may please the court jeremy christensen on behalf of the poet dennis claiborne i will try to reserve three minutes of time for rebuttal the constitutional right to a fair trial is vital and fundamental whether it is in a criminal guilt phase proceeding a sentencing proceeding or a civil trial that is why this court inducted versus giddiness acknowledged consistent with the holdings of all of the other courts of appeals to address this question that w an individual's level of dangerousness is a question before the jury in a civil proceeding it is a violation of the right to a fair trial for that individual to be visibly shackled that rule decides this case and decides it favor mr claiborne was a pro se disabled prisoner litigant who presented a three day case to the jury in which they had to decide whether he had posed a threat to officers  martin that justify their use of force against him was he only wearing shackles on his feet under think oh no your honor he was wearing waist chains if the court looks at page one hundred sixty seven of the excerpts of record i don't think there is anything equivocal about officer blouse or expert testimony about what mr claiborne was wearing at that moment defense counsel says to her blouse or now we've heard a lot about waist chains in this responses yes mr claiborne is wearing them right now i don't think there's anything equivocal my friend on the other side has asserted that perhaps officer blauser was referring to something he was wearing outside the presence of the jury earlier i don't waste chains which i guess were attached to his wrists yes yes and he had shackles did he ever object no he did not offer a contemporaneous objection during the case in which the court said it is the duty of the district court to be the one who makes the affirmative decision consistent with constitutional principles that a litigant will be shackled inside of the courtroom and so there is not any instruction certainly from the district court to mr claiborne when the court acknowledges that he was wearing ankle shackles on the first day of trial that what he needed to do was keep those hidden the remainder of the interactions during the trial are not consistent with the idea that there was some sort of curative procedure put in place like generally happens in shackling cases mr claiborne ask to approach the elmo in the lectern to present argument and evidence on at least five occasions by my count and the district court without any hesitation permitted him to do so and the problem here again is that it's it is under spewed i think in this case that these shackles were visible to the jury on numerous occasions and that his level of dangerousness was a merits question before  don't think there's a ninth circuit opinion that's that set forth what a district court judge should do in a civil case when a prisoner in a situation like this comes in the courtroom which  that is there are published opinion that sort of tells a district court judge this is what you should do there is not a published decision in a civil one thousand nine hundred three case but i don't think that that's really the pertinent question  question is what are the principles that underlie the shackling cases which all of the courts of appeals have acknowledged whether it's guilt phase sentencing or civil trials the courts found a common thread between these circumstances where there is severe prejudice due to visible shackling that undermines the jury's ability to fairly judge the facts all the more so in a case in which the level of dangerousness of the litigant has been injected into the case by the defendants which is what happened here and in those cases the courts are unanimous that there needs to be an individual ised determination that this particular litigant poses a threat of violence just rupture or escape well the problem is he didn't objects it has to be plainly obvious to the district judge and i think this is what the district court judge should do i think  page three of the excerpts of record says and tells this court exactly what the court would have done had an objection been offer the district court said had mr paul claiborne's objected i would have ordered him shackled none the less because he is a felon serving a lengthy sentence so i don't think the court needs to be overly concerned about what would have happened had mr claiborne objected and the question is was is that an obvious  same thing twenty four years before this trial occurred said that a felon status standing alone is insufficient to justify visible shackling i'm aware of no court that has  permitted shackling in any circumstance similar to this and at the least have certainly not pointed to to any similar circumstance their main contention seems to be while many of these cases are criminal cases cases raise this exact argument the criminal cases don't apply and the second and third circuits both said we're looking at the law of our sister circuits including the circuit citing tires for his finger and said the concerns of the supreme court is identified that flow from visible shackling apply equally in civil cases and then after lisa not offered any substantive reason why this rule would not apply and why  for some reason once we shift over into a criminal proceeding all of the sudden the jury is not going to be deeply prejudiced by viewing the litigant in shackles and so we submit it is obvious that this right applies this court identified in duckett that the rule we are contending for was the rule in civil cases twenty some years before this trial occurred and even in carpenter the court's unpublish decision the court said well the shackles here weren't visible there's no plane air but admonish to shirk or it's in the footnote in that opinion that they needed to be aware of the problem and it is a very significant problem as judge pos ner sort of colorfully put it in mouse versus baker that when the jury sees somebody in shackles they think they're dealing with a mad dog and the supreme court has acknowledged this concern that is a commonsense inference for the jury to conclude that the individual is is dangerous and a threat that's exactly what the seventh circuit also included in lemmon's versus skidmore which is a case very similar to this one and didn't talk it didn't this court in docket cite lemons and holloway vs alexander from the eighth circuit which is also one thousand nine hundred three case in which the court said there was no error there because the individual the plaintiff there was extremely dangerous and had his own testimony established that an established his life billet he or that he that he was likely to try and escape that both of those things were present on the record and there was also an instruction in holloway specifically about the shackles of jury instruction year discussions and instructions us at s c r two to three seven to eight and nine to sixteen and none of those none of those say a word about shackling they talk about being fair to pro se litigants they talk about being fair to prisoner witnesses not even mr claiborne specifically but just prisoner witnesses these of the corrections officers because there were multiple prisoner witnesses in the case and the of instructions are are sort of the generic be fair and do your job and base your decision on the evidence and if those sorts of instructions were sufficient to cure this kind of prejudice i can't imagine what case there would ever be prejudice in i would imagine such instructions were given in many if not most prisoners one hundred eighty three cases instructing the jury to simply be fair but that but that has nothing to do with shackling at  cite a single case in which a court has found a jury instruction or of water instruction that is not about shackling as curing prejudice i'm not aware of any the seventh circuit in mouse versus baker has said that the seventh circuit doesn't even think a jury instruction could cure the prejudice and so there's there's really nothing on the record to say that he did not suffer the kind of prejudice that all the courts have acknowledged flow from and the second circuit's decision which didn't even involve dangerousness it's a prisoner male case in the court there said look this is sort of a he said she said sort of situation there is some evidence going both ways it went to the sufficient and he heard that that was certainly the case there's conflicting testimony officer bloggers description of certainly the first encounter with mr claiborn is diametrically opposed to mr claiborne and inmate bolex testimony about what happened and their description of what happened in the prison yard as well as it's completely different and the rule fifty motion for judgment  denied in the case and so i think clearly this affected mr claiborne substantial rights there are no further questions i'll reserve the remainder of my time for a bottle thank you counsel here from the  government please the court i'm definitely attorney general jimmy danson but you know mike down just a little bit there you go thank you thank you i represent defendant correctional officers martin and browser in this action mr claiborne brought suit concerning the use of force during a prison escort and in his opening statement at trial mr claiborne chose to immediately draw the jury's attention to his shackles stating as you can see i'm in shackles i'm in prison he then proceeded to discuss his felony convictions in this case the shackles inform the jury only of information already apparent from mr claiborne claim that he wasn't in me and nothing more mr claiborne confirmed as much in his opening statement and the jury was never led to believe otherwise the shock i want you to think that the presence of shackles indicates to the jury that he's potentially dangerous in this case he's expressed inform the jury that the shackles were result solely of his incarceration the other fact saying that net that that necessarily implies that all prisoners appearing in court are shackled and that there would be no other reason why somebody would be shackled other than that they are a prisoner no your honor what i'm saying is that in this particular case with the instruction that mr claiborne gave the jury the explanation that he told the jury expressed that that was the reason for socking and the jury was never told anything else an additional maybe he was just trying to eliminate the bite of having been shackled so he's saying that the jury look i have these shackles it's not because i'm this wild dog who will longit you and therefore make it more believable that he would have lunged at the two guards bringing him across the yard rather the only reason i'm on and shackles is because i'm a prisoner so don't draw any adverse inferences from it so i have two responses your honor first of all mr claiborne never objected to the in the district court he certainly had every rights not a response to my question but what's important to note here that distinguishes this case is that mr claiborne himself brought the shackles to the jury's attention to four from the jury's attention at does based solely on the prisoner's felony status is improper your honor i would say that it would take an individual analysis depending on what the what the circumstances of that felony conviction are so we have you would agree that he's and he was not convicted of any violent crimes t only justification given by the district court was that he was a felon serving a long sentence is there any case that supports shackling solely on that basis no your honor but we're operating on an incomplete record because the law go ahead does not require the district court to hold a hearing or to place any statement of the reasons for shackling on the record and because of that when no objection was made here the court did not have an opportunity at trial to fully address the  issue additionally but the court did address the issue on the motion for a new trial and that was the only reason given the motion for a new trial contains one or two sentences concerning struck shackling so there wasn't a lot for the court to go on usually in my experience when they're in the courtroom they have the court does take him put from concerning the inmate sentence concerning the the officers that are there that can tell them what security risks are in the courtroom but there was no security risk from this there was no functional way that he could get out of the mouth so we court room go down the elevator get out security and peace tree i certainly think that it's an unfair qualification to state that someone because of a disability certainly doesn't have the capability to cause a security risk and i can support room or have the ability to escape but there's no finding on the record that about that is or there is no finding on the record because mr claiborne never objected and this case the first of mythically from the law side he did object afterwards and the district judge told us exactly why he would have shackled mr claiborne had it been raised should we disbelieve the district judge when he said i would have shackled you for x reason no your honor i don't believe we should just leave the district judge however i think there's more to this so he takes the district judge at his or her word that the only reason for the shackling was that mr claiborne was a convicted felon who was serving a long sen but even so this court under plenary review and carpenter versus file recognizes has never set a precedent for what a district court must do at trial regarding shackling and because of that the error here wasn't plain in addition the jury the case here the court took many accommodations for mr claiborne to minimize any exposure of a shackling and almost every case that's addressed this issue out of circuit plans also cited has looked to this factor was he wearing strained it's unclear from the record as mr clay wants counsel cited there was a statement by officer blauser concerning the waist change there's no evidence they were actually secured to his hands and in fact mr claiborne himself when challenging shackling in the district court in his two sentences post trial motion only mentioned the lake shackles we could infer that he had the waist chain on right at least the moment when the witness was testifying he had to have the waste stream on right by waist chain on it could have just been secured around his waist oftentimes the hands will be released so it's really unclear from the record again because no objection was to shield the shackles from the jury's view including remaining seated when presenting his case addressing the judge displaying exhibits to the jury and the witnesses and the jury purchased ructions the jury were very clear although they didn't what they did tell the jury was that you have to base your decision in this case solely on the evidence and then to find evidence to say sworn testimony exhibits and stipulations that you were telling me at any time did you ever tell the jurors that any time during the trial the defendant is were in shackles and you that is not per se dangerous in general but that plaintiff had created a security concern when he made an outburst yes your honor however under the plane prejudice the jury's view of their client i think there's multiple reasons for that and one of the factors is if you look at the evidence as a whole which is what is appropriate under the plain error review and also the abuse of discretion standard look to the preponderance of the evidence and here again it was mr clay one's own actions that made a shocking known and he had to prove a preponderance of the evidence to prevail on his excessive force claim that there was an intentional use of more force than was necessary and overwhelming testimony here including mr clay one's own testimony did not establish that in fact the testimony from both sides was that mr blauser initiated contact with mr claiborne at the directive of another officer the escort proceeded all the way across the yard into right in front of the supervisor's office until any force was used at all and uncontested witness testimony as well as mr clay want to own admissions was the officer blouse or did nothing wrong she  contended she just needed to be trained on how to do an a t a s court at trial he was expressly asked whether the defendants meanspirited they cost him harm and responded yes and no he conceded multiple times that he had stated it was an excessive force in the video following interview following the incident and later expressly tonight and making any false statement during that interview the video itself showed only minor injuries scraped knee and brazen on the cheek that was barely visible and it contained mr wants testimony repeated that he did not know the force to be excessive at trial he continued to repeatedly undermine any implication of wrongdoing he said that he viewed officer blauser as a daughter and that thought defendants were both reasonably decent people twice he testified that miss blauser may have thought he was pulling away from the escort and when it came to officer martin he stated the officer martin said he would support him during the ask part was it's helpful his he could be described him as a good man and testified that even after the incident he continued to wave to officer martin on the yard so here we have a situation where mr claiborne did not object at trial subject in this case to  that he was he had disabilities i mean the whole point of the state's evidence in large part was to show that he was severely injured by other means so when you say he had the possibility of a reasonable possibility of a scape in a courtroom given his disability and the structure of the courtroom the security the courtroom security of the courthouse and the lack of a finding of a probability of a scape reponse ability of escape by the district judge i just don't understand your response what i'm saying your honor is that the record is not clear here and the reason it's not clear is because no objection was made in carpenter versus file this court recognized i guess my question was you know why should we overlook that given what the judge said overlook plane air review overlook the fact that he didn't object he's a pro se and then we know what the judge how the judge viewed the issue when she ruled on the motion for a new drug the plaintiff a carpenter was  honor but even if we were to look at this under the lesser abuse of discretion standard the cases dealing with shackling especially those that civil trials no case hold shaklee to be personally unconstitutional and instead they look at what effect it had a trial and here it was clear that the district court took multiple steps to shield the jury's view for shock of the shackles but it was mr claiborne himself that brought them to the jury's attention that declined to use the combinations made available that chose to walk back and forth across the clear i'm asked his counsel said five different times putting the shackles and full view most is an error by the court that put the issue of shackling in the forefront of the jury's attention it was mr claiborne to use of that shocking to try to garner support from the jury and use those just so look it's because i'm a convicted felon here the weight of the evidence presented at trial shows that there was no clear error no clear abuse of discretion that affected the outcome of the trial are you suggesting that he used the shackles to evoke sympathy from the jury i believe he did so in his opening statement he got up he discussed the cycling directly he used them as a segue to discuss his his sentencing he even talked about how prison had saved him from going down the rabbit hole so he really used them to save way into i'm a prisoner i'm here this is how it is but consider my claim mr claiborne waived any challenge w parent to everyone in the room even while he was seated that he was in shackles the district courts the district court did not set up any kind of procedure in order to keep the shackles hidden and you can also discern that from the district court's order if that were the case if the district court had said now mr claiborne shackles are very prejudicial we're going to have you present your case entirely from counsel table one would imagine that the district court's order denying mr claiborne's motion for a new trial would have said so it does not what the district court's order says is exactly what was alluded to earlier that she would have denied his motion in all events because he was a felon serving a lengthy sentence every court to have considered that argument has rejected it counsel offer the argument well they already knew he was a prisoner that exact argument is raised in lemons v rejected on the nose by the seventh circuit there is simply no plausible case that mr claiborne's did not suffer prejudice from this that seems to be the main contention now as it is conceded that the shackles were visible which is a concession that the order under review before this court contains a clearly erroneous finding of fact the district court judge says it is unlikely the jury ever saw them and my friend on the other side concedes that was clearly erroneous that the district court simply offered up a justification that every court has rejected in justifying the felon serving a lengthy sentence that will be true of every prisoner litigant who survives the screening of his complaint who survives dispositive motions and discovery and summary judgment and gets before a jury and again at the least don't deny that whatever the merits of the case and we just prefer the court to our description of mr claiborne's evidence and testimony as to his side of that story but the they filed a motion for judgment as a matter of law and the dish court denied the motion for judgment as a matter of law this case went to the jury and it was deeply prejudicial to my client and violated his constitutional right to a fair and the next case on their argument calendar is crawford versus city of bakersfield