S. Myron Klarfeld v. United States of America United States District Court United States Marshal

PREGERSON, Circuit Judge,

concurring in the result.

I vote to reverse but on different grounds. Appellant S. Myron Klarfeld, Attorney at Law, does not challenge the government’s need to search persons seek*588ing entry into the federal courthouse. He challenges the reasonableness of the search policy that required him to empty his pockets, remove his shoes, and walk several yards over a bare floor in his stocking feet.

As the per curiam opinion correctly points out, we have held that certain administrative searches are valid without a search warrant. United States v. $124,570 U.S. Currency, 873 F.2d 1240, 1243 (9th Cir.1989). But administrative searches nevertheless “must meet the Fourth Amendment’s standard of reasonableness.” United States v. Davis, 482 F.2d 893, 910 (9th Cir.1973). “To meet the test of reasonableness, an administrative screening must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it.” Id.

Requiring Klarfeld to remove his shoes and walk through the magnetometer a third time was not "as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it.” Davis, 482 F.2d at 910. A less intrusive method of “searching” Klarfeld was readily available that would have satisfied the administrative need for the search. After Klarfeld was asked by the guard to remove his shoes, he specifically requested that the guard check him with a hand held metal detector, a device that would have detected any dangerous weapons. The guard ignored Klarfeld’s request and insisted that Klarfeld remove his shoes and walk through the magnetometer a third time.

I also do not agree with the per curiam opinion’s statement that the search at issue here was “far less intrusive” than a pat-down search because Klarfeld “voluntarily” removed his shoes. Klarfeld’s action was not voluntary. To fulfill his professional responsibilities as an attorney and gain entry into the federal courthouse, Klarfeld had no choice but to comply with the guard’s requests.

The per curiam opinion dismisses Klar-feld’s equal protection argument by stating that courthouse personnel carrying identification badges are not required to remove their shoes or pass through the magnetometer a second time because they undergo “an extensive” background check. There is no evidence in the record showing when or how such checks are conducted.

Moreover, Klarfeld, as a member of the California Bar, also had undergone a background check. To be admitted to the State Bar of California, attorneys are subjected to a rigorous application and approval process. The application procedure requires a candidate for admission to submit a detailed biographical account of his or her past, including all past addresses since the age of sixteen, all past employment since age eighteen, and any criminal violations. The applicant is also required to provide fingerprints. See Committee of Bar Examiners of the State Bar of California, Rules Regulating Admission to Practice Law In California (1990) [hereinafter “Committee Rules ”].

Every California bar applicant has the burden of proving that he or she possess good moral character. Committee Rules at 33-34. “Good moral character” includes “honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, knowledge of the laws of the state and the nation and respect for the rights of others and for the judicial process.” Id. at 34. Thus for an applicant to be admitted to the California bar, the Committee of Bar Examiners must determine that he or she possesses the good moral character required of an officer of the court.

In sum, requiring Klarfeld to remove his shoes and walk through the magnetometer a third time amounted to an overly intrusive administrative search that unnecessarily demeaned an officer of the court deemed to possess good moral character.1

. Attorneys who display current state bar membership cards and appropriate photo identifica*589tion should be admitted into the federal courthouse upon passing once through the magnetometer in the same manner as courthouse personnel.

In the Northern District of Illinois and Eastern District of Pennsylvania, attorneys are permitted to bypass courthouse security procedures altogether by showing identification cards issued by the court. In the Eastern District of Michigan, attorneys who display a Michigan State Bar membership card may bypass the magnetometer, although they are required to put any purses, briefcases or packages through an x-ray machine. Such bypass procedures accord attorneys the respect due them as officers of the court.