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United States v. Sanchez-Gomez

United States Court of Appeals, Ninth Circuit

May 31, 2017

United States of America, Plaintiff-Appellee,
Rene Sanchez-Gomez, Defendant-Appellant. United States of America, Plaintiff-Appellee,
Moises Patricio-Guzman, Defendant-Appellant. United States of America, Plaintiff-Appellee,
Jasmin Isabel Morales, aka Jasmin Morales, Defendant-Appellant. United States of America, Plaintiff-Appellee,
Mark William Ring, Defendant-Appellant.

          Argued and Submitted En Banc September 7, 2016 San Francisco, California

         Appeal 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

         Appeal 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

         Appeal 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

         Appeal 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

          Reuben Camper Cahn (argued), Shereen J. Charlick, and Ellis M. Johnston III, Federal Defenders of San Diego, Inc., San Diego, California, for Defendants-Appellants.

          Daniel 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.


         Criminal Law

         The en 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 courtroom.

         The en 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.

         Applying 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 applied.

         The en 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.

         Even 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.

         Concurring, 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.

         Dissenting, 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.

         We consider whether a district court's policy of routinely shackling all pretrial detainees in the courtroom is constitutional.


         In 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.

         After 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[1] 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.

         Starting 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.[2] 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 time."

         The 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" with it.

         The 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 before us.[3]


         A. Appellate Jurisdiction

         1. 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.

         We held 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 collateral orders.

         Presented 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.

         The 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.

         Such claims are sometimes brought as civil class actions.[4]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).

         2. "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).

         Another 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).

         The 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 appropriate:

(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.

         All of 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).

         The 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.[5] 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.[6]

         Accordingly, we construe defendants' appeals as petitions for writs of mandamus under our supervisory authority and find that we have jurisdiction to consider them.

         B. Mootness

         Article 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.

         1. "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.

         Two of 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.

         Named 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.

         We 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 capable-of-repetition-yet-evading-review exception. 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.

         The 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 litigation. Id.

         We have 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).[7] 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 1117.

         The 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. Id.

         The 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 holding).

         The 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.

         All of 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.").

         2. 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.

         C. The Fundamental Right to be Free of Unwarranted Restraints

         At the 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, ...

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