and Submitted En Banc September 7, 2016 San Francisco,
from the United States District Court No. 3:13-mj-03928-
BLM-LAB-1 for the Southern District of California Barbara
Lynn Major, Magistrate Judge, Presiding
from the United States District Court D.C. No. 3:13-mj-03882-
JMA-LAB-1 for the Southern District of California Jan M.
Adler, Magistrate Judge, Presiding
from the United States District Court D.C. No. 3:13-cr-04126-
JLS-1 for the Southern District of California Janis L.
Sammartino, District Judge, Presiding
from the United States District Court D.C. No. 3:13-cr-03876-
MMA-1 for the Southern District of California Michael M.
Anello, District Judge, Presiding
Camper Cahn (argued), Shereen J. Charlick, and Ellis M.
Johnston III, Federal Defenders of San Diego, Inc., San
Diego, California, for Defendants-Appellants.
E. Zipp (argued) and Kyle Hoffman, Assistant United States
Attorneys; Bruce R. Castetter, Chief, Appellate Section,
Criminal Division; United States Attorney's Office, San
Diego, California; for Plaintiff-Appellee.
Before: Sidney R. Thomas, Chief Judge, and Mary M. Schroeder,
Stephen Reinhardt, Alex Kozinski, Diarmuid F.
O'Scannlain, Barry G. Silverman, Susan P. Graber, Richard
A. Paez, Marsha S. Berzon, Consuelo M. Callahan and Sandra S.
Ikuta, Circuit Judges.
banc court denied mandamus relief regarding the United States
District Court for the Southern District of California's
policy of routinely shackling all pretrial detainees in the
banc court construed four defendants' appeals challenging
the district-wide policy as petitions for writs of mandamus
and found that it had jurisdiction to consider them under the
court's supervisory authority.
the analysis of Gerstein v. Pugh, 420 U.S. 103
(1975), a class action, the en banc court held that even
though the named defendants' cases had ended and the
challenged policy was no longer in effect, the supervisory
mandamus case was not moot because the
capable-of-repetition-yet-evading-review mootness exception
banc court clarified that the Fifth Amendment right to be
free of unwarranted restraints 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. Courts cannot delegate
this constitutional question to those who provide security,
such as the U.S. Marshals Service. Nor can courts institute
routine shackling policies reflecting a presumption that
shackles are necessary in every case. The en banc court wrote
that the right to be free of unwarranted restraints has deep
roots in the common law, which did not draw a bright line
between trial and arraignment. The en banc court rejected the
government's contention that individualized
determinations are required only before shackles are used in
the jury's presence, and that otherwise the right is
sufficiently protected by considering generally applicable
security concerns, deferring to the Marshals Service and
leaving the rest to individual judges' discretion.
though the en banc court held the district court's
shackling policy to be unconstitutional, it withheld the
issuance of a formal writ of mandamus because the shackling
policy was not then in effect.
Judge Schroeder wrote that she fully concurred in the
majority's opinion. In addition to her disagreement with
the dissent's interpretation of common law and Supreme
Court authority, Judge Schroeder observed that the dissent
lacked sensitivity to the dignity with which court
proceedings should be conducted and to the proper role of the
judges as opposed to the Marshals Service in determining how
a courtroom should be run.
Judge Ikuta, joined by Judges O'Scannlain, Silverman,
Graber, and Callahan, wrote that the case was moot and no
exception to mootness applied. Judge Ikuta wrote that the
majority's theory of a "functional class
action" exception was inconsistent with Supreme Court
precedent and incompatible with Article III's
case-or-controversy requirement. She wrote that the
defendants' appeals also did not meet the requirements
for granting a writ of supervisory mandamus, an extraordinary
remedy justified only by exceptional circumstances amounting
to a judicial usurpation of power. On the merits, Judge Ikuta
wrote that the majority announced a new rule of
constitutional criminal procedure that was contrary to
Supreme Court precedent, created a split with the Second and
Eleventh Circuits, and put trial courts throughout the Ninth
Circuit at risk.
KOZINSKI, Circuit Judge.
consider whether a district court's policy of routinely
shackling all pretrial detainees in the courtroom is
2013, the judges of the Southern District of California
acceded to the U.S. Marshals Service's request for
"a district-wide policy of allowing the Marshals Service
to produce all in-custody defendants in full restraints for
most non-jury proceedings." "Full restraints"
means that a defendant's hands are closely handcuffed
together, these handcuffs are connected by chain to another
chain running around the defendant's waist, and the
defendant's feet are shackled and chained together.
seeking input from the U.S. Attorney's Office, the
Federal Defenders of San Diego and a Criminal Justice Act
panel representative, the judges adopted the
policy of deferring to the Marshals'
shackling decisions, with a few minor exceptions. The judges
retained discretion to "direct the Marshals to produce
an in-custody defendant without restraints." And the
district judges, but not the magistrates, directed the
Marshals to "remove arm and hand restraints during
guilty pleas and sentencing hearings before them unless the
Marshals [were] aware of information that the particular
defendant need[ed] to be fully restrained."
Additionally, "defendants in individual cases may ask
the judge to direct that the restraints be removed in whole
or in part, " at which point the judge would "weigh
all appropriate factors, including all of the concerns"
expressed by the Marshals in justifying the routine use of
full restraints. Only one district judge, Judge Marilyn Huff,
opted out of the policy altogether. For the rest of the
Southern District's judges, the Marshals shackled all
in-custody defendants at pretrial proceedings.
on the first day of the policy's implementation, the
Federal Defenders of San Diego objected to the routine use of
shackles and requested that each defendant's shackles be
removed. The judges routinely denied the requests, relying on
the Marshals Service's general security concerns as well
as concerns particular to the Southern District. They pointed
to increasing security threats from what they viewed as
changing demographics and increasing case loads in their
district. After ruling on a few individual
objections, the judges indicated that they didn't
"want to go through it a bunch of times." "For
the record, " one judge helpfully noted, "every
defendant that has come out is in th[e] exact same shackling;
so [counsel doesn't] have to repeat that every
shackling was the same regardless of a defendant's
individual characteristics. One defendant had a fractured
wrist but appeared in court wearing full restraints. The
judge denied her motion "for all of the reasons
previously stated." Another defendant was
vision-impaired. One of his hands was free of restraint so he
could use his cane, but his other hand was shackled and
secured to a chain around his waist and his legs were
shackled together. His objection was "denied for all the
reasons previously stated." And another defendant was
shackled despite being brought into court in a wheelchair due
to her "dire and deteriorating" health. The court
"noted" her objection to the shackles and
"appreciate[d] [counsel] not taking anymore time"
four defendants here, Rene Sanchez-Gomez, Moises
Patricio-Guzman, Jasmin Isabel Morales and Mark Ring, all
appeared in shackles and objected to their use. The
magistrate judges overruled the objections in each instance.
Defendants appealed these denials to the district court and
also filed "emergency motions" challenging the
constitutionality of the district-wide policy. The district
courts denied all relief. All four cases are now consolidated
In United States v. Howard, we considered shackling
claims similar to the ones raised here. 480 F.3d 1005, 1008
(9th Cir. 2007). The Central District of California had
adopted a routine shackling policy in consultation with the
U.S. Marshals Service. Id. The policy required
defendants to be shackled in leg restraints at their initial
appearances. Id. The public defenders objected,
claiming that the use of leg restraints on individual
defendants violated the defendants' liberty interests
under the Fifth Amendment. Id. at 1009, 1013. They
appealed the district court's denial of the unshackling
motions without waiting for the defendants' criminal
cases to conclude. Id.
that we had jurisdiction to review the district's
shackling decisions as immediately appealable collateral
orders. Id. at 1011. Such orders "(1)
conclusively determine the disputed question, (2) resolve
an important issue completely separate from the merits of the
action, and (3) [are] effectively unreviewable on appeal from
a final judgment." Sell v. United States, 539
U.S. 166, 176 (2003) (internal quotation marks, brackets and
citation omitted). The government urges us to reconsider
Howard, arguing that shackling decisions don't
satisfy the requirements for immediately appealable
for our review in this appeal are individual shackling
decisions as well as district-wide challenges to the
shackling policy. The main dispute in this case, however, is
the district-wide shackling policy. Because we do not review
the individual defendants' shackling decisions, we see no
reason to revisit Howard's appellate
jurisdiction analysis as it applies to those appeals.
district-wide challenges introduce a wrinkle in this case
that Howard didn't address. Defendants challenge
the Southern District's policy of routinely shackling
in-custody defendants without an individualized determination
that they pose a material risk of flight or violence.
Defendants seek relief not merely for themselves, but for all
in-custody defendants in the district. Thus, defendants are
making classlike claims and asking for class-like relief.
claims are sometimes brought as civil class
actions.See, e.g., De Abadia-Peixoto
v. U.S. Dep't of Homeland Sec., 277 F.R.D. 572, 574
(N.D. Cal. 2011) (using a civil class action to challenge an
Immigration and Customs Enforcement policy of shackling all
detainees in San Francisco's immigration court). But we
can also construe such claims as petitions for writs of
mandamus when we lack appellate jurisdiction and mandamus
relief is otherwise appropriate. See Miller v.
Gammie, 335 F.3d 889, 895 (9th Cir. 2003) (en banc). We
"treat the notice of appeal as a petition for a writ of
mandamus and consider the issues under the factors set forth
in Bauman." Id. (citation omitted).
"The common-law writ of mandamus against a lower court
is codified at 28 U.S.C. § 1651(a): 'The Supreme
Court and all courts established by Act of Congress may issue
all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of
law.'" Cheney v. U.S. Dist. Court for the Dist.
of Columbia, 542 U.S. 367, 380 (2004).
"Historically, a writ of mandamus was an order
compelling a court or officer to act." In re United
States, 791 F.3d 945, 953 (9th Cir. 2015).
use of the writ is to exercise our "supervisory" or
"advisory" authority. Supervisory and advisory
writs are appropriate in cases "involving questions of
law of major importance to the administration of the district
courts." In re Cement Antitrust Litig. (MDL No.
296), 688 F.2d 1297, 1307 (9th Cir. 1982); see also
La Buy v. Howes Leather Co., 352 U.S. 249, 259-60 (1957)
("We believe that supervisory control of the District
Courts by the Courts of Appeals is necessary to proper
judicial administration in the federal system."). This
authority allows courts to provide broader relief than merely
ordering that the respondent act or refrain from acting,
which promotes the writ's "vital corrective and
didactic function." Will v. United States, 389
U.S. 90, 107 (1967); see also 16 Charles Alan Wright
et al., Federal Practice and Procedure §§
3934, 3934.1 (3d ed. 2016) (describing the history and modern
usage of this authority).
Supreme Court has announced three conditions for issuing the
writ: First, to ensure that the writ doesn't replace the
regular appeals process, there must be "no other
adequate means to attain the relief"; second, the
petitioner must have a "clear and indisputable"
right to the writ; and, lastly, the court, in its discretion,
must be "satisfied that the writ is appropriate under
the circumstances." Cheney, 542 U.S. at 380-81
(internal quotation marks and citations omitted). These
conditions are consistent with the five factors our circuit
has used since Bauman v. U.S. Dist. Court, 557 F.2d
650 (9th Cir. 1977), to determine whether mandamus relief is
(1) whether the petitioner has no other means, such as a
direct appeal, to obtain the desired relief; (2) whether the
petitioner will be damaged or prejudiced in any way not
correctable on appeal; (3) whether the district court's
order is clearly erroneous as a matter of law; (4) whether
the district court's order is an oft repeated error or
manifests a persistent disregard of the federal rules; and
(5) whether the district court's order raises new and
important problems or issues of first impression.
Hernandez v. Tanninen, 604 F.3d 1095, 1099 (9th Cir.
2010) (internal quotation marks omitted) (quoting Perry
v. Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir. 2009));
see also Bauman, 557 F.2d at 654-55.
the Bauman factors need not be present to justify
the writ. See In re Cement Antitrust Litig., 688
F.2d at 1301, 1304 (noting that the fourth and fifth factors
are rarely present in the same case). "Except for
supervisory mandamus cases, the absence of factor three-clear
error as a matter of law-will always defeat a petition for
mandamus." Calderon v. U.S. Dist. Court for the
Cent. Dist. of Cal., 163 F.3d 530, 534 (9th Cir. 1998)
(en banc), abrogated on other grounds by Woodford v.
Garceau, 538 U.S. 202 (2003). "In the final
analysis, the decision of whether to issue the writ lies
within our discretion." In re Van Dusen, 654
F.3d 838, 841 (9th Cir. 2011) (citation omitted).
Bauman and Cheney factors favor our review.
There is no danger that the writ will supplant the normal
appeals process because the district-wide shackling claims
aren't connected to defendants' individual criminal
cases. The policy doesn't apply to jury
trials; thus, it causes no prejudice that would justify
reversal of a conviction in a direct appeal. This case also
raises new and important constitutional issues that
haven't been fully considered by this court. See
United States v. Brandau, 578 F.3d 1064, 1065 (9th Cir.
2009). And a survey of our circuit's district courts
shows that some form of routine shackling has become a common
practice and thus is an oft-repeated error.
we construe defendants' appeals as petitions for writs of
mandamus under our supervisory authority and find that we
have jurisdiction to consider them.
III's "case-or-controversy limitation" on
federal court jurisdiction requires a live controversy
between two adversaries. Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180
(2000). Supervisory mandamus cases require live controversies
even when we don't order a lower court to take or refrain
from a specific action. See In re United States, 791
F.3d at 952. Neither party claims that this case is moot, but
the court "must assure itself of its own
jurisdiction." Terenkian v. Republic of Iraq,
694 F.3d 1122, 1137 (9th Cir. 2012). There are two
circumstances in this case that raise the possibility of
mootness: (1) the named defendants' cases have ended, so
they're no longer subject to the complained-of policy,
and (2) the challenged policy is no longer in effect.
"In cases where intervening events have rendered the
writ an ineffective or superfluous remedy, but where the
controversy nonetheless remains live, we have occasionally
reviewed the district court's decision for error while
withholding a formal writ." In re United
States, 791 F.3d at 953 (citing Phoenix Newspapers,
Inc. v. U.S. Dist. Court for the Dist. of Ariz., 156
F.3d 940, 952 (1998); United States v. Brooklier,
685 F.2d 1162, 1173 (9th Cir. 1982)). We do so when it would
have been appropriate to issue the writ at the time the
petition was filed. Id. at 954. This allows us to
review "important issues that would otherwise escape
review, while [e]nsuring that such review is limited to truly
extraordinary circumstances." Id.
the defendants, Rene Sanchez-Gomez and Jasmin Isabel Morales,
were not yet convicted and so were still subject to the
pretrial shackling policy when they filed their notices of
appeal. Construing their notices of appeal as petitions for
writs of mandamus, they had a direct stake in the resolution
of the controversy at the time their petitions were filed.
plaintiffs-or, in the mandamus setting, petitioners-must also
have a continuing personal interest in the outcome of the
case throughout the litigation. See Campbell-Ewald Co. v.
Gomez, 136 S.Ct. 663, 669 (2016). Because they are no
longer subject to the policy, defendants' personal
interests in the outcome of this case have expired.
faced the same issue in Howard. The defendants'
criminal cases ended before their shackling appeals could be
heard. 480 F.3d at 1009-10. We held that the case wasn't
moot because it fell into the
Id. This exception requires repetition as to the
particular complainants, and we cannot presume that
defendants will be subject to criminal proceedings in the
future. Id. But some criminal defendants
would have been subject to the challenged policy during the
litigation and would personally benefit from resolving the
case. Thus, we employed the
capable-of-repetition-yet-evading-review mootness exception
that applied to the class action in Gerstein v.
Pugh, 420 U.S. 103 (1975). Though Howard
wasn't a class action, the case served the same
functional purpose-it was a functional class action.
See 480 F.3d at 1009-10.
Supreme Court in Gerstein applied the
capable-of-repetition-yet-evading-review mootness exception
even though the named plaintiff was no longer subject to the
challenged practice. 420 U.S. at 110 n.11. In that case, the
class was composed of defendants held in pretrial detention
without a probable cause hearing. Id. at 105-06. It
wasn't clear that any representative plaintiff would
remain in pretrial custody long enough for the judge to
certify the class, much less decide the case. Id. at
110 n.11. But the class would continually fill with new
in-custody defendants who had a live interest in the case.
Id. The attorney representing the class was a public
defender who would continue to represent at least some of
those new defendants and class members. Id. Under
those circumstances, the Court held that the case wasn't
moot because the harm was capable of repetition yet evading
review as to some member of the class throughout the
applied Gerstein's analysis to functional class
actions with inherently transitory claims. See
Howard, 480 F.3d at 1009-10; Or. Advocacy Ctr. v.
Mink, 322 F.3d 1101, 1117-18 (9th Cir.
2003). These cases involve circumstances
"analogous to those found in class action cases where,
because of the inherently transitory nature of the claims,
" an individual's interests would expire before
litigation could be completed. Or. Advocacy Ctr.,
322 F.3d at 1117. Functional class actions share the same
three features that animated the Supreme Court in
Gerstein: They challenge not merely individual
violations, but also broader policies or practices. See
id. at 1118. Thus, they consist of continually changing
groups of injured individuals who would benefit from any
relief the court renders. And they have common
representation, thereby guaranteeing that the cases will be
zealously advocated even though the named individuals no
longer have live interests in the case. See id. at
dissent disputes this application of Gerstein.
According to the dissent, Gerstein and related cases
require "the existence of a procedural mechanism, such
as [Federal Rule of Civil Procedure] 23, " for their
mootness exceptions to apply. Dissent at 46-47. But the rule
in Gerstein doesn't turn on the presence of a
procedural device like Rule 23. 420 U.S. at 110 n.11. Rather,
Gerstein's rule resolves the problem of
inherently transitory claims while ensuring there is a live
controversy for which the court can provide relief.
Supreme Court itself has indicated that
Gerstein's broadening of the
capable-of-repetition-yet-evading-review mootness exception
could apply to cases sufficiently similar to class actions.
The Court discussed Gerstein's factors in a case
brought under the Fair Labor Standards Act (FLSA),
Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523
(2013). Unlike the class action procedures in Rule 23, the
FLSA's "'conditional certification' does not
produce a class with an independent legal status."
Id. at 1530. The Court nonetheless considered
whether, under Gerstein, the plaintiff's injury
might be capable of repetition yet evading review.
Id. at 1531; see also id. at 1530
(recognizing that the Court's holdings in Sosna v.
Iowa, 419 U.S. 393 (1975), and U.S. Parole
Commission v. Geraghty, 445 U.S. 388 (1980), depended on
the "independent legal status" of class actions
while making no such claim about Gerstein's
dissent claims that Genesis Healthcare still
requires "the existence of a procedural mechanism . . .
to aggregate the claims" as a "necessary
prerequisite" for Gerstein's analysis to
apply. Dissent at 46-47. But the Court did not say so.
Instead, the Court noted that its application of
Gerstein has "invariably focused on the
fleeting nature of the challenged conduct giving rise to the
claim." 133 S.Ct. at 1531. The dissent's excursus on
mootness also ignores that this is a supervisory mandamus
case. See dissent at 39-53. In its supervisory
mandamus role, a court of appeals properly addresses the harm
of a district court policy affecting a huge class of persons
who aren't parties to the mandamus petition. See,
e.g., Will, 389 U.S. at 95, 104-06;
Schlagenhauf v. Holder, 379 U.S. 104, 110-12 (1964);
La Buy, 352 U.S. at 257-60. Unlike the dissent,
see dissent at 50 n.5, the Supreme Court hasn't
found a constitutional infirmity with such cases. Thus, the
dissent's concerns about the lack of formal joinder and
whether the decision binds other defendants, see id.
at 46-49, are misplaced.
the Court's considerations in Gerstein are
present here, and the harm-unconstitutional pretrial
shackling-is inherently ephemeral, just like the pretrial
detention challenges in Gerstein. We are faced with
an ever-refilling but short-lived class of in-custody
defendants who are subject to the challenged pretrial
shackling policy. At least some members of this functional
class continue to suffer the complained-of injury. Most of
the defendants are represented by the Federal Defenders of
San Diego. And even if we must withhold a formal writ, we can
provide district-wide relief by exercising our supervisory
mandamus authority, thus demonstrating that there is a live
controversy here. See Knox v. Serv. Emps. Int'l
Union, Local 1000, 132 S.Ct. 2277, 2287 (2012) ("A
case becomes moot only when it is impossible for a court to
grant any effectual relief whatever to the prevailing
party." (internal quotation marks and citations
omitted)); see also In re United States, 791 F.3d at
954 ("[W]e are not categorically precluded from opining
on the merits of a mandamus petition when issuance of the
writ would no longer be effective.").
Shortly after the original panel decision in this case, the
Southern District of California changed its shackling policy
in response to additional litigation about its continued use
of five-point restraints. But the district court's
decision to change the policy was only a voluntary cessation.
See Friends of the Earth, 528 U.S. at 189. The
appealed policy could be reinstated at any time. In fact, the
government has indicated that it will seek to reinstate the
policy unless we hold it unconstitutional. Thus, there is
still a live controversy over the shackling policy.
The Fundamental Right to be Free of Unwarranted
heart of our criminal justice system is the well-worn phrase,
innocent until proven guilty. See Taylor v.
Kentucky, 436 U.S. 478, 483 (1978). And while the phrase
may be well-worn, it must also be worn well: We must guard
against any gradual erosion of the principle it represents,
whether in practice or appearance. This principle safeguards
our most basic constitutional liberties, ...