Metropolitan News-Enterprise


Wednesday, March 28, 2007


Page 1


Court Again Rejects Challenge to Central District’s Shackling Policy


By TINA BAY, Staff Writer


A policy of the U.S. District Court for the Central District of California that requires custodial defendants to wear leg irons in their initial appearance before a magistrate judge does not violate the Due Process Clause, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Reaching the same conclusion as it did in a now-withdrawn Sept. 15 opinion, a three-judge panel unanimously affirmed U.S. District Judge Audrey B. Collins’s order upholding the shackling policy. The panel denied petitions for rehearing and rehearing en banc filed by the Los Angeles County Public Defender’s Office, but issued a new ruling setting forth a slightly different rationale for its holding.

The decision stems from an appeal by the Federal Public Defender’s office challenging the constitutionality of the policy, which was implemented in 2003 by the U.S. Marshals Service for the Central District of California upon consultation with the magistrate judges.  The appeal was filed on behalf of 17 defendants who unsuccessfully had asked the magistrate judges in their respective cases to let them appear without the required leg restraints.

Upon its initial review of the shackling policy, a panel comprised of Chief Judge Mary Schroeder and Judges Ronald M. Gould and Richard R. Clifton issued a 2-1 decision on Nov. 15, 2005 concluding the policy lacked adequate justification.

The Sept. 15 ruling was an opinion on rehearing, issued in response to a petition by then-U.S. Attorney Debra Yang.  That decision rested on the U.S. Supreme Court case of Bell v. Wolfish, 441 U.S. 520, 539 (1979), which stated that courts “ordinarily defer to the expert judgments and professional expertise of corrections officials” in determining whether a restraint policy imposed by the government is reasonably related to a legitimate goal.

Second Circuit Followed

Writing for a unanimous court, Schroeder had concluded that magistrate judges properly deferred to the Marshals Service in accepting the policy—which applies to arrested, in-custody defendants at their first court appearance where the magistrate judge reads them their rights, appoints counsel if necessary, sets preliminary hearing dates, and sets or denies bond. The policy, Schroeder said, was reasonably related to security concerns.

In yesterday’s opinion, the panel changed its reason for upholding the shackling policy, adopting the Second Circuit’s view that the U.S. Supreme Court’s rules concerning shackling do not apply in proceedings before a judge rather than a jury.

Schroeder wrote for the panel that the policy at issue concerned only proceedings conducted without the presence of a jury, and concluded it was valid because “[i]t was adopted by magistrate judges of the court following consultation with the Marshals Service to address legitimate security concerns in the Roybal Courthouse.”

Security Concerns Cited

The concerns arise from proceedings being conducted in a large courtroom on the third floor in presence of multiple defendants, where the risks of conflict, violence, or escape are heightened, the jurist explained.

She noted the policy is less restrictive than a previous policy requiring full restraints, and that it leaves open the option for a defendant to ask the court for removal of the shackles due to extenuating circumstances.

Veteran Deputy Public Defender Carlton Gunn, who argued the consolidated appeals, told the MetNews the policy was “a shame.”

“Regardless, frankly, of the constitutional implications, this is totally unnecessary,” he said. “I’ve been a public defender for 23 years, I’ve seen tens of thousands of defendants in the courtroom, I’ve talked to attorneys in thousands of cases, and I have heard of 4 instances or incidents, and 2 of those were jury trials where they couldn’t have had the defendant shackled anyway. It’s just not something that happens.”

It is not yet clear whether an appeal to the U.S. Supreme Court will follow, Gunn said.

The case is United States v. Howard, 03-50524.


Copyright 2007, Metropolitan News Company