By Associated Press - Thursday, March 8, 2012

PHOENIX (AP) — The pink underwear worn by inmates in Arizona’s largest county are a hallmark of America’s self-proclaimed toughest sheriff.

They also have become the target of criticism by an appeals court considering the case of a mentally ill man who mistakenly viewed officers’ efforts to forcibly clothe him as a rape attempt.

The 9th U.S. Circuit Court of Appeals ruled Wednesday that strip searches and other steps may be necessary for jail security, but questioned the legal justification in one particular case for Maricopa County Sheriff Joe Arpaio’s policy of dressing an inmate in pink undergarments.

“Unexplained and undefended, the dress-out in pink appears to be punishment without legal justification,” the court said in its majority decision. It also noted earlier in the ruling that it’s fair to infer that the selection of pink as the underwear color was meant to symbolize the loss of prisoners’ masculinity.

The court pointed out, however, that no attorney on either side of the case questioned whether the dressing of prisoners in Sheriff Arpaio’s jails is, in every case, a due-process violation when applied to inmates who are not convicted of a crime.

In its 2-1 ruling, the appeals court threw out a 2010 jury verdict in favor of Sheriff Arpaio’s office and ordered a new trial in a lawsuit brought by the estate of Eric Vogel.

Vogel refused to get out of his street clothes after he was arrested in November 2001 for assaulting an officer who was responding to a burglary call. A group of officers in Sheriff Arpaio’s jail stripped Vogel and put him in pink underwear and other prison clothing as he shouted that he was being raped. The lawyer for Vogel’s estate has said the officers didn’t sexually assault him.

Early on in his nearly 20-year tenure as sheriff, Sheriff Arpaio won points with voters for making inmates wear pink underwear, housing them in canvas tents during Phoenix’s triple-digit summer heat, and dressing them in old-time striped jail uniforms.

Sheriff Arpaio has joked about the popularity of the pink underwear issue with voters. In January 2010, he told the Associated Press that “you know what my joke is: I can get elected on pink underwear. I don’t need this illegal immigration to get elected.”

The sheriff said Thursday that he plans to ask the whole appeals court to reconsider. “What do they do next — take away the striped uniforms?” he said.

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