In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-3549

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RAYMOND L. HENDERSON,

Defendant-Appellant.

____________________

Appeal from the United States District Court 

for the Central District of Illinois.

No. 17-CR-30072 — Sue E. Myerscough, Judge.

____________________

ARGUED FEBRUARY 28, 2018 — DECIDED FEBRUARY 14, 2019

____________________

Before MANION, SYKES, and HAMILTON, Circuit Judges.

SYKES, Circuit Judge. Raymond Henderson was arraigned 

on drug and firearm charges while shackled with leg irons

and handcuffs connected to a waist chain. His attorney 

asked the district judge to have the shackles removed. The 

judge denied the request, deferring to the United States 

Marshals Service’s policy of using full restraints on prisoners 

at every nonjury court appearance. Henderson appealed the 

ruling, relying on the collateral-order doctrine to support 
2 No. 17-3549

interlocutory review. After oral argument we ordered supplemental briefing on the possibility of mandamus as an 

alternative means of review if Henderson’s argument about 

the collateral-order doctrine failed. We also gave the judge 

an opportunity to respond as provided in Rule 21 of the 

Federal Rules of Appellate Procedure, which governs mandamus procedure. She has done so. We now hold that the 

collateral-order doctrine does not apply and decline to 

reframe the appeal as a petition for a writ of mandamus. We 

therefore dismiss the appeal for lack of jurisdiction.

I. Background

A grand jury in the Central District of Illinois indicted 

Henderson for possession of crack cocaine with intent to 

distribute and two related firearms offenses. In accordance 

with the Marshals Service’s policy in the Springfield 

Division, Henderson appeared in court for arraignment 

encircled by four security officers and shackled with leg 

irons and handcuffs connected to a waist chain. His attorney 

moved to have him unshackled except for the leg irons for 

the remainder of the arraignment and at all future pretrial 

hearings. Counsel argued that routine shackling in court

violates the accused’s right to due process and asked the 

judge to hold a hearing to determine whether Henderson

posed an individualized risk to justify the use of full restraints.

More specifically, counsel argued that a criminal accused 

has a deeply rooted fundamental right not to be shackled in 

court proceedings absent an individualized showing of risk 

of flight or violence. The Supreme Court has held that the 

Due Process Clause forbids the routine use of shackles 

before the jury. Deck v. Missouri, 544 U.S. 622, 629 (2005).
No. 17-3549 3

Counsel urged the judge to apply the same rule to pretrial

proceedings and conduct an individualized risk assessment

as Deck requires. Finally, counsel argued that the judge, not 

the Marshals Service, is ultimately responsible for the decision to use restraints in court, and a default position of 

deference to security officials abdicates that judicial responsibility.

The government responded with three points. First, 

Deck’s rule against restraints in court is expressly limited to 

the use of shackles in the presence of a jury. Id. Second, the 

reasons underlying the Deck rule have little, if any, applicability to nonjury proceedings like an arraignment and other 

pretrial hearings. Third, Deck relied in large part on the 

common-law rule against shackles, which is limited to jury 

trials and does not extend to arraignment or “like proceedings before the judge.” Id. at 626. The government urged the 

court to apply the standard in Bell v. Wolfish, 441 U.S. 520 

(1979), which governs conditions of confinement for pretrial 

detainees. Under that standard, the government argued, the 

use of shackles in pretrial proceedings is not a form of 

punishment and thus is constitutionally permissible.

In an oral ruling, the judge denied Henderson’s motion, 

declaring that “court security is up to our Court Security and 

Marshals” and later saying that she was “concerned that 

[Henderson] might take off.” The judge issued a follow-up 

written order that same day, noting that because of “the 

reasons stated in the [g]overnment’s response,” she would 

“continue to defer to the expertise of the United States 

Marshals Service” without making “an individualized 

determination that shackling is necessary.”
4 No. 17-3549

Henderson appealed the judge’s order, invoking the 

collateral-order doctrine and arguing that he has a dueprocess right to appear before the court unshackled and that 

this right applies in nonjury proceedings. At oral argument

we asked whether mandamus is available as an alternative 

basis for interlocutory review should Henderson’s invocation of the collateral-order doctrine fail. Because the parties 

had not formally addressed that question, we ordered 

supplemental briefing on the availability of supervisory or 

advisory mandamus and gave the district judge an opportunity to respond as if Henderson’s appeal were construed 

as a petition for a writ of mandamus. See FED. R. APP.

P. 21(b)(4) (describing mandamus procedure and stating that 

“[t]he court of appeals may invite or order the trial-court 

judge to address the petition or may invite an amicus curiae 

to do so”).

The judge accepted our invitation. She explained that 

mandamus is inappropriate because Deck’s requirement of 

an individualized risk assessment applies only when shackles are used at a jury trial and thus Henderson had not 

shown that he has a “clear and indisputable” right to the 

writ. J.H. Cohn & Co. v. Am. Appraisal Assocs., Inc., 628 F.2d 

994, 997 (7th Cir. 1980). The government agreed with the 

judge and added that mandamus is not warranted because 

Henderson has other adequate means to pursue his dueprocess claim and because this is not an “exceptional”

circumstance that would justify issuance of the writ.

Henderson argued that either supervisory or advisory 

mandamus is appropriate because the issue presented is 

important, novel, recurring, and would otherwise evade 

effective appellate review. See id.; United States v. Green, 
No. 17-3549 5

407 F.3d 434, 439 (1st Cir. 2005) (explaining advisory and 

supervisory mandamus). He also reiterated his position that 

the shackling order is immediately reviewable under the 

collateral-order doctrine.

II. Discussion

We begin (and also end) with the question of appellate 

jurisdiction. Our jurisdiction is limited to appeals from a 

final order of the district court. See 28 U.S.C. § 1291. The 

judge’s shackling ruling obviously is not a final order; the 

case remains pending in the district court. Henderson argues 

that the collateral-order doctrine supports interlocutory 

review. That doctrine allows immediate appeal of interlocutory orders that “finally determine claims of right separable 

from, and collateral to, rights asserted in the action, too 

important to be denied review and too independent of the 

cause itself to require that appellate jurisdiction be deferred 

until the whole case is adjudicated.” Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 546 (1949).

To qualify for immediate review under this exception, an 

order “must conclusively determine the disputed question, 

resolve an important issue completely separate from the 

merits of the action, and be effectively unreviewable on 

appeal from a final judgment.” Coopers & Lybrand v. Livesay,

437 U.S. 463, 468 (1978). The Supreme Court has emphasized 

that the collateral-order doctrine is “a narrow exception to 

the normal application of the final judgment rule,” and in 

criminal cases its requirements are applied “with the utmost 

strictness.” Midland Asphalt Corp. v. United States, 489 U.S. 

794, 798–99 (1989) (quoting Flanagan v. United States, 465 U.S. 

259, 265 (1984)). 
6 No. 17-3549

This case turns on the third step of the Coopers & Lybrand 

test, which asks whether the order in question is effectively 

unreviewable on appeal from a final judgment. The Supreme 

Court’s seminal shackling case demonstrates that this requirement is not met here. In Deck the defendant objected to 

appearing before the jury in shackles during the penalty 

phase of his capital murder trial. 544 U.S. at 624–25. The 

Supreme Court reversed the defendant’s death sentence, 

holding that shackling him in front of the jury violated his 

right to due process. Id. at 635. Deck establishes that dueprocess shackling claims may be effectively reviewed on 

appeal from a final judgment. That alone forecloses interlocutory review.

On a broader level, in criminal cases the Court has identified only four pretrial orders that qualify for immediate 

review under the collateral-order doctrine: (1) an order 

denying bail, Stack v. Boyle, 342 U.S. 1 (1951); (2) an order 

denying dismissal based on double jeopardy, Abney v. United 

States, 431 U.S. 651 (1977); (3) an order denying dismissal 

under the Speech or Debate Clause, Helstoski v. Meanor, 

442 U.S. 500 (1979); and (4) an order for the administration of 

psychotropic medication to render a defendant competent 

for trial, Sell v. United States, 539 U.S. 166 (2003). We recently 

noted the distinguishing characteristics of orders of this 

type: “Bail and involuntary medication are independent of 

the merits and unreviewable on appeal from a conviction, 

while the other two situations exemplify rights not to be 

tried.” United States v. Schock, 891 F.3d 334, 339 (7th Cir. 

2018).

On the other hand, the Court has held that a constitutional objection to an attorney-disqualification order is 
No. 17-3549 7

effectively reviewable on appeal from a final judgment.

Flanagan, 465 U.S. at 269–70. The Court also has refused to 

extend the collateral-order doctrine to pretrial orders denying dismissal under the Speedy Trial Clause. United States v. 

MacDonald, 435 U.S. 850, 861–63 (1978). These cases presented ordinary claims of constitutional procedural error for 

which appeal from a final judgment provides effective 

review. Henderson’s shackling claim is in the same category.

Schock is our most recent exploration of the collateralorder doctrine in a criminal case. A former congressman 

appealed an order denying his motion to dismiss an indictment charging him with fraud and making false statements. 

891 F.3d at 336. He moved to dismiss based on the Speech or 

Debate Clause, U.S. CONST. art. 1, § 6, cl. 1 (immunizing

members of Congress from liability for their speeches, 

debates, and other parts of the legislative process), and the 

Rulemaking Clause, id. art. I, § 5, cl. 2 (stating that each 

House of Congress may determine its own rules and punish 

its members). The district court denied the motion, and the 

defendant immediately appealed; we affirmed in part and 

dismissed in part. The Speech or Debate Clause, we explained, confers an immunity from litigation, so we addressed the merits and affirmed the denial of the dismissal 

motion on this ground. Schock, 891 F.3d at 336. We dismissed 

the rest of the appeal for lack of jurisdiction, holding that an 

order refusing to dismiss an indictment under the Rulemaking Clause does not qualify for immediate review under the 

collateral-order doctrine. Id. at 338–39. The defendant’s 

claim—a kind of separation-of-powers defense—could be 

effectively reviewed on appeal from a final judgment. Id.
8 No. 17-3549

The same is true here. As Deck shows, a due-process challenge to a shackling order can be vindicated on appeal from 

a final judgment. Henderson argues that the possibility of 

acquittal, from which he cannot appeal, entitles him to 

review now. But acquittal is possible in every criminal case 

and so cannot justify application of the collateral-order 

exception.

Turning now to the issue of mandamus, we begin by reiterating that Henderson did not petition for the writ. Ordinarily we will not construe an appeal as a petition for 

mandamus if the appellant “failed to apply for [the] writ in 

accordance with the requirements of Federal Rule of Appellate Procedure 21(a).” Geaney v. Carlson, 776 F.2d 140, 142 

(7th Cir. 1985).

However, in a case involving a similar interlocutory appeal of a pretrial shackling order, the Ninth Circuit, sitting 

en banc, recast the notice of appeal as a petition for mandamus and reached the merits of the defendants’ due-process

claim. United States v. Sanchez-Gomez, 859 F.3d 649, 657 (9th 

Cir. 2017) (en banc). Although the underlying criminal 

proceedings were long since over, the en banc court declined 

to dismiss the case as moot. Id. at 657–59. Rather, after 

reframing the appeal as a mandamus petition, the court 

construed the defendants’ claim as a “functional class action,” id. at 658, and found a constitutional violation, id. at 

666.

As we’ve explained, in light of Sanchez-Gomez, we issued 

an order for supplemental briefing asking the parties to 

address the propriety of construing this appeal as a petition 

for mandamus. They complied. We also invited the district 

judge to respond as provided in Rule 21(b)(4), and she took 
No. 17-3549 9

the opportunity to do so. While we’ve had this case under 

advisement, however, the Supreme Court vacated the Ninth 

Circuit’s judgment and remanded with instructions to 

dismiss the case as moot. United States v. Sanchez-Gomez, 

138 S. Ct. 1532, 1542 (2018).

We do not have a mootness problem here; the underlying 

criminal case remains pending. Still, we will not follow the 

Ninth Circuit’s lead. The All Writs Act codifies the commonlaw writ of mandamus: “The Supreme Court and all courts 

established by Act of Congress may issue all writs necessary 

or appropriate in aid of their respective jurisdictions and 

agreeable to the usages and principles of law.” 28 U.S.C. 

§ 1651(a). Mandamus “is a drastic and extraordinary remedy 

reserved for really extraordinary causes.” Cheney v. U.S. Dist. 

Ct. for D.C., 542 U.S. 367, 380 (2004) (internal quotation 

marks omitted). “[O]nly exceptional circumstances amounting to a judicial usurpation of power ... or a clear abuse of 

discretion ... will justify the invocation of this extraordinary 

remedy.” Id. (quotation marks and citations omitted).

The mandamus writ “is one of the most potent weapons 

in the judicial arsenal” and may issue only if three conditions are satisfied. Id. (internal quotation marks omitted). 

First, the petitioner must establish that he has no other 

adequate remedy—“a condition designed to ensure that the 

writ will not be used as a substitute for the regular appeals 

process.” Id. at 380–81. Second, the petitioner must show that 

his right to the issuance of the writ “is clear and indisputable.” Id. at 381 (internal quotation marks omitted); see also 

J.H. Cohn & Co., 628 F.2d at 997. Third, “the issuing court, in 

the exercise of its discretion, must be satisfied that the writ is 
10 No. 17-3549

appropriate under the circumstances.” Cheney, 542 U.S. at 

381.

Henderson’s argument for reframing the appeal as a petition for mandamus falters at the first step. As we’ve already 

explained, a due-process challenge to the judge’s shackling 

order can be effectively reviewed as part of the “regular 

appeals process,” so Henderson does not lack an adequate 

remedy. Accordingly, we decline to construe the notice of 

appeal as a petition for mandamus. 

We’re left with an interlocutory appeal that does not fall 

within the collateral-order doctrine. We therefore DISMISS the

appeal for lack of jurisdiction.
No. 17-3549 11

HAMILTON, Circuit Judge, dissenting. The law governing 

the use of physical restraints on the accused in the courtroom 

can sometimes produce an uneasy compromise, between 

safety on one hand and fairness, dignity, and decorum on the 

other. In this appeal, the district court has failed to comply 

with two principles that shape that body of law. First, the 

court defers courtroom security issues to the United States 

Marshals Service and its preferred policy: for all detained defendants, wrists, ankles, and waists are chained together routinely, for all in-court proceedings without a jury. Deferring 

the decision to the Marshals Service is not consistent with the 

role of the judge. Second, absent special risks, the use of full 

restraints on a presumptively innocent defendant in the courtroom simply is not consistent with basic fairness, dignity, and 

decorum in the courts of the United States. 

I therefore respectfully dissent from dismissal of this appeal. We should use our power to issue a supervisory writ of 

mandamus to require the district court to stop the routine use 

of such full restraints in pretrial hearings. On the merits of this 

appeal, I agree in essence with the Ninth Circuit’s en banc 

opinion in United States v. Sanchez-Gomez, 859 F.3d 649 (9th 

Cir. 2017) (en banc), vacated as moot, 138 S. Ct. 1532 (2018), 

though I would base a decision here on our supervisory 

power rather than decide whether the Constitution itself requires the relief.

Before going further, I must make two points based on 

more than twenty years as a federal judge, most in a district 

court with a full criminal docket. First, I have depended on 

the courage, discipline, professionalism, and diplomacy of the 

men and women of the United States Marshals Service. Like 

so many other judges, I have depended on marshals both to 
12 No. 17-3549

maintain safety in the courthouse and the courtroom and to 

maintain the dignity, decorum, and respect for all that are essential to the rule of law. 

Second, in some exceptional cases, defendants and their 

associates pose extraordinary risks that justify measures such 

as the full restraints, even in the courtroom. The courts of the 

United States of America take pride in trying fairly some of 

the most dangerous people in the world, including terrorists, 

serial killers, organized crime leaders, and drug kingpins and 

their henchmen. When criminal associates can learn in advance exactly when the defendant will be present outside a 

jail or prison, in a federal courtroom, that can raise the risk of 

a rare attempt at escape. As a district judge, I often benefited 

from the advice of the Marshals Service on appropriate security measures to deal with unusual risks. Yet in all but the rarest cases, the marshals and I were satisfied with at most ankle 

restraints that were kept out of sight.

This appeal, however, is not about exceptional measures

to deal with exceptional risks. It is about routine practices.

Part I explains below the challenged practice. Part II lays out 

what might be called the law of courtroom restraints, emphasizing two points. First, a trial judge may not delegate to others, including the Marshals Service, the decision about restraints in the courtroom. Second, excessive restraints in the 

courtroom matter even when no jury is present. The practice 

in this district court runs contrary to both of those principles. 

Part III explains why a supervisory writ of mandamus is the 

appropriate procedure to address the court’s practice.
No. 17-3549 13

I. The Challenged Practice

The practice in this district court in criminal cases is to 

keep all detained defendants in “full” restraints in all pretrial 

proceedings. Full restraints link the defendant’s wrists and 

ankles to a chain at his waist. A Marshals Service photograph

of prisoners in such restraints is in the Appendix at A26. Steel 

handcuffs are linked by a short chain to each other and linked 

by another short chain to yet another chain at the prisoner’s 

waist. Steel ankle restraints are linked by a short steel chain to 

each other and by another short chain to the chain around the 

prisoner’s waist. The prisoner can barely move, of course.

That’s the idea. He cannot walk but can only shuffle slowly. 

While standing, he cannot lift his hands to his chin, nor can 

he move his hands more than a few inches apart. Lawyers and 

judges who take for granted their ability to take notes during 

court proceedings should try to imagine how difficult it is for 

such a restrained defendant merely to take notes about points 

to discuss with his lawyer at the next recess.

Consider how this practice works in a contested hearing, 

where the judge must evaluate credibility. In opposing a motion to suppress, for example, the government witnesses appear in crisp police uniforms as the protectors of society. They 

explain why the stop or search was justified. The defendant 

must shuffle slowly to the witness stand, chained like a wild 

beast, unable to gesture or even to scratch his head. He testifies to a very different version of the stop or search, one that 

would render it unconstitutional. In deciding a close case of

credibility, how often will a judge be able to overcome the 

subconscious effects of the witnesses’ appearances?
14 No. 17-3549

To be clear, defendant Henderson has no objection to the 

use of only leg irons in the courtroom. He also does not challenge any aspect of the Marshals Service management of prisoners outside the courtroom itself. Movements of prisoners 

outside the secure environments of jail or prison pose heightened risks, and they rarely implicate the considerations of 

dignity and fairness that are so important in the courtroom 

itself. The focus here is only on full restraints in the courtroom.

II. The Law of Courtroom Restraints

The presumption of innocence lies at the heart of our system of criminal justice. In a series of cases, the Supreme Court 

has held that both constitutional principles of due process and 

non-constitutional principles of fair administration of justice 

require courts not to impose excessive physical restraints on 

the accused, who is still presumed innocent.

In Illinois v. Allen, 397 U.S. 337, 344 (1970), the Supreme 

Court wrote that an accused could be tried while shackled 

and gagged, or even removed from the courtroom altogether, 

but only as last resorts based on the accused’s repeated and 

aggravated refusals to behave in court. Defendant Allen had 

earned such rare treatment in his jury trial by repeatedly disrupting the proceedings to the extent that an orderly trial was 

impossible if he was present and able to speak and interrupt.

In Holbrook v. Flynn, 475 U.S. 560, 568–69 (1986), the Court 

found acceptable the presence of uniformed police in the front 

row of the courtroom, finding that security measure was not 

an “inherently prejudicial” practice, like shackling, that 

“should be permitted only where justified by an essential 

state interest specific to each trial.”
No. 17-3549 15

In Deck v. Missouri, 544 U.S. 622, 626–29 (2005), the Supreme Court made clear that during the guilt phase of a criminal trial, the due process clauses of the Fifth and Fourteenth 

Amendments forbid routine use of visible shackles. Drawing 

on English sources older than the United States, Deck identified the traditional common law rule that defendants “must 

be brought to the bar without irons, or any manner of shackles 

or bonds; unless there be evident danger of an escape.” Id. at 

626, quoting 4 W. Blackstone, Commentaries on the Laws of England 317 (1769). Only in “extreme and exceptional cases, 

where the safe custody of the prisoner and the peace of the 

tribunal imperatively demand, the manacles may be retained.” Id. at 626–27, quoting 1 J. Bishop, New Criminal Procedure § 955, p. 573 (4th Ed. 1895). Deck then extended the constitutional limits on visible shackles to the sentencing phase 

of capital cases, even though the defendant is by that point no 

longer presumed innocent. Id. at 633.

We and other courts have often addressed similar issues 

involving both jury trials and other criminal proceedings.

Closest to this case, the Ninth Circuit in Sanchez-Gomez disapproved a district-wide practice like the district court’s here. 

859 F.3d at 659–65. While that decision was vacated as moot, 

it is persuasive on the merits, at least as a matter of sound judicial administration. See also, e.g., United States v. Van Sach, 

458 F.3d 694, 699–700 (7th Cir. 2006) (affirming use of leg 

shackles during jury trial based on defendant’s extensive history of belligerence and threatening behavior in court); United 

States v. Fountain, 768 F.2d 790 (7th Cir. 1985) (same, based on 

defendants’ violent history); United States v. Miller, 531 F.3d 

340, 345 (6th Cir. 2008) (trial judge abused discretion by deferring without explanation to marshal’s recommendation that 
16 No. 17-3549

defendant wear stun-belt in jury trial); United States v. 

Durham, 287 F.3d 1297, 1304 (11th Cir. 2002) (same).

The cases show two points critical for Henderson’s challenge. First, decisions about such extraordinary restraints are 

decisions for the judge. They are not to be delegated to security 

or correctional personnel, including the Marshals Service. 

Second, the reasons for the limits on such extraordinary restraints apply to criminal hearings broadly; those reasons are 

not limited to only what a jury might see.

A. No Delegation of the Judicial Responsibility

One central theme of the law of courtroom restraints is 

that the trial judge is the person responsible for making the 

decisions. The judge cannot simply delegate that responsibility to the Marshals Service or other correctional or security 

staff.

We have made this point repeatedly. E.g., Lopez v. Thurmer, 

573 F.3d 484, 493 n.2 (7th Cir. 2009) (“although a trial court’s 

decisions about the required level of security during a trial are 

entitled to deference, those decisions must be made by the 

court itself; the trial judge ‘may not delegate his discretion to 

another party’”), quoting United States v. Brooks, 125 F.3d 484, 

502 (7th Cir. 1997). “While the trial court may rely ‘heavily’ on 

the marshals in evaluating the appropriate security measures 

to take with a given prisoner, the court bears the ultimate responsibility for that determination and may not delegate the 

decision to shackle an inmate to the marshals.” Woods v. 

Thieret, 5 F.3d 244, 248 (7th Cir. 1993), quoting Lemons v. Skidmore, 985 F.2d 354, 358 n.4 (7th Cir. 1993). Accord, e.g.,

Sanchez-Gomez, 859 F.3d at 661 (“Courts cannot delegate this 

constitutional question to those who provide security, such as 
No. 17-3549 17

the U.S. Marshals Service.”); United States v. Wardell, 591 F.3d 

1279, 1294–95 (10th Cir. 2009) (collecting cases and emphasizing that trial court has “legal duty to make a thorough and 

independent determination” of need for device); Miller, 531 

F.3d at 345 (“a district court’s blind adherence to a corrections 

officer’s recommendation, without making any individualized determinations or specific findings, amounts to an abuse 

of discretion”); Gonzalez v. Pliler, 341 F.3d 897, 902 (9th Cir.

2003) (“The use of physical restraints is subject to close judicial, not law enforcement, scrutiny.”) (emphasis in original).

This need for a decision by the judge runs through the Supreme Court’s decisions on courtroom restraints, as well. See 

Allen, 397 U.S. at 343 (judge “must be given sufficient discretion to meet the circumstances of each case. No one formula 

for maintaining the appropriate courtroom atmosphere will 

be best in all situations.”); Deck, 544 U.S. at 629 (Fifth and 

Fourteenth Amendment prohibit use of physical restraints 

visible to the jury “absent a trial court determination, in the 

exercise of its discretion, that they are justified by a state interest specific to a particular trial”).1

 

1 Our precedents also show a consistent preference for the least restrictive physical restraints needed for courtroom security. Stephenson v. 

Wilson, 619 F.3d 664, 668 (7th Cir. 2010) (“placing any kind of visible restraint on a defendant’s movement during a criminal trial was permissible 

. . . only if less conspicuous security measures . . . would be insufficient”); 

Brooks, 125 F.3d at 502 (“a defendant is entitled to the minimum restraints 

necessary and to the least obvious ones”); see also, Durham, 287 F.3d at 

1304 (courts must ask “whether less restrictive, less prejudicial methods 

of restraint were considered or could have been employed”), quoting 

Elledge v. Dugger, 823 F.2d 1439, 1451 (11th Cir. 1987); United States v. 

Moore, 651 F.3d 30, 47 (D.C. Cir. 2011) (same).
18 No. 17-3549

B. It’s Not Just About the Jury

The use of courtroom restraints has been litigated most often when the restraints are used during jury trials. That’s 

where the dangers of unfair prejudice are most severe, and 

where, if any restraints are to be used, the usual course is to

ensure they are never visible to the jury. Yet the reasons for 

the limits on courtroom restraints apply more broadly. They 

weigh in favor of applying those limits to pretrial proceedings. The Court laid out these reasons in Deck v. Missouri.

First, of course, the criminal justice system presumes the 

defendant is innocent unless and until proved guilty. 544 U.S. 

at 630. “Visible shackling undermines the presumption of innocence and the related fairness of the factfinding process.” 

Id. By necessity, we trust judges to be less vulnerable than lay 

jurors to this and other forms of unfair prejudice. Yet we defy 

psychological realities if we insist that the human beings who 

serve on the bench are immune to such subconscious and subliminal influence from seeing a human being in chains to protect others from him.

Second, Deck invoked the right to counsel because full

shackles can interfere with the accused’s ability to communicate with his lawyer. 544 U.S. at 631, quoting Allen, 397 U.S. at 

344. Courts have long expressed concerns that shackles can be 

heavy and painful, distracting the accused from focusing on 

his defense. E.g., Durham, 287 F.3d at 1304 (restraints “may 

confuse the defendant, impair his ability to confer with counsel, and significantly affect the trial strategy he chooses to follow”); People v. Harrington, 42 Cal. 165, 168 (1871), quoted in 

Deck, 544 U.S. at 631. These forms of interference do not depend on whether a jury is present.
No. 17-3549 19

Third, and most important here, “judges must seek to 

maintain a judicial process that is a dignified process.” Deck, 

544 U.S. at 631. This dignity is for the good of the institution 

and the public. The Deck Court continued:

The courtroom’s formal dignity, which includes 

the respectful treatment of defendants, reflects 

the importance of the matter at issue, guilt or innocence, and the gravity with which Americans 

consider any deprivation of an individual’s liberty through criminal punishment. And it reflects a seriousness of purpose that helps to explain the judicial system’s power to inspire the 

confidence and to affect the behavior of a general public whose demands for justice our 

courts seek to serve.

Id.

In Allen, the Supreme Court acknowledged that the use of 

shackles and gags in court “is itself something of an affront to 

the very dignity and decorum of judicial proceedings that the 

judge is seeking to uphold.” 397 U.S. at 344. Full restraints 

make the prisoner look like a wild and dangerous beast, not 

fit for human society. “A presumptively innocent defendant 

has the right to be treated with respect and dignity in a public 

courtroom, not like a bear on a chain.” Sanchez-Gomez, 859 

F.3d at 661. “We must not exaggerate the distance between 

‘us,’ the lawful ones, the respectable ones, and the prison and 

jail population; for such exaggeration will make it too easy for 

us to deny that population the rudiments of humane consideration.” Johnson v. Phelan, 69 F.3d 144, 152 (7th Cir. 1995) 

(Posner, C.J., dissenting).
20 No. 17-3549

Such routine treatment is unfair to the defendant, and it 

diminishes the courts: 

Courtrooms are palaces of justice, imbued with 

a majesty that reflects the gravity of proceedings 

designed to deprive a person of liberty or even 

life. A member of the public who wanders into 

a criminal courtroom must immediately perceive that it is a place where justice is administered with due regard to individuals whom the 

law presumes to be innocent. That perception 

cannot prevail if defendants are marched in like 

convicts on a chain gang. Both the defendant 

and the public have the right to a dignified, inspiring and open court process. Thus, innocent 

defendants may not be shackled at any point in 

the courtroom unless there is an individualized 

showing of need.

Sanchez-Gomez, 859 F.3d at 662. The Ninth Circuit went on to 

emphasize that these institutional concerns are present 

whether the hearing is before a jury or a judge:

We must take seriously how we treat individuals who come into contact with our criminal justice system—from how our police interact with 

them on the street to how they appear in the 

courtroom. How the justice system treats people 

in these public settings matters for the public’s 

perception, including that of the defendant. 

Practices like routine shackling and “perp 

walks” are inconsistent with our constitutional 

presumption that people who have not been 

convicted of a crime are innocent until proven 
No. 17-3549 21

otherwise. That’s why we must examine these 

practices more skeptically than those deployed 

in an institutional setting like [Bell v. Wolfish, 441 

U.S. 520 (1979)]. See, e.g., Deck, 544 U.S. at 634 

(holding that a defendant’s Fifth Amendment 

rights were violated by visible shackling before 

a jury at capital sentencing proceedings); Lauro 

v. Charles, 219 F.3d 202, 212–13 (2d Cir. 2000) 

(holding that a defendant’s Fourth Amendment 

rights were violated by a staged and filmed 

perp walk done without a legitimate law enforcement reason). We must treat people with 

respect and dignity even though they are suspected of a crime.

859 F.3d at 665.

C. The Dictum in Deck

The government argues here that the limits on excessive 

restraints simply do not apply at arraignments and other pretrial criminal proceedings where no jury is present. The government relies in part on this comment in Deck, in its review

of the history of courtroom restraints:

Blackstone and other English authorities recognized that the rule did not apply at “the time of 

arraignment,” or like proceedings before the 

judge. Blackstone, supra, at 317; see also Trial of 

Christopher Layer, 16 How. St. Tr. 94, 99 

(K.B.1722). It was meant to protect defendants 

appearing at trial before a jury. See King v. Waite, 

1 Leach 28, 36, 168 Eng. Rep. 117, 120 (K.B.1743) 
22 No. 17-3549

(“[B]eing put upon his trial, the Court immediately ordered [the defendant’s] fetters to be 

knocked off”).

544 U.S. at 626.

As important as Deck is in this field of law, this passing 

observation about arraignment was demonstrably wrong. 

The Ninth Circuit’s opinion in Sanchez-Gomez reviewed the 

historical sources in detail and showed that the arraignment 

comment in Deck was not supported by those sources. The 

Ninth Circuit explored Blackstone and Layer at length, explaining persuasively that Layer “applied the exception to 

Blackstone’s basic rule” against shackling, and that in general 

“shackling at arraignment was allowed after a showing of 

need,” and not as a matter of routine. 859 F.3d at 664. That 

sort of individualized policy is all that Henderson seeks here. 

Though the opinion in Sanchez-Gomez was later vacated as 

moot (the defendants there had already pled guilty), the Supreme Court did not cast any doubt on this persuasive historical critique of the Deck comment or on the Ninth Circuit’s 

analysis of the impact of routine shackling on the courtroom 

environment. See United States v. Sanchez-Gomez, 138 S. Ct. 

1532 (2018). 

III. Appellate Jurisdiction

The routine use of full restraints on pretrial defendants is 

a subject on which we can and should use our supervisory 

power through a writ of mandamus, which is the only meaningful route to appellate review of this practice. We should 

limit the pretrial use of courtroom restraints to cases in which 

the judge personally concludes they are necessary, based not 
No. 17-3549 23

on the Marshals Service preference for full restraints on everyone, but on an assessment of the needs of the particular case 

and defendant.

A. Collateral Order?

The majority finds that the judge’s order to keep defendant Henderson in full restraints during all pretrial hearings 

cannot be appealed under 28 U.S.C. § 1291 as a collateral order. This order was conclusive, separate from the merits, and 

in my opinion effectively unreviewable on appeal from a final 

judgment. There is room to argue that this order meets the 

standards for collateral orders, but the majority here is correct 

that the Supreme Court has identified only four pretrial orders that qualify in criminal cases: denial of bail, denial of dismissal based on double jeopardy, denial of dismissal under 

the Speech and Debate Clause of the Constitution, and compulsory psychotropic medication to render defendant competent to stand trial. Ante at 6. I don’t believe we can or should 

expand the category of collateral orders to allow routine review of such pretrial decisions about physical restraints.

The majority relies on Deck v. Missouri to conclude that effective review is available on direct appeal from a conviction.

That conclusion is not warranted. Deck dealt with capital sentencing, and on this point it followed the teaching of Holbrook 

v. Flynn and Illinois v. Allen, which addressed security 

measures during jury trials and the prejudicial effects of visible restraints before juries. I do not share the majority’s confidence that the pretrial practice Henderson challenges could

ever receive meaningful appellate review through 28 U.S.C. 

§ 1291 after conviction at trial. The effects of such pretrial 

shackling on the final judgment will be difficult to detect, to 

put it mildly.
24 No. 17-3549

B. Supervisory Writs of Mandamus

Better suited to this issue is the relatively rare procedure 

of a supervisory writ of mandamus, similar to the Ninth Circuit’s decision in Sanchez-Gomez, 859 F.3d at 649. To be clear, I 

do not contend here that the use of full restraints on Henderson violates his constitutional rights. We do not need to reach 

the constitutional issue in this case. We can and should just 

exercise supervisory authority over the practices of district 

courts within the circuit. And since Henderson has not yet 

been tried, this appeal is not moot.

A supervisory writ of mandamus is an extraordinary remedy that may be used, in the sound discretion of the appellate 

court, to exert “supervisory control of the District Courts” under the All Writs Act to ensure “proper judicial administration in the federal system.” La Buy v. Howes Leather Co., 352 

U.S. 249, 259–60 (1957); accord, 16 Wright, Miller, & Cooper, 

Federal Practice & Procedure § 3934; 28 U.S.C. § 1651. This is an 

appropriate occasion to exercise our discretion. The challenged practice will evade meaningful review through ordinary appellate channels, and the practice is not consistent 

with the dignity and reputation of the federal courts. A onetime supervisory writ would allow us to address the issue 

without creating a new category of interlocutory criminal appeals as a matter of right.

The Supreme Court and the federal courts of appeals often 

say, as the majority does here, that the petitioner must show 

that his right to the issuance of the writ is “clear and indisputable.” Ante at 9, quoting Cheney v. U.S. District Court for District of Columbia, 542 U.S. 367, 381 (2004). Citing the Supreme 

Court’s dictum in Deck to the effect that the common-law 
No. 17-3549 25

practice allowed shackles at arraignment, the government argues that even if Henderson might be right on the merits, he 

cannot win a writ of mandamus under the “clear and indisputable” standard. Also, no Supreme Court or Seventh Circuit precedent or statute or rule of procedure squarely bars

the challenged practice of routine pretrial use of full restraints.

There are two independent reasons to reject this argument

(apart from the historical error in the Deck dictum). First, as 

shown above, one core principle in the law of courtroom restraints is the requirement that the trial judge herself exercise 

judgment and discretion that addresses the particulars of the 

case and the defendant. The record shows here that the district court refused to exercise that judgment and discretion. 

The judge instead chose to defer to the Marshals Service’s

blanket policy for all pretrial proceedings in all criminal cases. 

That refusal by the judge violated a clear and indisputable 

right. A supervisory writ of mandamus is an exceptional step, 

but it’s the appropriate remedy for this blanket refusal.

Second, despite the frequent and prudent cautions against 

too-quick resort to writs of mandamus, the Ninth Circuit explained in Sanchez-Gomez why, for supervisory use of a writ of 

mandamus, the asserted right need not always be “clear and 

indisputable.” 859 F.3d at 655–56. That much is evident, for 

example, in Schlagenhauf v. Holder, 379 U.S. 104, 110 (1964), 

where the Supreme Court reversed this court’s denial of a supervisory writ of mandamus. The Supreme Court recognized 

that the underlying issue—a district court’s power to order a 

defendant to submit to physical and mental examinations—

was both “substantial” and one of “first impression,” yet the 

Supreme Court itself effectively issued the writ, providing the 
26 No. 17-3549

guidance that was sought. Id. at 111. See also La Buy, 352 U.S.

at 249 (affirming use of supervisory writ to stop district judge 

from repeated practice of referring antitrust cases to special 

masters); Will v. United States, 389 U.S. 90 (1967) (vacating unexplained supervisory writ of mandamus but leaving room 

on remand for another writ with sufficient explanation).2

When it comes to the extraordinary remedy of a supervisory writ of mandamus, Professors Wright, Miller, and 

Cooper provide a helpful explanation of the tension between 

the cautious language of the Supreme Court and federal circuits and our actual practices, which reflect more flexible 

pragmatism. 16 Federal Practice & Procedure §§ 3934 & 3934.1. 

“Writ review that responds to occasional special needs provides a valuable ad hoc relief valve for the pressures that are 

imperfectly contained by the statutes permitting appeals from 

final judgments and interlocutory orders.” § 3934.1 at 671.

A good example is In re Boehringer Ingelheim Pharmaceuticals, Inc., 745 F.3d 216 (7th Cir. 2014), where we issued a writ 

of mandamus quashing a district court’s discovery sanction 

ordering foreign defendants to bring certain witnesses to the 

United States for depositions. (I dissented in that case for reasons not relevant here.) The majority said the writ of mandamus was permissible as a “safety valve” enabling appellate 

review of a discovery order in an exceptional case. Id. at 219, 

citing Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 111 

(2009) (mandamus can provide “useful safety valve” for 

 2 Perhaps coincidentally, all three of these “formative” Supreme Court 

decisions on supervisory writs of mandamus originated with this circuit. 

See 16 Wright, Miller, & Cooper, Federal Practice and Procedure § 3934 at 

669.
No. 17-3549 27

promptly correcting serious errors). That reasoning applies 

with even more force here. Unlike the Boehringer defendants, 

who could have violated an interlocutory order and appealed 

a contempt sanction, for Henderson it is either mandamus or 

nothing.

Before concluding, I should acknowledge the district 

judge’s references to experiences that she and a lawyer she 

knows have had with sudden courtroom violence. In Deck, 

the Supreme Court said it was “mindful of the tragedy that 

can result if judges are not able to protect themselves and their 

courtrooms.” 544 U.S. at 632. I hope I am, as well. That’s why 

appellate courts give trial courts considerable discretion in 

handling these issues of courtroom security. Judge Myerscough’s distinguished career on federal and state benches 

shows her deep devotion to the rule of law and her commitment to treating all parties fairly and with dignity. With respect, however, given the tension between security and fairness, dignity, and decorum, a blanket practice of using maximum security measures for all detained defendants is not the 

correct answer to this difficult problem. See United States v. 

Baker, 432 F.3d 1189, 1245 (11th Cir. 2005), abrogated on other 

grounds by Davis v. Washington, 547 U.S. 813, 821 (2006) (finding it was “improper for the district court to shackle the defendants based upon what happened in other, unrelated trials 

involving different defendants and different charges”), citing 

Deck, 544 U.S. at 633.

Accordingly, we should not dismiss this appeal. We 

should issue a supervisory writ of mandamus to require individualized decision-making before a district court may impose full restraints in the courtroom on pretrial defendants 

who are still presumed innocent.