Aggressively Defending My Clients Since 1990


On Behalf of | May 27, 2018 | Firm News

For criminal defendant’s not rich enough to afford bail, Milwaukee County judges allow, without any individualized determination that there is a “compelling need” for shackling, the pretrial shackling of defendants in violation of their presumption of innocence.  I have previously challenged this practice in Milwaukee County but the decision of United States v. Sanchez-Gomez, 859 F.3d 649 (9th Cir. 2017) suggests review of this practice is appropriate.


  • An Arizona district court attempt to avoid complying with the Ninth Circuit holding that defendants can’t be shackled even in non-jury court proceedings has been rebuffed, at least for the time being, in an emergency appeal by the Arizona Federal Public Defender.
  • Watch for ways courts may try to weasel out of the Ninth Circuit holding; examples include equating “flight risk” justifying denial of bail with a security concern justifying shackling and one court’s claim it can require defendants to file a written request prior to hearings.
  • And don’t waive the right to be unshackled just for some benefit like being at the front of the calendar; we have to stand unified on this.

Congrats are in order to our colleagues at the Federal Public Defender in Arizona, and a “Shame on you” to the judges in that district.  You’ll recall (I hope) my joyful post several weeks back about the Ninth Circuit’s en banc opinion in United States v. Sanchez-Gomez, 859 F.3d 649 (9th Cir. 2017) (en banc), holding that criminal defendants can’t be routinely shackled in non-jury court proceedings any more than they can be routinely shackled in jury court proceedings.  (See “If You Haven’t Already, You Can Sure Throw Off Those Chains Now,” June 2017 (attached below)  As discussed in that post, the Ninth Circuit held that defendants can be shackled in non-jury proceedings only if (1) the court makes an individualized decision that a compelling government purpose would be served and (2) shackling is the least restrictive means for maintaining security and order in the courtroom.

Some district judges and magistrates (perhaps driven by their marshals who want to cry “security” every chance they get and prioritize the most de minimus interest in security at the expense of every other interest) apparently don’t want to accept the Ninth Circuit’s ruling.  While I’m not sure they’re completely alone, the district judges in Arizona have apparently gone the furthest in this respect – at least as a bloc – apparently claiming they don’t have to follow Sanchez-Gomez until the Ninth Circuit issues its mandate, which is currently stayed.  This is in clear contravention of well-established Ninth Circuit law, which makes it crystal clear an opinion is binding precedent as soon as it’s issued, regardless of whether the mandate (which, by rule, is automatically held in every case for 21 days absent exceptional circumstances) has issued.  See, e.g., United States v. Gomez-Lopez, 62 F.3d 304, 306 (9th Cir. 1995); Chambers v. United States, 22 F.3d 939, 942 n.3 (9th Cir. 1994), vacated on other grounds, 47 F.3d 1015 (9th Cir. 1995); Wedbush, Noble, Cooke, Inc. v. SEC, 714 F.2d 923, 924 (9th Cir. 1983).

Fortunately, neither our colleagues at the Federal Public Defender in Arizona nor a Ninth Circuit motions panel have put up with this.  The Federal Public Defender filed a petition for writ of mandamus to force compliance with Sanchez-Gomez, accompanied by a motion for emergency injunction ordering its district court judges to comply with Sanchez-Gomez, and a Ninth Circuit motions panel granted the injunction and ordered a response to the petition.  For your reading enjoyment, the order and the petition and motion setting out the facts and the legal arguments are attached herehere, and here.

In the meantime, watch for other ways judges, marshals, and/or the government may try to weasel out of Sanchez-Gomez.  One example I’ve heard of is an argument that anyone who is subject to detention on flight risk grounds (or perhaps danger to the community grounds as well?) is also subject to shackling, apparently on some theory that flight risk means the defendant might try to flee the courtroom or otherwise be disruptive.  This almost fails the laugh test, since someone being a flight risk because he or she may not show up for a court appearance after being released is a far cry from someone running out of the courtroom during a court appearance in the presence of the judge, the attorneys, and multiple deputy marshals.  In a case where a statutory presumption of detention applies, it also flips the burden, because Sanchez-Gomez places the burden on the government and court to find a “compelling” need for shackling.

I’ve also heard of a judge who previously had a policy that required defendants to file a written request to be unshackled prior to court appearances possibly taking the position he could continue with that policy after Sanchez-Gomez.  That’s another improper flipping of the burden since Sanchez-Gomez clearly creates a presumption of no shackling and places the burden on the court and government to show a compelling need for shackling.  If anyone should be required to file a written request prior to a hearing, it should be the government and/or marshal.

Then there’s the issue of subtle pressures – or not so subtle pressures – to waive the right to be unshackled, like the Central District of California form I discussed in the post several weeks ago.  In a way, that’s like trying to turn us and/or our clients against each other.  If no one waives, there won’t be any non-waivers to be pushed back to the end of the calendar.  But if we start being tempted by an offer of being allowed to go first if we waive the right to be unshackled, it’s a slippery slope, just like using scabs to break a strike.  This is a place where a unified stand is important.

The bottom line is that the way they’ve been treating our clients for the past 15 or more years – and the way they’re trying to keep treating them – is demeaning to the clients, demeaning to us, and in a very real way demeaning to the judges and the courts.  And it’s completely unnecessary in light of how extremely rare defendant disruption in court has been – both before and after shackling.  There isn’t now – and never was – any empirical showing of a problem in need of the shackling solution.  It is – and always was – a solution in search of a problem.

REPRINTED FROM: July 25, 2017 By Carl GunnHanging Out with Carl Gunn

If You Haven’t Already, You Can Sure Throw Off Those Chains Now.
June 20, 2017

  • The Ninth Circuit sitting en banc recently affirmed a prior panel holding that routine shackling of defendants for non-jury court proceedings is impermissible; there is a presumption defendants should not be shackled, and shackling is permissible only based on an individualized determination that there is a “compelling need” for shackling.
  • The en banc opinion has some wonderful language about treating defendants with dignity and giving our courtrooms at least an appearance of justice.
  • In our Central District of California, the government has drafted a waiver and is attempting to pressure defendants to give up their right not to be shackled, and we should resist any cooperation with that shameful effort.

In a post a couple of years ago, I wrote about a Ninth Circuit panel opinion invalidating a San Diego policy – similar to ones I understand existed in most districts – providing for routine shackling of most defendants for most non-jury district court appearances.  This outrageous practice got started – or at least accelerated – soon after the 9/11 attacks when our institutions and authorities started kowtowing to “homeland” – and every other kind – of security concern almost every time it got raised.  One example that affected us was a position United States Marshals started taking that they need to shackle defendants to protect others in our courtrooms, despite the almost complete lack of any empirical experience that courtroom violence or disruption was anything other than extremely rare.  We’d litigated this 10 years ago in our Central District and initially won, but then lost.  Recently, in San Diego, the Federal Defenders office there relitigated it and won in a case decided by another Ninth Circuit panel – which actually had one of the same judges as in the first case.  For citations of the opinions in the first case, what followed it in terms of practice, and the new opinion in the San Diego case, see the prior post, titled, “Throw Off Those Chains!,” in the September 2015 link at the right.  It was a wonderful rejection of an outrageous and offensive practice.

Well, I have even better news now than I had two years ago.  The Ninth Circuit granted en banc review in the San Diego case and affirmed the panel’s holding in United States v. Sanchez-Gomez, No. 13-50561, 2017 WL 2346995 (9th Cir. May 31, 2017).  The holding in the en banc opinion rings loud and clear:

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.  Before a presumptively innocent defendant may be shackled, the court must make an individualized decision that a compelling government purpose would be served and that shackles are the least restrictive means for maintaining security and order in the courtroom.  Id., 2017 WL 2346995, at *9 (footnotes omitted).  Put simply, routine shackling in non-jury proceedings is dead, and our clients can be shackled only if (1) there is an individualized determination shackling is necessary; (2) there’s a “compelling” need for it; and (3) there is no other less restrictive means for maintaining security and order in the courtroom.

And for those of us who have been offended – indeed, even outraged and nauseated – by this practice, there’s vindication in the court’s explanation of and rationale for the holding, which highlights the basic concern for human dignity that makes shackling our clients so offensive.
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.  Id., 2017 WL 2346995, at *9.  As expressed in a concurring Second Circuit opinion our en banc court goes on to quote, “[t]he fact that the proceeding is non-jury does not diminish the degradation a prisoner suffers when needlessly paraded about a courtroom, like a dancing bear on a lead, wearing belly chains and manacles.”  United States v. Zuber, 118 F.3d 101, 106 (2d Cir. 1997) (Cardamone, J., concurring), quoted in Sanchez-Gomez, 2017 WL 2346995, at *9.

And it’s not just about the defendant.  The right also maintains courtroom decorum and dignity:

The courtroom’s formal dignity, which includes the respectful treatment of defendants, reflects the importance of the matter at issue, guilt or innocence, and the gravity with which Americans consider any deprivation of an individual’s liberty through criminal punishment.  And it reflects a seriousness of purpose that helps to explain the judicial system’s power to inspire the confidence and to affect the behavior of a general public whose demands for justice our courts seek to serve.
Deck [v. Missouri], 544 U.S. [622,] 631 [(2005)].  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 palace 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. Sanchez-Gomez, 2017 WL 2346995, at *10.

We might point to lots of other things that also tarnish this image from our defense perspective, but this nauseating shackling policy certainly contributed to the stain.  Perhaps in recognition of the less idealized view that some defendants and their counsel might have of our courts and courtrooms, the Sanchez-Gomez opinion later explains, in distinguishing the jail conditions case of Bell v. Wolfish, 441 U.S. 520 (1979):

But Bell dealt with pretrial detention facilities, not courtrooms.  (Footnote omitted.)  Those facilities are meant to restrain and keep order, not dispense justice.  We emphatically reject the idea that courtrooms are (or should be) perceived as places of restraint and punishment, or that courtrooms should be governed exclusively by the type of safety considerations that justify detention facility policies.  We must make every reasonable effort to avoid the appearance that courts are merely the frontispiece of prisons.

Sanchez-Gomez, 2017 WL 2346995, at *12.  And, on the same note:

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. . . . We must treat people with respect and dignity even though they are suspected of a crime.
Sanchez-Gomez, 2017 WL 2346995, at *13.

As an aside, I recently found out the government in our Central District of California where many defendants appear in groups are trying to get our clients to sign waivers of the right to be unshackled, with the suggestion made that your case will get called first if you sign the waiver, and possibly suggestions by deputy marshals of things like you might get back to the jail late and miss dinner if you choose not to sign the waiver and go last.  Our government officials – including deputy marshals and prosecutors, and, yes, even judges – who encourage this sort of penalty for the exercise of a now clearly recognized right should be ashamed.  And we as defense attorneys shouldn’t participate by having our clients sign the waiver.  We of all people need to make sure our clients are “treat[ed] . . . with respect and dignity”; we of all people need to make sure they aren’t “marched in like convicts on a chain gang”; and we of all people need to make sure they aren’t “needlessly paraded about a courtroom, like a dancing bear on a lead, wearing belly chains and manacles.”

By Carl GunnHanging Out with Carl Gunn