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Argument preview: Appealability, mandamus and mootness in the shadow of restraints on criminal defendants

The Supreme Court declined to grant certiorari on the substantive constitutional issue in United States v. Sanchez-Gomez — the validity of a district-wide policy permitting United States marshals to place full restraints on defendants during most non-jury proceedings, even without a determination of cause to restrain the defendant. But the disputed nature of any constitutional right to be free from shackling hovers over the jurisdictional issues the court will resolve, with long-term consequences for appellate review and constitutional litigation challenging policies related to criminal proceedings.

Litigation background

In 2013, the U.S. Marshals Service asked the judges of the U.S. District Court for the Southern District of California (which includes San Diego) to adopt a district-wide policy allowing marshals to produce all in-custody defendants in full five-point restraints for most non-jury proceedings. In full restraints, 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. The judges adopted a policy to defer to the marshals’ shackling decisions. They retained discretion to ask the marshals to produce a defendant without restraints, to order removal of restraints unless the marshals had information showing the defendant needed to be restrained, and to grant a defendant’s request that restraints be removed.

The Federal Defenders of San Diego objected on behalf of their clients to the routine use of shackles in every case, although every request for removal of the shackles was denied. Four defendants objected unsuccessfully to the use of shackles, then filed emergency motions challenging the district-wide policy, which also were denied.

Those four defendants appealed to the U.S. Court of Appeals for the 9th Circuit. A panel of the court vacated the district-court orders, but the court granted rehearing en banc. A divided en banc court declined to reconsider circuit precedent on which the panel relied in finding it had appellate jurisdiction. The court instead recognized that the four defendants sought relief not merely for themselves, but for all in-custody defendants, class-like claims seeking class-like relief (albeit without class certification under Federal Rule of Civil Procedure 23). The court treated the appeals as petitions for supervisory writs of mandamus under the All Writs Act (28 U.S.C. § 1651) and reviewed the district-court decisions. The court also found that the case was not moot, even though the four petitioners were no longer detained; the court emphasized the class-like structure of the case and the “inherently transitory” nature of claims affecting individual defendants who move quickly through criminal proceedings. Reaching the merits, the majority declared the policy to be constitutionally invalid, although it withheld issuance of the writ of mandamus because the policy no longer affected the four petitioners.

On the petition of the United States, the Supreme Court agreed to review only the questions of appellate jurisdiction and mootness.

Arguments of the United States

The United States begins by insisting that the court of appeals lacked ordinary appellate jurisdiction. The district-court orders refusing to unshackle the defendants were not final, because they did not terminate the litigation. Neither the defendants nor the 9th Circuit dispute that point.

The orders also were not reviewable under the collateral order doctrine (the basis on which the 9th Circuit panel relied), under which a “limited class” of collateral rulings are treated as final for purposes of 28 U.S.C. § 1291 and subject to immediate review. Collateral-order review should be limited in criminal proceedings, in which the policy against piecemeal appeals holds greater urgency. The Supreme Court has allowed collateral-order review of four types of orders in criminal cases — those setting excessive bail, authorizing forced medication, and denying motions to dismiss on grounds of double jeopardy and speech-or-debate immunity. All other criminal orders remain outside this doctrine, including orders affecting constitutional rights, such as orders delaying trial or disqualifying defense counsel. Shackling orders are not effectively unreviewable on appeal from final judgment; they affect the procedures under which the criminal proceedings will be conducted, making them “indistinguishable” from typical orders in criminal proceedings that are regularly reviewed on appeal from final judgment. The defendants also can vindicate their rights through other proceedings, such as a civil action challenging shackling as a condition of confinement, unconnected to their individual criminal cases.

The 9th Circuit erred in exercising its supervisory mandamus authority. Mandamus requires that the party seeking the writ has no other adequate means to obtain relief, shows a “clear and indisputable” right to the writ, and shows extraordinary circumstances, such as a judicial usurpation of power or clear abuse of discretion in the lower court. None of those is present. The defendants could challenge their individual shackling decisions by appealing final judgments of conviction and could challenge the district-wide policy through a civil action. Mandamus is inappropriate for review of a simple lower-court error on a matter within its discretion. And there is nothing extraordinary about this case, which involves a good-faith effort by the district judges to follow circuit precedent, as opposed to willful disregard for the rules laid down by the higher courts.

Even if the 9th Circuit had some statutory authority to review district-court decisions of this kind, these cases became moot before the en banc decision, because the four defendants had been released from custody and no longer were subject to the shackling policy. The government concedes that a class action can remain alive when the representative parties’ claims have become moot, because the class gains independent legal status and replaces the representative as the party adverse to the defendant. This approach to mootness is essential in class actions adjudicating “inherently transitory” claims, such as claims arising from the rules of criminal proceedings, in which class members move through the criminal-justice system before the constitutional litigation can be resolved. But this case is not a class action. The government urges the Supreme Court to reject the 9th Circuit’s “novel and legally unsupported notion of a ‘functional class action’” as a way to overcome mootness. That the claims in this case are transitory does not justify a judicially created supplement to Rule 23.

Finally, the government argues that the “capable of repetition yet evading review” limitation on mootness — under which an action is not moot when time is too short to fully litigate the issues before the party’s interest expires and there is a “reasonable expectation” that the party will be subjected to the same action in the future — does not apply. The defendants cannot show a reasonable expectation that they will be subject to the shackling policy in the future. That two defendants have in fact been arrested on new charges, brought to court, and shackled pursuant to the policy does not overcome mootness. As the government puts it, a “party’s avowed commitment to recidivism is not a sufficient basis for maintaining” a constitutional challenge to criminal procedures.

Arguments of the defendants

Although the Supreme Court will not reach the constitutional merits in this case, in arguing for collateral-order jurisdiction, the defendants emphasize the scope and nature of the underlying constitutional liberty. The “centuries-old common law right to appear at pretrial proceedings without shackles protects the interest in liberty from bodily restraint that lies at the core of the Due Process Clause’s guarantees. This liberty protects the presumption of innocence, the right to meaningfully participate in one’s own defense, and the dignity and decorum of the courts.” The dignitary interest in remaining free from shackling prior to conviction exists independent of any result or prejudice in the criminal proceeding.

This affects the collateral-order analysis. A dignitary right cannot be reviewed effectively on appeal from final judgment: The liberty was lost when the defendant was shackled. It cannot be restored on appeal of a conviction, and it is lost forever if the defendant is acquitted and has nothing to appeal. The right to be free from shackling is akin to the right against excessive bail or the right against forced medication. Those rights are lost by the defendant’s remaining in custody pending trial or being medicated, regardless of the outcome of the trial, and decisions affecting both those rights are appealable collateral orders. It follows that the right to be free from shackling should be immediately reviewable. The defendants also reject the government’s argument that collateral-review is inappropriate because the constitutional claim can be raised in a distinct action. The Supreme Court in Mohawk Industries Inc. v. Carpenter stated that courts should not base jurisdiction on the collateral order doctrine when alternative statutory or rule-based bases for review might be available. But those alternative means of review must be available and applied in the same proceeding; Mohawk did not suggest that collateral-order review is unavailable in one action because the parties could initiate a distinct action.

The case also was properly reviewed as a mandamus petition. It is an exceptional case, because it challenges a general federal-district-court policy requiring that every defendant at every pretrial proceeding be shackled without cause. The policy produces an oft-repeated error by every judge in the district, rather than a possibly erroneous single decision on a matter within the judge’s jurisdiction. The defendants had no other adequate means to obtain review because the right does not infect the conviction and could not be reviewed on appeal from a judgment of conviction. Once the court of appeals recognized the constitutional right and declared that the shackling policy violated that right, the right to the writ was clear and indisputable.

Finally, the defendants argue that their claims are not moot because they are capable of repetition yet evade review. In fact, two of the defendants have already been arrested again and have been shackled in court without cause pursuant to the policy. Because “[r]eturning to federal court to face new charges is not uncommon for individuals who reenter the United States after removal,” there was a reasonable expectation that these defendants would return and be harmed by the district’s shackling policy — an expectation that became “factual certainty.” And the defendants compare favorably to rights claimants in past cases who avoided mootness because their injuries were capable of repetition. The arrest and shackling of these defendants was an injury as likely to recur as a contempt-of-court order against an individual refusing to pay child support, an abortion ban enforced against a pregnant woman or a closure order enforced against a news organization attempting to cover a criminal proceeding.

Recommended Citation: Howard M. Wasserman, Argument preview: Appealability, mandamus and mootness in the shadow of restraints on criminal defendants, SCOTUSblog (Mar. 19, 2018, 10:42 AM),