Gonzalez v. Pliler

• Decision Date: 26 August 2003
• Docket Number: No. 02-55640.,02-55640.
• Citation: 341 F.3d 897
• Parties: Frederico GONZALEZ, Petitioner-Appellant, v. Cheryl PLILER, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

341 F.3d 897

Frederico GONZALEZ, Petitioner-Appellant, v. Cheryl PLILER, Warden, Respondent-Appellee.

No. 02-55640.

United States Court of Appeals, Ninth Circuit.

Submitted June 2, 2003^* — Pasadena, California.

Filed August 26, 2003.

COPYRIGHT MATERIAL OMITTED

Sung B. Park, Van Nuys, California, for the petitioner-appellant.

Bill Lockyer, Robert R. Anderson, Pamela C. Hamanaka, Kenneth C. Byrne, and Stephen A. McEwen, Office of the Attorney General of the State of California, Los Angeles, California, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; Florence Marie Cooper, District Judge, Presiding. D.C. No. CV-01-00300-FMC.

Before: Sidney R. THOMAS, Richard A. PAEZ, Circuit Judges, and Edward C. REED, Jr., District Judge.^**

OPINION

THOMAS, Circuit Judge.

California prisoner Frederico Gonzalez appeals the dismissal of his petition for a writ of habeas corpus, arguing that forcing him to wear a stun belt during his trial violated his right of due process. We conclude that an evidentiary hearing is required to resolve this claim and remand the case to the district court.

I

A stun belt is an electronic device that is secured around a prisoner's waist. Powered by nine-volt batteries, the belt is connected to prongs attached to the wearer's left kidney region. When activated remotely, "the belt delivers a 50,000-volt, three to four milliampere shock lasting eight seconds." Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1234 (9th Cir. 2001). Upon activation of the belt, an electrical current enters the body near the wearer's kidneys and travels along blood channels and nerve pathways. The shock administered from the activated belt "causes incapacitation in the first few seconds and severe pain during the entire period." Id. "Activation may also cause immediate and uncontrolled defecation and urination, and the belt's metal prongs may leave welts on the wearer's skin requiring as long as six months to heal." People v. Mar, 28 Cal.4th 1201, 124 Cal.Rptr.2d 161, 52 P.3d 95, 103 (2002) (internal citation and quotation marks omitted). Activation of a stun belt can cause muscular weakness for approximately 30-45 minutes and heartbeat irregularities or seizures. Id. Accidental activations are not unknown. See, e.g., United States v. Durham, 219 F.Supp.2d 1234, 1239 (N.D.Fla.2002) (reporting a survey that showed 11 out of 45 total activations [24.4%] were accidental, but noting the low percentage of accidental activations on general usage).

Stun belts are a method of prisoner restraint, used as an alternative to shackles. As with all forms of physical confinement during trial, the use of stun belts raises a number of constitutional concerns. As the Supreme Court noted in Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), the sight of physical restraints may have a significant effect on the jury and may impede the defendant's ability to communicate with his counsel and to participate in the defense of the case. The use of physical restraints may also "confuse and embarrass the defendant, thereby impairing his mental faculties," and it "may cause him pain." Duckett v. Godinez, 67 F.3d 734, 748 (9th Cir. 1995) (internal citations and quotation marks omitted). To avoid unnecessary implication of these concerns, the Court concluded in Allen, "no person should be tried while shackled and gagged except as a last resort." 397 U.S. at 344, 90 S.Ct. 1057.

Indeed, we have held that, "[g]enerally, a criminal defendant has a constitutional right to appear before a jury free of shackles." Spain v. Rushen, 883 F.2d 712, 716 (9th Cir.1989) (citing Wilson v. McCarthy, 770 F.2d 1482, 1484 (9th Cir.1985)). Before a court may order the use of physical restraints on a defendant at trial, "the court must be persuaded by compelling circumstances that some measure is needed to maintain security of the courtroom," and "the court must pursue less restrictive alternatives before imposing physical restraints." Duckett, 67 F.3d at 748(internal citations and quotation marks omitted). "In all [ ] cases in which shackling has been approved," we have noted, there has been "evidence of disruptive courtroom behavior, attempts to escape from custody, assaults or attempted assaults while in custody, or a pattern of defiant behavior toward corrections officials and judicial authorities." Id. at 749 (emphasis added).

The use of stun belts, depending somewhat on their method of deployment, raises all of the traditional concerns about the imposition of physical restraints. The use of stun belts, moreover, risks "disrupt[ing] a different set of a defendant's constitutionally guaranteed rights." United States v. Durham, 287 F.3d 1297, 1305 (11th Cir. 2002). Given "the nature of the device and its effect upon the wearer when activated, requiring an unwilling defendant to wear a stun belt during trial may have significant psychological consequences." Mar, 124 Cal.Rptr.2d 161, 52 P.3d at 97. These "psychological consequences," id., cannot be understated. Stun belts, for example, may "pose[ ] a far more substantial risk of interfering with a defendant's Sixth Amendment right to confer with counsel than do leg shackles." Durham, 287 F.3d at 1305. We have long noted that "one of the defendant's primary advantages of being present at the trial[ ] [is] his ability to communicate with his counsel." Spain, 883 F.2d at 720; see also Kennedy v. Cardwell, 487 F.2d 101, 106 (6th Cir.1973) (asserting that restraints confuse mental faculties and thus abridge a defendant's constitutional rights). Stun belts may directly derogate this "primary advantage[ ]," Spain, 883 F.2d at 720, impacting a defendant's right to be present at trial and to participate in his or her defense. As the Eleventh Circuit recently observed, "[w]earing a stun belt is a considerable impediment to a defendant's ability to follow the proceedings and take an active interest in the presentation of his case." Durham, 287 F.3d at 1306. "The fear of receiving a painful and humiliating shock for any gesture that could be perceived as threatening likely" hinders a defendant's participation in defense of the case, "chill[ing] [that] defendant's inclination to make any movements during trial — including those movements necessary for effective communication with counsel." Id. at 1305.

For like reasons, a stun belt may "materially impair and prejudicially affect" a defendant's "privilege of becoming a competent witness and testifying in his own behalf." Mar, 124 Cal.Rptr.2d 161, 52 P.3d at 104. In the course of litigation, it is "not unusual for a defendant, or any witness, to be nervous while testifying." Id. at 110. "[I]n view of the nature of a stun belt and the debilitating and humiliating consequences that such a belt can inflict," however, "it is reasonable to believe that many if not most persons would experience an increase in anxiety if compelled to wear such a belt while testifying at trial." Id. This "increase in anxiety" may impact a defendant's demeanor on the stand; this demeanor, in turn, impacts a jury's perception of the defendant, thus risking material impairment of and prejudicial affect on the defendant's "privilege of becoming a competent witness and testifying in his own behalf." Id. at 104 (quoting People v. Harrington, 42 Cal. 165, 168 (1871)).

For these reasons, "a decision to use a stun belt must be subjected to at least the same close judicial scrutiny required for the imposition of other physical restraints." Durham, 287 F.3d at 1306 (citations and internal quotation marks omitted). And for these reasons, before a court may order the use of physical restraints on a defendant at trial, "the court must be persuaded by compelling circumstances that some measure [is] needed to maintain the security of the courtroom," and, as noted, "the court must pursue less restrictive alternatives before imposing physical restraints."¹ Morgan v. Bunnell, 24 F.3d 49, 51 (9th Cir.1994) (citations and internal quotation marks omitted).

In this case, the petitioner was restrained with the belt during jury selection. This decision was apparently made by the bailiff, not the trial judge. Gonzalez was unrestrained during the morning session of the next trial day, a decision apparently made by another bailiff.

But the bailiff assigned to the afternoon trial proceedings forced Gonzalez to wear the stun belt. At that point, defense counsel objected and the following colloquy occurred:

THE COURT: * * * Mr. Lacey, you asked to address the Court regarding the issue of the belt.

MR. LACEY: Yes, your honor. To my knowledge, there hasn't been any type of threat to anybody that would instill any belief that my client was going to create some type of disturbance or act out in court. He didn't have the belt on this morning. The other bailiff made that decision, and he had a belt on last Friday and there was no incident whatsoever. Unless there is a documented incident where there is a true threat other than the charges, I don't believe the belt is necessary, and I would ask the Court to let him proceed without it.

THE COURT: First of all, the belt is not visible to anyone, so it's not a case where he's being singled out in some way the jury would be aware of. Even that being said, what is the reason for the belt, Richard?

THE BAILIFF: I had the belt on him Friday, your honor, and that was my decision because of the Defendant's three strikes, and some problems he had in Department H. This was an "H" case.

THE COURT: He had some problems there?

THE BAILIFF: Yes.

THE COURT: What were you told regarding his problems?

THE BAILIFF: He was being a little uncooperative, and he had a little attitude; that kind of deal.

THE COURT: Okay.

THE BAILIFF: And the Bailiff was here this morning. I don't know why he didn't —

THE COURT: I don't either. That's not the point. He had a temporary bailiff here this morning; they were...