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U.S. v. Brandau (9th Cir. - Aug. 21, 2009)

By Shaun Martin

The best way to reflect what an opinion says is often to use its own words. But on occasion, the message that one should receive from an opinion is nowhere expressed therein. That's where I can help.

Take this opinion. On its face, it's a simple remand order. Plaintiffs challenged a policy, it's unclear whether or not that policy is moot since it has been largely discontinued, and so the Court of Appeal remands to allow the district court to determine whether the practice persists. Pretty straightforward, right?

Except if you read between the lines. Intended or not, this is what I read from the blank spaces in the opinion:

"The Eastern District of California shackles every single criminal defendant at his or her initial appearance, in full body (leg and arm) restraints. This includes the two plaintiffs here, both of whom manifestly present no security danger whatsoever. (The first defendant was a guy arrested in Yosemite the previous night for public intoxication, and the second was a woman charged with submitting false claims to FEMA and who, given her cooperation, the FBI let self-surrender herself to the Marshal.) But after this practice got some attention and some litigation, it was revised, and now the Eastern District's policies provide for presumptive shackling but at least ostensibly allow individualized determinations as to whether shackling is necessary.

The US Attorney argues the case is therefore moot. But there are lots of exceptions to that rule. Plus, at oral argument, both sides basically admitted that everyone still gets shackled, and that they've never actually seen any individualized determinations that the rules allegedly allow.

So where does this leave us? Well, absent a little more evidence in the record, we're a bit hesitant to reach the merits at this point, given at least the possibility of mootness. So we'll go ahead and remand for an evidentiary hearing. Nonetheless, based on what we've said thus far, everyone should get a pretty good sense at this point how this case will eventually come out. Do we need to remind everyone, for example, that the panel consists of myself (Judge Reinhardt) -- take a flying guess as to how I'm voting -- Judge McKeown -- hardly a "Shackle 'Em All And Let God Sort 'Em Out" jurist -- and Judge Noonan, who's more than willing to express outrage when he perceives it? We've got the case now, and we're getting it back after remand. Got a clue as to where this one is headed?

Lest you not get the hint from the tone and content of our opinion -- which ostensibly doesn't say anything at all about either the merits or the mootness issue -- let's do a couple of more things at the end of the opinion to help clarify things for you. Like assigning the case to an out-of-Eastern-District judge on remand. And ordering that all the judges in the Eastern District be notified of this opinion, and adding at the end that they aren't represented by the U.S. Attorney's Office in this one, so they might want to retain separate counsel.

Can you take a hint? Do you think we want you to stop the policy of shackling everyone? Can you at all read between the lines, or do we also need to physically bludgeon you as well?"

That's my take, anyway. If I'm the Eastern District, I make a new rule and start conducting individualized determinations. Becaause I can read. Even a decision, like this one, written in invisible ink.

Full post as published by California Appellate Report on August 21, 2009 (boomark / email).