Case o' The Week: Ninth Endorses Defenders' Lack of Restraint(s) - Blanket shackling policies for non-jury proceedings
How do you feel about full five-point restraints on detained defendants, regardless of individualized danger, for almost all non-jury appearances?
The Federal Defenders of San Diego, Inc. feel the same way.
Fortunately, so does the Ninth.
United States v. Sanchez-Gomez, 2015 WL 5010701 (9th Cir. Aug. 25, 2015), decision available here.
Players: Decision by Judge Schroeder, joined by Judge Nguyen and DJ Zouhary. Big victory for Executive Director Reuben Cahn, and AFD’s Sherleen Charlick and Ellis Johnston III, Federal Defenders of San Diego, Inc.
Facts: The U.S. Marshal for the S.D. of California wrote to the Chief Judge in 2013, asking for a policy of full restraints on defendants. Full or “five point” restraints are leg shackles and handcuffs attached to a belly band. Id. at *1. The Court deferred to the Marshal and permitted five-point restraints for all non-jury proceedings except guilty pleas, sentencing hearings, and at the request of an individual district judge. Id. The justification given for the policy was the higher volume of defendants in the district, an apparent increase in violence among pretrial detainees, and limits on Marshal staffing. Id. The Federal Defenders challenged the policy on behalf of three inmates (though none were detained by the time the appeal got to the Ninth). Id.
Issue(s): “We agree that a policy that permits routine use of shackles is not ‘forbidden’ in non-jury proceedings under the . . . Due Process Clause; it does not follow, however, that under our precedent shackles may always be used routinely before a judge without any justification or showing of necessity. We have ruled that such a generalized shackling policy must rest on an ‘adequate justification of its necessity.’ Howard, 480 F.3d at 1008. We therefore consider whether the Southern District’s policy meets that standard.”
Held: “In Howard we considered a policy authorizing use of leg shackles during appearances before a magistrate judge in the Roybal Courthouse in Los Angeles. We did not reach the question of whether due process requires an individualized determination in a jury proceeding, because we were dealing with non-jury proceedings. We did recognize that the adoption of a general shackling policy in a nonjury setting must be justified. After examining both the extent of the policy and the asserted need for the policy, we held that the policy was adopted ‘with an adequate justification of its necessity.’ Id. at 1008. The government contends that Howard authorizes the general policy at issue here, a policy of using full restraints during most appearances before a judge. Howard does not do that. This policy is more restrictive of defendants’ movement, applies more broadly, and was adopted with less judicial consideration of its justification than the policy in Howard.” Id. at *2-*4.
“We do not suggest that judges are necessarily required to document the need for a shackling policy in any particular manner, as for example, with statistics or the infeasibility of less restrictive alternatives. We hold only that in this case, judges should have provided greater justification for adopting such a policy.” Id. at *4. We therefore hold that a full restraint policy ought to be justified by a commensurate need. It cannot rest primarily on the economic strain of the jailer to provide adequate safeguards.” Id.
Of Note: These appellants were no longer detained. Why not moot? Because the harm “is likely to be repeated yet will not last long enough to be judicially reviewed; thus, the exception to the mootness doctrine for cases that are ‘capable of repetition but evading review’ applies. Id. *1.
How to Use: Great win for SoCal. Does this same close analysis apply to shackling of an individual client at the Marshal’s request? Maybe not so much. Take a close look at Judge Schroeder’s discussion of the Second Circuit’s Zuber decision. Id. at *4. Dicta, arguably, but that passage likely signals the (different) analysis for individual shackling decisions.
For Further Reading: Do Ninth Circuit decisions control in the Southern District? Presumably, but “[f]or now, a marshals official said the policy will continue as is.” For an article on this San Diego policy, the Ninth’s decision, and the potentially surprising aftermath, see article here.
Image of restraints from http://www.galls.com/photos/styles/RS130_500_2.JPG
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org