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Ninth Circuit Denies En Banc Rehearing in Pink Underwear Lawsuit

By Robyn Hagan Cain on November 16, 2012 | Last updated on March 21, 2019

The Ninth Circuit Court of Appeals rejected a petition for rehearing this week in a lawsuit challenging Maricopa County Sheriff Joe Arpaio's pink underwear policy.

Barring Supreme Court intervention, that means the Ninth Circuit's panel decision ordering a new trial in the case stands.

Maricopa County officers 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 the infamous Sheriff Joe 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 civil rights violations caused Vogel's death. The district court limited plaintiffs' evidence during the trial, and the jury found in favor of the defendants.

On appeal, the Ninth Circuit panel held:

  • The district court erred by limiting the testimony of Vogel's sister at trial under the hearsay rule because her statements were offered to establish Vogel's state of mind.
  • The district court erred by excluding references to the pink underwear, and that, unexplained and undefended, the dressout in pink appeared to be punishment without legal justification.
  • The due process question was still open for exploration at trial on remand. (Alternatively, the plaintiff could prevail on the narrower issue of whether defendants were deliberately indifferent to Vogel's serious medical needs.)
  • The district court should have permitted Vogel's expert to offer the opinion that the stress of the dress-out incident could have exacerbated Vogel's mental illness.

While Vogel's family will have another chance to re-try their case and present the previously-excluded evidence, it doesn't mean they'll win. Sheriff Arpaio (who just won re-election to his sixth term) clearly has support from the locals who would be on a future jury in the case.

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