In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2420
BRIAN A. MAUS,
Plaintiff‐Appellant,
v.
DIANE BAKER, et al.,
Defendants‐Appellees.
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Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:09‐cv‐00042‐RTR — Rudolph T. Randa, Judge.
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SUBMITTED MARCH 19, 2014 — DECIDED APRIL 4, 2014
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Before POSNER, KANNE, and TINDER, Circuit Judges.
POSNER, Circuit Judge. The plaintiff filed suit under 42
U.S.C. § 1983 against guards and other personnel at a county
jail in which he’d been a pretrial detainee. His claim that
they had used excessive force against him survived sum‐
mary judgment and was tried to a jury, which found for the
defendants. The plaintiff was a prison inmate at the time of
his trial, and his only substantial claim on appeal is that he
was denied a fair trial because he was compelled to wear
2 No. 13‐2420
shackles and his prison uniform in the courtroom—with the
shackles (as well as, of course, the uniform) visible to the ju‐
ry—while the defendants were allowed to, and did, appear
in their jail‐guard uniforms, the contrast between their uni‐
forms and the plaintiff’s uniform highlighting the difference
in social standing between them and him. The judge made
no effort to prevent the shackles from being seen by the ju‐
rors and didn’t even tell them not to allow the sight of the
shackles to influence their decision, though he had promised
before trial to give such an instruction.
Remarkably, the record does not indicate the extent to
which Maus was shackled. We know that before the trial be‐
gan his lawyer asked the judge to direct that Maus be free of
“all shackles, hand cuffs, leg irons, and other restraints” dur‐
ing the trial. And we know that he was handcuffed during
the trial except when he testified. What we don’t know is
whether he was wearing leg irons—better described as “an‐
kle cuffs,” and now often called “legcuffs,” since they differ
from handcuffs only in being somewhat larger.
The sight of a shackled litigant is apt to make jurors think
they’re dealing with a mad dog; and just the contrast be‐
tween a litigant’s wearing prison garb and his opponents’
wearing law enforcement uniforms is likely to influence the
jury against the prisoner, and has long been recognized as
being highly prejudicial. See, e.g., Holbrook v. Flynn, 475 U.S.
560, 568–69 (1986); Estelle v. Williams, 425 U.S. 501, 504–05
(1976); Illinois v. Allen, 397 U.S. 337, 344 (1970); Stephenson v.
Wilson, 619 F.3d 664, 668–69 (7th Cir. 2010). Although the is‐
sue has arisen mainly in criminal (including postconviction)
cases, as in the cases just cited, it arises from time to time in
civil cases as well, such as this case, and the prejudicial effect
No. 13‐2420 3
of visible shackling and prison clothing has been recognized
in those cases too. See, e.g., Lemons v. Skidmore, 985 F.2d 354,
356–57 (7th Cir. 1993); Davidson v. Riley, 44 F.3d 1118, 1122–
23 (2d Cir. 1995); Holloway v. Alexander, 957 F.2d 529, 530 (8th
Cir. 1992).
There may have been adequate reasons to shackle the
plaintiff in this case—a violent person, who had attacked
guards—but the shackles should have been concealed from
the jury. E.g., id.; Sides v. Cherry, 609 F.3d 576, 584 (3d Cir.
2010); United States v. Honken, 541 F.3d 1146, 1152 (8th Cir.
2008). Ordinarily courtroom security can be assured by
shackling the prisoner just at the ankles (skipping the hand‐
cuffs); and when that is done a curtain attached to the table
at which he sits will hide the shackles from the jury’s sight. If
the prisoner is to testify, then seating him in the witness box
before the jury enters and removing him from the box after
the jury leaves for a break or for the day will keep the jury
from seeing the shackles; the sides of the box will conceal
them. There is no indication that these methods of conceal‐
ment would have been infeasible in this case, and it is not
even clear that the plaintiff is so violent that he had to be
manacled at all. His handcuffs were removed, without inci‐
dent, when he testified.
The “curative instruction” that the judge failed to give
would not have eliminated the prejudice to the plaintiff aris‐
ing from the visible manacles, the prison uniforms, and the
guards’ uniforms. Curative instructions have (as judges too
rarely acknowledge) only limited efficacy. As we said in
United States v. Mazzone, 782 F.2d 757, 764 (7th Cir. 1986),
“we are not quite so naïve as to believe that telling jurors not
to think about something will cause them to forget it.” Jus‐
4 No. 13‐2420
tice Jackson once remarked that “the naïve assumption that
prejudicial effects can be overcome by instructions to the ju‐
ry all practicing lawyers know to be unmitigated fiction.”
Krulewitch v. United States, 336 U.S. 440, 453 (1949) (concur‐
ring opinion) (ciation omitted); see also Nash v. United States,
54 F.2d 1006, 1006–07 (2d Cir. 1932) (L. Hand, J.). A “cura‐
tive” instruction can even have negative efficacy. To tell ju‐
rors to ignore shackles may rivet the jurors’ attention on
them, see, e.g., Dan Simon, “More Problems with Criminal
Trials: The Limited Effectiveness of Legal Mechanisms,” Law
& Contemporary Problems, vol. 75, no. 2, pp. 167, 176–77
(2012), especially if the judge explains to the jury why the
plaintiff is shackled—that he’s a violent, dangerous person.
A truthful explanation for the shackles will be highly preju‐
dicial—but without an explanation the jurors are left to wild
conjecture. The proper course is thus to conceal from the ju‐
ry that the defendant is shackled.
As for the judge’s requiring the plaintiff to wear his pris‐
on clothing in court while allowing the defendants to wear
their guard uniforms, no consideration of security justified
that requirement and that permission. Estelle v. Williams, su‐
pra, 425 U.S. at 505–06. The plaintiff was not less dangerous
by virtue of being in a prison uniform, or the guards safer by
virtue of wearing their guard uniforms. The judge thought
the clothing worn by the prisoner and the guards in the
courtroom inconsequential because the jury knew that the
plaintiff was a prisoner and the defendants were guards. Ac‐
tually there would have been no reason for the jurors to
think the plaintiff a prisoner had it not been for his prison
clothing. For remember that his suit concerns events that
had occurred when he had been a pretrial detainee, not a
No. 13‐2420 5
prison inmate; he might since have been released from cus‐
tody.
More important, being told that a plaintiff is a prisoner
and the defendants guards, and seeing them in uniforms—
one type of uniform branding the plaintiff as a prison in‐
mate, the other denoting the defendants’ status as law en‐
forcers—are likely to create impressions differing in their
strength. Although judges have been known to remark that
if a party is known to be a prisoner, seeing him dressed as
one adds nothing to whatever prejudice jurors harbor
against prisoners, e.g., United States v. Brooks, 125 F.3d 484,
499 (7th Cir. 1997); cf. Holloway v. Alexander, supra, 957 F.2d
at 530, we’re skeptical—as is the Supreme Court, which has
said that “the constant reminder of the accused’s condition
implicit in such distinctive, identifiable attire may affect a
juror’s judgment. The defendant’s clothing is so likely to be a
continuing influence throughout the trial that, not unlike
placing a jury in the custody of deputy sheriffs who were
also witnesses for the prosecution, an unacceptable risk is
presented of impermissible factors coming into play.” Estelle
v. Williams, supra, 425 U.S. at 404–05.
We said in Lemons v. Skidmore, 985 F.2d at 359, that “first,
[the plaintiff] is entitled to the minimum restraints neces‐
sary, and a determination that some restraints are appropri‐
ate does not mean that leg‐irons and handcuffs are required.
Second, although the [trial] judge said that he would give a
curative instruction to the jury, none was ever given. Third,
there are various ways to minimize the appearance of re‐
straints, and therefore minimize the likelihood of prejudice
to the jury, and none of these ameliorative steps were tak‐
6 No. 13‐2420
en.” These precepts, equally applicable to this case, require
reversal, and a remand for a new trial.
REVERSED AND REMANDED.