# Byrd v. Maricopa County Sheriff's Department

> Court of Appeals for the Ninth Circuit · May 18, 2009 · 565 F.3d 1205

URL: https://www.frixlaw.com/law-library/cases/9563675

## Case

- **Full name:** Charles Edward BYRD, Plaintiff-Appellant, v. MARICOPA COUNTY SHERIFF’S DEPARTMENT; Joseph M. Arpaio; Kathleen O’Connell; Austin Peterson; Durango Jail, Defendants-Appellees
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** May 18, 2009
- **Citations:** 565 F.3d 1205; 2009 U.S. App. LEXIS 10939; 2009 WL 1362941
- **Precedential status:** Published
- **Opinion:** Concurring in part by Fernandez
- **Judges:** Fernandez, Callahan, Ikuta
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9563675

## Opinion text

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 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 presents 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 reasonable 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 *1226 opinion cogently reasons that it does, I reluct; the law should change.
Thus, I respectfully dissent in that respect and otherwise concur in the majority opinion.
. 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).
. See Grummett, 779 F.2d at 496 .
. The County has indicated that "[i]t is our custom and practice to perform regular mass pat searches and cell searches in Durango Jail for security 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.
. For example, O’Connell testified that of some thirty-two to forty-five cadets on hand only a couple were females.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9563675. Public record. Not legal advice.