Mandamus Them If They Won’t Throw Off the Chains!

July 25, 2017
By Hanging Out with Carl Gunn


  • 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,” in the June 2017 link at the right.)  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 here, here, 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.