                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,              
                Plaintiff-Appellee,          No. 03-50524
               v.                             D.C. No.
JESSE LEE HOWARD,                          CR-03-00390-GAF
             Defendant-Appellant.
                                       

UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,         No. 03-50525
                v.                            D.C. No.
JOSE LUIS FARIAS-BLANCO,                    03-0861M-ABC
              Defendant-Appellant.
                                       

UNITED STATES OF AMERICA,              
                Plaintiff-Appellee,          No. 03-50526
               v.                             D.C. No.
JOSE ANGEL CEDILLOS,                        03-0890M-ABC
             Defendant-Appellant.
                                       

UNITED STATES OF AMERICA,              
                Plaintiff-Appellee,          No. 03-50527
               v.                             D.C. No.
ROBERT HERMAN BOULIES,                      03-0945M-ABC
             Defendant-Appellant.
                                       

                            15309
15310             UNITED STATES v. HOWARD



UNITED STATES OF AMERICA,              
                Plaintiff-Appellee,          No. 03-50532
               v.                             D.C. No.
                                             CR-03-00435-
DANIEL RIVERA-GONZALEZ,                         RSWL
             Defendant-Appellant.
                                       

UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                                             No. 03-50533
                v.
                                              D.C. No.
JORGE PINEDA-FERNANDEZ, a/k/a              CR-03-00439-GHK
Jorge Peneda,
              Defendant-Appellant.
                                       

UNITED STATES OF AMERICA,              
                Plaintiff-Appellee,          No. 03-50534
               v.                             D.C. No.
                                             CR-03-00486-
RANDOLPH ARTHUR CISNEROS,                       RSWL
             Defendant-Appellant.
                                       

UNITED STATES OF AMERICA,              
                Plaintiff-Appellee,          No. 03-50535
               v.                             D.C. No.
CORNELIO GARCIA-CHAVEZ,                    CR-03-00493-NMM
             Defendant-Appellant.
                                       
                  UNITED STATES v. HOWARD              15311



UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                v.                           No. 03-50536
JOSE CABANILLAS-NUNEZ, a/k/a Jose             D.C. No.
Arsenio Cabanillas, Jose Arencio           CR-03-00509-DMT
Nunez,
             Defendant-Appellant.
                                       

UNITED STATES OF AMERICA,              
                Plaintiff-Appellee,          No. 03-50537
               v.                             D.C. No.
RAYMOND FLORES,                            CR-03-00516-R-02
             Defendant-Appellant.
                                       

UNITED STATES OF AMERICA,              
                Plaintiff-Appellee,          No. 03-50538
               v.                             D.C. No.
                                           CR-03-00533-FMC-
CHRISTIAN RAUDALES,                               02
             Defendant-Appellant.
                                       

UNITED STATES OF AMERICA,              
                Plaintiff-Appellee,          No. 03-50539
               v.                             D.C. No.
MIGUEL LENCIA,                              03-0858M-ABC
             Defendant-Appellant.
                                       
15312             UNITED STATES v. HOWARD



UNITED STATES OF AMERICA,             
                Plaintiff-Appellee,         No. 03-50540
               v.                             D.C. No.
RAYMOND CAZARES,                            03-089M-ABC
             Defendant-Appellant.
                                      

UNITED STATES OF AMERICA,             
                Plaintiff-Appellee,        No. 03-50541
               v.                           D.C. No.
VERNON CROCKER,                           03-0899M-ABC
             Defendant-Appellant.
                                      

UNITED STATES OF AMERICA,             
                Plaintiff-Appellee,         No. 03-50542
               v.                           D.C. No.
LORENA GALLARDO,                          03-0944M-ABC
             Defendant-Appellant.
                                      

UNITED STATES OF AMERICA,             
                Plaintiff-Appellee,        No. 03-50543
               v.                           D.C. No.
JEFFREY DARRYL WAFER,                     03-0860M-ABC
             Defendant-Appellant.
                                      
                  UNITED STATES v. HOWARD             15313



UNITED STATES OF AMERICA,                 No. 03-50544
                Plaintiff-Appellee,
               v.                           D.C. No.
                                          03-0896M-ABC
PEDRO F. SANDOVAL-SANDOVAL,
             Defendant-Appellant.
                                      

UNITED STATES OF AMERICA,                 No. 03-50545
                Plaintiff-Appellee,
               v.                           D.C. No.
                                          03-0942M-ABC
CARLOS ALVAREZ,
                                             OPINION
            Defendant-Appellant.
                                      
       Appeal from the United States District Court
          for the Central District of California
       Audrey B. Collins, District Judge, Presiding

                Argued and Submitted
         November 1, 2004—Pasadena, California

                 Filed November 15, 2005

Before: Mary M. Schroeder, Chief Judge, Ronald M. Gould
         and Richard R. Clifton, Circuit Judges.

            Opinion by Chief Judge Schroeder;
                 Dissent by Judge Clifton
                   UNITED STATES v. HOWARD                15317


                         COUNSEL

David S. McLane, Pasadena, California, for the defendants-
appellants.

William Crowfoot, Assistant United States Attorney, Los
Angeles, California, for the plaintiff-appellee.


                          OPINION

SCHROEDER, Chief Judge:

   This is an interlocutory appeal by criminal defendants chal-
lenging a requirement that pretrial detainees making their first
appearance before a magistrate judge wear leg shackles. The
district-wide shackling policy was implemented by the United
States Marshals Service for the Central District of California
after consultation with the magistrate judges. In each of these
seventeen cases, the magistrate judge denied the Federal Pub-
lic Defender’s motion for the defendant to appear without
shackles at the initial appearance. The district court reviewed
15318              UNITED STATES v. HOWARD
these adverse magistrate judges’ rulings in a consolidated
appeal. The district court, citing general safety concerns,
affirmed the magistrate judges’ shackling decisions. The
record contains no documentation or explanation of specific
problems that led up to the enactment of the shackling policy.

   Before reaching the merits of the case, we must deal with
appellate jurisdictional obstacles raised by the government.
These are questions of mootness and appellate jurisdiction
over interlocutory orders. We conclude that the case is not
moot because the issues are capable of repetition and will oth-
erwise evade review, and that we have appellate jurisdiction
to review the orders that finally dispose of issues collateral to
the merits of the cases.

   On the merits, because it is undisputed that the policy
effectuates a diminution of the liberty of pretrial detainees and
distracts from the dignity and the decorum of a critical stage
of a criminal prosecution, we conclude that the shackling pol-
icy requires adequate justification of its necessity. On the
basis of the limited record before us, we conclude we must
vacate the district court’s order upholding the policy, but we
do not preclude the reinstatement of a similar policy upon a
reasoned determination that it is justified on the basis of past
experiences or present circumstances in the Central District.

                      BACKGROUND

   Defendants appeal the denial of their motions to appear
unshackled before various magistrate judges of the Central
District of California during defendants’ initial appearances.
As part of the policy of the United States Marshals Service for
the Central District of California, in-custody defendants are
shackled in leg restraints for their initial appearances in front
of magistrate judges. According to the district court, magis-
trate judges at the initial appearance read defendants their
rights, confirm that defendants have received a copy of the
complaint or indictment stating the charges against them,
                   UNITED STATES v. HOWARD                 15319
appoint counsel to represent the indigent defendants, set dates
for preliminary hearings and post-indictment arraignment, and
make preliminary determinations of bond and detention
issues. In some cases, the initial appearance includes an evi-
dentiary detention hearing with testimony by lay witnesses or
law enforcement officers.

   The record contains little evidence about the history of the
shackling policy. The policy was enacted in April of 2003 by
the United States Marshals Service for the Central District of
California. The record indicates that the Marshals Service
consulted with the magistrate judges before enacting the pol-
icy, although it is not clear to what extent. The record also
indicates that, historically, defendants in the district generally
were not shackled at initial appearances, although there
appears to have been at least some period in the past when
defendants were both shackled and handcuffed at initial
appearances.

   There is little in the record to explain why this policy was
adopted. The record does not indicate whether any other dis-
trict in this or other circuits has a similar policy. This record
contains the declaration of Robert Masaitis, Chief Deputy
United States Marshal for the Central District of California.
He states that “it is not possible to conduct an individualized
analysis of a defendant at the time of the initial appearance,”
and further states that the shackling policy is necessary to
ensure safety and order in the courtroom. He also states that
the need for full restraints is enhanced by the current staffing
shortages in the Marshals Service. The declaration does not
discuss any more specific security problems that the policy
was intended to address, or any incidents that preceded the
enactment of the policy.

   We also have a memorandum from Adam N. Torres,
United States Marshal for the Central District of California,
to the district court judges detailing an incident in one district
court judge’s courtroom in June of 2003. That incident did not
15320              UNITED STATES v. HOWARD
relate to a first appearance, but involved conduct of a defen-
dant who was restrained during the reading of his jury verdict
of conviction after he verbally attacked Assistant United
States Attorneys and an FBI Agent.

   In each of these consolidated cases, the defendant was rep-
resented by the Federal Public Defender and made his initial
court appearance shackled. The Federal Public Defender
moved that the defendant be permitted to appear without
shackles. In some cases, the magistrate judges allowed the
Federal Public Defender to argue the motion. In no case did
the magistrate judge hold an evidentiary hearing on the
motion. The magistrate judge denied the motion in each case.

   In a consolidated appeal from interlocutory orders, the Fed-
eral Public Defender sought district court review of the mag-
istrate judges’ denials of the motions. The district court,
without a hearing, affirmed the magistrate judges’ shackling
decisions. It noted that shackling may indeed detract from the
dignity and decorum of judicial proceedings, but concluded
that safety interests outweighed this concern. The district
court noted that any other potential problems with shackling
could be addressed in an individual case, if necessary. There-
fore, the district court held that the policy did not deprive the
defendants of their due process rights. This consolidated
appeal followed.

                         MOOTNESS

  [1] The government argues that this case is moot because
no effective relief can be ordered at this stage for these defen-
dants whose criminal pretrial proceedings are over. See Bern-
hardt v. County of Los Angeles, 279 F.3d 862, 871 (9th Cir.
2002). Article III, Section 2 of the Constitution limits federal
court jurisdiction to “cases” and “controversies.” This case or
controversy requirement exists through all stages of federal
judicial proceedings. Spencer v. Kemna, 523 U.S. 1, 7 (1998).
A number of doctrines have developed, however, to permit
                   UNITED STATES v. HOWARD                 15321
courts to review a case in which it is no longer possible to
remedy the particular grievance giving rise to the litigation.

   [2] One is the exception to the mootness doctrine for viola-
tions “capable of repetition yet evading review.” See, e.g.,
Gerstein v. Pugh, 420 U.S. 103, 111 n.11 (1975). This is such
a case. In Gerstein, the Supreme Court stated that very brief
pretrial detention is by nature temporary, because it is most
unlikely that any given individual could have his constitu-
tional claim decided on appeal before he is released or con-
victed. Id. There the Supreme Court held the exception to the
mootness doctrine for violations “capable of repetition yet
evading review” applied because the constitutional violation
was likely to be repeated, but would not last long enough to
be reviewed before becoming moot. Id.

   [3] An initial proceeding in a criminal case is even more
temporary than the pretrial detention at issue in Gerstein. This
case evades review for essentially the same reason. The
defendants could not have brought the challenges to the
shackling by the magistrate judge to the district court, much
less to us, before the harm of shackling at the initial proceed-
ing was completed.

   [4] This situation giving rise to this challenge also is capa-
ble of repetition. We acknowledge that we cannot assume that
criminal conduct will be recurring on the part of these defen-
dants. See O’Shea v. Littleton, 414 U.S. 488, 496 (1974). This
case is therefore distinguishable from an abortion case, the
classic case capable of repetition yet evading review, because
we can assume a woman can become pregnant again. See gen-
erally Roe v. Wade, 410 U.S. 113, 125 (1973). This makes no
material difference, however, because a future charge
assuredly will be brought against someone, and the shackling
policy would similarly escape review.

    For this reason, we have held that a case is capable of repe-
tition when the defendants are challenging an ongoing gov-
15322              UNITED STATES v. HOWARD
ernment policy. Oregon Advocacy Cntr v. Mink, 322 F.3d
1101, 1118 (9th Cir. 2003). In Oregon Advocacy Center, the
plaintiffs alleged that the state mental hospital, which was
charged with evaluating and treating mentally incapacitated
defendants, refused to accept the defendants on a timely basis.
Id. at 1105-06. The plaintiffs challenged a state policy that
results in the delays. Id. at 1118. We held that although the
particular situation precipitating a constitutional challenge to
a government policy may have become moot, the case does
not become moot if the policy is ongoing. Id. “The continued
and uncontested existence of the policy that gave rise to [the]
legal challenges forecloses [the] mootness argument.” Id.

   The D.C. Circuit similarly held that when a complaint chal-
lenges an acknowledged government policy, the government
cannot prevail by arguing that the controversy became moot
when the particular situation at issue resolved itself.
Ukranian-American Bar Ass’n v. Baker, 893 F.2d 1374, 1377
(D.C. Cir. 1998). The defendants in this case are challenging
an ongoing government policy.

   [5] As a practical matter, this case is materially similar to
a class action in which the class representative’s claims may
become moot, but there are members of the class whose
claims are not moot. The Supreme Court has held that under
the capable of repetition yet evading review doctrine, the ter-
mination of a class representative’s claim does not moot the
claims of other class members. See Gerstein, 420 U.S. at 111
n.11. This holding applies outside of the class action context
when the circumstances of the case are analogous to those
found in class action cases. Oregon Advocacy Cntr, 322 F.3d
at 1117; see also Gerstein, 420 U.S. at 111 n.11. The defen-
dants in this case are seeking to represent interests broader
than their own, and the attorney bringing the case is a Federal
Public Defender with other clients with a live interest in the
case. See Gerstein, 420 U.S. at 111 n.11; Hawkins v.
Comparet-Cassani, 251 F.3d 1230, 1237 (9th Cir. 2001).
                   UNITED STATES v. HOWARD                 15323
   [6] The government suggests that this kind of blanket chal-
lenge to a procedure used in prosecutions must be brought as
a civil class action rather than within the relevant criminal
proceedings in which it arose. Our case law does not establish
that a civil forum is the exclusive remedy. Indeed, it may be
more appropriate to decide this case in the context of actual
prosecutions rather than by resort to hypotheticals or general-
izations. On a practical level, we must understand that this
particular challenge could not be made in the civil context,
because the only available attorney to represent these criminal
defendants is the Federal Public Defender. The Federal Public
Defender cannot pursue a civil class action on their behalf,
because there is no provision for the appointment of a Federal
Public Defender in a civil action, and the office of Federal
Public Defender is barred from instituting any action on its
own. See 18 U.S.C. § 3006A(a), Administrative Office of the
U.S. Courts, Guide to Judiciary Policies and Procedures,
Vol. VII, Ch. IV. This is still another reason why we should
not hold that this challenge can proceed as only a civil action.

              APPELLATE JURISDICTION

   [7] The government contends that we lack appellate juris-
diction because this is not an appeal from a final district court
judgment, but from a ruling in consolidated interlocutory
appeals. Courts of appeals “shall have jurisdiction of appeals
from all final decisions of the district courts of the United
States.” 28 U.S.C. § 1291. There is an exception to the final
judgment rule for certain interlocutory orders, known as “col-
lateral orders,” where review of a final judgment would be
unavailing. This exception applies when the order (1) will
conclusively determine the disputed question, (2) will resolve
an important issue completely separate from the merits, and
(3) is effectively unreviewable on appeal from a final judg-
ment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468
(1978). Adherence to the rule of finality has been particularly
stringent in criminal prosecutions, because the delays and dis-
ruptions that come with interlocutory orders can hinder the
15324              UNITED STATES v. HOWARD
effective and fair administration of the criminal law. Abney v.
United States, 431 U.S. 651, 656 (1977).

   [8] All of the requirements of the collateral order doctrine
apply here. The shackling order conclusively determines the
disputed question of whether the shackling policy is permissi-
ble. This question is wholly separate from the merits of the
underlying action. Therefore, the question before this court is
whether the order would be effectively unreviewable if the
court delayed the defendants’ appeals until they are either
convicted and sentenced, or acquitted. See United States v.
Friedman, 366 F.3d 975, 979 (9th Cir. 2004). The order must
involve “an important right which would be ‘lost, probably
irreparably,’ if review had to await final judgment.” Abney,
431 U.S. at 658.

   [9] Even assuming that defendants’ claims could be
reviewed on appeal from conviction, their claims could not be
reviewed if they are acquitted. See Sell v. United States, 539
U.S. 166, 176-77 (2003); Friedman, 366 F.3d at 979. In most
cases, a defendant’s rights would be sufficiently vindicated by
an acquittal. See, e.g., Flanagan v. United States, 465 U.S.
259, 265 (1984) (acquittal would remedy harm of order dis-
qualifying counsel); United States v. MacDonald, 435 U.S.
850, 859 (1978) (acquittal would remedy harm of speedy trial
violation). This case, however, falls within a subset of cases
in which acquittal does not undo the harm to the defendant.
The Supreme Court has held, for example, that an order to
deny bail and require pretrial detention cannot effectively be
reviewed on appeal. Stack v. Boyle, 342 U.S. 1, 6 (1951).
Similarly, we have held that involuntary commitment of a
defendant is effectively unreviewable on appeal, because
there would be no appellate review if the defendant was found
not competent to stand trial or acquitted. Friedman, 366 F.3d
at 979. We find this case to be analogous. An acquittal in this
case would favorably terminate the prosecution of the defen-
dant, but would not affect the deprivation of liberty that
                   UNITED STATES v. HOWARD                15325
occurred during the pretrial hearing. See Sell, 539 U.S. at 176-
77; Friedman, 366 F.3d at 979.

   [10] Therefore, defendants’ claims are effectively unre-
viewable on appeal from a final judgment. The district court’s
order reviewing the magistrate judges’ determinations is an
appealable collateral order.

                          MERITS

   [11] This court has not decided whether a general policy of
shackling a defendant for a proceeding in front of a judge vio-
lates due process. Nearly all of the litigation concerning
shackled defendants arises in the context of proceedings in
front of a jury. See, e.g., Deck v. Missouri, 125 S.Ct. 2007
(2005) (extending the general prohibition on the use of shack-
les to the penalty phase of a jury trial); Duckett v. Godinez,
67 F.3d 734 (9th Cir. 1995); Jones v. Meyer, 899 F.2d 883
(9th Cir. 1990); Spain v. Rushen, 883 F.2d 712 (9th Cir.
1989). These cases turn in large part on fear that the jury will
be prejudiced by seeing the defendant in shackles. See Deck,
125 S.Ct. at 2013; Duckett, 67 F.3d at 748; see also Illinois
v. Allen, 397 U.S. 337, 344 (1970). Fear of prejudice is not at
issue in the present case, as a judge in a pretrial hearing pre-
sumably will not be prejudiced by seeing defendants in shack-
les. Other courts have disagreed about whether shackling a
defendant for a proceeding in front of a judge violates due
process. Compare United States v. Zuber, 118 F.3d 101, 104
(2d Cir. 1997) (finding no due process violation), with People
v. Fierro, 821 P.2d 1302, 1322 (Cal. 1992) (finding due pro-
cess violation).

   [12] Shackling a defendant in any judicial proceeding can
have negative effects. The Supreme Court has stated that “the
use of [shackling and restraints] is itself something of an
affront to the very dignity and decorum of judicial proceed-
ings that the judge is seeking to uphold.” Allen, 397 U.S. at
344; see Deck, 125 S.Ct. at 2013. Moreover, the Supreme
15326              UNITED STATES v. HOWARD
Court expressed concern that restraints could greatly reduce
the defendant’s ability to communicate with his counsel. Id.
This court has noted that shackling may confuse and embar-
rass the defendant, thereby impairing his mental faculties. See
Duckett, 67 F.3d at 747-48, citing Spain, 883 F.2d at 720-21.
Shackling may also cause the defendant physical and emo-
tional pain. See Rhoden v. Rowland, 172 F.3d 633, 637 (9th
Cir. 1999); Spain, 883 F.2d at 720-21.

   [13] Defendants contend that the Marshals Service’s shack-
ling policy violates their due process rights. Before a defen-
dant can be shackled in front of a jury, the court must be
persuaded by compelling circumstances that some measure is
needed to maintain security, and that no less restrictive alter-
natives are available. Jones, 899 F.2d at 884-85. Defendants
contend that due process requires that there be no restraining
whatsoever without an individualized determination.

   We observe, without deciding the issue, that this may go
farther than due process requires. But we do not have to reach
this question. The record here gives no justification or
describes any circumstances existing district-wide that would
support the district requiring such restraint.

   [14] At a minimum, due process requires that before there
is any district-wide policy affecting all incarcerated defen-
dants whom the government must transport to a first appear-
ance, there must be some justification. The Supreme Court
has stated that “if a restriction or condition is not reasonably
related to a legitimate goal — if it is arbitrary or purposeless
— a court permissibly may infer that the purpose of the gov-
ernmental action is punishment that may not constitutionally
be inflicted upon detainees qua detainees.” Bell v. Wolfish,
441 U.S. 520, 539 (1979). Thus, a pretrial detainee has a sub-
stantive due process right against restrictions that amount to
punishment.

   Cases addressing the substantive due process rights of pre-
trial detainees typically involve challenges to prison policies.
                   UNITED STATES v. HOWARD                 15327
See, e.g., id. Courts ordinarily defer to the expert judgments
and professional expertise of corrections officials. Id. at 547-
48. Corrections officials must produce at least some evidence
that their policies are based on legitimate penological justifi-
cations. Swift v. Lewis, 901 F.2d 730, 733 (9th Cir. 1990).

   Restrictions on defendants during judicial proceedings,
however, are not within the realm of correctional officials.
The conduct of judicial proceedings is the domain of the
courts. Preservation of dignity and decorum are necessary for
the conduct of judicial proceedings that determine issues of
liberty and life.

   For this reason this court cannot give the government court-
room policies the same degree of deference that it would give
to the government prison policies. A court should insist on
some showing that a policy impinging on defendants’ free-
doms and ability to communicate, as well as diminishing the
decorum of the court proceedings, is reasonably related to a
legitimate goal. By requiring the government to establish the
need for the policy, the court can ensure that the policy does
not constitute punishment of pretrial detainees during judicial
proceedings.

  [15] In this record, there is no explanation of whether a
similar shacking policy exists in any other districts. There is
no evidence of specific instances that show a need for this
shackling policy in the Central District. Rather, the only sup-
port for the policy is the conclusory declaration of a single
representative of the Marshals Service that the policy is nec-
essary because of safety concerns and financial limitations.

   [16] As we have seen, the record contains no evidence of
safety concerns necessitating this policy in this district. There
is no basis on which we can assume the benefits of the policy
outweigh the costs and the disadvantages. The Supreme Court
has already held that financial concerns should not be a justi-
fication for cutting back on the constitutional rights of crimi-
15328              UNITED STATES v. HOWARD
nal defendants. See Rufo v. Inmates of Suffolk County Jail,
502 U.S. 367, 392 (1992). For example, we have held that a
city’s financial crisis does not allow it to maintain over-
crowded jails that deprive people of their constitutional rights.
Stone v. City and County of San Francisco, 968 F.2d 850, 858
(9th Cir. 1992); see also Jones v. Johnson, 781 F.2d 769, 771
(9th Cir. 1986). As one commentator has put it, “[a]llowing
a governmental entity to plead budgetary constraints allows it
to second-guess the Court’s determination of what the law
requires and to argue, in essence, that it is exempt from con-
stitutional standards.” See Barbara Kritchevsky, Is there a
Cost Defense? Budgetary Constraints as a Defense in Civil
Rights Litigation, 35 Rutgers L.J. 483, 560 (2004).

   [17] There may well be good reasons for the policy, but we
don’t yet know what they are. We therefore reverse the dis-
trict court’s order affirming the magistrate judges’ shackling
decisions. We order the existing shackling policy rescinded,
but we do not preclude reinstatement of a similar policy upon
a showing of adequate justification. This, at a minimum,
means a showing sufficient to support a reasoned determina-
tion that the policy is justified on the basis of past experiences
or present circumstances in the Central District.

  We remand the case to the district court for proceedings
consistent with this opinion.

  REVERSED AND REMANDED.



CLIFTON, Circuit Judge, dissenting:

  I agree with my colleagues that we may properly reach the
merits of this case. I also agree that the record seems some-
what thin regarding the benefits and detriments of the policy
adopted in the Central District of California of requiring in-
custody defendants to wear leg restraints or shackles during
                    UNITED STATES v. HOWARD                 15329
the initial court appearance before a magistrate judge. My
view of the law would require a much stronger showing to set
aside the policy than has been made by the defendants here,
however. The justification for the policy — to improve court
security — is evident, while there is essentially nothing in the
record that demonstrates any actual negative impacts from the
practice when there is no jury present to be influenced, as
there is not during the initial court appearance. At a time
when concern for court security is understandably and prop-
erly high, I would accept the judgment of the district court —
and the collective judgments of the judicial officers most
affected, the magistrate judges of the Central District — and
affirm.

   As an initial matter, I disagree with the majority opinion
regarding the legal basis on which it rests its reversal of the
district court. The majority opinion refers to the substantive
due process rights of pretrial detainees against restrictions that
amount to punishment, but that is premised on an inference
that the leg-restraint policy is “punishment” because it is
“ ‘not reasonably related to a legitimate goal — . . . it is arbi-
trary or purposeless — [such that] a court permissibly may
infer that the purpose of the governmental action is punish-
ment.’ ” Ante at 15326 (quoting Bell v. Wolfish, 441 U.S. 520,
539 (1979)).

   There is not the slightest suggestion in the record here that
the leg-restraint policy was intended to be punitive. The dis-
trict court found that the policy was adopted “[b]ecause of
security concerns,” and that finding was not clearly erroneous.

   That being the case, Bell instructs us differently as to the
law. The portion quoted by the majority opinion was preceded
by the following statement: “[I]f a particular condition or
restriction of pretrial detention is reasonably related to a legit-
imate governmental objective, it does not, without more,
amount to ‘punishment.’ ” Id. That sentence was accompanied
by a footnote, which stated, in part: “[I]n the absence of a
15330              UNITED STATES v. HOWARD
showing of intent to punish, a court must look to see if a par-
ticular restriction or condition, which may on its face appear
to be punishment, is instead but an incident of a legitimate
nonpunitive governmental objective.” Id. at 539 n.20. And the
sentence quoted by the majority, regarding purposeless
restrictions which may be inferred to amount to punishment,
is followed by another footnote: “ ‘There is, of course, a de
minimis level of imposition with which the Constitution is not
concerned.’ ” Id. at 539 n.21 (quoting Ingraham v. Wright,
430 U.S. 651, 674 (1977)).

   In the absence of any evidence of an intent to punish, or
any evidence that a defendant required to wear leg restraints
during the initial public hearing suffers any actual harm (or
more than de minimis harm), there can be no due process vio-
lation. The holding of Bell was that certain conditions of con-
finement complained of by pretrial detainees at the
Metropolitan Correction Center in New York City did not
violate the Due Process Clause. The Court reversed a decision
by the Second Circuit that “pretrial detainees may be sub-
jected to only those ‘restrictions and privations’ which ‘inhere
in their confinement itself or which are justified by compel-
ling necessities of jail administration.’ ” Wolfish v. Levi, 573
F.2d 118, 124 (2d Cir. 1978) (quoting Rhem v. Malcolm, 507
F.2d 333, 336 (2d Cir. 1974)).

   The approach taken by the majority opinion echoes the
erroneous approach of the Second Circuit, which the Court
reversed in Bell, by putting the burden on the district court
and the U.S. Marshals Service to justify the necessity for the
leg-restraint policy. Bell put the burden, which it described as
“heavy,” on the defendants objecting to the restrictions: “Re-
spondents simply have not met their heavy burden of showing
that these officials have exaggerated their response to the gen-
uine security considerations that actuated these restrictions
                      UNITED STATES v. HOWARD                        15331
and practices.” Id. at 561-62. The defendants have not nearly
met that “heavy burden” here, either.1

   The Central District of California is the largest federal judi-
cial district in the country. The district is authorized to have
twenty-two full-time magistrate judges, plus one part-time
position. As indicated by the district court’s order, the policy
in question was discussed by the magistrate judges of the dis-
trict in April 2003. They decided to approve the policy and to
apply it uniformly to the initial appearances of all in-custody
defendants in the district.

   The district court affirmed the policy, announcing its find-
ings in the form of the statement of facts section in its order
filed October 8, 2003:

         The initial appearances of in-custody defendants
      take place in a large courtroom on the third floor of
      the Roybal Courthouse. The number of in-custody
      defendants present in the courtroom can vary greatly
      depending upon the number of arrests made. At the
      initial appearance, magistrate judges read defendants
      their rights, confirm that defendants have received a
      copy of the complaint or indictment stating the
      charges against them, appoint counsel to represent
      the indigent defendants, and set dates for the defen-
      dants’ preliminary hearings and post-indictment
      arraignment.
  1
    That is why, in part, the observation in the majority opinion that “fi-
nancial concerns should not be a justification for cutting back on the con-
stitutional rights of criminal defendants” misses the point. Ante at 15327-
28. There is no constitutional right for a defendant in custody to be free
of leg restraints. Nor does the Due Process Clause require the government
to hold pretrial detainees or defendants in the courtroom in the manner that
is least restrictive for the defendant, no matter what the expense. In mak-
ing this decision about court security, there is nothing inappropriate about
the court and the Marshals Service taking into account the resources avail-
able.
15332                 UNITED STATES v. HOWARD
         The magistrates also make a preliminary determi-
      nation of bond and detention issues. In some cases,
      a full evidentiary detention hearing will occur at the
      initial arraignment. Lay witnesses or law enforce-
      ment officers may testify at these hearings. Friends
      and family members of defendants often are present
      to act as potential sureties and to give defendants
      support. Their presence, while appropriate, adds to
      potential security concerns.

         Because of security concerns, the United States
      Marshal Service (“USMS”) adopted certain policies
      after consultations with the magistrate judges. As
      part of USMS policy, defendants are fully restrained
      while being transported to the courtroom. For their
      initial appearances, the waist chains and handcuffs
      are removed, but the leg restraints (“shackles”) are
      not removed. United States Marshals are trained in
      properly applying restraints so that the restraints do
      not cause pain.

         Shackling is designed to ensure that courtrooms
      are safe and orderly.2 Even while restrained defen-
      dants have assaulted members of the USMS, as well
      as other members of the government.3 According to
      the acting United States Marshal, the need for
      restraints is particularly acute given the current staff-
  2
     Rather than shackles, Los Angeles Superior Court uses cages in which
defendants must remain during their initial appearance. (Footnote in origi-
nal) (citation omitted).
   3
     In the courtroom of the Honorable William Rea on June 5, 2003, an
unshackled prisoner verbally attacked the Assistant United States Attor-
neys and FBI case agent after the prisoner was convicted. “When the dep-
uties began to handcuff the defendant he resisted and pulled away. The
deputies were required to take the defendant to the floor in order to hand-
cuff him and take him into custody.” (Footnote in original) (citations omit-
ted).
                   UNITED STATES v. HOWARD                 15333
    ing shortages at the USMS. The USMS currently has
    just 59% of its allocated staffing for this district.

       The USMS believes that it “is not possible to con-
    duct an individualized analysis of a defendant at the
    time of the initial appearance,” in part, because “it is
    not possible to obtain a criminal history.” Moreover,
    the magistrates appear to agree that a uniform shack-
    ling policy should apply at initial appearances. . . . .

(Citations omitted).

   The general motivation for the policy is plain. As the dis-
trict court found, the Marshals Service adopted the policy
“[b]ecause of security concerns.” The policy is intended “to
ensure that courtrooms are safe and orderly.” That is con-
firmed by the April 10, 2003 memorandum in which the Mar-
shals Service described the policy. It made clear that it was
based upon the authority of the Service to “provide courtroom
security for the Federal Judiciary [and] protection of Federal
Jurists and other court officers.” The document expressly
noted that “there is no greater responsibility tasked to the U.S.
Marshals Service than that of ensuring the protection of the
Judicial Process, which includes the personal protection of all
entities (Jurists, jurors, U.S. Attorneys, defense counsel, and
others) as well as the safeguarding and security of federal
prisoners.”

   The subject of court security has received substantially
greater attention since then because of two tragic episodes
earlier this year. One was the murder of the husband and
mother of a federal district judge in Chicago, Illinois on Feb-
ruary 28, 2005, by a disgruntled civil litigant. The other was
the murder by a criminal defendant of a state court judge and
a court reporter inside the Fulton County, Georgia courthouse,
as well as a deputy sheriff outside the courthouse, on March
11, 2005. Neither of these incidents arose in the context of an
initial appearance by a criminal defendant before a federal
15334              UNITED STATES v. HOWARD
magistrate judge, of course, but they underscore the inherent
danger that lurks in a courthouse. Many of the people there
are prone to violence and are under enormous stress.

   The Judicial Conference of the United States responded to
these events by adopting a resolution at its meeting in March
2005 which asked the Justice Department and the Marshals
Service “to review fully and expeditiously all aspects of judi-
cial security.” (Emphasis added.) The following month, the
chair of the Judicial Conference Committee on Security and
Facilities, Judge Jane Roth of the Third Circuit, told a House
subcommittee, as reported by the official newsletter of the
federal courts, that the Marshals Service judicial security pro-
gram is “chronically understaffed and underfunded.” U.S.
Marshals Service Resources Faulted by Federal Judiciary,
The Third Branch, May 2005, at 1. The staffing shortages
described eighteen months before by the district court in this
case are a reflection of this chronic problem.

   I simply cannot conclude, as does the majority opinion, that
the record gives no justification for the policy or fails to
describe circumstances which support the application of a
district-wide policy. Ante at 15326. The district court con-
cluded that it was not possible to obtain criminal histories of
all in-custody defendants prior to their initial appearances, let
alone to do an analysis of the threat posed by each individual.
Perhaps only a few of defendants pose a serious threat, but if
it cannot be determined by the time of the initial appearance
which defendants those are, it is logical to be cautious with all
of them. An ounce of prevention is, after all, worth a pound
of cure. These defendants are fully restrained — with hand-
cuffs and waist chains in addition to the leg restraints —
before and after their courtroom appearances, and no objec-
tion to that treatment has been made here. The advantage of
maintaining some of that control in the courtroom, by leaving
the leg restraints on when the handcuffs and waist chains are
removed, is clear. That is particularly true when the Marshals
Service is understaffed, as we know that it is. If we cannot be
                    UNITED STATES v. HOWARD                 15335
sure that there will be sufficient deputy marshals or other
security officers present in the courtroom to control all unre-
strained defendants, then it makes sense to leave the leg
restraints on, unless there is a reason not to.

   There is, of course, a very good reason not to when doing
so might prejudice the defendant. As the majority opinion
notes, nearly all of the caselaw on this subject has involved
a proceeding in front of a jury. Ante at 15325. The use of
shackles or restraints in a context where they might be
observed by a jury could have a negative and prejudicial
effect. The law on that subject is well-established, as most
recently discussed by the Supreme Court in Deck v. Missouri,
125 S. Ct. 2007 (2005). In that case the Court held that the use
of visible shackles during the penalty phase of a capital mur-
der trial is forbidden, just as it forbidden 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 2009 (internal quotation marks
omitted). But in the current case, fear of such prejudice is not
at issue, as the majority opinion acknowledges, ante at 15325,
because there is no reason to presume that the magistrate
judge will be prejudiced by seeing the defendant in leg
restraints.

   Reasons not to permit the regular use of leg restraints in the
context of the initial appearance before the magistrate judge
are much harder to pin down. Indeed, if the record in this case
fails to provide support for some proposition, it is the proposi-
tion that any actual harm has resulted from the use of leg
restraints. On that score, the record is completely blank.

   The negative effects identified by the majority opinion
appear to fall into two categories. One is that the use of
restraints would constitute “ ‘an affront to the very dignity
and decorum of judicial proceedings that the judge is seeking
to uphold.’ ” Ante at 15325 (quoting Illinois v. Allen, 397 U.S.
337, 344 (1970)). But the Court in Allen was discussing a
15336              UNITED STATES v. HOWARD
defendant completely restrained, “bound and gagged,” id.,
during his trial before a jury, not a defendant wearing leg
restraints while making an initial appearance in a courtroom
filled with other defendants awaiting their initial appearances.
Anyone who has been present in a courtroom filled with such
defendants, particularly in a busy urban court, understands
that “decorum” is a relative thing. More to the point, what
effect the leg-restraint policy has on the decorum of the court
and what negative impact that has on the defendant may be
impossible to define precisely, but I have to believe that the
answers are “not much” and “none.” The alternative identified
by the district court as that used in Los Angeles Superior
Court — the use of cages — certainly seems much worse.
There is nothing in this record that establishes any negative
impact on the dignity of the court. Since the policy at issue
was specifically approved by the judicial officers most
affected and in the best position to evaluate the impact on the
court, namely the magistrate judges of the Central District, I
conclude that this factor adds little if any weight to the nega-
tive side of the scale.

   The second category focuses more directly on the negative
impact on the defendants. Thus, the majority opinion notes
that the Court in Allen “expressed concern that restraints
could greatly reduce the defendant’s ability to communicate
with counsel.” Ante at 15326. That is true, but in Allen the
Court was talking about a defendant who was “gagged,” not
one simply wearing leg restraints. It is not apparent how leg
restraints, without a gag, would prevent a defendant from
talking with his attorney. There is nothing in the record from
any of the eighteen defendants challenging the policy, any of
their attorneys, any other defense attorney, or anyone else that
explains or illustrates how the use of leg restraints prevents
communication, let alone attesting to any actual prejudice or
negative impact from the policy at issue.

  Similarly, the majority opinion refers to observations in
other court decisions to the effect that “shackling may confuse
                   UNITED STATES v. HOWARD                 15337
and embarrass the defendant, thereby impairing his mental
faculties.” Ante at 15326. In the context of the initial appear-
ances at issue in this case, that appears to be pure speculation.
We are dealing with defendants who have been held in cus-
tody, then transported to the courtroom wearing handcuffs,
waist chains, and leg restraints. At the courtroom, the hand-
cuffs and waist chains are removed. That the leg restraints are
not removed as well is unlikely to have such a dramatic effect
on the defendant. Again, there is nothing in the record that
supports the conclusion that it does.

   Finally, the majority opinion states that there may be
“physical and emotional pain” suffered by the defendant. Ante
at 15326. But no defendant has attested to any such pain.
There is nothing in the record supporting that conclusion.
Why pain would be uniquely felt from wearing leg restraints
in the courtroom by a defendant who wore the same leg
restraints and also handcuffs and a waist chain before and
after the courtroom appearance, while being transported to
and from the courtroom, is not evident. The district court here
found that the marshals are trained in properly applying
restraints so that the restraints do not cause pain. That finding
was not clearly erroneous.

   Thus, I disagree with the conclusion in the majority opinion
that there is “no basis on which we can assume the benefits
of the policy outweigh the costs and the disadvantages.” Ante
at 15327. In my view, what the record fails to support is the
notion that there are actual costs and disadvantages. The
potential benefit of restraining defendants is plain.

  What is unknown here is the probability that some unfortu-
nate incident will occur without the leg restraints. On that
subject I agree with the majority that the record does not dem-
onstrate a substantial risk. But we should not limit the court’s
ability to take precautions to situations of demonstrated or
substantial risk. In over thirty-five years of driving, I have
never been in a serious automobile accident, and the percent-
15338              UNITED STATES v. HOWARD
age chance of that happening the next time I climb into my
car is, I assume, incredibly small, but that does not mean that
I should not buckle my seat belt and make sure that everyone
else is buckled up, too. Effective security necessarily means
protecting against the highly unlikely and against something
that may not previously have occurred. The court should not
have to suffer a tragedy before taking precautions.

   The decision whether or not to adopt this policy involved
a balancing of the perceived benefits, which includes a con-
sideration of the amount of risk, and of the detriments.
Because I see very little on the negative side of the scale, at
least on the current record, I would not disagree with the deci-
sion of the Central District that the benefits of the policy out-
weigh the detriments. More importantly, under the proper
legal standard, I do not believe defendants have demonstrated
a violation of the Due Process Clause.

   Like the majority, I agree that our decision today should
not be the last word, and I would say that even if my view
prevailed and we affirmed. This policy should be subject to
further consideration and review, and if a challenge to the pol-
icy demonstrated a negative impact the court should take that
into account. On the current record, though, that impact has
not been shown.

   Justice Breyer’s opinion for the Court in Deck noted that
the rule that a criminal defendant may be shackled during a
criminal trial only when there is a special need had “deep
roots in the common law.” 125 S. Ct. at 2010. It also noted,
however, that “Blackstone and other English authorities rec-
ognized that the rule did not apply at ‘the time of arraign-
ment,’ or like proceedings before the judge.” Id. (citations
omitted). Blackstone was right. That rule should not apply
here.

  I respectfully dissent.
