Sunday, November 20, 2005

Case o' The Week: L.A. Gunns for Shackle Policy, United States v. Howard

CD Cal AFPD Carl Gunn (left) wins a long, hard-fought victory in United States v. Howard, __ F.3d. __, No. 03-50524, Slip Op. 15309 (9th Cir. Nov. 15, 2005), available here. In Howard, the Ninth holds it is a due process violation to have a blanket policy of shackling all pretrial detainees, without any showing of necessity.

Players: Central District of California vet AFPD Carl Gunn (left).

Facts: After consultation with magistrate judges, the Marshals in the massive Central District of California (L.A.) shackled every defendant at their initial appearance. Slip op. at 15317-18. There was “little in the record” describing the need for the policy. Id. at 15319. In each of these 17 consolidated cases, the Fed P.D. objected to the shackling; in each, the motion to unshackle was denied without an evidentiary hearing. Id. at 15320. The Defender brought interlocutory appeal from the magistrate’s orders.

Issue(s): 1. Moot? Did the Court of Appeals have jurisdiction over interlocutory appeals that were moot because the defendants had long ago resolved their cases? 2. Due Process: Does the blanket shackling policy violate due process?

Held: 1. Not Moot: This case is capable of repetition, yet evading review - and cannot be addressed in a civil action, because it is brought by the Defender. “Therefore, defendants’ claims are effectively unreviewable on appeal from a final judgment. The district court’s order reviewing the magistrate judges’ determinations is an appealable collateral order.” Id. at 15325. 2. Due Process/Shackling: “On the merits, because it is undisputed that the policy effectuates a diminution of the liberty of pretrial detainees and distracts from the dignity and the decorum of a critical stage of a criminal prosecution, we conclude that the shackling policy requires adequate justification of its necessity. On the basis of the limited record before us, we conclude we must vacate the district court’s order upholding the policy, but we do not preclude the reinstatement of a similar policy upon a reasoned determination that it is justified on the basis of past experiences or present circumstances in the Central District.” Id. at 15318.

Of Note: The Ninth – lead by Judge Schroeder – is careful to not hold that the blanket shackling policy is a violation of due process. “Defendants contend that due process requires that there be no restraining whatsoever without an individualized determination. We observe, without deciding the issue, that this may go farther than due process requires. But we do not have to reach this question. The record here gives no justification or describes any circumstances existing district-wide that would support the district requiring such restraint.” Id. at 15326. Instead, Judge Schroeder describes a narrow due process ruling: “At a minimum, due process requires that before there is any district-wide policy affecting all incarcerated defendants whom the government must transport to a first appearance, there must be some justification.” Id.

How to Use: Steve Sady reads Howard in the context of the Supreme Court’s recent decision in Deck v. Missouri, 125 S.Ct. 2007 (2005). In Deck, Justice Breyer explained that visible shackles during the penalty phase of a capital case are a constitutional violation for which the defendant need not show prejudice. Thus, Howard tucks neatly behind Deck’s wake: shackling is a problem, Deck emphasized that, and Howard follows with a limited holding. Consider using Deck and Howard to challenge shackling during federal sentencing proceedings: the Deck rationale does not rely heavily on the fact that capital penalty proceedings are before a jury.

For Further Reading: Though his name is not in the opinion, this victory is the fruits of AFPD Carl Gunn’s efforts. Carl has been a public defender for twenty-two years; nineteen in L.A. with brief interludes in Alaska and Washington. When he last returned to work in LA, he was “pissed” to find this new shackling policy and immediately mounted a coordinated attack. This is just one of Carl’s many righteous fights: run “Carlton F. Gunn” in Westlaw and you’ll find United States v. Alvarez-Sanchez, 511 U.S. 350 (1994) (regarding admissibility of confession while in state custody, before federal proceedings); United States v. Rojas-Flores, 384 F.3d 775 (2004) (acceptance of responsibility still possible after purely legal challenge); United States v. Wenner, 351 F.3d 969 (2003) (Washington burg offenses not “crimes of violence.”).

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at


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