                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 13-50561
                Plaintiff-Appellee,
                                           D.C. No.
                 v.                     3:13-mj-03928-
                                         BLM-LAB-1
RENE SANCHEZ-GOMEZ,
            Defendant-Appellant.


     Appeal from the United States District Court
        for the Southern District of California
   Barbara Lynn Major, Magistrate Judge, Presiding

UNITED STATES OF AMERICA,                No. 13-50562
                Plaintiff-Appellee,
                                           D.C. No.
                 v.                     3:13-mj-03882-
                                         JMA-LAB-1
MOISES PATRICIO-GUZMAN,
             Defendant-Appellant.


      Appeal from the United States District Court
         for the Southern District of California
       Jan M. Adler, Magistrate Judge, Presiding
2         UNITED STATES V. SANCHEZ-GOMEZ

UNITED STATES OF AMERICA,                No. 13-50566
                Plaintiff-Appellee,
                                            D.C. No.
                 v.                      3:13-cr-04126-
                                             JLS-1
JASMIN ISABEL MORALES, AKA
Jasmin Morales,
              Defendant-Appellant.


      Appeal from the United States District Court
         for the Southern District of California
     Janis L. Sammartino, District Judge, Presiding

UNITED STATES OF AMERICA,                No. 13-50571
               Plaintiff - Appellee,
                                            D.C. No.
                 v.                      3:13-cr-03876-
                                            MMA-1
MARK WILLIAM RING,
            Defendant-Appellant.           OPINION


      Appeal from the United States District Court
         for the Southern District of California
      Michael M. Anello, District Judge, Presiding

               Argued and Submitted
       November 18, 2014—Pasadena, California

                 Filed August 25, 2015
              UNITED STATES V. SANCHEZ-GOMEZ                           3

  Before: Mary M. Schroeder and Jacqueline H. Nguyen,
    Circuit Judges, and Jack Zouhary, District Judge.*

                   Opinion by Judge Schroeder


                           SUMMARY**


                           Criminal Law

    The panel vacated the district court’s orders in four cases
in which defendants challenged a policy in the Southern
District of California whereby United States Marshals place
pretrial detainees in full shackle restraints for most
appearances before a judge, including arraignments, unless a
judge specifically requests the restraints be removed in a
particular case.

    The panel held that a full restraint policy ought to be
justified by a commensurate need, and cannot rest primarily
on the economic strain of the jailer to provide adequate
safeguards. The panel held that on the record here, the
Southern District has failed to provide adequate justification
for its restrictive shackling policy. The panel remanded for
further proceedings.




  *
    The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4           UNITED STATES V. SANCHEZ-GOMEZ

                         COUNSEL

Reuben Camper Cahn, Sherleen J. Charlick, Ellis M.
Johnston III (argued), Federal Defenders of San Diego, Inc.,
San Diego, California, for Defendants-Appellants.

Laura E. Duffy, United States Attorney, Bruce R. Castetter,
Assistant United States Attorney, Kyle Hoffman (argued),
Assistant United States Attorney, San Diego, California, for
Plaintiff-Appellee.


                         OPINION

SCHROEDER, Circuit Judge:

    The judges of the Southern District of California have
deferred to the recommendation of the United States Marshals
to place pretrial detainees in full shackle restraints for most
appearances before a judge, including arraignments, unless a
judge specifically requests the restraints be removed in a
particular case. The deferral policy was adopted after some
security incidents, coupled with understaffing, created strains
in the ability of the Marshals Service to provide adequate
security for the newly opened San Diego courthouse. Several
defendants have unsuccessfully challenged the policy in the
district court and now appeal.

    Our circuit’s leading case requires adequate justification
for a generalized policy authorizing the pretrial use of
shackles. United States v. Howard, 480 F.3d 1005 (9th Cir.
2007). On this record, the Southern District has failed to
provide adequate justification for its restrictive shackling
            UNITED STATES V. SANCHEZ-GOMEZ                     5

policy. We therefore vacate and remand for further
proceedings.

                      BACKGROUND

    On March 12, 2013, the U.S. Marshal for the Southern
District of California sent a letter to the Chief Judge of the
District requesting that the district consider adopting a policy
of producing defendants in full restraints for most non-jury
proceedings. Full restraints consist of leg shackles and
handcuffs connected to a belly band by a chain approximately
15 inches long. They are also referred to as “five point
restraints.”

    Subsequently, on July 8, 2013, the Marshals Service gave
a presentation to all district judges on the need for the policy.
The Chief Judge then responded with a letter to the Marshals
on October 11, 2013, announcing that the district judges had
decided to defer to the Marshals’ recommendation. The letter
stated that defendants would be produced in full restraints for
all non-jury proceedings, with the exception of guilty pleas
and sentencing hearings, and subject to the rule that any judge
may ask the Marshals to remove the restraints in a particular
case.

    The new policy took effect on October 21, 2013, with all
defendants appearing in full restraints for non-jury
proceedings, subject to the exceptions stated in the October
11 letter. It appears that some individual judges have opted
out of the policy.

   The Chief Judge’s letter made it clear that the policy
emanated from the presentation by the Marshals Service
highlighting security problems within the district. There is no
6           UNITED STATES V. SANCHEZ-GOMEZ

dispute that the Southern District has a higher volume of
criminal defendants than most other districts, that violence
among pretrial detainees appears to have increased, and that
there have been two incidents of in-court attacks on a fellow
prisoner. The Marshals’ staffing has not materially increased
since 2012, although the Marshals have had to service three
courthouses since a new courthouse opened for business that
year.

    When the new shackling policy was put into place, the
criminal defendants began to request to be unshackled, and
several appealed denials by the magistrate judge. The Federal
Defenders then filed a challenge to the policy on behalf of
three defendants whom they represented, Rene Sanchez-
Gomez, Moises Patricio-Guzman and Jasmin Isabel Morales,
and, in their consolidated cases, the district judge denied the
challenge. The judge in a fourth case, that of Mark William
Ring, ruled similarly, and all four cases are consolidated in
this appeal. We have previously ruled that we have appellate
jurisdiction in similar circumstances. See Howard, 480 F.3d
at 1011. Although these appellants are no longer detained,
the case is not moot. See id. at 1009–10. Any constitutional
harm caused by shackling a defendant at non-jury
proceedings is likely to be repeated yet will not last long
enough to be judicially reviewed; thus, the exception to the
mootness doctrine for cases that are “capable of repetition,
yet evading review” applies. See id.

                       DISCUSSION

I. General Legal Principles

   The Supreme Court has formulated rules for when
shackling an individual defendant is permitted in the context
            UNITED STATES V. SANCHEZ-GOMEZ                   7

of jury proceedings, but has not considered a policy, such as
the Southern District’s, which applies only in proceedings
before a judge. The Supreme Court’s most recent decision
regarding shackling, Deck v. Missouri, identified three
fundamental legal principles adversely affected by the use of
shackling. 544 U.S. 622, 630–31 (2005). These principles
are: (1) the presumption of innocence until proven guilty, a
presumption that is undermined by shackling before a jury;
(2) the right to counsel, which shackles can hinder by
interfering with a defendant’s ability to communicate with his
lawyer and by humiliating and distracting a defendant,
potentially impairing his ability to participate in his own
defense; and (3) the need for a dignified and decorous judicial
process, which may be affronted by the routine use of
shackles. Id.

    Deck dealt with shackling in the presence of a jury, and
the government stresses that fact in defending this shackling
policy. The government relies upon the following passage:

       The law has long forbidden routine use of
       visible shackles during the guilt phase; it
       permits a State to shackle a criminal
       defendant only in the presence of a special
       need.

       This rule has deep roots in the common law
       . . . . Blackstone and other English authorities
       recognized 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
8           UNITED STATES V. SANCHEZ-GOMEZ

       jury. See King v. Waite, 1 Leach 28, 36, 168
       Eng. Rep. 117, 120 (K.B. 1743) (“[B]eing put
       upon his trial, the Court immediately ordered
       [the defendant’s] fetters to be knocked off”).

Id. at 626 (emphases added).

    This passage in Deck, however, does not support the
government’s position that there are no limits on the use of
shackles before a judge. We agree that a policy that permits
routine use of shackles is not “forbidden” in non-jury
proceedings under the Fifth Amendment’s Due Process
Clause; it does not follow, however, that under our precedent
shackles may always be used routinely before a judge without
any justification or showing of necessity. We have ruled that
such a generalized shackling policy must rest on an
“adequate justification of its necessity.” Howard, 480 F.3d
at 1008. We therefore consider whether the Southern
District’s policy meets that standard.

II. Our Circuit’s Decision In Howard

    Much of the dispute between the parties in this case
appears to center on our decision in Howard, the only case
involving pretrial shackling. In Howard we considered a
policy authorizing use of leg shackles during appearances
before a magistrate judge in the Roybal Courthouse in Los
Angeles. We did not reach the question of whether due
process requires an individualized determination in a jury
proceeding, because we were dealing with non-jury
proceedings. We did recognize that the adoption of a general
shackling policy in a non-jury setting must be justified. After
examining both the extent of the policy and the asserted need
            UNITED STATES V. SANCHEZ-GOMEZ                    9

for the policy, we held that the policy was adopted “with an
adequate justification of its necessity.” Id. at 1008.

    The government contends that Howard authorizes the
general policy at issue here, a policy of using full restraints
during most appearances before a judge. Howard does not do
that. This policy is more restrictive of defendants’
movement, applies more broadly, and was adopted with less
judicial consideration of its justification than the policy in
Howard.

    The policy in Howard authorized only leg shackles, while
this policy authorizes full five point shackles. The policy in
Howard applied only at first appearances, while the policy in
the Southern District applies to a wide range of non-jury
proceedings. The policy in Howard applied only before
magistrate judges; this policy applies to proceedings before
both magistrate and district judges. Because the shackling in
this case is more burdensome and used more frequently than
in Howard, it carries a greater risk of impeding the ability of
defendants to participate in their defense and communicate
with their counsel. The shackles at issue here are also a
greater affront to the dignity and decorum of the proceedings,
because the shackles themselves are more conspicuous and
are used at many different stages of a criminal case. This
shackling policy thus carries a greater risk of interfering with
a defendant’s constitutional rights.

    Accordingly, we believe the Southern District must
demonstrate a stronger justification for this policy’s necessity
than was demonstrated in Howard. Although both policies
were adopted after consultation with the Marshals, the
deference by the judges to the financial burdens and staffing
issues of the Marshals in the Southern District is one of the
10          UNITED STATES V. SANCHEZ-GOMEZ

dominant factors in the record before us. This case, in fact,
references less justification for the shackling policy than did
the record in Howard.

    The concerns in Howard were focused on the nature and
location of the proceedings. The primary justification given
for that policy was a concern for maintaining security in a
particular courtroom, a problem peculiar to the Roybal
Courthouse in Los Angeles. Howard, 480 F.3d at 1013. We
discussed security concerns created by “the Central District’s
practice of conducting proceedings in a large courtroom on
the third floor of the Roybal Courthouse, in the presence of
multiple defendants, where the risks of conflict, violence, or
escape are heightened.” Id.

    A bit of history is illuminating. The Roybal Courthouse
involved in Howard was built several decades earlier, and
was originally designed not as a stand-alone courthouse, but
as an office building with a few courtrooms. This design is
what gave rise to the security problems discussed in Howard
and was the result of a feud between the General Services
Administration and the District Court for the Central District.
After the District Court rejected a proposal to move out of
their existing courthouse and into an entirely new one,
Congress chose instead to incorporate a few additional
courtrooms into a planned office building, which became the
Roybal Courthouse. See William Overend, No New
Courthouse, Roybal Tells Judges, L.A. Times, Feb. 9, 1985;
Overend, Fight Over 20 New U.S. Courtrooms Flares Up,
L.A. Times, Mar. 31, 1986 (“[T]he Chief U.S. District Judge
wants to add . . . courtrooms by building a 14-story tower
adjoining the existing courthouse, was told by the General
Services Administration that his plan has been rejected by
Congress in favor of a proposal to put the new courtrooms in
            UNITED STATES V. SANCHEZ-GOMEZ                  11

a different building.”). The Roybal Courthouse was thus
particularly ill-suited to accommodate modern security
concerns.

    In this case, the government has not demonstrated that the
courthouses in the Southern District pose similar problems
for security. The record here indicates the Marshals in the
Southern District pointed to problems arising from the
existence of three courthouses, ostensibly brought about by
the 2012 opening of a new, state-of-the-art courthouse which,
unlike Roybal, presumably was designed to accommodate
modern security concerns.

    In its attempt to buttress the need for shackling in this
case, the government focuses on several incidents of violence,
an asserted change in inmate demographics, and other
security factors that it claims lead to an increased risk of
violence. Yet the government has not pointed to the causes
or magnitude of the asserted increased risk. Nor did the
government try to demonstrate to the district judges, or now
on appeal, that other less restrictive measures, such as
increased staffing, would not suffice.

    We do not suggest that judges are necessarily required to
document the need for a shackling policy in any particular
manner, as for example, with statistics or the infeasibility of
less restrictive alternatives. We hold only that in this case,
judges should have provided greater justification for adopting
such a policy.

    In sum, we approved the policy in Howard largely
because of problems inherent in the Roybal Courthouse’s
design. No similar design problems have been shown to exist
in the Southern District. Moreover, the Southern District’s
12          UNITED STATES V. SANCHEZ-GOMEZ

policy is substantially more extensive and restrictive than the
one in Howard.

     Our holding is consistent with that reached by the Second
Circuit in United States v. Zuber, 118 F.3d 101 (2d. Cir.
1997). In that case, the court upheld the shackling of an
individual defendant at a sentencing hearing before the same
judge who had presided over the trial. Id. at 104. The
Second Circuit held that the trial court was not required to
conduct an individualized hearing every time a prisoner was
brought into court. Id. At such a sentencing proceeding, the
trial court properly deferred to the “professional judgment of
the Marshals Service regarding the precautions that seem
appropriate or necessary in the circumstances.” Id. Zuber did
not involve a blanket pretrial policy of shackling all
defendants regardless of the circumstances, but rather
approved limited deference to the Marshals’ judgment that
individual defendants be shackled in particular circumstances.
This is a far cry from deferring to the Marshals’ request that
all defendants be shackled in all appearances before trial.

    We therefore hold that a full restraint policy ought to be
justified by a commensurate need. It cannot rest primarily on
the economic strain of the jailer to provide adequate
safeguards. We do not say that a blanket policy of shackling
defendants in non-jury proceedings is never permissible;
indeed, we approved of one such policy in Howard. We
merely reiterate what we recognized in Howard, that such a
policy must be adopted with “adequate justification of its
necessity.” Howard, 480 F.3d at 1008. The record here falls
short of that showing.
         UNITED STATES V. SANCHEZ-GOMEZ         13

                  CONCLUSION

  The consolidated orders of the district court are
VACATED and the matters REMANDED.
