Klarfeld v. U.S., 89-56315

Citation962 F.2d 866
Decision Date20 April 1992
Docket NumberNo. 89-56315,89-56315
PartiesS. Myron KLARFELD, Plaintiff-Appellant, v. UNITED STATES of America; United States District Court; United States Marshal, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

S. Myron Klarfeld, San Diego, Cal., for plaintiff-appellant.

James R. Sullivan, Asst. U.S. Atty., Los Angeles, Cal., for defendants-appellees.

Prior report: 9 Cir., 944 F.2d 583.

Before: BROWNING, PREGERSON, and LEAVY, Circuit Judges.

En banc review of the court's per curiam opinion was requested by an active circuit judge. A majority of the active judges have voted to deny the request. En banc review is denied.

KOZINSKI, Circuit Judge, with whom Circuit Judges ALARCON, POOLE, HALL, WIGGINS, BRUNETTI, THOMPSON, O'SCANNLAIN, TROTT, T.G. NELSON, and KLEINFELD join, dissent from this order.

KOZINSKI, Circuit Judge, with whom Circuit Judges ALARCON, POOLE, HALL, WIGGINS, BRUNETTI, THOMPSON, O'SCANNLAIN, TROTT, T.G. NELSON and KLEINFELD join, dissenting from the denial of rehearing en banc.

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. This ruling conflicts with our precedents, not to mention simple common sense. It cheapens the important values of the Fourth Amendment. It holds judges and lawyers up to public ridicule. And it will surely interfere with the orderly conduct of the many thousands of security screenings that take place in the Ninth Circuit every day.

I

The United States courthouse in downtown Los Angeles, like all government buildings nowadays, is considered at risk of terrorist attack. To stem the flow of ordnance into the halls of justice, the United States Marshals Service operates a security checkpoint much like those seen at airports and other government buildings around the country: All visitors must pass through a metal detector and submit their belongings to an X-ray scan before they will be admitted into the building.

S. Myron Klarfeld is a lawyer who had business in that very courthouse. He placed his change and keys in a basket, but the alarm sounded as he passed through the metal detector. He removed a small knife from his pocket, but the alarm sounded again. The court security officer then asked him to remove his belt and shoes and walk through the detector a third time. Klarfeld objected and asked to be scanned with a hand-held magnetometer instead. The officer declined, giving Klarfeld a perfectly plausible explanation: The shoes would have to be X-rayed because "[y]ou could have a gun there." Klarfeld grudgingly complied and walked through the metal detector in his stocking feet. This time the alarm remained silent; the X-ray machine revealed that a metal shank in Klarfeld's Brooks Brothers loafers had triggered the alarm.

Once inside, Klarfeld wrote a note complaining that he had had to walk in his stocking feet to enter the building and asked that it be delivered to Chief Judge Manuel L. Real, who was busy instructing a jury. When he received no response, still less an apology, Klarfeld sued the United States, along with the United States District Court and the United States Marshal. He alleged that his constitutional rights had been violated because he was forced to walk through the metal detector in his socks.

The district court did the only sensible thing it could under the circumstances: It dismissed the complaint for failure to state a claim. We reversed. Although the panel recognized that administrative searches are permissible under the Fourth Amendment, it held that Klarfeld may have suffered a constitutional injury because the guards might have figured out a way of screening him without having him take off his shoes. Judge Pregerson concurred, arguing that, as an attorney, Klarfeld was constitutionally entitled to enter the courthouse with his bar card and a photo ID. As the accompanying order explains, a call for a vote to take this case en banc was unsuccessful. I write to explain that the vote was in error because this case deserves serious reconsideration.

II

No one goes through security checkpoints for the pleasure of it. It's intrusive. It may force you to come into physical contact with perfect strangers. It delays your progress toward your destination. It's a bother. It's a nuisance. It's a pain in the neck. But most people put up with it without complaint because they understand that security screenings serve an important purpose: safeguarding us all from armed attack. At airports alone, over a billion screenings--four for every man, woman and child in the United States--are conducted each year. See United States v. $124,570 U.S. Currency (Campbell), 873 F.2d 1240, 1242 (9th Cir.1989). Although such screenings can be inconvenient, we all feel a good deal more secure knowing that our fellow airline passengers aren't carrying guns, knives and bombs.

Courthouses also routinely screen visitors, and for good reason. As the Director of the U.S. Marshals Service has recognized, "[t]he very nature of judicial proceedings creates a volatile and potentially dangerous environment." The Director's Report: A Review of the United States Marshals Service in FY 1990 42 (1991).

In FY 1990, [Court Security Officers] detected 137,820 concealed weapons (10,809 of which were confiscated) that individuals were attempting to bring into U.S. courthouses. Thirty-seven percent of the weapons detected (50,757) were firearms. Additionally, CSOs confiscated 1,415 pieces of contraband items which could have been used as weapons (e.g., 5-inch safety pins, ice picks, hacksaw blades).

Id. at 43. The deterrent effect of metal detectors has reduced the number of guns intercepted at the downtown Los Angeles district court from three or four a month to nearly zero--although officers still recover "a multitude of different types of knives." LA Times B1 (Feb. 1, 1988).

We have repeatedly approved these screenings. See, e.g., McMorris v. Alioto, 567 F.2d 897, 900 (9th Cir.1978); United States v. Davis, 482 F.2d 893, 908-12 (9th Cir.1973). We have also recognized, however, that security checks pose serious threats to civil liberties if they are used as tools for law enforcement. See Davis, 482 F.2d at 910-12. Where security officers look to considerations other than safety in conducting the screening, such as when they are on the lookout for evidence of drug trafficking, the search loses its protected character. Campbell, 873 F.2d at 1243.

The security check here fell squarely within our guidelines for administrative searches as announced in Davis, McMorris and subsequent cases. There was no suggestion that the officers were looking for contraband or doing anything other than screening for weapons. Indeed, when Klarfeld objected to taking his shoes off and placing them on a conveyor belt, the guards gave him an explanation: "You could have a gun there." This is not an idle fear: The FBI recently issued an alert, complete with photographs, titled "Loaded Shoes":

Deputies in the Davidson County Sheriff's Office in Nashville, Tennessee, found this handgun [pictured] concealed in a pair of tennis shoes. They confiscated the weapon from a suspect being processed into a corrections facility. The suspect hollowed out a section of both soles. In one shoe, he concealed the frame of a dismantled .22-caliber handgun. The other shoe contained the loaded cylinder housing. The suspect then resealed the tread of both shoes to avoid detection.

FBI, Law Enforcement Bulletin 26 (April 1992) (the photographs are reprinted as an appendix to this opinion). 1 Klarfeld, in fact, does not challenge the need for security screening, or claim it is a subterfuge.

What then is the problem? Klarfeld complains that "compelling him to take off his shoes (and/or belt) to gain entrance to the court" violates the Constitution because the guards could have used less intrusive methods to find out whether he had a gun hidden there. The panel agreed, holding that "[a] method of search which exposes the person searched to substantial embarrassment could well be more intrusive than the search approved in McMorris and may rise to the level of a fourth amendment violation." 944 F.2d 583, 587 (9th Cir.1991). The panel does not explain why asking Klarfeld to walk in his socks is more intrusive than the pat-down searches we approved in McMorris. If courthouse visitors may be subjected to that ordeal as a condition for coming into the building, Klarfeld can have no legitimate complaint about being asked to walk 5 or 6 feet without his shoes. 2

Klarfeld's complaint, however, turns not on the objective intrusiveness of the screening, but on the guard's refusal to tailor it to comport with Klarfeld's personal preferences--"that he would rather be searched by the hand metal detector than to take off his shoes." By upholding Klarfeld's claim, the panel gives everyone who walks through a magnetometer a constitutional right to choose what particular screening method he would "rather" be subjected to. Klarfeld believed that walking through the magnetometer in his stocking feet was beneath his dignity and requested to be scanned with a hand-held metal detector. Someone else might feel that being frisked with a hand-held detector would be more demeaning, and insist on the stocking-feet method. And still someone else might think that a pat-down search is best of all. Are security officers required--as a matter of constitutional law--to weigh the preferences and sensibilities of every one of the billion-plus people screened every year? If so, how do security officers figure out whether the individual's preferred method is equally effective in detecting weapons?

The problem is far from academic, as this case demonstrates. The panel seems to...

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3 cases
  • Bull v. City and County of San Francisco
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • February 9, 2010
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