US v. Howard, No. 03-50524 (9-15-06). The 9th had struck down the policy of the US Marshals Service in the Central District of California (Los Angeles) that mandated shackling of pretrial detainees in their initial appearance. This had come up previously, and had been struck down because the gov't failed to present any justification or security concerns aside from "We're the Marshals. We said so." The ruling caused a lot of gnashing of teeth among the Marshals, and gov't, and this decision is back up to the 9th with a vengeance. Not surprisingly, the gov't this time had presented a record that persuaded the 9th (Schroeder, Gould and Clifton) that the shackling policy was adopted with an adequate justification of its necessity. The justifications go to the need for security, staff shortages, the lack of time or opportunity for individualized assessment,. Safety and security of the courtroom are the chief concerns. The 9th buys this, and reasons that the legitimate governmental concerns are met.

Although it was a loss, AFPD Carl Gunn's arguments for the individual, and for consideration of a particular defendant as opposed to a general policy, is in the finest traditions of the federal defenders. Gunn's aim for fair treatment of the person as opposed to policy hit the mark; the Marshal and court chose togive more value to a different target. In the aftermath, although the chains may remain shackled, the accused still have us to argue for his dignity.