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Did Sheriff Arpaio's Pink Underwear Kill a Man?

By Robyn Hagan Cain | Last updated on

The Ninth Circuit Court of Appeals ruled this week that a district court improperly excluded evidence from a civil rights trial examining the effects of Maricopa County Sheriff Joe Arpaio's pink underwear policy on a mentally-ill suspect.

Police in Maricopa County detained Eric Vogel while investigating a burglary in 2001. Vogel was arrested for assaulting a police officer in an ensuing struggle. At the Phoenix jail, which Arpaio runs, Vogel was diagnosed as disoriented, paranoid, and psychotic, and placed on psychiatric hold.

In accordance with Arpaio’s jail rules, Vogel was forced to “dress out” — change into the prison uniform and pink underwear. Vogel, however, refused. When the dress out officer summoned four additional offers to hold Vogel down while his clothes and underwear were changed, Vogel yelled that he was being raped.

After Vogel was released, he was in a minor car accident with his mother. Upon hearing there was a warrant for his arrest — and that he might be returned to jail — Vogel ran four or five miles from the car. He died the next day from acute cardiac arrhythmia.

Vogel’s family sued Sheriff Arpaio and Maricopa County, claiming that Arpaio’s pink underwear and other civil rights violations caused Vogel’s death.

At trial, the judge ruled on a motion in limine that Vogel’s mother and sister could not testify to what he told them about events at the jail, (specifically, Vogel’s belief that he had been raped during the dress out). The court also ruled that the family’s lawyer could not refer to “pink underwear” unless he could show that the record contained “credible evidence” that Vogel was aware of the color of the underwear.

At the end of the trial, the jury ruled in favor of the defendants.

The Ninth Circuit Court of Appeals reversed that decision, finding that Vogel’s family members should have been permitted to testify under Federal Rule of Evidence 803(3), as long as their testimony was offered to show Vogel’s state of mind rather than the truth of the matter asserted. The Ninth Circuit further reasoned that the trial court’s suppression of any reference to pink underwear was an abuse of discretion.

In addition to reversing the district court regarding testimony admissions, the Ninth Circuit suggested revisiting the constitutionality of the pink underwear. While the Ninth Circuit couldn’t review the pink underwear policy because the issue wasn’t raised on appeal, the trial court could delve into the question on remand.

The appellate court, describing the dress out policy as “unexplained and undefended,” said the pink underwear appears to be punishment without legal justification.

Do you think the trial court will find that Sheriff Arpaio’s pink underwear is unconstitutional?

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