KOZINSKI, Circuit Judge:
We consider whether a district court's policy of routinely shackling all pretrial detainees in the courtroom is constitutional.
In 2013, the judges of the Southern District of California acceded to the U.S. Marshals Service's request for "a district-wide policy of allowing the Marshals Service to produce all in-custody defendants in full restraints for most non-jury proceedings." "Full restraints" means that a defendant's hands are closely handcuffed together, these handcuffs are connected by chain to another chain running around the defendant's waist, and the defendant's feet are shackled and chained together.
After seeking input from the U.S. Attorney's Office, the Federal Defenders of San Diego and a Criminal Justice Act panel representative, the judges adopted the policy
The shackling was the same regardless of a defendant's individual characteristics. One defendant had a fractured wrist but appeared in court wearing full restraints. The judge denied her motion "for all of the reasons previously stated." Another defendant was vision-impaired. One of his hands was free of restraint so he could use his cane, but his other hand was shackled and secured to a chain around his waist and his legs were shackled together. His objection was "denied for all the reasons previously stated." And another defendant was shackled despite being brought into court in a wheelchair due to her "dire and deteriorating" health. The court "noted" her objection to the shackles and "appreciate[d] [counsel] not taking anymore time" with it.
The four defendants here, Rene Sanchez-Gomez, Moises Patricio-Guzman, Jasmin Isabel Morales and Mark Ring, all appeared in shackles and objected to their use. The magistrate judges overruled the objections in each instance. Defendants appealed these denials to the district court and also filed "emergency motions" challenging the constitutionality of the district-wide policy. The district courts denied all relief. All four cases are now consolidated before us.
We held that we had jurisdiction to review the district's shackling decisions as immediately appealable collateral orders. Id. at 1011. Such orders "(1) conclusively determine[] the disputed question, (2) resolve[] an important issue completely separate from the merits of the action, and (3) [are] effectively unreviewable on appeal from a final judgment." Sell v. United States, 539 U.S. 166, 176, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003) (internal quotation
Presented for our review in this appeal are individual shackling decisions as well as district-wide challenges to the shackling policy. The main dispute in this case, however, is the district-wide shackling policy. Because we do not review the individual defendants' shackling decisions, we see no reason to revisit Howard's appellate jurisdiction analysis as it applies to those appeals.
The district-wide challenges introduce a wrinkle in this case that Howard didn't address. Defendants challenge the Southern District's policy of routinely shackling in-custody defendants without an individualized determination that they pose a material risk of flight or violence. Defendants seek relief not merely for themselves, but for all in-custody defendants in the district. Thus, defendants are making class-like claims and asking for class-like relief.
Such claims are sometimes brought as civil class actions.
Another use of the writ is to exercise our "supervisory" or "advisory" authority. Supervisory and advisory writs are appropriate in cases "involving questions of law of major importance to the administration of the district courts." In re Cement Antitrust Litig. (MDL No. 296), 688 F.2d 1297, 1307 (9th Cir. 1982); see also La Buy v. Howes Leather Co., 352 U.S. 249, 259-60, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957) ("We believe that supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system."). This authority allows courts to provide broader relief than merely ordering that the respondent act or refrain from acting, which promotes the writ's "vital corrective and didactic function." Will v. United States, 389 U.S. 90, 107, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); see also 16 Charles Alan Wright et al., Federal Practice and Procedure §§ 3934, 3934.1 (3d ed. 2016) (describing the history and modern usage of this authority).
Hernandez v. Tanninen, 604 F.3d 1095, 1099 (9th Cir. 2010) (internal quotation marks omitted) (quoting Perry v. Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir. 2009)); see also Bauman, 557 F.2d at 654-55.
All of the Bauman factors need not be present to justify the writ. See In re Cement Antitrust Litig., 688 F.2d at 1301, 1304 (noting that the fourth and fifth factors are rarely present in the same case). "Except for supervisory mandamus cases, the absence of factor three — clear error as a matter of law — will always defeat a petition for mandamus." Calderon v. U.S. Dist. Court for the Cent. Dist. of Cal., 163 F.3d 530, 534 (9th Cir. 1998) (en banc), abrogated on other grounds by Woodford v. Garceau, 538 U.S. 202, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). "In the final analysis, the decision of whether to issue the writ lies within our discretion." In re Van Dusen, 654 F.3d 838, 841 (9th Cir. 2011) (citation omitted).
The Bauman and Cheney factors favor our review. There is no danger that the writ will supplant the normal appeals process because the district-wide shackling claims aren't connected to defendants' individual criminal cases.
Article III's "case-or-controversy limitation" on federal court jurisdiction requires a live controversy between two adversaries. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Supervisory mandamus cases require live controversies even when we don't order a lower court to take or refrain from a specific action. See In re United States, 791 F.3d at 952. Neither party claims that this case is moot, but the court "must assure itself of its own jurisdiction." Terenkian v. Republic of Iraq, 694 F.3d 1122, 1137 (9th Cir. 2012). There are two circumstances in this case that raise the possibility of mootness: (1) the named defendants' cases have ended, so they're no longer subject to the complained-of policy, and (2) the challenged policy is no longer in effect.
Two of the defendants, Rene Sanchez-Gomez and Jasmin Isabel Morales, were not yet convicted and so were still subject to the pretrial shackling policy when they filed their notices of appeal. Construing their notices of appeal as petitions for writs of mandamus, they had a direct stake in the resolution of the controversy at the time their petitions were filed.
Named plaintiffs — or, in the mandamus setting, petitioners — must also have a continuing personal interest in the outcome of the case throughout the litigation. See Campbell-Ewald Co. v. Gomez, ___ U.S. ___, 136 S.Ct. 663, 669, 193 L.Ed.2d 571 (2016). Because they are no longer subject to the policy, defendants' personal interests in the outcome of this case have expired.
We faced the same issue in Howard. The defendants' criminal cases ended before their shackling appeals could be heard. 480 F.3d at 1009-10. We held that the case wasn't moot because it fell into the capable-of-repetition-yet-evading-review exception. Id. This exception requires repetition as to the particular complainants, and we cannot presume that defendants will be subject to criminal proceedings in the future. Id. But some criminal defendants would have been subject to the challenged policy during the litigation and would personally benefit from resolving the case. Thus, we employed the capable-of-repetition-yet-evading-review mootness exception that applied to the class action in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Though Howard wasn't a class action, the case served the same functional purpose — it was a functional
The Supreme Court in Gerstein applied the capable-of-repetition-yet-evading-review mootness exception even though the named plaintiff was no longer subject to the challenged practice. 420 U.S. at 110 n.11, 95 S.Ct. 854. In that case, the class was composed of defendants held in pretrial detention without a probable cause hearing. Id. at 105-06, 95 S.Ct. 854. It wasn't clear that any representative plaintiff would remain in pretrial custody long enough for the judge to certify the class, much less decide the case. Id. at 110 n.11, 95 S.Ct. 854. But the class would continually fill with new in-custody defendants who had a live interest in the case. Id. The attorney representing the class was a public defender who would continue to represent at least some of those new defendants and class members. Id. Under those circumstances, the Court held that the case wasn't moot because the harm was capable of repetition yet evading review as to some member of the class throughout the litigation. Id.
We have applied Gerstein's analysis to functional class actions with inherently transitory claims. See Howard, 480 F.3d at 1009-10; Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1117-18 (9th Cir. 2003).
The dissent disputes this application of Gerstein. According to the dissent, Gerstein and related cases require "the existence of a procedural mechanism, such as [Federal Rule of Civil Procedure] 23," for their mootness exceptions to apply. Dissent at 672-73. But the rule in Gerstein doesn't turn on the presence of a procedural device like Rule 23. 420 U.S. at 110 n.11, 95 S.Ct. 854. Rather, Gerstein's rule resolves the problem of inherently transitory claims while ensuring there is a live controversy for which the court can provide relief. Id.
The Supreme Court itself has indicated that Gerstein's broadening of the capable-of-repetition-yet-evading-review mootness exception could apply to cases sufficiently similar to class actions. The Court discussed Gerstein's factors in a case brought under the Fair Labor Standards Act (FLSA), Genesis Healthcare Corp. v. Symczyk, ___ U.S. ___, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013). Unlike the class action procedures in Rule 23, the FLSA's "`conditional certification' does not produce a class with an independent legal status." Id. at 1530. The Court nonetheless considered whether, under Gerstein, the plaintiff's injury might be capable of repetition yet evading review. Id. at 1531; see also id. at 1530 (recognizing that the Court's holdings in Sosna v. Iowa, 419 U.S. 393,
The dissent claims that Genesis Healthcare still requires "the existence of a procedural mechanism ... to aggregate the claims" as a "necessary prerequisite" for Gerstein's analysis to apply. Dissent at 672-73. But the Court did not say so. Instead, the Court noted that its application of Gerstein has "invariably focused on the fleeting nature of the challenged conduct giving rise to the claim." 133 S.Ct. at 1531. The dissent's excursus on mootness also ignores that this is a supervisory mandamus case. See dissent at 668-76. In its supervisory mandamus role, a court of appeals properly addresses the harm of a district court policy affecting a huge class of persons who aren't parties to the mandamus petition. See, e.g., Will, 389 U.S. at 95, 104-06, 88 S.Ct. 269; Schlagenhauf v. Holder, 379 U.S. 104, 110-12, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); La Buy, 352 U.S. at 257-60, 77 S.Ct. 309. Unlike the dissent, see dissent at 674 n.5, the Supreme Court hasn't found a constitutional infirmity with such cases. Thus, the dissent's concerns about the lack of formal joinder and whether the decision binds other defendants, see id. at 672-74, are misplaced.
All of the Court's considerations in Gerstein are present here, and the harm — unconstitutional pretrial shackling — is inherently ephemeral, just like the pretrial detention challenges in Gerstein. We are faced with an ever-refilling but short-lived class of in-custody defendants who are subject to the challenged pretrial shackling policy. At least some members of this functional class continue to suffer the complained-of injury. Most of the defendants are represented by the Federal Defenders of San Diego. And even if we must withhold a formal writ, we can provide district-wide relief by exercising our supervisory mandamus authority, thus demonstrating that there is a live controversy here. See Knox v. Serv. Emps. Int'l Union, Local 1000, 567 U.S. 298, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012) ("A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party." (internal quotation marks and citations omitted)); see also In re United States, 791 F.3d at 954 ("[W]e are not categorically precluded from opining on the merits of a mandamus petition when issuance of the writ would no longer be effective.").
At the heart of our criminal justice system is the well-worn phrase, innocent until proven guilty. See Taylor v. Kentucky, 436 U.S. 478, 483, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978). And while the phrase may be well-worn, it must also be worn well: We must guard against any gradual erosion of the principle it represents, whether in practice or appearance. This principle safeguards
The Supreme Court held in Deck v. Missouri that "the Constitution forbids the use of visible shackles during the penalty phase, as it forbids their use during the guilt phase, unless that use is `justified by an essential state interest' — such as the interest in courtroom security — specific to the defendant on trial." Id. at 624, 125 S.Ct. 2007 (quoting Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986)). In evaluating the government's justification, a court may "take into account the factors that courts have traditionally relied on in gauging potential security problems and the risk of escape at trial." Id. at 629, 125 S.Ct. 2007. While the decision whether to shackle is entrusted to the court's discretion, routine shackling isn't permitted. Id. at 629, 633, 125 S.Ct. 2007. Instead, courts must make specific determinations of necessity in individual cases. Id. at 633, 125 S.Ct. 2007.
The Supreme Court identified three constitutional anchors for the right: (1) the presumption that a defendant is innocent until proven guilty; (2) the Sixth Amendment right to counsel and participation in one's own defense; and (3) the dignity and decorum of the judicial process, including "the respectful treatment of defendants." Id. at 630-31, 125 S.Ct. 2007. In jury proceedings, an additional concern is that the sight of a defendant in shackles would prejudice the jury against him. Because prejudice is difficult to discern from a cold record, shackles visible to the jury are considered "inherently prejudicial." Id. at 635, 125 S.Ct. 2007 (quoting Holbrook, 475 U.S. at 568, 106 S.Ct. 1340). But when security needs outweigh these other concerns, even visible restraints may be used. Id. at 632, 125 S.Ct. 2007.
Consistent with Deck, we have held that criminal defendants have a "constitutional right to be free of shackles and handcuffs in the presence of the jury absent an essential state interest that justifies the physical restraints." Williams v. Woodford, 384 F.3d 567, 591 (9th Cir. 2004) (citations omitted). We require lower courts to consider concerns similar to those articulated by the Court in Deck, such as whether shackles would prejudice the jury, diminish the presumption of innocence, impair the defendant's mental capabilities, interfere with the defendant's ability to communicate with counsel, detract from the dignity and decorum of the courtroom or cause physical pain. See Spain v. Rushen, 883 F.2d 712, 721 (9th Cir. 1989). "`In all [] cases in which shackling has been approved,' we have noted, there has been `evidence of disruptive courtroom behavior, attempts to escape from custody, assaults or attempted assaults while in custody, or a pattern of defiant behavior toward corrections officials and judicial authorities.'" Gonzalez v. Pliler, 341 F.3d 897,
We now clarify the scope of the right and hold that it applies whether the proceeding is pretrial, trial, or sentencing, with a jury or without.
This right to be free from unwarranted shackles no matter the proceeding respects our foundational principle that defendants are innocent until proven guilty. The principle isn't limited to juries or trial proceedings. It includes the perception of any person who may walk into a public courtroom, as well as those of the jury, the judge and court personnel. 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. See Zuber, 118 F.3d at 106 (Cardamone, J., concurring) ("The fact that the proceeding is non-jury does not diminish the degradation a prisoner suffers when needlessly paraded about a courtroom, like a dancing
And it's not just about the defendant. The right also maintains courtroom decorum and dignity:
Deck, 544 U.S. at 631, 125 S.Ct. 2007. The most visible and public manifestation of our criminal justice system is the courtroom. Courtrooms are palaces of justice, imbued with a majesty that reflects the gravity of proceedings designed to deprive a person of liberty or even life. A member of the public who wanders into a criminal courtroom must immediately perceive that it is a place where justice is administered with due regard to individuals whom the law presumes to be innocent. That perception cannot prevail if defendants are marched in like convicts on a chain gang. Both the defendant and the public have the right to a dignified, inspiring and open court process. Thus, innocent defendants may not be shackled at any point in the courtroom unless there is an individualized showing of need.
One traditional justification for the right was allowing defendants to try their cases without the distraction of shackles and any attendant physical pain. See Deck, 544 U.S. at 626, 125 S.Ct. 2007; see also id. at 638-39, 125 S.Ct. 2007 (Thomas, J., dissenting).
2 William Hawkins, A Treatise of the Pleas of the Crown 434 (John Curwood, 8th ed. 1824). Still, there were certain situations when the need for security overcame the right to be free of shackles: "[A] defendant `must be brought to the bar without irons, or any manner of shackles or bonds; unless there be evident danger of an escape.'" Deck, 544 U.S. at 626, 125 S.Ct. 2007 (quoting 4 William Blackstone, Commentaries on the Laws of England 317 (1769)).
The Supreme Court in Deck found that the common law drew a distinction between trial and pretrial proceedings when applying the right because "Blackstone and other English authorities recognized that the rule did not apply at `the time of arraignment,' or like proceedings before the judge." Id. (quoting 4 Blackstone, Commentaries on the Laws of England 317) (citing Trial of Christopher Layer, 16 How. St. Tr. 94, 99 (K.B. 1722)). This statement on pretrial proceedings is undoubtedly dictum in a case about shackling at capital sentencing. Persuasive Supreme Court dicta are usually heeded by lower courts. See United States v. Montero-Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (en banc). But dicta "ought not to control the judgment in a subsequent suit, when the very point is presented for decision." Humphrey's Ex'r v. United States, 295 U.S. 602, 627, 55 S.Ct. 869, 79 S.Ct. 1611 (1935) (quoting Cohens v. Virginia, 19 U.S. 264, 399, 6 Wheat. 264, 5 S.Ct. 257 (1821) (Marshall, C.J.)). The Supreme Court's dictum on pretrial proceedings in Deck doesn't control this case because it's contradicted by the very sources on which the Supreme Court relied.
The early commentators didn't draw the bright line between trial and arraignment that the Deck Court seemed to believe they did. Coke's discussion of shackling noted that "[i]t is an abuse that prisoners be charged with irons, or put to any pain before they be attainted." 3 Coke, Institutes of the Laws of England 34. And Blackstone did not recognize that the rule against shackles didn't apply at the time of arraignment or proceedings before a judge. Instead, the language the Court cited and partially quoted said the opposite: Shackles at arraignment and pretrial proceedings are acceptable only in situations of escape or danger.
4 Blackstone, Commentaries on the Laws of England 317. Shackles at arraignment and trial are different, as Blackstone noted, but only because shackles are more easily justified at the former, which was demonstrated by Layer's case.
Layer's case, relied on by both Blackstone and the Supreme Court, began with Layer's appeal to be unshackled at his arraignment. The Trial of Christopher Layer, esq; at the King's-Bench for High-Treason, Nov. 21. 1722, in 6 A Complete Collection of State-Trials, and Proceedings Upon High-Treason 229-32 (2d ed. 1730). The government justified the shackles on
Id. While Layer was ultimately unsuccessful, his argument demonstrates that shackling at arraignment was not a standard practice, or even permissible, absent a demonstrated need.
The dissent struggles manfully against the plain language of Layer's case and Blackstone. See dissent at 678-81. It claims to "follow the Supreme Court's interpretation" of Layer's case by pointing to Deck, id. at 680 n.13, but nowhere does the Deck majority analyze the case. We merely repeat what Blackstone and Layer's case provide — that shackling at arraignment was allowed after a showing of need. Layer's case applied the exception to Blackstone's basic rule: A prisoner "must be brought to the bar without irons, or any manner of shackles or bonds; unless there be evident danger of an escape." 4 Blackstone, Commentaries on the Laws of England 317. There's nothing to indicate that shackles were used at arraignments more generally without a particular reason; Layer's case suggests the contrary.
Early American courts "traditionally followed Blackstone's `ancient' English rule." Deck, 544 U.S. at 626-27, 125 S.Ct. 2007 (collecting cases). Blair v. Commonwealth, relying on a legal encyclopedia, explained that courts followed "the common-law rule" that "shackling defendant[s] during arraignment, during the calling and examination of the jurors, or at any time during the trial, except in extreme cases to prevent escape or to protect the bystanders from the danger of defendant's attack, [was] reversible error." 171 Ky. 319, 188 S.W. 390, 393 (App. 1916) (internal quotation marks omitted) (quoting 12 William Mack, Cyclopedia of Law and Procedure 529 (1904)). Likewise, Rainey v. State quoted Bishop's authoritative treatise to note that "`the rule [against shackling] at arraignment where only a plea is required is less strict'" than the rule at trial. 20 Tex.App. 455, 472 (1886) (quoting 1 Joel Prentiss Bishop, Criminal Procedure § 955 (3d ed. 1880)). Contrary to the dissent's belief, that the rule "is less strict" doesn't mean it didn't exist at all.
But Bell dealt with pretrial detention facilities, not courtrooms.
We have a long tradition of giving correctional officials a wide berth in maintaining security within their own facilities.
We must take seriously how we treat individuals who come into contact with our criminal justice system — from how our police interact with them on the street to how they appear in the courtroom. How the justice system treats people in these public settings matters for the public's perception, including that of the defendant. Practices like routine shackling and "perp walks" are inconsistent with our constitutional presumption that people who have not been convicted of a crime are innocent until proven otherwise. That's why we must examine these practices more skeptically than those deployed in an institutional setting like Bell. See, e.g., Deck, 544 U.S. at 634, 125 S.Ct. 2007 (holding that a defendant's Fifth Amendment rights were violated by visible shackling before a jury at capital sentencing proceedings); Lauro v. Charles, 219 F.3d 202, 212-13 (2d Cir. 2000) (holding that a defendant's Fourth Amendment rights were violated by a staged and filmed perp walk done without a legitimate law enforcement reason). We must treat people with respect and dignity even though they are suspected of a crime.
The policy that defendants challenged here isn't presently in effect. Thus, although we hold that policy to be unconstitutional, we withhold the issuance of a formal writ of mandamus at this time.
SCHROEDER, Circuit Judge, concurring:
I fully concur in Judge Kozinski's opinion with its comprehensive historical analysis. I write separately only to offer a brief comment about Judge Ikuta's lengthy, well written dissent.
In addition to noting my disagreement with the dissent's interpretation of common law and Supreme Court authority, I also observe that the dissent unfortunately lacks sensitivity to two of the most important components of our system of justice. The first is the dignity with which court proceedings should be conducted. The dissent thus ignores the degradation of human beings who stand before a court in chains without having been convicted, or in many instances, without even having been formally charged with any crime. Second, the dissent lacks sensitivity to the proper role of the judges as opposed to the Marshals Service in determining how a courtroom should be run. Thus the dissent accepts the data provided by the Marshals Service even though no district court judge has ever made any finding of fact concerning the data's accuracy or whether it provides a good reason for this unprecedented mass shackling.
Our court today correctly upholds the proper role of the judges, as opposed to the jailors, in the courtroom.
IKUTA, Circuit Judge, with whom O'SCANNLAIN, SILVERMAN, GRABER, and CALLAHAN, Circuit Judges, join, dissenting:
Far removed from the potential dangers of a trial court, the majority holds that criminal defendants whose cases are now moot can use their individual appeals as vehicles to invalidate the prospective application of a federal district court's policy of deferring to the United States Marshals Service on questions of courtroom security. In reaching this conclusion, the majority ignores Article III's limitations on federal judicial power, conjures up an unsupported and unprecedented exception to mootness, chastises district judges for following our case law, brushes aside inconvenient Supreme Court reasoning, creates an unjustifiable circuit split, and discovers a one-size-fits-all courtroom security policy in the Constitution. We should not be hearing this case at all, much less using it to announce a sweeping and unfounded new constitutional rule with potentially grave consequences for state and federal courthouses throughout this circuit. I dissent.
In July 2013, the United States Marshals Service, pursuant to its congressional charge "to provide for the security ... of
Second, the Marshals Service determined that it lacked sufficient information to predict which detainees would present a danger. In many cases, detainees with no history of violence, or those who were charged with non-violent offenses, engaged in violent acts while in custody. For instance, in 2013 there were seven detainee-on-staff assaults in the Southern District of California; six of the offenders had been charged with non-violent offenses, and five of those six had no histories of violence. Moreover, the Marshals Service can access only limited criminal background information regarding detainees who are not residents of the United States, and the Southern District of California hears an unusually high number of cases involving such detainees. Accordingly, the Marshals Service concluded that it had little ability to predict which detainees would present a danger.
The Marshals Service also noted logistical concerns that enhanced the potential danger arising from the large number of criminal defendants cycling through the courthouse. In the years leading up to the policy's implementation, the Marshals Service produced approximately 40,000 in-custody defendants for court appearances, with an average of over 200 defendants moving through district cellblocks per day. The high volume of in-custody criminal defendants, the close quarters in the courtrooms used by magistrate judges, the configurations of the courtrooms used by district judges, and budgetary constraints that forced the Marshals Service to reduce the allocation of resources to courtroom protection duties all contributed to heightened security concerns. In short, the Marshals Service's security recommendation arose from a confluence of factors, many of which were specific to the Southern District of California.
After consulting with the United States Attorney's Office, the Federal Defenders of San Diego, and a Criminal Justice Act panel representative, the district court concluded that it should defer to the Marshals Service's recommendation on this courtroom security issue, with two exceptions. First, the district court declined to adopt the Marshals Service's recommendation with respect to guilty plea colloquies and sentencing hearings. Second, the district court reserved the right of any individual judge to opt out of the policy. In deciding to implement the Marshals Service's recommendation, the district court relied on our decision in United States v. Howard, 480 F.3d 1005, 1013 (9th Cir. 2007), and on the Second Circuit's decision in United States v. Zuber, 118 F.3d 101, 104 (2d Cir. 1997), each of which held that deference to the Marshals Service's judgment regarding the use of restraints on detainees during non-jury pretrial proceedings did not violate the detainees' constitutional rights.
Challenges to the new policy came quickly, including from the defendants now before us on appeal. In October 2013, Jasmin
This case accordingly comes to us in an odd procedural posture: Each of the four defendants' criminal cases came to a close before we heard their appeals, and the four defendants (represented here by the Federal Defenders of San Diego) are before us challenging only the Marshals Service's prospective use of restraints during pretrial proceedings. They do not seek review of the individual decisions to permit the use of restraints in their cases. They do not seek damages for any injury they incurred due to this policy. Nor do they seek to have their convictions or sentences set aside as a result of any prejudicial effect of the restraint policy. Instead, the Federal Defenders of San Diego, allegedly on behalf of the four defendants, seeks prospective relief for all future pretrial detainees who may have pretrial proceedings in the Southern District of California. The defendants seek this relief even though, as the majority concedes, Maj. op. at 657-58, they are no longer subject to the challenged policy. In fact, none of these defendants has any reason to step foot in a federal courtroom as a pretrial detainee again. Thus, as the majority acknowledges, these defendants "are making class-like claims and asking for class-like relief," Maj. op. at 655, but are doing so via their individual criminal cases. The threshold question presented in this case is
Because Morales, Sanchez-Gomez, Patricio-Guzman, and Ring have no ongoing interest in the purely prospective relief they seek, see Maj. op. at 657-58, their appeals are moot unless some exception to the ordinary rules of mootness applies. But neither the Supreme Court nor our precedent has established any applicable exception. The majority implicitly concedes as much by contriving a new exception — the "functional class action," id. at 657-58 — in order to rescue these appeals from mootness. Because this theory is inconsistent with Supreme Court precedent and incompatible with Article III's case-or-controversy requirement, the majority's creative effort to sidestep mootness should be rejected.
The majority treats Article III's case-or-controversy requirement as a mere obstacle in its path to the merits that can be avoided through calculated maneuvering. But our adherence to this requirement "is essential if federal courts are to function within their constitutional sphere of authority." North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) (per curiam). The Constitution constrains federal "judicial Power" to nine classes of "Cases" and "Controversies." U.S. Const. art. III, § 2; Rice, 404 U.S. at 246, 92 S.Ct. 402. A dispute is not a qualifying case or controversy unless we can afford relief to the parties before us, see Rice, 404 U.S. at 246, 92 S.Ct. 402, and the "case-or-controversy requirement subsists through all stages of federal judicial proceedings," Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449, 461, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) (internal quotation marks omitted). Thus, "it is not enough that a dispute was very much alive when suit was filed." Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). Instead, if a party seeking relief loses a "cognizable interest in the outcome" at any stage of the litigation, Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curiam) (internal quotation marks omitted), then the matter becomes moot and is "no longer a `Case' or `Controversy' for purposes of Article III, ... [n]o matter how vehemently the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit," Already, LLC v. Nike, Inc., 568 U.S. 85, 133 S.Ct. 721, 726-27, 184 L.Ed.2d 553 (2013). This constraint on federal judicial power exists, as the majority acknowledges, whether the parties are before the court on an appeal, a petition for a writ of mandamus, or any other means of obtaining relief. Maj. op. at 657-58. Here, the defendants' claims that the pretrial restraint policy violates the Constitution are moot "because even a favorable decision" would not entitle the defendants to any relief. Murphy, 455 U.S. at 481, 102 S.Ct. 1181. Accordingly, absent some exception to the ordinary rules of mootness, we lack jurisdiction over these consolidated appeals, and they must be dismissed.
The established exceptions to mootness do not give the majority much to work with in its effort to find a live case or controversy. The majority references the exception for cases capable of repetition, yet evading review, Maj. op. at 657-58, but this exception applies only if "there is a reasonable expectation that the same complaining party will be subject to the same action again," Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (brackets omitted) (quoting Lewis, 494 U.S. at 481, 110 S.Ct. 1249) (internal
Instead of conceding that this case is beyond our power to decide, the majority invents a new "functional class action" exception to mootness. Maj. op. at 657-60. Relying on Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), a case considering mootness in the class action context, the majority reasons that a case is not moot whenever there is "an ever-refilling but short-lived class" of defendants who are subject to a challenged policy, "[a]t least some members of this functional class continue to suffer the complained-of injury," and most of the members are represented by zealous advocates. Maj. op. at 659. But a group of ever-changing individuals with similar concerns (as the majority envisions) does not constitute the sort of class that can avoid mootness. Even when a plaintiff purports to bring an action on behalf of others, the action will become moot when the plaintiff's own claims become moot, unless the plaintiff has used a procedural mechanism, such as class certification under Rule 23 of the Federal Rules of Civil Procedure, that can produce a class with "an independent legal status" or otherwise effectively joins "additional parties to the action." Genesis Healthcare Corp. v. Symczyk, ___ U.S. ___, 133 S.Ct. 1523, 1530, 185 L.Ed.2d 636 (2013). Without the creation of such a class pursuant to a statute or rule, a group of interested individuals cannot be a party to the action before the court, and therefore the court may not consider their interests in a particular case for purposes of a mootness inquiry. See id.
To understand why Gerstein is inapposite here, some background is needed to explain how the mootness doctrine applies in the class action context. Rule 23 provides a procedure that allows courts to aggregate the claims of multiple parties. See Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980) (stating that a class action is "[t]he aggregation of individual claims in the context of a classwide suit"). Once a class is certified under Rule 23, it "acquires an independent legal status." Genesis Healthcare, 133 S.Ct. at 1530. The members of a class are parties to the action and are generally bound by the judgment. See Taylor v. Sturgell, 553 U.S. 880, 884, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008).
Because a class is comprised of multiple parties to the legal action, a court's mootness inquiry in a class action lawsuit is broader than in traditional litigation on an individual's own behalf. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747, 755-56, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976) (holding that the interests of "unnamed members of the class" who are entitled to relief may satisfy the case-or-controversy requirement). The named representative of a class must generally have standing at the commencement of an action and when the district court rules on a motion for class certification. Sosna v. Iowa, 419 U.S. 393, 402, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). But even if the named representative's case becomes moot after the district court has ruled on a motion for class certification, the case itself is not moot so long as
Even if a named representative's claims become moot before the district court has ruled on a class certification motion, a class claim may escape mootness under certain circumstances. This is the Gerstein rule. As the Supreme Court has explained, Gerstein "recognized ... that `some claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative's individual interest expires.'" County of Riverside v. McLaughlin, 500 U.S. 44, 52, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (brackets omitted) (quoting Geraghty, 445 U.S. at 399, 100 S.Ct. 1202). Under these circumstances, a judicial decision to certify a class after the named representative's individual claim is moot may relate back to the time the named representative filed the class-action complaint, and the action will not be moot so long as members of the class continue to have a live controversy. See Gerstein, 420 U.S. at 110 n.11, 95 S.Ct. 854 (citing Sosna, 419 U.S. at 402 n.11, 95 S.Ct. 553).
In Gerstein, two pretrial detainees sued assorted county officials on behalf of a class of pretrial detainees under 42 U.S.C. § 1983 in order to challenge Florida's practice of not providing detainees with a timely probable cause hearing. Id. at 106-07, 95 S.Ct. 854. By the time the case reached the Supreme Court, the named representatives had been convicted, and it was not clear whether their individual claims had become moot before or after the district court certified the class. Id. at 110 n.11, 95 S.Ct. 854. Given the transitory nature of pretrial custody, the clear existence of a class, and the class's representation by counsel with similarly situated clients, the Supreme Court held that the class action was not moot even if the named representatives' claims expired before certification. Id. "In such cases, the `relation back' doctrine is properly invoked to preserve the merits of the case for judicial resolution." McLaughlin, 500 U.S. at 52, 111 S.Ct. 1661. As Gerstein illustrates, the "relation back" doctrine serves a very particular purpose. Specifically, in inherently transitory situations, the Court deems class certification to have occurred at the time the named representative filed the complaint with class allegations, at which time the named representative's claims were live. See 1 William B. Rubenstein et al., Newberg on Class Actions § 2:13 at 123 (5th ed. 2011). Because the named representative's claims therefore constructively became moot after the class's certification, the rule that a class action does not become moot in such circumstances applies. See id. at 123-24.
The Supreme Court later explained the limits of the Rule 23 mootness doctrine in considering its applicability to a collective action under the Fair Labor Standards Act (FLSA). The FLSA allows employees to
The Supreme Court disagreed. Under § 216(b), approval of a plaintiff's conditional certification motion "does not produce a class with an independent legal status, or join additional parties to the action," unlike class action certification under Rule 23. Id. at 1530. Rather, "[t]he sole consequence of conditional certification is the sending of court-approved written notice to employees, who in turn become parties to a collective action only by filing written consent with the court." Id. (citation omitted). The Court concluded that, even if the original plaintiff "were to secure a conditional certification ruling on remand, nothing in that ruling would preserve her suit from mootness." Id. In other words, because no claimants had opted into the collective action, a court could not consider their interests in determining whether the plaintiff's suit was moot.
Relying on Gerstein, the plaintiff in Genesis Healthcare argued that in "inherently transitory" cases, a court could give the plaintiff an opportunity to complete the § 216(b) collective action process. Id. at 1530-31. If the court granted the conditional certification and employees subsequently joined the collective action, the plaintiff argued, the court should then "relate back" this successful creation of a collective action to the date the original plaintiff filed the complaint. Id. The Court did not rule on this suggestion, however, because the plaintiff's action in that case was not transitory in nature. Id. at 1531.
As the Supreme Court's cases make clear, a necessary prerequisite to applying the mootness doctrine applicable to Rule 23 class actions is the existence of a procedural mechanism, such as Rule 23 or perhaps § 216(b), that allows a court to aggregate the claims of multiple potential claimants and make them parties to the legal action. See id. at 1530 (stating that the "essential" aspect of Sosna and its progeny "was the fact that a putative class action acquires an independent legal status once it is certified"). Contrary to the majority's
The majority's "functional class action" theory cannot create a class that has an independent legal status, whether under Rule 23 or otherwise. Nor does it have the effect of joining any additional criminal defendants as parties to this action. Accordingly, there are no parties before the court with a live case or controversy who could prevent the action from becoming moot. Gerstein merely allows a court that certifies a class to relate the existence of the class back to an earlier point in time, when a named party had a live claim. See id. at 1530-31. Because there is no class action counterpart in the Federal Rules of Criminal Procedure, nor an analogous means of aggregating multiple criminal defendants for class-wide resolution of common claims in the context of federal prosecutions, there is nothing a court can "relate back" after a criminal defendant's individual claim becomes moot. Accordingly, we must apply "the usual rule that litigation is conducted by and on behalf of the individual named parties only." Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979). The majority's reliance on Gerstein is therefore to no avail. Although criminal defendants could bring civil actions as a class under Rule 23, cf. Gerstein, 420 U.S. at 106-07, 95 S.Ct. 854, a defendant in a criminal prosecution cannot, through his or her individual case, represent and bind other criminal defendants.
The majority argues that "the rule in Gerstein doesn't turn on the presence of a procedural device like Rule 23," but instead is a free-floating means of "resolv[ing] the problem of inherently transitory claims while ensuring there is a live controversy to which the court can provide relief." Maj. op. at 658. To the extent the majority means that a federal court can decide a moot claim merely because it is transitory, the majority's theory is clearly contrary to the Constitution's case-or-controversy requirement. See Murphy, 455 U.S. at 481-82, 102 S.Ct. 1181 (holding, in a post-Gerstein case, that a pretrial detainee's individual transitory claim became moot "once he was convicted"). Rather, the Supreme Court has been careful to require a live case or controversy pending before the court through a class action that aggregates the claims of multiple parties. See, e.g., Genesis Healthcare, 133 S.Ct. at 1530-31 (characterizing the "line of cases" of which Gerstein is a part as applying to "class-action claim[s]"); McLaughlin, 500 U.S. at 51-52, 111 S.Ct. 1661 (applying Gerstein and holding "that by obtaining class certification, plaintiffs preserved the merits of the controversy for our review" (emphasis added)); cf. Murphy, 455 U.S. at 481-84, 102 S.Ct. 1181 (implicitly rejecting the view expressed by the dissenting justice that, under Gerstein, "the formalities of class certification are unnecessary," id. at 486 n.3, 102 S.Ct. 1181). A class action's aggregation of claims solves the problem of inherently transitory claims because, as long as at least one member of the class
Accordingly, contrary to the majority's contentions, the rules for mootness in the class action context do not apply to the separate actions brought by Morales, Sanchez-Gomez, Patricio-Guzman, and Ring. Indeed, the majority's reasoning on this point is even weaker than the plaintiff's arguments in Genesis Healthcare. In that case the plaintiff at least made allegations pursuant to a federal statute that allowed collective action. Genesis Healthcare, 133 S.Ct. at 1527. Here, the criminal defendants did not seek any class or collective status, nor did the defendants even raise such an issue before the district court or to us. At best, one might suggest (as the majority does) that the presence of the Federal Defenders of San Diego as counsel binds the parties together. Maj. op. at 659. But not only do the federal public defenders lack the capacity to aggregate their clients' claims into an independent class, Congress has also declined to allow federal public defenders to bring civil rights claims on behalf of criminal defendants. See 18 U.S.C. § 3006A(a) (limiting the scope of representation); id. § 3006A(g)(2)(A) (restricting federal public defenders from "engag[ing] in the private practice of law"). Beyond constituting a misapplication of Supreme Court precedent, the so-called "functional class action" devised by the majority allows the federal public defenders to make an end-run around this statutory limitation by bringing the functional equivalent of a civil rights class action under the guise of a criminal appeal, without ever meeting (or even attempting to meet) the requirements of Rule 23. Thus, the majority errs on all fronts: it contravenes the Constitution, a relevant federal statute, and federal procedural rules.
In addition to its misplaced reliance on Gerstein to support its "functional class action" theory, the majority's reliance on Oregon Advocacy Center v. Mink, 322 F.3d 1101 (9th Cir. 2003), and United States v. Howard, 480 F.3d 1005 (9th Cir. 2007), Maj. op. at 658, is equally erroneous. Oregon Advocacy Center stands for the unremarkable proposition that a federally authorized organization established to represent the rights of people with disabilities has associational standing to bring a challenge on behalf of mentally incapacitated defendants. 322 F.3d at 1116. That case was not moot because the organization was challenging an ongoing policy causing ongoing harm to the organization's
Nor does Howard provide support. Howard erroneously relied on Oregon Advocacy Center for the proposition that a case is not moot under the "capable of repetition, yet evading review" doctrine "when the defendants are challenging an ongoing government policy."
In short, the criminal defendants here lack a legally cognizable interest in this appeal, and there is no reasonable expectation that they will be subject to the district court's restraint policy again. Nor have these defendants brought a class action under Rule 23 that could be certified, or any equivalent action that produces "a class with an independent legal status" or "join[s] additional parties to the action." Genesis Healthcare, 133 S.Ct. at 1530. We cannot create jurisdiction where none exists, but that is precisely what the majority has attempted to do with its novel and unfounded "functional class action" theory. Because there is no pretrial detainee with a live case who is a party to this appeal, this case must be dismissed as moot.
Although this appeal should be dismissed, the district court's policy is not insulated entirely from judicial review. For example, we likely would have jurisdiction over a class action brought by pretrial detainees under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), to recover damages from the individuals implementing the restraint policy,
Because each of the defendants' appeals is moot, it is irrelevant whether their appeals are treated as petitions for a writ of mandamus, as the majority does, Maj. op. at 655-57, or as appeals of collateral orders. In either case, we lack jurisdiction under Article III to consider their claims.
Nevertheless, even if this case were not moot, the defendants' appeals do not meet the requirements for granting a writ of supervisory mandamus, as the majority claims. Maj. op. at 656. Even when "the underlying proceeding is a criminal prosecution," the writ may issue only when a district court has engaged in "willful disobedience of the rules laid down by" the Supreme Court, or "adopted a deliberate policy in open defiance of the federal rules." Will v. United States, 389 U.S. 90, 96, 100, 102, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967). Only such "exceptional circumstances amounting to a judicial `usurpation of power' will justify the invocation of this extraordinary remedy." Id. at 95, 88 S.Ct. 269.
In this case, the district court has not defied a higher court or the federal rules of procedure. Rather, the district court complied with our last word on the matter, Howard, 480 F.3d at 1012-14, in which we held that restraining pretrial detainees in proceedings before a judge did not violate due process. The majority therefore oddly equates a good faith effort to follow our case law with "a persistent disregard" for our rulings. Will, 389 U.S. at 96, 88 S.Ct. 269. The majority attempts to distinguish Howard on the ground that the restraints in that case were not as intrusive as the restraints employed under the district court's policy now under review. Maj. op. at 656-57 n.6. No doubt the majority has detected a factual distinction between Howard and this case, but the district court's failure to anticipate such a distinction (which in any event does not appear to be constitutionally material) is a far cry from "willful disobedience" or "open defiance." Will, 389 U.S. at 100, 102, 88 S.Ct. 269. As in Will, "the most that can be claimed on this record is that [the district court] may have erred in ruling on matters within [its] jurisdiction." Id. at 103-04, 88 S.Ct. 269. The record here "simply fails to demonstrate the necessity for the drastic remedy employed by" the majority. Id. at 104, 88 S.Ct. 269.
Because the individual appeals brought by Morales, Sanchez-Gomez, Patricio-Guzman, and Ring are moot, we should not
The question presented on the merits is whether the Constitution precludes placing restraints on detainees during pretrial proceedings before a judge in the absence of a special need. The majority analyzes this question under Deck v. Missouri, in which the Supreme Court considered "whether shackling a convicted offender during the penalty phase of a capital case violates the Federal Constitution." 544 U.S. 622, 624, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005). Deck determined that a rule precluding the "routine use of visible shackles during the guilt phase" had "deep roots in the common law." Id. at 626, 125 S.Ct. 2007. In reaching this conclusion, Deck considered treatises on the common law, 18th century English cases, state and federal court opinions adhering to the common law rule, and the Court's own prior cases. Id. at 626-29, 125 S.Ct. 2007. From these authorities, Deck concluded that the rule against using visible shackles before a jury was "a principle deeply embedded in the law" and enshrined in the protections of the Fifth and Fourteenth Amendments. Id. at 629, 125 S.Ct. 2007. Ultimately, Deck held that "[t]he considerations that militate against the routine use of visible shackles during the guilt phase of a criminal trial apply with like force to penalty proceedings in capital cases." Id. at 632, 125 S.Ct. 2007. In light of a defendant's right to secure a meaningful defense, the need to maintain dignified proceedings, and the concern that visible restraints had the potential to prejudice the jury, the Court concluded that "courts cannot routinely place defendants in shackles or other physical restraints visible to the jury during the penalty phase of a capital proceeding." Id. at 632-33, 125 S.Ct. 2007.
If we apply Deck to the merits question here, we should begin by asking whether the common law rule identified in Deck extends to placing restraints on detainees during pretrial proceedings where there is no jury. Deck itself answers that question: "Blackstone and other English authorities recognized that the rule did not apply at `the time of arraignment,' or like proceedings before the judge." Id. at 626, 125 S.Ct. 2007 (quoting 4 W. Blackstone, Commentaries on the Laws of England 317 (1769) and citing Trial of Christopher Layer, 16 How. St. Tr. 94, 99 (K.B. 1722) (Layer's Case)). Instead, Deck explained that the rule "was meant to protect defendants appearing at trial before a jury." Id. (citing King v. Waite, 1 Leach 28, 36, 168 Eng. Rep. 117, 120 (K.B. 1743)). In other words, there is no rule regarding restraints on pretrial detainees in non-jury
The majority dismisses this conclusion as "undoubtedly dictum" and "contradicted by the very sources on which the Supreme Court relied." Maj. op. at 663. These rationalizations do not hold water.
First, Deck's statement that the common law rule regulating shackling did not apply at arraignments is not mere dictum, as it responds to arguments raised by the dissent about the rule's scope and purpose. Justice Thomas's dissent argued that the purpose of the English common law rule against leaving a criminal defendant in irons for trial was to ensure that the defendant "was not so distracted by physical pain during his trial that he could not defend himself," and accordingly modern restraints (which do not cause pain) "do not violate the principle animating the common-law rule." Deck, 544 U.S. at 638, 640, 125 S.Ct. 2007 (Thomas, J., dissenting). To support this point, Justice Thomas noted that because a defendant was not required to "play the main role in defending himself" at the arraignment, courts were not concerned about a defendant's being distracted by pain. Id. at 639-40, 125 S.Ct. 2007 (Thomas, J., dissenting). Therefore, "the rule against shackling did not extend to arraignment." Id. at 639, 125 S.Ct. 2007 (Thomas, J., dissenting). In its analysis, the Deck majority conceded the dissent's historical point regarding shackling at arraignments, id. at 626, 125 S.Ct. 2007 (majority opinion), but responded that although "[j]udicial hostility to shackling may once primarily have reflected concern for the suffering," current opinions "have not stressed the need to prevent physical suffering," but have looked at other legal principles, id. at 630, 125 S.Ct. 2007. In light of this implicit give-and-take between the Deck majority and dissent, it is apparent that Deck's conclusion regarding shackling during arraignments is a considered concession of the dissent's historical point. Contrary to the majority, Maj. op. at 662 n.11, Deck's responsive historical analysis is part of its holding, as it bears on Deck's delineation of the scope of the common law rule that constitutes due process under the Constitution. But even if Deck's guidance were dicta, the majority's rejection of the Supreme Court's clear conclusion is contrary to our long established precedent that "Supreme Court dicta have a weight that is greater than ordinary judicial dicta" and therefore "we do not blandly shrug them off." United States v. Montero-Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (en banc) (internal quotation marks omitted).
Second, Deck's determination on this issue is not contradicted by the historical sources, as the majority seems to believe. Maj. op. at 662-65. In reaching its conclusion that the common law rule applied when the defendant was in the presence of the jury, but not "at `the time of arraignment,' or like proceedings before the judge," Deck undertook an in-depth historical analysis, considering Blackstone's Commentaries on the Laws of England, original sources setting forth the rule, see Layer's Case, 16 How. St. Tr. at 99; Waite, 1 Leach at 36, and state court cases recognizing the distinction that Blackstone drew, see Parker v. Territory, 5 Ariz. 283, 52 P. 361 (1898); People v. Harrington, 42 Cal. 165 (1871). Deck, 544 U.S. at 626-27, 125 S.Ct. 2007. The majority claims that "Blackstone did not recognize that the rule against shackles didn't apply at the time of arraignment or proceedings before a judge," but that "[s]hackles at arraignment and pretrial proceedings are acceptable only in situations of escape or danger." Maj. op. at 663 (emphasis omitted). This is incorrect: Blackstone acknowledged a distinction between arraignment and trial made in Layer's Case. While Blackstone
Moreover, the text of Layer's Case better supports Blackstone's analysis. When announcing his decision to keep Layer fettered during his arraignment, the Lord Chief Justice first rejected Layer's reliance on Cranburne's Case for the proposition that restraints were not permitted at arraignments. Layer, 16 How. St. Tr. at 100. Instead, the Lord Chief Justice ruled that Cranburne's Case governed only those cases "when the party was called upon to plead, and was tried at the same time." Id. The Lord Chief Justice then reasoned that the defendant should be free from chains when he comes to trial so he "should have the use of his reason, and all advantages to clear his innocence." Id. In pretrial proceedings, however, "he is only called upon to plead by advice of his counsel" and is not to be tried, so there was no reason for "his chains to be taken off this minute, and to be put on again the next," when he is returned to confinement. Id. at 100-01. This passage supports Blackstone's analysis, as well as that of the Deck majority and dissent; the concern was not with escape, but with the practicalities of removing restraints for a hearing of limited purpose and duration. See Deck, 544 U.S. at 626, 125 S.Ct. 2007; id. at 639 n.2, 125 S.Ct. 2007 (Thomas, J., dissenting) ("When arraignment and trial occurred on separate occasions, the defendant could be brought to his arraignment in irons.").
After the decision in Layer's Case, the same rule was stated in King v. Waite, in which "[t]he prisoner, at the time of his arraignment, desired that his irons might be taken off." 1 Leach 28, 36 (K.B. 1743). The court informed him, however, that it "had no authority for that purpose until the Jury were charged to try him." Id. So the prisoner pleaded guilty, "and being put upon his trial, the Court immediately ordered his fetters to be knocked off." Id.
As the common law developed in this country, state courts and treatises interpreted Layer's Case and other common law sources as Deck did, namely as distinguishing the use of restraints during an arraignment from their use during trial. In Lee v. State, for example, the Mississippi Supreme Court noted that Layer's Case and Waite's Case both distinguished between arraignment (where shackles were generally allowed) and trial (where shackles were not allowed except for good cause). 51 Miss. 566, 571 (1875). Lee interpreted the Lord Chief Justice's references to Layer's possible escape as relevant only to his decision to reject Layer's motion to have his restraints removed while in confinement. According to Lee, the Lord Chief Justice was concerned that granting such a motion "might be an excuse to his keeper if he (the prisoner) should escape." Id. And Lee concluded that the Lord Chief Justice permitted shackling at arraignment because "it would be to no purpose to insist on [unfettering] for so little a time as the prisoner now had to stand at the bar." Id. Other state courts similarly recognized the distinction between arraignment and trial. See, e.g., State v. Temple, 194 Mo. 237, 92 S.W. 869, 872 (Mo. 1906) (noting that in Layer's Case, "it was held that the prisoner
Rather than follow Deck, Blackstone, and these early state decisions, the majority provides its own interpretation of Layer's Case, arguing that the Lord Chief Justice held Layer in chains only because Layer had previously attempted to escape. Maj. op. at 663-64. As explained above, this is not a persuasive reading of the case.
Besides being ill-considered, the majority's decision to ignore Supreme Court direction also creates a circuit split, again contrary to our precedent. See United States v. Gwaltney, 790 F.2d 1378, 1388 n.4 (9th Cir. 1986) ("Unnecessary conflicts among the circuits are to be avoided."); see also United States v. Alexander, 287 F.3d 811, 820 (9th Cir. 2002) ("[A]bsent a strong reason to do so, we will not create a direct conflict with other circuits." (quoting United States v. Chavez-Vernaza, 844 F.2d 1368, 1374 (9th Cir. 1988))). In Zuber, the Second Circuit held that because juror bias "constitutes the paramount concern" in a physical restraint case, and because judges are assumed not to be prejudiced "by impermissible factors," 118 F.3d at 104, it did not violate due process "for a trial judge (in the absence of the jury) to defer to the judgment of the U.S. Marshals Service without comment or extended colloquy" on the issue of restraints, id. at 103 n.2. Thus, the Second Circuit concluded that "the rule that courts may not
Were we empowered to decide this case, we should join our sister circuits in following Deck's reading of the common law, rather than inventing a new right out of whole cloth. Deck establishes that there is no common law rule against the use of restraints during pretrial proceedings. 544 U.S. at 626, 125 S.Ct. 2007. Moreover, as indicated in Zuber, there is no danger that the presumption of innocence or the dignity of the courtroom is undermined in the eyes of the jury when pretrial detainees appear in restraints before a judge. 118 F.3d at 103 n.2. Nor have the defendants here indicated that the restraints used in their cases interfered with their ability to communicate with their lawyers or participate in their own defenses. Deck, 544 U.S. at 631, 125 S.Ct. 2007. The rule sought by the defendants has no pedigree, nor does it protect a well-established right. Accordingly, it cannot be "objectively, `deeply rooted in this Nation's history and tradition,'" Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality opinion)), such that the Due Process Clause requires it, contra Maj. op. at 662. The majority's contrary conclusion grows not from the "deep roots" of the common law, Deck, 544 U.S. at 626, 125 S.Ct. 2007, but from the majority's own hothouse.
Putting aside the majority's mistreatment of Deck, the appropriate framework for resolving this claim is provided by Bell v. Wolfish. In Bell, pretrial detainees brought a class action to challenge the conditions of their confinement at a federal pretrial detention center. 441 U.S. 520, 523, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The district court granted sweeping relief, which the Second Circuit affirmed in large part. Id. at 523-24, 99 S.Ct. 1861. In reviewing this relief, the Supreme Court set up the framework for analyzing constitutional claims by pretrial detainees challenging their conditions of confinement. Because Deck by its terms does not apply to the situation presented here, Deck, 544 U.S. at 626, 125 S.Ct. 2007, we ought to apply the general framework for pretrial detention claims that Bell establishes.
Three of Bell's principles bear mentioning in this case. First, Bell teaches us that although "the presumption of innocence plays an important role in our criminal justice system[,] ... it has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun." 441 U.S. at 533, 99 S.Ct. 1861. Second, Bell instructs that pretrial detainment policies "are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters." Id. at 548, 99 S.Ct. 1861 (quoting Pell v.
The majority dismisses Bell as inapplicable because "Bell dealt with pretrial detention facilities, not courtrooms," and detention facilities "are meant to restrain and keep order, not dispense justice." Maj. op. at 665. The majority acknowledges that Bell may apply beyond the detention facility walls, see Maj. op. at 665 n.15, but draws a hard line at the courtroom door, see Maj. op. at 665 n.14. Certainly under Deck, a pretrial detainee has additional due process rights when appearing before a jury. But pretrial detainees enjoy no heightened interests when they appear in court outside of the presence of a jury. Cf. Zuber, 118 F.3d at 103-04 & n.2. The government's interest in securing their presence at trial and maintaining order and security, however, remains the same regardless of the location. Thus, as in Bell, the question is whether these interests justify the government's restriction on the liberty of pretrial detainees.
As explained in Bell, the government may restrain detainees to ensure they will be available for trial, 441 U.S. at 539, 99 S.Ct. 1861, and may take certain steps necessary to "maintain security and order," id. at 540, 99 S.Ct. 1861. Bell's central lesson is that the reasonable pursuit of these objectives through restrictions on detainees' liberty interests, without more, does not rise to a constitutional violation. Id. at 539, 99 S.Ct. 1861. This logic applies beyond the detention facility itself. For example, the government must often ensure that detainees appear at pretrial proceedings. See Fed. R. Crim. P. 10 (providing that a defendant must be physically present at arraignment absent an express waiver of his or her right to appear or express consent to video teleconferencing). But even when detainees are outside the walls of a particular detention facility, they are still subject to detention, and the government maintains a compelling interest in securing their ultimate presence for trial. Cf. Brothers v. Klevenhagen, 28 F.3d 452, 457 (5th Cir. 1994) (holding that pretrial detainee status "never reverts back" to a greater degree of protection "[u]ntil the detainee is released from custody"). Thus, pretrial detainees remain detained while they are in a vehicle transporting them to and from the courthouse, in a holding cell in the courthouse, in any outdoor areas, and even in the courtroom itself. Cf. Beaulieu v. Ludeman, 690 F.3d 1017, 1031-33 (8th Cir. 2012) (upholding under Bell a policy of placing civilly committed detainees
Viewed in this light, the merits of this case would not be difficult, were we empowered to reach it. Because the pretrial detainees are outside the presence of a jury, the majority's rhetoric about the presumption of innocence, Maj. op. at 660-61, has no place in the analysis. Bell, 441 U.S. at 533, 99 S.Ct. 1861. Moreover, because there is no allegation that the restraint policy is intended as a punishment, the question is simply whether requiring detainees to wear restraints while attending their pretrial hearings "is reasonably related to a legitimate governmental objective." Id. at 539, 99 S.Ct. 1861. Here, it clearly is. To the extent the restraints reduce the likelihood of an escape, they further the government's interest in ensuring that detainees will appear at trial. See id. Similarly, given the history of detainee-related assaults and weapons smuggling in the Southern District of California, the restraints are reasonably related to the government's interest in maintaining order and safety among its detainees. Cf. id. at 540, 99 S.Ct. 1861 ("[T]he Government must be able to take steps to maintain security and order at the institution and make certain no weapons or illicit drugs reach detainees."). Requiring detainees to appear at pretrial hearings in restraints is therefore reasonably related to the government's valid interests, and the policy is accordingly a constitutionally permissible condition of pretrial confinement. See id.
Making this case even simpler, the district court's deference to the Marshals Service, the entity that Congress statutorily charged with providing courtroom security, 28 U.S.C. § 566(a), is consistent with the Marshals Service's role as an expert entity charged with securing courtrooms and managing pretrial detainees during their court appearances. As the expert on courtroom security, the Marshals Service is due "wide-ranging deference" absent "substantial evidence in the record to indicate that the officials have exaggerated their response" to the problems they seek to solve. Bell, 441 U.S. at 547, 548, 99 S.Ct. 1861. Because there is no substantial evidence on this record that the Marshals Service is punishing detainees by restraining them or otherwise imposing conditions of confinement unrelated to the government's legitimate interests, the challenged policy is not an unconstitutional condition of detention. Accordingly, the district court's deference to the Marshals Service's recommendation does not violate the pretrial detainees' constitutional rights.
To be sure, "district courts have the inherent authority to manage their ... courtrooms," Dietz v. Bouldin, ___ U.S. ___, 136 S.Ct. 1885, 1892, 195 L.Ed.2d 161 (2016), and some may choose not to defer to the Marshals Service's recommendation after a careful balancing of the need for safety and security of the courtrooms with the interests of the detainees. These are decisions, however, to be made by the district courts themselves, taking into account facts specific to their situations, including such factors as the adequacy of staffing by security professionals, the configurations of the courtrooms, and prior experiences. They are not decisions that should be made by appellate jurists far removed from the day-to-day administration of criminal justice.
By creating a blanket constitutional rule in this moot case, the majority not only puts federal district courts at risk, but also restricts the choices that states in this circuit can make to secure detainees without
The majority's analysis is wrong at every turn. It contradicts the Supreme Court's rulings on mootness, mandamus, and the merits, and it substitutes the supposed wisdom of the ivory tower for the expertise of the United States Marshals Service and the district courts themselves. Because the four defendants whose criminal appeals are before us have now long since passed through the federal criminal justice system, we should dismiss these appeals as moot, rather than use them as improper vehicles to make a constitutional ruling as sweeping as it is erroneous. I dissent.
Likewise, the Eleventh Circuit in United States v. LaFond held that a defendant wasn't entitled to an individualized shackling determination before a sentencing judge. 783 F.3d 1216, 1225 (11th Cir. 2015). The court in LaFond went further than Zuber, saying that "the rule against shackling pertains only to a jury trial." Id. In reaching this conclusion, the Eleventh Circuit disregarded the common law rule embodied in our Constitution that protects an individual from unwarranted shackles in the courtroom, regardless of the presence of a jury. See infra pp. 662-65. Moreover, it failed to consider the three essential interests that Deck identified for deciding shackling cases.
The Southern District's reliance on postdeprivation process is unconstitutional not only because it often results in no opportunity to be heard at all, but also because many judges failed to exercise discretion when faced with inappropriate shackling. These judges shackled a blind man, a woman in a wheelchair with "dire and deteriorating" health and a woman with a broken wrist. And despite the policy providing that shackles wouldn't be used at sentencing hearings without specific security information showing an individualized need, the defendant in the wheelchair was also shackled at her sentencing hearing. See supra p. 653. The hearing transcript indicates that no evidence of such specific security information was introduced. Routine shackling subject to postdeprivation review is plainly insufficient to protect this fundamental constitutional right.
