Court Lets Lawyer Sue Over Removal of Shoes During Search

A San Diego lawyer has successfully made a federal case out of being forced to take off his shoes and walk in his stocking feet into a U.S. courthouse.

A federal appeals court ruled Monday that S. Myron Klarfeld may continue his suit alleging that federal marshals violated his constitutional rights by requiring him to remove his shoes to get through the metal detectors at the courthouse in downtown Los Angeles.

The U.S. 9th Circuit Court of Appeals said that Klarfeld has a valid claim under the Fourth Amendment’s search and seizure provision and reinstated his suit against the U.S. District Court and U.S. marshal.

In a vigorous dissent, Circuit Judge Alex Kozinski said that by allowing the case to go forward, the 9th Circuit has issued “an open invitation to harassment lawsuits by those unhappy with having to pass through security checkpoints--which is just about everyone. . . . It trivializes the important values of the Fourth Amendment and rewards effete prissiness. It’s a slap in the face to the men and women who work diligently to guard the safety of everyone who uses our courthouses and other federal buildings.”

The case began April 12, 1989, when Klarfeld set off the metal detector twice as he tried to enter the courthouse, even though he had removed his pocket watch, keys and nail clipper and put them in a security basket and placed his sport coat on a conveyor belt for X-raying.

After he set the buzzer off the second time, Klarfeld asked a security guard to use a hand-held metal detector to search him. He said he told the guard that he was a lawyer and preferred to be searched with the hand detector rather than having to take off his shoes and walk several yards over a dirty floor.

But the attorney said the guard refused and ordered him to remove his shoes, which were X-rayed on the conveyor belt.

“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 there,” the guard said, according to Klarfeld’s suit.

The X-ray revealed that the arches of his Brooks Brothers loafers contained steel shanks that were setting off the metal detector.

Klarfeld wrote a letter to Manuel Real, chief judge of the Central District of California, complaining about security procedures but received no response, according to the appeals court decision.

So 13 days after the incident, the attorney sued, seeking to prevent U.S. marshals, who serve as courthouse security guards, from forcing him to remove his shoes. Klarfeld said he had been embarrassed and subjected to ridicule by onlookers.

Initially, U.S. District Judge Terry J. Hatter Jr. dismissed the case, saying that Klarfeld had failed to state a valid cause of action. However, last December, a three-judge panel of the 9th Circuit reinstated the suit.

Those judges noted that Klarfeld did not argue that forcing him to remove his shoes was unreasonable in and of itself. Two judges--James R. Browning and Edward Leavy--said, however, that the search may have been more intrusive than other courthouse searches approved by the 9th Circuit because there was an alternative--the hand-held magnetometer.

The third judge, Harry Pregerson, said that forcing Klarfeld to remove his shoes and walk through the metal detector again was an overly intrusive search “that unnecessarily demeaned an officer of the court deemed to possess good moral character,” a reference to the fact that individuals have to undergo a background check to be admitted to the California Bar.

Later, another Circuit Court judge requested that Klarfeld’s appeal be re-examined by a larger panel of 11 judges. On Monday, the 9th Circuit announced that a majority of the 28 judges had voted against holding another hearing.

The vote lets stand the earlier reinstatement of the suit. However, Kozinski and 10 other judges dissented.

Unlike the first three appeals court judges, Kozinski asserted that the 9th Circuit ruling would have broad ramifications.

“The opinion in this case gives everyone who passes through a security checkpoint the right to haggle about how the screening will be conducted--down to picayune details like whether his shoes will be X-rayed--and to sue in federal court if he doesn’t like the bargain. . . . It will surely interfere with the orderly conduct of the many thousands of security screenings that take place in the 9th Circuit every day.”

The judge noted that in fiscal year 1990, U.S. marshals confiscated 10,809 weapons that people were trying to take into U.S. courthouses. He said a gun can be hidden in a shoe and not be detected by a hand-held metal detector.

No date has been set for Klarfeld’s next hearing before Hatter.