Byrd v. Maricopa Cnty SD, et al

Filing

FILED OPINION (ALEX KOZINSKI, 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) REVERSED AND REMANDED. Judge: JBR Authoring, Judge: NRS Concurring & Dissenting. FILED AND ENTERED JUDGMENT. [7600128]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES EDWARD BYRD,
Plaintiff-Appellant,
v.
MARICOPA COUNTY SHERIFF’S
DEPARTMENT; JOSEPH M. ARPAIO;
KATHLEEN O’CONNELL; AUSTIN
PETERSON; DURANGO JAIL,
Defendants-Appellees.




No. 07-16640
D.C. No.
CV-04-02701-NVW
OPINION



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

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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., Phoenix, 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

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favor of Defendants-Appellees Maricopa County Sheriff’s
Department and then-cadet Kathleen O’Connell (O’Connell).
I.

BACKGROUND

While Byrd was a pretrial detainee in a minimum-security
facility, Maricopa County jail officials ordered a search of
Byrd’s entire housing unit (approximately ninety inmates). It
is undisputed that no emergency existed. Rather, the search
was precipitated by the occurrence of several fights and a suspicion of contraband in the jail.
Maricopa County Special Response Team officers carrying
pepper ball guns and tasers entered the facility. They ordered
Byrd to remove all clothing except his boxer shorts, which
were pink and made of a very thin material. Once the inmates
in the housing unit formed a line, jail officials ordered four to
six inmates at a time into the “day room,” a common area, to
be searched. Cadets from the detention officer training academy searched the inmates with training supervisors present.
The cadets wore jeans and white t-shirts with their last names
printed on the back. They were not otherwise identified.1
Approximately twenty-five to thirty cadets and ten to fifteen
uniformed detention officers were present in the day room.
However, none of the detention officers participated in the
searches. 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 apparentness is not reflected in the record.

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Byrd was searched by a female cadet. He testified that, during the searches, male detention officers stood by watching.
The record clearly reflects that only four inmates were
searched at a time, by no means an overwhelming number.2
Although no factual finding was made on this point by either
the judge or the jury, contrary to the dissent, it was by no
means “undisputed . . . that the County did not have sufficient
numbers of male detention officers to conduct searches of
male inmates without the assistance of female officers.” Dissenting Opinion, 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 hidden in it. O’Connell did not look inside Byrd’s boxer shorts.
Next, O’Connell placed one hand on Byrd’s lower back
holding the back part of the boxer shorts and, with her other
hand, searched over his boxer shorts, his outer thigh from his
hip to the bottom of the shorts. She then moved her hand from
his outer thigh to the bottom of the shorts on his inner thigh
and applied slight pressure to feel his inner thigh for contraband. Using the back of her hand, O’Connell moved Byrd’s
penis and scrotum out of the way applying slight pressure to
search the area. O’Connell then searched the other side using
the same technique.
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 precisely 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 suggesting 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.

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Finally, O’Connell placed her hand at the bottom of Byrd’s
buttocks and ran her hand up to separate the cheeks while
applying slight pressure, to search for contraband inside his
anus. O’Connell estimated that the search lasted ten to twenty
seconds, and Byrd estimated that the search took sixty seconds. After the search was completed, Byrd was directed to
go to the opposite end of the day room, and sit facing the
wall.
On the day of the search, Byrd filed an inmate grievance
complaining that O’Connell “grab[bed] [his] balls and [his]
scrotum.” Byrd filed three additional inmate grievances to no
avail. Byrd subsequently filed a pro se complaint naming
Maricopa County Sheriff Joseph Arpaio (Arpaio), O’Connell,
and Captain Austin Peterson (Peterson) as defendants. The
complaint alleged that the search violated Byrd’s right under
the Fourth Amendment to be free from unreasonable searches,
and Byrd’s rights under the Fourteenth Amendment to equal
protection of the laws and substantive due process protection
to be free from punishment.3
The district court dismissed Byrd’s equal protection claim
but denied Maricopa County’s motion for summary 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”).

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Additionally, the district court granted judgment as a matter
of law in favor of Arpaio, finding that Byrd presented no evidence that Arpaio had instituted an unconstitutional policy or
had personally participated in the search. The court also ruled
as a matter of law that the search was constitutionally valid.
Thus, with O’Connell as the only defendant, the district court
narrowed the issues to be presented to the jury to these three:4
(1) whether “O’Connell deprived [Byrd] of his right against
unreasonable search by intentionally squeezing or kneading
his penis or scrotum or improperly touching his anus through
his underwear;” (2) whether “O’Connell deprived [Byrd] of
due process of law” by “intentionally squeez[ing] or knead[ing] [Byrd’s] penis or scrotum or improperly touch[ing] his
anus through his underwear,” with “[O’Connell’s] actions
inflict[ing] [wanton] pain on [Byrd];” and (3) whether
“O’Connell deprived [Byrd] of his right against unreasonable
search by conducting a search not done for [an] identified
security need.”5
The district court’s formulation of these three issues for the
jury’s consideration completely eliminated the jury’s contemplation of whether the cross-gender strip search violated
Byrd’s right under the Fourth Amendment to be free from
unreasonable search. Instead, the district court’s formulation
of the factual issues presented to the jury limited the determination of reasonableness under the Fourth Amendment to
whether O’Connell “intentionally squeezed or kneaded
[Byrd’s] penis or scrotum or improperly touched his anus
4

Because O’Connell was acting in her capacity as a cadet with the Maricopa 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.

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through his underwear.” The jury found in favor of O’Connell
on all counts.
In Byrd v. Maricopa County Sheriff’s Dep’t, 565 F.3d 1205
(9th Cir. 2009), a divided panel of this court affirmed the district court’s judgment. We subsequently granted rehearing en
banc, 583 F.3d 673 (9th Cir. 2009).
II.

STANDARD OF REVIEW

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

DISCUSSION
Substantive Due Process and Equal Protection
Claims

Byrd did not strenuously press his substantive due process
and equal protection claims during the en banc argument. In
fact, Byrd’s counsel candidly acknowledged that there was “a
basis” for the panel’s affirmance of the district court’s decision to dismiss Byrd’s equal protection claim for failure to
state a claim. We review this basis for dismissal de novo, and
may affirm the dismissal for any reason supported by the
record. See Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th
Cir. 2008).
A peripheral equal protection issue was in the air because
of the text of Maricopa County’s Contraband Control Policy
(Contraband Policy) distinguishing between male and female

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inmates when a frisk search is involved. According to the
Contraband Policy, “[m]ale inmates may be frisk searched by
either male or female officers[,]” but “[f]emale inmates will
only be searched by female officers, absent exigent circumstances.” However, there are two considerations that counsel
against delving too deeply into the equal protection issue. The
first is Byrd’s concession of “a basis” for the ultimate dismissal of his equal protection claim. The second is the lack of
a factual record to properly analyze the equal protection
claim.
[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 subjected 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

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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 existence 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 disparate 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. Thornburgh, 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 construing 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 disparate 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

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interpretation of a pro se civil rights complaint may not supply 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 governmental objective, it does not, without more, amount to punishment”) (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 omitted)). It is undisputed that the search in this case was
prompted by several recent fights and suspicion of contraband. 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 evidence 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 showing of intent to punish, a court must look to see if a particular
restriction or condition, which may on its face appear to be

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punishment, is instead but an incident of a legitimate nonpunitive 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 crossgender 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 evidence presented at trial presents only one reasonable conclusion. . .” Mangum, 575 F.3d at 938 (citation and internal
quotation marks omitted). In the context of this case, judgment as a matter of law would be appropriate only if the evidence 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 justification for initiating it,” and (4) “the place in which it is conducted.” Id. (citations omitted).6
We approach this issue by reiterating our longstanding recognition 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 personal dignity.” York v. Story, 324 F.2d 450, 455 (9th Cir.
1963); see also Michenfelder, 860 F.2d at 333 (same); Grum6

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.

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mett v. Rushen, 779 F.2d 491, 496 (9th Cir. 1985) (distinguishing 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., Nicholas D. Kristof, Op-Ed., Kids in Crisis (Behind Bars), N.Y.
TIMES, Jan. 28, 2010, at A33 (discussing a “stunning new Justice 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 potential 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 twofold: (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 officials 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 officials 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.

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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 crossgender 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 standards adopted by the American Correctional Association, the
accrediting body for adult correctional facilities. See Standards For Adult Correctional Institutions (2003).
Section 4-4194 addresses cross-gender strip searches, articulating 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 precedent recognizing the privacy interest of inmates in their personal 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.

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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 Grummett. 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.” Grummett, 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 “infrequent and casual observation, or observation at [a] distance,
. . . are not so degrading as to warrant court interference” (citing Grummett, 779 F.2d at 494-95) (parallel citations omitted). 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 Dissenting 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

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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 unidentified. 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 humiliating’ 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 appropriate 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 district 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 immediate emergency existed. See Thompson, 111 F.3d at 700 (noting that the purpose of the search was to “detect illicit
drugs”); see also Michenfelder, 860 F.2d at 332-33 (recognizing that a search for contraband constitutes adequate justification). 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

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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.” Dissenting 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 seethrough 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 inconsistent with Grummett, 779 F.2d at 496, in which we approved crossgender 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.

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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 emergency 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 weapons, matches, combustibles or other contraband . . .” Id. at
446 n.7. As in this case, the Plaintiff did not challenge the reasonableness 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 constitutional 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:

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(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 emergency 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),” violate that inmate’s constitutional right to be free from unreasonable 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 surrounding the search. See id. at 448 (“The caselaw supports the conclusion 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 inappropriateness of cross-gender strip searches. See Lee v.
Downs, 641 F.2d 1117, 1120 (4th Cir. 1981) (“[M]ales subject to frisk searches by female guards during which the genitals 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 perfectly. The professionalism with which the search is conducted in no way changes the consistent depiction of a crossgender strip search in the absence of an emergency as violative 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

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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 considered 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 prevented 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

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require monitoring of inmate searches or other activities 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 (citation and alteration omitted). The Seventh Circuit also recognized that the indignity is multiplied when one’s body is
exposed to a member of the opposite gender. See id. (referencing 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 genital 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 interests vis á vis the prison’s parallel interest in affording equal
employment opportunities. See id. at 188. In reversing the dismissal of Canedy’s Complaint, the Seventh Circuit proclaimed 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 emergency]”). Id. at 187.
In 1995, the Tenth Circuit addressed the issue of crossgender strip searches in Hayes v. Marriott, 70 F.3d 1144 (10th
Cir. 1995). Hayes alleged that a video-taped strip search conducted in the presence of, inter alia, female corrections offi-

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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 members are used whenever possible. There is no indication 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 privacy 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

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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 conducting the search is irrelevant. See Dissenting Opinion, p.
395. Interestingly, Maricopa County never challenged the precept that cross-gender strip searches are constitutionally
infirm in the absence of an emergency. Rather, it painstakingly 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 having 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 compounded 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 Yearbook and the district court’s formulation of an adverse inference instruction. 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 district court did not abuse its discretion when it declined to use the exact
wording Byrd requested for the adverse inference instruction. Byrd’s sug-

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IV.

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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 judgment 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. Howgested 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).

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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 respectfully 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 circumstances 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 particular 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 particular 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. Safley, 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-

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this test and properly finds that factors (3) and (4)—
justification and place, respectively—weigh in favor of a finding of “reasonableness” under the Fourth Amendment. Nevertheless, 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 execution of policies and practices that in their judgment are
needed to preserve internal order and discipline and to maintain 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 (interted). As discussed more fully infra, it is not disputed that the prison officials 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 unreasonable 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 regulation.” Id. Because we must defer to the County’s undisputed evidence
regarding its staffing needs, we cannot conclude that there were other reasonable alternatives to the search.

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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 undisputed factual findings that: (1) O’Connell did not “intentionally 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 differently 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 finding O’Connell’s search reasonable. Maj. Op. 382-83.
It is appropriate to begin the analysis by looking at the justification 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 Mich2

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, especially since the evaluation of the reasonableness of a search is heavily
dependent on the context of each case.

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enfelder, 860 F.2d at 333 (holding that, among other things,
“testimony and physical evidence . . . [of] contraband” justified the initiation of strip searches). Moreover, it is undisputed 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 contraband 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 documented 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.”) (internal 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 Michenfelder, 860 F.2d at 333 (“[W]e will not question [prison officials’] 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 Thompson v. Souza, 111 F.3d 694, 697, 701 (9th Cir. 1997) (approving 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 manner 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

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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 reasonable 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); Rickman 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 contrast to O’Connell’s search). However, it is clear that patdown 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 testicles, and the entire surface of the legs down to the feet” (internal 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

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Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999)
(en banc). The officers here searched the prisoners professionally,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 sanctioned. 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 prisoners’ 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 meaningful 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).

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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 without 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 officers 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 evidence 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 prisoners and their living quarters. Moreover, the majority’s argument that
female officers were not necessary for the search was contradicted by testimony 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 detention 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 officials as to how to maintain prison safety and order—including who should
conduct searches and how many officers are needed.

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a male inmate when other male officers are present, the realities of the prison’s staffing needs justify such searches. See
Michenfelder, 860 F.2d at 334 (“[R]equiring [female employees] 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 conducting 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 [officer]”); 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

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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 partially 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 patdown 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 contraband, the majority’s attempt to distinguish Grummett solely

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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 precedent does not suggest that a cross-gender strip search is
unconstitutional where the genitals remain covered throughout 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 “manner” 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,

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the professional nature of the search, or the County’s undisputed 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 contrast, 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 standards 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 “desire 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.

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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 instruction 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 findings, and our deference to prison officials’ expertise in these
matters. Balancing the four Bell factors in light of these limitations, I conclude that O’Connell’s search of Byrd was reasonable under the Fourth Amendment, and I respectfully
dissent from the contradictory analysis in the majority opinion.