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Michael D. Fitts, (briefed and argued) Greines, Martin, Stein & Richland Llp, Beverly Hills, California; Kevin C. Brazile, Deputy County Counsel, County of Los Angeles, Los Angeles, California, for the defendant-appellant.

Stephen Yagman (argued), Yagman & Yagman, P.C., Venice, California; Marion R. Yagman (briefed), Yagman & Yagman, P.C., Venice, California, for the plaintiff-appellee.

Lowell V. Sturgill, Jr., U.S. Department of Justice, Civil Division, Appellate Staff, Washington, D.C., for amicus curiae United States.

Paul L. Hoffman, Bostwick & Hoffman, Llp, Santa Monica, California, and William J. Aceves, San Diego, California, for amicus curiae Amnesty International.

Appeal from the United States District Court for the Central District of California Dean D. Pregerson, District Judge, Presiding D.C. No. CV-98-05605-DDP

Before: James R. Browning and A. Wallace Tashima, Circuit Judges, and Samuel P. King, District Judge.1

Defendants Lee Baca, et al., appeal a preliminary injunction prohibiting the use of a stun belt on prisoners appearing in Los Angeles County courts. We conclude the injunction was too broad, and remand for further proceedings.

Plaintiff and Appellee Ronnie Hawkins was a convicted criminal defendant scheduled to appear for sentencing. Before the hearing, the bailiffs informed the presiding judge that Hawkins was "being difficult," "acting up in the lockup area," "violent," and "threatening to spit on deputies to give them A.I.D.S. because he was H.I.V. positive." Because of Hawkins' behavior and his previous threats of violence, the Los Angeles County Sheriff sought and secured an order authorizing placement of a "stun belt" on Hawkins during the hearing. The belt was activated during the hearing for the stated reason that "Hawkins made several statements out of order and acted in a generally disruptive manner."2 Hawkins v. Comparet Cassani, 33 F. Supp. 2d 1244, 1248 (C.D. Cal. 1999).

The device used upon Hawkins was a Remote Electronically Activated Control Technology (REACT) belt, which is a "remotely operated electronic restraint device " designed to cause an electric shock that will "disorient, temporarily immobilize and stun a person without causing permanent injuries." It can be activated by a law enforcement official up to 300 feet away using a remote control. Stun belts are used by the Sheriff's staff to control high-risk defendants in court, during transportation, and in other prison contexts. The belts are usually worn under a prisoner's clothing while in the courtroom.

When activated, the belt delivers a 50,000-volt, three to four milliampere shock lasting eights seconds. Once the belt is activated, the electro-shock cannot be shortened. It causes incapacitation in the first few seconds and severe pain during the entire period. Activation may lead to involuntary defecation and urination; immobilization may cause the victim to fall to the ground. Other courts have found the shock can "cause muscular weakness for approximately 30-45 minutes," see, e.g., People v. Melanson , 937 P.2d 826, 835 (Colo. 1996), and it is suspected of having triggered a fatal cardiac arrhythmia. See Shelley Dahlberg, Comment, The React Security Belt: Stunning Prisoners and Human Rights Groups into Questioning Whether Its Use Is Permissible Under the U.S. and Texas Constitutions, 30 St. Mary's L.J. 239, 251-52 (1998). The "belt's metal prongs may leave welts on the victim's skins" that take months to heal. Id. at 249.

According to the Sheriff's written policy, the belt may not be used on pregnant women or persons with heart diseases or muscular dystrophy, or to "unlawfully threaten, coerce, harass, taunt, belittle, injure, punish or abuse any person." The written policy statement also specifies the circumstances under which the belt may be used:

The R.E.A.C.T. Belt may be placed around the waist of any prisoner whose actions pose a physical threat to the safety of deputies, a Judge or courtroom staff. The belt may only be placed on a prisoner under the following circumstances:

i. An attempted escape while in custody or in a courtroom

ii. Violent or assaultive behavior while in custody or in a courtroom

iii. Documented past incidents of violent or assaultive behavior while in custody or in a courtroom.

iv. Documented past incidents of escapes or attempted escape from custody or from a courtroom.

v. Documented incidents in which the person has threatened to escape or attempt to escape from custody; or has threatened violent or assaultive behavior while in custody.

vi. Documented or objectively observable evidence that the prisoner poses a threat because he/she is suffering from a mental disorder or disease.

vii. Overt acts or attempt [sic] to remove restraints or the R.E.A.C.T. Belt itself.

viii. The R.E.A.C.T. Belt may also be used pursuant to a facially valid court order communicated to Sheriff's personnel by the Judge.

Use of the stun belt in court "requires the approval of the Judge hearing the case."3

The written policy permits activation of the belt (i.e. stunning the wearer) under the following circumstances:

- Any attempt to escape or to assault the Court, courtroom staff, deputies or spectators.

- To prevent any battery or physical injury from being inflicted upon the Court, courtroom staff, deputies or spectators.

- Any attempt to remove the belt or other physical restraints.

- A facially valid court order issued by a Presiding Judge.

The policy requires that warnings be given where and when possible and that the prisoner receive immediate medical treatment after activation of the belt.

In Los Angeles County, the belt has been placed on approximately 200 detainees, at more than a thousand court proceedings. It has been activated on three people, including Hawkins, once apparently by accident.

Hawkins filed suit against the presiding judge, the Los Angeles Municipal and Superior Courts, the Los Angeles County Sheriff, and the County of Los Angeles. He sought compensatory and punitive damages, a declaratory judgment that use of the stun belt is unconstitutional, and an injunction prohibiting the defendants from using the stun belt"on any person by any judge or law enforcement officer in Los Angeles County." In his claim for damages and injunctive and declaratory relief, Hawkins purported to represent, and moved to certify, a class consisting of all individuals in the custody of the Los Angeles County Sheriff who may be brought before a county superior or municipal court and required to wear a stun belt.

After a hearing, the district court filed an order granting in part and denying in part defendants' motion to dismiss, granting plaintiffs' motion for class certification, and granting plaintiffs' motion for preliminary injunction. See Hawkins, 33 F. Supp. 2d at 1244.4

The district court granted Hawkins' motion to certify a class of all persons in the custody of the Los Angeles County Sheriff who are appearing in state court and may be subjected to use of the stun belt.5 Id. at 1260. The court found common issues of law and fact because "the issue is whether using stun belts is a per se constitutional violation." Id. at 1259. The court concluded that Hawkins' interests would not be antagonistic to the interests of other prisoners. Id. at 1260.

The preliminary injunction ordered the Los Angeles County Sheriff "not to seek a judicial order to either place or activate a stun belt on a prisoner in his custody pending the outcome of trial." Id. at 1262. The court concluded that the mere placement of the belt on a detainee raises"serious questions going to the merits of the Fourth Amendment and Eighth Amendment claims" and held that the balance of hardship tips in favor of the plaintiffs. Id. The court also addressed Sixth Amendment concerns, referring to the belt as a "pain infliction device that has the potential to compromise an individual's ability to participate in his or her own defense."6 Id.

The Sheriff appealed the preliminary injunction and the class certification separately.7 We granted the Sheriff's motion to consolidate.

Defendants challenge Hawkins' standing individually to seek injunctive relief, relying on City of Los Angeles v. Lyons, 461 U.S. 95 (1983). In Lyons, the Supreme Court denied standing where the plaintiff could not show a sufficient likelihood that he would be injured in the future by the police chokehold he sought to enjoin. See id. at 105-07. In LaDuke v. Nelson, 762 F.2d 1318 (9th Cir. 1985), we distinguished Lyons on three grounds equally applicable here. We focus our analysis on Hawkins' standing at the time the class was certified. Although Hawkins' individual claim may have since become moot,8 the existence of the class preserves the live case or controversy demanded by Article III. See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 409 (1980).9

First, there is a likelihood of recurrence. At the time of class certification, Hawkins remained imprisoned and in custody of Defendants. Since use of the belt is based on past conduct, Hawkins need not have been arrested or engaged in illegal behavior to subject him to its use. Cf. Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1041 (9th Cir. 1999) (en banc) (distinguishing Lyons based on legality of plaintiffs' conduct). Under the Sheriff's policy, Hawkins needed only to enter a Los Angeles courtroom to justify use of the belt.10 As his history demonstrates, this prospect was not remote. Even now, Hawkins may wish to pursue state habeas claims or seek other post-conviction relief that would bring him once more before the Los Angeles courts.11

Second, unlike the chokehold in Lyons, use of the belt stems from the Sheriff's official written policy. Cf. LaDuke, 762 F.2d at 1324. Third, as in LaDuke but not in Lyons, Hawkins was seeking injunctive relief on behalf of a class. Although Hawkins had to establish standing personally before obtaining class certification, it is not irrelevant that he sought to represent broader interests than his own. See id. at 1325.

Unlike LaDuke, and like Lyons, this case involves an injunction of state law enforcement matters and thus raises federalism considerations. However, unlike Lyons Hawkins demonstrated the likelihood of irreparable injury in the absence of injunctive relief. Cf. 461 U.S. at 112. Therefore, because Hawkins met the other three LaDuke factors, we conclude that Hawkins, individually, had standing to enjoin Defendants from using the stun belt on him.12

A district court's decision regarding class certification is reviewed for abuse of discretion. See Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996). A court abuses its discretion if its certification order is premised on legal error. See Knight v. Kenai Peninsula Borough Sch. Dist., 131 F.3d 807, 816-17 (9th Cir. 1997).

The Federal Rules of Civil Procedure allow class certification if the proponent shows:

(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a).

The district court granted class certification and allowed Hawkins to represent "all persons who (1) are in custody of the Los Angeles County Sheriff, (2) are appearing in either a Los Angeles County municipal or superior court, (3) who engage in conduct that is perceived to be disruptive, and (4) upon whom the custodial officer may subject use of the stun belt." Hawkins, 33 F. Supp. 2d at 1260.

We agree with the district court that the number of people who fall within the class is sufficient to meet the numerosity requirement of Rule 23(a). A class action eliminates the need for cumbersome, individual litigation regarding the constitutionality of use of the stun belt. There are also questions of law or fact common to the class: All class members face the prospect of having the stun belt placed on them while in court and challenge the constitutionality of such belt usage; all have standing to bring Sixth (and, possibly, First) Amendment claims that raise substantially similar issues.

However, the class certified is defective. Hawkins, a convicted prisoner, was granted class representative status over both convicted and non-convicted prisoners and presents some claims that are not typical of all class members: He raises an Eighth Amendment claim, which is reserved for "those convicted of crimes" and therefore would not apply to pre-trial detainees. Whitley v. Albers, 475 U.S. 312, 318 (1986); Ingraham v. Wright, 430 U.S. 651, 671-72 n.40 (1970). As a convicted prisoner, Hawkins himself cannot bring a Fourth Amendment claim, which applies only to those not yet convicted. See Graham v. Connor, 490 U.S. 386, 395 & n.10 (1989). A named plaintiff cannot represent a class alleging constitutional claims that the named plaintiff does not have standing to raise. See O'Shea v. Littleton , 414 U.S. 488, 493-94 (1974). It is not enough that the class members share other claims in common.

Therefore, the district court erred in granting class certification to the entire class as regards the claims brought under the Fourth and Eighth Amendments.13 These claims can be maintained in a class action only by certifying subclasses, with appropriate representation. See Betts v. Reliable Collection Agency, Ltd., 659 F.2d 1000 (9th Cir. 1981). On remand, Plaintiffs must determine whether to separate non-convicted and convicted class members and seek appointment of a new class representative to represent the non-convicted prisoners, or to otherwise refashion this action to remedy the class defects. See Fed. R. Civ. P. 23(c)(4); see also Marisol A. v. Giuliani, 126 F.3d 372, 378 (2d Cir. 1997). The district court is not "to bear the burden of constructing subclasses" or otherwise correcting Rule 23(a) problems; rather, the burden is on Plaintiffs to submit proposals to the court. United States Parole Commission v. Geraghty, 445 U.S. 388, 408 (1980).

Because Hawkins, the only named plaintiff, cannot bring a Fourth Amendment claim, the preliminary injunction must stand, if at all, on the Sixth and Eighth Amendments. We conclude that the injunction is justified under the Sixth Amendment, but only in a narrower form that does not bar using the belt where necessary to protect courtroom security.14

A preliminary injunction will be reversed only if the district court abused its discretion. "It will not be reversed simply because the appellate court would have arrived at a different result if it had applied the law to the facts of the case." Gregorio T. v. Orange Unified Sch. Dist., 59 F.3d 1002, 1004 (9th Cir. 1995 (internal citations and quotes omitted). A preliminary injunction must be supported by findings of fact, which are reviewed for clear error. See Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 701 (9th Cir. 1997); Schwarzer, Tashima et. al., Federal Civil Procedure Before Trial, ¶ 13:176, at 13-57 (2000).

The district court found that the belt had a "chilling effect," deterring defendants from participating in their own defense. 33 F. Supp. 2d at 1262. The court noted that the boundary "between aggressive advocacy and a breach of order" is "inherently difficult to define," and found that defendants might refrain from the former out of fear of "being subjected to the pain of a 50,000 volt jolt of electricity" should their conduct cross the line.15 Id. Indeed, the psychological toll exacted by such constant fear is one of the selling points made by the manufacturer of the belt. See Dahlberg, supra, at 252 (citing Stun-Tech literature promoting "total psychological supremacy [over] troublesome prisoners").

If the belt is activated, the defense is "likely to be even more compromised," leaving the defendant unable"to meaningfully participate in the proceeding." 33 F. Supp. 2d at 1262. Accidental activations, although rare, have been documented on more than one occasion. See, e.g., State v. Wach, 952 P.2d 396, 398 (1997) (Idaho Ct. App.); State v. Filiaggi, 714 N.E.2d 867, 875 (Ohio 1999); see also Dahlberg, supra, at 289 (reporting at least nine accidental activations nationwide in initial years of use). The record indicates at least one such unintentional activation has occurred in Los Angeles County.

The district court's findings are credible, largely uncontested, and consistent with other reported opinions.16 The "chilling effect" the court describes obviously prejudices a defendant's Sixth Amendment's guarantee of a fair trial. We therefore sympathize with the district court's conclusion that a device with such dangerous potential "does not belong in a court of law." 33 F. Supp. 2d at 1262. However, the district court's findings of prejudice do not support its conclusion that serious questions exist as to whether use of the stun belt constitutes a per se violation of the Sixth Amendment, even used to protect the security of the courtroom and its occupants.

In analyzing the belt's Sixth Amendment implications, there is an important difference between verbal disruption and conduct that threatens courtroom security.17 The district court's findings address only use of the belt in dealing with conduct that is potentially disruptive. The court concluded that because the line between aggressive advocacy and expression disruptive to courtroom order is not always clear, defendants may be deterred from engaging in forceful, but permissible advocacy for fear of being stunned if they cross the line. See 33 F. Supp. at 1262. However, threats of violence or escape are sufficiently identifiable to permit a defendant to advocate his cause without fear that excessive zealousness will be mistaken for such a threat. The district court's concerns about the belt's "chilling effect" would be far less than compelling if use of the belt were restricted to preventing violence or escape.18

The rights of the accused must be balanced against the safety of the court and those who work in it. Even if use of the belt for security purposes did have some potential to prejudice defendants, the district court would need to consider whether the alternatives are less prejudicial.19 As this court has noted, other methods of restraint have serious drawbacks of their own.

For example, the use of shackles may prejudice a defendant in the eyes of the jury by impairing the presumption of innocence. See Duckett v. Godinez, 67 F.3d 734, 747 (9th Cir. 1995); Spain v. Rushen, 883 F.2d 712, 721 (9th Cir. 1989). Even at sentencing, where a defendant's guilt is no longer in dispute, we have held that shackling "is an inherently prejudicial practice" that "detract[s] from the dignity and decorum of the proceeding and impede[s] the defendant's ability to communicate with his counsel." Duckett, 67 F.3d at 747. In addition, shackles "may confuse and embarrass the defendant," id. at 748, and can cause significant pain if worn over the course of a prolonged trial. See Spain, 883 F.2d at 723-26 (debilitating back pain caused by wearing 25 pounds of shackles 10-12 hours per day over five-year pretrial and trial left defendant unable to participate in his own defense). Conversely, less extensive shackling may prove ineffective. See King v. Rowland, 977 F.2d 1354, 1358 (9th Cir. 1992) (defendant able to attack attorney while restrained in leg irons).

Removing prisoners from the courtroom is also problematic since it necessarily limits their Sixth Amendment right to presence.20 See Allen, 397 U.S. at 341-43. This is so particularly where a defendant is acting pro se. See, e.g. Hamilton v. Vasquez, 17 F.3d 1149, 1155 (9th Cir. 1994).21

The prejudice associated with these alternative methods of control is accentuated when they are relied on for security purposes. Although disruptive conduct may be addressed by merely temporary restraints or removal, when premised on a security risk, the need for prophylactic measures is likely to continue throughout the trial. Compare Allen, 397 U.S. at 1061 ("Once lost, the right to be present can . .. be reclaimed as soon as the defendant is willing to conduct himself [appropriately]"), with Spain, 883 F.2d at 719 (security risk defendant shackled with 25 pounds of chains throughout five-year proceedings). As already noted, prolonged shackling can have a compound impact that is disproportionately prejudicial. See Spain, 883 F.2d at 723-26 (pain from shackles prevented defendant's from participating in his defense). The prejudicial effect of a prolonged exclusion from the courtroom could be similarly disproportionate. See id. at 737-739 (Noonan, J., dissenting) (arguing that conducting trial in absentia is no better than long-term shackling).22

Moreover, whereas restraint or removal of disruptive defendants is generally based on their misconduct in the immediate trial, security risk can be premised on past behavior, as the Sheriff's policy explicitly states. See Wilson v. McCarthy, 770 F.2d 1482, 1485 (9th Cir. 1985) (security risk based on prior, out-of-court record). Concern that the presumption of innocence may be jeopardized is more acute than where restraints are justified contemporaneously. Compare Spain , 883 F.2d at 722 (visible restraints prejudiced defendant in jury's eyes), with King, 977 F.2d at 1358 (defendant's in-court misconduct negated prejudicial impact of restraints). A stun belt, being largely invisible to the jury, avoids such prejudice, unless and until it is activated.

The stun belt offers more effective protection of courtroom security than alternative methods. Activated by the touch of a button, it can neutralize a security threat instantly and remotely. So long as the prejudice resulting from its use is no greater than that of the alternatives, we should be reluctant to deny recourse to what may be a valuable tool in protecting courtroom security.

We have seen that in shifting the focus from disruption to security, the belt's "chilling" effect becomes less prejudicial and the alternatives more so. For this reason, the district court findings regarding disruption do not support the injunction in the context of security.23 We therefore conclude that the district court abused its discretion in ruling that a serious question of a Sixth Amendment violation existed as to the use of stun belts to maintain courtroom security. To the extent the injunction prevents use of the belt for this purpose, it is overbroad.24

Mindful of the restraint that must be exercised when enjoining a state's administration of its own criminal laws (O'Shea, 414 U.S. at 499-502), it is appropriate to inquire whether there is a need for an injunction at all. Might the experience of Hawkins be an aberration? If the belt is unlikely to be used in the future for a purpose other than the protection of courtroom security, then reversal of the injunction in that context would leave nothing left to enjoin.

The district court findings do not identify the precise circumstances in which the belt would be used. However, although the Sheriff's written policy suggests that the belt is primarily to be used where security is at risk, the policy permits both placement and activation of the belt "pursuant to a facially valid court order" even without a showing of cause. Moreover, in the event a show cause hearing is held regarding in-court use, the policy suggests the criteria be whether "there is a potential for violence and disruption during the court proceding [sic]" (emphasis added).25 Therefore, the policy appears to contemplate use of the belt even in cases where no threat to security exists.

The belt has been placed on hundreds of prisoners pursuant to the Sheriff's policy. At this preliminary juncture, we can presume, given a lack of contrary evidence, that at least some of these placements were undertaken in the absence of a security risk, and that without injunctive relief, the belt would continue to be used on this basis. Therefore, the district court did not abuse its discretion in so far as the injunction serves to bar such non-security usage.26

Accordingly, we remand for modification of the injunction consistent with this opinion. Cf. A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) (remanding for modification where preliminary injunction overbroad). Each party shall bear his own costs on appeal.

REVERSED, in part, and REMANDED.