Throw Off Those Chains!

September 1, 2015
By Hanging Out with Carl Gunn


  • A recent Ninth Circuit opinion – United States v. Sanchez-Gomez – invalidates a Southern District of California United States Marshal policy of shackling all defendants at most court appearances in five-point restraints.
  • The opinion distinguishes and limits the prior Ninth Circuit opinion in United States v. Howard that allowed some shackling at some court appearances in the Central District of California.
  • We can use Sanchez-Gomez in the Central District of California and other districts to limit, if not entirely eliminate, the shackling of our clients, both in terms of the extent of shackling and when it’s allowed.



Some of you who knew me at the time may recall how outraged I was when I returned to the Federal Public Defender office in Los Angeles from my three years at the Tacoma office and found our clients being routinely shackled during some (and then eventually almost all) non-jury court appearances.  We challenged the policy at several initial appearances and eventually took the issue all the way to the Ninth Circuit.  After an initially favorable panel opinion invalidating the shackling, see United States v. Howard, 429 F.3d 843 (9th Cir. 2005), the panel reversed course and allowed the shackling, see United States v. Howard, 480 F.3d 1005 (9th Cir. 2007).

We’ve since been left with something of a potpourri.  In Los Angeles, some judges allow – or even require – complete shackling including leg irons, handcuffs, and belly chains; a few judges require removal of all shackles; still other judges require removal of everything except the leg irons; and still other judges address the issue on a case-by-case basis if it’s raised by the attorney, with the default of full shackling if the attorney doesn’t say anything.  Other districts and/or individual judges in other districts have their own policies, which similarly vary.  The Eastern District of California even has a local rule about it.  See E.D. Cal. Local Rule 401.

Well, a wonderful opinion dealing with shackling in San Diego has just come out that raises hope and reminds us we can still argue about this.  The opinion is United States v. Sanchez-Gomez, No. 13-50561, 2015 WL 5010701 (9th Cir. Aug. 25, 2015), and it invalidates a shackling policy instituted in 2013 in San Diego.  The district court there had approved a United States Marshal’s office request for a policy requiring “full restraints” – which the opinion described as “leg shackles and handcuffs connected to a belly band by a chain approximately 15 inches long . . . also referred to as ‘five point restraints’” – for all non-jury proceedings other than guilty pleas and sentencing hearings.  Id. at *1.

The Ninth Circuit invalidated the San Diego policy – in an opinion written by the same judge who wrote Howard, Judge Schroeder.  The court acknowledged that a policy permitting routine shackling in some circumstances might be permissible, pointing to Howard as an example, but held it “must rest on an ‘adequate justification of its necessity.’”  Sanchez-Gomez, 2015 WL 5010701, at *2 (quoting Howard, 480 F.3d at 1008).  The court then distinguished the policy in Howard from the San Diego policy on at least six grounds.

1. The policy considered in Howard authorized only leg shackles.  Sanchez-Gomez, 2015 WL 5010701, at *3.  (My comment: It was just this form of initial appearance shackling in Los Angeles that was before the court in the Howard appeal.)
2. The policy considered in Howard applied only at first appearances.  Sanchez-Gomez, 2015 WL 5010701, at *3.  (Again, this was the particular shackling we appealed.)
3. The policy considered in Howard applied only before magistrate judges.  Sanchez-Gomez, 2015 WL 5010701, at *3.
4. Because the San Diego shackling was more burdensome and used more frequently, “it carrie[d] a greater risk of impeding the ability of defendants to participate in their defense and communicate with their counsel.”  Sanchez-Gomez, 2015 WL 5010701, at *3.
5. The San Diego shackling was “a greater affront to the dignity and decorum of the proceedings, because the shackles themselves are more conspicuous and are used at many different stages of a criminal case.”  Sanchez-Gomez, 2015 WL 5010701, at *3.
6. Howard involved “a particular courtroom” and “a problem peculiar to the Roybal Courthouse in Los Angeles,” Sanchez-Gomez, 2015 WL 5010701, at *3, which Howard described as “a large courtroom on the third floor of the Roybal Courthouse, in the presence of multiple defendants, where the risks of conflict, violence, or escape are heightened,” Sanchez-Gomez, 2015 WL 5010701, at *3 (quoting Howard, 480 F.3d at 1013).

This new opinion creates hope for at least significantly limiting shackling of defendants.  First, it limits the actual holding in Howard – even in Los Angeles – to (a) leg irons only; (b) at initial appearances; and (c) before magistrate judges.  While more burdensome shackling at some additional appearances might be allowed in some circumstances, it’s not resolved by the Howard opinion.  Those judges in Los Angeles who routinely have all defendants restrained in the leg iron/handcuffs/belly chain “five point restraints” – as at least a few do – seem clearly in conflict with this new holding in Sanchez-Gomez.  And even routine shackling limited to leg irons may be impermissible in later proceedings where the defendants are more of a known quantity and/or there’s a smaller number of defendants present.  Cf. Howard, 480 F.3d at 1013 (noting Judge Eick’s recognition that “security-related information concerning defendants typically is incomplete” at initial appearances).  So for those later proceedings, let’s start pushing for defendant-specific shackling decisions even here in Los Angeles.

Second, those of you in other, smaller, low-volume districts have even stronger arguments.  The San Diego policy was invalidated even though “[t]here is no dispute that the Southern District has a higher volume of criminal defendants than most other districts, that violence among pretrial detainees appears to have increased, and that there have been two incidents of in-court attacks on a fellow prisoner.”  Sanchez-Gomez, 2015 WL 5010701, at *1.  In a smaller district where there aren’t even these factors, the argument against shackling should be even stronger – and the threshold for allowing it in a particular case or circumstance even higher.

Finally, let me step away from the legal analysis and just wave my bleeding heart a little bit.  Forcing our clients to shuffle up to the podium bound in chains is an insult to them, an insult to every other participant in the system (including the judges and prosecutors), and an insult to our system of criminal justice.  It’s something we shouldn’t tolerate and should fight in any way we can.  It may not be the most important thing to talk about when you get up to speak for your client, but consider making it the first thing you talk about.

And if they ask why you’re making waves, feel free to say you’ve been hanging out with Carl Gunn.