By Bob Egelko
The San Francisco Chronicle
SAN FRANCISCO — A male prisoner can be strip-searched by a female guard even if male officers are available, a federal appeals court has ruled.
In a 2-1 decision, the Ninth U.S. Circuit Court of Appeals in San Francisco dismissed an Arizona inmate’s claims that jail officials had violated his rights by having a female guard trainee search inside his shorts and pat down his genitals.
The inmate, Charles Byrd, was in Maricopa County’s minimum-security Durango Jail awaiting trial in October 2004 when officials ordered searches of everyone in his unit after a series of fights.
Byrd was ordered to strip down to his shorts. A female cadet from a training academy pulled out his waistband, patted down his groin through the shorts and felt his buttocks to check for contraband, the court said. The woman said the search had lasted no more than 20 seconds, while Byrd estimated one minute.
Byrd sued, claiming he had suffered pain and humiliation. A jury found no evidence that the probe had been conducted painfully, and the appeals court upheld a judge’s ruling that the search was constitutional.
“We are troubled by the overall circumstances,” said Judge Sandra Ikuta in this week’s majority opinion, describing the search as both invasive and embarrassing. But she noted that the court had allowed female guards to pat down clothed male prisoners and observe naked male inmates, and said the jail had legitimate security needs in this case.
Although male guards were available, an officer testified that there hadn’t been enough men to search all the inmates, Ikuta said. A ban on searches by female guards would “significantly limit” their usefulness, she said.
In dissent, Judge Ferdinand Fernandez, the only man on the panel, said, “Cross-gender strip searches are generally uncalled for and unreasonable,” and should be allowed only in emergencies.
Byrd’s lawyer, Jarrett Green, said he is discussing a possible appeal with his client, who is close to completing his sentence.
“Jail security would not have been in the slightest bit impaired or threatened if male officers, who were standing there perfectly available, were the ones to conduct the search,” Green said.
Copyright 2009 San Francisco Chronicle