Byrd

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…

Opinion by Judge IKUTA; Partial Concurrence and Partial Dissent by Judge FERNANDEZ.

Charles Byrd, a former pretrial detainee in the minimum-security Durango Jail in Maricopa County, Arizona, brought this action under 42 U.S.C. § 1988 against Maricopa County Sheriff Joseph Arpaio in his personal and official capacities, Kathleen O’Connell, a former cadet at the Maricopa County Sheriffs Office Training Academy, and Captain Austin Peterson, 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 judgment as a matter of law against Byrd on aspects of his Fourteenth 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…

Jarrett A. Green, Skadden, Arps, Slate, Meagher & Flom LLP, Los Angeles, CA, pro bono counsel for the appellant.

Eileen Dennis GilBride, Jones, Skelton & Hochuli, P.L.C., Phoenix, AZ, counsel for the appellee.

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.

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 Peterson, 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 judgment as a matter of law against Byrd on aspects of his Fourteenth and…