US v. Sanchez-Gomez, No. 13-50561 (5-31-17)(en banc Kozinski; concurrence by Schroeder; dissent by Ikuta). Unshackle the chains!  In an en banc decision, the 9th holds:

The Constitution enshrines a fundamental right to be free of unwarranted restraints. Thus, we hold that if the government seeks to shackle a defendant, it must justify the infringement with specific security needs as to that particular defendant. Courts must decide whether the stated need for security outweighs the infringement on a defendant's right.  This decision cannot be deferred to security providers or presumptively answered by routine policies. All of these requirements apply regardless of a jury's presence or whether it's a pretrial, trial or sentencing proceeding. Criminal defendants like any other party appearing in court, are entitled to enter the courtroom with their heads held high. (33)

The 9th in so holding finds the policy of shackling all pretrial defendants in Cal S to be unconstitutional.  However, because the policy challenged, and deemed worthy of mandamus, is not presently in effect, a formal writ of mandamus is not issued.

The opinion, written with verve, traces the history of shackling, the presumption of innocence, the concerns of the Supreme Court expressed in Dreck v. Missouri, 544 U.S. 622 (2005) and progeny.  The 9th, at the outset, deals with the mootness issue (repetitious actions evading review) and mandamus.

Schroeder, concurring, fully joins in the majority opinion. She pens separately to emphasize, along with her disagreement with the dissent's interpretation of common law and Supreme Court precedent, to observe that the dissent "unfortunately lacks sensitivity" in two aspects.  First, in terms of the  dignity of court proceedings, the dissent "ignores the degradation of human beings" who appear without having been convicted or even formally charge.  Second, the dissent "lacks sensitivity" to the proper role of judges as opposed to the Marshals in determining how a court should be run.  "Our court today correctly upholds the proper role of the judges, as opposed to the jailors, in the courtroom." (34).

The dissent argues that this case is moot and there was no exception to the mootness doctrine.  Further, the appeal is not worthy of mandamus.  Lastly, the dissent accuses the majority of fashioning a new rule of criminal procedure, misconstruing Supreme Court precedent, creating a circuit split with the 2d and 11th Circuits, and putting trial courts at risk.

Congrats to Reuben Cahn, Shereen Charlick, Ellis Johnston, and really all the staff of the Federal Defenders of San Diego.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/05/31/13-50561.pdf