February 28, 2018
from the United States District Court for the Central
District of Illinois. No. 17-CR-30072 - Sue E. Myerscough,
Manion, Sykes, and Hamilton, Circuit Judges.
Henderson was arraigned on drug and firearm charges while
shackled with leg irons and handcuffs connected to a waist
chain. His attorney asked the district judge to have the
shackles removed. The judge denied the request, deferring to
the United States Marshals Service's policy of using full
restraints on prisoners at every nonjury court appearance.
Henderson appealed the ruling, relying on the
collateral-order doctrine to support interlocutory review.
After oral argument we ordered supplemental briefing on the
possibility of mandamus as an alternative means of review if
Henderson's argument about the collateral-order doctrine
failed. We also gave the judge an opportunity to respond as
provided in Rule 21 of the Federal Rules of Appellate
Procedure, which governs mandamus procedure. She has done so.
We now hold that the collateral-order doctrine does not apply
and decline to reframe the appeal as a petition for a writ of
mandamus. We therefore dismiss the appeal for lack of
jury in the Central District of Illinois indicted Henderson
for possession of crack cocaine with intent to distribute and
two related firearms offenses. In accordance with the
Marshals Service's policy in the Springfield Division,
Henderson appeared in court for arraignment encircled by four
security officers and shackled with leg irons and handcuffs
connected to a waist chain. His attorney moved to have him
unshackled except for the leg irons for the remainder of the
arraignment and at all future pretrial hearings. Counsel
argued that routine shackling in court violates the
accused's right to due process and asked the judge to
hold a hearing to determine whether Henderson posed an
individualized risk to justify the use of full restraints.
specifically, counsel argued that a criminal accused has a
deeply rooted fundamental right not to be shackled in court
proceedings absent an individualized showing of risk of
flight or violence. The Supreme Court has held that the Due
Process Clause forbids the routine use of shackles before the
jury. Deck v. Missouri, 544 U.S. 622, 629 (2005).
Counsel urged the judge to apply the same rule to pretrial
proceedings and conduct an individualized risk assessment as
Deck requires. Finally, counsel argued that the
judge, not the Marshals Service, is ultimately responsible
for the decision to use restraints in court, and a default
position of deference to security officials abdicates that
government responded with three points. First,
Deck's rule against restraints in court is
expressly limited to the use of shackles in the presence of a
jury. Id. Second, the reasons underlying the
Deck rule have little, if any, applicability to
nonjury proceedings like an arraignment and other pretrial
hearings. Third, Deck relied in large part on the
common-law rule against shackles, which is limited to jury
trials and does not extend to arraignment or "like
proceedings before the judge." Id. at 626. The
government urged the court to apply the standard in Bell
v. Wolfish, 441 U.S. 520 (1979), which governs
conditions of confinement for pretrial detainees. Under that
standard, the government argued, the use of shackles in
pretrial proceedings is not a form of punishment and thus is
oral ruling, the judge denied Henderson's motion,
declaring that "court security is up to our Court
Security and Marshals" and later saying that she was
"concerned that [Henderson] might take off." The
judge issued a follow-up written order that same day, noting
that because of "the reasons stated in the
[government's response," she would "continue to
defer to the expertise of the United States Marshals
Service" without making "an individualized
determination that shackling is necessary."
appealed the judge's order, invoking the collateral-order
doctrine and arguing that he has a due-process right to
appear before the court unshackled and that this right
applies in nonjury proceedings. At oral argument we asked
whether mandamus is available as an alternative basis for
interlocutory review should Henderson's invocation of the
collateral-order doctrine fail. Because the parties had not
formally addressed that question, we ordered supplemental
briefing on the availability of supervisory or advisory
mandamus and gave the district judge an opportunity to
respond as if Henderson's appeal were construed as a
petition for a writ of mandamus. See Fed. R. App. P.
21(b)(4) (describing mandamus procedure and stating that
"[t]he court of appeals may invite or order the
trial-court judge to address the petition or may invite an
amicus curiae to do so").
judge accepted our invitation. She explained that mandamus is
inappropriate because Deck's requirement of an
individualized risk assessment applies only when shackles are
used at a jury trial and thus Henderson had not shown that he
has a "clear and indisputable" right to the writ.
J.H. Cohn & Co. v. Am. Appraisal Assocs., Inc.,
628 F.2d 994, 997 (7th Cir. 1980). The government agreed with
the judge and added that mandamus is not warranted because
Henderson has other adequate means to pursue his due-process
claim and because this is not an "exceptional"
circumstance that would justify issuance of the writ.
argued that either supervisory or advisory mandamus is
appropriate because the issue presented is important, novel,
recurring, and would otherwise evade effective appellate
review. See id.; United States v. Green, 407 F.3d
434, 439 (1st Cir. 2005) (explaining advisory and supervisory
mandamus). He also reiterated his position that the shackling
order is immediately reviewable under the collateral-order
begin (and also end) with the question of appellate
jurisdiction. Our jurisdiction is limited to appeals from a
final order of the district court. See 28 U.S.C.
§ 1291. The judge's shackling ruling obviously is
not a final order; the case remains pending in the district
court. Henderson argues that the collateral-order doctrine
supports interlocutory review. That doctrine allows immediate
appeal of interlocutory orders that "finally determine
claims of right separable from, and collateral to, rights
asserted in the action, too important to be denied review and
too independent of the cause itself to require that appellate
jurisdiction be deferred until the whole case is
adjudicated." Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541, 546 (1949).
qualify for immediate review under this exception, an order
"must conclusively determine the disputed question,
resolve an important issue completely separate from the
merits of the action, and be effectively unreviewable on
appeal from a final judgment." Coopers & Lybrand
v. Livesay, 437 U.S. 463, 468 (1978). The Supreme Court
has emphasized that the collateral-order doctrine is "a
narrow exception to the normal application of the final
judgment rule," and in criminal cases its requirements
are applied "with the utmost strictness."
Midland Asphalt Corp. v. United States, 489 U.S.
794, 798-99 (1989) (quoting Flanagan v. United
States, 465 U.S. 259, 265 (1984)).
case turns on the third step of the Coopers &
Lybrand test, which asks whether the order in question
is effectively unreviewable on appeal from a final judgment.
The Supreme Court's seminal shackling case demonstrates
that this requirement is not met here. In Deck the
defendant objected to appearing before the jury in shackles
during the penalty phase of his capital murder trial. 544
U.S. at 624-25. The Supreme Court reversed the
defendant's death sentence, holding that shackling him in
front of the jury violated his right to due process.
Id. at 635. Deck establishes that
due-process shackling claims may be effectively reviewed on
appeal from a final judgment. That alone forecloses
broader level, in criminal cases the Court has identified
only four pretrial orders that qualify for immediate review
under the collateral-order doctrine: (1) an order denying
bail, Stack v. Boyle, 342 U.S. 1 (1951); (2) an
order denying dismissal based on double jeopardy, Abney
v. United States, 431 U.S. 651 (1977); (3) an order
denying dismissal under the Speech or Debate Clause,
Helstoski v. Meanor, 442 U.S. 500 (1979); and (4) an
order for the administration of psychotropic medication to
render a defendant competent for trial, Sell v. United
States, 539 U.S. 166 (2003). We recently noted the
distinguishing characteristics of orders of this type:
"Bail and involuntary medication are independent of the
merits and unreviewable on appeal from a conviction, while
the other two situations exemplify rights not to be
tried." United States v. Schock, 891 F.3d 334,
339 (7th Cir. 2018).
other hand, the Court has held that a constitutional
objection to an attorney-disqualification order is
effectively reviewable on appeal from a final judgment.
Flanagan, 465 U.S. at 269-70. The Court also has
refused to extend the collateral-order doctrine to pretrial
orders denying dismissal under the Speedy Trial Clause.
United States v. MacDonald, 435 U.S. 850, 861-63
(1978). These cases presented ordinary claims of
constitutional procedural error for which appeal from a final
judgment provides effective review. Henderson's shackling
claim is in the same category.
is our most recent exploration of the collateral-order
doctrine in a criminal case. A former congressman appealed an
order denying his motion to dismiss an indictment charging
him with fraud and making false statements. 891 F.3d at 336.
He moved to dismiss based on the Speech or Debate Clause,
U.S. CONST, art. 1, § 6, cl. 1 (immunizing members of
Congress from liability for their speeches, debates, and
other parts of the legislative process), and the Rulemaking
Clause, id. art. I, § 5, cl. 2 (stating that
each House of Congress may determine its own rules and punish
its members). The district court denied the motion, and the
defendant immediately appealed; we affirmed in part and
dismissed in part. The Speech or Debate Clause, we explained,
confers an immunity from litigation, so we addressed the
merits and affirmed the denial of the dismissal motion on
this ground. Schock, 891 F.3d at 336. We dismissed
the rest of the appeal for lack of jurisdiction, holding that
an order refusing to dismiss an indictment under the
Rulemaking Clause does not qualify for immediate review under
the collateral-order doctrine. Id. at 338-39. The
defendant's claim-a kind of separation-of-powers
defense-could be effectively reviewed on appeal from a final
same is true here. As Deck shows, a due-process
challenge to a shackling order can be vindicated on appeal
from a final judgment. Henderson argues that the possibility
of acquittal, from which he cannot appeal, entitles him to
review now. But acquittal is possible in every criminal case
and so cannot justify application of the collateral-order
now to the issue of mandamus, we begin by reiterating that
Henderson did not petition for the writ. Ordinarily we will
not construe an appeal as a petition for mandamus if the
appellant "failed to apply for [the] writ in accordance
with the requirements of Federal Rule of Appellate Procedure
21(a)." Geaney v. Carlson, 776 F.2d 140, 142
(7th Cir. 1985).
in a case involving a similar interlocutory appeal of a
pretrial shackling order, the Ninth Circuit, sitting en banc,
recast the notice of appeal as a petition for mandamus and
reached the merits of the defendants' due-process claim.
United States v. Sanchez-Gomez, 859 F.3d 649, 657
(9th Cir. 2017) (en banc). Although the underlying criminal
proceedings were long since over, the en banc court declined
to dismiss the case as moot. Id. at 657-59. Rather,
after reframing the appeal as a mandamus petition, the court
construed the defendants' claim as a "functional
class action," id. at 658, and found a
constitutional violation, id. at 666.
we've explained, in light of Sanchez-Gomez, we
issued an order for supplemental briefing asking the parties
to address the propriety of construing this appeal as a
petition for mandamus. They complied. We also invited the
district judge to respond as provided in Rule 21(b)(4), and
she took the opportunity to do so. While we've had this
case under advisement, however, the Supreme Court vacated the
Ninth Circuit's judgment and remanded with instructions
to dismiss the case as moot. United States v.
Sanchez-Gomez, 138 S.Ct. 1532, 1542 (2018).
not have a mootness problem here; the underlying criminal
case remains pending. Still, we will not follow the Ninth
Circuit's lead. The All Writs Act codifies the common-law
writ of mandamus: "The Supreme Court and all courts
established by Act of Congress may issue all writs necessary
or appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law." 28
U.S.C. § 1651(a). Mandamus "is a drastic and
extraordinary remedy reserved for really extraordinary
causes." Cheney v. U.S. Dist. Ct. for B.C., 542
U.S. 367, 380 (2004) (internal quotation marks omitted).
"[O]nly exceptional circumstances amounting to a