Hernandez-Gutierrez v. U.S. Dist. Court for the Dist. of Ariz. (In re Zermeno-Gomez)

• Decision Date: 25 August 2017
• Docket Number: No. 17-71867,17-71867
• Citation: 868 F.3d 1048
• Parties: IN RE Rodrigo ZERMENO-GOMEZ; Gustavo Hernandez-Gutierrez; Martin Rios-Arias, Rodrigo Zermeno-Gomez; Gustavo Hernandez-Gutierrez; Martin Rios-Arias, Petitioners, v. United States District Court for the District of Arizona, Phoenix, Respondent, United States of America, Real Party in Interest.
• Court: U.S. Court of Appeals — Ninth Circuit

868 F.3d 1048

IN RE Rodrigo ZERMENO-GOMEZ; Gustavo Hernandez-Gutierrez; Martin Rios-Arias,

Rodrigo Zermeno-Gomez; Gustavo Hernandez-Gutierrez; Martin Rios-Arias, Petitioners,
v.
United States District Court for the District of Arizona, Phoenix, Respondent,

United States of America, Real Party in Interest.

No. 17-71867

United States Court of Appeals, Ninth Circuit.

Submitted to Motions Panel August 15, 2017 San Francisco, California
Filed August 25, 2017

Daniel L. Kaplan, Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Petitioners.

Krissa M. Lanham and Dominic W. Lanza, Assistant United States Attorneys; Elizabeth A. Strange, Acting United States Attorney; United States Attorney's Office, Phoenix, Arizona; for Real Party in Interest.

Before: Alfred T. Goodwin, Alex Kozinski, and Marsha S. Berzon, Circuit Judges.

ORDER

On May 31, 2017, this court held in United States v. Sanchez-Gomez , 859 F.3d 649, 661 (9th Cir. 2017) (en banc) that before placing a defendant in shackles, the district court must "make an individualized decision that a compelling government purpose would be served and that shackles are the least restrictive means for maintaining security and order." About two weeks later, this court granted the government's motion to stay the mandate, so the

868 F.3d 1051

government could seek full en banc review or file a petition for a writ of certiorari.

Citing the stay of the mandate, several judges within the District of Arizona found that Sanchez-Gomez was not binding on them and accordingly denied defendants' requests to be unshackled. A court-established committee tasked with providing a recommendation on how to comply with Sanchez-Gomez likewise concluded that no action was required until the mandate issued.

The petitioners in this case are three defendants whose requests to be unshackled were denied based on the stayed mandate in Sanchez-Gomez . On June 26, 2017, petitioners filed this petition for a writ of mandamus asking that we order the District Court for the District of Arizona to comply with our decision in Sanchez-Gomez . That same date, petitioners also filed an emergency motion for injunctive relief, which the government opposed.

We granted petitioners' emergency motion on July 14, 2017, stating, "Pending further order of the court, respondent United States District Court for the District of Arizona is ordered to comply with our decision in United States v. Sanchez-Gomez , 859 F.3d 649 (9th Cir. 2017) (en banc)." Three weeks later, the Chief Judge for the District of Arizona issued a memorandum establishing a district-wide procedure for determining, prior to a defendant's appearance in court, whether and how the defendant should be restrained. The memorandum instructs judges that a defendant should not be restrained absent a showing that restraint is necessary.

We now hold that petitioners have satisfied the requirements for mandamus relief. We grant their petition and order the judges within the District of Arizona to comply with our decision in Sanchez-Gomez .

"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). We have authority to issue a supervisory or advisory writ in "cases involving questions of law of major importance to the administration of the district courts." In re Cement Antitrust Litig. (MDL No. 296) , 688 F.2d 1297, 1307 (9th Cir. 1982).

The issue of whether a published decision of this court is binding on lower courts within the circuit, notwithstanding a stay of the mandate, is plainly an issue of "major importance to the administration of the district courts." Id . The exercise of our authority is therefore appropriate in this matter. See United States v. U.S. Dist. Ct. , 334 U.S. 258, 264, 68 S.Ct. 1035, 92 L.Ed. 1351 (1948) ("It is, indeed, a high function of mandamus to keep a lower tribunal from interposing unauthorized obstructions to enforcement of a judgment of a higher court.").¹

When considering whether to grant mandamus relief, this court considers the five factors enumerated in Bauman v. U.S. Dist. Ct. , 557 F.2d 650 (9th Cir. 1977) :

(1) whether the petitioner has no other means, such as a direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in any way not correctable on appeal; (3) whether the district court's order is clearly erroneous as a matter of law; (4) whether the district court's order is an oft repeated error or manifests a persistent disregard of the federal rules; and (5) whether the district court's

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