PHOENIX – 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.

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Sheriff Joe Arpaio’s policy of dressing inmates in pink underwear “appears to be punishment without justification,” a U.S. appeals court says. 2011 Associated Press File

“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 Arpaio’s jails is, in every case, a due-process violation when applied to inmates who are not convicted of a crime.

Early on in his nearly 20-year tenure as 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.

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 for a larger panel of the appeals court to reconsider the case. “What do they do next – take away the striped uniforms?” Arpaio said.

In its 2-1 ruling, the appeals court threw out a 2010 jury verdict in favor of 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 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 Vogel and that his client didn’t suffer injuries at the jail.

Vogel, who was determined by a counselor to be paranoid and psychotic, died less than a month later, after he and his mother got in a minor car accident. When the officer handling the accident told Vogel that he might be jailed on a warrant stemming from his previous struggle to wear jail clothes, Vogel ran several miles from the scene back to his home. He died the next day, and medical examiners concluded the cause was cardiac arrhythmia.

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