IN THE COURT OFAPPEALS FORTHE STATE OFWASHINGTON

SNOHOMISH COUNTY SHERIFF TY 

### ) No. 79426-4 TRENARY, 

### ) DIVISION ONE Appellant, 

### ) v. 

### ) PUBLISHED OPINION TIMOTHY GONSALVES and 

### ) CHRISTOPHER MCMULLEN, 

### ) Respondents. 

### ) FILED: March 23, 2020

_______________________________________________________________________________________ 

### ) ANDRUS, J.

—Snohomish County SuperiorCourt issued a writ ofmandamus prohibiting the Snohomish CountySheriff’s Officefrom using restraints on Timothy Gonsalves and Christopher McMullen at any non-jury criminal hearings. The Sheriff appeals, arguing that mandamus was inappropriate because corrections transport deputies do not have a mandatory legal duty to remove a defendant’s restraints absent a court order and because Gonsalves and McMullen had adequate legal remedies outside of mandamus. We agree and reverse the trial court’s writ of mandamus. FACTS On December 12, 2018, TimothyGonsalves, an in-custodydefendant being held in the Snohomish County Jail pending two separate trials, filed a petition for
a writ of mandamus against the Snohomish County Sheriff, Ty Trenary, and hisNo. 79426-4-112

deputy officers (hereinafter“Sheriff”) to “[c]ease placing physical restraints on this pretrial detainee or any similar[ly} situated citizen when present in the courthouse forjudicial hearings, absenta hearing andjudicial orderthat a particular individual presents specific security risks which requires the use ofsaid physical restraints.” That same month, Gonsalves amended the petition to add Christopher McMullen, another in-custodydefendant, as an additional petitioner. Gonsalves and McMullen alleged belowthatthe Sheriffmaintains a blanket policy of shackling all in-custody defendants during transport to court hearings, while awaiting court hearings, and during those proceedings without conducting individualized assessments of a particular defendant’s dangerousness or flight risk. They alleged that Snohomish County Superior Court conducts omnibus and trial call hearings in Department 304, during which in-custody defendants in the courtroom must remain in restraints unless a court orders them to be removed. They further alleged that “it is the practice in Snohomish County Superior Court” totransport in-custodydefendantsto criminal motions hearings, plea hearings, trial call hearings, and sentencing hearings in restraints and to leave those restraints in place during these hearings. Gonsalves and McMullen did not challenge any practice ofthe Snohomish County Superior Court. Instead, they sought a writ only against the Sheriff, claiming that the Sheriff and those under his command were violating their due process rights and those ofall detainees by shackling them “absent a compelling showing following [a] hearing.”

-2-No. 79426-4-1/3 The Sheriffobjected tothe use ofthe mandamus procedureto address the issues raised by Gonsalves and McMullen. To support this objection, the Sheriff presented declarationsfromthe elected Sheriff, TyTrenary; Jamie Kane, the Major at the Snohomish County Sheriff’s Office Corrections Bureau (Bureau), which operates the Snohomish CountyJail; and AnthonyAston, the Chiefofthe Bureau. They described the following procedures and practices within the jail and the courthouse: The Sheriffis responsiblefora numberofduties and functions inthe county, including police patrol, criminal and traffic investigations, search and rescue operations, and managementand operation ofthe countyjail. The dailypopulation ofthejail averages approximately900 individuals. The Bureau hasdeveloped and implemented written policies for the transport and restraint of in-custody defendants to and during court hearings. The policy considers the movement of any in-custodydefendantto be a high riskactivity. The custodial staffassigned to transport in-custody defendants follow routine practices and procedures for assembling and transporting these individuals to court. First, in-custody defendants scheduled to appear for a court hearing are assembled in a “transport holding” area within the jail. The area, comprised of multiple occupant and single occupant cells, allows custodial staff to segregate people by gender and security level. If an in-custody defendant is housed in a maximum security area within thejail, they are placed in wristand waist restraints priorto leaving their housing unit beforethey reach the transport holding area. All

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otherin-custodydefendants are placed inwaistand wrist restraints in thetransport holding area before leaving thejail. Corrections deputies then escort the in-custody defendants through a tunnel from thejail tothe courthouse. Theywalk intothe courthouse basement, at which time custody deputies place each in-custody defendant into leg restraints. The corrections deputiesthen escortthe group ofrestrained defendants into public elevators to holding cells on the second orthird floors ofthe courthouse, or into an unsecurearea atthe backof Department304. Acorrections deputythen conducts security sweeps of the courtrooms and verifies the location and time of each defendant’s hearing. The current courthouse configuration does not provide for
secure transport to each courtroom. The deputies navigate public areas and elevators to reach each courtroom. In the past, deputies escorted defendants from the holding area in the courthousetotheir respective courtrooms infull waist, wrist, and leg restraints. For jury trials, the defendants would be handcuffed behind their backs and escorted into the courtroom where the handcuffs were removed before the jury entered. Historically, the deputies escorted defendants to court in waist, wrist, and leg restraints for all non-jury trial court hearings and leftthe restraints in place during the hearings. If there were multiple defendants with hearings scheduled in the
same courtroom, the deputies broughtthem all tothat courtroom atthe sametime and staged them in thejury box until each one’s hearing began. Before Gonsalves and McMullen filed this lawsuit, the Snohomish County Prosecuting Attorney’s Office arranged a meeting with the Snohomish County

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Public Defenders Association, judges from superior and district court, and staff from the Bureau to discuss the use of restraints during transport of in-custody defendants from the countyjail to courtrooms and during court proceedings. As a result ofthis meeting, the Sherifftemporarily agreed to change its policy: Corrections currently is prepared to present inmates for their court hearings outofrestraints. Thisdoes notapplytotransportofinmates from the Jail to the courthouse or maintaining inmates in the courthouse before and after hearings. Underthis agreement, for criminal hearings in courtrooms otherthan Department 304, deputies brought defendants into a courtroom one at a time. Unless a court ordered otherwise, the deputies removed the restraints before thejudge tookthe bench. Once the hearing concluded, deputies placed restraints back on the defendant and escorted that defendant back to the holding area. This process repeated until all defendants scheduled to appear for a hearing had completed theircourt appearance. Forthe criminal hearings in Department304, deputies staged all defendants in the back of the courtroom in waist, wrist, and leg restraints. The deputies removed each defendant’s restraints before their appearance and placed them back on after each defendant’s hearing concluded. Although the Sheriffand Bureau representatives agreed to this procedure, they nevertheless believed that it decreased courthouse safety and impacted the deputies’ ability to maintain control of defendants. They also testified that it stressed the operational functions of the jail because additional deputies were necessary to monitor defendants during court proceedings. One concern expressed by the jail managers is the fact that the deputies transporting
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defendants do notwork in the housing units with the defendants and, as a result, do not knoweach individual’s baseline behaviors and personalities. The transport deputies must be vigilant to a defendant who, under stress from the court proceedings, may act out unexpectedly. And the restraints are used as a wayto keepthedefendantssafefrom each other, asthere may be co-defendants present in the courtroom at the same time. Finally, the Sheriff and Bureau management
are concerned aboutthesafetyofthe courtroom staffwho maybe unaware ofrisks presented by the presence of a defendant’s friends, family, or enemies in the courtroom audience. The trial court conducted a hearing on the petition on December28, 2018. The record indicatesthat neitherGonsalves norMcMullen presented anyevidence before or at the hearing. At the conclusion ofthis hearing, the court granted the writofmandamus. Thetrial court reasoned that underWashington law, “a prisoner is entitled to be broughtintothe presence ofthe courtfreefrom restraints.” Itstated thatthe Sheriff had a legal duty not to violate this right and that itwas a violation ofthis duty notto remove restraintswhen a defendantwas in “the presence ofthe court.” Gonsalves and McMullen were “in the presence ofthe court” when “court is in session,” and “[c]ourt is in session when thejudge is on the bench and the proceedings are on the record.” The trial court also found that Gonsalves and McMullen lacked an adequate legal remedy, making mandamus appropriate. Thetrial court, however, declined to prohibitthe Sherifffrom transporting all defendants from the jail to the courtroom in restraints, and it limited the writ to

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Gonsalves and McMullen, rejecting theirargumentthat it should applyto similarly situated individuals. The writ states: BY ORDER OF THE SNOHOMISH COUNTY SUPERIOR COURT, the Snohomish County Sheriff shall, acting through his agents and employees, bring Petitioner Gonsalves and Petitioner McMullen into the presence of the court free from restraints. This writ shall not supersede anyfuture Order authorizing restraints that is entered by the Superior Court following an individualized determination that restraints arewarranted. The Sheriffappeals. ANALYSIS The Sheriff advances two arguments on appeal. First, he argues that his transport deputies have no mandatory legal duty to remove a defendant’s restraints absent a court orderto do so. He contends that the deputies exercise discretion when determining to restrain a defendant until the trial court decides whether to order restraints removed. Second, he argues that Gonsalves and McMullen had adequate legal remedies other than the extraordinary writ of mandamus. We agree with both arguments. A writ of mandamus “may be issued by any court

. . . to compel the performance ofan actwhich the lawespecially enjoins as a duty resulting from an office, trust or station.” RCW 7.16.160. This writ is only appropriate where the official is undera “mandatory ministerial dutyto perform an act required by lawas part ofthatofficial’s duties.” Freeman v. Grecioire, 171 Wn.2d 316, 323, 256 P.3d 264 (2011). The mandate must define the dutywith such particularity as to leave nothing to the exercise ofdiscretion orjudgment. j~çj~. at 323. Whetherthere is a

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cleardutyto act is a question of lawthis court reviews de novo. Paxton v. City of Bellinqham, 129Wn. App. 439, 445, 119 P.3d 373 (2005). Additionally, awrit of mandamus mayonly be issued in cases “where there is not a plain, speedy and adequate remedy in the ordinary course of law.” RCW 7.16.170. The availability ofsuch a remedy “is a question leftto the discretion of the court in which the proceeding is instituted.” River Park Square, LLCv. Miggins, 143 Wn.2d 68, 76, 17 P.3d 1178 (2001). An appellate court “will not disturb a decision regarding a plain, speedy, and adequate remedy on review unless the superior court’s discretion was manifestly unreasonable, or exercised on untenable grounds, orfor untenable reasons.” ki. The Sheriff first challenges the trial court’s conclusion that transport deputies have a mandatory legal dutyto remove a defendant’s restraints for non jury proceedings once a defendant’s hearing commences, unless the trial court orders otherwise. He argues that the deputies have the discretion to leave the restraints in place and, underWashington case law, the duty of determining the appropriateness of restraints falls on the court. Gonsalves and McMullen argue justthe opposite. They contend that the Sheriff has a mandatory dutyto remove the restraints and thatthetrial court hasthe discretion to orderthatthey be placed backon ifthefacts warrant. We conclude thatthe Sheriffhasthe betterargument here. First, a defendant has a clearconstitutional rightto appear in courtwithout restraints in the presence ofthejury. See State v. Williams, 18 Wash. 47, 48-49, 50 P. 580 (1897) (trial court’s refusal to order removal ofdefendant’s restraints and

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restraints on defense witnesses duringjurytrial violated constitutional guarantyto fair trial); State v. Miller, 78 Wash. 268, 276, 138 P. 896 (1914) (defendant not prejudiced by being led fromjail to courtroom in handcuffs becausejury not aware of it and because defendant was flight risk); State v. Boqqs, 57 Wn.2d 484, 488- 89, 358 P.2d 124 (1961) Gurorwitnessed defendant in jail cell but any prejudice
was cured with an instruction); State v. Sawyer, 60 Wn.2d 83, 85, 371 P.2d 932 (1962) (instruction cured any prejudice afterjurors witnessed defendants being handcuffed afterfirstdayoftrial). The Sheriffdoes not contend otherwise, and the Bureau had no practice ofshackling any defendant in front ofajury. Second, our case law has repeatedly indicated that it is the court’s obligation—not that of the jail administration—to determine if restraints are warranted in any individual case. In Statev. Hartzog, 96Wn.2d 383, 635 P.2d 694 (1981), ourSupreme Court invalidated ageneral securityorderissued bytheWalla WalIa Superior Court requiring all defendants to remain in restraints during trial. The court held that the trial court must evaluate the use of restraints on any defendant on a case-by-case basis and “must exercise discretion in determining the extentto which courtroom security measures are necessaryto maintain order and prevent injury.” 

### ~ at400. Nearly a decade later in State v. Finch, 137 Wn.2d 792, 975 P.2d 967 (1999), our Supreme Court reiterated that it is an abuse ofdiscretion forthe court not to conduct an individualized assessment of the defendant’s risk of escaping custody, injuring himselforothers, or misbehaving in the courtroom. Id. at 850.

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In granting thewrit, thetrial court relied on Statev. Damon, 144Wn.2d 686, 25 P.3d 418 (2001), in which our Supreme Court held thatthe trial courtfailed to exercise its discretion and in doing so, violated the defendant’s right to a presumption of innocence when the court deferred to the corrections officer’s recommendation to requirethe defendantto be held in a restraintchairduring trial. ki. at691-92. Butthe Damon courtdid notaddressthe precise question presented here—namely, whethertransporting deputies have a ‘mandatory duty” to remove a defendant’s restraints during non-jury criminal hearings. In fact, no Washington court has held that a law enforcement officer has a “mandatory ministerial” legal duty to remove a defendant’s restraints before the trial court conducts an individualized assessment ofthat defendant’s case. Each of the cases on which Gonsalves and McMullen rely addresses the trial court’s duty, notthe dutyofthetransporting deputies. And the record hereamplysupports whythe decision to leave or remove restraints is a discretionary, nota mandatory,
one. The Bureau has assessed the layout ofthe courthouse, the characteristics of each courtroom, the path they take to escort defendants from one area to another, the staff available on any given day for transporting defendants to courtrooms for non-jury proceedings and forjurytrials, and unique security issues that may arise in any courtroom based on the number of other defendants in the
same courtroom and the presence ofcourtstaffand members ofthe public. In State v. Walker, 185 Wn. App. 790, 796, 344 P.3d 227 (2015), this court rejected the argument thatjail or prison administrators have plenary authority to determinewhetheran inmate defendant mustwear restraints in the courtroom:

- 10-No. 79426-4-I/i I The interests of prison administrators in the security of their institutions and the resulting decision to use restraints are readily distinguishablefromthe interests ofthe court. To besure, on matters of courtroom security, those interests may overlap because of common concerns about preventing injuryto those in the courtroom, preventing disorderly conduct in the courtroom, and preventing escape

. . . But, unlike in a penal setting, a court is also required to balance the need for a secure courtroom with the defendant’s presumption of innocence, the defendant’s ability to assist counsel, the rightto testifyon one’s own behalf, and the dignity ofthejudicial process

. . . While prison officials may be well positioned to assist the trial court in deciding matters of courtroom security, they are in no position to weigh and balance the many factors the court must consider when determining whether, and in what manner, a defendant should be restrained during a court proceeding. Id. at 796-97. We placed the duty of making the individualized assessment—this balancing of an individual’s constitutional rights against the need for security in a particularcourtroom—on the shoulders ofthetrial courts. ki. We thus conclude thatthe trial court erred in ruling that the Sheriff and his transporting deputies have a mandatory legal dutyto remove restraintsfrom an incustody defendantduring all criminal proceedings, even in the absence ofa court orderto do so. Additionally, we disagree with the trial courtthat Gonsalves and McMullen lacked an adequate legal remedy. Mandamus is only proper“where there is not a plain, speedyand adequate remedy inthe ordinarycourse oflaw.” RCW7.16.170. “A remedy is not inadequate merely because it is attended with delay, expense, annoyance, or even some hardship.” City of Kirkland v. Ellis, 82 Wn. App. 819, 827, 920 P.2d 206 (1996). “There must be something in the nature ofthe action that makes it apparent that the rights of the litigants will not be protected or full redress afforded without issuance ofthewrit.” CityofOlympiav. Thurston County.

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Bd. of Comm’rs, 131 Wn. App. 85, 96, 125 P.3d 997 (2005). Whether there is a plain, speedy, and adequate remedy in the ordinary course ofthe law is reviewed forabuse ofdiscretion. River Park Square LLC, 143 Wn.2d at 76. The trial court reasoned thatthe writ was appropriate here because “there is a continuing violation of a duty.” It based this decision on Euqster v. City of Spokane, 118 Wn. App. 383, 76 P.3d 741 (2003). But Euqster is distinguishable. In that case, members ofthe Spokane City Council brought an action to invalidate
an ordinance that required the city to loan parking meter revenue to a public development authority (PDA) to cover any shortfalls in the cost of erecting a parking garage. The garage developer, named as a defendant, filed a counterclaim seeking a writ of mandamus compelling the city council to comply with the ordinance. Id. at 397. After concluding that the ordinance imposed a mandatory duty on the city to offer a loan to the PDA, the Euqster court analyzed whetherthe developer had any means, otherthan mandamus, to enforce the duty. 118 Wn. App. at 414. It concluded that the developer had no contractual basis for compelling the city to make the requested loan because no contract existed. j~ at416. It affirmed the trial court’s conclusion that the developer lacked a plain, speedy and adequate remedy in the ordinary course of law. But the trial court here conducted no analysis ofwhat options, other than mandamus, existforGonsalves and McMullen. First, the trial court has the ability and legal duty to protect Gonsalves’s and McMullen’s constitutional rights to be free of restraints. The record shows that the transport deputies escorted

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Gonsalves and McMullen to the mandamus hearing in restraints. The court was able to quickly conductan assessment ofthe need forthe restraints by asking the deputies whether the Sheriff had any specific concerns and whether either defendant presented a flight risk, a risk of committing harm, or a risk of upsetting the decorum of the proceeding. After hearing from a transport deputy and reviewing the dockets for each of the defendant’s criminal cases, the trial court determined that restraints were unnecessary. Gonsalves and McMullen, in essence, obtained an individualized assessment bythe court on the spotwithout having to request it. Second, Gonsalves and McMullen can simply ask to have their restraints removed in anycriminal hearing. AsWalkerclearly indicates, had they made such
a request, the court presiding over their hearing would have been obligated to conduct an assessment ofthe need for restraints. And Gonsalves and McMullen also could have sought a court order prohibiting the use of restraints at anyfuture criminal hearings, therebyeliminating the need to raise the issue repeatedly. Had the Sherifffailed or refused to complywith such a lawful courtorder, Gonsalves or McMullen could have requested sanctions for contempt. See State v. Sims, 193 Wn.2d 86, 441 P.3d 262 (2019) (affirming court imposed remedial sanctions against DSHS for non-compliance with court ordered mental health evaluation). Moreover, as demonstrated bythe mandamus hearing in this case, the trial court
can raise the issue 

### sua sponte even ifa defendant orcounsel does not. Finally, ifGonsalves, McMullen, oranyotherdefendant deems the Sheriff’s “blanket” transport policy to be unconstitutional, they have a legal right to seek a

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declaratoryjudgment and injunctive relief. ~ Johnson v. Moore, 80 Wn.2d 531, 496 P.2d 334 (1972) (individuals held in cityjail without charge could bring suitfor declaratory judgment and injunctive relief to challenge practice of holding individuals in cityjail on suspicion of crime). There is a statutory mechanism for obtaining emergency temporary injunctive relief when a party can establish a violation of legal rights. ~ RCW 7.40.020 (grounds for issuance) and 7.40.050 (emergency restraining orders). Gonsalves and McMullen could have brought a declaratory judgment action to challenge the constitutionality of restraining defendants during non-jury criminal proceedings and could have sought an injunction to prevent the Sheriff from following any policy a court deems unconstitutional. The trial court abused its discretion in concluding that Gonsalves and McMullen lacked an adequate remedy at law. A writ of mandamus was inappropriate underthese circumstances. Reversed.

WE CONCUR:

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