thank you your honor may it please the court my name is ever told and i represent the alaska pretrial detainees for the end of unwarranted courtroom if the state of alaska were to bring those accused of crimes in a court on a hand truck with a straight jacket and face guard  this court wouldn't have any problem in joining that conduct so the question isn't whether or not really why wouldn't you just deal with that and in the state court proceedings why would a federal court intervene in that that matter because they have the authority in the jurisdiction to do so and they're being asked well there's no have you have the ability within the context of the state court proceeding to tell the judge presumably that that's not constitutional and if that judge disagreed you could take an immediate appeal right the problem would be that would happen again the next day to the next guy who's brought in and he would have the suit will get resolved i mean if you brought  somebody looking like that especially you brought him before a jury and they were convicted they would have a right to a direct appeal in alaska you have a right of search area to the supreme court and then failing that you have a right to habeas corpus in this court or i think there's probably little doubt that we would overturn it on hideous absolutely and that would remedy the conviction that was had under poor circumstances but what it won't remedy is the fact that it happened in the first place your job i think is front of us is to distinguish this case from o'shea versus littleton how do you do that well the littleton case is interesting it wasn't decided on abstention grounds it was a moodiness case what's which brings us back around to and that case talks a good deal about when the federal government shouldn't intervene in through a state court proceeding but in the end it talks about how there aren't any and there's no case and controversy left th no well we treat supreme court dicta as i guess privileged dicta absalom there's a lot of talk going to share in addition to whether or not there's a case of controversy with respect to whether or not these individuals are likely to be subjected to this again in terms of not wanting to intervene supervise and get tied up in sort of an active participation in a supervision of procedures that were at issue in shochet so let's talk about that aspect of o'shea what were the procedures that the court was being asked intervene in the supreme court said you know there's just too much intervention in a state court system compare that sort of intervention it issu claim of discrimination and different things are happy think sentences are too high bail is being set too high for different individuals and there and based on discriminatory behavior by the participants in the court system yes  a single policy or unspoken policy is that we have in this case but just various procedures bail specifically bail and sentencing and the intervention sought by the plaintiffs in those ever so little can really would have required almost a case by case determination as to whether or not there was discrimination and whether or not the particular bail was too high or whether or not particular sentence was too great and so it was not uniform practice it was sort of bail sentence by  so that would require the federal court to review challenge cases on a challenge under the injunction somebody might have standing under a rule seventy although i'm not sure rule seventy was written read the same then but certainly now if the case were to come back they'd seek an enforcement of the injunction they would say i got a higher sentence than the next guy and it was because of bias or some sort of discrimination so there would be a constant review and it would be that the findings were inadequate do you have a you have a remedy to go and say that you that the the you violated the district court's order well it would be the same type of remedy a person would have bail review case which was that issue in the county of ever side v i'm gone back and forth on this a little bit i would like it to say that there should always be a factual determination before shackles are used the same thing that sanchez goma's said how about the district the state c different courts it doesn't and don't have different policies because the courtrooms are set up very differently and al ask has a lot of rural areas yes which they have very very few officers yes and in those situations i understand from the affidavit submitted by the state it's often just one defend you could never be shackled that would would that impose additional costs on the lascaux i don't see how that rule could ever you have to if you have to secure the safety of the judge and the court security officers and the public are entitled to attend these things and you have concerns about about how the defendant or the accused might might react in court wouldn't you when you have to have additional court personnel i know that so if there's concern that you but if you're not if he's not shackled then his hands are free of course and these are these are these are concerns real concerns to district courts if there's any reason to believe that a person creates a risk of safety or even some sort of disturbance an attempted escape these practice there and there's no determination it's indiscriminate it's unwarranted there's no reasonable suspicion to believe that these folks will present some threat or and what's the practice that you're objecting to meaning we've got different courts the different you're to i think you've told us that the different courts within alaska have different practices with respect to the shaklee so there's two claims one is that there's no deprivation hearing that's what's believe when it's practicable the government must have a hearing before depriving a person of their liberty in this case were alleging that having your hands shackled together is a deprivation of liberty and that comes your view that comes with an interim ok so that's one of the two claims the other claim is that when a person is shackled with one hand one person on one side the other hand to a person on the other side and hauled into to make a new ruling on that oh i've asked for an injunction on it there is no did question is do you have to have authority for that proposition are you asking this court to create that authority i'm asking for this court to create that authority this the authority to enjoying conduct that violates substantive due process is well established has to be arbitrary and oppressive government in your and your objection to the district court orders that the district judge just refused to get to the question right and so on this issue there is a very single and discrete order to walter monegan who is the director of the last apartment of public safety and the head of the alaska state police who run the judicial services who shackle folks in the courtroom that that practice should never be used it's inhumane it deprives people of dignity and it's completely unnecessary that should be joined and that will not create any entangle and even though he was likely to violate the law again and in fact did violate the law again the supreme court said that we don't assume people will violate the law and we wouldn't assume that walter monegan would tell as his officers that they can continue shackling people wrist wrist and for both of those your argument is this isn't really like o'shea because it's not going to require individualized determinations with further involvement by the court because well you gotta have   a constant checking in or going in constant foresman proceedings in the district court also said well this is going to create this position for the district court as a compliance monitor  and we're going to check in all the time my proposed order may not have been artfully drafted i could have and i've changed my position saying that there should be a policy that the administrator of the alaska court system whose defendant johnson should create a rule that says shackling determinations need to be made this could happen on the same and that has to be done by it have to done by judicial officer not by for example a marshal service so when the present they're brought in they're arrested ok so the i'm trying to i'm trying to figure out what happens here so a determination as to whether you shackle can be decided it's part by judge yes it has to be based on facts something the police report the complaint  for arrest if somebody is just cited and they have a citation to appear in court and they walk in with the attorneys in the through the back doors of the courtroom then if the state wants bail they can ask for bail and that determination would be made then if they're arrested that means there was reason to arrest and the magistrate made that decision ex parte ahead of time they said well there's reason to arrest this person they can't just decide to come in they should be arrested and they should be brought in  re all or all criminal defendants in alaska now brought in shackles i've seen it that way everywhere and i understand there are certain courthouses in very rural areas where they where they may not be they may not be i think it would be sort of more dependent on risk and r r r r defendants who are brought in for these hearings if they're brought in alone are they always shack is far as i know yes again i haven't spent all these locations there's a number of locations many times they'll be appearing telephonically from a jail somewhere so they wouldn't be shackled although sometimes they're even when they appear on the court t v it's like a skype that goes to the pretrial facility and they're shackled in the prison which i don't understand that either but but yes  is the common most common practice that everybody is shackled whether in chains together if they're brought in as one one person they wear a set of handcuffs and as far as i know no judge has ever said that that court my name is laura fox and i present christine johnson the administrative director of the alaska court system and counsel fought for walt monegan in the department of public safety is also here in case any specific questions come up otherwise i'm intending needs the whole time violated but this is a very simple order it says don't shock over it this way because jacqueline in other ways that doesn't violate the order of the order just says don't shackle the prisoners to each other when they come in the court room yes or no that's pretty simple to understand and the defendant's going to better not obey it but it's not very complicated well that is the only thing that they've asked for i mean they've also asked for well they've asked for they've gone back and forth on what they've asked for the about for an injunction about the use of any kinds of restraints and how that's going to be determined by the court system they've also asked for an order that the alaska chris system adopt a policy about the way that restraints are used in the ask the court system so they haven't just now but i was sentencing on specifically on this one which seems to me the strongest case for them now they might or might not be right on the merits but i'm just question about degree of intervention and sort of supervision on the theory of o'shea i think if that was all that they were asking for maybe the case for abstention would  be a little bit different that's not all they've asked for and i think even under that there would be a preliminary injunction would be inappropriate on the record we have here with this is a question so the court could affirm the denial of loony injunction on the grounds th standard for injunction was that well the district judge even get to that i mean i speak only for myself if i were to conclude that the district judge made a mistake and o'shea controlled with respect of this sort of person to person shackling next question is well remedy and the court could affirm the denial without sending it back to this a court but the court would at least i think have to send it back for the district court to make that determination rather than reversing it and declaring that this should be enjoined so that i do think the court could affirm the denial on the grounds that this is the high standard people arrange i mean i think the only question that i see that is clearly in front of us is whether or not the district judge was to abstain under oshea the court cannot affirm an abstention would not be a valid basis for dismissing the entire action it sounds like per perhaps we should not merely just affirm the district court but we should do something else because otherwise we just issue a decision affirming it sounds like you guys are going to be right back handcuffing the prisoners together and i also want to distinguish the type of restraints we're talking about here from the kind that we're at issue and sanchez gomez is about five point restraints where the defendants are their hands relief that they've requested is much more extensive than just an order in joining one specific practice but that right that doesn't mean the district court of course has to give them everything that they're asking for but as to the one component of the case the judge fletcher has finished focus your attention on i guess i'm still waiting to see if you have an o'shea based defense of the district court's ruling or are you just saying now you're right we can't can't rely on o'shea for that but i don't know what's whatever the but is that it's on the merits it's not a valid constitutional claim i mean on the merits it's not i mean certainly that the factual circumstances of the different courts throughout alaska are very different the needs of the different courtrooms are very different the layout of the court and the security available and so the need for this practice and the due process balancing of whether this practice is necessary or not is going to be very different from and san gomez for example our friend and we have basically no factual record here and it's an unsettled question of federal law after sanchez gomez was reversed so i think that's not an appropriate situation for a preliminary injunction and i think the court could decide that on the on the current record that this is a proper case for a preliminary injunction to have ok but so do you have enough shape based defense of the district court's ruling as to this component of the case that we've just been talking about or no i guess that's what i'm trying to figure out well is that other cases where abstentions been approved some of them i mean and you know shay for example says that they were asking for an injunction prohibiting setting bond according to an official bond schedule and that would you could you could characterize any of the injunctions any of these cases of injunctions just being just saying don't do x anymore and nonetheless the court looked at it looked at the extent to which it involves itself in the administration of state  about state court judges hearing criminal cases trying to keep order in their courtrooms it's very intimately tied to the function of the state judiciary and the state court system and so even if an injunction just don't do one specific thing that doesn't mean that it's not causing an entanglement in the administration of the state court system that's not an improper involvement in the way the state courts are running their courtrooms but i think the problem to to fight over whether in fact there was compliance with the federal courts to create i think judge fletcher is right that if all the district court were to order here is that this form of shackling shall never occur now under any circumstances there's not there's no real fight to get embroiled and that's because it will either yes or no answer right i think that's one part so certainly that this concern about coming back and over and over again to federal court is one part of our state and i think that still would be potentially concerning here because they would come back to federal court if they thought the injunction was not being followed but you say also talked about the availability of state court remedies i mean this is the kind of thing that state courts are willing and able and eager to protect the rights of criminal defendants in state court the plaintiffs here haven't even tried to bring this up through the state court channels that are available that were discussed earlier and so this is a it's not just about their coming back over and over again to federal court it's also about o'shea so she isn't just about the you know whether you're going to continually end up back in federal court it's also about you know is is federal court the place to resolve this problem and i think  cases following from it demonstrate that federal court is not the appropriate kind of place to resolve this problem and plaintiffs haven't tried any of these state court remedies and as i said see courts are are willing and able to protect the rights of criminal all in that case well but implicitly abstention didn't happen right right but it mean nobody talked about it so it's hard you can't read that decision as a decision about abstention when the issue of ascension wasn't even i think you're supposed to assume that basically asking for an order that would require a massive overhaul of the way the alaska state courts are doing business i mean as was discussed this is done differently in different courts throughout the state there isn't a sort of blanket policy it's not done indiscriminately defendants aren't always restrained it sort of depends on the security situation of the different court houses and i mean for instance in the pretrial facility there's one officer and fifteen defendants and they restrain because otherwise this would be a risk  of a riot and so they recently asking for this massive overhaul of state court procedures on the basis of unsettled federal law so there's no sanchez gomez we don't know what the situation is with the status of the federal law and drastic relief based on basically a guess about how the federal law is going to come out in this area and they don't just have to show that there's a likelihood of success on the merits they have to show that the law and the facts clearly favor them because they're asking for a mandatory injunction at least depending on which characterization of the relief you look at mean they're asking for the state courts to adopt a policy when they're currently isn't a policy so they're not asking to preserve the status quo and and as far as their likelihood of success on the merits sanchez go mrs distinguishable and it's no longer good lawsuits distinguishable because alaska state courts aren't using the same kind of restraints that were at issue in that case also many other discussion and without sanchez gomez we're just left with the need to balance the plaintiff's interests against the government's interests both for purposes of due process inquiry on the merits and for purposes  balance just doesn't come out in favor of granting the drastic relief of a hasty preliminary injunction on a limited record injunction would compromise public safety pull police officers off the street that would otherwise be protecting the public in these remote communities and did it would diminish the interests of criminal defendants themselves because it would introduce delay into the hearing of their cases if if defendant can't be brought in to gather and have to instead wait in holding cells restrained for their cases to be individually called that would compromise the criminal defendants own interests so the balance of the equities doesn't favor this drastic remedy their state court remedies morris would you put two minutes on the clock think your are real quickly i want to mention that in the complaint it was alleged that the two named plaintiffs who are here  today but they did request that their shackles be removed in one case the answer was no in the other case it was deferred to judicial services and the answer was no both of these defendants had to do it on their own their lawyer wasn't willing to do it for them  olivia makan explains why this was all before the district court that there isn't a willingness on the part of the alaska bar to bring these claims to the supreme court how do we know this we know because they haven't nobody else has brought it they're not they're not there why i don't know and that there would be a way to do that i think except it would end up a lot like sanchez gomez ended up with the united supreme court that by the time it got there would be moot and there is no it to exhaustion requirement that's not constitutional requirement also i want to mention the type of restraints used they make it sound like somehow being handcuffed other people is nicer than having a five point restraint when i disagree persons under five point restraints they have their own autonomy they can move about by themselves if they have an interest they can take care that on their own they don't need somebody help to do it with them when you're handcuffed together in a chain also no defense attorney can come and sit next to you it's it's painful when someone else moves there's a pain it might not be severe but it's not comfortable also as far as what this court can do is in deciding this case i think it's klein vs the city of san clemente it's a two thousand and nine circuit case that this case to be remanded with instructions to order the injunction and i can ask you one quick question about standing the organization that you represent well first of all the two i think there were two members who submitted declarations yes back in january yes are they still in pretrial detention no so do you have does the organization have members who are currently in pretrial detention yes many ok and you have you have not supplied any additional declarations at this point but you're saying that you could i would submit that they should not under the first amendment they're protected but if i have to i can i we have copies of copies of no no i'm saying oh for deco i'm so is this organization is continually continually being replenished with people who are in the tension is that they're not writing declarations or signing a membership log rolls i see once they're right five members and one of whom i believe is still pretrial i did sign declarations and we