United States v. Raymond Henderson

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.