In an en banc decision this past May, the 9th Circuit determined that the Southern District of California's uniform policy of shackling pretrial defendants who were in-custody during non-jury courtroom proceedings was not constitutional. The decision was 6-5, with Judge Alex Kosinski writing for the majority.

In U.S. v. Sanchez-Gomez, the U.S. Marshals Service requested that the district court enact the shackling policy. The policy allowed “the Marshals Service to produce all in-custody defendants in full restraints for most non-jury proceedings.” A defendant who was in full restraints would have his or her “hands closely handcuffed together, these handcuffs are connected by [a] chain to another chain running around the defendant's waist, and the defendant's feet are shackled and chained together.” The policy was not without exceptions. When the judges chose to adopt the shackling policy, they “retained discretion to ‘direct the Marshals to produce an in-custody defendant without restraints.'” Defendants could also ask for the judge to remove their restraints. Most magistrate and district court judges did not adjust the policy, but some did. One judge opted out altogether and the district court judges had defendant's arm and hand restraints removed “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.”

The defendants in the Sanchez-Gomez case all objected to shackles but “[t]he magistrate judges overruled the objections in each instance. The defendants then appealed this decision up to the Court of Appeals.

The 9th Circuit first addressed some jurisdictional issues, and then ultimately determined that it had the authority to hear the case. In addition, it determined that the case was not moot as it was capable-of-repetition-yet-evading-review and though the policy was not in effect at the time the 9th Circuit heard the case, the “government has indicated that it will seek to reinstate the policy unless we hold it unconstitutional.” Thus, the court determined there was “still a live controversy.”

The court stated that the liberty that is protected by the due process clause of the 5th Amendment includes the liberty to be free from “bodily restraint.” This “[l]iberty from bodily restraint includes the right to be free from shackles in the courtroom.” The court looked at a prior U.S. Supreme Court case that addressed shackles during the penalty phase of a trial. In that case the court stated that the restraints shouldn't be used unless there was a security issue with a particular defendant. The 9th Circuit also stated that in its own previous decision it reached a similar conclusion for jury trials. However, the court hadn't addressed whether the shackling rules that applied to jury trials and a penalty phase also applied to other proceedings.

The court stated, “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.” The court stated that “[b]efore 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.” The court also stated that “[c]ourts cannot delegate this constitutional question to those who provide security . . . [n]or can courts institute routine shackling policies reflecting a presumption that shackles are necessary in every case.” The court reasoned that “[t]his right to be free from unwarranted shackles no matter the proceeding respects our foundational principle that defendants are innocent until proven guilty,” and “[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.”