United States v. Brandau ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 06-10512
v.  D.C. No.
JOHN B. BRANDAU, CR-06-00131-OWW
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 06-10717
Plaintiff-Appellee,
v.  D.C. No.
CR-06-00175-OWW
CHRISTINA ANN CARR,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Argued and Submitted
April 15, 2009—San Francisco, California
Filed August 21, 2009
Before: Stephen Reinhardt, John T. Noonan and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge Reinhardt
11557
11560 UNITED STATES v. BRANDAU
COUNSEL
Robert Warren Rainwater, Eugene, Oregon, for the
defendants-appellants.
Stanley Albert Boone, United States Attorney, and Karen A.
Escobar, Assistant United States Attorney, Fresno, California,
for the plaintiff-appellee.
UNITED STATES v. BRANDAU 11561
OPINION
REINHARDT, Circuit Judge:
[1] A criminal defendant’s first and sometimes only expo-
sure to a court of law occurs at his initial appearance. The
conditions of that appearance establish for him the foundation
for his future relationship with the court system, and inform
him of the kind of treatment he may anticipate, as well as the
level of dignity and fairness that he may expect. We have rec-
ognized that shackling defendants at such time “effectuates
some diminution of the liberty of pretrial detainees and
detracts to some extent from the dignity and the decorum of
a critical stage of a criminal prosecution.” United States v.
Howard, 480 F.3d 1005, 1008 (9th Cir. 2007). We have not,
however, fully defined the parameters of a pretrial detainee’s
liberty interest in being free from shackles at his initial
appearance, or the precise circumstances under which courts
may legitimately infringe upon that interest in order to
achieve other aims, such as courtroom safety.
This appeal challenges a mandatory full body shackling
policy applicable to all defendants at initial appearances that
was implemented by the district judges of the Eastern District
of California. During the pendency of the appeal, the official
policy was rescinded and rewritten. Whether the full shack-
ling policy continues in practice is, however, unclear. Accord-
ingly, we remand the case to a district judge outside the
Eastern District of California to conduct an evidentiary hear-
ing regarding the present shackling practice at initial appear-
ances and to determine in the first instance whether this
consolidated case is now moot.
I. Factual and Procedural Background
A.
John B. Brandau (“Brandau”) was arrested in Yosemite
National Park (“Yosemite”) for disorderly conduct and public
11562 UNITED STATES v. BRANDAU
intoxication. The next day he was brought before a United
States magistrate judge in Yosemite. Brandau’s federal public
defender made a motion to unshackle him during his initial
appearance. The magistrate judge denied the request, consid-
ering himself bound by the Eastern District of California’s
General Order No. 441, which required the full shackling of
all defendants at first appearance. Brandau pled guilty to pub-
lic intoxication in a national park, was sentenced to twelve
months of non-reporting informal probation, two days’ time
served, a $250 fine, and attendance at AA meetings. He was
released later that morning.
Brandau filed a timely appeal of the shackling order, argu-
ing that General Order No. 441 should be rescinded, both on
constitutional grounds and because the rule was promulgated
without public notice and comment. His case was consoli-
dated with two other appeals challenging the district-wide
shackling policy, one of which involved Christina Ann Carr
(“Carr”).
B.
Carr was indicted and charged with four counts of submit-
ting false claims to FEMA and four counts of mail fraud. She
was informed by the FBI that, on account of her cooperative-
ness, she could appear on her own accord at the arraignment.
She self-surrendered to the Marshal’s office, at which point
she was taken into custody, fully shackled, and brought to
court. Carr’s federal public defender requested that she be
ordered unshackled for the first appearance, in light of the fact
that she had just self-surrendered, but the magistrate judge
denied the request without a hearing pursuant to General
Order No. 441.
Carr pled not guilty and was ordered released on her own
recognizance. She timely appealed the magistrate judge’s
shackling order, and her case was consolidated with Bran-
dau’s.
UNITED STATES v. BRANDAU 11563
The government filed a superseding indictment and Carr
pled guilty, pursuant to a plea agreement, to one count of
making a false statement to a government agency. She agreed
to waive her right to appeal “her plea, conviction and sen-
tence.” She was sentenced to a 36-month term of supervised
probation and to pay a restitution amount of $1,812.
C.
Prior to the arrests of Brandau and Carr, the district judges
of the Eastern District of California (“the Eastern District”)
adopted General Order No. 441. The Order, drafted in consul-
tation with the United States Marshal for the Eastern District,
mandated that “[a]t initial appearances, all defendants will be
fully shackled.” (emphasis added). “Fully shackled” was
defined to include “leg shackles, waist chains, and hand-
cuffs.” General Order No. 441 did not provide for any indi-
vidualized determinations regarding the appropriateness of
full body shackling.
On appeal from the magistrates’ shackling orders in the
consolidated cases, Judge Wanger of the Eastern District con-
cluded that General Order No. 441 had not been promulgated
with the appropriate public notice and comment rule-making
procedure. He referred the General Order to all of the judges
of the Eastern District for re-promulgation. The Eastern Dis-
trict judges issued General Order No. 449, adopting Local
Rule Criminal 43-401, which set out a new shackling policy
for initial appearances in the Sacramento and Fresno court-
houses, and directing a period of public notice and comment.
The judges then vacated that Order and adopted modified
rules twice more.
The present rule, announced in the second modification,
General Order No. 465, applies only to the Sacramento court-
house and requires that “[u]nless the Court determines other-
wise, at the commencement of initial appearances, all in
custody defendants shall be in leg restraints (including waist
11564 UNITED STATES v. BRANDAU
chains).” (emphasis added). The rule is different from General
Order No. 441 in certain key respects that were central to
Brandau and Carr’s initial challenge: the present rule allows
for the possibility of individualized determinations, applies
only to in-custody defendants, and establishes a general prac-
tice of leg and waist shackling but not of handcuffing. The
new rule, however, does not apply to the courthouses in
Fresno and Yosemite, where Carr and Brandau appeared.
General Order No. 465 is accompanied by written findings,
which note “the exclusion of the Fresno division from this
policy” and explain that “each judge in that division is respon-
sible for, and committed to the safety and decorum of the pro-
ceedings, and makes shackling decisions on individual cases
in consultation with counsel, parties and the United States
Marshal.” The findings further explain that General Order No.
465 does not apply at all to the courthouse in Yosemite “be-
cause of the type of facilities at [that] location[ ], and because
the security in [that] location[ ] is provided by federal agen-
cies other than the Marshal Service and whose primary func-
tions do not include courtroom security.” There is no evidence
in the record concerning the nature of the shackling policy or
lack thereof in Yosemite.
Moreover, the government has provided us with no infor-
mation at all regarding the practical effect of the new General
Order, and whether or not the de facto policy in any or all of
the three locations remains full shackling of all defendants at
initial appearances. Notwithstanding this uncertainty, it is
clear that, at the least, the letter of the law has changed signif-
icantly since the cases were appealed. Accordingly, we are
faced with the question whether this appeal is now moot.
II. Mootness
A. “Capable of repetition, yet evading review”
[2] The first hurdle that Brandau and Carr (“the defen-
dants”) must overcome to show that their case is not moot
UNITED STATES v. BRANDAU 11565
pertains to the unusual procedural posture of their challenge.
The defendants’ initial appearances are long past, and they
challenge the facial legitimacy of a shackling policy that,
accordingly, no longer affects them. In the ordinary case,
“[w]here the activities sought to be enjoined already have
occurred, and the appellate courts cannot undo what has
already been done, the action is moot, and must be dis-
missed.” Bernhardt v. County of Los Angeles, 279 F.3d 862,
871 (9th Cir. 2002).
[3] There is an exception to mootness, however, for situa-
tions that are “capable of repetition, yet evading review.”
Gerstein v. Pugh, 420 U.S. 103, 111 n.11 (1975). Shackling
at first appearances — even more than the pretrial detention
at issue in Gerstein —
is by nature temporary, and it is most unlikely that
any given individual could have his constitutional
claim decided on appeal before he is either released
or convicted. The individual could nonetheless suffer
repeated deprivations, and it is certain that other per-
sons similarly situated will [be subjected to] alleg-
edly unconstitutional procedures.
Id. Under these circumstances we have
held that although the particular situation precipitat-
ing a constitutional challenge to a government policy
may have become moot, the case does not become
moot if the policy is ongoing. “The continued and
uncontested existence of the policy that gave rise to
[the] legal challenges forecloses [the] mootness
argument.”
Howard, 480 F.3d at 1010 (alterations in original; citation
omitted) (quoting Oregon Advocacy Ctr. v. Mink, 322 F.3d
1101, 1118 (9th Cir. 2003)). Accordingly, we held in Howard
that the appeal, which like the present case concerned a
11566 UNITED STATES v. BRANDAU
district-wide shackling policy at initial appearances, was not
moot because the shackling policy was ongoing, even though
each of the seventeen defendants who challenged that policy
on interlocutory appeal were no longer in pretrial criminal
proceedings.
In the present case, however, the policy being challenged
is, at least on paper, no longer in place. Unlike in Howard and
Mink, the government does contest the policy’s continued
existence. General Order No. 441 has been rescinded, and a
new policy, adopted pursuant to General Order No. 465, has
been implemented with respect to the Sacramento Court-
house. The associated findings state that judges shall make
individual determinations regarding shackling in Fresno, and
that the policy does not apply at all in Yosemite. Because the
letter of the law has changed, it is not at all certain that “the
policy is ongoing,” Howard, 480 F.3d at 1010, or that appel-
lants, or any others similarly situated, will be subjected to the
“allegedly unconstitutional procedures,” which are “capable
of repetition, yet evading review,” Gerstein, 420 U.S. at 111
n.11. Whether the Gerstein exception to mootness applies
here is placed in doubt.
[4] Despite the fact that the law has changed, however,
there is reason to think that the actual state of affairs has not.
At oral argument, counsel for the defendants represented on
the basis of personal experience that the Eastern District’s
shackling practice remains now as it was. Counsel for the
government conceded, also on the basis of her own experi-
ence, that defendants in the Eastern District are still, in gen-
eral, fully shackled (handcuffed and placed in waist and leg
chains) at initial appearances and that she has not personally
witnessed any individualized determinations regarding shack-
ling. This anecdotal information strongly suggests that the full
shackling policy is ongoing. As of now, and on the record
before us on appeal, we do not have sufficient information to
know whether that is the case, and whether, as a result, there
UNITED STATES v. BRANDAU 11567
is an “ongoing policy” that renders the alleged violations “ca-
pable of repetition, yet evading review.”
B. “Voluntary cessation”
[5] There is another mootness doctrine that affects our
inquiry in this case: the “voluntary cessation” exception to
mootness. Even if the shackling policy is no longer “ongo-
ing,” Howard, 480 F.3d at 1010, the case is not moot if that
policy was abandoned voluntarily and might reasonably recur.
See Padilla v. Hanft, 547 U.S. 1062 (2006) (Ginsburg, J., dis-
senting from denial of petition for certiorari) (“A party’s vol-
untary cessation does not make a case less capable of
repetition or less evasive of review.”).
[6] It is well established that the “voluntary cessation of a
challenged practice does not deprive a federal court of its
power to determine the legality of the practice.” Friends of
the Earth, Inc. v. Laidlaw Environmental Services (TOC),
Inc., 528 U.S.167, 189 (2000) (quotation marks omitted).
When a party abandons a challenged practice freely, the case
will be moot only
“if subsequent events made it absolutely clear that
the allegedly wrongful behavior could not reason-
ably be expected to recur” . . . . The “heavy burden
of persuading” the court that the challenged conduct
cannot reasonably be expected to start up again lies
with the party asserting mootness.
Id. (quoting United States v. Concentrated Phosphate Export
Assn., 393 U.S. 199, 203 (1968)) (alterations omitted)
(emphasis added). The voluntary cessation exception is not
absolute:
[E]ven when a cessation is voluntary, mootness can
follow. Even then, the record may show that (1) it
can be said with assurance that there is no reasonable
11568 UNITED STATES v. BRANDAU
expectation . . . that the alleged violation will recur,
and (2) interim relief or events have completely and
irrevocably eradicated the effects of the alleged vio-
lation.
Smith v. Univ. of Wash., Law Sch., 233 F.3d 1188, 1194 (9th
Cir. 2000) (quotation marks omitted); see also White v. Lee,
227 F.3d 1214, 1243 (9th Cir. 2000) (where the agency’s
change in position was shown to be “permanent,” the action
was moot).1
[7] On the record before us, it is by no means “absolutely
clear” that the full shackling policy will not recur, or that in
practice, the alleged violations ever ceased, let alone were
“completely and irrevocably eradicated.” See, e.g., McBride
Cotton and Cattle Corp. v. Veneman, 290 F.3d 973, 983 (9th
Cir. 2002) (holding a case was not moot where, “[a]lthough
the Secretary argues in her brief that she has now changed her
policy . . . the plaintiffs have presented additional evidence
suggesting that local offices have not followed the new poli-
cy”). Indeed, the rapid re-promulgation of the shackling pol-
icy on three separate occasions since these cases began
suggests that the policy is not in its final iteration, and that
any relief that the new policy has afforded is not “irrevoca-
ble.”
[8] At the same time, it is possible that the change in policy
was not fully voluntary and therefore does not fall under the
“voluntary cessation” exception. See Smith, 233 F.3d at 1194-
1
A statutory change is, as a rule, generally sufficient to moot a case. See
Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir.
1994). That narrow exception, however, likely does not apply to rules pro-
mulgated by the district courts. See Chemical Producers and Distributors
Ass’n v. Helliker, 463 F.3d 871, 878 (9th Cir. 2006) (“The cases we cited
in [Jacobus v. Alaska, 338 F.3d 1095 (9th Cir. 2003)] for a near categori-
cal rule of mootness are cases of statutory amendment. The examples we
cited of continuing federal adjudicatory power are of local government or
administrative agency repeal or amendment.”).
UNITED STATES v. BRANDAU 11569
95. The rescission of General Order No. 441 was instigated by
court order, albeit procedural in nature and issued by a judge
of the same court that adopted and then re-adopted the policy.
The subsequent changes in the policy took place against the
legal backdrop of Howard. By allowing for individualized
determinations, limiting the policy’s application to in-custody
defendants, and requiring only leg shackles, the changes
brought the present written policy for Sacramento into line
with the Central District policy upheld in that case, see 480
F.3d 1005, although the same is not true for Fresno and
Yosemite. The conformance of the Sacramento written policy
to Ninth Circuit law suggests that the change was not entirely
voluntary, and that a regression to the old policy is less likely
to occur, at least in that part of the Eastern District.
[9] For these reasons, we are unable to determine at this
juncture whether the “voluntary cessation” exception to moot-
ness applies.
III. Conclusion
[10] In short, it is possible, although not certain, that in
some or all of the district courts of the Eastern District of Cal-
ifornia there is an “ongoing” mandatory full shackling policy,
and that the violations alleged are “capable of repetition, yet
evading review,” Howard, 480 F.3d at 1010, or that even if
at present there is no ongoing full shackling policy, the case
falls under the “voluntary cessation” exception to mootness,
Friends of the Earth, 528 U.S. at 189. We are simply unable,
on the record before us and without further exploration of the
positions of the parties, to so determine.2
2
Although the government, as the party asserting mootness, bears the
burden of persuasion, we cannot rule in favor of the defendants merely
because the government has as of yet failed to adduce evidence that might
prove its case. As mootness is jurisdictional, “we must . . . consider it
independent of the parties’ arguments.” Cammermeyer v. Perry, 97 F.3d
1235, 1237 n.3 (9th Cir. 1996).
11570 UNITED STATES v. BRANDAU
[11] Accordingly, the case shall be REMANDED to the
district court for the purpose of conducting an evidentiary
hearing to determine the nature of the current shackling policy
in the various district courts of the Eastern District of Califor-
nia. The district court shall determine, on the basis of the evi-
dence presented, whether in practice, there is an “ongoing
policy” of full shackling, or full shackling without individual-
ized determinations, and whether the same shackling policy
applies to “in-custody” and “out-of-custody” defendants. Sim-
ilarly, the district court shall determine whether, even if the
previous shackling policy is no longer being implemented, the
case nonetheless falls under the voluntary cessation exception
to mootness.
[12] On remand, the consolidated case — which challenges
the constitutionality of a rule promulgated by the judges of the
Eastern District, as well as their very authority to promulgate
it — shall be assigned to an out-of-district judge. Although
we do not suggest that there is any actual bias on the part of
the judges, our ethics rules require recusal where a judge’s
impartiality “might reasonably be questioned.” 28 U.S.C.
§ 455(a); see also Liljeberg v. Health Services Acquisition
Corp., 486 U.S. 847, 860 (1988) (noting 28 U.S.C. § 455(a)’s
purpose of “promot[ing] public confidence in the integrity of
the judicial process”). Here, the circumstances surrounding
adoption of these orders suggest that an objective observer
might reasonably question the impartiality of the judges.
Finally, the judges of the Eastern District shall be notified
of the evidentiary hearing. They may, at their discretion,
decide to retain separate counsel to represent their interests at
that proceeding, as the Assistant United States Attorney stated
at oral argument that she does not represent the court. Simi-
larly, on remand, the Eastern District judges may wish to
intervene in the proceedings, to file an amicus brief, or to
decline to participate at all, as they see fit.
REMANDED FOR FURTHER PROCEEDINGS.