Metropolitan News-Enterprise


Thursday, July 26, 2012


Page 1


Ninth Circuit Agrees to Review DNA Ruling En Banc


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals late yesterday agreed to decide en banc whether Proposition 69, which requires police to collect DNA samples from all adults arrested for felonies, is constitutional.

Chief Judge Alex Kozinski, in a brief order, said a majority of the court’s unrecused active judges had voted to rehear Haskell v. Harris en banc. The court’s three newest judges—Jacqueline Nguyen, Andrew D. Hurwitz, and Paul Watford—did not participate, the order said.

A three-judge, in a Feb. 23 ruling, upheld a decision by U.S. District Judge Charles Breyer of the Northern District of California, who denied a preliminary injunction that would have blocked enforcement of the law. 

Judge Milan D. Smith Jr. wrote the opinion, visiting Senior District Judge James Dale Todd of the Western District of Tennessee concurred, and Judge William A. Fletcher dissented.

Smith concluded that the governmental interests in collection of DNA outweighed any intrusion on the privacy rights of arrestees. He noted that the measure had been approved by “[m]illions of California voters;” that it applies to all arrestees and thus precludes, on its face, arbitrary application; that samples can only be taken by force if an arrestee refuses to cooperate, and then only with the written approval of a supervisor; and that any misuse of information obtained under the law is a crime.

The law, he added, has a legitimate purpose—“to allow law enforcement officials to identify criminal suspects.” 

Fletcher argued in dissent that the decision was contrary to Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009), and rejected Smith’s effort to distinguish the two cases. Friedman held that the taking of a DNA sample without a warrant, and without suspicion of a crime that the DNA sample would help solve, violated clearly established Fourth Amendment rights

Fletcher added that he would hold Proposition 69 unconstitutional regardless of Friedman.

Unlike fingerprints, he argued:

“DNA samples are not taken from felony arrestees under Proposition 69 in order to identify them. Rather, they are taken solely for an investigative purpose, without a warrant or reasonable suspicion.”

Taking samples solely for investigative purposes, he argued, violates the Fourth Amendment under a number of cases.

Fletcher acknowledged previous rulings of the court upholding the taking of DNA samples from convicted felons. But the reasoning of those cases, he said, does not extend to “[t]he warrantless, suspicionless, forcible extraction of a DNA sample from a private citizen” merely because that person has been arrested for a felony.


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