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9th Circuit: En banc court strikes down district-wide shackling policy

United States v. Sanchez-Gomez, — F.3d —, 2017 WL 2346995 (9th Cir. May 31, 2017): Shackling of defendant in pretrial proceedings must be justified by individualized finding of compelling need

Harry Hunks: ‘Tis vile to be a baited bear, my friend/I’ faith it seems our woes shall never end.

Sackerson: We suffer not alone, my ursine pal/Think of those poor folks in the S.D. Cal.

Harry Hunks: Wait – what?

What is stranger, do you suppose: the fact that the first people ever to see Shakespeare’s plays also got a kick out of seeing a bear on a chain being whipped – or the fact that in certain high-volume federal districts, the spectacle of presumed-innocent defendants being paraded in and out of courtrooms in five-point restraints once became so perfectly routine that judges failed to exercise any meaningful discretion as to its appropriateness, even when challenged?

The question is moot: The former is a matter for historians of Elizabethan England, and the latter has just been addressed by a remarkable en banc decision from the Ninth Circuit.

In 2013, all but one of the judges in the Southern District of California acceded to the U.S. Marshals Service’s request that they adopt a district-wide policy of presumptively shackling all in-custody defendants in pretrial proceedings. Exceptions were available in theory, but vanishingly rare in practice – even for a defendant with a fractured wrist, and another confined to a wheelchair due to her “dire and deteriorating” health. Members of the Federal Defenders of San Diego, Inc. challenged the shackling in four separate cases, were denied relief, appealed, and filed emergency motions challenging the district-wide policy. Eventually, after a panel victory and grant of en banc review, their efforts generated a technical loss that was in reality an extremely significant victory.

Writing for the (one-vote) en banc majority, Judge Kozinski first addressed the question of jurisdiction. The challenge to the district-wide policy was in the nature of a civil class action, because the appellants sought relief not only for themselves, but for all in-custody defendants in the district. These being criminal cases, however, the majority elected to construe the notices of appeal as petitions for writs of mandamus. One proper use of such a writ is to exercise “supervisory” authority with respect to “questions of law of major importance to the administration of the district courts.” The majority found the standard mandamus factors satisfied: Mandamus relief would not supplant the normal appeal process; the relief sought could not be effectively addressed on direct appeal; the case raised new and important constitutional issues that had not been fully considered by the court; and the adoption of “routine shackling” policies appeared to be an “oft-repeated error” within the circuit. The majority found no mootness problem, because the capable-of-repetition-yet-evading-review principle applied: Individual defendants would move beyond pretrial proceedings before they could secure a decision, but fresh defendants are constantly shuffling into court behind them. That principle generally requires a likelihood of the same issue arising between the same parties — but because of the “functional class action[]” nature of the case, that was not a problem: The future defendants might not be the same people, but they would belong to the same class. And while the Southern District of California had modified its policy in response to the litigation, this “voluntary cessation” also did not create a mootness problem, particularly in light of the fact that the government expressly stated that it would move to reinstitute the policy if it prevailed.

Turning to the merits, the majority noted that while the phrase “innocent until proven guilty” was “well-worn,” it must also be “worn well.” Presumed-innocent defendants in pretrial proceedings have a protected liberty interest in being free from unnecessary bodily restraint. Routine shackling impairs this interest, undermines¬†the dignity and decorum of the judicial process, and can interfere with the defendant’s ability to communicate with counsel. The majority observed that “[a] presumptively innocent defendant has the right to be treated with respect and dignity in a public courtroom, not like a bear on a chain.” The majority accordingly held that “if the government seeks to shackle a defendant, it must first justify the infringement [of the defendant’s liberty interest] with specific security needs as to that particular defendant.” The court must then “decide whether the stated need for security outweighs the infringement on a defendant’s right.” These requirements “apply regardless of a jury’s presence or whether it’s a pretrial, trial or sentencing proceeding.”¬†And judges may not simply “incorporate by reference previous justifications in a general fashion” or “flip the presumption against shackling by requiring that the defendant come up with reasons to be unshackled.”

Having said all that, and held the routine-shackling policy unconstitutional, in light of the “voluntary cessation” of the policy the majority declined to issue a writ of mandamus.

Judge Schroeder wrote a brief concurrence, fully adopting the majority opinion and chiding the dissenters for lacking “sensitivity” to “the dignity with which court proceedings should be conducted,” as well as “the proper role of the judges as opposed to the Marshals Service in determining how a courtroom should be run.”

Judge Ikuta wrote for the five dissenters, disagreeing with the majority as to both jurisdiction and the merits. With respect to jurisdiction, the dissenters asserted that the appellants had no ongoing interest in the purely prospective relief they sought, and that no exception to the ordinary rules of mootness applied. The dissenters found no support in controlling precedent for the “functional class action” principle applied by the majority. And even if mootness were not a problem, the dissenters would not have found that the requirements for issuing a writ of supervisory mandamus were present, in view of the lack of precedent clearly mandating the majority’s conclusion. Moreover, even if neither of those problems were present, the dissenters would hold that the majority’s rule “has no pedigree” and does not protect “a well-established right.”

The dissenters claim the majority creates a circuit split. The Supreme Court may yet enter the pit. But for now, at least, district-wide pretrial shackling policies must exit, pursued by a bear.

(Congratulations to Reuben Camper Cahn, Shereen J. Charlick, and Ellis M. Johnston III, of Federal Defenders of San Diego, Inc.)

(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)