Howard

This is an interlocutory appeal by criminal defendants challenging a requirement that pretrial detainees making their first appearance before a magistrate judge wear leg shackles. The district-wide shackling policy was implemented by the United States Marshals Service for the Central District of California after consultation with the magistrate judges. In each of these seventeen cases, the magistrate judge denied the Federal Public Defender’s motion for the defendant to appear without shackles at the initial appearance. The district court reviewed these adverse magistrate judges’ rulings in a consolidated appeal. The district court, citing general safety concerns, affirmed the magistrate judges’ shackling decisions. The record contains no documentation or explanation of specific problems that led up to the enactment of the shackling policy.

Before reaching the merits of the case, we must deal with appellate jurisdictional obstacles raised by the government. These are questions of mootness and appellate jurisdiction over interlocutory orders. We conclude that the case is not moot because the issues are capable of repetition and will otherwise evade review, and that we have…

dissenting:

I agree with my colleagues that we may properly reach the merits of this case. I also agree that the record seems somewhat thin regarding the benefits and detriments of the policy adopted in the Central District of California of requiring in-custody defendants to wear leg restraints or shackles during the initial court appearance before a magistrate judge. My view of the law would require a much stronger showing to set aside the policy than has been made by the defendants here, however. The justification for the policy — to improve court security — is evident, while there is essentially nothing in the record that demonstrates any actual negative impacts from the practice when there is no jury present to be influenced, as there is not during the initial court appearance. At a time when concern for court security is understandably and properly high, I would accept the judgment of the district court — and the collective judgments of the judicial officers most affected, the magistrate judges of the Central District — and affirm.

As an initial matter, I disagree with the majority opinion regarding the legal basis on which it rests its reversal of the district court. The…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 03-50524 v.  D.C. No.

JESSE LEE HOWARD, CR-03-00390-GAF

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 03-50525 v.  D.C. No.

JOSE LUIS FARIAS-BLANCO, 03-0861M-ABC

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 03-50526 v.  D.C. No.

JOSE ANGEL CEDILLOS, 03-0890M-ABC

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 03-50527 v.  D.C. No.

ROBERT HERMAN BOULIES, 03-0945M-ABC

Defendant-Appellant. 

15309 15310 UNITED STATES v. HOWARD

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 03-50532 v.  D.C. No.

CR-03-00435-

DANIEL RIVERA-GONZALEZ, RSWL

Defendant-Appellant. 

UNITED STATES OF AMERICA, …