United States v. Raymond Henderson , 915 F.3d 1127 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-3549
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RAYMOND L. HENDERSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 17-CR-30072 — Sue E. Myerscough, Judge.
____________________
ARGUED FEBRUARY 28, 2018 — DECIDED FEBRUARY 14, 2019
____________________
Before MANION, SYKES, and HAMILTON, Circuit Judges.
SYKES, Circuit Judge. Raymond Henderson was arraigned
on drug and firearm charges while shackled with leg irons
and handcuffs connected to a waist chain. His attorney
asked the district judge to have the shackles removed. The
judge denied the request, deferring to the United States
Marshals Service’s policy of using full restraints on prisoners
at every nonjury court appearance. Henderson appealed the
ruling, relying on the collateral-order doctrine to support
2 No. 17-3549
interlocutory review. After oral argument we ordered sup-
plemental briefing on the possibility of mandamus as an
alternative means of review if Henderson’s argument about
the collateral-order doctrine failed. We also gave the judge
an opportunity to respond as provided in Rule 21 of the
Federal Rules of Appellate Procedure, which governs man-
damus procedure. She has done so. We now hold that the
collateral-order doctrine does not apply and decline to
reframe the appeal as a petition for a writ of mandamus. We
therefore dismiss the appeal for lack of jurisdiction.
I. Background
A grand jury in the Central District of Illinois indicted
Henderson for possession of crack cocaine with intent to
distribute and two related firearms offenses. In accordance
with the Marshals Service’s policy in the Springfield
Division, Henderson appeared in court for arraignment
encircled by four security officers and shackled with leg
irons and handcuffs connected to a waist chain. His attorney
moved to have him unshackled except for the leg irons for
the remainder of the arraignment and at all future pretrial
hearings. Counsel argued that routine shackling in court
violates the accused’s right to due process and asked the
judge to hold a hearing to determine whether Henderson
posed an individualized risk to justify the use of full re-
straints.
More specifically, counsel argued that a criminal accused
has a deeply rooted fundamental right not to be shackled in
court proceedings absent an individualized showing of risk
of flight or violence. The Supreme Court has held that the
Due Process Clause forbids the routine use of shackles
before the jury. Deck v. Missouri, 544 U.S. 622, 629 (2005).
No. 17-3549 3
Counsel urged the judge to apply the same rule to pretrial
proceedings and conduct an individualized risk assessment
as Deck requires. Finally, counsel argued that the judge, not
the Marshals Service, is ultimately responsible for the deci-
sion to use restraints in court, and a default position of
deference to security officials abdicates that judicial respon-
sibility.
The government responded with three points. First,
Deck’s rule against restraints in court is expressly limited to
the use of shackles in the presence of a jury. Id. Second, the
reasons underlying the Deck rule have little, if any, applica-
bility to nonjury proceedings like an arraignment and other
pretrial hearings. Third, Deck relied in large part on the
common-law rule against shackles, which is limited to jury
trials and does not extend to arraignment or “like proceed-
ings before the judge.” Id. at 626. The government urged the
court to apply the standard in Bell v. Wolfish, 441 U.S. 520(1979), which governs conditions of confinement for pretrial
detainees. Under that standard, the government argued, the
use of shackles in pretrial proceedings is not a form of
punishment and thus is constitutionally permissible.
In an oral ruling, the judge denied Henderson’s motion,
declaring that “court security is up to our Court Security and
Marshals” and later saying that she was “concerned that
[Henderson] might take off.” The judge issued a follow-up
written order that same day, noting that because of “the
reasons stated in the [g]overnment’s response,” she would
“continue to defer to the expertise of the United States
Marshals Service” without making “an individualized
determination that shackling is necessary.”
4 No. 17-3549
Henderson appealed the judge’s order, invoking the
collateral-order doctrine and arguing that he has a due-
process right to appear before the court unshackled and that
this right applies in nonjury proceedings. At oral argument
we asked whether mandamus is available as an alternative
basis for interlocutory review should Henderson’s invoca-
tion of the collateral-order doctrine fail. Because the parties
had not formally addressed that question, we ordered
supplemental briefing on the availability of supervisory or
advisory mandamus and gave the district judge an oppor-
tunity to respond as if Henderson’s appeal were construed
as a petition for a writ of mandamus. See FED. R. APP.
P. 21(b)(4) (describing mandamus procedure and stating that
“[t]he court of appeals may invite or order the trial-court
judge to address the petition or may invite an amicus curiae
to do so”).
The judge accepted our invitation. She explained that
mandamus is inappropriate because Deck’s requirement of
an individualized risk assessment applies only when shack-
les are used at a jury trial and thus Henderson had not
shown that he has a “clear and indisputable” right to the
writ. J.H. Cohn & Co. v. Am. Appraisal Assocs., Inc., 628 F.2d
994, 997 (7th Cir. 1980). The government agreed with the
judge and added that mandamus is not warranted because
Henderson has other adequate means to pursue his due-
process claim and because this is not an “exceptional”
circumstance that would justify issuance of the writ.
Henderson argued that either supervisory or advisory
mandamus is appropriate because the issue presented is
important, novel, recurring, and would otherwise evade
effective appellate review. See id.; United States v. Green,
No. 17-3549 5
407 F.3d 434, 439 (1st Cir. 2005) (explaining advisory and
supervisory mandamus). He also reiterated his position that
the shackling order is immediately reviewable under the
collateral-order doctrine.
II. Discussion
We begin (and also end) with the question of appellate
jurisdiction. Our jurisdiction is limited to appeals from a
final order of the district court. See 28 U.S.C. § 1291. The
judge’s shackling ruling obviously is not a final order; the
case remains pending in the district court. Henderson argues
that the collateral-order doctrine supports interlocutory
review. That doctrine allows immediate appeal of interlocu-
tory orders that “finally determine claims of right separable
from, and collateral to, rights asserted in the action, too
important to be denied review and too independent of the
cause itself to require that appellate jurisdiction be deferred
until the whole case is adjudicated.” Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546 (1949).
To qualify for immediate review under this exception, an
order “must conclusively determine the disputed question,
resolve an important issue completely separate from the
merits of the action, and be effectively unreviewable on
appeal from a final judgment.” Coopers & Lybrand v. Livesay,
437 U.S. 463, 468 (1978). The Supreme Court has emphasized
that the collateral-order doctrine is “a narrow exception to
the normal application of the final judgment rule,” and in
criminal cases its requirements are applied “with the utmost
strictness.” Midland Asphalt Corp. v. United States, 489 U.S.
794, 798–99 (1989) (quoting Flanagan v. United States, 465 U.S.
259, 265 (1984)).
6 No. 17-3549
This case turns on the third step of the Coopers & Lybrand
test, which asks whether the order in question is effectively
unreviewable on appeal from a final judgment. The Supreme
Court’s seminal shackling case demonstrates that this re-
quirement is not met here. In Deck the defendant objected to
appearing before the jury in shackles during the penalty
phase of his capital murder trial. 544 U.S. at 624–25. The
Supreme Court reversed the defendant’s death sentence,
holding that shackling him in front of the jury violated his
right to due process. Id. at 635. Deck establishes that due-
process shackling claims may be effectively reviewed on
appeal from a final judgment. That alone forecloses interloc-
utory review.
On a broader level, in criminal cases the Court has identi-
fied only four pretrial orders that qualify for immediate
review under the collateral-order doctrine: (1) an order
denying bail, Stack v. Boyle, 342 U.S. 1 (1951); (2) an order
denying dismissal based on double jeopardy, Abney v. United
States, 431 U.S. 651 (1977); (3) an order denying dismissal
under the Speech or Debate Clause, Helstoski v. Meanor,
442 U.S. 500 (1979); and (4) an order for the administration of
psychotropic medication to render a defendant competent
for trial, Sell v. United States, 539 U.S. 166 (2003). We recently
noted the distinguishing characteristics of orders of this
type: “Bail and involuntary medication are independent of
the merits and unreviewable on appeal from a conviction,
while the other two situations exemplify rights not to be
tried.” United States v. Schock, 891 F.3d 334, 339 (7th Cir.
2018).
On the other hand, the Court has held that a constitu-
tional objection to an attorney-disqualification order is
No. 17-3549 7
effectively reviewable on appeal from a final judgment.
Flanagan, 465 U.S. at 269–70. The Court also has refused to
extend the collateral-order doctrine to pretrial orders deny-
ing dismissal under the Speedy Trial Clause. United States v.
MacDonald, 435 U.S. 850, 861–63 (1978). These cases present-
ed ordinary claims of constitutional procedural error for
which appeal from a final judgment provides effective
review. Henderson’s shackling claim is in the same category.
Schock is our most recent exploration of the collateral-
order doctrine in a criminal case. A former congressman
appealed an order denying his motion to dismiss an indict-
ment charging him with fraud and making false statements.
891 F.3d at 336. He moved to dismiss based on the Speech or
Debate Clause, U.S. CONST. art. 1, § 6, cl. 1 (immunizing
members of Congress from liability for their speeches,
debates, and other parts of the legislative process), and the
Rulemaking Clause, id. art. I, § 5, cl. 2 (stating that each
House of Congress may determine its own rules and punish
its members). The district court denied the motion, and the
defendant immediately appealed; we affirmed in part and
dismissed in part. The Speech or Debate Clause, we ex-
plained, confers an immunity from litigation, so we ad-
dressed the merits and affirmed the denial of the dismissal
motion on this ground. Schock, 891 F.3d at 336. We dismissed
the rest of the appeal for lack of jurisdiction, holding that an
order refusing to dismiss an indictment under the Rulemak-
ing Clause does not qualify for immediate review under the
collateral-order doctrine. Id. at 338–39. The defendant’s
claim—a kind of separation-of-powers defense—could be
effectively reviewed on appeal from a final judgment. Id.
8 No. 17-3549
The same is true here. As Deck shows, a due-process chal-
lenge to a shackling order can be vindicated on appeal from
a final judgment. Henderson argues that the possibility of
acquittal, from which he cannot appeal, entitles him to
review now. But acquittal is possible in every criminal case
and so cannot justify application of the collateral-order
exception.
Turning now to the issue of mandamus, we begin by re-
iterating that Henderson did not petition for the writ. Ordi-
narily we will not construe an appeal as a petition for
mandamus if the appellant “failed to apply for [the] writ in
accordance with the requirements of Federal Rule of Appel-
late Procedure 21(a).” Geaney v. Carlson, 776 F.2d 140, 142
(7th Cir. 1985).
However, in a case involving a similar interlocutory ap-
peal of a pretrial shackling order, the Ninth Circuit, sitting
en banc, recast the notice of appeal as a petition for manda-
mus and reached the merits of the defendants’ due-process
claim. United States v. Sanchez-Gomez, 859 F.3d 649, 657 (9th
Cir. 2017) (en banc). Although the underlying criminal
proceedings were long since over, the en banc court declined
to dismiss the case as moot. Id. at 657–59. Rather, after
reframing the appeal as a mandamus petition, the court
construed the defendants’ claim as a “functional class ac-
tion,” id. at 658, and found a constitutional violation, id. at
666.
As we’ve explained, in light of Sanchez-Gomez, we issued
an order for supplemental briefing asking the parties to
address the propriety of construing this appeal as a petition
for mandamus. They complied. We also invited the district
judge to respond as provided in Rule 21(b)(4), and she took
No. 17-3549 9
the opportunity to do so. While we’ve had this case under
advisement, however, the Supreme Court vacated the Ninth
Circuit’s judgment and remanded with instructions to
dismiss the case as moot. United States v. Sanchez-Gomez,
138 S. Ct. 1532, 1542 (2018).
We do not have a mootness problem here; the underlying
criminal case remains pending. Still, we will not follow the
Ninth Circuit’s lead. The All Writs Act codifies the common-
law writ of mandamus: “The Supreme Court and all courts
established by Act of Congress may issue all writs necessary
or appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.” 28 U.S.C.
§ 1651(a). Mandamus “is a drastic and extraordinary remedy
reserved for really extraordinary causes.” Cheney v. U.S. Dist.
Ct. for D.C., 542 U.S. 367, 380 (2004) (internal quotation
marks omitted). “[O]nly exceptional circumstances amount-
ing to a judicial usurpation of power … or a clear abuse of
discretion … will justify the invocation of this extraordinary
remedy.” Id. (quotation marks and citations omitted).
The mandamus writ “is one of the most potent weapons
in the judicial arsenal” and may issue only if three condi-
tions are satisfied. Id. (internal quotation marks omitted).
First, the petitioner must establish that he has no other
adequate remedy—“a condition designed to ensure that the
writ will not be used as a substitute for the regular appeals
process.” Id. at 380–81. Second, the petitioner must show that
his right to the issuance of the writ “is clear and indisputa-
ble.” Id. at 381 (internal quotation marks omitted); see also
J.H. Cohn & Co., 628 F.2d at 997. Third, “the issuing court, in
the exercise of its discretion, must be satisfied that the writ is
10 No. 17-3549
appropriate under the circumstances.” Cheney, 542 U.S. at
381.
Henderson’s argument for reframing the appeal as a peti-
tion for mandamus falters at the first step. As we’ve already
explained, a due-process challenge to the judge’s shackling
order can be effectively reviewed as part of the “regular
appeals process,” so Henderson does not lack an adequate
remedy. Accordingly, we decline to construe the notice of
appeal as a petition for mandamus.
We’re left with an interlocutory appeal that does not fall
within the collateral-order doctrine. We therefore DISMISS the
appeal for lack of jurisdiction.
No. 17-3549 11
HAMILTON, Circuit Judge, dissenting. The law governing
the use of physical restraints on the accused in the courtroom
can sometimes produce an uneasy compromise, between
safety on one hand and fairness, dignity, and decorum on the
other. In this appeal, the district court has failed to comply
with two principles that shape that body of law. First, the
court defers courtroom security issues to the United States
Marshals Service and its preferred policy: for all detained de-
fendants, wrists, ankles, and waists are chained together rou-
tinely, for all in-court proceedings without a jury. Deferring
the decision to the Marshals Service is not consistent with the
role of the judge. Second, absent special risks, the use of full
restraints on a presumptively innocent defendant in the court-
room simply is not consistent with basic fairness, dignity, and
decorum in the courts of the United States.
I therefore respectfully dissent from dismissal of this ap-
peal. We should use our power to issue a supervisory writ of
mandamus to require the district court to stop the routine use
of such full restraints in pretrial hearings. On the merits of this
appeal, I agree in essence with the Ninth Circuit’s en banc
opinion in United States v. Sanchez-Gomez, 859 F.3d 649 (9th
Cir. 2017) (en banc), vacated as moot, 138 S. Ct. 1532 (2018),
though I would base a decision here on our supervisory
power rather than decide whether the Constitution itself re-
quires the relief.
Before going further, I must make two points based on
more than twenty years as a federal judge, most in a district
court with a full criminal docket. First, I have depended on
the courage, discipline, professionalism, and diplomacy of the
men and women of the United States Marshals Service. Like
so many other judges, I have depended on marshals both to
12 No. 17-3549
maintain safety in the courthouse and the courtroom and to
maintain the dignity, decorum, and respect for all that are es-
sential to the rule of law.
Second, in some exceptional cases, defendants and their
associates pose extraordinary risks that justify measures such
as the full restraints, even in the courtroom. The courts of the
United States of America take pride in trying fairly some of
the most dangerous people in the world, including terrorists,
serial killers, organized crime leaders, and drug kingpins and
their henchmen. When criminal associates can learn in ad-
vance exactly when the defendant will be present outside a
jail or prison, in a federal courtroom, that can raise the risk of
a rare attempt at escape. As a district judge, I often benefited
from the advice of the Marshals Service on appropriate secu-
rity measures to deal with unusual risks. Yet in all but the rar-
est cases, the marshals and I were satisfied with at most ankle
restraints that were kept out of sight.
This appeal, however, is not about exceptional measures
to deal with exceptional risks. It is about routine practices.
Part I explains below the challenged practice. Part II lays out
what might be called the law of courtroom restraints, empha-
sizing two points. First, a trial judge may not delegate to oth-
ers, including the Marshals Service, the decision about re-
straints in the courtroom. Second, excessive restraints in the
courtroom matter even when no jury is present. The practice
in this district court runs contrary to both of those principles.
Part III explains why a supervisory writ of mandamus is the
appropriate procedure to address the court’s practice.
No. 17-3549 13
I. The Challenged Practice
The practice in this district court in criminal cases is to
keep all detained defendants in “full” restraints in all pretrial
proceedings. Full restraints link the defendant’s wrists and
ankles to a chain at his waist. A Marshals Service photograph
of prisoners in such restraints is in the Appendix at A26. Steel
handcuffs are linked by a short chain to each other and linked
by another short chain to yet another chain at the prisoner’s
waist. Steel ankle restraints are linked by a short steel chain to
each other and by another short chain to the chain around the
prisoner’s waist. The prisoner can barely move, of course.
That’s the idea. He cannot walk but can only shuffle slowly.
While standing, he cannot lift his hands to his chin, nor can
he move his hands more than a few inches apart. Lawyers and
judges who take for granted their ability to take notes during
court proceedings should try to imagine how difficult it is for
such a restrained defendant merely to take notes about points
to discuss with his lawyer at the next recess.
Consider how this practice works in a contested hearing,
where the judge must evaluate credibility. In opposing a mo-
tion to suppress, for example, the government witnesses ap-
pear in crisp police uniforms as the protectors of society. They
explain why the stop or search was justified. The defendant
must shuffle slowly to the witness stand, chained like a wild
beast, unable to gesture or even to scratch his head. He testi-
fies to a very different version of the stop or search, one that
would render it unconstitutional. In deciding a close case of
credibility, how often will a judge be able to overcome the
subconscious effects of the witnesses’ appearances?
14 No. 17-3549
To be clear, defendant Henderson has no objection to the
use of only leg irons in the courtroom. He also does not chal-
lenge any aspect of the Marshals Service management of pris-
oners outside the courtroom itself. Movements of prisoners
outside the secure environments of jail or prison pose height-
ened risks, and they rarely implicate the considerations of
dignity and fairness that are so important in the courtroom
itself. The focus here is only on full restraints in the court-
room.
II. The Law of Courtroom Restraints
The presumption of innocence lies at the heart of our sys-
tem of criminal justice. In a series of cases, the Supreme Court
has held that both constitutional principles of due process and
non-constitutional principles of fair administration of justice
require courts not to impose excessive physical restraints on
the accused, who is still presumed innocent.
In Illinois v. Allen, 397 U.S. 337, 344 (1970), the Supreme
Court wrote that an accused could be tried while shackled
and gagged, or even removed from the courtroom altogether,
but only as last resorts based on the accused’s repeated and
aggravated refusals to behave in court. Defendant Allen had
earned such rare treatment in his jury trial by repeatedly dis-
rupting the proceedings to the extent that an orderly trial was
impossible if he was present and able to speak and interrupt.
In Holbrook v. Flynn, 475 U.S. 560, 568–69 (1986), the Court
found acceptable the presence of uniformed police in the front
row of the courtroom, finding that security measure was not
an “inherently prejudicial” practice, like shackling, that
“should be permitted only where justified by an essential
state interest specific to each trial.”
No. 17-3549 15
In Deck v. Missouri, 544 U.S. 622, 626–29 (2005), the Su-
preme Court made clear that during the guilt phase of a crim-
inal trial, the due process clauses of the Fifth and Fourteenth
Amendments forbid routine use of visible shackles. Drawing
on English sources older than the United States, Deck identi-
fied the traditional common law rule that defendants “must
be brought to the bar without irons, or any manner of shackles
or bonds; unless there be evident danger of an escape.” Id. at
626, quoting 4 W. Blackstone, Commentaries on the Laws of Eng-
land 317 (1769). Only in “extreme and exceptional cases,
where the safe custody of the prisoner and the peace of the
tribunal imperatively demand, the manacles may be re-
tained.” Id. at 626–27, quoting 1 J. Bishop, New Criminal Proce-
dure § 955, p. 573 (4th Ed. 1895). Deck then extended the con-
stitutional limits on visible shackles to the sentencing phase
of capital cases, even though the defendant is by that point no
longer presumed innocent. Id. at 633.
We and other courts have often addressed similar issues
involving both jury trials and other criminal proceedings.
Closest to this case, the Ninth Circuit in Sanchez-Gomez disap-
proved a district-wide practice like the district court’s here.
859 F.3d at 659–65. While that decision was vacated as moot,
it is persuasive on the merits, at least as a matter of sound ju-
dicial administration. See also, e.g., United States v. Van Sach,
458 F.3d 694, 699–700 (7th Cir. 2006) (affirming use of leg
shackles during jury trial based on defendant’s extensive his-
tory of belligerence and threatening behavior in court); United
States v. Fountain, 768 F.2d 790 (7th Cir. 1985) (same, based on
defendants’ violent history); United States v. Miller, 531 F.3d
340, 345 (6th Cir. 2008) (trial judge abused discretion by defer-
ring without explanation to marshal’s recommendation that
16 No. 17-3549
defendant wear stun-belt in jury trial); United States v.
Durham, 287 F.3d 1297, 1304 (11th Cir. 2002) (same).
The cases show two points critical for Henderson’s chal-
lenge. First, decisions about such extraordinary restraints are
decisions for the judge. They are not to be delegated to security
or correctional personnel, including the Marshals Service.
Second, the reasons for the limits on such extraordinary re-
straints apply to criminal hearings broadly; those reasons are
not limited to only what a jury might see.
A. No Delegation of the Judicial Responsibility
One central theme of the law of courtroom restraints is
that the trial judge is the person responsible for making the
decisions. The judge cannot simply delegate that responsibil-
ity to the Marshals Service or other correctional or security
staff.
We have made this point repeatedly. E.g., Lopez v. Thurmer,
573 F.3d 484, 493 n.2 (7th Cir. 2009) (“although a trial court’s
decisions about the required level of security during a trial are
entitled to deference, those decisions must be made by the
court itself; the trial judge ‘may not delegate his discretion to
another party’”), quoting United States v. Brooks, 125 F.3d 484,
502 (7th Cir. 1997). “While the trial court may rely ‘heavily’ on
the marshals in evaluating the appropriate security measures
to take with a given prisoner, the court bears the ultimate re-
sponsibility for that determination and may not delegate the
decision to shackle an inmate to the marshals.” Woods v.
Thieret, 5 F.3d 244, 248 (7th Cir. 1993), quoting Lemons v. Skid-
more, 985 F.2d 354, 358 n.4 (7th Cir. 1993). Accord, e.g.,
Sanchez-Gomez, 859 F.3d at 661 (“Courts cannot delegate this
constitutional question to those who provide security, such as
No. 17-3549 17
the U.S. Marshals Service.”); United States v. Wardell, 591 F.3d
1279, 1294–95 (10th Cir. 2009) (collecting cases and emphasiz-
ing that trial court has “legal duty to make a thorough and
independent determination” of need for device); Miller, 531
F.3d at 345 (“a district court’s blind adherence to a corrections
officer’s recommendation, without making any individual-
ized determinations or specific findings, amounts to an abuse
of discretion”); Gonzalez v. Pliler, 341 F.3d 897, 902 (9th Cir.
2003) (“The use of physical restraints is subject to close judi-
cial, not law enforcement, scrutiny.”) (emphasis in original).
This need for a decision by the judge runs through the Su-
preme Court’s decisions on courtroom restraints, as well. See
Allen, 397 U.S. at 343 (judge “must be given sufficient discre-
tion to meet the circumstances of each case. No one formula
for maintaining the appropriate courtroom atmosphere will
be best in all situations.”); Deck, 544 U.S. at 629 (Fifth and
Fourteenth Amendment prohibit use of physical restraints
visible to the jury “absent a trial court determination, in the
exercise of its discretion, that they are justified by a state in-
terest specific to a particular trial”). 1
1 Our precedents also show a consistent preference for the least re-
strictive physical restraints needed for courtroom security. Stephenson v.
Wilson, 619 F.3d 664, 668 (7th Cir. 2010) (“placing any kind of visible re-
straint on a defendant’s movement during a criminal trial was permissible
. . . only if less conspicuous security measures . . . would be insufficient”);
Brooks, 125 F.3d at 502 (“a defendant is entitled to the minimum restraints
necessary and to the least obvious ones”); see also, Durham, 287 F.3d at
1304 (courts must ask “whether less restrictive, less prejudicial methods
of restraint were considered or could have been employed”), quoting
Elledge v. Dugger, 823 F.2d 1439, 1451 (11th Cir. 1987); United States v.
Moore, 651 F.3d 30, 47 (D.C. Cir. 2011) (same).
18 No. 17-3549
B. It’s Not Just About the Jury
The use of courtroom restraints has been litigated most of-
ten when the restraints are used during jury trials. That’s
where the dangers of unfair prejudice are most severe, and
where, if any restraints are to be used, the usual course is to
ensure they are never visible to the jury. Yet the reasons for
the limits on courtroom restraints apply more broadly. They
weigh in favor of applying those limits to pretrial proceed-
ings. The Court laid out these reasons in Deck v. Missouri.
First, of course, the criminal justice system presumes the
defendant is innocent unless and until proved guilty. 544 U.S.
at 630. “Visible shackling undermines the presumption of in-
nocence and the related fairness of the factfinding process.”
Id. By necessity, we trust judges to be less vulnerable than lay
jurors to this and other forms of unfair prejudice. Yet we defy
psychological realities if we insist that the human beings who
serve on the bench are immune to such subconscious and sub-
liminal influence from seeing a human being in chains to pro-
tect others from him.
Second, Deck invoked the right to counsel because full
shackles can interfere with the accused’s ability to communi-
cate with his lawyer. 544 U.S. at 631, quoting Allen, 397 U.S. at
344. Courts have long expressed concerns that shackles can be
heavy and painful, distracting the accused from focusing on
his defense. E.g., Durham, 287 F.3d at 1304 (restraints “may
confuse the defendant, impair his ability to confer with coun-
sel, and significantly affect the trial strategy he chooses to fol-
low”); People v. Harrington, 42 Cal. 165, 168 (1871), quoted in
Deck, 544 U.S. at 631. These forms of interference do not de-
pend on whether a jury is present.
No. 17-3549 19
Third, and most important here, “judges must seek to
maintain a judicial process that is a dignified process.” Deck,
544 U.S. at 631. This dignity is for the good of the institution
and the public. The Deck Court continued:
The courtroom’s formal dignity, which includes
the respectful treatment of defendants, reflects
the importance of the matter at issue, guilt or in-
nocence, and the gravity with which Americans
consider any deprivation of an individual’s lib-
erty through criminal punishment. And it re-
flects a seriousness of purpose that helps to ex-
plain the judicial system’s power to inspire the
confidence and to affect the behavior of a gen-
eral public whose demands for justice our
courts seek to serve.
Id.In Allen, the Supreme Court acknowledged that the use of
shackles and gags in court “is itself something of an affront to
the very dignity and decorum of judicial proceedings that the
judge is seeking to uphold.” 397 U.S. at 344. Full restraints
make the prisoner look like a wild and dangerous beast, not
fit for human society. “A presumptively innocent defendant
has the right to be treated with respect and dignity in a public
courtroom, not like a bear on a chain.” Sanchez-Gomez, 859
F.3d at 661. “We must not exaggerate the distance between
‘us,’ the lawful ones, the respectable ones, and the prison and
jail population; for such exaggeration will make it too easy for
us to deny that population the rudiments of humane consid-
eration.” Johnson v. Phelan, 69 F.3d 144, 152 (7th Cir. 1995)
(Posner, C.J., dissenting).
20 No. 17-3549
Such routine treatment is unfair to the defendant, and it
diminishes the courts:
Courtrooms are palaces of justice, imbued with
a majesty that reflects the gravity of proceedings
designed to deprive a person of liberty or even
life. A member of the public who wanders into
a criminal courtroom must immediately per-
ceive that it is a place where justice is adminis-
tered with due regard to individuals whom the
law presumes to be innocent. That perception
cannot prevail if defendants are marched in like
convicts on a chain gang. Both the defendant
and the public have the right to a dignified, in-
spiring and open court process. Thus, innocent
defendants may not be shackled at any point in
the courtroom unless there is an individualized
showing of need.
Sanchez-Gomez, 859 F.3d at 662. The Ninth Circuit went on to
emphasize that these institutional concerns are present
whether the hearing is before a jury or a judge:
We must take seriously how we treat individu-
als who come into contact with our criminal jus-
tice system—from how our police interact with
them on the street to how they appear in the
courtroom. How the justice system treats people
in these public settings matters for the public’s
perception, including that of the defendant.
Practices like routine shackling and “perp
walks” are inconsistent with our constitutional
presumption that people who have not been
convicted of a crime are innocent until proven
No. 17-3549 21
otherwise. That’s why we must examine these
practices more skeptically than those deployed
in an institutional setting like [Bell v. Wolfish, 441
U.S. 520 (1979)]. See, e.g., Deck, 544 U.S. at 634(holding that a defendant’s Fifth Amendment
rights were violated by visible shackling before
a jury at capital sentencing proceedings); Lauro
v. Charles, 219 F.3d 202, 212–13 (2d Cir. 2000)
(holding that a defendant’s Fourth Amendment
rights were violated by a staged and filmed
perp walk done without a legitimate law en-
forcement reason). We must treat people with
respect and dignity even though they are sus-
pected of a crime.
859 F.3d at 665.
C. The Dictum in Deck
The government argues here that the limits on excessive
restraints simply do not apply at arraignments and other pre-
trial criminal proceedings where no jury is present. The gov-
ernment relies in part on this comment in Deck, in its review
of the history of courtroom restraints:
Blackstone and other English authorities recog-
nized that the rule did not apply at “the time of
arraignment,” or like proceedings before the
judge. Blackstone, supra, at 317; see also Trial of
Christopher Layer, 16 How. St. Tr. 94, 99
(K.B.1722). It was meant to protect defendants
appearing at trial before a jury. See King v. Waite,
1 Leach 28, 36, 168 Eng. Rep. 117, 120 (K.B.1743)
22 No. 17-3549
(“[B]eing put upon his trial, the Court immedi-
ately ordered [the defendant’s] fetters to be
knocked off”).
544 U.S. at 626.
As important as Deck is in this field of law, this passing
observation about arraignment was demonstrably wrong.
The Ninth Circuit’s opinion in Sanchez-Gomez reviewed the
historical sources in detail and showed that the arraignment
comment in Deck was not supported by those sources. The
Ninth Circuit explored Blackstone and Layer at length, ex-
plaining persuasively that Layer “applied the exception to
Blackstone’s basic rule” against shackling, and that in general
“shackling at arraignment was allowed after a showing of
need,” and not as a matter of routine. 859 F.3d at 664. That
sort of individualized policy is all that Henderson seeks here.
Though the opinion in Sanchez-Gomez was later vacated as
moot (the defendants there had already pled guilty), the Su-
preme Court did not cast any doubt on this persuasive histor-
ical critique of the Deck comment or on the Ninth Circuit’s
analysis of the impact of routine shackling on the courtroom
environment. See United States v. Sanchez-Gomez, 138 S. Ct.
1532 (2018).
III. Appellate Jurisdiction
The routine use of full restraints on pretrial defendants is
a subject on which we can and should use our supervisory
power through a writ of mandamus, which is the only mean-
ingful route to appellate review of this practice. We should
limit the pretrial use of courtroom restraints to cases in which
the judge personally concludes they are necessary, based not
No. 17-3549 23
on the Marshals Service preference for full restraints on eve-
ryone, but on an assessment of the needs of the particular case
and defendant.
A. Collateral Order?
The majority finds that the judge’s order to keep defend-
ant Henderson in full restraints during all pretrial hearings
cannot be appealed under 28 U.S.C. § 1291 as a collateral or-
der. This order was conclusive, separate from the merits, and
in my opinion effectively unreviewable on appeal from a final
judgment. There is room to argue that this order meets the
standards for collateral orders, but the majority here is correct
that the Supreme Court has identified only four pretrial or-
ders that qualify in criminal cases: denial of bail, denial of dis-
missal based on double jeopardy, denial of dismissal under
the Speech and Debate Clause of the Constitution, and com-
pulsory psychotropic medication to render defendant compe-
tent to stand trial. Ante at 6. I don’t believe we can or should
expand the category of collateral orders to allow routine re-
view of such pretrial decisions about physical restraints.
The majority relies on Deck v. Missouri to conclude that ef-
fective review is available on direct appeal from a conviction.
That conclusion is not warranted. Deck dealt with capital sen-
tencing, and on this point it followed the teaching of Holbrook
v. Flynn and Illinois v. Allen, which addressed security
measures during jury trials and the prejudicial effects of visi-
ble restraints before juries. I do not share the majority’s confi-
dence that the pretrial practice Henderson challenges could
ever receive meaningful appellate review through 28 U.S.C.
§ 1291 after conviction at trial. The effects of such pretrial
shackling on the final judgment will be difficult to detect, to
put it mildly.
24 No. 17-3549
B. Supervisory Writs of Mandamus
Better suited to this issue is the relatively rare procedure
of a supervisory writ of mandamus, similar to the Ninth Cir-
cuit’s decision in Sanchez-Gomez, 859 F.3d at 649. To be clear, I
do not contend here that the use of full restraints on Hender-
son violates his constitutional rights. We do not need to reach
the constitutional issue in this case. We can and should just
exercise supervisory authority over the practices of district
courts within the circuit. And since Henderson has not yet
been tried, this appeal is not moot.
A supervisory writ of mandamus is an extraordinary rem-
edy that may be used, in the sound discretion of the appellate
court, to exert “supervisory control of the District Courts” un-
der the All Writs Act to ensure “proper judicial administra-
tion in the federal system.” La Buy v. Howes Leather Co., 352
U.S. 249, 259–60 (1957); accord, 16 Wright, Miller, & Cooper,
Federal Practice & Procedure § 3934; 28 U.S.C. § 1651. This is an
appropriate occasion to exercise our discretion. The chal-
lenged practice will evade meaningful review through ordi-
nary appellate channels, and the practice is not consistent
with the dignity and reputation of the federal courts. A one-
time supervisory writ would allow us to address the issue
without creating a new category of interlocutory criminal ap-
peals as a matter of right.
The Supreme Court and the federal courts of appeals often
say, as the majority does here, that the petitioner must show
that his right to the issuance of the writ is “clear and indisput-
able.” Ante at 9, quoting Cheney v. U.S. District Court for Dis-
trict of Columbia, 542 U.S. 367, 381 (2004). Citing the Supreme
Court’s dictum in Deck to the effect that the common-law
No. 17-3549 25
practice allowed shackles at arraignment, the government ar-
gues that even if Henderson might be right on the merits, he
cannot win a writ of mandamus under the “clear and indis-
putable” standard. Also, no Supreme Court or Seventh Cir-
cuit precedent or statute or rule of procedure squarely bars
the challenged practice of routine pretrial use of full re-
straints.
There are two independent reasons to reject this argument
(apart from the historical error in the Deck dictum). First, as
shown above, one core principle in the law of courtroom re-
straints is the requirement that the trial judge herself exercise
judgment and discretion that addresses the particulars of the
case and the defendant. The record shows here that the dis-
trict court refused to exercise that judgment and discretion.
The judge instead chose to defer to the Marshals Service’s
blanket policy for all pretrial proceedings in all criminal cases.
That refusal by the judge violated a clear and indisputable
right. A supervisory writ of mandamus is an exceptional step,
but it’s the appropriate remedy for this blanket refusal.
Second, despite the frequent and prudent cautions against
too-quick resort to writs of mandamus, the Ninth Circuit ex-
plained in Sanchez-Gomez why, for supervisory use of a writ of
mandamus, the asserted right need not always be “clear and
indisputable.” 859 F.3d at 655–56. That much is evident, for
example, in Schlagenhauf v. Holder, 379 U.S. 104, 110 (1964),
where the Supreme Court reversed this court’s denial of a su-
pervisory writ of mandamus. The Supreme Court recognized
that the underlying issue—a district court’s power to order a
defendant to submit to physical and mental examinations—
was both “substantial” and one of “first impression,” yet the
Supreme Court itself effectively issued the writ, providing the
26 No. 17-3549
guidance that was sought. Id. at 111. See also La Buy, 352 U.S.
at 249 (affirming use of supervisory writ to stop district judge
from repeated practice of referring antitrust cases to special
masters); Will v. United States, 389 U.S. 90 (1967) (vacating un-
explained supervisory writ of mandamus but leaving room
on remand for another writ with sufficient explanation). 2
When it comes to the extraordinary remedy of a supervi-
sory writ of mandamus, Professors Wright, Miller, and
Cooper provide a helpful explanation of the tension between
the cautious language of the Supreme Court and federal cir-
cuits and our actual practices, which reflect more flexible
pragmatism. 16 Federal Practice & Procedure §§ 3934 & 3934.1.
“Writ review that responds to occasional special needs pro-
vides a valuable ad hoc relief valve for the pressures that are
imperfectly contained by the statutes permitting appeals from
final judgments and interlocutory orders.” § 3934.1 at 671.
A good example is In re Boehringer Ingelheim Pharmaceuti-
cals, Inc., 745 F.3d 216 (7th Cir. 2014), where we issued a writ
of mandamus quashing a district court’s discovery sanction
ordering foreign defendants to bring certain witnesses to the
United States for depositions. (I dissented in that case for rea-
sons not relevant here.) The majority said the writ of manda-
mus was permissible as a “safety valve” enabling appellate
review of a discovery order in an exceptional case. Id. at 219,
citing Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 111
(2009) (mandamus can provide “useful safety valve” for
2 Perhaps coincidentally, all three of these “formative” Supreme Court
decisions on supervisory writs of mandamus originated with this circuit.
See 16 Wright, Miller, & Cooper, Federal Practice and Procedure § 3934 at
669.
No. 17-3549 27
promptly correcting serious errors). That reasoning applies
with even more force here. Unlike the Boehringer defendants,
who could have violated an interlocutory order and appealed
a contempt sanction, for Henderson it is either mandamus or
nothing.
Before concluding, I should acknowledge the district
judge’s references to experiences that she and a lawyer she
knows have had with sudden courtroom violence. In Deck,
the Supreme Court said it was “mindful of the tragedy that
can result if judges are not able to protect themselves and their
courtrooms.” 544 U.S. at 632. I hope I am, as well. That’s why
appellate courts give trial courts considerable discretion in
handling these issues of courtroom security. Judge My-
erscough’s distinguished career on federal and state benches
shows her deep devotion to the rule of law and her commit-
ment to treating all parties fairly and with dignity. With re-
spect, however, given the tension between security and fair-
ness, dignity, and decorum, a blanket practice of using maxi-
mum security measures for all detained defendants is not the
correct answer to this difficult problem. See United States v.
Baker, 432 F.3d 1189, 1245 (11th Cir. 2005), abrogated on other
grounds by Davis v. Washington, 547 U.S. 813, 821 (2006) (find-
ing it was “improper for the district court to shackle the de-
fendants based upon what happened in other, unrelated trials
involving different defendants and different charges”), citing
Deck, 544 U.S. at 633.
Accordingly, we should not dismiss this appeal. We
should issue a supervisory writ of mandamus to require indi-
vidualized decision-making before a district court may im-
pose full restraints in the courtroom on pretrial defendants
who are still presumed innocent.