This guy Vogel - who should have been taken by the cops to the psych
hospital, not to jail, died over ten years ago after fighting off a
bunch of guards trying to dress him in pink - and yet they still do this
kind of
thing to frightened, vulnerable, mentally ill prisoners today.
Apparently when this case first went to court, his trauma from that
incident wasn't really fully explored - the 9th Circuit Court seems to
think that the use of the pink underwear is indeed abusive, however, and
relevant, so it's being returned to the lower courts for a new trial -
with Arpaio as the defendant. As articulated by Justice Noonan:
"Unexplained
and undefended, the dress-out in pink appears to be punishment without
legal justification," he wrote. "It appears to us that this question is
still open for exploration at trial on remand."
To use
the color pink - long associated with the feminine - as a means
of humiliating male prisoners is pathetic and disgusting and says a lot
about not just Arpaio's homophobia and hate for people who are
gay/transgender/queer, but his deep contempt for women in
particular. How can women with any political awareness at all justify
allowing Arpaio and the MCSO to continue like this?
I have a hard
time understanding how the women in this state - Republicans and Dems
alike - have tolerated Arpaio's
misogyny for so long - much less why so many vote for him - except that
the women here have been very well-trained to comply. Women's rights
organizations in Arizona who aren't actively working to end mandatory
the pink underwear in the county jail are as much a part of the problem
as Sheriff Joe himself is - they should be supporting this suit. The use
of pink - the feminine - as something to abuse people with is not a
petty issue - it's a symptom of the toxic attitudes towards people (not
just prisoners) that defines the MCSO's culture, and it's killing folks.
For
those interested, by the way, the actual court opinion on this is linked
to at the bottom of the article. Interesting read. Maybe this guy will
be the one responsible for reining in Arpaio's expressions of hate in
his policies, anyway, even though it sure won't change the man.
"Corrupt Joe"
Wells Fargo/Arpaio HQ
June 7, 2011
By TIM HULL
March 7, 2012
(CN) - The 9th Circuit ordered a new trial Wednesday in the case of a
schizophrenic Arizona man who had a fatal heart attack weeks after he
was forced to put on pink underwear in Sheriff Joe Arpaio's notorious
county jail.
Maricopa County authorities stopped 36-year-old
Eric Vogel in 2001 while looking for a burglar in his Phoenix
neighborhood. Vogel, who had a lifelong history of mental illness and
social isolation, had left the home he shared with his mother that
morning for the first time in years. When the officers questioned him,
he struggled, shouted "kill me" and said he needed to talk to the
president. The deputies arrested him and booked him in Arpaio's jail for
assaulting a police officer. Vogel was transferred to the psychiatric
unit after he told a psychologist that he was at the World Trade Center
and getting messages from satellites, but not before being subjected to a
"dress-out" in which four officers forced the struggling inmate to
change into pink underwear and other jailhouse garb.
Arpaio famously requires of all Maricopa County Jail inmates to wear pink underwear.
Vogel
spent a week in the unit before his mother bailed him out. A short time
later, he was in his mother's car when she had a traffic accident.
Police at the scene warned Vogel that there was a warrant out for his
arrest for spitting on an officer during the "dress-out." Vogel left the
scene and ran for approximately 5 miles. He died the next day of acute
cardiac arrhythmia.
Vogel's mother sued Maricopa County and
Arpaio for violating federal civil rights law and other statutes,
including the Americans With Disabilities Act. Yavon Wagner, Vogel's
sister, stepped in as the plaintiff when her mother died shortly before
the trial.
Vogel allegedly thought he was being raped by the
officers, and that they were dressing him in pink underwear as some sort
of preparation for a "gang rape." Vogel had been obsessed with the
humiliating jailhouse incident, and that the lingering trauma of the
dress-out had contributed to his death, according to the complaint.
At
trial, however, Senior U.S. District Judge Earl Carroll barred Wagner
from testifying about her brother's state of mind, finding it hearsay.
He also prohibited mention of "rape," "gang rape," and "pink underwear,"
finding no evidence that Vogel had known the underwear he was forced to
wear was indeed pink. The court also limited expert testimony as to the
possible effects of the dress-out and about an alleged connection
between schizophrenia and cardiac arrhythmia. At the trial's end, "the
District Court abruptly eliminated the plaintiff's opportunity for
rebuttal argument," according to the ruling. A jury found for the
defendants.
But the 9th Circuit voted 2-1 on Wednesday to
reverse the verdict and order a new trial. The San Francisco-based panel
found that the lower court had committed a fatal error by limiting the
plaintiffs' testimony, and had done so again by refusing to consider the
psychological implications of pink underwear.
"Indisputably,
Wagner could have testified at trial about the impact the jail incident
had on Vogel, how his mood was following the incident, how disturbed he
seemed, and even what he thought happened to him during the incident,
all without putting inadmissible hearsay before the jury," Judge John
Noonan wrote for the majority. "None of this testimony would have been
put forth in order to establish the truth of what he had said. Wagner
proposed to testify about how extremely delusional Vogel was following
the incident, and more importantly, the emotional impact the incident
had on him, including how humiliated he now felt by the pink underwear.
She was not asserting the truth of anything that Vogel said had happened
to him in jail."
Because of the "symbolic significance" of the
color pink in American culture, the jury should have been permitted the
jury to consider the "impact of the dress-out on Vogel apparent from his
conversation with his sister," the panel found.
"When a color
of such symbolic significance is selected for jail underwear, it is
difficult to believe that the choice of color was random," Noonan wrote.
"The county offers no penalogical reason, indeed no explanation
whatsoever for its jail's odd choice. Given the cultural context, it is a
fair inference that the color is chosen to symbolize a loss of
masculine identity and power, to stigmatize the male prisoners as
feminine."
"That Vogel was delusional does not mean that he was
incapable of seeing," Noonan added. "If you pricked him, he bled. Just
as his eyes saw the pink, so his mind made the association of the color.
So at least a jury could infer from the impact of the dress-out on
Vogel apparent from his conversation with his sister."
Noonan suggested further that the District Court may want to consider the legality of Arpaio's underwear rules on remand.
"Unexplained
and undefended, the dress-out in pink appears to be punishment without
legal justification," he wrote. "It appears to us that this question is
still open for exploration at trial on remand."
Writing in
dissent, Judge N.R. Smith argued that the majority had failed to
"correctly construe the hearsay rule," and had neglected to give "the
proper deference to the District Court's other evidentiary rulings."
Neither
John Curtin, who represented the plaintiffs, nor Maricopa County's
attorney, Eileen GilBride, could be immediately reached for comment.
Link to Court Opinion
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