well as constitutional authority for its decisions and here the ninth circuit had neither appellate review was not authorized under section twelve ninety one which applies only to district court decisions that are final nor under the all writs act and because the correspondence criminal cases had ended long before the court of appeals ruled their due process claims were accordingly moot on your first point in that you didn't mention if the latter ordered i mean what about shackled during the trial so it seems to me it's a different issue justice kennedy i don't think it necessarily has to affect the trial recall here for instance that the ninth circuit's decision in this case created a split with the second and eleven circuits and in both of those cases there were challenges to the use of physical restraints that came from it came after the fact but what if the person is convicted and as one of the say the he does some part of the pretrial process they had a suppression motion that was affected because they couldn't contribute to their own defense they couldn't communicate with counsel how did that i saw an argument how can i do the shackles affect their ability to communicate with counsel well i would refer you to the allegations that respondents have made throughout this litigation so they've made allegations for instance that there were criminal defendants who were unable to raise their hands and get the attention of their counsel didn't mean that's the question you're being asked i mean suppose that shackling a person arms and legs when he goes before the magistrate does not affect the outcome of this trial where he wasn't shackled all right so that's certain litigant or even most litigants who want to raise that type of claim should they are able to get relief after a final judgment because they can show prejudice the question is whether the type of claim by its very nature is one for which a post conviction the question i i asked you how does he raise the issue i think it would be very difficult in an instance in which there was no allegation that it had any effect on the way that the proceedings on so you're saying if in fact it wouldn't i'm being very hypothetical absolutely hypothetical i don't believe it would ever happen but if by some chance they have a policy in a court of federal court of the united states the people will come in bound and gagged into body armor hung upside down ok you're saying even if that so that person in this country has no way of challenging that order is that your point and if that is not your point what does he have by way of procedure to don't know maybe he will win but that's your point they should ask for mandamus the preconditions for mandamus are first of all that you have to show clear in title meant to the writ which respondents can show in part because the complied with the ninth circuit's existing precedent and with precedent of this is that was that you have to know it i mean is it the case that where for example nobody ever thought anybody do anything like this well to a prisoner but they do something really terrible but it is not absolutely clear and now you're saying because it is now absolutely clear there is no remedy whatsoever is that what you're saying let me push back just a little bit just as prior on the premise of your question this is something that happens in district courts all around the country it's a practice in roughly half of the u s marshal field offices other field offices use like restraints and initial hearings so i don't want to accept the premise that this is something truly exceptional i know good questions procedural sure i'm still trying to get an answer so many cases are not absolutely clear and i want to be sure what you're telling me is there is no remedy so in a case where a lit can't show or even allege prejudice i think it would be very difficult to get a remedy but that doesn't differentiate this claim from any number of hundreds of different decisions that a district court makes throughout the course of litigation which are very difficult to get your view of i think that the question that's being asked of you is there a set of claims potentially that would not have anything to do with the outcome of a trial or the outcome of a sentencing or even the outcome of a pretrial proceeding but would implicate a person's interest in liberty and you know whether you want to do the shackling or we've had claims that have to do with forced medication or excessive bail all of these things arise in the context of a criminal proceeding but don't have anything to do with the outcomes of that proceed and just have to do with independent liberty interests that are implicated in that proceeding and what i think people are asking you is it seems harsh to say that there's really no way of presenting those claims so i take the point justice kagan but that is not due process interest the respondents have invoked throughout this litigation i take that point but it seems as though respondents have changed their minds a little bit so i mean i think that that's the interest that they're now asserted and so i would say that nearly everything that a district court does is designed to serve multiple interests not just  challenge conditions of confinement in a civil action i think if what they were challenging was in fact just liberty component abstracted away from anything related to the way that their criminal proceedings actually unfold then they might be able to bring a civil suit and i think that seems i mean i don't know another case where we've said that the cotterell order doctrine rides on whether you have a way of bringing the same claim in an entirely separate proceeding you know here something's happening to you in the criminal process and you are saying that your grief said oh no worries just go file a civil class action but that seems like a requirement that we've never countenanced before that's correct but the reason is because no litigant has ever claim if prisoners who were still in the pretrial face of the proceedings brought a class action and their case later becomes moot what a civil class action  and their case later becomes moot that it would still be an existing class because new people would be in the class would the government object to that class action on grounds that it's improper class action is a problem action that's correct and these people are not likely to have the wherewithal to hire counsel on their own so it seems that the processing remedy heard of a class action that would interfere with the with a pending case as this one appears it might be trying to do part of the claim here is that there's an automatic shackling and that district courts are not pursuant to this to the statute giving individualized consideration to whether people should be released or not that second issues will not be susceptible to class treatment of any kind that's correct and the reason that i was somewhat hesitant in referring to the close to the possibility of a civil suit was i think you have to make sure that what the civil suit is challenging is the general policy and not some case pacific decision but i took it was obviously of partial it's only a partial solution to this problem that's right but if the court is concerned that there is a policy that generally applies that would never have appellate review and i took that to be the premise of justice kagan's question and then that's what a civil suit would respond to who do you sue and i mean it's not a nine hundred eighty three action this is federal sure you sue the individual security and they're the ones who are applying the policy that's alleged to be on line but what is the cause of the action begins action it's a cause of action as this court recognized in armstrong directly under the constitution and direct so that's a big it's an ex that hasn't been brought before and if it unfortunately perhaps or for job the court is held we're not creating new buildings actions so so so are you sure that you can bring a bit of ins action against the individual and six weeks away but by that time the trauma who is now moot it's not moot if respondents keep their criminal cases alive i refer you back to the second eleventh circuit decisions those decisions were just regular  decisions following in one case there was a guilty plea in the other case they proceeded to final judgment after a jury trial so had respondents appealed their cases wouldn't become moot the only reason that their cases are moved here is because three of them decided to plead guilty and then not appeal and then charges were dismissed against the fourth so there is no reason to assume that there wouldn't be an opportunity for appellate review i would also note that if this court is concerned in individual cases that there might be a decision with respect to use of restraints against a particular defendant and then there would be no opportunity for that defendant to get immediate appellate review this court already has authority under the rules enabling us to twenty eight u s c section two zero seven two to issue rules authorizing interlocutory appeals in certain categories of cases that would be far preferable to creating a new fifth category under the collateral order doctrine first of all this court could bring to bear the collective wisdom of the bar he could make sure that the exception was constructed in such a narrow and specific way whereas when this court recognizes a new category under the cl so in response to the first thing that you said rules enabling act and allows this court to make rules not just in the civil context but in the appellate in criminal context as well but to your question about why the collateral order doctrine doesn't apply i want you to imagine for instance a criminal defendant who wants to represent himself and he says i know that this is not likely to affect the outcome of the proceedings in fact i'm willing to stipulate that it absolutely will not however i have a liberty autonomy and dignitary interest in being able to represent myself and those are values i can't get back if i'm forced to go to final judgment and appeal after the fact is there any reason why we would have to address the question of statutory jurisdiction if there is no article three jurisdiction you know newness would be probably the most straightforward way to resolve the question can i just ask you to finish what you were saying i didn't understand you have this hypothetical and what would we do with a case like that well my point is that there is nothing that differentiates the dignitary and autonomy and liberty interests that respondents are asserting from similar interests that could be assumed that it just left me hanging because it seems to me that he should have a way  of getting that claim you know thought about i think this court has recognized that because the final judgment rule has its most ardent application in the criminal context that it is extraordinarily reluctant to undermine the authority of the district judge to cause disruption to invite gamesmanship from litigants who want to press pause on on their proceedings while they get an appeal that is extremely reluctant to allow a midstream interlocutory appeal and remember that respondents have been conspicuously silent about what should happen during the course of this appeal whether they have to stop all the proceedings but if what they're really arguing is that these are interests i can't get back if i'm forced to wait then it strongly seems to suggest that you would have to hold all the proceedings and i think it's very hard to imagine a case like stack about bill claims coming out the same way if every time someone wanted to challenge bail a denial of bail on appeal you have to pause the underlying criminal proceedings there are other differences between the cases that this court has recognized under the collateral order doctrine as well first of all going to the nature of the right the right that respondents have invoked and i understand that they've changed their argument a little bit but throughout this litigation they have invoked the right under under deck versus missouri which is a right that grounded in the fairness and ac underlying proceedings that's very different from a bail claim a bail claim also as justice jackson emphasize in his concurrence in stack it's the sort of thing that you never have to stop the underlying proceedings in order to review on appeal and it's also dissed distinct from claims like this court has recognized and sell versus united states where the severity of the physical interest was completely different in cell versus united states which concerned the forcible administration of anti psychotic medication the argument there was it's such a severe intrusion on my personal integrity that you can never order this against my will no matter what whereas here respondants argument is the same restraints that can be applied against me in the detention center as i've been transported to the courthouse being held in a cell within the courthouse and being transported to the courthouse door nevertheless have to be taken off of me during the course of my hearing within the courtroom now that's a completely different order of magnitude if the court has no further questions about the collateral order doctrine moving on to the question of mutinous as i said i think this is probably the most straightforward way for the court to resolve the case  of the ninth circuit panel ruling we are instead saying that the case is moot because respondents criminal cases ended no respondent took an appeal and for that reason there was no live controversy with respect to their due process claims now the ninth circuit in its on blank ruling said that the reason that the case is not moot is because it was a functional class action respondents have entirely abandoned that argument here they rest instead on the exception to move notice for cases that are capable of repetition yet of eating review their argument is that some of respondents are reasonably likely to commit future crimes to get caught to be prosecuted within the southern district again and then to be forced to undergo physical restraints again but this court has consistently refused to allow a litigant to keep a controversy alive by making a prediction of his own future criminality literally going to be true right to him to forward in fact arrested again sure there were a few differences with turner first of all that was a case involving still standards of conduct not criminal ones second of all in that case there was an allegation that the litigant had an inability to conform his behavior to the required standards of conduct he was more than thirteen thousand dollars in a rears on child support payments with no evident means to pay in this case respondents make no allegation that there are unable to prevent themselves from committing future crimes furthermore there is something a little bit different with respect to this crime than most i mean this is an illegal entry crime and i suspect use in fact see extremely high levels of recidivism for that crime because people often have their families here so it's  not uncommon that people continue to try to get into the country that's that's right but this court has never relied soley on probabilities the point is in turn or another distinction is that what was being challenged there was the right of a court to apply those standards to the litigant in other words the litigants argument was you cannot apply civil contempt against me under these circumstances because i don't have a right to an attorney and i have no evident means to to pay here there's no argument that the rule prohibits the criminal law prohibiting entering the country illegally can't be applied to respondents that's and that's never been their argument and that isn't their argument here and this court has consistently been been unwilling to assume that litigants will flout laws that they concede to be valid and in fact has assumed the opposite is true  and he thinks that was unlawful what's his remedy there bail denial under this court's decision stack can be immediately appeal because it's collateral order is under the collateral or whatever why is this different so i think it's different in a few respects first said you said several summarize the main reasons why it's different sure so first of all bail is not a decision about courtroom procedure by definition it affects things that happen only outside of the courtroom and the reason that that matters  justice prior is because the collateral order doctrine is based on the premise that there are certain orders that can be decided immediately on appeal without having to know anything about the way that the case unfold at that point but  thinking of is after all you deny bail the person's liberty is constrained years in a cell and here the person's liberty is constrained he is in a shock both are fairly important to him and but the difference you say is you can continue with the proceedings so that was the difference just as jackson emphasized there is another difference as well which is that for a bail claim the interest at stake is far more substantial we're talking about whether the litigant i don't know there i mean one of the persons in a cell and here the person is in physical shackles right but they don't sure but the difference though is with a bail claim you're talking about whether the litigant will be at liberty or behind bars for the entire duration of their criminal proceedings which could be weeks or possibly even months here we're talking about individual hearings which last minutes or possibly hours so i think it is a very different  the difference is is pretty significant and similarly we think the nature of the right is very different again i understand that they've changed a little bit what they're conceiving of the right as but the right that they've invoked under deck versus missouri is a right about accuracy and fairness and that's very different from the bail right if there are no further questions i'd like to reserve the balance of my time thank you thank you counsel period of months courts of appeals have authority to review those actions under either the collateral order doctrine or via extraordinary read now collateral order review under cohen exists because the decisions  conclusively determine an important question that was entirely separate from the merits having nothing to do with the guilt or innocence of these particular respondents and it was effectively unreviewable on appeal from a final judgment could could you speak to the government's view that this is kind of a new theory for you well i think the government simply wrong from the district court on we argued this is a deprivation of liberty under the due process clause the district court chose to address it has a fourth amendment violation but that was not our theory of the ninth circuit of course decided this is a deprivation of liberty they're quite clear about that they talk about young berger's as romeo and that this is a deprivation of the fundamental right to be free of restraints and now we've talked about jack because dec talks about what goes on in the courtroom and the court said that in dak that right that liberty interest protects other rights including the presumption of innocence the right to consult with counsel and participate in one's own defense and of course the dignity and decorum of the court and they got heated hamleys screen during chatting during trial yes was during the penalty that would mean that the criminal proceeding would be stopped in its tracks do you mean anything i think that's just wrong i mean there's no stay is a matter of right in these cases in every case if somebody wanted to stay and they'd have to make that decision because of course these individuals or individuals not who are detained but who simply couldn't afford bail so they are in jail while this is happening and it's up to them to make a decision whether to ask for stay and it's up for the district court in the first instance to decide whether or not it's proper and then the court of appeals in the second instance whether or not to allow a stay under equitable principles and i don't think if you look at this case in none of these cases did the individuals ask for a stay of proceedings for just reason they were already in jail but here the government has said i think if i interpreted correctly that of course you have a right to challenge this policy but there are three ways that you can do it one way is when you appeal a conviction the person says and one other thing that hurt me in this process was the shackle before the magistrate the second way is if this is an extreme case you're entitle to manda but he thinks it's not an extreme case the third way is you get your client in with a group of others you bring an ex party young action which is actually the most straightforward and you challenge the policy against the marshal service and you say just what you've said so i guess now my question is going off for those is why not use one of those three at least if you're brought all three one of them should work because of course you should have a method of challenging the policy let me see if i can if i can hit the syria quickly so in the first instance this court has said in arizona vs film and on tape that when one attacks the final judgment of conviction seeking to overturn the final judgment of action the court will do that only for two reasons one for trial error that occurs in the presentation of the case to the finder of fact and the other is in cases of structural they are having to do with the constitution of the trial process deprivation of this right doesn't seem to fit into either of those categories the second suggestion i believe was the class action suggestion and i note that this court has never said that the availability of some right or some forum to pursue litigation outside of the instant proceeding was relevant to collateral order jurisdiction order mandamus and i'd point to both stack and cell as being contrary to that and i don't wish to interrupt the syria but is there any doubt that you as a public defender could bring a civil class action it's in my mind quite unclear  i and i'm not an expert on civil class actions and it's something that we're just unclear about based upon the statute and the rules but in stack and so on stack this court specifically said that the bringing of a separate vs action in that case was improper in cell justice scalia in his dissent suggested that the force medication order could have been challenged in another proceeding an administrative procedure act challenge to the order of the bureau of prisons to medicate the individual there and what the court said that wasn't relevant to the availability of collateral order jurisdiction in that case all of these difficulties that you're mentioning  no no that doesn't mean it's it's done but it certainly makes it a lot easier for we certainly appreciate that concession and we'd certainly examine the alternatives but i think it's clear that it's certainly clear that we couldn't do this after final judgement despite what they've said i think we can do it from man and i think this is an exceptional cases this court has set it out because every defendant was shackled without any individual eyes cause and every pretrial proceeding over a period of months that's hearings that last five minutes hearings that last many days through the entirety of their present usually when we think about writ of mandamus it's not that we give them when an issue is super important it's that we give them when we think the outcome is super clear and no one could say that about this case could well there's two sorts of mandamus that this two sorts of types of mandamus cases where this court is allowed to reaffirm the issuance of mandamus one of those cases where there is an absolutely clear rule and the district court seems to be violating that rule but another species of mandamus is that that the court authorized and slag and hoffman and mallard indeed i'd say even in cheney where there's a fundamental unresolved question about the authority of the district court and we believe the district court had no authority to shackle all these individuals without making an individualized determination that they presented a risk of violence or schedule counsel why doesn't that take care of your problem that collateral order jurisdiction existed to review this sort of claim in the ninth circuit found at the ninth circuit panel found collateral order jurisdiction the court of appeals said that we're going to leave that precedent undisturbed but because we're not going address the individual shackling decisions we're only going to dress the policy we see mandamus is a better route to get it that council the government suggests that the functional class action theory to get around this problem you've aband a fair characterization so i don't know that i'd say we've abandoned it but we fit squarely within a very clearly established exception of the mootness doctrine that this matter is capable of repetition yet evading review well before we get to that  could just but if you haven't abandoned it i don't see a brief so what am i supposed to do about that well i think this court's free to affirm on the basis of the ninth circuit's opinion without our briefing or you think it's right you haven't defended it well this court did something very similar in richardson versus ramirez where there was no certification of a class action in the court found that wasn't essential to article three jurisdiction but because we have a simple clear route we don't want to ask this court to break new ground for ok so that's helpful right there thank you but you have a decision from the on bank ninth circuit saying that this case is not moot based on the fact that it is a functional class action and it's pretty remarkable that whether you've abandoned the point or not you certainly have not made any effort to defend it that's correct what does that say about this theory in the on and on bank court of appeals well as to us it says that we're more comfortable staying within a firmly established exception to mootness that this court has ruled on  gerstein in footnote eleven this court said that pretrial detention isn't necessarily brief speaking to the individual named plaintiffs so that no one individual would have an opportunity to fully litigate their claim and yet the individual could show up for repeated deprivations making the matter capable of repetition your debating so this is beyond that i point that point out that the article three personal stake requirement is no different for criminal defendant then a civil plaintive or civil defendant and what this court has always looked to is whether there's a reasonable expectation or reasonable likelihood as a factual matter based upon the facts in the particular case involving the particular litigants it's not a rule that's intended to control the conduct of litigants outside of the court room it's simply a rule that allows this court to determine whether or not there remains a live controversy that can be appropriately decided in this court so we're at the moment it's very interesting helpful but i'm thinking if we if we if we go with you on i don't know what door that's opening up because it's really not moved because there are other people that will be subjected to it not your clients then i'm thinking well if we go on the mandamus i'm going to hear just what i heard that there are a bunch  districts that have this and it isn't as far out as my imaginary example and then if i go on collateral order i'm going to run into the problem that we just said that this would delay the proceeding rather than his like being in bail and then they say but bring in x party young action that's fine and and how long would that take i mean to find five people down there who are going to be subject to it and you go into court we already have the order isn't and there we are we that but you know the truth is that doesn't obtain review of the decisions to shackle these individuals in their cases and of course this court has already said i mean this thinking of o'shea this court said in the shade that it's certainly not a favored course of action to ensure injunctions that will interfere with the conduct of criminal cases in the normal way the appropriate way of reviewing decisions in individual criminal cases has always been through appeals in those individual difference between  what is the difference between a case involving allegedly unlawful shackling when a person is brought to a proceeding in court where there is no jury on one hand and a case involving one say allegedly unconstitutional shackling while in the jail well it in the latter case without fall within the collateral water doctrine no i don't believe so because courts don't make decisions in criminal cases about what happens in detention centers courts do make decisions about how individuals come before them about how they're presented in a public courtroom well i mean that in so far as the there are two possibilities for your claim one is that it has some effect on the criminal case and if that's the claim then that does not fall within the clout of order doctrine because that could be reviewed after a conviction but if the claim is irrespective of any effect on the criminal case this violation of my constitutional rights because it violates a liberty interest the dignitary interests then explain to me what is the difference between those two situations it's just the happenstance that one occurs in court and want to couriers a cross the street in the jail we think the fact that it occurs in court is meaningful i mean it is you know we we believe the court room really is a sacred space we believe judges control that space  that individuals come before the court with dignity and with autonomy and with their liberty interest protected and that there was a relish stablish right it common law that under this court's precedent is incorporated in the due process clause to appear before courts free of bobbins and this happened regularly at the common law individuals would come from prison from newgate prison terrible condition shackled hand and foot and without question their bonds would be struck off for their arraignments for there is the countervailing interest which of course is the safety of those in the courtroom and the safety of the judges and your scenario of the person coming in from newgate  i understand that's one individual here according to that the record from the marshals you have many situations where there are a lot of people and the idea that they're going to undertake an individualized determination in every case is just something that they don't have the resources or time for i disagree and i think that the record here shows that not to be the case i mean so for nearly fifty years of the district's existence this procedure was followed it's the procedure that's been followed since may twenty seventeen in the district that individuals come to court that if the marshals have a reason to shackle them they usually what happens today is that they come and they tell the lawyer we're going to bring your client out  shackles for these reasons and the lawyer can either decide to challenge that before the judge or not as they choose to do so this procedure has worked through you know centuries and i know there are situations where in turn for pretrial decisions you do have more than one person i mean there there are courting the what the marshal say there are many people in the courtroom waiting to get in the courtroom and presumably in many cases the lawyer is going to say i don't want the client to be shackled and then you have to have an individual determination right with the assistant u s attorney whatever it is comes in and says well here's why we think he should and the lawyer says no and then the judge has to make a decision on that what every one of however many people are there so it's just not know why he should or why he shouldn't it's that there's evidence or there isn't that the individual presents a danger of escape or violence in the courtroom all i can say is this is done day in and day out and it's done without a problem in some districts for instance the district of arizona particular procedures have been adopted to address these matters before the individual first comes to court and other districts like ours the matters are dealt with in court where necessary i suppose there are many situations where people don't know much about the individual right the situation we have here where for example there are many people like the recidivist clients obvious you know something but they arrest somebody and bring them in and the question is should they be detained and we don't know anything about him well in our district they know quite a bit about them by the time they get to court in our district individuals don't come straight to court they go to the m c c they're interviewed about social issues which include gang history that sort of thing they meet with pretrial services which runs a criminal history check their strip search so by the time people actually get to court they know quite a bit about them but i'd say also that that's reason reversing a little bit the presumption of the common law the common law presumes that individuals won't be shackled unless there is cause and so it's for the marshals or the government to bring up that evidence of cause and i think they've been able to do that where it's been appropriate that the individual is acting out in the holding cell that the individual in the course of his arrest was violent with the officer is that the individual has a mental illness that makes him in some way more likely to be violent some particular examples what are there ninety nine districts in the country yes how many of them have had a shaklee policy similar to this one so we don't know that was certainly the record evidence in this case pertains only to the southwest border in the ninth circuit and some of it was disputed but what's clear is that the courts along the southwest border from texas through our zone up had this policy prior to two thousand and thirteen and then the southern district of california instituted that policy  appeared to say that that's a small percentage compared to the full certainly it seems that way to me based upon the record we've got in on in the home the individualize determination sure name yes i mean certainly that's my understanding of many from surveying my fellow defender is that that's the case in many of the districts around you have a higher a much higher volume of people don't you in that those part of the country than elsewhere we do indeed your honor but we've had that same high volume as a matter of the dignity of the law to say that well we're going to presume there's going to be another violation we understand that with the aliens with the families that they have this strong temptation to try to come in any way but it's very difficult for us to write opinion only very firmly for the argument let me be clear we're not asking the court to presume anything and that's simply because the most likely evidence that something can happen is that it has happened the most likely evidence it's something for the most probative evidence and something is likely to reoccur as it already happened in this dispute between respondents in the government has already repeated itself so it's not merely a probability it's not merely a presumption or an assumption but there's actual facts that show it's likely to or that that suggests if i look at somebody and he has a very very very long rap sheet i say well you know he clearly does this every month he's just going to be here again and give him a different rule from somebody who's a first offender well the court has always said that in applying the capable of repetition yet evading review exception the court looks at the individual case and the individual litigant in determining whether or not it's likely to repeat itself so the court isn't creating some rule for all criminal cases in some way courts looking at these cases i mean let me know there's also one other respondent who i think is relevant to this consideration because the government's made the argument th individual here mr running the respondent the disabled iraqi combat that who has chronic and severe p t s d causing him to over perceive and over react to threats and it's as a result of that at that he came into conflict with th the where he lives in to be a home relies on the be a for services so i think there's also that individual who is likely to come into that same conflict and the other thing i'd point out is that these individuals when they come back into court they are indeed presumed innocent  government says we're asking you to say that they are going to commit new crimes you know we're asking this court to find that it's reasonably likely reasonably expected that they may find themselves in the southern district of california just curious because i did have to write this case of the shock when before this and there is a full page more than a page of the citations that are not simply from blackstone but almost all of them are from american courts and the conclusion is trial courts that what they show for like a century is trial courts may not shackle defendants routinely but only if there is a particular reason to do so now we're those old jury cases i don't remember answer your honor i would point out though that this shocking occurred not only before the magistrate judges in the initial proceedings but before district court judges in substantive motion hearings an evidentiary hearing so it went on you know lax john was in fact just talking about jury cases or blacks and he was talking about cases in courtroom and i think it's clear the blackstone wasn't talking just about jury cases the very quote that mentioned in dak comes from his chapter  arraignment and it's incidents and it talks about the arraignment about coming into court being called to the bar asked to state one's true name and being informed of the charges and asked to plead and blackstone states the rule individuals sometimes there would be partial relief in motion hearings where people would have you know handcuffs taken off but on the whole five point shackling was the rule in every court and you can see that in some of the examples in the record in  briefs where for instance a district court judge who says i've got a lot to do today i don't have time to make individual determinations that's a district court judge talking about what's going on in his courtroom the woman in the wheelchair who we talk about in the brief longer but in the central and the central district of california there was a policy of using leg shackles only in the initial appearances only and that was the howard case which was that begin the first litigation ever concerning shockley that established the right to collateral order jurisdiction in the circuit on over these matters and if there is no rule there's no blanket rule but an individual district judge orders on the basis of a vial it's a risk of a state and so that is clearly a due process violation and subject to the collateral order doctrine the court did say in stack that there's a distinction between the discretionary calls that a judge makes and setting the amount of bond versus the refusal to reduce an excessive amount and so the court could could could construct the jurisdiction here or there could be  you could get an individual wants to termination could you not could i thought under this rule and the judge could order that the shackles be removed any judge could order that the shackles be removed but no judge made an individual determination on the basis of danger or risk of escape and we asked for that many times and were told again and again and again you're not going to get that you don't have a right to that some judges said will consider medical extremity in determining whether or not will remove shackles in whole or in part but the record is really clear in the ninth circuit on bonk found that there was really very little variance and there was no individualisation meaningful way that this was a blanket action argument that's correct they do state in their opinion however the principle that was mentioned earlier that we generally don't presume in their case law that someone will commit a criminal  the government points to that in saying absent the class action mechanism you really can't get past that circuit case law so if i seems to me that should we let the ninth circuit figure that out if we don't accept the class action that can his and they use it's a big but it hypothetically if we don't accept that should we just remain and let them decide whether this is capable of repetition or not so i certainly think that this court has done that in the past in its appropriate course what's what happened here was that no one in front of the court of appeals can contended that the matter was moot because the respondent to lost their personal stake and so the ninth circuit was never made aware of the underlying facts including many facts that are in the record there are all of the facts concerning mr ring and mr sanchez gomez are in the record but they weren't litigated they weren't brought before the court because neither the government nor we contended that respondents had lost their personal stake and it just wasn't discussed so would certainly be appropriate to remain on the ninth circuit for them to make an initial determination the other thing i'd say is i don't want to come back a little bit in the government the government's pushing very hard on the idea that this court has said that it's never appropriate to consider the possibility that an individual come back into court in a criminal case in the court has never said the doctor and doesn't apply in criminal cases and in fact the language in gerstein is directly to the contrary of the rule the new rule if the government is suggesting this court document do you think we could say well we don't know whether we have jurisdiction under the constitution but we're going to write an opinion on various other interesting legal issues that are presented in this case  now i don't believe so ask something it might it's probably not legally relevant i'm just curious about it and it's some point why didn't one of the lawyers in your office pick up the phone there are a host of organizations that i can imagine bringing a suit like this one outside of any individual criminal case why didn't that call get made to one of those organizations well there's no evidence in the record about this your honor but since if i might there has been we've had this and other issues that have come up where we felt that it would be appropriate to litigate them through class actions many of which have never led to challenges because we thought they could only be brought through class actions or civil litigation and the  lawyers the resources just aren't there to bring those cases in san diego it's that simple thank you counsel mr kim you have six minutes remaining thank you i have a number of individual points but i think it's worth pausing to just acknowledge the breadth of respondents argument respondents argument is that every single decision to use restraints in any criminal case and possibly other case management decisions as well can get an interlocutory appeal that compliance with circuit precedent by district court qualifies for mandamus relief and that under article three a litigant can point to his likelihood of committing a future crime in order to keep his case live starting first with the question of my friend several times brought up gerstein as an application of exception for cases capable of repetition yet evading review it was not gerstein was based on the fact that there was a certified class action there there is no certified class action here it makes a difference because a class has its own interests that continues even after the individual litigants is over respondents have said that it's just a prediction based on general likelihood probability that a future crime will be committed this court has never relied on those sorts of predictions and in cases like o'shea lane and spencer has explicitly said that a prediction of that sort is not permissible finally he brought up mr ring at no point during this litigation not even at the which before this court has respondents ever suggested that mr ring is likely to commit another crime going now to the question of the collateral order doctrine justice kennedy you have several times asked a question couldn't you have this this issue come up in the context of a suppression ruling the answer is yes and that would survive final judgment that could be challenged on appeal even if the litigant was convicted or even if he pleaded guilty so there is no reason why you can't challenge that as a result from final judgment moving next to the question about justice and them in your district like most doesn't have a waiver of appeal rights with all of their clea it's routine it's routine to have the the waiver which means this issue is that likely well it's routine for litigants to preserve suppression objections and to challenge that on appeal that's something that happens all of the time  and there's no reason that that couldn't happen in a case where someone alleges for instance that they were unable to contribute to their own defense that they couldn't write notes or get the attention of their attorney as respondents have alleged here justice justice kagan you asked about whether this was a new theory and my friend said we've been arguing all along that there is a liberty interest that is completely true but it's a liberty interest within the context of the common law right under deck versus missouri which is the right that they've been invoking throughout this litigation at all stages including before this court there was a question about whether this is truly an exceptional case sufficient to justify mandamus we did a survey of u s marshal field offices in our understanding is about half of them use restraints at all initial appearances about one hundred fifty out of the three hundred field offices another hundred or so that five that's full restraints it's both wrist restraints and also like restraints another hundred or so use only leg restraints and then about fifty field offices don't have any restraints at initial appearances so the ninth circuit is actually very much the outlier here furthermore my friend brought up the idea of brought up the case in flake and how the argument was that a type of order that had never been issued before in order requiring the criminal defendant to undergo a battery of psychological and mental examinations that that was a civil case that was a mandamus case and justice ginsburg as you might be pointing to this court has never recognized an appropriate use of mandamus in a criminal case where the order sought to be challenge was not the functional equivalent dismissal finally back to the collateral order doctrine the doctrine is a balancing of interests everyone recognizes that it is useful in certain cases to get an immediate appellate ruling to deal with a particular legal issue but we also recognize that it can come at a very steep cost it's incredibly disruptive invites gamesmanship and undermines the authority of the district judge we're talking here about a type of order the use of restraints that happens hundreds of times in district court cases all around the country and because they're trying to abstract out the part of their argument related only to dignitary interests or autonomy interests that argument can't be kavin it could apply to essentially any decision that a district court makes regarding some sort of trial procedure as long as you can claim there's no way that it's likely to prejudice me usually the assumption is opposite the opposite that appellate review is there in cases where there is prejudice and we don't want to change rules merely litigant can claim that there is no prejudice when you say i don't know can you say if the government would i don't want to put cooperate that's too strong but at least would not oppose an effort in any of those hundred fifty districts by defense attorneys organization to try to challenge this policy either through as you suggested an ex parte a young proceeding or as you also suggested an ordinary appeal where they haven't waive the right to appeal and it says explicitly like reserving the the suppression motion we reserve the right to challenge the restraint motion well started so starting with the last part of your question the government left on which were the second and eleventh circuit incisions that were from final judgments didn't contend there that it was improper for the litigant to argue that they had been improperly restrained in those cases with respect to your question about the civil suit i can say only that the government would not oppose it in an appropriate case thank you counsel the case is submitted