

In Cookish v. Powell, 945 F.2d 441, 442 (1st Cir. 1991)

(per curiam), the First Circuit resolved a civil rights complaint

alleging that prison officials violated an inmate’s right under

the Fourth Amendment to be free from unreasonable searches.

The inmate’s claim was predicated on the fact that “female

correctional officers supervised and/or observed him during a

visual body cavity search.” Id. (footnote reference omitted). It

was undisputed that the search occurred during “an emer-

gency situation.” Id. at 448. Plaintiff himself described the

prison conditions as a “riot.” Id. at 444. Understandably,

prison officials commenced visual body cavity searches of

inmates “to ensure that the inmates were not carrying weap-

ons, matches, combustibles or other contraband . . .” Id. at

446 n.7. As in this case, the Plaintiff did not challenge the rea-

sonableness of the search per se or the manner in which the

search was conducted. See id. at 446. Rather, similar to Byrd,

the Plaintiff in Cookish asserted a violation of his constitu-

tional rights primarily because a female lieutenant was

involved, supervising the visual body cavity search from

approximately five feet away. See id. at 445.

The First Circuit reiterated its recognition “that a severe if

not gross interference with a person’s privacy occurs when

guards conduct a visual inspection of body cavities.” Id. at

446 (citation, alteration and internal quotation marks omitted).

The court also explained that:

Certainly by the time of this search in 1987, the

trend, if not the clearly established law, was that an

inmate’s constitutional right to privacy is violated

when guards of the opposite sex regularly observe

him/her engaged in personal activities, such as

undressing, showering and using the toilet.

Id. (citations omitted).

The First Circuit summarized the state of the law governing

cross-gender searches as of late 1987:

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 385

(1) inadvertent, occasional, casual, and/or restricted

observations of an inmate’s naked body by a guard

of the opposite sex did not violate the Fourth

Amendment and (2) if the observation was other

than inadvertent, occasional, casual, and/or

restricted, such observation would (in all likelihood)

violate the Fourth Amendment, except in an emer-

gency condition.

Id. at 447 (emphasis in the original).

In sum, almost twenty years ago, the First Circuit ruled, in

no uncertain terms, that visual observation of a nude male by

a female corrections officer “would (in all likelihood),” vio-

late that inmate’s constitutional right to be free from unrea-

sonable searches. Id. It is notable that, in determining that the

officers involved were entitled to qualified immunity, the

First Circuit focused on the emergency conditions surround-

ing the search. See id. at 448 (“The caselaw supports the con-

clusion that, in an emergency situation, a visual body cavity

search conducted within the view of a guard of the opposite

sex, even if other than an inadvertent and/or restricted view,

would not violate an inmate’s Fourth Amendment right.”)

(citation omitted) (emphasis added).

In 1981, the Fourth Circuit similarly recognized the inap-

propriateness of cross-gender strip searches. See Lee v.

Downs, 641 F.2d 1117, 1120 (4th Cir. 1981) (“[M]ales sub-

ject to frisk searches by female guards during which the geni-

tals are touched and felt through clothing [are] entitled to

injunctive relief.”) (citation omitted) (emphasis added). This

description by the Fourth Circuit fits the facts of this case per-

fectly. The professionalism with which the search is con-

ducted in no way changes the consistent depiction of a cross-

gender strip search in the absence of an emergency as viola-

tive of Fourth Amendment principles.

In 1999, the Fifth Circuit decided that an inmate stated a

valid Fourth Amendment claim when the inmate filed a civil

386 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

rights action alleging “multiple strip and body cavity searches

performed by a female officer . . .” Moore v. Carwell, 168

F.3d 234, 235 (5th Cir. 1999). In reaching its conclusion, the

Fifth Circuit distinguished a prior case holding “that the mere

presence of female officers during a strip search of prisoners

during emergency circumstances did not violate the Fourth

Amendment.” Id. at 236 (citation omitted) (emphases in the

original). As with the other circuits, the Fifth Circuit consid-

ered the lack of an emergency a crucial factor in support of

the existence of a constitutional violation stemming from a

cross-gender strip search. The Fifth Circuit also considered

the fact that male officers were present to conduct the search.

See id. at 237.

In 1994, the Seventh Circuit decided Canedy v. Boardman,

16 F.3d 183 (7th Cir. 1994). Canedy sued the corrections

facility where he was housed, asserting that his privacy rights

were violated when two female guards “strip searched him”

“during a shakedown of his housing unit.” Id. at 184. Canedy

also alleged that the violation could have readily been pre-

vented due to the fact that ten male officers were nearby at the

time. See id.

The district court dismissed Canedy’s Complaint for failure

to state a claim. The district court determined that any privacy

rights possessed by Canedy were outweighed by the prison’s

interest in providing equal employment opportunities for

female officers. The district court specifically ruled:

If female guards are to be given equal opportunity

for employment and promotion, it is necessary to

allow them to observe male prisoners and conduct

searches just as male officers would. To exclude

females from observing or participating in all aspects

of guard work could prevent them from gaining the

experience they need to advance to higher positions,

and bar them from assuming those positions that

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 387

require monitoring of inmate searches or other activ-

ities in which inmates are unclothed.

Id. (citation omitted).

As a preliminary matter, the Seventh Circuit acknowledged

the general consensus that a strip search is “one of the clearest

forms of degradation in Western Society . . .” Id. at 185 (cita-

tion and alteration omitted). The Seventh Circuit also recog-

nized that the indignity is multiplied when one’s body is

exposed to a member of the opposite gender. See id. (refer-

encing York, 324 F.2d at 455).

Against that background, the Seventh Circuit considered

the invasion of the inmate’s privacy and the employment

rights of the female corrections officers. Rather than agreeing

that the employment rights of the female officers trumped the

privacy rights of the inmates, the Seventh Circuit concluded

that the privacy interests of the inmate must be recognized

and accommodated. See id. at 187. One accommodation cited

with approval by the Seventh Circuit was excluding the geni-

tal area when conducting cross-gender searches. See id.

The Seventh Circuit characterized Canedy’s complaint as

one alleging that he was subjected to cross-gender strip

searches without any effort to accommodate his privacy inter-

ests vis á vis the prison’s parallel interest in affording equal

employment opportunities. See id. at 188. In reversing the dis-

missal of Canedy’s Complaint, the Seventh Circuit pro-

claimed that “[a]lmost every federal court that has addressed

this issue has come to the conclusion that the Constitution

demands such an accommodation [in the absence of an emer-

gency]”). Id. at 187.

In 1995, the Tenth Circuit addressed the issue of cross-

gender strip searches in Hayes v. Marriott, 70 F.3d 1144 (10th

Cir. 1995). Hayes alleged that a video-taped strip search con-

ducted in the presence of, inter alia, female corrections offi-

388 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

cers violated his constitutional rights under the Fourth

Amendment. See id. at 1145.

An administrative officer from the Colorado Department of

Corrections (DOC) proffered the following justification for

the presence of female staff:

There is no particular DOC policy relating to use

of female staff during strip searches. As a matter of

courtesy to the inmate population, male staff mem-

bers are used whenever possible. There is no indica-

tion any female staff members conducted a strip

search during the dates in question. Although every

effort was made to reduce the number of female staff

during the search, females are an essential part of our

staffing. All posts still had to be covered and females

did view parts of the search while conducting their

normal duties or observation duties so male staff

could conduct the searches. There was no justifiable

reason to totally exclude female staff from this

required function. Additionally, the total absence of

female staff would have alerted inmates to an

impending search.

Id. at 1147 (citation omitted).

Despite the affidavit from a prison official attesting that no

females actively participated in the strip search and despite

the expressed staffing considerations in the affidavit, the

Tenth Circuit reversed the grant of summary judgment in

favor of the prison officials. See id. at 1147-48. In doing so,

the Tenth Circuit explicitly recognized that an inmate’s pri-

vacy rights may be violated by a single cross-gender strip

search. See id. at 1147.

[13] This litany of cases over the last thirty years has a

recurring theme: cross-gender strip searches in the absence of

an emergency violate an inmate’s right under the Fourth

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 389

Amendment to be free from unreasonable searches. Because

the cross-gender nature of the search is a critical factor in the

strip searches discussed in these cases, we cannot agree with

our dissenting colleagues that the gender of the officer con-

ducting the search is irrelevant. See Dissenting Opinion, p.

395. Interestingly, Maricopa County never challenged the pre-

cept that cross-gender strip searches are constitutionally

infirm in the absence of an emergency. Rather, it painstak-

ingly attempted to establish that the cross-gender search Byrd

underwent was not a strip search. Indeed, Maricopa County’s

policy prohibits cross-gender strip searches. The admission

implicit in Maricopa County’s determined effort to avoid hav-

ing the search characterized as a strip search, coupled with the

nearly universal opprobrium expressed in the cases addressing

cross-gender strip searches, reflects the extreme degree of

unreasonableness presented by the facts of this case.9

[14] In this case, the indignity of the non-emergency strip

search conducted by an unidentified female cadet was com-

pounded by the fact that there were onlookers, at least one of

whom videotaped the humiliating event. For these reasons, we

conclude that the cross-gender strip search, as conducted in

this case, was unreasonable.10

9

We omit Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993) (en banc),

from this discussion because a majority of the en banc panel declined to

address the Fourth Amendment issue in that case.

10

Byrd also challenged the district court’s admission of the Video Year-

book and the district court’s formulation of an adverse inference instruc-

tion. However, during trial, Byrd laid the foundation for an adverse

inference instruction when he questioned Arpaio about the video footage

recorded on the day of Byrd’s search. The district court did not abuse its

discretion by admitting the videotape because Byrd opened the door to

consideration of this evidence when he questioned Arpaio about the video

footage. See United States v. Osazuwa, 564 F.3d 1169, 1173 (9th Cir.

2009) (reviewing for abuse of discretion the district court’s ruling that a

party opened the door for introduction of evidence). Additionally, the dis-

trict court did not abuse its discretion when it declined to use the exact

wording Byrd requested for the adverse inference instruction. Byrd’s sug-

390 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

IV. CONCLUSION

We readily acknowledge the deference due prison officials

engaged in the admittedly difficult task of administering

inmate populations. However, that deference does not extend

to sanctioning a clear violation of an inmate’s constitutional

rights. See Giles, 746 F.2d at 617; see also Hayes, 70 F.3d at

1146 (“One of the clearest forms of degradation in Western

Society is to strip a person of his clothes. The right to be free

from strip searches and degrading body inspections is thus

basic to the concept of privacy.”) (citations, alteration and

internal quotation marks omitted).

[15] Accordingly, we hold that the cross-gender strip

search performed on Byrd was unreasonable as a matter of

law under the facts of this case and violated Byrd’s rights

under the Fourth Amendment to be free from unreasonable

searches. We REVERSE the district court’s entry of judg-

ment as a matter of law in favor of O’Connell and Maricopa

County on this claim. We REMAND this case to the district

court for further proceedings consistent with this opinion.

N.R. SMITH, Circuit Judge, concurring in part and dissenting

in part, joined by KOZINSKI, Chief Judge, and GOULD,

TALLMAN, and BEA, Circuit Judges:

I agree with the majority’s conclusion regarding Byrd’s

claims under the Eighth and Fourteenth Amendments. How-

gested language would have impermissibly directed the jury to reach a

conclusion about a matter of disputed fact. See Miller v. Rykoff-Sexton,

Inc., 845 F.2d 209, 212 (9th Cir. 1988) (explaining that a jury instruction

is adequate “even if it does not use the exact words proposed by a party

. . .”); see also Roberts v. Spalding, 783 F.2d 867, 873 (9th Cir. 1986)

(approving the district court’s rejection of an instruction that directed the

jury to reach a particular conclusion regarding a disputed matter of fact).

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 391

ever, (1) the deference we owe prison administrators, (2) the

jury’s undisputed factual findings, and (3) the relevant case

law compel me to conclude that O’Connell’s actions were

reasonable under the Fourth Amendment. I therefore respect-

fully dissent from the contradictory analysis in the majority

opinion, which held that a female officer’s pat-down search

of a male detainee—where there were no exigent circum-

stances showing the unavailability of male officers to do the

search—was a violation of the detainee’s Fourth Amendment

rights.

In determining the reasonableness of a search under the

Fourth Amendment, we must balance “the need for the partic-

ular search against the invasion of personal rights that the

search entails.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). In

Bell v. Wolfish, the Supreme Court directed us to consider the

following four factors when evaluating the reasonableness of

a search of an incarcerated person: (1) “the scope of the par-

ticular intrusion,” (2) “the manner in which it is conducted,”

(3) “the justification for initiating it,” and (4) “the place in

which it is conducted.” Id.1 The majority correctly identifies

1

Because the majority holds that the factors articulated in Turner v. Saf-

ley, 482 U.S. 78, 89-91 (1987), are inapplicable to Byrd’s challenge and

instead focuses exclusively on the Bell factors, Maj. Op. 378 n.6, I too

only address the Bell factors. It ultimately makes no difference whether we

consider the factors articulated in Turner, however, as application of the

Turner factors also compels a finding that O’Connell’s search of Byrd was

reasonable under the Fourth Amendment. See Bull v. City and County of

San Francisco, 595 F.3d 964, 975-76 (9th Cir. 2010) (en banc) (“Because

the Turner factors require us to give more deference to detention officials’

determinations than does the balancing test in Bell, it is not surprising that

our consideration of the Turner factors leads to the same conclusion.”). In

Turner, the Supreme Court held that “when a prison regulation impinges

on inmates’ constitutional rights, the regulation is valid if it is reasonably

related to legitimate penological interests.” 482 U.S. at 89. In making this

determination, the Supreme Court directed us to consider four factors. Id.

at 89-91. First, we consider whether there is a “valid, rational connection

between the prison regulation and the legitimate governmental interest put

forward to justify it.” Id. at 89 (internal quotation marks and citation omit-

392 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

this test and properly finds that factors (3) and (4)—

justification and place, respectively—weigh in favor of a find-

ing of “reasonableness” under the Fourth Amendment. Never-

theless, it erroneously concludes that factors (1) and (2)—

scope and manner, respectively—vindicate Byrd’s Fourth

Amendment claim.

Before addressing the Bell factors, however, it is necessary

to highlight the limited nature of our review. The Supreme

Court has instructed that “[p]rison administrators . . . should

be accorded wide-ranging deference in the adoption and exe-

cution of policies and practices that in their judgment are

needed to preserve internal order and discipline and to main-

tain institutional security.” Id. at 547. Therefore, “in the

absence of substantial evidence in the record to indicate that

the officials have exaggerated their response to [security and

operation considerations], courts should ordinarily defer to

their expert judgment in such matters.” Id. at 540 n.23 (inter-

ted). As discussed more fully infra, it is not disputed that the prison offi-

cials had a legitimate need to initiate the searches in order to prevent the

proliferation of contraband within the prison. Second, we are to consider

“whether there are alternative means of exercising the right that remain

open to prison inmates.” Id. at 90. This factor does not apply to Byrd’s

Fourth Amendment claim; it is somewhat nonsensical to examine whether

alternative means exist for Byrd to exercise his right to be free from unrea-

sonable searches. See Michenfelder v. Sumner, 860 F.2d 328, 331 n.1 (9th

Cir. 1988) (“Not all four factors will be relevant to each case. . . . [T]he

second Turner factor . . . is much more meaningful in the first amendment

context than the fourth or eighth . . . .”). Third, we consider “the impact

accommodation of the asserted constitutional right will have on guards

and other inmates, and on the allocation of prison resources generally.”

Turner, 482 U.S. at 90. Again as discussed more fully infra, the County

offered undisputed evidence that it did not have sufficient numbers of

male detention officers to conduct searches of male inmates without the

assistance of female officers. Finally, we must examine “the absence of

ready alternatives [as] evidence of the reasonableness of a prison regula-

tion.” Id. Because we must defer to the County’s undisputed evidence

regarding its staffing needs, we cannot conclude that there were other rea-

sonable alternatives to the search.

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 393

nal quotation marks and citation omitted). It is axiomatic that

prison officials know better than a panel of judges how to run

a prison. Deference to prison officials, therefore, necessarily

permeates our review of their searches.2

We are also constrained in our review by the jury’s undis-

puted factual findings that: (1) O’Connell did not “intention-

ally squeez[e] or knead[ ] [Byrd’s] penis or scrotum or

improperly touch[ ] his anus through his underwear,” and (2)

O’Connell’s search was “done for [an] identified security

need.” Tempting though it may be to paint the facts differ-

ently on appeal, the jury made these findings and Byrd has not

challenged them. With these considerations in mind, I now

turn to the Bell factors and again emphasize that the majority

agrees that two of the factors—the justification for the search

and place in which it was conducted—weigh in favor of find-

ing O’Connell’s search reasonable. Maj. Op. 382-83.

It is appropriate to begin the analysis by looking at the jus-

tification for initiating the search, because, in the absence of

a proper justification, even the most unintrusive search is

unreasonable. The prison officials initiated their searches in

response to evidence that contraband was circulating in the

jail in the wake of multiple fights that had broken out in

Byrd’s housing unit. This is not disputed. Maintaining the

internal security of the prison was at stake, and the need to

eliminate the possibility of dangerous contraband somewhere

on a prisoner’s person in such a volatile atmosphere certainly

justifies initiating the type of search at issue here. See Mich-

2

The majority has apparently disregarded this principle, instead relying

on a Commission Report and two op-eds to form its own opinions about

the logistical wisdom of the searches at issue here. Maj. Op. 378-79. Aside

from the fact that the Commission Report and op-eds are not part of the

record before us, there is certainly nothing to suggest that they represent

the collective wisdom of administrators who understand the conditions at

Durango Jail. Those prison administrators deserve greater deference, espe-

cially since the evaluation of the reasonableness of a search is heavily

dependent on the context of each case.

394 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

enfelder, 860 F.2d at 333 (holding that, among other things,

“testimony and physical evidence . . . [of] contraband” justi-

fied the initiation of strip searches). Moreover, it is undis-

puted that inmates frequently attempt to conceal contraband

in their body cavities, thus furthering the need for strip

searches as a means of preventing the proliferation of contra-

band and homemade weapons within the prison. See, e.g.,

Bell, 441 U.S. at 559 (“A detention facility is a unique place

fraught with serious security dangers. Smuggling of money,

drugs, weapons, and other contraband is all too common an

occurrence. And inmate attempts to secrete these items into

the facility by concealing them in body cavities are docu-

mented in this record . . . and in other cases.”). On top of all

this, the jury found that the search was done for an identified

security need, which Byrd does not challenge on appeal. In

light of such considerations, the prison’s need to confiscate all

contraband, and therefore initiate these searches, was both

pressing and significant. Id. at 546-47 (“Central to all other

corrections goals is the institutional consideration of internal

security within the corrections facilities themselves.”) (inter-

nal quotation marks, citation, and alteration omitted).

I next note my agreement with the majority that the last

Bell factor—the place in which the search is conducted—also

weighs in favor of finding the search reasonable. See Michen-

felder, 860 F.2d at 333 (“[W]e will not question [prison offi-

cials’] judgment that conditions in [a prison unit] reasonably

require searches outside the prisoners’ cells in order to protect

the safety of the officers conducting them.”); see also Thomp-

son v. Souza, 111 F.3d 694, 697, 701 (9th Cir. 1997) (approv-

ing an intrusive strip search conducted in view of jeering

inmates).

My agreement with the majority ends there, however, as a

review of the remaining two Bell factors—the scope and man-

ner of the search—also establishes the reasonableness of

O’Connell’s search of Byrd. Relying on a string of cases that

upheld both female officers’ visual observation of unclothed

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 395

males and their performing pat-down searches on males, the

majority concludes that, under the first Bell factor, “[t]he

scope of the intrusion in this case far exceeds searches we

have previously sanctioned . . . .” Maj. Op. 380. The majority

is wrong.

Dealing first with the scope of O’Connell’s search, such

search was limited to a pat-down of a partially clothed inmate

in an attempt to locate contraband. The search was both rea-

sonable and necessary to ensure prisoners at the Durango Jail

were not concealing weapons or other contraband. Cf. Bull,

595 F.3d at 969 (“[A]rrestees’ use of body cavities as a

method of smuggling drugs, weapons, and items used to

escape custody is an immediate and troubling problem for San

Francisco jail administrators.”). In evaluating the scope of a

search, the searching officer’s gender is irrelevant.

The Supreme Court and the Ninth Circuit have previously

validated even strip searches and body cavity searches. See,

e.g., Bell, 441 U.S. at 558-60 (validating visual inspections of

body cavities as part of strip searches in the prison setting);

Thompson, 111 F.3d 694, 700 (9th Cir. 1997) (holding body

cavity searches did not violate clearly established rights under

qualified immunity analysis); Michenfelder, 860 F.2d at 333

(approving visual strip searches in the prison setting); Rick-

man v. Avaniti, 854 F.2d 327, 328 (9th Cir. 1988) (approving

strip searches in prisons). I recognize, of course, that these

cases involved only visual searches and no touching (in con-

trast to O’Connell’s search). However, it is clear that pat-

down searches can be constitutional even outside of a prison

setting. See Terry v. Ohio, 392 U.S. 1, 17 n.13 (1968)

(describing a frisk as “feel[ing] with sensitive fingers every

portion of the prisoner’s body . . . the prisoner’s arms and

armpits, waistline and back, the groin and area about the testi-

cles, and the entire surface of the legs down to the feet” (inter-

nal quotation mark omitted)). Pat-down searches are also less

intrusive than strip searches. Giles v. Ackerman, 746 F.2d

614, 618 (9th Cir. 1984), overruled on other grounds by

396 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999)

(en banc). The officers here searched the prisoners profession-

ally,3 following a procedure that minimized physical contact

to the extent possible. O’Connell searched Byrd over his

boxer shorts, and he doesn’t claim she ever looked underneath

them. The entire search took no more than a minute. Thus its

scope did not “far exceed[ ]” what we have previously sanc-

tioned. Contra Maj. Op. 380.

The final Bell factor—the manner of O’Connell’s search—

gives me greater pause. Not lightly do I find reasonable a

female officer’s probing search of a male detainee wearing

only thin boxer shorts. Nevertheless, I believe the precedent

and the facts compel this result, unsavory to our sensibilities

though that result may be.

I first note “our prior case law[, which] suggests that pris-

oners’ legitimate expectations of bodily privacy from persons

of the opposite sex are extremely limited.” Jordan v. Gardner,

986 F.2d 1521, 1524 (9th Cir. 1993) (en banc). Against that

backdrop, we now review our other precedent: (1) female

officers may pat down the groin area of fully clothed male

inmates, Grummett, 779 F.2d at 496; and (2) female officers

may observe unclothed male inmates in their cells and in the

showers, Michenfelder, 860 F.2d at 334. Admittedly, neither

of these precedents covers the current situation—a female

officer’s pat-down of a partially-clothed male inmate. Under

the circumstances presented here, however, there is no mean-

ingful difference between Byrd’s search and what we have

previously upheld. O’Connell never saw Byrd’s exposed

groin area or his anus, in contrast to the female officers in

Michenfelder, and the search was done in a professional,

3

The majority’s assertion that it makes no difference that a search was

done in a professional manner is unconvincing. Maj. Op. 381-82, 385. The

court in Grummett specifically noted (three times) that female guards’

searches were done in “in a professional manner.” Grummett v. Rushen,

779 F.2d 491, 495-96 (9th Cir. 1985).

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 397

swift, and appropriate manner that involved no touching of

the flesh under Byrd’s boxer shorts. See Grummett, 779 F.2d

at 496 (validating searches where, among other things, the

searches are “done briefly . . . [and] are performed by the

female guards in a professional manner”). Moreover, the jury

found that O’Connell did not intentionally squeeze or knead

Byrd’s penis or scrotum or improperly touch his anus through

the boxer shorts and that O’Connell’s search was done for an

identified security need. Again, Byrd has not challenged these

findings.

In addition, the County has offered undisputed evidence

that the County did not have sufficient numbers of male

detention officers to conduct searches of male inmates with-

out the assistance of female officers.4 Thus, even if it may

seem odd to utilize a female officer to conduct a pat-down of

4

The majority argues that Byrd disputed the need to utilize female offi-

cers because he testified that male detention officers were present, but did

not conduct the search. Maj. Op. 371 & n.2. The majority claims that, as

in Moore v. Carwell, 168 F.3d 234, 237 (5th Cir. 1999), we should credit

Byrd’s testimony that some male officers were not participating in the

search as evidence that female officers were not needed to perform the

search. However, in Moore, the court was required to assume Moore’s

allegations were true when reviewing a motion to dismiss. Id. at 236. We

are not so constrained in our review; instead, we must consider all the evi-

dence produced at trial. While Byrd testified that not all male officers

present conducted the searches, he did not (and could not) testify as to the

staffing necessary to safely conduct a search of approximately 90 prison-

ers and their living quarters. Moreover, the majority’s argument that

female officers were not necessary for the search was contradicted by tes-

timony from both O’Connell and Captain Peterson. O’Connell testified

that having additional officers present was necessary because “[t]here is

always a threat” of violence in such situations. Captain Peterson testified

that prison officials “don’t have the luxury” of having enough male deten-

tion officers to search the jail facility. Therefore, they must rely on female

officers. He also testified that he could not pull in additional male officers

from other facilities to have enough male staff to conduct such searches.

Under Bell, we are required to defer to the expert judgment of prison offi-

cials as to how to maintain prison safety and order—including who should

conduct searches and how many officers are needed.

398 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

a male inmate when other male officers are present, the reali-

ties of the prison’s staffing needs justify such searches. See

Michenfelder, 860 F.2d at 334 (“[R]equiring [female employ-

ees] to be replaced by males for the duration of strip searches,

would displace officers throughout the prison.”); Grummett,

779 F.2d at 496 (“To restrict the female guards from positions

which involve occasional viewing of the inmates would

necessitate a tremendous rearrangement of work schedules,

and possibly produce a risk to both internal security needs and

equal employment opportunities for the female guards.”).

This is particularly true since the 10,000 detainees in the

Maricopa County system are searched at least daily, and often

several times a day. To disallow all female officers from con-

ducting these searches anytime a male officer is present

would handicap the female officers as security personnel and

perpetuate sexist notions that a female is only useful when a

male is not available. Instead of converting Durango Jail into

a target for equal employment litigation, I defer to the prison

officials’ reasoned and sensible judgment on these matters.

In order to provide a basis for its decision, the majority

terms this search a strip search, rather than a pat-down search.

This is error. True, this search differed somewhat from the

prison’s definition of a “frisk (body) search,” because more

than Byrd’s socks and shoes were removed. However, it is

undisputed that it involved only an inspection of Byrd’s

(already removed) clothing and “feeling the contours of his

clothed body.” O’Connell testified that at no point did she pat

down or touch any unclothed areas. Thus, the search is more

accurately described as a “pat-down,” since a “strip search”

involves a “visual scan of the inmate’s body after all clothing

has been removed.” Indeed, the strip searches in the cases

relied on by the majority were visual inspections of naked

inmates. See Moore v. Carwell, 168 F.3d 234, 236 (5th Cir.

1999) (male inmate “being viewed naked by a female [offi-

cer]”); Canedy v. Boardman, 16 F.3d 183, 185, 186 n.2 (7th

Cir. 1994) (female guards’ visual observations of male

inmate’s “naked body” prohibited, but pat-down searches

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 399

constitutional); Hayes v. Marriott, 70 F.3d 1144, 1145-47

(10th Cir. 1995) (Visual body cavity search of male inmate in

presence of non-essential female staff. The court noted “the

Fourth Amendment does not require the complete exclusion

of members of the opposite sex from areas in which searches

are conducted”); Cookish v. Powell, 945 F.2d 441, 444-45

(1st Cir. 1991) (male inmate “had to remove every item of

clothing” in view of supervising female officer); Lee v.

Downs, 641 F.2d 1117, 1120 (4th Cir. 1981) (female inmate

had “underclothing . . . forcefully removed” with male guards

present); see also Sec. and Law Enforcement Employees, Dist.

Council 82 v. Carey, 737 F.2d 187, 192 nn.3-4 (2d Cir. 1984)

(distinguishing between “strip frisks” (requiring the person

being searched to reveal body cavities), visual examinations

of naked persons, and pat frisks); Cookish, 945 F.2d at 444

n.5 (“A ‘strip search,’ . . . refers to an inspection of a naked

individual”). None of these “strip search” cases involved par-

tially clothed inmates.

The majority’s description of this search as a strip search

allows it to discount this court’s precedent relevant to the case

at hand. Grummett is on point. This court held that “routine

pat-down searches, which include the groin area, and which

are otherwise justified by security needs, do not violate the

[F]ourteenth [A]mendment because a correctional officer of

the opposite gender conducts such a search.” 779 F.2d at 495;

see id. at 496 (finding no Fourth Amendment violation). The

majority repeatedly distinguishes Grummett because it feels

that, unlike Grummett, this case involved “intimate contact

with the inmate’s body.” Maj. Op. 383 n.8. This, however,

ignores the nature and purpose of a pat-down search. A pat-

down is done to detect contraband that may be taped to the

contours of an inmate’s body, including the genital area. One

has to apply enough pressure to contact the areas being

searched, and to “be able to feel something that’s on the [area

searched].”

Given that the purpose of the search is to feel for contra-

band, the majority’s attempt to distinguish Grummett solely

400 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

on the thickness or extent of the clothing is unconvincing. In

order to be effective, the searcher must be able to feel the

inside thigh and perineum. On an inmate in street clothes, this

may require more pressure, but results in the same contact in

the same area. In both cases, no skin to skin contact was

made; both searches were only over clothed areas. Both

searches were of the same groin area. Both searches were

brief and conducted for legitimate security purposes. 779 F.2d

at 496. Given the area, nature, and purpose of the search, it

would be unreasonable to presume that the female guards in

Grummett did not face the same challenges O’Connell did.

Moreover, even if this were a strip search, this court’s pre-

cedent does not suggest that a cross-gender strip search is

unconstitutional where the genitals remain covered through-

out the procedure. After considering Grummett, Jordan, and

Michenfelder, this court noted that “it is highly questionable

even today whether prison inmates have a Fourth Amendment

right to be free from routine unclothed searches by officials

of the opposite sex, or from viewing of their unclothed bodies

by officials of the opposite sex.” Somers v. Thurman, 109

F.3d 614, 622 (9th Cir. 1997). This is even more true when

the special concern about “involuntary exposure of [one’s

genitals] in the presence of people of the other sex” is not

implicated. Fortner v. Thomas, 983 F.2d 1024, 1030 (11th

Cir. 1993).

Lastly, the majority seems to rest its analysis of the “man-

ner” factor on the fact that O’Connell was unidentified to

Byrd and was wearing jeans and a t-shirt and that there were

ten to fifteen non-participating officers present. Maj. Op.

381-82. Even putting aside our heightened deference to prison

officials, the majority does not explain how the number of

officers, their attire, or their lack of identification somehow

outweigh the jury’s finding that the search was appropriate,5

5

The majority explains that this is relevant because of the “humiliation”

of “exposing one’s nude body to strangers.” Maj. Op. 370 n.1. However,

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 401

the professional nature of the search, or the County’s undis-

puted need to utilize its female officers (or even how these

facts are relevant). Nor were such facts unreasonable in any

event. O’Connell testified that Byrd was allowed to ask her

questions but didn’t. He talked to other officers after the

search was over, and they explained that cadets had helped

conduct the search. It was also not unreasonable for some

officers not to participate in the search. We see no reason to

intimate that a search is constitutionally suspect because not

every single officer present laid hands on the prisoner. Surely

this cuts the other way, if it cuts at all.6

The majority’s holding on this point illustrates the risks of

not giving proper deference to prison officials. As part of the

prison’s search for contraband, officials ordered more than

ninety inmates out of their cells into the common area. In con-

trast, there were only twenty-five to thirty Academy cadets

and ten to fifteen uniformed detention officers present. At

best, the prison officials were outnumbered two to one.

it does not explain how identification or uniforms would make the cadets

not “strangers.” Given their matching white shirts, supervision by other

guards, and participation in the search, it was surely apparent that the

cadets were present in an official capacity, not just strangers off the street.

Moreover, contrary to the majority’s assertion, Byrd was not nude. Maj.

Op. 370, 383 nn.1, 8. There is no basis in the record for its assertion that

the pink boxers were sheer, see-through, or even nearly see-through

(which really means not see-through). The majority’s reference to Arizona

and Hawaii law for the proposition that appearing in public dressed in

boxer shorts would be illegal is also unfounded. First, the laws set stan-

dards for obscenity, not indecent exposure. Second, and more importantly,

the record is clear that at no point did O’Connell see any area covered by

the boxer shorts, including the genital area. Therefore, the oft-quoted “de-

sire to shield one’s unclothed figure from the view of strangers,” York v.

Story, 324 F.2d 450, 455 (9th Cir. 1963), was satisfied in this case.

6

The majority also relies on the fact that one or two people in the room,

about 30 feet away from Byrd, had video cameras. Maj. Op. 381-82. But

we have previously found that some strip searches were reasonable even

when transmitted to video screens monitored by guards of the opposite

sex. Michenfelder, 860 F.2d at 329-30, 333.

402 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

Importantly, judges are instructed not to intrude into that

sphere of decision making. Deciding to accelerate the

searches by using additional assistance from female cadets

hardly seems unreasonable in these circumstances. I question

second-guessing prison administrators when such credible

threats to officers’ safety are present. Indeed, I would think

such security concerns vindicate the Supreme Court’s instruc-

tion to defer to prison administrators—an instruction that it

seems the majority has too hastily disregarded.

In sum, we are guided by our precedent and bound by

Supreme Court precedent, the jury’s undisputed factual find-

ings, and our deference to prison officials’ expertise in these

matters. Balancing the four Bell factors in light of these limi-

tations, I conclude that O’Connell’s search of Byrd was rea-

sonable under the Fourth Amendment, and I respectfully

dissent from the contradictory analysis in the majority opin-

ion.