                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 En Banc September 7, 2016
               San Francisco, California

                   Filed May 31, 2017
          UNITED STATES V. SANCHEZ-GOMEZ               3

  Before: Sidney R. Thomas, Chief Judge, and Mary M.
Schroeder, Stephen Reinhardt, Alex Kozinski, Diarmuid F.
   O’Scannlain, Barry G. Silverman, Susan P. Graber,
Richard A. Paez, Marsha S. Berzon, Consuelo M. Callahan
           and Sandra S. Ikuta, Circuit Judges.

              Opinion by Judge Kozinski;
            Concurrence by Judge Schroeder;
                Dissent by Judge Ikuta
4             UNITED STATES V. SANCHEZ-GOMEZ

                            SUMMARY*


                           Criminal Law

    The en banc court denied mandamus relief regarding the
United States District Court for the Southern District of
California’s policy of routinely shackling all pretrial
detainees in the courtroom.

   The en banc court construed four defendants’ appeals
challenging the district-wide policy as petitions for writs of
mandamus and found that it had jurisdiction to consider them
under the court’s supervisory authority.

    Applying the analysis of Gerstein v. Pugh, 420 U.S. 103
(1975), a class action, the en banc court held that even though
the named defendants’ cases had ended and the challenged
policy was no longer in effect, the supervisory mandamus
case was not moot because the capable-of-repetition-yet-
evading-review mootness exception applied.

    The en banc court clarified that the Fifth Amendment
right to be free of unwarranted restraints applies whether the
proceeding is pretrial, trial, or sentencing, with a jury or
without. Before a presumptively innocent defendant may be
shackled, the court must make an individualized decision that
a compelling government purpose would be served and that
shackles are the least restrictive means for maintaining
security and order in the courtroom. Courts cannot delegate
this constitutional question to those who provide security,

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
            UNITED STATES V. SANCHEZ-GOMEZ                     5

such as the U.S. Marshals Service. Nor can courts institute
routine shackling policies reflecting a presumption that
shackles are necessary in every case. The en banc court
wrote that the right to be free of unwarranted restraints has
deep roots in the common law, which did not draw a bright
line between trial and arraignment. The en banc court
rejected the government’s contention that individualized
determinations are required only before shackles are used in
the jury’s presence, and that otherwise the right is sufficiently
protected by considering generally applicable security
concerns, deferring to the Marshals Service and leaving the
rest to individual judges’ discretion.

    Even though the en banc court held the district court’s
shackling policy to be unconstitutional, it withheld the
issuance of a formal writ of mandamus because the shackling
policy was not then in effect.

    Concurring, Judge Schroeder wrote that she fully
concurred in the majority’s opinion. In addition to her
disagreement with the dissent’s interpretation of common law
and Supreme Court authority, Judge Schroeder observed that
the dissent lacked sensitivity to the dignity with which court
proceedings should be conducted and to the proper role of the
judges as opposed to the Marshals Service in determining
how a courtroom should be run.

    Dissenting, Judge Ikuta, joined by Judges O’Scannlain,
Silverman, Graber, and Callahan, wrote that the case was
moot and no exception to mootness applied. Judge Ikuta
wrote that the majority’s theory of a “functional class action”
exception was inconsistent with Supreme Court precedent
and incompatible with Article III’s case-or-controversy
requirement. She wrote that the defendants’ appeals also did
6          UNITED STATES V. SANCHEZ-GOMEZ

not meet the requirements for granting a writ of supervisory
mandamus, an extraordinary remedy justified only by
exceptional circumstances amounting to a judicial usurpation
of power. On the merits, Judge Ikuta wrote that the majority
announced a new rule of constitutional criminal procedure
that was contrary to Supreme Court precedent, created a split
with the Second and Eleventh Circuits, and put trial courts
throughout the Ninth Circuit at risk.


                        COUNSEL

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

Daniel E. Zipp (argued) and Kyle Hoffman, Assistant United
States Attorneys; Bruce R. Castetter, Chief, Appellate
Section, Criminal Division; United States Attorney’s Office,
San Diego, California; for Plaintiff-Appellee.
              UNITED STATES V. SANCHEZ-GOMEZ                               7

                               OPINION

KOZINSKI, Circuit Judge:

   We consider whether a district court’s policy of routinely
shackling all pretrial detainees in the courtroom is
constitutional.

                          BACKGROUND

    In 2013, the judges of the Southern District of California
acceded to the U.S. Marshals Service’s request for “a district-
wide policy of allowing the Marshals Service to produce all
in-custody defendants in full restraints for most non-jury
proceedings.” “Full restraints” means that a defendant’s
hands are closely handcuffed together, these handcuffs are
connected by chain to another chain running around the
defendant’s waist, and the defendant’s feet are shackled and
chained together.

    After seeking input from the U.S. Attorney’s Office, the
Federal Defenders of San Diego and a Criminal Justice Act
panel representative, the judges adopted the policy1 of
deferring to the Marshals’ shackling decisions, with a few
minor exceptions. The judges retained discretion to “direct
the Marshals to produce an in-custody defendant without
restraints.” And the district judges, but not the magistrates,
directed the Marshals to “remove arm and hand restraints
during guilty pleas and sentencing hearings before them
unless the Marshals [were] aware of information that the
particular defendant need[ed] to be fully restrained.”

     1
       Several district judges avoid the term “policy” and instead claim it’s
just a practice. We don’t see the difference.
8             UNITED STATES V. SANCHEZ-GOMEZ

Additionally, “defendants in individual cases may ask the
judge to direct that the restraints be removed in whole or in
part,” at which point the judge would “weigh all appropriate
factors, including all of the concerns” expressed by the
Marshals in justifying the routine use of full restraints. Only
one district judge, Judge Marilyn Huff, opted out of the
policy altogether. For the rest of the Southern District’s
judges, the Marshals shackled all in-custody defendants at
pretrial proceedings.

    Starting on the first day of the policy’s implementation,
the Federal Defenders of San Diego objected to the routine
use of shackles and requested that each defendant’s shackles
be removed. The judges routinely denied the requests,
relying on the Marshals Service’s general security concerns
as well as concerns particular to the Southern District. They
pointed to increasing security threats from what they viewed
as changing demographics and increasing case loads in their
district.2 After ruling on a few individual objections, the
judges indicated that they didn’t “want to go through it a
bunch of times.” “For the record,” one judge helpfully noted,
“every defendant that has come out is in th[e] exact same
shackling; so [counsel doesn’t] have to repeat that every
time.”

    The shackling was the same regardless of a defendant’s
individual characteristics. One defendant had a fractured
wrist but appeared in court wearing full restraints. The judge


    2
      Evidence presented in a mandamus proceeding that transpired
during the course of this appeal indicates that the Southern District’s case
load was increasing up to the year preceding the adoption of the routine
shackling policy. But after 2012, case loads decreased and, as of 2015,
had reached their lowest level in years.
             UNITED STATES V. SANCHEZ-GOMEZ                           9

denied her motion “for all of the reasons previously stated.”
Another defendant was vision-impaired. One of his hands
was free of restraint so he could use his cane, but his other
hand was shackled and secured to a chain around his waist
and his legs were shackled together. His objection was
“denied for all the reasons previously stated.” And another
defendant was shackled despite being brought into court in a
wheelchair due to her “dire and deteriorating” health. The
court “noted” her objection to the shackles and “appreciate[d]
[counsel] not taking anymore time” with it.

    The four defendants here, Rene Sanchez-Gomez, Moises
Patricio-Guzman, Jasmin Isabel Morales and Mark Ring, all
appeared in shackles and objected to their use. The
magistrate judges overruled the objections in each instance.
Defendants appealed these denials to the district court and
also filed “emergency motions” challenging the
constitutionality of the district-wide policy. The district
courts denied all relief. All four cases are now consolidated
before us.3

                            ANALYSIS

A. Appellate Jurisdiction

    1. In United States v. Howard, we considered shackling
claims similar to the ones raised here. 480 F.3d 1005, 1008
(9th Cir. 2007). The Central District of California had
adopted a routine shackling policy in consultation with the
U.S. Marshals Service. Id. The policy required defendants
to be shackled in leg restraints at their initial appearances. Id.

    3
      Defendants also appealed discovery and recusal decisions. We don’t
reach these issues.
10         UNITED STATES V. SANCHEZ-GOMEZ

The public defenders objected, claiming that the use of leg
restraints on individual defendants violated the defendants’
liberty interests under the Fifth Amendment. Id. at 1009,
1013. They appealed the district court’s denial of the
unshackling motions without waiting for the defendants’
criminal cases to conclude. Id.

    We held that we had jurisdiction to review the district’s
shackling decisions as immediately appealable collateral
orders. Id. at 1011. Such orders “(1) conclusively
determine[] the disputed question, (2) resolve[] an important
issue completely separate from the merits of the action, and
(3) [are] effectively unreviewable on appeal from a final
judgment.” Sell v. United States, 539 U.S. 166, 176 (2003)
(internal quotation marks, brackets and citation omitted). The
government urges us to reconsider Howard, arguing that
shackling decisions don’t satisfy the requirements for
immediately appealable collateral orders.

     Presented for our review in this appeal are individual
shackling decisions as well as district-wide challenges to the
shackling policy. The main dispute in this case, however, is
the district-wide shackling policy. Because we do not review
the individual defendants’ shackling decisions, we see no
reason to revisit Howard’s appellate jurisdiction analysis as
it applies to those appeals.

    The district-wide challenges introduce a wrinkle in this
case that Howard didn’t address. Defendants challenge the
Southern District’s policy of routinely shackling in-custody
defendants without an individualized determination that they
pose a material risk of flight or violence. Defendants seek
relief not merely for themselves, but for all in-custody
              UNITED STATES V. SANCHEZ-GOMEZ                          11

defendants in the district. Thus, defendants are making class-
like claims and asking for class-like relief.

    Such claims are sometimes brought as civil class actions.4
See, e.g., De Abadia-Peixoto v. U.S. Dep’t of Homeland Sec.,
277 F.R.D. 572, 574 (N.D. Cal. 2011) (using a civil class
action to challenge an Immigration and Customs Enforcement
policy of shackling all detainees in San Francisco’s
immigration court). But we can also construe such claims as
petitions for writs of mandamus when we lack appellate
jurisdiction and mandamus relief is otherwise appropriate.
See Miller v. Gammie, 335 F.3d 889, 895 (9th Cir. 2003) (en
banc). We “treat the notice of appeal as a petition for a writ
of mandamus and consider the issues under the factors set
forth in Bauman.” Id. (citation omitted).

    2. “The common-law writ of mandamus against a lower
court is codified at 28 U.S.C. § 1651(a): ‘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.’” Cheney v. U.S. Dist. Court for the Dist. of Columbia,
542 U.S. 367, 380 (2004). “Historically, a writ of mandamus
was an order compelling a court or officer to act.” In re
United States, 791 F.3d 945, 953 (9th Cir. 2015).




    4
      We noted in Howard that indigent defendants have little ability to
bring civil class actions as a practical matter. 480 F.3d at 1010. They
aren’t guaranteed counsel to pursue civil rights claims, cf. Fed. R. Crim.
P. 44, and defender organizations—like the Federal Defenders of San
Diego—ordinarily have limited mandates that do not include filing class
actions on behalf of their clients. See 18 U.S.C. § 3006A(g)(2).
12          UNITED STATES V. SANCHEZ-GOMEZ

    Another use of the writ is to exercise our “supervisory” or
“advisory” authority. Supervisory and advisory writs are
appropriate in cases “involving questions of law of major
importance to the administration of the district courts.” In re
Cement Antitrust Litig. (MDL No. 296), 688 F.2d 1297, 1307
(9th Cir. 1982); see also La Buy v. Howes Leather Co.,
352 U.S. 249, 259–60 (1957) (“We believe that supervisory
control of the District Courts by the Courts of Appeals is
necessary to proper judicial administration in the federal
system.”). This authority allows courts to provide broader
relief than merely ordering that the respondent act or refrain
from acting, which promotes the writ’s “vital corrective and
didactic function.” Will v. United States, 389 U.S. 90, 107
(1967); see also 16 Charles Alan Wright et al., Federal
Practice and Procedure §§ 3934, 3934.1 (3d ed. 2016)
(describing the history and modern usage of this authority).

    The Supreme Court has announced three conditions for
issuing the writ: First, to ensure that the writ doesn’t replace
the regular appeals process, there must be “no other adequate
means to attain the relief”; second, the petitioner must have
a “clear and indisputable” right to the writ; and, lastly, the
court, in its discretion, must be “satisfied that the writ is
appropriate under the circumstances.” Cheney, 542 U.S. at
380–81 (internal quotation marks and citations omitted).
These conditions are consistent with the five factors our
circuit has used since Bauman v. U.S. Dist. Court, 557 F.2d
650 (9th Cir. 1977), to determine whether mandamus relief is
appropriate:

       (1) whether the petitioner has no other means,
       such as a direct appeal, to obtain the desired
       relief; (2) whether the petitioner will be
       damaged or prejudiced in any way not
            UNITED STATES V. SANCHEZ-GOMEZ                  13

       correctable on appeal; (3) whether the district
       court’s order is clearly erroneous as a matter
       of law; (4) whether the district court’s order is
       an oft repeated error or manifests a persistent
       disregard of the federal rules; and (5) whether
       the district court’s order raises new and
       important problems or issues of first
       impression.

Hernandez v. Tanninen, 604 F.3d 1095, 1099 (9th Cir. 2010)
(internal quotation marks omitted) (quoting Perry v.
Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir. 2009)); see
also Bauman, 557 F.2d at 654–55.

    All of the Bauman factors need not be present to justify
the writ. See In re Cement Antitrust Litig., 688 F.2d at 1301,
1304 (noting that the fourth and fifth factors are rarely
present in the same case). “Except for supervisory mandamus
cases, the absence of factor three—clear error as a matter of
law—will always defeat a petition for mandamus.” Calderon
v. U.S. Dist. Court for the Cent. Dist. of Cal., 163 F.3d 530,
534 (9th Cir. 1998) (en banc), abrogated on other grounds by
Woodford v. Garceau, 538 U.S. 202 (2003). “In the final
analysis, the decision of whether to issue the writ lies within
our discretion.” In re Van Dusen, 654 F.3d 838, 841 (9th Cir.
2011) (citation omitted).

    The Bauman and Cheney factors favor our review. There
is no danger that the writ will supplant the normal appeals
process because the district-wide shackling claims aren’t
14            UNITED STATES V. SANCHEZ-GOMEZ

connected to defendants’ individual criminal cases.5 The
policy doesn’t apply to jury trials; thus, it causes no prejudice
that would justify reversal of a conviction in a direct appeal.
This case also raises new and important constitutional issues
that haven’t been fully considered by this court. See United
States v. Brandau, 578 F.3d 1064, 1065 (9th Cir. 2009). And
a survey of our circuit’s district courts shows that some form
of routine shackling has become a common practice and thus
is an oft-repeated error.6

    Accordingly, we construe defendants’ appeals as petitions
for writs of mandamus under our supervisory authority and
find that we have jurisdiction to consider them.




     5
       While these are criminal cases, they aren’t subject to special
criminal mandamus petition rules. The dissent discusses Will v. United
States as though it narrowed the availability of the writ of mandamus in
criminal cases. See dissent at 53–54. It didn’t. The Supreme Court in
Will explained that courts of appeals may resolve erroneous district court
practices through mandamus petitions, even in criminal cases. 389 U.S.
at 104–05 (discussing La Buy, 352 U.S. at 258). That’s exactly what we
do here. The Court also cautioned that mandamus petitions brought by the
government in criminal cases raise concerns about speedy trials and
double jeopardy. Id. at 96–98. None of those concerns are applicable
here.
     6
      The dissent faults us for “equat[ing] a good faith effort to follow our
case law” with a clear and repeated error. Dissent at 54. According to the
dissent, “the district court complied with our last word on the matter,
Howard.” Id. at 54. The dissent errs. We explicitly noted in Howard that
the policy we were addressing was “less restrictive than the previous
policy requiring full restraints.” 480 F.3d at 1014. Nothing in Howard
endorsed the routine use of full restraints.
            UNITED STATES V. SANCHEZ-GOMEZ                  15

B. Mootness

    Article III’s “case-or-controversy limitation” on federal
court jurisdiction requires a live controversy between two
adversaries. Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). Supervisory
mandamus cases require live controversies even when we
don’t order a lower court to take or refrain from a specific
action. See In re United States, 791 F.3d at 952. Neither
party claims that this case is moot, but the court “must assure
itself of its own jurisdiction.” Terenkian v. Republic of Iraq,
694 F.3d 1122, 1137 (9th Cir. 2012). There are two
circumstances in this case that raise the possibility of
mootness: (1) the named defendants’ cases have ended, so
they’re no longer subject to the complained-of policy, and
(2) the challenged policy is no longer in effect.

    1. “In cases where intervening events have rendered the
writ an ineffective or superfluous remedy, but where the
controversy nonetheless remains live, we have occasionally
reviewed the district court’s decision for error while
withholding a formal writ.” In re United States, 791 F.3d at
953 (citing Phoenix Newspapers, Inc. v. U.S. Dist. Court for
the Dist. of Ariz., 156 F.3d 940, 952 (1998); United States v.
Brooklier, 685 F.2d 1162, 1173 (9th Cir. 1982)). We do so
when it would have been appropriate to issue the writ at the
time the petition was filed. Id. at 954. This allows us to
review “important issues that would otherwise escape review,
while [e]nsuring that such review is limited to truly
extraordinary circumstances.” Id.

    Two of the defendants, Rene Sanchez-Gomez and Jasmin
Isabel Morales, were not yet convicted and so were still
subject to the pretrial shackling policy when they filed their
16          UNITED STATES V. SANCHEZ-GOMEZ

notices of appeal. Construing their notices of appeal as
petitions for writs of mandamus, they had a direct stake in the
resolution of the controversy at the time their petitions were
filed.

    Named plaintiffs—or, in the mandamus setting,
petitioners—must also have a continuing personal interest in
the outcome of the case throughout the litigation. See
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016).
Because they are no longer subject to the policy, defendants’
personal interests in the outcome of this case have expired.

     We faced the same issue in Howard. The defendants’
criminal cases ended before their shackling appeals could be
heard. 480 F.3d at 1009–10. We held that the case wasn’t
moot because it fell into the capable-of-repetition-yet-
evading-review exception. Id. This exception requires
repetition as to the particular complainants, and we cannot
presume that defendants will be subject to criminal
proceedings in the future. Id. But some criminal defendants
would have been subject to the challenged policy during the
litigation and would personally benefit from resolving the
case. Thus, we employed the capable-of-repetition-yet-
evading-review mootness exception that applied to the class
action in Gerstein v. Pugh, 420 U.S. 103 (1975). Though
Howard wasn’t a class action, the case served the same
functional purpose—it was a functional class action. See 480
F.3d at 1009–10.

    The Supreme Court in Gerstein applied the capable-of-
repetition-yet-evading-review mootness exception even
though the named plaintiff was no longer subject to the
challenged practice. 420 U.S. at 110 n.11. In that case, the
class was composed of defendants held in pretrial detention
              UNITED STATES V. SANCHEZ-GOMEZ                            17

without a probable cause hearing. Id. at 105–06. It wasn’t
clear that any representative plaintiff would remain in pretrial
custody long enough for the judge to certify the class, much
less decide the case. Id. at 110 n.11. But the class would
continually fill with new in-custody defendants who had a
live interest in the case. Id. The attorney representing the
class was a public defender who would continue to represent
at least some of those new defendants and class members. Id.
Under those circumstances, the Court held that the case
wasn’t moot because the harm was capable of repetition yet
evading review as to some member of the class throughout
the litigation. Id.

    We have applied Gerstein’s analysis to functional class
actions with inherently transitory claims. See Howard, 480
F.3d at 1009–10; Or. Advocacy Ctr. v. Mink, 322 F.3d 1101,
1117–18 (9th Cir. 2003).7 These cases involve circumstances
“analogous to those found in class action cases where,
because of the inherently transitory nature of the claims,” an
individual’s interests would expire before litigation could be
completed. Or. Advocacy Ctr., 322 F.3d at 1117. Functional
class actions share the same three features that animated the
Supreme Court in Gerstein: They challenge not merely
individual violations, but also broader policies or practices.
See id. at 1118. Thus, they consist of continually changing
groups of injured individuals who would benefit from any
relief the court renders.        And they have common
representation, thereby guaranteeing that the cases will be


    7
      Contrary to the dissent’s claim, dissent at 50–51, Oregon Advocacy
Center was not just about associational standing. After determining that
the plaintiffs had standing to bring the suit, we then turned to whether the
case was moot—a distinct issue. Compare 322 F.3d at 1108–16
(discussing standing), with id. at 1116–18 (discussing mootness).
18          UNITED STATES V. SANCHEZ-GOMEZ

zealously advocated even though the named individuals no
longer have live interests in the case. See id. at 1117.

    The dissent disputes this application of Gerstein.
According to the dissent, Gerstein and related cases require
“the existence of a procedural mechanism, such as [Federal
Rule of Civil Procedure] 23,” for their mootness exceptions
to apply. Dissent at 46–47. But the rule in Gerstein doesn’t
turn on the presence of a procedural device like Rule 23. 420
U.S. at 110 n.11. Rather, Gerstein’s rule resolves the
problem of inherently transitory claims while ensuring there
is a live controversy for which the court can provide relief.
Id.

    The Supreme Court itself has indicated that Gerstein’s
broadening of the capable-of-repetition-yet-evading-review
mootness exception could apply to cases sufficiently similar
to class actions. The Court discussed Gerstein’s factors in a
case brought under the Fair Labor Standards Act (FLSA),
Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523
(2013). Unlike the class action procedures in Rule 23, the
FLSA’s “‘conditional certification’ does not produce a class
with an independent legal status.” Id. at 1530. The Court
nonetheless considered whether, under Gerstein, the
plaintiff’s injury might be capable of repetition yet evading
review. Id. at 1531; see also id. at 1530 (recognizing that the
Court’s holdings in Sosna v. Iowa, 419 U.S. 393 (1975), and
U.S. Parole Commission v. Geraghty, 445 U.S. 388 (1980),
depended on the “independent legal status” of class actions
while making no such claim about Gerstein’s holding).

    The dissent claims that Genesis Healthcare still requires
“the existence of a procedural mechanism . . . to aggregate the
claims” as a “necessary prerequisite” for Gerstein’s analysis
            UNITED STATES V. SANCHEZ-GOMEZ                   19

to apply. Dissent at 46–47. But the Court did not say so.
Instead, the Court noted that its application of Gerstein has
“invariably focused on the fleeting nature of the challenged
conduct giving rise to the claim.” 133 S. Ct. at 1531. The
dissent’s excursus on mootness also ignores that this is a
supervisory mandamus case. See dissent at 39–53. In its
supervisory mandamus role, a court of appeals properly
addresses the harm of a district court policy affecting a huge
class of persons who aren’t parties to the mandamus petition.
See, e.g., Will, 389 U.S. at 95, 104–06; Schlagenhauf v.
Holder, 379 U.S. 104, 110–12 (1964); La Buy, 352 U.S. at
257–60. Unlike the dissent, see dissent at 50 n.5, the
Supreme Court hasn’t found a constitutional infirmity with
such cases. Thus, the dissent’s concerns about the lack of
formal joinder and whether the decision binds other
defendants, see id. at 46–49, are misplaced.

    All of the Court’s considerations in Gerstein are present
here, and the harm—unconstitutional pretrial shackling—is
inherently ephemeral, just like the pretrial detention
challenges in Gerstein. We are faced with an ever-refilling
but short-lived class of in-custody defendants who are subject
to the challenged pretrial shackling policy. At least some
members of this functional class continue to suffer the
complained-of injury. Most of the defendants are represented
by the Federal Defenders of San Diego. And even if we must
withhold a formal writ, we can provide district-wide relief by
exercising our supervisory mandamus authority, thus
demonstrating that there is a live controversy here. See Knox
v. Serv. Emps. Int’l Union, Local 1000, 132 S. Ct. 2277, 2287
(2012) (“A case becomes moot only when it is impossible for
a court to grant any effectual relief whatever to the prevailing
party.” (internal quotation marks and citations omitted)); see
also In re United States, 791 F.3d at 954 (“[W]e are not
20          UNITED STATES V. SANCHEZ-GOMEZ

categorically precluded from opining on the merits of a
mandamus petition when issuance of the writ would no
longer be effective.”).

    2. Shortly after the original panel decision in this case,
the Southern District of California changed its shackling
policy in response to additional litigation about its continued
use of five-point restraints. But the district court’s decision
to change the policy was only a voluntary cessation. See
Friends of the Earth, 528 U.S. at 189. The appealed policy
could be reinstated at any time. In fact, the government has
indicated that it will seek to reinstate the policy unless we
hold it unconstitutional. Thus, there is still a live controversy
over the shackling policy.

C. The Fundamental Right to be Free of Unwarranted
   Restraints

    At the heart of our criminal justice system is the well-
worn phrase, innocent until proven guilty. See Taylor v.
Kentucky, 436 U.S. 478, 483 (1978). And while the phrase
may be well-worn, it must also be worn well: We must guard
against any gradual erosion of the principle it represents,
whether in practice or appearance. This principle safeguards
our most basic constitutional liberties, including the right to
be free from unwarranted restraints. See Deck v. Missouri,
544 U.S. 622, 629–30 (2005).

   1. Under the Fifth Amendment, no person shall be
“deprived of life, liberty, or property, without due process of
law.” U.S. Const. amend. V. The Supreme Court has said
time and again that “[l]iberty from bodily restraint always has
been recognized as the core of the liberty protected by the
Due Process Clause from arbitrary governmental action.”
            UNITED STATES V. SANCHEZ-GOMEZ                   21

Youngberg v. Romeo, 457 U.S. 307, 316 (1982) (alteration in
original) (quoting Greenholtz v. Neb. Penal Inmates,
442 U.S. 1, 18 (1979) (Powell, J., concurring in part and
dissenting in part)). Liberty from bodily restraint includes the
right to be free from shackles in the courtroom. See Deck,
544 U.S. at 629.

    The Supreme Court held in Deck v. Missouri that “the
Constitution forbids the use of visible shackles during the
penalty phase, as it forbids their use during the guilt phase,
unless that use is ‘justified by an essential state interest’—
such as the interest in courtroom security—specific to the
defendant on trial.” Id. at 624 (quoting Holbrook v. Flynn,
475 U.S. 560, 568–69 (1986)).             In evaluating the
government’s justification, a court may “take into account the
factors that courts have traditionally relied on in gauging
potential security problems and the risk of escape at trial.”
Id. at 629. While the decision whether to shackle is entrusted
to the court’s discretion, routine shackling isn’t permitted.
Id. at 629, 633. Instead, courts must make specific
determinations of necessity in individual cases. Id. at 633.

    The Supreme Court identified three constitutional anchors
for the right: (1) the presumption that a defendant is innocent
until proven guilty; (2) the Sixth Amendment right to counsel
and participation in one’s own defense; and (3) the dignity
and decorum of the judicial process, including “the respectful
treatment of defendants.” Id. at 630–31. In jury proceedings,
an additional concern is that the sight of a defendant in
shackles would prejudice the jury against him. Because
prejudice is difficult to discern from a cold record, shackles
visible to the jury are considered “inherently prejudicial.” Id.
at 635 (quoting Holbrook, 475 U.S. at 568). But when
22            UNITED STATES V. SANCHEZ-GOMEZ

security needs outweigh these other concerns, even visible
restraints may be used. Id. at 632.

    Consistent with Deck, we have held that criminal
defendants have a “constitutional right to be free of shackles
and handcuffs in the presence of the jury absent an essential
state interest that justifies the physical restraints.” Williams
v. Woodford, 384 F.3d 567, 591 (9th Cir. 2004) (citations
omitted). We require lower courts to consider concerns
similar to those articulated by the Court in Deck, such as
whether shackles would prejudice the jury, diminish the
presumption of innocence, impair the defendant’s mental
capabilities, interfere with the defendant’s ability to
communicate with counsel, detract from the dignity and
decorum of the courtroom or cause physical pain. See Spain
v. Rushen, 883 F.2d 712, 721 (9th Cir. 1989). “‘In all [ ]
cases in which shackling has been approved,’ we have noted,
there has been ‘evidence of disruptive courtroom behavior,
attempts to escape from custody, assaults or attempted
assaults while in custody, or a pattern of defiant behavior
toward corrections officials and judicial authorities.’”
Gonzalez v. Pliler, 341 F.3d 897, 900 (9th Cir. 2003)
(alteration in original) (quoting Duckett v. Godinez, 67 F.3d
734, 749 (9th Cir. 1995)).

   We now clarify the scope of the right and hold that it
applies whether the proceeding is pretrial, trial, or sentencing,
with a jury or without.8 Before a presumptively innocent


     8
      The Second Circuit in a pre-Deck case, United States v. Zuber, did
not recognize a right to individualized shackling determinations before a
sentencing judge. 118 F.3d 101, 104 (2d Cir. 1997). But the court didn’t
hold that no liberty interest was at issue in nonjury courtroom shackling.
Its analysis was limited to whether there would be inherent prejudice in
              UNITED STATES V. SANCHEZ-GOMEZ                            23

defendant may be shackled, the court must make an
individualized decision that a compelling government
purpose would be served and that shackles are the least
restrictive means for maintaining security and order in the
courtroom.9 See, e.g., Gonzalez, 341 F.3d at 900; Duckett,


the mind of the sentencing judge seeing the defendant in shackles as there
would be in front of a guilt-phase jury. Id. at 103–04.

    Likewise, the Eleventh Circuit in United States v. LaFond held that
a defendant wasn’t entitled to an individualized shackling determination
before a sentencing judge. 783 F.3d 1216, 1225 (11th Cir. 2015). The
court in LaFond went further than Zuber, saying that “the rule against
shackling pertains only to a jury trial.” Id. In reaching this conclusion,
the Eleventh Circuit disregarded the common law rule embodied in our
Constitution that protects an individual from unwarranted shackles in the
courtroom, regardless of the presence of a jury. See infra pp. 25–31.
Moreover, it failed to consider the three essential interests that Deck
identified for deciding shackling cases.
    9
       An individual determination cannot resemble what the Southern
District judges did here. Courts may not incorporate by reference previous
justifications in a general fashion, nor may they refuse to allow defendants
to make objections or create evidentiary records. And they cannot flip the
presumption against shackling by requiring that the defendant come up
with reasons to be unshackled.

     The Southern District’s reliance on postdeprivation process is
unconstitutional not only because it often results in no opportunity to be
heard at all, but also because many judges failed to exercise discretion
when faced with inappropriate shackling. These judges shackled a blind
man, a woman in a wheelchair with “dire and deteriorating” health and a
woman with a broken wrist. And despite the policy providing that
shackles wouldn’t be used at sentencing hearings without specific security
information showing an individualized need, the defendant in the
wheelchair was also shackled at her sentencing hearing. See supra p. 7.
The hearing transcript indicates that no evidence of such specific security
information was introduced. Routine shackling subject to postdeprivation
review is plainly insufficient to protect this fundamental constitutional
24           UNITED STATES V. SANCHEZ-GOMEZ

67 F.3d at 748; Spain, 883 F.2d at 721, 728. Courts cannot
delegate this constitutional question to those who provide
security, such as the U.S. Marshals Service. Nor can courts
institute routine shackling policies reflecting a presumption
that shackles are necessary in every case.10

    This right to be free from unwarranted shackles no matter
the proceeding respects our foundational principle that
defendants are innocent until proven guilty. The principle
isn’t limited to juries or trial proceedings. It includes the
perception of any person who may walk into a public
courtroom, as well as those of the jury, the judge and court
personnel. 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. See Zuber, 118 F.3d at 106
(Cardamone, J., concurring) (“The fact that the proceeding is
non-jury does not diminish the degradation a prisoner suffers
when needlessly paraded about a courtroom, like a dancing
bear on a lead, wearing belly chains and manacles.”).

   And it’s not just about the defendant. The right also
maintains courtroom decorum and dignity:

          The courtroom’s formal dignity, which
          includes the respectful treatment of
          defendants, reflects the importance of the
          matter at issue, guilt or innocence, and the
          gravity with which Americans consider any


right.
     10
       We therefore overrule Howard to the extent it held that a routine
shackling policy largely justified by deference to the U.S. Marshals
Service was constitutional.
           UNITED STATES V. SANCHEZ-GOMEZ                  25

       deprivation of an individual’s liberty through
       criminal punishment. And it reflects a
       seriousness of purpose that helps to explain
       the judicial system’s power to inspire the
       confidence and to affect the behavior of a
       general public whose demands for justice our
       courts seek to serve.

Deck, 544 U.S. at 631. The most visible and public
manifestation of our criminal justice system is the courtroom.
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
perceive that it is a place where justice is administered 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, inspiring 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.

    2. This right “has deep roots in the common law.” Deck,
544 U.S. at 626. The Supreme Court has “regularly observed
that the Due Process Clause specially protects those
fundamental rights and liberties which are, objectively,
deeply rooted in this Nation’s history and tradition, and
implicit in the concept of ordered liberty, such that neither
liberty nor justice would exist if they were sacrificed.”
Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997)
(internal quotation marks and citations omitted).
26            UNITED STATES V. SANCHEZ-GOMEZ

    One traditional justification for the right was allowing
defendants to try their cases without the distraction of
shackles and any attendant physical pain. See Deck, 544 U.S.
at 626; see also id. at 638–39 (Thomas, J., dissenting).11 An
early commentator noted that defendants should approach the
court free of shackles “so that their pain shall not take away
any manner of reason, nor them constrain to answer, but at
their free will.” Id. at 626 (quoting 3 Edward Coke, Institutes
of the Laws of England 34 (1797)). But the right was also
motivated by the desire to protect defendants’ dignity:

          [E]very person at the time of his arraignment,
          ought to be used with all the humanity and
          gentleness which is consistent with the nature
          of the thing, and under no other terror or
          uneasiness than what proceeds from a sense of
          his guilt, and the misfortune of his present
          circumstances; and therefore ought not to be
          brought to the bar in a contumelious manner;
          as with his hands tied together, or any other
          mark of ignominy and reproach; nor even
          with fetters on his feet, unless there be some
          danger of a rescous or escape.

2 William Hawkins, A Treatise of the Pleas of the Crown 434
(John Curwood, 8th ed. 1824). Still, there were certain
situations when the need for security overcame the right to be

     11
       The dissent relies heavily on the give and take between Justice
Thomas and the majority on a matter not central to the majority’s holding.
See dissent at 57–58. But the Court has recognized that such byplay is not
binding if it does not concern the majority’s holding. Kirtsaeng v. John
Wiley & Sons, Inc., 133 S. Ct. 1351, 1368 (2013) (dismissing as dictum
a contrary statement of law in a previous opinion, explaining that it was
merely “contained in a rebuttal to a counterargument”).
              UNITED STATES V. SANCHEZ-GOMEZ                           27

free of shackles: “[A] defendant ‘must be brought to the bar
without irons, or any manner of shackles or bonds; unless
there be evident danger of an escape.’” Deck, 544 U.S. at 626
(quoting 4 William Blackstone, Commentaries on the Laws
of England 317 (1769)).

     The Supreme Court in Deck found that the common law
drew a distinction between trial and pretrial proceedings
when applying the right because “Blackstone and other
English authorities recognized that the rule did not apply at
‘the time of arraignment,’ or like proceedings before the
judge.” Id. (quoting 4 Blackstone, Commentaries on the
Laws of England 317) (citing Trial of Christopher Layer,
16 How. St. Tr. 94, 99 (K.B. 1722)). This statement on
pretrial proceedings is undoubtedly dictum in a case about
shackling at capital sentencing. Persuasive Supreme Court
dicta are usually heeded by lower courts. See United States
v. Montero-Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir.
2000) (en banc). But dicta “ought not to control the judgment
in a subsequent suit, when the very point is presented for
decision.” Humphrey’s Ex’r v. United States, 295 U.S. 602,
627 (1935) (quoting Cohens v. Virginia, 19 U.S. 264, 399
(1821) (Marshall, C.J.)). The Supreme Court’s dictum on
pretrial proceedings in Deck doesn’t control this case because
it’s contradicted by the very sources on which the Supreme
Court relied.12

    The early commentators didn’t draw the bright line
between trial and arraignment that the Deck Court seemed to
believe they did. Coke’s discussion of shackling noted that


    12
      “Is the Court having once written dicta calling a tomato a vegetable
bound to deny that it is a fruit forever after?” Kirtsaeng, 133 S. Ct. at
1368.
28          UNITED STATES V. SANCHEZ-GOMEZ

“[i]t is an abuse that prisoners be charged with irons, or put
to any pain before they be attainted.” 3 Coke, Institutes of the
Laws of England 34. And Blackstone did not recognize that
the rule against shackles didn’t apply at the time of
arraignment or proceedings before a judge. Instead, the
language the Court cited and partially quoted said the
opposite: Shackles at arraignment and pretrial proceedings
are acceptable only in situations of escape or danger.

       The prisoner is to be called to the bar by his
       name; and it is laid down in our an[c]ient
       books, that, though under an indictment of the
       highest nature, he must be brought to the bar
       without irons, or any manner of shackles or
       bonds; unless there be evident danger of an
       escape, and then he may be secured with
       irons. But yet in Layer’s case, A.D. 1722[,] a
       difference was taken between the time of
       arraignment, and the time of trial; and
       accordingly the prisoner stood at the bar in
       chains during the time of his arraignment.

4 Blackstone, Commentaries on the Laws of England 317.
Shackles at arraignment and trial are different, as Blackstone
noted, but only because shackles are more easily justified at
the former, which was demonstrated by Layer’s case.

    Layer’s case, relied on by both Blackstone and the
Supreme Court, began with Layer’s appeal to be unshackled
at his arraignment. The Trial of Christopher Layer, esq; at
the King’s-Bench for High-Treason, Nov. 21. 1722, in 6 A
Complete Collection of State-Trials, and Proceedings Upon
High-Treason 229–32 (2d ed. 1730). The government
justified the shackles on the ground that Layer had previously
            UNITED STATES V. SANCHEZ-GOMEZ                  29

attempted to escape. Id. Layer’s lawyer objected strongly,
explaining that “by Law he ought not to be called upon, even
to plead, till his Fetters are off.” Id. at 231. He argued that
shackles not only caused physical and mental “uneasiness,”
but also that they besmirched the decorum of the court:

       [S]omething of the Dignity of the Court might
       be considered in this Matter, for a Court of
       Justice, the highest in the Kingdom for
       criminal Matters, where the King himself is
       supposed to be personally present, to have a
       Man plead for his Life before them in Chains,
       seems to be very unsuitable. He is now before
       the same awful and just Tribunal which he
       will be before when he is tried, and why not
       therefore without Chains as well now as then
       ...?

Id. While Layer was ultimately unsuccessful, his argument
demonstrates that shackling at arraignment was not a standard
practice, or even permissible, absent a demonstrated need.

    The dissent struggles manfully against the plain language
of Layer’s case and Blackstone. See dissent at 58–62. It
claims to “follow the Supreme Court’s interpretation” of
Layer’s case by pointing to Deck, id. at 61–62 n.13, but
nowhere does the Deck majority analyze the case. We merely
repeat what Blackstone and Layer’s case provide—that
shackling at arraignment was allowed after a showing of
need. Layer’s case applied the exception to Blackstone’s
basic rule: A prisoner “must be brought to the bar without
irons, or any manner of shackles or bonds; unless there be
evident danger of an escape.” 4 Blackstone, Commentaries
on the Laws of England 317. There’s nothing to indicate that
30            UNITED STATES V. SANCHEZ-GOMEZ

shackles were used at arraignments more generally without a
particular reason; Layer’s case suggests the contrary.

     Early American courts “traditionally followed
Blackstone’s ‘ancient’ English rule.” Deck, 544 U.S. at
626–27 (collecting cases). Blair v. Commonwealth, relying
on a legal encyclopedia, explained that courts followed “the
common–law rule” that “shackling defendant[s] during
arraignment, during the calling and examination of the jurors,
or at any time during the trial, except in extreme cases to
prevent escape or to protect the bystanders from the danger of
defendant’s attack, [was] reversible error.” 188 S.W. 390,
393 (Ky. Ct. App. 1916) (internal quotation marks omitted)
(quoting 12 William Mack, Cyclopedia of Law and
Procedure 529 (1904)). Likewise, Rainey v. State quoted
Bishop’s authoritative treatise to note that “‘the rule [against
shackling] at arraignment where only a plea is required is less
strict’” than the rule at trial. 20 Tex. App. 455, 472 (1886)
(quoting 1 Joel Prentiss Bishop, Criminal Procedure § 955
(3d ed. 1880)). Contrary to the dissent’s belief, that the rule
“is less strict” doesn’t mean it didn’t exist at all.13 Bishop
understood the common law rule just as we do: “[I]f a keeper
deems it necessary,” then the general rule that the defendant
“should not be in irons” at arraignment could be relaxed. 1
Bishop, Criminal Procedure § 731; see also Parker v.
Territory, 52 P. 361, 363 (Ariz. 1898) (“‘A person charged
with a public offense shall not before conviction be subjected
to any more restraint than is necessary for his detention to


     13
      The dissent fails to engage with these cases and cites no secondary
sources with the view of shackling at arraignment that it espouses.
Authoritative secondary sources such as Bishop’s treatise and Mack’s
encyclopedia provide us with a panorama of the law as it was generally
understood and applied by a majority of courts at the time.
              UNITED STATES V. SANCHEZ-GOMEZ                             31

answer the charge,’—which is but the common-law and
constitutional right of a prisoner embodied in the statute.”
(citation omitted)). Thus, we have a tradition dating from
time out of mind that defendants will appear in court prior to
their conviction as free men with their heads held high.

    3.    The government contends that individualized
determinations are required only before shackles are used in
the jury’s presence. Otherwise, it argues, the right is
sufficiently protected by considering generally applicable
security concerns, deferring to the U.S. Marshals Service and
leaving the rest to individual judges’ discretion. The
government also asks us to analyze this case under Bell v.
Wolfish, 441 U.S. 520 (1979).

    But Bell dealt with pretrial detention facilities, not
courtrooms.14 Those facilities are meant to restrain and keep
order, not dispense justice. They are a mere step away from
detention in prison. We emphatically reject the idea that
courtrooms are (or should be) perceived as places of restraint
and punishment, or that courtrooms should be governed
exclusively by the type of safety considerations that justify
detention facility policies. We must make every reasonable
effort to avoid the appearance that courts are merely the
frontispiece of prisons.

   We have a long tradition of giving correctional officials
a wide berth in maintaining security within their own


    14
        The dissent expands the scope of Bell to the courtroom by claiming
that “[t]he government’s interest in securing [pretrial detainees’] presence
at trial and maintaining order and security . . . remains the same regardless
of the location.” Dissent at 65. Location matters, however. The
courtroom is not a pretrial detention facility.
32           UNITED STATES V. SANCHEZ-GOMEZ

facilities.15 See id. at 540 n.23. But we don’t have a tradition
of deferring to correctional or law enforcement officers as to
the treatment of individuals appearing in public courtrooms.
In the courtroom, law enforcement officers have no business
proposing policies for the treatment of parties as a class.
Insofar as they have information pertaining to particular
defendants, they may, of course, bring it to the court’s
attention. But a blanket policy applied to all defendants
infuses the courtroom with a prison atmosphere. The
Marshals Service should not have proposed it and the judges
should not have paid heed.

    We must take seriously how we treat individuals who
come into contact with our criminal justice 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 otherwise.
That’s why we must examine these practices more skeptically
than those deployed in an institutional setting like Bell. 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



     15
       We need not consider the application of Bell to holding cells or
transportation between detention centers and the courtroom, which are
beyond the scope of this case.
           UNITED STATES V. SANCHEZ-GOMEZ                  33

enforcement reason). We must treat people with respect and
dignity even though they are suspected of a crime.

                        *     *     *

    The Constitution enshrines a fundamental right to be free
of unwarranted restraints. Thus, we hold that if the
government seeks to shackle a defendant, it must first justify
the infringement with specific security needs as to that
particular defendant. Courts must decide whether the stated
need for security outweighs the infringement on a defendant’s
right. This decision cannot be deferred to security providers
or presumptively answered by routine policies. All of these
requirements apply regardless of a jury’s presence or whether
it’s a pretrial, trial or sentencing proceeding. Criminal
defendants, like any other party appearing in court, are
entitled to enter the courtroom with their heads held high.

   The policy that defendants challenged here isn’t presently
in effect. Thus, although we hold that policy to be
unconstitutional, we withhold the issuance of a formal writ of
mandamus at this time.

   DENIED.



SCHROEDER, Circuit Judge, concurring:

    I fully concur in Judge Kozinski’s opinion with its
comprehensive historical analysis. I write separately only to
offer a brief comment about Judge Ikuta’s lengthy, well
written dissent.
34          UNITED STATES V. SANCHEZ-GOMEZ

     In addition to noting my disagreement with the dissent’s
interpretation of common law and Supreme Court authority,
I also observe that the dissent unfortunately lacks sensitivity
to two of the most important components of our system of
justice. The first is the dignity with which court proceedings
should be conducted. The dissent thus ignores the
degradation of human beings who stand before a court in
chains without having been convicted, or in many instances,
without even having been formally charged with any crime.
Second, the dissent lacks sensitivity to the proper role of the
judges as opposed to the Marshals Service in determining
how a courtroom should be run. Thus the dissent accepts the
data provided by the Marshals Service even though no district
court judge has ever made any finding of fact concerning the
data’s accuracy or whether it provides a good reason for this
unprecedented mass shackling.

   Our court today correctly upholds the proper role of the
judges, as opposed to the jailors, in the courtroom.



IKUTA, Circuit Judge, with whom O’SCANNLAIN,
SILVERMAN, GRABER, and CALLAHAN, Circuit Judges,
join, dissenting:

    Far removed from the potential dangers of a trial court,
the majority holds that criminal defendants whose cases are
now moot can use their individual appeals as vehicles to
invalidate the prospective application of a federal district
court’s policy of deferring to the United States Marshals
Service on questions of courtroom security. In reaching this
conclusion, the majority ignores Article III’s limitations on
federal judicial power, conjures up an unsupported and
            UNITED STATES V. SANCHEZ-GOMEZ                  35

unprecedented exception to mootness, chastises district
judges for following our case law, brushes aside inconvenient
Supreme Court reasoning, creates an unjustifiable circuit
split, and discovers a one-size-fits-all courtroom security
policy in the Constitution. We should not be hearing this case
at all, much less using it to announce a sweeping and
unfounded new constitutional rule with potentially grave
consequences for state and federal courthouses throughout
this circuit. I dissent.

                               I

    In July 2013, the United States Marshals Service,
pursuant to its congressional charge “to provide for the
security . . . of the United States District Courts,” 28 U.S.C.
§ 566(a), recommended that the judges of the Southern
District of California allow the Marshals Service to produce
all in-custody defendants in full restraints for non-jury
proceedings.          The Marshals Service based this
recommendation on several factors. For one, a number of
dangerous incidents had recently occurred in the courthouse.
In 2013 alone, there were two separate inmate-on-inmate
assaults inside courtrooms; an inmate was stabbed in the face
as a result of one of those assaults. The Marshals Service
also discovered that several detainees had armed themselves
with homemade weapons in holding cells, including a
detainee with no violent background who attempted to
smuggle a razor blade in his shoe.

    Second, the Marshals Service determined that it lacked
sufficient information to predict which detainees would
present a danger. In many cases, detainees with no history of
violence, or those who were charged with non-violent
offenses, engaged in violent acts while in custody. For
36          UNITED STATES V. SANCHEZ-GOMEZ

instance, in 2013 there were seven detainee-on-staff assaults
in the Southern District of California; six of the offenders had
been charged with non-violent offenses, and five of those six
had no histories of violence. Moreover, the Marshals Service
can access only limited criminal background information
regarding detainees who are not residents of the United
States, and the Southern District of California hears an
unusually high number of cases involving such detainees.
Accordingly, the Marshals Service concluded that it had little
ability to predict which detainees would present a danger.

    The Marshals Service also noted logistical concerns that
enhanced the potential danger arising from the large number
of criminal defendants cycling through the courthouse. In the
years leading up to the policy’s implementation, the Marshals
Service produced approximately 40,000 in-custody
defendants for court appearances, with an average of over 200
defendants moving through district cellblocks per day. The
high volume of in-custody criminal defendants, the close
quarters in the courtrooms used by magistrate judges, the
configurations of the courtrooms used by district judges, and
budgetary constraints that forced the Marshals Service to
reduce the allocation of resources to courtroom protection
duties all contributed to heightened security concerns. In
short, the Marshals Service’s security recommendation arose
from a confluence of factors, many of which were specific to
the Southern District of California.

    After consulting with the United States Attorney’s Office,
the Federal Defenders of San Diego, and a Criminal Justice
Act panel representative, the district court concluded that it
should defer to the Marshals Service’s recommendation on
this courtroom security issue, with two exceptions. First, the
district court declined to adopt the Marshals Service’s
            UNITED STATES V. SANCHEZ-GOMEZ                    37

recommendation with respect to guilty plea colloquies and
sentencing hearings. Second, the district court reserved the
right of any individual judge to opt out of the policy. In
deciding to implement the Marshals Service’s
recommendation, the district court relied on our decision in
United States v. Howard, 480 F.3d 1005, 1013 (9th Cir.
2007), and on the Second Circuit’s decision in United States
v. Zuber, 118 F.3d 101, 104 (2d Cir. 1997), each of which
held that deference to the Marshals Service’s judgment
regarding the use of restraints on detainees during non-jury
pretrial proceedings did not violate the detainees’
constitutional rights.

    Challenges to the new policy came quickly, including
from the defendants now before us on appeal. In October
2013, Jasmin Morales made her initial appearance before a
magistrate judge in full restraints pursuant to the new security
policy. Morales had been charged with felony importation of
a controlled substance, in violation of 21 U.S.C. §§ 952 and
960. Her counsel moved to have the restraints removed
during the pretrial proceedings, but the magistrate judge
denied the motion. While her criminal case was moving
forward, Morales filed an emergency motion with the district
court challenging the pretrial restraint policy. A district court
judge denied that motion, and her counsel filed a notice of
appeal in November 2013. A few months later, in April
2014, Morales pleaded guilty. The district court imposed a
sentence of eighteen months imprisonment and three years of
supervised release and entered a final judgment on June 19,
2014. At that point, Morales’s criminal case before the
38            UNITED STATES V. SANCHEZ-GOMEZ

district court was over.1 The other defendants whose appeals
are before us—Rene Sanchez-Gomez, Moises Patricio-
Guzman, and Mark Ring—have similar stories.2

    This case accordingly comes to us in an odd procedural
posture: Each of the four defendants’ criminal cases came to
a close before we heard their appeals, and the four defendants
(represented here by the Federal Defenders of San Diego) are
before us challenging only the Marshals Service’s prospective
use of restraints during pretrial proceedings. They do not
seek review of the individual decisions to permit the use of
restraints in their cases. They do not seek damages for any


     1
      While Morales could appear in federal court again on a supervised
release violation, she would not appear as a pretrial detainee. Rather, she
is now “[a] criminal defendant proved guilty” who “does not have the
same liberty interests as a free man.” Dist. Atty’s Office v. Osborne,
557 U.S. 52, 68 (2009).
     2
       Sanchez-Gomez was charged with felony misuse of a passport in
violation of 18 U.S.C. § 1544. He filed an emergency motion (identical
to Morales’s motion) challenging the restraint policy. The district court
denied the motion, and Sanchez-Gomez filed a notice of appeal on
November 22, 2013. By December 2013, Sanchez-Gomez had pleaded
guilty to the charge; the district court entered a final judgment and
imposed five years of probation. Patricio-Guzman filed an identical
emergency motion challenging the restraint policy. It was also denied.
He pleaded guilty to misdemeanor illegal entry into the United States,
8 U.S.C. § 1325, and was sentenced to thirty days of imprisonment. Final
judgment was entered in his case weeks before he filed a notice of appeal
regarding the denial of his motion to have restraints removed during
pretrial proceedings. Ring was charged with making an interstate threat
in violation of 18 U.S.C. § 875(c). His challenge to the use of pretrial
restraints was also denied in November 2013, and he filed an appeal a
week later. The district court dismissed the charges against Ring with
prejudice on the government’s motion in October 2014. We consolidated
the appeals brought by each of the defendants.
            UNITED STATES V. SANCHEZ-GOMEZ                   39

injury they incurred due to this policy. Nor do they seek to
have their convictions or sentences set aside as a result of any
prejudicial effect of the restraint policy. Instead, the Federal
Defenders of San Diego, allegedly on behalf of the four
defendants, seeks prospective relief for all future pretrial
detainees who may have pretrial proceedings in the Southern
District of California. The defendants seek this relief even
though, as the majority concedes, Maj. op. at 16, they are no
longer subject to the challenged policy. In fact, none of these
defendants has any reason to step foot in a federal courtroom
as a pretrial detainee again. Thus, as the majority
acknowledges, these defendants “are making class-like claims
and asking for class-like relief,” Maj. op. at 11, but are doing
so via their individual criminal cases. The threshold question
presented in this case is whether, consistent with Article III
of the Constitution, they may do so.

                               II

     Because Morales, Sanchez-Gomez, Patricio-Guzman, and
Ring have no ongoing interest in the purely prospective relief
they seek, see Maj. op. at 16, their appeals are moot unless
some exception to the ordinary rules of mootness applies.
But neither the Supreme Court nor our precedent has
established any applicable exception. The majority implicitly
concedes as much by contriving a new exception—the
“functional class action,” id. at 16—in order to rescue these
appeals from mootness. Because this theory is inconsistent
with Supreme Court precedent and incompatible with Article
III’s case-or-controversy requirement, the majority’s creative
effort to sidestep mootness should be rejected.
40          UNITED STATES V. SANCHEZ-GOMEZ

                              A

    The majority treats Article III’s case-or-controversy
requirement as a mere obstacle in its path to the merits that
can be avoided through calculated maneuvering. But our
adherence to this requirement “is essential if federal courts
are to function within their constitutional sphere of
authority.” North Carolina v. Rice, 404 U.S. 244, 246 (1971)
(per curiam). The Constitution constrains federal “judicial
Power” to nine classes of “Cases” and “Controversies.” U.S.
Const. art. III, § 2; Rice, 404 U.S. at 246. A dispute is not a
qualifying case or controversy unless we can afford relief to
the parties before us, see Rice, 404 U.S. at 246, and the “case-
or-controversy requirement subsists through all stages of
federal judicial proceedings,” Fed. Election Comm’n v. Wis.
Right to Life, Inc., 551 U.S. 449, 461 (2007) (internal
quotation marks omitted). Thus, “it is not enough that a
dispute was very much alive when suit was filed.” Lewis v.
Cont’l Bank Corp., 494 U.S. 472, 477 (1990). Instead, if a
party seeking relief loses a “cognizable interest in the
outcome” at any stage of the litigation, Murphy v. Hunt,
455 U.S. 478, 481 (1982) (per curiam) (internal quotation
marks omitted), then the matter becomes moot and is “no
longer a ‘Case’ or ‘Controversy’ for purposes of Article III,
. . . [n]o matter how vehemently the parties continue to
dispute the lawfulness of the conduct that precipitated the
lawsuit,” Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726–27
(2013). This constraint on federal judicial power exists, as
the majority acknowledges, whether the parties are before the
court on an appeal, a petition for a writ of mandamus, or any
other means of obtaining relief. Maj. op. at 16. Here, the
defendants’ claims that the pretrial restraint policy violates
the Constitution are moot “because even a favorable
decision” would not entitle the defendants to any relief.
            UNITED STATES V. SANCHEZ-GOMEZ                  41

Murphy, 455 U.S. at 481. Accordingly, absent some
exception to the ordinary rules of mootness, we lack
jurisdiction over these consolidated appeals, and they must be
dismissed.

    The established exceptions to mootness do not give the
majority much to work with in its effort to find a live case or
controversy. The majority references the exception for cases
capable of repetition, yet evading review, Maj. op. at 16–17,
but this exception applies only if “there is a reasonable
expectation that the same complaining party will be subject
to the same action again,” Spencer v. Kemna, 523 U.S. 1, 17
(1998) (brackets omitted) (quoting Lewis, 494 U.S. at 481)
(internal alterations omitted). Here, as the majority concedes,
“we cannot presume that defendants will be subject to
criminal proceedings in the future.” Maj. op. at 16; accord
O’Shea v. Littleton, 414 U.S. 488, 497 (1974); Cox v.
McCarthy, 829 F.2d 800, 804 n.3 (9th Cir. 1987).
Accordingly, the alleged injury is not capable of repetition as
to the parties before us, and the “capable of repetition, yet
evading review” exception to mootness is inapplicable.
Spencer, 523 U.S. at 17.

                              B

    Instead of conceding that this case is beyond our power to
decide, the majority invents a new “functional class action”
exception to mootness. Maj. op. at 16–20. Relying on
Gerstein v. Pugh, 420 U.S. 103 (1975), a case considering
mootness in the class action context, the majority reasons that
a case is not moot whenever there is “an ever-refilling but
short-lived class” of defendants who are subject to a
challenged policy, “[a]t least some members of this functional
class continue to suffer the complained-of injury,” and most
42          UNITED STATES V. SANCHEZ-GOMEZ

of the members are represented by zealous advocates. Maj.
op. at 19. But a group of ever-changing individuals with
similar concerns (as the majority envisions) does not
constitute the sort of class that can avoid mootness. Even
when a plaintiff purports to bring an action on behalf of
others, the action will become moot when the plaintiff’s own
claims become moot, unless the plaintiff has used a
procedural mechanism, such as class certification under Rule
23 of the Federal Rules of Civil Procedure, that can produce
a class with “an independent legal status” or otherwise
effectively joins “additional parties to the action.” Genesis
Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1530 (2013).
Without the creation of such a class pursuant to a statute or
rule, a group of interested individuals cannot be a party to the
action before the court, and therefore the court may not
consider their interests in a particular case for purposes of a
mootness inquiry. See id.

    To understand why Gerstein is inapposite here, some
background is needed to explain how the mootness doctrine
applies in the class action context. Rule 23 provides a
procedure that allows courts to aggregate the claims of
multiple parties. See Deposit Guar. Nat’l Bank v. Roper,
445 U.S. 326, 339 (1980) (stating that a class action is “[t]he
aggregation of individual claims in the context of a classwide
suit”). Once a class is certified under Rule 23, it “acquires an
independent legal status.” Genesis Healthcare, 133 S. Ct. at
1530. The members of a class are parties to the action and
are generally bound by the judgment. See Taylor v. Sturgell,
553 U.S. 880, 884 (2008).

    Because a class is comprised of multiple parties to the
legal action, a court’s mootness inquiry in a class action
lawsuit is broader than in traditional litigation on an
            UNITED STATES V. SANCHEZ-GOMEZ                     43

individual’s own behalf. See, e.g., Franks v. Bowman
Transp. Co., 424 U.S. 747, 755–56 (1976) (holding that the
interests of “unnamed members of the class” who are entitled
to relief may satisfy the case-or-controversy requirement).
The named representative of a class must generally have
standing at the commencement of an action and when the
district court rules on a motion for class certification. Sosna
v. Iowa, 419 U.S. 393, 402 (1975). But even if the named
representative’s case becomes moot after the district court has
ruled on a motion for class certification, the case itself is not
moot so long as at least one member of the putative class has
a live interest. See, e.g., id. (class action not moot when
named representative’s claim becomes moot after class
certification); U.S. Parole Comm’n v. Geraghty, 445 U.S.
388, 404 (1980) (class action not moot when named
representative’s claim becomes moot after denial of class
certification, provided that the class is subsequently certified).
This makes sense: A certified class contains parties with
ongoing live claims who have an entitlement to relief
regardless whether the named representative’s case becomes
moot after the complaint is filed. See Franks, 424 U.S. at
755–57. Of course, if it turns out that the putative class was
never actually eligible for certification, then the entire action
dies as moot along with the class representative’s claim.
Geraghty, 445 U.S. at 404.

    Even if a named representative’s claims become moot
before the district court has ruled on a class certification
motion, a class claim may escape mootness under certain
circumstances. This is the Gerstein rule. As the Supreme
Court has explained, Gerstein “recognized . . . that ‘some
claims are so inherently transitory that the trial court will not
have even enough time to rule on a motion for class
certification before the proposed representative’s individual
44          UNITED STATES V. SANCHEZ-GOMEZ

interest expires.’” County of Riverside v. McLaughlin,
500 U.S. 44, 52 (1991) (brackets omitted) (quoting Geraghty,
445 U.S. at 399). Under these circumstances, a judicial
decision to certify a class after the named representative’s
individual claim is moot may relate back to the time the
named representative filed the class-action complaint, and the
action will not be moot so long as members of the class
continue to have a live controversy. See Gerstein, 420 U.S.
at 110 n.11 (citing Sosna, 419 U.S. at 402 n.11).

    In Gerstein, two pretrial detainees sued assorted county
officials on behalf of a class of pretrial detainees under
42 U.S.C. § 1983 in order to challenge Florida’s practice of
not providing detainees with a timely probable cause hearing.
Id. at 106–07. By the time the case reached the Supreme
Court, the named representatives had been convicted, and it
was not clear whether their individual claims had become
moot before or after the district court certified the class. Id.
at 110 n.11. Given the transitory nature of pretrial custody,
the clear existence of a class, and the class’s representation by
counsel with similarly situated clients, the Supreme Court
held that the class action was not moot even if the named
representatives’ claims expired before certification. Id. “In
such cases, the ‘relation back’ doctrine is properly invoked to
preserve the merits of the case for judicial resolution.”
McLaughlin, 500 U.S. at 52. As Gerstein illustrates, the
“relation back” doctrine serves a very particular purpose.
Specifically, in inherently transitory situations, the Court
deems class certification to have occurred at the time the
named representative filed the complaint with class
allegations, at which time the named representative’s claims
were live. See 1 William B. Rubenstein et al., Newberg on
Class Actions § 2:13 at 123 (5th ed. 2011). Because the
named representative’s claims therefore constructively
              UNITED STATES V. SANCHEZ-GOMEZ                         45

became moot after the class’s certification, the rule that a
class action does not become moot in such circumstances
applies. See id. at 123–24.

    The Supreme Court later explained the limits of the Rule
23 mootness doctrine in considering its applicability to a
collective action under the Fair Labor Standards Act (FLSA).
The FLSA allows employees to bring a collective action on
behalf of “other employees similarly situated,” but employees
do not become parties to the action unless they elect to opt
into it. 29 U.S.C. § 216(b). In Genesis Healthcare, the
named plaintiff’s case became moot before the district court
had “conditionally certified” the action,3 so no other
employees had yet opted into the collective action. 133 S. Ct.
at 1530. The district court therefore dismissed the lawsuit as
moot. Id. at 1527. The Third Circuit reversed, holding that
the collective action was not moot because, if the employee
were subsequently successful in obtaining conditional
certification, the district court should “relate the certification
motion back to the date on which respondent filed her
complaint.” Id. at 1528.

    The Supreme Court disagreed. Under § 216(b), approval
of a plaintiff’s conditional certification motion “does not
produce a class with an independent legal status, or join
additional parties to the action,” unlike class action
certification under Rule 23. Id. at 1530. Rather, “[t]he sole
consequence of conditional certification is the sending of
court-approved written notice to employees, who in turn


    3
      Genesis Healthcare explained that courts adopted class action
terminology, such as “conditional certification,” in the FLSA context “to
describe the process of joining co-plaintiffs under 29 U.S.C. § 216(b).”
133 S. Ct. at 1527 n.1.
46            UNITED STATES V. SANCHEZ-GOMEZ

become parties to a collective action only by filing written
consent with the court.” Id. (citation omitted). The Court
concluded that, even if the original plaintiff “were to secure
a conditional certification ruling on remand, nothing in that
ruling would preserve her suit from mootness.” Id. In other
words, because no claimants had opted into the collective
action, a court could not consider their interests in
determining whether the plaintiff’s suit was moot.

    Relying on Gerstein, the plaintiff in Genesis Healthcare
argued that in “inherently transitory” cases, a court could give
the plaintiff an opportunity to complete the § 216(b)
collective action process. Id. at 1530–31. If the court granted
the conditional certification and employees subsequently
joined the collective action, the plaintiff argued, the court
should then “relate back” this successful creation of a
collective action to the date the original plaintiff filed the
complaint. Id. The Court did not rule on this suggestion,
however, because the plaintiff’s action in that case was not
transitory in nature. Id. at 1531.4 But even this argument
rested on the proposition that, at some point in time, multiple
plaintiffs with live cases and controversies would be parties
to the action before the court, which would overcome the
mootness of the original plaintiff’s claim.

    As the Supreme Court’s cases make clear, a necessary
prerequisite to applying the mootness doctrine applicable to

     4
      Because Genesis Healthcare rejected the plaintiff’s argument on this
ground, it provides no support for the majority’s extension of the relation
back doctrine to a criminal defendant’s claim within his or her criminal
case. Contrary to the majority’s suggestion that the Court’s silence equals
permission, Maj. op. at 18–19, Genesis Healthcare consistently refers to
the relation back doctrine as applying only to class actions. 133 S. Ct. at
1530–31.
            UNITED STATES V. SANCHEZ-GOMEZ                    47

Rule 23 class actions is the existence of a procedural
mechanism, such as Rule 23 or perhaps § 216(b), that allows
a court to aggregate the claims of multiple potential claimants
and make them parties to the legal action. See id. at 1530
(stating that the “essential” aspect of Sosna and its progeny
“was the fact that a putative class action acquires an
independent legal status once it is certified”). Contrary to the
majority’s “functional class action” theory, it is not enough
for a party to assert an inherently transitory claim on behalf
of others; there must be a statutory or procedural mechanism
that aggregates their claims before the court. See id.
(characterizing the “line of cases” of which Gerstein is a part
as applying to “an ‘inherently transitory’ class-action claim,”
not to all inherently transitory claims). Indeed, the Supreme
Court has never suggested that “unjoined claimants” could
prevent the named plaintiff’s case from becoming moot. See
id. at 1531. For example, even though a collective action
under the FLSA shares certain features of a class action, the
class action mootness rules cannot apply unless and until the
collective action includes the interests of other employees
who have joined the action. See id. at 1530.

    The majority’s “functional class action” theory cannot
create a class that has an independent legal status, whether
under Rule 23 or otherwise. Nor does it have the effect of
joining any additional criminal defendants as parties to this
action. Accordingly, there are no parties before the court
with a live case or controversy who could prevent the action
from becoming moot. Gerstein merely allows a court that
certifies a class to relate the existence of the class back to an
earlier point in time, when a named party had a live claim.
See id. at 1530–31. Because there is no class action
counterpart in the Federal Rules of Criminal Procedure, nor
an analogous means of aggregating multiple criminal
48          UNITED STATES V. SANCHEZ-GOMEZ

defendants for class-wide resolution of common claims in the
context of federal prosecutions, there is nothing a court can
“relate back” after a criminal defendant’s individual claim
becomes moot. Accordingly, we must apply “the usual rule
that litigation is conducted by and on behalf of the individual
named parties only.” Califano v. Yamasaki, 442 U.S. 682,
700–01 (1979). The majority’s reliance on Gerstein is
therefore to no avail. Although criminal defendants could
bring civil actions as a class under Rule 23, cf. Gerstein,
420 U.S. at 106–07, a defendant in a criminal prosecution
cannot, through his or her individual case, represent and bind
other criminal defendants.

    The majority argues that “the rule in Gerstein doesn’t turn
on the presence of a procedural device like Rule 23,” but
instead is a free-floating means of “resolv[ing] the problem
of inherently transitory claims while ensuring there is a live
controversy to which the court can provide relief.” Maj. op.
at 18. To the extent the majority means that a federal court
can decide a moot claim merely because it is transitory, the
majority’s theory is clearly contrary to the Constitution’s
case-or-controversy requirement. See Murphy, 455 U.S. at
481–82 (holding, in a post-Gerstein case, that a pretrial
detainee’s individual transitory claim became moot “once he
was convicted”). Rather, the Supreme Court has been careful
to require a live case or controversy pending before the court
through a class action that aggregates the claims of multiple
parties. See, e.g., Genesis Healthcare, 133 S. Ct. at 1530–31
(characterizing the “line of cases” of which Gerstein is a part
as applying to “class-action claim[s]”); McLaughlin, 500 U.S.
at 51–52 (applying Gerstein and holding “that by obtaining
class certification, plaintiffs preserved the merits of the
controversy for our review” (emphasis added)); cf. Murphy,
455 U.S. at 481–84 (implicitly rejecting the view expressed
            UNITED STATES V. SANCHEZ-GOMEZ                   49

by the dissenting justice that, under Gerstein, “the formalities
of class certification are unnecessary,” id. at 486 n.3). A
class action’s aggregation of claims solves the problem of
inherently transitory claims because, as long as at least one
member of the class has a live claim, a federal court will have
jurisdiction to resolve it.

    Accordingly, contrary to the majority’s contentions, the
rules for mootness in the class action context do not apply to
the separate actions brought by Morales, Sanchez-Gomez,
Patricio-Guzman, and Ring. Indeed, the majority’s reasoning
on this point is even weaker than the plaintiff’s arguments in
Genesis Healthcare. In that case the plaintiff at least made
allegations pursuant to a federal statute that allowed
collective action. Genesis Healthcare, 133 S. Ct. at 1527.
Here, the criminal defendants did not seek any class or
collective status, nor did the defendants even raise such an
issue before the district court or to us. At best, one might
suggest (as the majority does) that the presence of the Federal
Defenders of San Diego as counsel binds the parties together.
Maj. op. at 19. But not only do the federal public defenders
lack the capacity to aggregate their clients’ claims into an
independent class, Congress has also declined to allow
federal public defenders to bring civil rights claims on behalf
of criminal defendants. See 18 U.S.C. § 3006A(a) (limiting
the scope of representation); id. § 3006A(g)(2)(A) (restricting
federal public defenders from “engag[ing] in the private
practice of law”). Beyond constituting a misapplication of
Supreme Court precedent, the so-called “functional class
action” devised by the majority allows the federal public
defenders to make an end-run around this statutory limitation
by bringing the functional equivalent of a civil rights class
action under the guise of a criminal appeal, without ever
meeting (or even attempting to meet) the requirements of
50            UNITED STATES V. SANCHEZ-GOMEZ

Rule 23. Thus, the majority errs on all fronts: it contravenes
the Constitution, a relevant federal statute, and federal
procedural rules.5

    In addition to its misplaced reliance on Gerstein to
support its “functional class action” theory, the majority’s
reliance on Oregon Advocacy Center v. Mink, 322 F.3d 1101
(9th Cir. 2003), and United States v. Howard, 480 F.3d 1005
(9th Cir. 2007), Maj. op. at 17, is equally erroneous. Oregon
Advocacy Center stands for the unremarkable proposition that
a federally authorized organization established to represent
the rights of people with disabilities has associational
standing to bring a challenge on behalf of mentally
incapacitated defendants. 322 F.3d at 1116. That case was
not moot because the organization was challenging an
ongoing policy causing ongoing harm to the organization’s

     5
       Contrary to the majority’s argument, our “supervisory mandamus
role” does not give us any authority to address moot claims. Maj. op. at
19. As the majority itself acknowledges, “[s]upervisory mandamus cases
require live controversies even when we don’t order a lower court to take
or refrain from a specific action.” Maj. op. at 15 (citing In re United
States, 791 F.3d 945, 952 (9th Cir. 2015)). Indeed, each supervisory
mandamus case that the majority cites involved a live Article III case or
controversy. Will v. United States, 389 U.S. 90, 91 (1967) (ongoing
criminal prosecution for tax evasion); Schlagenhauf v. Holder, 379 U.S.
104, 106–09 (1964) (ongoing diversity personal injury suit); La Buy v.
Howes Leather Co., 352 U.S. 249, 251–54 (1957) (ongoing antitrust suit).
It is true that the Supreme Court’s decisions in these cases constituted
binding precedent and therefore affected persons who were not before the
court; this is the nature of our federal judicial system. But an opinion that
“addresses the harm of a district court policy affecting a huge class of
persons that aren’t parties to the mandamus petition” in a moot case is just
an advisory opinion, Maj. op. at 19, and “[t]he federal courts established
pursuant to Article III of the Constitution do not render advisory
opinions,” Golden v. Zwickler, 394 U.S. 103, 108 (1969) (quoting United
Public Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 89 (1947)).
              UNITED STATES V. SANCHEZ-GOMEZ                         51

constituents. Id. at 1118. There is no such organization in
our case; rather, the only organization involved in this appeal,
the federal public defenders, is precluded from bringing civil
actions, see 18 U.S.C. § 3006A(a), (g)(2)(A), a stark contrast
to the organization in Oregon Advocacy Center, which
Congress had authorized to bring such lawsuits. 322 F.3d at
1113.

    Nor does Howard provide support. Howard erroneously
relied on Oregon Advocacy Center for the proposition that a
case is not moot under the “capable of repetition, yet evading
review” doctrine “when the defendants are challenging an
ongoing government policy.”6 480 F.3d at 1010. As
explained above, this is an erroneous reading of the case,
which involved associational standing. Moreover, Howard’s
ruling is contrary to Supreme Court precedent, which limits
the “capable of repetition, yet evading review” exception to
cases in which there is “a reasonable expectation that the
same complaining party will be subject to the same action
again.”7 Spencer, 523 U.S. at 17 (internal quotation marks


    6
      Howard’s reliance on a case from the D.C. Circuit for the same
proposition is equally mistaken. See Howard, 480 F.3d at 1010 (citing
Ukrainian-Am. Bar Ass’n v. Baker, 893 F.2d 1374, 1377 (D.C. Cir.
1990)). Like Oregon Advocacy Center, Ukrainian-American Bar Ass’n
was a case in which an organization was suing in its own name to
challenge an on-going government policy. 893 F.2d at 1376–77. For that
reason, Ukrainian-American Bar Ass’n was inapposite in Howard, as it is
here.
    7
      Howard’s treatment of the capable of repetition, yet evading review
exception has been rightly criticized elsewhere. See Milwaukee Police
Ass’n v. Bd. of Fire & Police Comm’rs, 708 F.3d 921, 932 (7th Cir. 2013)
(noting that Howard and cases following it “shoehorned ongoing policy
challenges” into the capable of repetition exception even though “the
parties would not otherwise qualify for the exception as articulated
52           UNITED STATES V. SANCHEZ-GOMEZ

and brackets omitted). The majority correctly acknowledges
that this requirement is not met here. Maj. op. at 16. That
acknowledgment should have ended this case, not invited the
majority’s “functional class action” theory.

    In short, the criminal defendants here lack a legally
cognizable interest in this appeal, and there is no reasonable
expectation that they will be subject to the district court’s
restraint policy again. Nor have these defendants brought a
class action under Rule 23 that could be certified, or any
equivalent action that produces “a class with an independent
legal status” or “join[s] additional parties to the action.”
Genesis Healthcare, 133 S. Ct. at 1530. We cannot create
jurisdiction where none exists, but that is precisely what the
majority has attempted to do with its novel and unfounded
“functional class action” theory. Because there is no pretrial
detainee with a live case who is a party to this appeal, this
case must be dismissed as moot.

    Although this appeal should be dismissed, the district
court’s policy is not insulated entirely from judicial review.
For example, we likely would have jurisdiction over a class
action brought by pretrial detainees under Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971), to recover
damages from the individuals implementing the restraint
policy,8 or to seek to enjoin the United States Marshal for the



doctrinally”). The en banc court should have used this case as a vehicle
to overrule Howard’s error, not to entrench it further.
     8
      This should not be read to suggest, however, either that a Bivens
remedy would ultimately be appropriate, or that the government
defendants would be unable to avail themselves of qualified immunity or
other defenses.
            UNITED STATES V. SANCHEZ-GOMEZ                  53

district from carrying out the policy. Cf., e.g., Armstrong v.
Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015)
(noting that federal courts have long had the equitable power
to enjoin unlawful conduct by federal officers); Shields v.
Utah Idaho Cent. R.R. Co., 305 U.S. 177, 183 (1938)
(similar); see also 5 U.S.C. § 702 (waiving sovereign
immunity for such claims). Alternatively, the Ninth Circuit
could exercise its supervisory powers by issuing appropriate
guidance through the judicial council of the circuit. See
28 U.S.C. § 332(d)(1). It is unfortunate that the majority does
not deem these procedurally sound avenues of redress even
worthy of mention.

                              III

    Because each of the defendants’ appeals is moot, it is
irrelevant whether their appeals are treated as petitions for a
writ of mandamus, as the majority does, Maj. op. at 11–14, or
as appeals of collateral orders. In either case, we lack
jurisdiction under Article III to consider their claims.

    Nevertheless, even if this case were not moot, the
defendants’ appeals do not meet the requirements for granting
a writ of supervisory mandamus, as the majority claims. Maj.
op. at 13. Even when “the underlying proceeding is a
criminal prosecution,” the writ may issue only when a district
court has engaged in “willful disobedience of the rules laid
down by” the Supreme Court, or “adopted a deliberate policy
in open defiance of the federal rules.” Will v. United States,
389 U.S. 90, 96, 100, 102 (1967). Only such “exceptional
circumstances amounting to a judicial ‘usurpation of power’
54            UNITED STATES V. SANCHEZ-GOMEZ

will justify the invocation of this extraordinary remedy.” Id.
at 95.9

    In this case, the district court has not defied a higher court
or the federal rules of procedure. Rather, the district court
complied with our last word on the matter, Howard, 480 F.3d
at 1012–14, in which we held that restraining pretrial
detainees in proceedings before a judge did not violate due
process. The majority therefore oddly equates a good faith
effort to follow our case law with “a persistent disregard” for
our rulings. Will, 389 U.S. at 96. The majority attempts to
distinguish Howard on the ground that the restraints in that
case were not as intrusive as the restraints employed under
the district court’s policy now under review. Maj. op. at 14
n.6. No doubt the majority has detected a factual distinction
between Howard and this case, but the district court’s failure
to anticipate such a distinction (which in any event does not
appear to be constitutionally material) is a far cry from
“willful disobedience” or “open defiance.” Will, 389 U.S. at
100, 102. As in Will, “the most that can be claimed on this
record is that [the district court] may have erred in ruling on
matters within [its] jurisdiction.” Id. at 103–04. The record
here “simply fails to demonstrate the necessity for the drastic
remedy employed by” the majority. Id. at 104.



     9
       The majority suggests that because Will raised “concerns about
speedy trials and double jeopardy” that are not present here, the
mandamus principles discussed in Will are not applicable. Maj. op. at 14
n.5. But Will merely applied the Supreme Court’s general mandamus
principles that are applicable in civil and criminal cases alike. See, e.g.,
La Buy, 352 U.S. at 257–58 (holding that supervisory mandamus “should
be resorted to only in extreme cases” such as where “the Court of Appeals
has for years admonished the trial judges” not to engage in a particular
practice).
               UNITED STATES V. SANCHEZ-GOMEZ                             55

                                     IV

    Because the individual appeals brought by Morales,
Sanchez-Gomez, Patricio-Guzman, and Ring are moot, we
should not rule on the merits of their arguments that pretrial
detainees have a due process right to be free of bodily
restraints in pretrial hearings before only a judge.
Nevertheless, after proceeding to address the merits, the
majority announces a new rule of constitutional criminal
procedure that is contrary to Supreme Court precedent,
creates a split with the Second and Eleventh Circuits, and
puts trial courts throughout this circuit at risk. These errors
warrant brief mention.10

                                     A

    The question presented on the merits is whether the
Constitution precludes placing restraints on detainees during
pretrial proceedings before a judge in the absence of a special
need. The majority analyzes this question under Deck v.
Missouri, in which the Supreme Court considered “whether
shackling a convicted offender during the penalty phase of a
capital case violates the Federal Constitution.” 544 U.S. 622,
624 (2005). Deck determined that a rule precluding the


    10
       Judge Schroeder’s concurrence faults the analysis that follows as
“lack[ing] sensitivity to two of the most important components of our
system of justice,” the dignity of court proceedings and the proper role of
judges in managing their courtrooms. Concurrence at 34. It is the
majority, however, that “lacks sensitivity to the proper role of . . . judges”
in our constitutional system, id., by contravening the “minimum
constitutional mandate” that “[t]he Art. III judicial power exists only to
redress or otherwise to protect against injury to the complaining party,
even though the court’s judgment may benefit others collaterally,” Warth
v. Seldin, 422 U.S. 490, 499 (1975).
56          UNITED STATES V. SANCHEZ-GOMEZ

“routine use of visible shackles during the guilt phase” had
“deep roots in the common law.” Id. at 626. In reaching this
conclusion, Deck considered treatises on the common law,
18th century English cases, state and federal court opinions
adhering to the common law rule, and the Court’s own prior
cases. Id. at 626–29. From these authorities, Deck concluded
that the rule against using visible shackles before a jury was
“a principle deeply embedded in the law” and enshrined in
the protections of the Fifth and Fourteenth Amendments. Id.
at 629. Ultimately, Deck held that “[t]he considerations that
militate against the routine use of visible shackles during the
guilt phase of a criminal trial apply with like force to penalty
proceedings in capital cases.” Id. at 632. In light of a
defendant’s right to secure a meaningful defense, the need to
maintain dignified proceedings, and the concern that visible
restraints had the potential to prejudice the jury, the Court
concluded that “courts cannot routinely place defendants in
shackles or other physical restraints visible to the jury during
the penalty phase of a capital proceeding.” Id. at 632–33.

    If we apply Deck to the merits question here, we should
begin by asking whether the common law rule identified in
Deck extends to placing restraints on detainees during pretrial
proceedings where there is no jury. Deck itself answers that
question:    “Blackstone and other English authorities
recognized that the rule did not apply at ‘the time of
arraignment,’ or like proceedings before the judge.” Id. at 626
(quoting 4 W. Blackstone, Commentaries on the Laws of
England 317 (1769) and citing Trial of Christopher Layer, 16
How. St. Tr. 94, 99 (K.B. 1722) (Layer’s Case)). Instead,
Deck explained that the rule “was meant to protect defendants
appearing at trial before a jury.” Id. (citing King v. Waite,
1 Leach 28, 36, 168 Eng. Rep. 117, 120 (K.B. 1743)). In
other words, there is no rule regarding restraints on pretrial
           UNITED STATES V. SANCHEZ-GOMEZ                  57

detainees in non-jury proceedings that has “deep roots in the
common law.” Id.

    The majority dismisses this conclusion as “undoubtedly
dictum” and “contradicted by the very sources on which the
Supreme Court relied.” Maj. op. at 27. These rationalizations
do not hold water.

    First, Deck’s statement that the common law rule
regulating shackling did not apply at arraignments is not mere
dictum, as it responds to arguments raised by the dissent
about the rule’s scope and purpose. Justice Thomas’s dissent
argued that the purpose of the English common law rule
against leaving a criminal defendant in irons for trial was to
ensure that the defendant “was not so distracted by physical
pain during his trial that he could not defend himself,” and
accordingly modern restraints (which do not cause pain) “do
not violate the principle animating the common-law rule.”
Deck, 544 U.S. at 638, 640 (Thomas, J., dissenting). To
support this point, Justice Thomas noted that because a
defendant was not required to “play the main role in
defending himself” at the arraignment, courts were not
concerned about a defendant’s being distracted by pain. Id.
at 639–40 (Thomas, J., dissenting). Therefore, “the rule
against shackling did not extend to arraignment.” Id. at 639
(Thomas, J., dissenting). In its analysis, the Deck majority
conceded the dissent’s historical point regarding shackling at
arraignments, id. at 626 (majority opinion), but responded
that although “[j]udicial hostility to shackling may once
primarily have reflected concern for the suffering,” current
opinions “have not stressed the need to prevent physical
suffering,” but have looked at other legal principles, id. at
630. In light of this implicit give-and-take between the Deck
majority and dissent, it is apparent that Deck’s conclusion
58          UNITED STATES V. SANCHEZ-GOMEZ

regarding shackling during arraignments is a considered
concession of the dissent’s historical point. Contrary to the
majority, Maj. op. at 26 n.11, Deck’s responsive historical
analysis is part of its holding, as it bears on Deck’s
delineation of the scope of the common law rule that
constitutes due process under the Constitution. But even if
Deck’s guidance were dicta, the majority’s rejection of the
Supreme Court’s clear conclusion is contrary to our long
established precedent that “Supreme Court dicta have a
weight that is greater than ordinary judicial dicta” and
therefore “we do not blandly shrug them off.” United States
v. Montero-Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir.
2000) (en banc) (internal quotation marks omitted).

    Second, Deck’s determination on this issue is not
contradicted by the historical sources, as the majority seems
to believe. Maj. op. at 26–31. In reaching its conclusion that
the common law rule applied when the defendant was in the
presence of the jury, but not “at ‘the time of arraignment,’ or
like proceedings before the judge,” Deck undertook an in-
depth historical analysis, considering Blackstone’s
Commentaries on the Laws of England, original sources
setting forth the rule, see Layer’s Case, 16 How. St. Tr. at 99;
Waite, 1 Leach at 36, and state court cases recognizing the
distinction that Blackstone drew, see Parker v. Territory,
5 Ariz. 283 (1898); People v. Harrington, 42 Cal. 165 (1871).
Deck, 544 U.S. at 626–27. The majority claims that
“Blackstone did not recognize that the rule against shackles
didn’t apply at the time of arraignment or proceedings before
a judge,” but that “[s]hackles at arraignment and pretrial
proceedings are acceptable only in situations of escape or
danger.” Maj. op. at 28 (emphasis omitted). This is
incorrect: Blackstone acknowledged a distinction between
arraignment and trial made in Layer’s Case. While
             UNITED STATES V. SANCHEZ-GOMEZ                        59

Blackstone stated the general rule that a prisoner “must be
brought to the bar without irons, or any manner of shackles or
bonds,” he then observed that “in Layer’s Case, A.D. 1722,
a difference was taken between the time of arraignment, and
the time of trial; and accordingly the prisoner stood at the bar
in chains during the time of his arraignment.”11 5 William
Blackstone & St. George Tucker, Blackstone’s Commentaries
with Notes of Reference 322 (1803).

     Moreover, the text of Layer’s Case better supports
Blackstone’s analysis. When announcing his decision to keep
Layer fettered during his arraignment, the Lord Chief Justice
first rejected Layer’s reliance on Cranburne’s Case for the
proposition that restraints were not permitted at arraignments.
Layer, 16 How. St. Tr. at 100. Instead, the Lord Chief Justice
ruled that Cranburne’s Case governed only those cases
“when the party was called upon to plead, and was tried at the
same time.” Id. The Lord Chief Justice then reasoned that
the defendant should be free from chains when he comes to
trial so he “should have the use of his reason, and all
advantages to clear his innocence.” Id. In pretrial
proceedings, however, “he is only called upon to plead by
advice of his counsel” and is not to be tried, so there was no
reason for “his chains to be taken off this minute, and to be
put on again the next,” when he is returned to confinement.
Id. at 100–01. This passage supports Blackstone’s analysis,
as well as that of the Deck majority and dissent; the concern
was not with escape, but with the practicalities of removing
restraints for a hearing of limited purpose and duration. See
Deck, 544 U.S. at 626; id. at 639 n.2 (Thomas, J., dissenting)


    11
      William Hawkins noted this same distinction, also in reliance on
Layer’s Case. 2 William Hawkins, A Treatise on the Pleas of the Crown
437 (1787).
60          UNITED STATES V. SANCHEZ-GOMEZ

(“When arraignment and trial occurred on separate occasions,
the defendant could be brought to his arraignment in irons.”).

    After the decision in Layer’s Case, the same rule was
stated in King v. Waite, in which “[t]he prisoner, at the time
of his arraignment, desired that his irons might be taken off.”
1 Leach 28, 36 (K.B. 1743). The court informed him,
however, that it “had no authority for that purpose until the
Jury were charged to try him.” Id. So the prisoner pleaded
guilty, “and being put upon his trial, the Court immediately
ordered his fetters to be knocked off.” Id.

    As the common law developed in this country, state
courts and treatises interpreted Layer’s Case and other
common law sources as Deck did, namely as distinguishing
the use of restraints during an arraignment from their use
during trial. In Lee v. State, for example, the Mississippi
Supreme Court noted that Layer’s Case and Waite’s Case
both distinguished between arraignment (where shackles were
generally allowed) and trial (where shackles were not allowed
except for good cause). 51 Miss. 566, 571 (1875). Lee
interpreted the Lord Chief Justice’s references to Layer’s
possible escape as relevant only to his decision to reject
Layer’s motion to have his restraints removed while in
confinement. According to Lee, the Lord Chief Justice was
concerned that granting such a motion “might be an excuse to
his keeper if he (the prisoner) should escape.” Id. And Lee
concluded that the Lord Chief Justice permitted shackling at
arraignment because “it would be to no purpose to insist on
[unfettering] for so little a time as the prisoner now had to
stand at the bar.” Id. Other state courts similarly recognized
the distinction between arraignment and trial. See, e.g., State
v. Temple, 92 S.W. 869, 872 (Mo. 1906) (noting that in
Layer’s Case, “it was held that the prisoner might be brought
              UNITED STATES V. SANCHEZ-GOMEZ                            61

ironed to the bar for arraignment, but that his shackles must
be stricken off at the trial,” without reference to concerns
regarding escape during proceedings); Rainey v. State,
20 Tex. App. 455, 472 (1886) (citing a treatise for the
proposition that prisoners may not be shackled during trial,
except in unusual cases, “[t]hough the rule at arraignment
where only a plea is required is less strict”). Indeed, some
state courts have interpreted Layer’s Case as establishing a
new common law rule, in contradistinction to a prior common
law rule that defendants were generally not shackled at
arraignment. See, e.g., Harrington, 42 Cal. at 167 (“[P]rior
to 1722, when a prisoner was arraigned, or appeared at the
bar of a Court to plead, he was presented without manacles or
bonds, unless there was evident danger of his escape.”);
Parker, 5 Ariz. at 287 (same).12

    Rather than follow Deck, Blackstone, and these early state
decisions, the majority provides its own interpretation of
Layer’s Case, arguing that the Lord Chief Justice held Layer
in chains only because Layer had previously attempted to
escape. Maj. op. at 28–29. As explained above, this is not a
persuasive reading of the case.13 But even if the majority’s

    12
       The majority makes the strange accusation that this analysis of state
court cases is flawed because it “cites no secondary sources.” Maj. op. at
30 n.13. The primary sources cited here, however—actual judicial
opinions—read Layer’s Case as Blackstone and Deck read them. If
secondary sources have derived a different rule, this again suggests, at
most, that the common law is ambiguous. It is precisely because of this
ambiguity that we should follow the Supreme Court’s interpretation in
Deck, rather than adopt a contrary view that the Court has rejected.
    13
       The majority contends that my interpretation of Layer’s Case
“struggles manfully against the plain language of Layer’s case and
Blackstone.” Maj. op. at 29. Rather than struggling—manfully or
otherwise—with Layer’s Case, I would merely follow the Supreme
62            UNITED STATES V. SANCHEZ-GOMEZ

interpretation of Layer’s Case were also plausible, a
reasonable difference in interpretations supports (at most) a
conclusion that the case is ambiguous, and we should not
ignore the Supreme Court’s resolution of an ambiguous issue.
Even less should we reprimand a district court through
mandamus for failing to anticipate that we would do so.

    Besides being ill-considered, the majority’s decision to
ignore Supreme Court direction also creates a circuit split,
again contrary to our precedent. See United States v.
Gwaltney, 790 F.2d 1378, 1388 n.4 (9th Cir. 1986)
(“Unnecessary conflicts among the circuits are to be
avoided.”); see also United States v. Alexander, 287 F.3d 811,
820 (9th Cir. 2002) (“[A]bsent a strong reason to do so, we
will not create a direct conflict with other circuits.” (quoting
United States v. Chavez-Vernaza, 844 F.2d 1368, 1374 (9th
Cir. 1988))). In Zuber, the Second Circuit held that because
juror bias “constitutes the paramount concern” in a physical
restraint case, and because judges are assumed not to be
prejudiced “by impermissible factors,” 118 F.3d at 104, it did
not violate due process “for a trial judge (in the absence of the
jury) to defer to the judgment of the U.S. Marshals Service
without comment or extended colloquy” on the issue of
restraints, id. at 103 n.2. Thus, the Second Circuit concluded
that “the rule that courts may not permit a party to a jury trial
to appear in court in physical restraints without first
conducting an independent evaluation of the need for these


Court’s interpretation of Layer’s Case, which is well supported by the text
and relevant primary and secondary sources. As noted above, the Court
relied on Layer’s Case for the proposition that “Blackstone and other
English authorities recognized that the rule [against shackling] did not
apply at ‘the time of arraignment,’ or like proceedings before the judge.”
Deck, 544 U.S. at 626. It is the majority that struggles to bypass the
Supreme Court’s considered statement.
            UNITED STATES V. SANCHEZ-GOMEZ                  63

restraints does not apply in the context of a non-jury
sentencing hearing.” Id. at 102. Reaching a similar
conclusion, the Eleventh Circuit, after reviewing Deck,
Blackstone, and Layer’s Case, held that “the rule against
shackling pertains only to a jury trial” and “does not apply to
a sentencing hearing before a district judge.” United States
v. LaFond, 783 F.3d 1216, 1225 (11th Cir. 2015), cert.
denied, 136 S. Ct. 213 (2015). The logic of both Zuber and
LaFond is, as the majority recognizes, directly contrary to the
rule announced today. Maj. op at 22–23 n.8.

    Were we empowered to decide this case, we should join
our sister circuits in following Deck’s reading of the common
law, rather than inventing a new right out of whole cloth.
Deck establishes that there is no common law rule against the
use of restraints during pretrial proceedings. 544 U.S. at 626.
Moreover, as indicated in Zuber, there is no danger that the
presumption of innocence or the dignity of the courtroom is
undermined in the eyes of the jury when pretrial detainees
appear in restraints before a judge. 118 F.3d at 103 n.2. Nor
have the defendants here indicated that the restraints used in
their cases interfered with their ability to communicate with
their lawyers or participate in their own defenses. Deck,
544 U.S. at 631. The rule sought by the defendants has no
pedigree, nor does it protect a well-established right.
Accordingly, it cannot be “objectively, ‘deeply rooted in this
Nation’s history and tradition,’” Washington v. Glucksburg,
521 U.S. 702, 720–21 (1997) (quoting Moore v. City of East
Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)),
such that the Due Process Clause requires it, contra Maj. op.
at 25. The majority’s contrary conclusion grows not from the
“deep roots” of the common law, Deck, 544 U.S. at 626, but
from the majority’s own hothouse.
64          UNITED STATES V. SANCHEZ-GOMEZ

                              B

    Putting aside the majority’s mistreatment of Deck, the
appropriate framework for resolving this claim is provided by
Bell v. Wolfish. In Bell, pretrial detainees brought a class
action to challenge the conditions of their confinement at a
federal pretrial detention center. 441 U.S. 520, 523 (1979).
The district court granted sweeping relief, which the Second
Circuit affirmed in large part. Id. at 523–24. In reviewing
this relief, the Supreme Court set up the framework for
analyzing constitutional claims by pretrial detainees
challenging their conditions of confinement. Because Deck
by its terms does not apply to the situation presented here,
Deck, 544 U.S. at 626, we ought to apply the general
framework for pretrial detention claims that Bell establishes.

     Three of Bell’s principles bear mentioning in this case.
First, Bell teaches us that although “the presumption of
innocence plays an important role in our criminal justice
system[,] . . . it has no application to a determination of the
rights of a pretrial detainee during confinement before his
trial has even begun.” 441 U.S. at 533. Second, Bell
instructs that pretrial detainment policies “are peculiarly
within the province and professional expertise of corrections
officials, and, in the absence of substantial evidence in the
record to indicate that the officials have exaggerated their
response to these considerations, courts should ordinarily
defer to their expert judgment in such matters.” Id. at 548
(quoting Pell v. Procunier, 417 U.S. 817, 827 (1974)). This
is so even where the officials are “‘experts’ only by Act of
Congress,” because pretrial detainment policies are
“peculiarly the province of the Legislative and Executive
Branches of our Government, not the Judicial.” Id. Finally,
Bell holds that “[i]n evaluating the constitutionality of
            UNITED STATES V. SANCHEZ-GOMEZ                    65

conditions or restrictions of pretrial detention that implicate
only the protection against deprivation of liberty without due
process of law, . . .the proper inquiry is whether those
conditions amount to punishment of the detainee.” Id. at 535.
Because the government’s authority to detain pending trial
extends to its ability “to employ devices that are calculated to
effectuate this detention,” id. at 537, when confronted with a
particular challenged condition, the question for a court is
“whether the disability is imposed for the purpose of
punishment or whether it is but an incident of some other
legitimate governmental purpose,” id. at 538. In the absence
of an intent to punish, a pretrial condition of confinement is
not a “punishment” if it is “reasonably related to a legitimate
governmental objective.” Id. at 539. By contrast, where a
condition is “arbitrary or purposeless,” a court may infer that
the true purpose of the condition is to punish. Id.

    The majority dismisses Bell as inapplicable because “Bell
dealt with pretrial detention facilities, not courtrooms,” and
detention facilities “are meant to restrain and keep order, not
dispense justice.”       Maj. op. at 31.         The majority
acknowledges that Bell may apply beyond the detention
facility walls, see Maj. op. at 32 n.15, but draws a hard line at
the courtroom door, see Maj. op. at 31 n.14. Certainly under
Deck, a pretrial detainee has additional due process rights
when appearing before a jury. But pretrial detainees enjoy no
heightened interests when they appear in court outside of the
presence of a jury. Cf. Zuber, 118 F.3d at 103–04 & n.2. The
government’s interest in securing their presence at trial and
maintaining order and security, however, remains the same
regardless of the location. Thus, as in Bell, the question is
whether these interests justify the government’s restriction on
the liberty of pretrial detainees.
66          UNITED STATES V. SANCHEZ-GOMEZ

     As explained in Bell, the government may restrain
detainees to ensure they will be available for trial, 441 U.S.
at 539, and may take certain steps necessary to “maintain
security and order,” id. at 540. Bell’s central lesson is that the
reasonable pursuit of these objectives through restrictions on
detainees’ liberty interests, without more, does not rise to a
constitutional violation. Id. at 539. This logic applies beyond
the detention facility itself. For example, the government
must often ensure that detainees appear at pretrial
proceedings. See Fed. R. Crim. P. 10 (providing that a
defendant must be physically present at arraignment absent an
express waiver of his or her right to appear or express consent
to video teleconferencing). But even when detainees are
outside the walls of a particular detention facility, they are
still subject to detention, and the government maintains a
compelling interest in securing their ultimate presence for
trial. Cf. Brothers v. Klevenhagen, 28 F.3d 452, 457 (5th Cir.
1994) (holding that pretrial detainee status “never reverts
back” to a greater degree of protection “[u]ntil the detainee is
released from custody”). Thus, pretrial detainees remain
detained while they are in a vehicle transporting them to and
from the courthouse, in a holding cell in the courthouse, in
any outdoor areas, and even in the courtroom itself. Cf.
Beaulieu v. Ludeman, 690 F.3d 1017, 1031–33 (8th Cir.
2012) (upholding under Bell a policy of placing civilly
committed detainees in full restraints whenever being
transported). In each area, the detainee is subject to
reasonable government control aimed at securing his or her
presence at trial and his or her orderly and safe interaction
with other detainees.

    Viewed in this light, the merits of this case would not be
difficult, were we empowered to reach it. Because the
pretrial detainees are outside the presence of a jury, the
            UNITED STATES V. SANCHEZ-GOMEZ                     67

majority’s rhetoric about the presumption of innocence, Maj.
op. at 22, has no place in the analysis. Bell, 441 U.S. at 533.
Moreover, because there is no allegation that the restraint
policy is intended as a punishment, the question is simply
whether requiring detainees to wear restraints while attending
their pretrial hearings “is reasonably related to a legitimate
governmental objective.” Id. at 539. Here, it clearly is. To
the extent the restraints reduce the likelihood of an escape,
they further the government’s interest in ensuring that
detainees will appear at trial. See id. Similarly, given the
history of detainee-related assaults and weapons smuggling
in the Southern District of California, the restraints are
reasonably related to the government’s interest in maintaining
order and safety among its detainees. Cf. id. at 540 (“[T]he
Government must be able to take steps to maintain security
and order at the institution and make certain no weapons or
illicit drugs reach detainees.”). Requiring detainees to appear
at pretrial hearings in restraints is therefore reasonably related
to the government’s valid interests, and the policy is
accordingly a constitutionally permissible condition of
pretrial confinement. See id.

    Making this case even simpler, the district court’s
deference to the Marshals Service, the entity that Congress
statutorily charged with providing courtroom security,
28 U.S.C. § 566(a), is consistent with the Marshals Service’s
role as an expert entity charged with securing courtrooms and
managing pretrial detainees during their court appearances.
As the expert on courtroom security, the Marshals Service is
due “wide-ranging deference” absent “substantial evidence in
the record to indicate that the officials have exaggerated their
response” to the problems they seek to solve. Bell, 441 U.S.
at 547, 548. Because there is no substantial evidence on this
record that the Marshals Service is punishing detainees by
68            UNITED STATES V. SANCHEZ-GOMEZ

restraining them or otherwise imposing conditions of
confinement unrelated to the government’s legitimate
interests, the challenged policy is not an unconstitutional
condition of detention. Accordingly, the district court’s
deference to the Marshals Service’s recommendation does not
violate the pretrial detainees’ constitutional rights.

    To be sure, “district courts have the inherent authority to
manage their . . . courtrooms,” Dietz v. Bouldin, 136 S. Ct.
1885, 1892 (2016), and some may choose not to defer to the
Marshals Service’s recommendation after a careful balancing
of the need for safety and security of the courtrooms with the
interests of the detainees. These are decisions, however, to be
made by the district courts themselves, taking into account
facts specific to their situations, including such factors as the
adequacy of staffing by security professionals, the
configurations of the courtrooms, and prior experiences.
They are not decisions that should be made by appellate
jurists far removed from the day-to-day administration of
criminal justice.

    By creating a blanket constitutional rule in this moot case,
the majority not only puts federal district courts at risk, but
also restricts the choices that states in this circuit can make to
secure detainees without inviting a lawsuit under § 1983.14


    14
        State courtrooms may face even greater dangers than federal
courthouses. “Federal judges are protected by a dedicated law
enforcement agency, the U.S. Marshals Service,” but “[m]ost state and
local judges are protected by all-purpose local sheriff or police
departments.” Chuck Weller, What Judges Should Know about Court-
Related Violence, 53 Judges’ J. 28, 30 (2014). Therefore, “[f]ew state and
local judges will ever have the level of protection afforded to their federal
counterparts.” Id. Indeed, a mere matter of months ago, a pretrial
detainee in Michigan who was handcuffed, but not secured with a belt
              UNITED STATES V. SANCHEZ-GOMEZ                           69

The ramifications of the majority’s holding will reach into
courthouses of every size and capacity, yet the majority never
once pauses to consider the consequences of its one-size-fits-
all security decree. Indeed, the majority fails even to
consider the evidence on this particular record that the
Marshals Service is unable to make well-founded individual
judgments about what threat, if any, a pretrial detainee poses.
Instead, the majority lays down the rule that the Marshals
Service can either do the impossible (predict risks based on
a dearth of predictive information) or sit idly by and suffer an
identifiable, compelling harm (violence in the courtroom).
The majority’s rule therefore fails not only as a matter of law,
but also as a matter of common sense.

                                    V

    The majority’s analysis is wrong at every turn. It
contradicts the Supreme Court’s rulings on mootness,
mandamus, and the merits, and it substitutes the supposed
wisdom of the ivory tower for the expertise of the United
States Marshals Service and the district courts themselves.
Because the four defendants whose criminal appeals are
before us have now long since passed through the federal
criminal justice system, we should dismiss these appeals as
moot, rather than use them as improper vehicles to make a
constitutional ruling as sweeping as it is erroneous. I dissent.




apparatus that the majority maligns, Maj. op. at 7, managed to disarm a
sheriff’s deputy, kill two bailiffs, shoot a bystander in the arm, and take
hostages. See Associated Press, Sheriff: Inmate who killed 2 at Michigan
courthouse was handcuffed, Chicago Tribune (July 12, 2016), available
at http://www.chicagotribune.com/news/nationworld/midwest/ct-
michigan-courthouse-shooting-20160712-story.html.
