Whether the Fifth and Fourteenth Amendments require an individualized assessment of need before shackling a juvenile defendant during pre-trial or non-jury proceedings

In 2018, A.S. was taken into custody following incidents involving the hitting, biting, and scratching of staff members at his elementary school. A.S. was ten years old at the time. A.S., a Black male student, has ADHD and is disabled. While in detention, A.S. was evaluated and supervised by detention officials. There were no reports of further incidents or behavior warranting disciplinary action during A.S.’s detention. Nevertheless, Harrison County had a policy of routine shackling of juveniles prior to and during pre-trial proceedings. Pursuant to that policy, A.S. was shackled, without an assessment of need, during his appearance before a juvenile court judge. At the end of this hearing, he was released to his mother. The Fifth Circuit rejected A.S.’s constitutional claims, brought under 42 U.S.C. § 1983. 3. Although the Fifth Circuit declined to recognize a right to an individualized determination of need in this context, other courts have done so. In United States v. Sanchez-Gomez, 138 S. Ct. 1532 (2018), the Court granted review to resolve a circuit split over whether Deck extends to criminal proceedings outside of a jury. The en banc Ninth Circuit has answered this question in the affirmative; the Second and Eleventh Circuits have held otherwise. The Court subsequently dismissed Sanchez-Gomez on jurisdictional grounds, and so did not decide these questions. Id. at 1542. 4. Additionally, several state courts have recognized that an assessment of need is necessary for juvenile shackling. See In re Staley, 364 N.E.2d 72, 73 (Il. 1977); State ex rel. Juv. Dep't of Multnomah Cnty. v. Millican, 906 P.2d 857 (Ore. Ct. App. 1995); State v. E.J.Y., 55 P.38d 673 (Wash. Ct. App. 2002). 5. In sum, this case presents substantial and recurring questions on which the federal circuit courts and state courts of last resort are divided. As a result of these splits, there is a reasonable prospect that this Court will grant the petition, such that it warrants additional time for these important questions to be fully addressed. 6. Mr. Cirkiel and the University of Virginia Supreme Court Litigation Clinic are working diligently to prepare the petition, but need additional time to complete, print, and file Applicant’s petition. Applicant recently requested assistance from the Clinic, after the petition for rehearing en banc was denied. The extension is needed for Clinic faculty and staff to fully familiarize themselves with the record, the decisions below, and the relevant case law. In addition, Mr. Cirkiel faces several overlapping deadlines in other matters during the existing time for preparation of a petition for writ of certiorari in this case, including an en banc argument before the Fifth Circuit on January 23, 2024. In light of the Clinic and Mr. Cirkiel’s obligations, including preparing three petitions for certiorari and assisting with various circuit court proceedings, the Clinic would face significant challenges completing the petition by the current due date. For these reasons, Applicant requests this Court grant an extension of thirty days to and including February 8, 2024, within which to file a petition for a writ o