Arizona appeals cuff-less ruling

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KAILUA-KONA — Starting Monday, the 3rd Circuit will fully implement a new procedure that allows criminal defendants who have not been proven guilty to appear unrestrained in court.


KAILUA-KONA — Starting Monday, the 3rd Circuit will fully implement a new procedure that allows criminal defendants who have not been proven guilty to appear unrestrained in court.

While Hawaii is not seeking to fight the ruling that calls for defendants to appear cuff-less, another state within the 9th Circuit Court’s jurisdiction hopes to overturn it.

The new policy comes after the 9th Circuit Court of Appeals ruled May 31 that a pretrial status criminal defendant appearing in court in shackles is a violation of their constitutional rights.

The ruling clarifies that the Fifth Amendment right to be free of unwarranted restraints applies whether the proceeding is pretrial, trial or sentencing with or without a jury.

Pretrial status is any hearing before trial. That includes initial appearances, arraignments, motion hearings and preliminary hearings.

The Hawaii State Judiciary started to implement the new policy in July. However, the Kona District Court was first faced with the issue on Aug. 30 when a public defender requested her client, who is facing a murder charge, appear without chains and in plain clothes for his preliminary hearing.

After consulting with Lt. Patrick Kawai with the Department of Public Safety and a deputy in the courtroom about the potential safety and security concerns, District Judge Margaret Masunaga granted the defense’s request.

The Department of Justice has filed a petition with the U.S. Supreme Court seeking review of this ruling and the Hawaii State Judiciary said it will closely monitor the case.

Other states contest ruling

Along with Hawaii, the 9th Circuit Court filing impacts California, Arizona, Nevada, Oregon, Idaho, Montana, Alaska as well as two U.S. territories Guam and Northern Mariana Islands.

On Thursday, Arizona Sen. Jeff Flake filed an amicus brief with the Supreme Court to overturn the 9th Circuit Court’s ruling.

“The Ninth Circuit upended traditional courtroom-security protocols last May when it held that routine prisoner-restraint practices violated the Constitution,” the amicus brief states.

According to Joshua Wisch, special assistant to Hawaii Attorney General Doug Chin, Hawaii is not joining the amicus brief.

“But the Administration is focused on exploring practical solutions to address the Ninth Circuit decision,” Wisch stated in an email to West Hawaii Today Friday, adding that there was nothing more he could share.

The National Sheriffs’ Association, as well as Arizona Sheriffs’ Association and the Western States Sheriffs’ Association, joined the amicus brief.

“The National Sheriffs’ Association is proud to join Senator Flake’s amicus brief calling for the 9th Circuit’s dangerous decision in U.S. v. Sanchez-Gomez to be overturned,” said National Sheriffs’ Association Executive Director Jonathan Thompson. “This ruling puts sheriffs, deputies, courthouse staff and visitors in danger and runs contrary to law enforcement’s mission of providing public safety. We commend Senator Flake’s leadership on this important issue and his continued support of law enforcement.”

The ruling still allows the court to authorize shackling of defendants who pose a threat to the safety and security of those in the courtroom.

The ruling states “if the government seeks to shackle a defendant, it must first justify the infringement with specific security needs as to that particular defendant.”

“Because the sheriffs are responsible for transporting in-custody defendants to court, the sheriffs will directly inform the court if a particular defendant poses a security risk,” said Jan Kagehiro, director of Communications and Community Relations for the Hawaii State Judiciary. “Based on that information, the court will determine whether or not the defendant must be shackled.”

Kagehiro added that the procedures do not require a motion to be filed in order for a court to determine that a defendant must be shackled.

“However, this process is new and we cannot be certain that motions will or will not be filed in these matters in the future,” she said.

Local reaction

With news of the new policy at the Kona courthouse still circulating throughout the community, reaction to the change has been mixed.

Just up the hill from the courthouse, which used to be an hospital, sits Kona Pacific Public Charter School. Parents and teachers expressed their thoughts on the procedure after school on Thursday.

Third-grade teacher Jamie Coulter said he has never felt unsafe working above the courthouse.

“I’m aware there’s a courthouse down there, but never have given it much thought,” Coulter said. “I just assume everyone knows what they’re doing.”

Coulter also has two children who attend Kona Pacific. He said his kids would walk down the hill to the library and he’s never had an issue.

“I have faith in the police and trust in the justice system,” he said.

Lauralynn Ellison has two children with autism who attend the school. She said she thinks about the security of the courthouse everyday she drives by the building.

Ellison said there are children who walk down the hill all the time. She speculated, about dangers of a child going missing or getting hurt if an in-custody escaped.

“Who’s going to pay the price for that?” Ellison questioned.

Ellison also had some thoughts about defendants who appeared in court unrestrained and in plain clothes. She thinks deputies should carry Tasers and not guns for the safety all in the courtroom, saying non-lethal force is always better.

However, Ellison did think that everybody has a right to appear innocent prior to the determination of their guilt.

Hawaii Police Chief Paul Ferreira said the changes in the judiciary don’t really affect the police department, however there is always the possibility that it could.

Several years ago, Ferreira said, officers were hired as special duty to provide security to the family court because of the lack of deputies.


There is the potential that officers would be brought in again for special duty, but that has not been discussed at this point.

“If I were in their position I wouldn’t be going along with the ruling and would look at ways to appeal the decision,” Ferreira said.

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