By Dan Whitcomb
LOS ANGELES (Reuters) - Firebrand Arizona sheriff Joe Arpaio's requirement that jail inmates wear pink underwear may be unconstitutional when applied to prisoners who have not been convicted of a crime, a federal appeals court said on Wednesday.
Two members of a three-judge appeal panel raised the issue while ruling for the majority in a related lawsuit against Arpaio and Maricopa County. But they stopped short of striking down the pink-underwear practice, saying it had not been formally challenged by plaintiffs in the case.
Pink underwear for male jail inmates is famously part of the tough stance against crime taken by Arpaio, the sheriff of Maricopa County who has come under fire by the U.S. Justice Department for a crackdown on illegal immigration that the government said involved racial profiling.
"Unexplained and undefended, the dress-out in pink appears to be punishment without legal justification," 9th U.S. Circuit Court of Appeals Judge John Noonan wrote for the majority.
Noonan said the U.S. Supreme Court allowed jail officials to use unpleasant measures so long as such moves served a legitimate purpose, such as the safety of the institution.
But the high court had ruled that arbitrary or purposeless requirements may be construed as punishments, which could not be imposed on people who had not been found guilty of a crime.
"It appears to us that this question is still open for exploration at trial on remand," Noonan wrote of the pink underwear practice in a 12-page opinion.
"The parties have not raised the question of whether the dress-out procedure is in every case a violation of due process when applied to persons convicted of no crime."
The opinion came just months after the Justice Department found that Arpaio and his deputies had violated civil rights laws by racially profiling Latinos and making unlawful arrests in an attempt to crack down on illegal immigration.
A spokesperson for the Maricopa County Sheriff's office could not immediately be reached for comment on the matter.
The appeals court took up the pink-underwear policy in reinstating a lawsuit against Arpaio and Maricopa County by the estate of a mentally ill man who died of an acute cardiac arrhythmia in 2001, weeks after being forcibly dressed in the underwear by jail officers.
Attorneys for Eric Vogel's estate did not argue that the practice itself was unconstitutional but said guards who were aware of his mental condition should not have subjected him to the dress-out procedure.
A jury returned a verdict on behalf of the defendants in the case after the trial judge limited testimony by Vogel's mother and sister recounting his state of mind following the jail incident, a ruling that the majority of the 9th Circuit panel said was erroneous and prejudicial.
(Reporting by Dan Whitcomb; Editing by Cynthia Johnston and Peter Cooney)