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

October 2, 2008—Pasadena, California

Filed May 18, 2009

Before: Ferdinand F. Fernandez, Consuelo M. Callahan, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta;

Partial Concurrence and Partial Dissent by Judge Fernandez

5903

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 5907

COUNSEL

Jarrett A. Green, Skadden, Arps, Slate, Meagher & Flom

LLP, Los Angeles, California, pro bono counsel for the appel-

lant.

Maria R. Brandon, Maricopa County Attorney’s Office, Phoe-

nix, Arizona, counsel for the appellee.

5908 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

OPINION

IKUTA, Circuit Judge:

Charles Byrd, a former pretrial detainee in the minimum-

security Durango Jail in Maricopa County, Arizona, brought

this action under 42 U.S.C. § 1983 against Maricopa County

Sheriff Joseph Arpaio in his personal and official capacities,

Kathleen O’Connell, a former cadet at the Maricopa County

Sheriff’s Office Training Academy, and Captain Austin Peter-

son, O’Connell’s supervisor.1 Byrd contends that a search of

his housing unit, during which a partial strip search and pat

down of his groin area was conducted by a female training

cadet despite the availability of male detention officers

nearby, violated his constitutional rights. The district court

dismissed Byrd’s equal protection claim and granted judg-

ment as a matter of law against Byrd on aspects of his Four-

teenth and Fourth Amendment claims. After a jury resolved

certain factual disputes relating to the search, the district court

entered judgment in favor of all defendants. Given the facts

and procedural posture of this case, we affirm the judgment

of the district court.

I

A

Byrd was a pretrial detainee at minimum-security Durango

Jail in Maricopa County, Arizona. In October 2004, there had

been multiple fights in Byrd’s housing unit, and officials sus-

pected that contraband was circulating in the jail. In order to

1

We construe Byrd’s complaint against Arpaio in his official capacity

as a suit against Maricopa County. See, e.g., Kentucky v. Graham, 473

U.S. 159, 165-66 (1985); see also Ctr. for Bio-Ethical Reform v. Los

Angeles County Sheriff Dept., 533 F.3d 780, 786 (9th Cir. 2008) (official

capacity suit against county sheriff was equivalent to suit against county).

We refer to individual defendants by name when appropriate, and other-

wise refer to defendants collectively as “County.”

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 5909

conduct a coordinated search of Byrd’s entire housing unit,

jail supervisors requested assistance from the Maricopa

County Sheriff’s Office Training Academy (Academy)

cadets. On October 28, jail officers carrying taser and pepper

guns entered Byrd’s cell and ordered him to remove all his

clothing except his boxer shorts, which were made of thin

material. The officers ordered Byrd to walk into an open com-

mon area known as the “day room,” where 25 to 30 Academy

cadets and 10 to 15 uniformed detention officers were present.

The cadets wore jeans and white T-shirts with their last names

printed on the back in black lettering. Approximately one

third of both the cadets and officers in the room were female.

At least one person with a hand-held camera was present in

the day room.

Jail officials directed five or six inmates at a time to stand

in front of a row of waiting cadets in order to be searched.

When it was Byrd’s turn, the officers ordered Byrd to walk

over to the cadets, stand facing away from them, raise his

arms above his head, and spread his legs. O’Connell

approached Byrd from behind and conducted the search as

follows: She ran her hands across the waistband of Byrd’s

boxer shorts and pulled the waistband out a few inches to

check for anything hidden or taped inside; she did not look

into his boxer shorts. She lightly frisked over his boxer shorts

and down the outside of his thigh, stopping at the bottom of

the shorts. Through the boxer shorts, O’Connell moved

Byrd’s scrotum and penis with the back of her hand in order

to frisk his groin, applying light pressure to feel for contra-

band. She then placed her hand at the bottom of his buttocks,

ran it upward over his boxers, and separated the cheeks to

search for any contraband taped, placed, or hidden inside.2

2

Although the parties dispute whether this search constituted a “strip

search,” we have referred to a search as a “pat down and partial strip

search,” and simply as a “strip search,” when a suspect was stripped to her

underwear and officers felt the suspect’s groin area through the under-

wear. United States v. Gonzalez-Rincon, 36 F.3d 859, 861 (9th Cir. 1994).

Because Byrd was not completely unclothed, but was in his boxer shorts

and the search physically explored his genital region, we will refer to the

search as a “pat down and partial strip search” or, for the sake of brevity

and convenience, a “strip search.”

5910 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

The record indicates the search of Byrd was brief. O’Connell

demonstrated the search to the jury and testified that it lasted

between 10 and 20 seconds, while Byrd testified that it lasted

60 seconds.

Under the County’s policies and customs, female officers

and cadets are not permitted to observe or conduct cross-

gender strip searches if all of an inmate’s clothing has been

removed. They are, however, permitted to observe and con-

duct searches, whether visual or tactile, if an inmate is wear-

ing underwear, which at Maricopa County’s detention

facilities are standard-issue boxer shorts. Females are not per-

mitted to look into a male inmate’s underwear when conduct-

ing a pat down and partial strip search.

B

After the search, Byrd filed an inmate grievance form with

the Maricopa County Sheriff’s office. He subsequently filed

additional grievances with the County, none of which resulted

in remedial action. Byrd filed a pro se complaint in district

court on November 26, 2004, and amended it June 14, 2005,

alleging that the search violated: (1) his Fourth Amendment

right to be free from unreasonable searches; (2) his substan-

tive due process right to be free from punishment;3 and (3) his

Fourteenth Amendment right to equal protection of the laws.

3

Byrd’s pro se complaint alleged that his Eighth Amendment rights had

been violated. Because at the time of the search Byrd was a pretrial

detainee, the district court correctly recharacterized this claim as one

alleging that the County violated Byrd’s substantive due process rights

under the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 537

n.16 (1979) (“The Court of Appeals properly relied on the Due Process

Clause rather than the Eighth Amendment in considering the claims of

pretrial detainees. Due process requires that a pretrial detainee not be pun-

ished. A sentenced inmate, on the other hand, may be punished, although

that punishment may not be “cruel and unusual” under the Eighth Amend-

ment.”). We refer to this claim as a Fourteenth Amendment substantive

due process claim throughout.

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 5911

Byrd alleged that his Fourth Amendment and substantive due

process rights were violated because O’Connell caused “wan-

ton and unnecessary infliction of pain” when she “grabbed his

genitals twice, then ram[m]ed her index finger through the

crack of his butto[cks].” He also alleged that there was no

need for a female cadet to touch him because there were more

than ten male detention officers present who could have per-

formed the search. In addition, he claimed that jail officials

were aware of, but deliberately indifferent to, the psychologi-

cal pain that a cross-gender body search was likely to cause.

Byrd alleged that the search caused him “public humiliation”

and “psychological trauma,” among other injuries.

The County moved for summary judgment, arguing that

“Officer O’Connell conducted the frisk (body) search of

Plaintiff in accordance with MCSO policy DH-3; in the pres-

ence of her supervisor, Captain Peterson; and in the process

demonstrated and instructed detention officers in the proper

manner in which to conduct such a search for contraband.”

The district court issued an order dismissing part of the

complaint, and granting in part and denying in part the Coun-

ty’s motion for summary judgment. Under its obligation to

dismiss sua sponte certain complaints brought by prisoners

proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B),

and certain claims regarding conditions of confinement, see

42 U.S.C. § 1997e(c), the district court dismissed Count II,

which had alleged an equal protection violation, for failure to

state a claim.

The district court denied the County’s motion for summary

judgment on Byrd’s Fourth Amendment and Fourteenth

Amendment substantive due process claims.4 The court held

4

The district court also granted the County’s motion in part, holding that

under 42 U.S.C. § 1997e(e), Byrd could not recover for mental or emo-

tional harm, but he could recover compensatory, nominal, and punitive

damages premised on a violation of his Fourth Amendment and substan-

tive due process rights, to the extent they were actionable. This holding is

not at issue on appeal.

5912 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

that the County was not entitled to summary judgment on

Byrd’s Fourth Amendment claim because it had not estab-

lished that the search was “necessary to security or that it fur-

thered a legitimate penological interest,” and was not entitled

to summary judgment on Byrd’s substantive due process

claim because it had not briefed the issue.

C

The district court appointed trial counsel for Byrd. While

proceeding pro se, Byrd had made no discovery requests.

When Byrd’s newly appointed counsel learned that a person

with a hand-held camera was present on the day in question,

he asked the County to produce footage that may have been

shot. The County initially stated it was unaware of any video

recording of the search. Shortly before trial, however,

O’Connell informed defense counsel that the Academy had

given the cadets a Video Yearbook, which showed approxi-

mately one minute of footage from the day of the search. The

County stated that it did not have the rest of the videotape

footage, and that it assumed it had been destroyed pursuant to

the County’s retention policy. The Video Yearbook did not

include any footage of Byrd or of O’Connell performing

searches.

Byrd asked the court to exclude all references to the Video

Yearbook on the grounds that the brief surviving footage did

not show Byrd or O’Connell, and that it would be misleading

and prejudicial because it highlighted the cadets in a favorable

light. In the alternative, Byrd requested an adverse inference

jury instruction that would state the videotape established that

the search was done solely for training purposes, and that

O’Connell groped Byrd’s private parts. The district court

reserved its decisions on whether to exclude the Video Year-

book, and on whether to give the requested instruction, pend-

ing the evidence produced at trial.

At trial, Byrd’s counsel questioned Sheriff Arpaio about the

video footage. The district court held that this opened the door

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 5913

to the introduction of the Video Yearbook. Both the County

and Byrd subsequently showed the video to the jury.

At the conclusion of testimony, both parties moved for

judgment as a matter of law under Rule 50 of the Federal

Rules of Civil Procedure.5 The district court granted judgment

as a matter of law in favor of Captain Peterson (O’Connell’s

supervisor) on the ground that he did not have any role at

Durango Jail at the time of the search. Byrd does not chal-

lenge this ruling on appeal.

Next, because Byrd had not presented any evidence that

Arpaio had instituted an unconstitutional policy (i.e., a policy

of conducting searches for an unconstitutional purpose or in

an unconstitutional manner), and there was no allegation that

Arpaio had personally conducted or supervised the search, the

district court held that Arpaio was entitled to judgment as a

matter of law, notwithstanding the remaining factual disputes.

This left one remaining defendant, Cadet O’Connell. The

district court concluded that the factual disputes over the pur-

pose of the search and the manner in which it was conducted

should be decided by the jury. The court held that if the jury

found that the County had conducted the search for an identi-

fied security need, and if the jury found that O’Connell had

not conducted the search in an inappropriate manner (i.e., by

intentionally squeezing or kneading Byrd’s penis or scrotum,

or improperly touching his anus through his underwear), then

5

Rule 50 provides:

If a party has been fully heard on an issue during a jury trial and

the court finds that a reasonable jury would not have a legally

sufficient evidentiary basis to find for the party on that issue, the

court may: (A) resolve the issue against the party; and (B) grant

a motion for judgment as a matter of law against the party on a

claim or defense that, under the controlling law, can be main-

tained or defeated only with a favorable finding on that issue.

Fed. R. Civ. P. 50(a)(1).

5914 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

the search would violate neither Byrd’s substantive due pro-

cess nor his Fourth Amendment rights as a matter of law. The

court denied Byrd’s cross motions for judgment as a matter of

law.

In light of these rulings, the district court submitted three

issues to the jury: (1) whether Byrd had proved that

O’Connell “deprived him of his right against unreasonable

search[es] by intentionally squeezing or kneading his penis or

scrotum or improperly touching his anus through his under-

wear”; (2) whether O’Connell deprived Byrd of due process

of law by taking any inappropriate actions during the search,6

which actions had inflicted pain on Byrd, and which infliction

was wanton; and (3) whether O’Connell violated Byrd’s right

against unreasonable searches “by conducting a search not

done for [an] identified security need.” The district court

instructed the jury that it could draw an inference adverse to

a party who destroyed evidence, but declined to give the

instruction proposed by Byrd’s counsel.

The jury found against Byrd on each of the issues, and the

court entered judgment for all defendants. This timely appeal

followed. On appeal, Byrd challenges the district court’s dis-

missal of his equal protection claim, certain evidentiary rul-

ings, and its grant of judgment as a matter of law in favor of

Arpaio and O’Connell as to the constitutionality of the search.7

II

[1] We first address whether the district court erred in its

6

As in the first issue, the jury was instructed to determine whether

“O’Connell intentionally squeezed or kneaded [Byrd’s] penis or scrotum

or improperly touched his anus through his underwear.”

7

We reject the County’s assertion that the issues on appeal are limited

by rules governing in forma pauperis proceedings. See 28 U.S.C. § 1915.

Byrd did not proceed in forma pauperis in bringing his appeal, and this

court’s records reflect that all appropriate fees have been paid.

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 5915

sua sponte dismissal under 28 U.S.C. § 1915(e) of Byrd’s

equal protection claim. The Prison Litigation Reform Act

states that “[n]otwithstanding any filing fee, or any portion

thereof, that may have been paid, the court shall dismiss the

case at any time if the court determines that . . . the action or

appeal . . . fails to state a claim on which relief may be grant-

ed.” 28 U.S.C. § 1915(e)(2)(B)(ii). We review de novo a dis-

trict court’s decision to dismiss for failure to state a claim

under 28 U.S.C. § 1915(e). Barren v. Harrington, 152 F.3d

1193, 1194 (9th Cir. 1998) (order). “Factual allegations in the

complaint are taken as true and all reasonable inferences are

drawn in the plaintiff’s favor.” Barrett v. Belleque, 544 F.3d

1060, 1061 (9th Cir. 2008) (per curiam).

In dismissing Count II, the district court held that Byrd had

“failed to allege that he is a member of a suspect class,” and

that Byrd “had neither alleged nor demonstrated that Defen-

dants’ conduct was the result of purposeful or invidious dis-

crimination, or that the conduct bore no rational relationship

to a legitimate government interest.”

[2] We have held that Ҥ 1983 claims based on Equal Pro-

tection violations must plead intentional unlawful discrimina-

tion or allege facts that are at least susceptible of an inference

of discriminatory intent.” Monteiro v. Tempe Union High Sch.

Dist., 158 F.3d 1022, 1026 (9th Cir. 1998). Even construing

Byrd’s pro se complaint liberally, see Eldridge v. Block, 832

F.2d 1132, 1137 (9th Cir. 1987), it fails to allege facts suscep-

tible to an inference that “defendants acted with an intent or

purpose to discriminate against the plaintiff based upon mem-

bership in a protected class,” Barren, 152 F.3d at 1194. While

Byrd alleged that a female searched him, he fatally “failed to

allege that defendants’ acts or omissions were motivated by

discriminatory animus toward” male prisoners. Lee v. City of

Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001); see also

Rosenbaum v. City & County of San Francisco, 484 F.3d

1142, 1152-53 (9th Cir. 2007). Accordingly, the district court

did not err in dismissing Count II of the complaint.

5916 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

III

We next address Byrd’s challenges to the district court’s

evidentiary rulings. We review a district court’s evidentiary

decisions, which include whether and how to sanction parties

for destruction of evidence, for an abuse of discretion. Med.

Lab. Mgmt. Consultants v. Am. Broad. Co., 306 F.3d 806, 824

(9th Cir. 2002). In addition to showing the district court

abused its discretion, “the appellant is . . . required to estab-

lish that the error was prejudicial.” Tritchler v. County of

Lake, 358 F.3d 1150, 1155 (9th Cir. 2004). We will reverse

the district court only if an erroneous ruling “more likely than

not affected the verdict.” United States v. Pang, 362 F.3d

1187, 1192 (9th Cir. 2004) (internal quotation marks omitted).

Byrd challenges the district court’s decision to admit the

Video Yearbook into evidence, as well as its refusal to give

his proposed adverse inference jury instruction regarding the

County’s alleged destruction of the unedited footage. We con-

sider these issues in turn.

A

First, Byrd argues the district court erred by permitting the

County to introduce the Video Yearbook. According to Byrd,

the video was irrelevant because it does not include footage

of O’Connell searching Byrd, or indeed, of O’Connell con-

ducting any of the searches she performed that day. More-

over, Byrd argues that the video was prejudicial because it

presented the cadets in a highly flattering light. Finally, Byrd

asserts that the Video Yearbook was misleading because

searches depicted in the video showed cadets performing fully

clothed searches on their supervisors, rather than the search of

Byrd in his underwear. Byrd contends that the prejudicial and

misleading effect of the video outweighs its limited or non-

existent probative value, and therefore, the district court

abused its discretion by allowing it to be shown to the jury.

[3] We disagree. Evidence that is otherwise admissible may

be excluded if “its probative value is substantially outweighed

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 5917

by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay,

waste of time, or needless presentation of cumulative evi-

dence.” Fed. R. Evid. 403. However, evidence that may have

been otherwise excluded under Rule 403 may become admis-

sible based on events at trial. “Under the rule of curative

admissibility, or the ‘opening the door’ doctrine, the introduc-

tion of inadmissible evidence by one party allows an oppo-

nent, in the court’s discretion, to introduce evidence on the

same issue to rebut any false impression that might have

resulted from the earlier admission.” United States v. Whit-

worth, 856 F.2d 1268, 1285 (9th Cir. 1988); accord Jerden v.

Amstutz, 430 F.3d 1231, 1239 n.9 (9th Cir. 2005).

[4] At the pretrial hearing, after Byrd’s counsel objected to

the possible introduction of the Video Yearbook, the County

indicated that it did not intend to offer the video as an exhibit

unless Byrd’s counsel opened the door by insinuating that the

County videotaped the particular search of Byrd and then

erased it. In his opening statement, Byrd’s counsel indicated

that the County’s alleged destruction of the tape would be an

issue at trial, stating, “You will learn that this training demon-

stration on Mr. Byrd was videotaped but that the portion of

the tape has now been erased.” During direct examination, the

following exchange occurred between Arpaio and Byrd’s

counsel:

Q: [B]eing in law enforcement, you would agree that

officers must preserve all evidence which is critical

to inmate’s complaints.

A: Yes.

Q: And you would agree that it would be improper,

actually illegal, to lose evidence to cover up wrong-

doing; correct, sir?

A: To cover up wrongdoing?

5918 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

Q: Yes.

A: Yes.

Based on this line of questioning, the district court found that

Byrd’s counsel was laying the foundation for an instruction

permitting the jury to infer that any missing evidence, namely,

the complete video footage recorded that day, was damaging

to the County. Therefore, the district court held that Byrd’s

counsel had opened the door for the County to show the

Video Yearbook so the jury could determine whether the orig-

inal video tape was likely or unlikely to contain what Byrd

alleged. Byrd’s counsel subsequently played the video during

closing argument in an effort to prove the searches conducted

on the day in question were for training purposes rather than

security purposes.

[5] Because Byrd opened the door to the introduction of

this evidence, the district court did not abuse its broad discre-

tion in admitting the Video Yearbook as an exhibit. See

United States v. Segall, 833 F.2d 144, 148 (9th Cir. 1987).

The Video Yearbook was relevant to rebut Byrd’s assertion in

opening argument, and suggestion during Arpaio’s direct

examination, that the original tape depicted an abusive search

and had been improperly edited or destroyed. Moreover, Byrd

has not demonstrated that any unfair prejudice substantially

outweighed the video’s value, or that the verdict would have

been any different absent the video.

B

Byrd next argues the district court erred in its formulation

of an adverse inference instruction. Byrd requested that the

district court provide the following instruction:

The Maricopa County Sheriff’s Office video

recorded academy class 813’s search of the Durango

Jail, Housing Unit 4, on October 28, 2004. On that

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 5919

same day, Mr. Byrd filed a complaint with the Mari-

copa County Sheriff’s Office alleging that a female

cadet had sexually assaulted him. The Maricopa

County Sheriff’s Office erased the video footage of

academy class 813’s search of the Durango Jail,

Housing Unit 4, despite actual notice of Mr. Byrd’s

claims and allegations. The Maricopa County Sher-

iff’s Office’s destruction of the footage demonstrates

that the academy class’s search was done solely for

training purposes and that Ms. O’Connell grabbed

Mr. Byrd’s penis, scrotum and testicles, and inserted

her finger into Mr. Byrd’s anus. [altered to correct

the spelling of “Sheriff”].

The district court agreed to give an adverse inference instruc-

tion, but provided the following to the jury:

A party who has timely notice of the assertion of a

claim has a duty to take reasonable efforts to pre-

serve evidence. If a party with such notice fails to

preserve evidence through some fault of its own, you

may draw an inference that the evidence not pre-

served would have been favorable to the opposing

party.

[6] Byrd argues that this instruction is inadequate because

it did not direct the jury to make an adverse inference against

the County. We disagree. The district court’s instruction accu-

rately stated the law and was adequate to allow the jury to

determine whether an adverse inference against the County

was warranted. “A court is not required to use the exact words

proposed by a party, incorporate every proposition of law sug-

gested by counsel or amplify an instruction if the instructions

as given allowed the jury to determine intelligently the issues

presented.” Los Angeles Mem’l Coliseum Comm’n v. Nat’l

Football League, 726 F.2d 1381, 1398 (9th Cir. 1984). More-

over, Byrd was not entitled to an instruction that directed the

jury to reach a conclusion about matters of disputed fact. Rob-

5920 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

erts v. Spalding, 783 F.2d 867, 873 (9th Cir. 1986). Because

the district court found that the applicability of the adverse

inference instruction turned on disputed facts, the court’s

decision to give the instruction in the abstract and allow the

parties to argue to the jury whether the facts supported its

application was not an abuse of the district court’s broad dis-

cretion.

IV

We next turn to Byrd’s argument that the district court

erred in granting judgment as a matter of law in favor of

Arpaio and O’Connell. Byrd contends that, notwithstanding

the jury’s findings, the search, and in particular the cross-

gender aspect of it, violated both his substantive due process

right to be free from punishment and his Fourth Amendment

right to be free from unreasonable searches.8 “We review de

novo an order granting or denying judgment as a matter of

law.” Quiksilver, Inc. v. Kymsta Corp., 466 F.3d 749, 755 (9th

Cir. 2006) (internal quotation marks omitted). “In considering

a motion under Rule 50 of the Federal Rules of Civil Proce-

dure, we view the evidence in the light most favorable to the

non-moving party and draw all reasonable inferences in favor

of that party.” E.E.O.C. v. Pacific Maritime Ass’n, 351 F.3d

1270, 1272 (9th Cir. 2003). Judgment as a matter of law

“should be granted when the evidence permits only one rea-

sonable conclusion as to the verdict. If conflicting inferences

may be drawn from the facts, the case must go to the jury.”

Redman v. County of San Diego, 942 F.2d 1435, 1439 (9th

8

The County contends that Byrd has waived any challenge to the spe-

cific search at issue here and is challenging only the County’s general pol-

icy allowing cross-gender searches. We reject this argument. Byrd argued

both before the district court and on appeal that the search conducted by

O’Connell violated his constitutional rights, and he pursued a claim

against Arpaio in both his individual and official capacities. We read

Byrd’s appeal as challenging both the search to which he was subjected

and the alleged County policy which putatively caused it to occur. See,

e.g., Hafer v. Melo, 502 U.S. 21, 25 (1991).

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 5921

Cir. 1991) (en banc) (internal quotation marks and citation

omitted).

Our review is sharply circumscribed by Bell v. Wolfish, 441

U.S. 520 (1979), in which the Supreme Court upheld visual

body cavity searches of pretrial detainees against their Fourth

and Fourteenth Amendment challenges. Under Bell, when

reviewing conditions and restrictions placed on prisoners and

pretrial detainees, we must bear in mind the inherent difficul-

ties in managing a detention facility, and that “the problems

that arise in the day-to-day operation of a corrections facility

are not susceptible of easy solutions.” Id. at 547. Judicial def-

erence to prison officials is appropriate on the grounds that

“the realities of running a corrections institution are complex

and difficult, courts are ill equipped to deal with these prob-

lems, and the management of these facilities is confided to the

Executive and Legislative Branches, not to the Judicial

Branch.” Id. at 548 n.29. Therefore, “in the absence of sub-

stantial evidence in the record to indicate that the officials

have exaggerated their response to these considerations,

courts should ordinarily defer to their expert judgment in such

matters.” Id. at 540 n.23 (internal quotation marks omitted).

In light of these principles, our task is to determine whether

the district court erred in holding that, as a matter of law, nei-

ther Maricopa County nor the individual defendants

(O’Connell and Arpaio in his individual capacity) violated

Byrd’s constitutional rights.9 We must also undertake our

review in light of the jury’s factual determinations that the

search was performed for an “identified security need,” and

that O’Connell did not search Byrd in an inappropriate man-

ner. Byrd does not challenge these findings on appeal, and

therefore we are bound by them.

9

The defendants sued in their individual capacities did not assert quali-

fied immunity in district court, and accordingly we do not consider the

issue on appeal.

5922 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

A

We first consider Byrd’s argument that the search violated

his substantive due process right to be free from punishment.

Byrd contends the search at issue amounted to punishment

because it was conducted by a woman despite the availability

of men; he was not told that O’Connell was associated with

the jail system; jail officials carried taser and pepper guns,

cursed at him, and ordered him to remain silent; and a person

with a hand-held camera was present. Moreover, Byrd states

that he suffers from a history of sexual abuse, and therefore

the cross-gender aspect of the search was particularly trau-

matic. Byrd asserts that the prison officials displayed deliber-

ate indifference to the harm the search would cause him, both

because any person would know that the circumstances of this

search would cause shock, degradation, and pain, and because

these consequences were easily preventable by having male

officials who were standing nearby conduct the search.

[7] When the government holds a person in confinement as

a pretrial detainee, it “may subject him to the restrictions and

conditions of the detention facility so long as those conditions

and restrictions do not amount to punishment or otherwise

violate the Constitution,” Bell, 441 U.S. at 536-37, because

“under the Due Process Clause, a detainee may not be pun-

ished prior to an adjudication of guilt in accordance with due

process of law,” id. at 535; accord Demery v. Arpaio, 378

F.3d 1020, 1028 (9th Cir. 2004). This standard is different

from that applied to prisoners, “who may be subject to pun-

ishment so long as it does not violate the Eighth Amend-

ment’s bar against cruel and unusual punishment.” Pierce v.

County of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008) (cit-

ing Bell, 441 U.S. at 535 n.16). “Because pretrial detainees’

rights under the Fourteenth Amendment are comparable to

prisoners’ rights under the Eighth Amendment, however, we

apply the same standards.” Frost v. Agnos, 152 F.3d 1124,

1128 (9th Cir. 1998).

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 5923

When prisoners challenge conditions or deprivations asso-

ciated with their confinement, a court must consider the two

components of an Eighth Amendment claim: (1) the objective

component, which addresses whether the deprivation was suf-

ficiently serious to constitute “cruel and unusual” punishment;

and (2) the subjective component, which addresses whether

the prison officials acted with “a sufficiently culpable state of

mind.” Wilson v. Seiter, 501 U.S. 294, 298 (1991). The

Supreme Court explained that the latter intent requirement did

not emanate from “the predilections of this Court, but the

Eighth Amendment itself, which bans only cruel and unusual

punishment. If the pain inflicted is not formally meted out as

punishment by the statute or the sentencing judge, some men-

tal element must be attributed to the inflicting officer before

it can qualify” as punitive. Id. at 300 (emphases in original).

[8] The same intent requirement is applicable in the pretrial

detainee context: the Supreme Court has explained that

whether a particular action or condition of confinement

amounts to punishment turns on whether the action taken, or

condition imposed, was accompanied by punitive intent. See

Bell, 441 U.S. at 538-39.

Punitive intent may be proven in various ways. It is most

obvious when an official expresses an intent to punish a

detainee. See id. at 538. When there is no evidence “of an

expressed intent to punish on the part of detention facility

officials,” punitive intent can be inferred. Id. 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.” Id. at 539; see also Block v. Rutherford, 468 U.S.

576, 584 (1984). When detention facility officials are person-

ally accused of depriving incarcerated persons of “the mini-

mal civilized measure of life’s necessities,” Rhodes v.

Chapman, 452 U.S. 337, 347 (1981), or exposing them to

“conditions posing a substantial risk of serious harm,” Farmer

5924 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

v. Brennan, 511 U.S. 825, 834 (1994), punitive intent can be

inferred from an officer’s “deliberate indifference” to the

harm caused. See Seiter, 501 U.S. at 302-03 (explaining the

applicability of the deliberate indifference standard to pris-

oner cases); Frost, 152 F.3d at 1128 (explaining the applica-

bility of the deliberate indifference standard to cases

involving pretrial detainees). A detention facility official acts

with “deliberate indifference” if “he knows that inmates face

a substantial risk of serious harm and disregards that risk by

failing to take reasonable measures to abate it.” Farmer, 511

U.S. at 847; accord Frost, 152 F.3d at 1128. “[T]he official

must both be aware of facts from which the inference could

be drawn that a substantial risk of serious harm exists, and he

must also draw the inference.” Farmer, 511 U.S. at 837.

[9] Byrd has not alleged or adduced any evidence indicat-

ing that O’Connell or Arpaio expressed an intent to punish

him. See Bell, 441 U.S. at 538. Therefore, in order to prevail

on his substantive due process claim, Byrd must present evi-

dence from which an inference of punitive intent may be

drawn. See id. at 538-39; Farmer, 511 U.S. at 847. Byrd con-

tends that we should draw such an inference in this case

because the search in question is analogous to those we struck

down in Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993)

(en banc).

In Jordan, a prison had instituted a policy requiring “male

guards to conduct random, non-emergency, suspicionless

clothed body searches on female prisoners.” 986 F.2d at 1522

(footnote omitted). The searches were aggressive and intru-

sive:

According to the prison training material, “a guard

[was] to use a flat hand and pushing motion across

the inmate’s crotch area.” The guard [was to] “push

inward and upward when searching the crotch and

upper thighs of the inmate.” All seams in the leg and

the crotch area [were] to be “squeezed and kneaded.”

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 5925

Using the back of the hand, the guard also [was] to

search the breast area in a sweeping motion, so that

the breasts [would] be “flattened.”

Id. at 1523 (alterations and internal citations omitted).

In evaluating whether the policy in Jordan violated the

Eighth Amendment’s ban on “unnecessary and wanton inflic-

tion of pain,” we first considered the objective component of

an Eighth Amendment claim by addressing whether the depri-

vation was sufficiently serious. We concluded that the district

court’s finding that the searches constituted the “infliction of

pain” on the female inmates was not clearly erroneous, in

light of substantial evidence that many of the female inmates

had been violently sexually abused prior to their incarceration

and were psychologically fragile, and that the cross-gender

searches would cause some inmates substantial suffering. Id.

at 1525-26. The evidence included extensive expert testimony

from “staff members, social workers, psychologists, an

anthropologist, and the former Director of Corrections for

four different states at various times.” Id. at 1526. One expert

testified that “the unwilling submission to bodily contact with

the breasts and genitals by men would likely leave the inmate

‘revictimized,’ resulting in a number of symptoms of post-

traumatic stress disorder.” Id. (alteration omitted). This evi-

dence was corroborated by inmates’ testimony, as well as evi-

dence that one inmate who was searched “had to have her

fingers pried loose from bars she had grabbed during the

search, and she vomited after returning to her cell block.” Id.

at 1523.

We then considered the subjective component of an Eighth

Amendment claim by addressing whether the prison officials

had acted with “deliberate indifference.” Id. at 1527. We con-

cluded that they had, id. at 1530, basing this conclusion on

evidence that the policymaker at the prison was aware of the

risk of psychological trauma to the female inmates, but never-

theless proceeded with the implementation of the search pol-

5926 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

icy, id. at 1528-29. Specifically, the prison policymaker “was

urged by members of his own staff not to institute cross-

gender clothed body searches due to the psychological trauma

which many inmates likely would suffer.” Id. at 1528. In

addition, a court order was required to stop the practice “al-

though one of the first inmates to be searched suffered a

severe reaction.” Id. at 1528-29. We also held that the search

policy was “unnecessary” because the facility’s “security

[was] not dependent upon” cross-gender searches; nor did the

searches “ensure equal employment opportunities for male

guards.” Id. at 1526-27.

[10] Applying the Jordan framework here, the prison offi-

cials did not have the mental state necessary for their actions

to constitute punishment. Taking the evidence and all infer-

ences in the light most favorable to Byrd, see Redman, 942

F.2d at 1439, there is no evidence in the record that would

allow a rational jury to conclude that either O’Connell or

Arpaio knew the cross-gender aspect of the search would

cause Byrd harm, or that either of them “disregard[ed] that

risk by failing to take reasonable measures to abate it,” Far-

mer, 511 U.S. at 847. Arpaio testified that in over 15 years,

there had never been a problem with a male being searched

by a female, and the record does not show otherwise. Byrd

did not indicate to anyone at the jail before or during the

search that he had a history of sexual abuse, and there is no

evidence that anyone at the jail was aware of this history.

Moreover, O’Connell testified that she had searched a “couple

hundred” men in the same manner, and no man had ever

adversely reacted to a search. Therefore, Byrd has not shown

that either O’Connell or Arpaio acted with deliberate indiffer-

ence in conducting the search.

Finally (and as discussed in more detail infra pp. 5934-37),

because the search was reasonably related to the County’s

legitimate security needs, as found by the jury, and because

the County had a legitimate operational basis for permitting

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 5927

cross-gender searches, we cannot infer that the purpose of the

search was punitive. Bell, 441 U.S. at 561.

[11] Because the search was reasonably related to legiti-

mate governmental needs, and because Byrd has pointed to no

evidence from which a rational jury could conclude that it was

conducted with “deliberate indifference” to pain the cross-

gender aspect of the search might cause, it did not constitute

punishment. Therefore we must conclude that neither Arpaio

nor O’Connell violated Byrd’s substantive due process rights.

Cf. Jordan, 986 F.2d at 1527-30. Accordingly, we need not

consider the objective component of Byrd’s claim (the degree

of deprivation or harm), or whether a pretrial detainee may be

able to bring a Fourteenth Amendment substantive due pro-

cess claim based on evidence of a less severe deprivation or

harm than would be necessary to establish an Eighth Amend-

ment “cruel and unusual” punishment claim. See id. at

1525-26.

[12] Because Byrd has suffered no substantive due process

deprivation, his claim against Maricopa County necessarily

fails. Byrd has not alleged that any action apart from the

cross-gender search performed by O’Connell violated his sub-

stantive due process rights, and “[n]either a municipality nor

a supervisor . . . can be held liable under § 1983 where no

injury or constitutional violation has occurred.” Jackson v.

City of Bremerton, 268 F.3d 646, 653 (9th Cir. 2001); see also

City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986);

Quintanilla v. City of Downey, 84 F.3d 353, 356 (9th Cir.

1996); cf. Fairley v. Luman, 281 F.3d 913, 917 (9th Cir.

2002) (per curiam) (holding that a city may be liable under

§ 1983 even when individual officials are exonerated, if a

constitutional deprivation was attributable to city action or

inaction). We therefore affirm the district court’s grant of

judgment as a matter of law to Arpaio and O’Connell on

Byrd’s substantive due process claim.

5928 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

B

We next turn to the question whether the district court erred

in holding that the search was reasonable under the Fourth

Amendment as a matter of law, notwithstanding its cross-

gender aspect. Again, we are bound by the jury’s unchal-

lenged findings that the search in question was for security

purposes and that O’Connell did not conduct it inappropriately.10

We take all other evidence and the inferences therefrom in the

light most favorable to Byrd. See Redman, 942 F.2d at 1439.

However, “we must distinguish between evidence of disputed

facts and disputed matters of professional judgment. In

respect to the latter, our inferences must accord deference to

the views of prison authorities.” Beard v. Banks, 548 U.S.

521, 530 (2006) (plurality op.); see also Overton v. Bazzetta,

539 U.S. 126, 132 (2003). As noted above, this is due in part

to the “difficulty of operating a detention facility safely, [and]

the seriousness of the risk of smuggled weapons and contra-

band.” Way v. County of Ventura, 445 F.3d 1157, 1161 (9th

Cir. 2006); see also Bell, 441 U.S. at 548 n.29.

We agree with Byrd’s contention that we must analyze his

claim in light of both Turner v. Safley, 482 U.S. 78 (1987) and

Bell. The Supreme Court in Bell assumed, without deciding,

that pretrial detainees retain Fourth Amendment rights, 441

U.S. at 558, but subsequently held in Hudson v. Palmer that

“the Fourth Amendment proscription against unreasonable

searches does not apply within the confines of the prison

cell.” 468 U.S. 517, 526 (1984). We have held that the Fourth

Amendment does apply to the invasion of bodily privacy in

prisons, but the “reasonableness of a particular search is deter-

mined by reference to the prison context.” Michenfelder v.

Sumner, 860 F.2d 328, 332 (9th Cir. 1988). The government

“may restrict or withdraw rights to the extent necessary to fur-

10

To avoid confusion, we reiterate that the district court’s Rule 50 hold-

ing was contingent upon the jury finding that O’Connell did not perform

the search inappropriately and that it was performed for a security reason.

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 5929

ther the correctional system’s legitimate goals and policies.”

Grummet v. Rushen, 779 F.2d 491, 493 (9th Cir. 1985).

[13] In considering Fourth Amendment claims, Bell man-

dates a “test of reasonableness,” which “requires a balancing

of the need for the particular search against the invasion of

personal rights that the search entails.” 441 U.S. at 559. In

evaluating Fourth Amendment claims brought by incarcerated

persons, Bell directs us to consider: (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. In Turner, the Court provided

more guidance regarding Bell’s reasonableness standard,

holding 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.

The Court set forth several factors as being “relevant in deter-

mining the reasonableness” of a prison regulation or practice:

(1) “there must be a valid, rational connection between the

prison regulation and the legitimate governmental interest put

forward to justify it”; (2) “whether there are alternative means

of exercising the right that remain open to prison inmates”;

(3) “the impact accommodation of the asserted constitutional

right will have on guards and other inmates, and on the alloca-

tion of prison resources generally,” which, if the impact is

substantial, requires particular deference to corrections offi-

cials; and (4) “the absence of ready alternatives” as evidence

of the reasonableness of a prison regulation, or “the existence

of obvious, easy alternatives” as evidence that the regulation

“is an ‘exaggerated response’ to prison concerns.” Id. at 89-91

(internal citations and quotation marks omitted).

There are limits to the applicability of the reasonableness

factors outlined in Turner. We have not applied Turner to a

pretrial detainee’s Fourteenth Amendment claim of punish-

ment, see Demery, 378 F.3d at 1028, and Turner is not appli-

cable to all prisoner challenges based on a deprivation of

constitutional rights, see Johnson v. California, 543 U.S. 499,

5930 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

510-11 (2005) (declining to apply Turner to the right not to

be discriminated against on the basis of race and indicating it

may not be applicable to Eighth Amendment claims of cruel

and unusual punishment). However, Turner is applicable to

“rights that are inconsistent with proper incarceration,” John-

son, 543 U.S. at 510 (internal quotation marks omitted), and

“courts have applied the Turner test to prisoners’ Fourth

Amendment claims,” Thompson v. Souza, 111 F.3d 694, 699

(9th Cir. 1997); see also Michenfelder, 860 F.2d at 332-33.

Additionally, we have applied Turner to prisoners’ challenges

arguing that cross-gender strip searches violated their right to

privacy. Michenfelder, 860 F.2d at 333-34.

[14] Logically, a pretrial detainee is entitled, at a minimum,

to the same protection of constitutional rights as would be

available to a convicted inmate under the Turner framework.

Bell, 441 U.S. at 545 (“[P]retrial detainees, who have not been

convicted of any crimes, retain at least those constitutional

rights that we have held are enjoyed by convicted prison-

ers.”); see also Jones v. Johnson, 781 F.2d 769, 771 (9th Cir.

1986). Therefore, although Turner considered only the rights

of convicted prisoners, its framework is relevant to analyzing

the constitutional rights of pretrial detainees, and we have

looked to it in the past. See Pierce, 526 F.3d at 1209 (analyz-

ing religious freedom rights of pretrial detainees under Tur-

ner); Mauro v. Arpaio, 188 F.3d 1054, 1059 (9th Cir. 1999)

(en banc) (analyzing First Amendment rights of pretrial

detainees under Turner).

For these reasons, in reviewing the reasonableness of a

search, we are guided by Turner’s direction to consider

whether the challenged conduct was “reasonably related to

legitimate penological interests.” Turner, 482 U.S. at 89; see

also Thompson, 111 F.3d at 699-700 (applying Turner and

Bell to Fourth Amendment claim). In evaluating whether the

search meets this test, we are mindful of the “scope of the par-

ticular intrusion, the manner in which it is conducted, the jus-

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 5931

tification for initiating it, and the place in which it is

conducted.” Bell, 441 U.S. at 559.

[15] Beginning with the first factor of Turner’s reasonable-

relation test, the jury found that the search was done for an

identified security need. There is no dispute that the County’s

security-related need to respond to reports of contraband and

fighting in Byrd’s housing unit is a “legitimate governmental

interest,” or that the reports of contraband and fighting are

rationally connected to, and a valid justification for, conduct-

ing the pat down and partial strip searches. 482 U.S. at 89; see

also Bell, 441 U.S. at 546-47 (“Central to all other correction

goals is the institutional consideration of internal security

within the corrections facilities themselves.” (quoting Pell v.

Procunier, 417 U.S. 817, 823 (1974) (alteration omitted))).11

[16] Moving to the Bell factors, the scope of the search was

reasonable given the County’s suspicion of contraband circu-

lating in the jail, and inmates’ ability to conceal contraband

in private areas. In Bell, the Court held that visual body cavity

searches were justified by the detention facility officials’ need

to detect contraband and maintain security, even though there

had been only one incident of attempted contraband smug-

gling. 441 U.S. at 559. We have upheld similar searches of

incarcerated persons against constitutional challenges. See

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

(approving same-gender strip searches conducted in cells of

prisoners housed in administrative segregation prior to leav-

ing cell); see also Thompson, 111 F.3d at 701 (holding same-

gender body-cavity search did not violate clearly established

rights). Nor did the place of the search make it unreasonable.

11

The second Turner factor, “whether there are alternative means of

exercising the right that remain open to prison inmates,” 482 U.S. at 90,

is not applicable in the Fourth Amendment context, because the right to

be free from unreasonable searches is not a right susceptible to exercise

by alternative means, see Thompson, 111 F.3d at 699; Michenfelder, 860

F.2d at 331 n.1.

5932 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

We have upheld strip searches even when they took place in

view of others, in light of institutional needs and realities. See

Thompson, 111 F.3d at 701 (rejecting argument that same-

gender strip search and visual body cavity search should have

been conducted out of view of other prisoners who were

laughing or whistling); Michenfelder, 860 F.2d 328 (uphold-

ing prison’s same-gender visual body cavity searches when-

ever an inmate left or returned to the maximum security unit,

notwithstanding fact that strip searches were conducted at the

end of a hallway).

[17] The manner of this search requires closer scrutiny,

however, because Byrd alleges the cross-gender aspect of the

search makes it unreasonable. We have recognized that the

“desire to shield one’s unclothed figure[ ] from view of

strangers, and particularly strangers of the opposite sex, is

impelled by elementary self-respect and personal dignity.”

York v. Story, 324 F.2d 450, 455 (9th Cir. 1963); see also

Michenfelder, 860 F.2d at 334 (stating that this court recog-

nizes “that incarcerated prisoners retain a limited right to bod-

ily privacy” in the context of being viewed by members of the

opposite sex); Grummet, 779 F.2d at 494 (same). Yet, while

we have not foreclosed the possibility that a cross-gender

search could violate an incarcerated person’s constitutional

rights, we have noted that “our prior case law suggests that

prisoners’ legitimate expectations of bodily privacy from per-

sons of the opposite sex are extremely limited.” Jordan, 986

F.2d at 1524. We have never held that a cross-gender search

in a prison setting violated an inmate’s Fourth Amendment

rights. See Grummet, 779 F.2d at 496; Jordan, 986 F.2d at

1524; cf. Somers v. Thurman, 109 F.3d 614, 620 (9th Cir.

1997) (in context of qualified immunity, holding right to be

free of cross-gender searches not clearly established). Rather,

we have upheld cross-gender visual observations and body

searches in certain circumstances.

[18] In Grummet, we upheld a policy permitting female

officers to conduct pat-down searches of male prisoners when

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 5933

the searches were “done briefly”; “in a professional manner

and with respect for the inmates”; and performed on inmates

who were “fully clothed, and thus [did] not involve intimate

contact with the inmates’ bodies.” 779 F.2d at 496. The prison

did not require female officers to “conduct or observe strip or

body cavity searches” except in emergencies. Id. We addition-

ally upheld a policy when women were assigned to positions

requiring “infrequent and casual observation” of unclothed

male prisoners in their cells and while showering. Id. at 494.

We noted that preventing females from working in positions

that would require occasional invasions of inmates’ privacy

“would necessitate a tremendous rearrangement of work

schedules, and possibly produce a risk to both internal secur-

ity needs and equal employment opportunities for the female

guards.” Id. at 496. Under these circumstances, we concluded

that “the inmates have not demonstrated that these restricted

observations by members of the opposite sex are so degrading

as to require intervention by this court,” id. at 495, or that the

searches were “so offensive as to be unreasonable under the

fourth amendment,” id. at 496.

[19] In Michenfelder, we rejected a prisoner’s argument

that a prison invaded his right to privacy due to a policy per-

mitting the presence of female officers during visual body

cavity searches in hallways, and permitting females to work

in positions that allowed observation of unclothed male

inmates. 860 F.2d at 334. In determining whether the policies

were reasonably related to legitimate penological interests, we

“recognize[d] as legitimate both the interest in providing

equal employment opportunities and the security interest in

deploying available staff effectively.” Id. We upheld the strip-

search policy because female officers were not “routinely

present for [the] strip searches” and did not “regularly or fre-

quently observe unclothed inmates without a legitimate rea-

son for doing so.” Id. We also upheld females’ placement in

positions that included “shower duty,” because female offi-

cers’ presence “did not establish an inappropriate amount of

contact with disrobed prisoners.” Id. We reasoned, in part,

5934 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

that “[p]rohibiting female employees from working” in areas

that allowed observation of unclothed inmates, or “requiring

[female employees] to be replaced by males for the duration

of strip searches, would displace officers throughout the pris-

on.” Id. (stating that the “third Turner v. Safley factor has spe-

cial relevance here”).

Byrd argues the search in question is distinguishable from

those we upheld in Michenfelder and Grummet. He contends

the cross-gender aspect of the specific search at issue was not

reasonable, but rather was an “ ‘exaggerated response’ to

prison concerns,” Turner, 482 U.S. at 90, because of the inva-

siveness of the search and the ready availability of male offi-

cials to conduct it. Because the male officials were

immediately available, he asserts there would have been no

impact on the jail’s allocation of resources or on its procedure

for meeting security needs if a male, rather than a female, had

searched him. Byrd further argues that the cross-gender ele-

ment of the search was not justified by the County’s need to

provide equal employment opportunities to female prison

officials. He cites testimony from County witnesses that they

were not aware of any incident in which a female officer’s

employment opportunities were hampered as a result of

accommodations to protect the privacy interests of male

detainees.

[20] Even taking all facts and inferences therefrom in

Byrd’s favor, however, we cannot conclude that the manner

of the search was unreasonable, or constituted an “exagger-

ated or excessive means to enforce security.” Thompson, 111

F.3d at 700 (internal quotation marks omitted). As noted, the

jury found that the search was not done in an inappropriate

manner. The record indicates that O’Connell wore gloves at

all times, and conducted the search professionally and swiftly,

finishing in, at most, 60 seconds. The invasion of Byrd’s bod-

ily privacy in this case does not substantially exceed the

cross-gender observations and searches we upheld in Michen-

felder and Grummet. Moreover, the County has provided a

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 5935

legitimate justification for the cross-gender aspect of the

search: the County adduced undisputed evidence that the

cross-gender search was justified by its legitimate security

and staffing needs, focusing primarily on the shortage of ade-

quate personnel. Captain Peterson testified that the County

did not have sufficient numbers of male detention officers to

conduct searches of male inmates, as required to meet safety

and security needs, without the assistance of female officers.

Further, Peterson testified that the County was not able to

obtain a greater number of male officers for these searches

because it had difficulties hiring adequate staff, and because

it could not pull male officers from other jail facilities.

Cadets, including females, were regularly called to assist in

mass searches “because of [the need for] additional man-

power, and we have no other place to get it from except” from

the Academy. We have held that the County has a legitimate

“security interest in deploying available staff effectively.”

Michenfelder, 860 F.2d at 334. Accordingly, we cannot con-

clude that the cross-gender search lacked a “valid, rational

connection” to the County’s legitimate justifications. Turner,

482 U.S. at 89.

Turning to the impact that accommodation of Byrd’s

Fourth Amendment rights would have “on the allocation of

prison resources generally,” id. at 90, Byrd contends that the

search was an “ ‘exaggerated response’ to prison concerns”

because the presence of male officials at the search provided

“an alternative that fully accommodates the prisoner’s right at

de minimis cost to valid penological interests,” id. at 90-91.

This argument goes too far. A detention facility that hires

both male and female officers to meet its staffing needs will

regularly have male officers, as well as female officers, avail-

able at searches. The determination sought by Byrd, that it is

per se unreasonable for a female officer to conduct searches

of male inmates when male officers are also present, would

significantly limit the usefulness of female officers for meet-

ing a detention facility’s security needs. In this case, such a

determination would be inconsistent with the County’s

5936 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

approach to staffing and deploying its officers, and contrary

to the County’s uncontradicted testimony that it has inade-

quate male staff to meet its security needs, and must therefore

use both male and female officials to conduct searches on

male inmates.

[21] Moreover, the County has already made a determina-

tion regarding when it can reasonably accommodate cross-

gender concerns: its policies prohibit cross-gender observa-

tion and administration of unclothed strip and body cavity

searches, and its policies prohibit visual inspection of

inmates’ genitalia during a cross-gender pat down and partial

strip search. In light of the jury’s findings, and the “wide-

ranging deference” we owe to the County’s professional judg-

ment on these operational issues, Bell, 441 U.S. at 547, we

conclude that the cross-gender search in question was not an

exaggerated response to prison concerns.

We emphasize that the question whether the district court

erred in granting the County’s motion for judgment as a mat-

ter of law is close. We are troubled by the overall circum-

stances of the search in question. The scope of the search was

invasive in that it involved contact with Byrd’s genital region,

albeit through his boxer shorts. The embarrassment inherent

in such a pat down and partial strip search was amplified by

several factors: the cross-gender aspect; the fact that it took

place in the presence of many officers and cadets, one third

of whom were female; and that it took place in the presence

of a person with a hand-held camera, notwithstanding the fact

that the record does not give rise to the inference that Byrd’s

search was recorded.

Yet, while prisoners and detainees retain “legitimate expec-

tations of bodily privacy from persons of the opposite sex,”

we are obligated to acknowledge that such rights are “ex-

tremely limited.” Jordan, 986 F.2d at 1524. The hallmark of

the Fourth Amendment is reasonableness, see, e.g., Bell, 441

U.S. at 558, and we must assess reasonableness in the context

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 5937

of detention settings and the intractable problems facing

prison administrators, see, e.g., Turner, 482 U.S. at 84-89. We

review this case in the additional light of the jury’s findings

that the search was not conducted in an inappropriate manner

and that it was conducted for an identified security need; the

undisputed evidence of the County’s staffing issues; and the

County’s existing restrictions on cross-gender contact

between detention officers and inmates. We also take seri-

ously the Supreme Court’s direction that, in reviewing

security- and operations-related restrictions or conditions

imposed by prisons, “courts must heed our warning that ‘such

considerations are peculiarly within the province and profes-

sional expertise of corrections officials, and, in the absence of

substantial evidence in the record to indicate that the officials

have exaggerated their response to these considerations,

courts should ordinarily defer to their expert judgment in such

matters.’ ” Bell, 441 U.S. at 540 n.23 (quoting Pell, 417 U.S.

at 827 (alteration omitted)). Given these factors, even viewing

the facts (other than those found by the jury) in the light most

favorable to Byrd, we cannot conclude that the district court

erred in determining that the search did not violate Byrd’s

Fourth Amendment rights.

The judgment of the district court is AFFIRMED.

FERNANDEZ, Circuit Judge, concurring and dissenting:

I concur in part and dissent in part. In particular, I concur

in most of the well reasoned majority opinion, but dissent

from the determination in part IVB that the cross-gender

search was reasonable under the circumstances and was not a

violation of the Fourth Amendment.

In my view, cross-gender strip searches are generally

uncalled for and unreasonable. We have never held that any

cross-gender strip search is proper, although we have allowed

5938 BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T

for situations where female guards can observe unclothed

male prisoners,1 and have even approved of the pat down of

fully clothed male prisoners by female guards.2 Moreover, in

one case we determined that a cross-gender search of clothed

female prisoners by male guards was unconstitutional under

the circumstances presented in that case, but the basis of our

decision was not the Fourth Amendment. See Jordan v.

Gardner, 986 F.2d 1521, 1523-26 (9th Cir. 1993) (en banc).

I do not suggest that a cross-gender strip search can never

be appropriate. There may be emergency or other situations

where a cross-gender strip search is proper, but this case pre-

sents no facts to suggest that there was an emergency or some

other unique reason for authorizing the search. In fact, the

record shows that this sort of search is a regular part of the

jail’s routine,3 and that there were plenty of men available,

who could have conducted the search.4

When all is said and done, I would not think it was reason-

able for males to strip search females in this kind of situation,

and I do not think it was reasonable to have females strip

search males. If our law does approve of it, and the majority

opinion cogently reasons that it does, I reluct; the law should

change.

1

See Michenfelder v. Sumner, 860 F.2d 328, 333-34 (9th Cir. 1988);

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

2

See Grummett, 779 F.2d at 496.

3

The County has indicated that “[i]t is our custom and practice to per-

form regular mass pat searches and cell searches in Durango Jail for secur-

ity purposes. . . . Pat searches and cell searches are always together and

routinely performed for security purposes about four times a month.” It is

interesting to note that the County, throughout, insists that this strip search

was merely a pat search. It shrinks from suggesting that cross-gender strip

searches would be appropriate under these circumstances.

4

For example, O’Connell testified that of some thirty-two to forty-five

cadets on hand only a couple were females.

BYRD v. MARICOPA COUNTY SHERIFF’S DEP’T 5939

Thus, I respectfully dissent in that respect and otherwise

concur in the majority opinion.