Making Strides in Fight for Liberty : Justice: After being ordered to take off his shoes at a federal courthouse, lawyer sues in dynamic study of the Bill of Rights.

To San Diego lawyer S. Myron (Mike) Klarfeld, it violated more than his dignity when he had to take off his size 12 Brooks Brothers penny loafers before walking through a metal detector at the federal courthouse in Los Angeles. It violated the law of the land, the U.S. Constitution.

So Klarfeld did what comes naturally to an attorney. He sued.

At the first hearing, a Los Angeles federal judge said that being embarrassed was no federal case, and tossed the lawsuit out of court. But then, a couple of months ago, the highest federal court in the West sided with Klarfeld, saying it is worth a trial to decide if his steel-shanked shoes have the right to be free from an unreasonable search and seizure.

The trial is yet to come. But what seemed like a frivolous waste of court resources and prime fodder for lawyer-bashing has, instead, turned into a dynamic study of the personal liberties at the core of the Bill of Rights, the first 10 amendments to the U.S. Constitution, which were ratified 200 years ago today.

The essence of the Bill of Rights is a guarantee to be free from an arbitrary and intrusive government--from snooping police, from unequal treatment and from retribution for speaking out.

Even when those lofty ideals present themselves in a pair of penny loafers, it’s important to stand up and speak out, Klarfeld said. The most important of principles, he said, can be rooted in the most humble of facts.

“If we don’t protect our constitutional rights at every opportunity, then men like Hitler and Saddam Hussein come to power,” he said. “A lot of my friends died during World War II fighting for their Constitution. I was lucky. And I will continue to fight for our constitutional rights, even if it comes in the shape of a pair of shoes.

“That’s what this is about,” Klarfeld said. “There’s no money involved here. I’m not asking for a penny. This is just another instance of bureaucratic abuse that will go on until somebody complains about it.”

This is also far from the first time that Klarfeld--a 64-year-old business and real estate lawyer who moved four years ago from Beverly Hills to Rancho Bernardo to serve a major client--has complained about bureaucratic abuse.

When he hasn’t been otherwise busy in recent years tending to his regular clients or leading summer cattle drives in the Rocky Mountains, Klarfeld has been remarkably active with challenges to the rules and regulations of everyday life that he deems abusive.

The cases are the sort that might seem like legal losers, yet consistently end up big winners with significant real-life implications. “What are they going to do? Put me in jail for standing up for the things I believe in?” Klarfeld said.

Klarfeld once sued the Los Angeles Municipal Court for commanding him and a client to appear half an hour before the court opened for business in the morning. He won, and the court changed its rules, saving the clients of lawyers doing billable business at the court an incalculable amount in legal fees.

He fought a $15 ticket issued to him for driving solo in a car-pool only lane on a Los Angeles freeway entry ramp.

At the time, the car-pool lanes on the freeways themselves had been closed because of environmental concerns, and so a judge dismissed Klarfeld’s ticket, which he got on the on-ramp. Klarfeld then sued on behalf of other drivers nabbed on the entry ramps. The state settled by voiding a year’s worth of on-ramp tickets.

Then there were the rent hikes assessed some 10 years ago against Klarfeld’s mother, who was nearing 90 and living in a Los Angeles retirement residence, where tenants paid a single monthly charge for lodging, meals and other services. Rather than pay, she left, and he sued. He won. The California Supreme Court ruled that the facilities were protected by rent control.

Jim Lorenz, a former U.S. attorney in San Diego who is now in private practice and has known Klarfeld for about 10 years, said Klarfeld has an incredible “tenacity and zeal” about “those things that bother him.”

“It’s admirable,” Lorenz said. “Most people just grumble and say, ‘That’s the system.’ But Mike attempts to do something about it, no matter how foolish people may think it is. And he absolutely has gained a certain amount of credibility by his success.”

So it came as no surprise in legal circles when, two years ago, after being outraged by the order to take off his shoes, Klarfeld sued the federal marshals who guard the Los Angeles courthouse.

Klarfeld arrived at the courthouse on April 12, 1989, to file legal papers. He was dressed in a sports jacket, shirt and tie, slacks and the loafers, which feature a steel supporting shank in the sole.

In anticipation of having to pass through the highly sensitive airport-style metal detector, Klarfeld removed his pocket change, keys, nail clippers, watch and jacket, then walked through the machine. Beep.

Klarfeld searched his pockets, removed a small pocket knife and walked through again. Beep.

At that point, marshals asked Klarfeld to remove his belt and shoes. He said he was an attorney and asked to be searched by the hand-held metal detector.

The guard refused, and, according to the suit, told Klarfeld: “If you want to get into the courthouse, you will have to take off your shoes and place them on the conveyor. You could have a gun in there.”

Klarfeld “begrudgingly complied,” the suit said, “and had to walk several yards over a dirty floor in his stocking feet, much to the amusement of the guard and onlookers.”

The guard, who has not been identified, put the shoes on the nearby conveyor belt, where an X-ray machine revealed the steel shank that had been setting off the alarm.

Two weeks later, Klarfeld filed the lawsuit, saying he had the right to be free from a government order to walk in socks over a dirty courthouse floor.

In legal jargon, the guard’s demand amounted to an unreasonable search and seizure that violated his 4th Amendment rights, Klarfeld said. The right to be free from intrusive searches by police is one of the hallmarks of the Bill of Rights.

At the first hearing, U.S. District Judge Terry Hatter in Los Angeles dismissed the suit.

But on Sept. 13, a three-judge panel of the U.S. 9th Circuit Court of Appeals ruled that Klarfeld’s claim had merit, and reinstated the lawsuit, ordering it forward toward a trial date--which has not yet been set. The 9th Circuit is the federal appellate court one rung below the U.S. Supreme Court for nine Western states, including California.

In an unsigned opinion, the court said that the guard’s search may have been needlessly “intrusive” because the hand-held metal detector was available. Judges James R. Browning, Edward Leavy and Harry Pregerson ruled on the case.

Craig Meacham, the U.S. marshal in Los Angeles, said he sharply disputed Klarfeld’s version of events. “There are several things Mr. Klarfeld has said in his petition that are not 100% accurate,” Meacham said, declining to comment further.

Though the 9th Circuit ruling centered on the search and seizure claim, it touched on another weighty constitutional issue. Though legally significant, it--like everything else in the case--is fraught with comic peril.

Simply put, the issue is whether lawyers deserve the same treatment as janitors.

In legalese, that’s called equal protection under the law, a guarantee found in the 14th Amendment, which was added to the U.S. Constitution some 75 years after the Bill of Rights to rein in state governments.

Over the years, in a technical legal two-step, courts have held that the equal protection clause also applies to the federal government through a clause in the Bill of Rights, in the 5th Amendment.

Armed with a proper identification badge, courthouse janitors can pass freely through the airport-style metal detector, even if it beeps. Judges, clerks and others who work at the courthouse enjoy the same privilege.

Lawyers, like everyone else, must earn a beep-free walk through, no matter how many times it takes.

Like the judges and clerks, the janitors must pass a background check to get a job at any federal courthouse, said a building manager at the courthouse. But, said Klarfeld’s appellate attorney, Los Angeles lawyer Richard A. Grossman, the State Bar of California certifies that each and every one of the 132,000 lawyers in the state is morally upright.

At the least, Grossman said, the lawyers ought to be as good a security risk as the janitors.

In a concurring opinion to the Sept. 13 ruling, Judge Harry Pregerson said he agreed, calling the incident at the metal detector a “search that unnecessarily demeaned an officer of the court deemed to possess good moral character.”

Grossman said he understood that the issue of lawyers’ moral character is, to put it delicately, a sensitive one.

“Over the 200 years of our Constitution, lawyers have never been a popular bunch,” Grossman said. “There are many judges who don’t like lawyers. Probably for good reason, in many instances. And there are lawyers who have given the bar an unhappy reputation.

“But there are other lawyers who distinguished themselves, who do pro bono work,” meaning work for free, he said. “There are lawyers who defend the people (hailing from) the dispossessed and misbegotten elements of our society, attorneys who serve the highest traditions of the bar. Those people pass through those courthouse portals every day.

“Some people look at this case and think it’s much ado about nothing, a tempest in a teapot,” Grossman said. “But these are the kinds of issues that make interesting and important law.”

Apparently, the 9th Circuit Court concurs in that judgment.

In October, the court sent out instructions to Klarfeld and to government attorneys asking both sides whether the case should be reviewed again by an expanded, 11-judge panel of the court.

It’s unusual for the 9th Circuit Court to convene 11-judge panels, which it saves for the issues it considers the most important. It’s even more unusual for the court itself to solicit reasons for expanded review, since the judges almost always take that extra step only after lawyers ask for it.

The 9th Circuit Court gave no reason for its request. The lawyers filed their briefs last month. The court has no deadline for responding.

Klarfeld said last week that he would settle the case if the government would allow attorneys to enter the courthouse by showing either a State Bar card or a federal government identification badge. That’s how lawyers enter some courthouses, including the County Courthouse in downtown San Diego.

Assistant U.S. Atty. Jim Sullivan in Los Angeles, who has defended the government in the case, declined to comment on the settlement offer or on the lawsuit.

In the meantime, Klarfeld said he has received any number of calls and letters in support. One, he said, was from a woman who told him that she was ordered to remove her under-wire bra when it set off the alarm at the same metal detector.

She refused and ultimately passed. But, according to Klarfeld, she said she told the marshals, “ ‘For God and country, I’d take it off in a second. But to get into a federal courthouse, absolutely not.’ ”

“What a line,” Klarfeld said. “Quite a lady.”

He added, “I myself used a pun once in describing this case: I’m not walking away from this one.”