Defendants seek review of a district-wide policy requiring leg restraints during defendants’ initial appearances. The policy was discussed by the magistrate judges in formal and informal meetings. The magistrate judges also consulted with the United States Marshals Service for the Central District of California, and, in April 2003, following these consultations, the Marshals Service implemented the policy. It applies only to in-custody defendants as opposed to defendants appearing in court in response to a summons. The record indicates that the Marshals Service consulted with the magistrate judges before enacting the [**4] policy and that it was enacted to address security concerns surrounding the transportation of varying numbers of in-custody defendants from secure facilities to a less-secure courtroom. The record also indicates that during at least some period in the past, defendants were neither shackled nor handcuffed at initial appearances. Before the policy in question was implemented, however, in-custody defendants appeared in full restraints, so this policy represented a reduction of restraints on defendants.
The record contains the declaration of Robert Masaitis, Chief Deputy United States Marshal for the Central District of California, who states that “[t]he new policy was implemented after consultations with the magistrate judges of the district.” [*1009] He further states that the shackling policy is necessary to ensure safety and order in the courtroom. He also states that the need for leg restraints is enhanced by staffing shortages in the Marshals Service. The declaration also states that prisoner management is crucial to the Marshals Service’s duty to provide security for the federal judiciary, and that the greatest risks of escape and violence occur during transportation from detention facilities [**5] and in the courtroom.
MERITS
This court has not decided whether a general policy of shackling a defendant for a proceeding in front of a judge violates 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, 544 U.S. 622, 125 S. Ct. 2007, 161 L. Ed. 2d 953 (2005) (extending the general prohibition on the use of shackles 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, 544 U.S. at 630; Duckett, 67 F.3d at 748; see also Illinois v. Allen, 397 U.S. 337, 344, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970). Thus, HN8Go to this Headnote in the case.the general rule is that a court may not order a defendant to be physically restrained unless the court is “'persuaded by compelling circumstances that some measure is needed to maintain security of the courtroom, [**15] '” and “‘the court must pursue less restrictive alternatives before imposing physical restraints.’” Gonzalez v. Pliler, 341 F.3d 897, 900 (9th Cir. 2003) (quoting Duckett, 67 F.3d at 748). In the present case, however, fear of prejudice is not at issue, as a judge in a pretrial hearing presumably will not be prejudiced by seeing defendants in shackles. See United States v. Zuber, 118 F.3d 101, 104 (2d Cir. 1997) (HN9Go to this Headnote in the case.“We traditionally assume that judges, unlike juries, are not prejudiced by impermissible factors.”).
In Deck, the Supreme Court stated that HN10Go to this Headnote in the case."[t]he law has long forbidden routine use of visible shackles during the guilt phase; it permits a State to shackle a criminal defendant only in the presence of a special need." Deck, 544 U.S. at 626. In discussing the “deep roots” of this rule, however, the Court noted that “the rule did not apply at ‘the time of arraignment,’ or like proceedings before the judge.” Id. Presumably, the reason the rule did not apply during proceedings before the judge is that the primary concern, expressed throughout the Court’s opinion, is the effect on the jury of viewing the [**16] defendant in shackles. See, e.g., id. at 630 (“Visible shackling undermines the presumption of innocence and the related fairness of the factfinding process.”); id. at 631 (stating that one reason judges must seek to maintain a dignified judicial process is that the “courtroom’s formal dignity . . . 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”); see also, e.g., Gonzalez, 341 F.3d at 899-900 (stating that “the sight of physical restraints may have a significant effect on the jury”); Rhoden v. Rowland, 172 F.3d 633, 636 (9th Cir. 1999) ("[S]hackling, like prison clothes, is an indication of the need to separate a defendant from the community at large, creating an inherent danger that the jury may form the impression that the defendant is dangerous or untrustworthy."). Because the primary concern is the effect of physical restraints on a jury, we have found no prejudice to a defendant where the restraint was not visible to the jury. See, e.g. [**17] , United States v. Collins, 109 F.3d 1413, 1418 (9th Cir. 1997) (rejecting the defendant’s due process challenge to being chained to a table during his trial, reasoning that, “after weighing various alternatives, the [district] court adopted a means of restraint that was not visible to the jury,” and concluding that he failed to demonstrate prejudice because there was no evidence that the jury was aware that he was restrained); Castillo v. Stainer, 983 F.2d 145, 149 (9th Cir. 1992) [*1013] (finding that “the court’s error in too quickly permitting shackling” was harmless because, “[a]s far as the jury was concerned, the chain was invisible”), amended by 997 F.2d 669 (9th Cir. 1993).
Defendants contend that the shackling policy violates their due process rights. They point out that before a defendant 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 alternatives are available. See Jones, 899 F.2d at 884-85. They argue that due process requires that there be no restraint whatsoever without an individualized [**18] determination. This may go farther than due process requires. But we do not have to reach this question. This case does not involve the question of shackling in the presence of a jury or during a trial.
The Second Circuit has concluded that the rules regarding shackling do not apply in proceedings before a judge, rather than a jury. Zuber, 118 F.3d at 102. In Zuber, the court held that HN11Go to this Headnote in the case.“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 restraints does not apply in the context of a non-jury sentencing hearing.” Id. at 102; see also DeLeon v. Strack, 234 F.3d 84, 87-88 (2d Cir. 2000) (rejecting the argument that the state trial judge “improperly delegated the decision regarding whether or how to restrain him to a corrections official rather than independently evaluating the need for the restraint,” and reasoning that, “even if the state judge did not exercise independent judgment, it is not clear that such an independent exercise of discretion is even required when restraints will not be visible to a jury”) [**19] (citing Zuber, 118 F.3d at 103-04).
The court distinguished the situation from proceedings in the presence of a jury, reasoning that the possibility of juror bias “constitutes the paramount concern” in cases requiring “an independent, on the record, judicial evaluation of the need to employ physical restraints in court.” Zuber, 118 F.3d at 103-04. The court noted that the United States Marshals Service was responsible for court security and that district judges therefore consulted regularly with the Marshals Service and deferred to its judgment regarding “precautions to be taken at hearings involving persons who are in custody.” Id. at 104. Finally, the court stated that, “[w]e presume that where, as here, the court defers without further inquiry to the recommendation of the Marshals Service that a defendant be restrained at sentencing, the court will not permit the presence of the restraints to affect its sentencing decision.” Id.
Similarly here, the magistrate judges of the district court discussed the issue among themselves and consulted with the Marshals Service about the balance to be struck in proceedings where, as Magistrate [**20] Judge Charles F. Eick stated, “security-related information concerning defendants typically is incomplete.” Judge Eick explained that the court made the “institutional decision” in favor of the shackling policy after several formal and informal meetings.
The security concerns addressed by this policy emerge due to the Central District’s practice of conducting proceedings in a large courtroom on the third floor of the Roybal Courthouse, in the presence of multiple defendants, where the risks of conflict, violence, or escape are heightened. The policy was instituted following consultation with HN12Go to this Headnote in the case.the Marshals Service, which is charged with providing for the security of the United States courts. 28 U.S.C. § 566(a). Cf. United States v. Mayes, 158 F.3d 1215, 1226 [*1014] (11th Cir. 1998) (stating that the district court was “entitled to rely in part upon the expertise and experience of the Marshals Service in making its decision” to impose physical restraints on the defendants).
The record indicates that this policy is less restrictive than the previous policy requiring full restraints. The policy leaves in place the option for a defendant to move the court [**21] for removal of the shackles, and an individualized determination may be made at the time of the motion as to whether extenuating circumstances warrant removal of the shackles. We further note that understaffed security officers must provide courtroom security in a large and unsecured space.
The policy at issue concerns only proceedings conducted without the presence of a jury. It was adopted by the magistrate judges of the court following consultation with the Marshals Service to address legitimate security concerns in the Roybal Courthouse. For the foregoing reasons, the district court’s judgment to uphold the policy is AFFIRMED.
