Appeals Court denies Arpaio's bid for a rehearing

PHOENIX - A federal appeals court has declined to hear Maricopa County Sheriff Joe Arpaio's appeal of a ruling that criticized a decision by his jail officers to force pink underwear onto a mentally ill inmate who erroneously believed jailers were trying to rape him.

The refusal by the 9th U.S. Circuit Court of Appeals means Arpaio has all but exhausted his appeals in the case. The U.S. Supreme Court declined to hear an appeal in March.

In an amended opinion Monday to its November 2012 decision, the three-judge panel of the 9th Circuit voted to deny the petition for rehearing and Arpaio's request to have a larger panel of justices reconsider the issue.

The lawsuit by the estate of Eric Vogel now is one step closer toward having a second trial in U.S. District Court in Phoenix.

"We will get a chance to have our day in court," said Joel Robbins, a lawyer for Vogel's estate.

"Bring it on. We love to go to trial," said Deputy Chief Jack MacIntyre, one of Arpaio's aides. "I find it appalling that Robbins wants his day in court. He had his day in court and he lost."

Arpaio's office won the case at trial in 2010, but the 9th Circuit threw out the verdict last year and called for a new trial.

The appeals court said dressing inmates in pink underwear -- a hallmark of the 81-year-old Arpaio -- appeared to be punishment without legal justification and noted that it's fair to infer that the selection of pink as the underwear color was meant to symbolize the loss of prisoners' masculinity.

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

Arpaio's attorneys wanted the nation's highest court to examine whether having pink boxers as part of the standard jail uniform can constitute punishment before a trial is held.

Vogel had refused to get out of his street clothes after he was arrested in 2001 for investigation of assaulting an officer who was responding to a burglary call. A group of officers in the jail stripped Vogel and put him in pink underwear and other prison clothing as he shouted that he was being raped.

A 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 an officer handling the accident told Vogel that he might be jailed on a warrant stemming from his previous struggle involving jail clothes, Vogel ran several miles from the scene back to his home.

He died the next day at age 36. Medical examiners concluded the cause was cardiac arrhythmia.

"Mr. Vogel was running in high temperatures. He died after he was stopped by Phoenix police, not MCSO," MacIntyre said. "There is no indication that anyone attempted to assault Mr. Vogel at all other than to have him change into standard jail apparel."

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