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Friday, March 21, 2014


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Ninth Circuit Upholds DNA Swabs of Felony Arrestees


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals yesterday upheld California’s law requiring persons arrested for felonies to submit samples of their DNA to police.

In a per curiam opinion, a majority of the court, sitting en banc, said:

“Plaintiffs’ facial and as-applied challenges turn on essentially the same question: Is California’s DNA collection scheme constitutional as applied to anyone ‘arrested for, or charged with, a felony offense by California state or local officials?’ After Maryland v. King, 133 S. Ct. 1958 (2013), the answer is clearly yes. Plaintiffs’ counsel conceded as much at oral argument. Given that concession, plaintiffs cannot show that the district court abused its discretion in denying a preliminary injunction that would apply to the entire class.”

At issue is a law passed by voters in 2004 requiring that all people arrested in California on suspicion of committing a felony supply a DNA sample to police by way of a cheek swab. State Attorney General Kamala Harris and other law enforcement officials say the law is a powerful tool used to solve thousands of “cold cases.”

The DNA sample is loaded into a state database and compared against samples collected at crime scenes.

The American Civil Liberties Union objects to DNA collection because not all persons arrested are charged and removing the sample from the database is a lengthy and complicated process.

The Ninth Circuit appeared ready to strike down the law after hearing a first round of arguments in 2012. But before the court could rule, the U.S. Supreme Court, on a 5-4 vote, upheld a similar—but narrower—law in Maryland.

The high court ruled in Maryland v. King that taking a cheek swab for DNA was akin to fingerprinting all those who are arrested and was not overly intrusive.

The ACLU also argued that some California arrestees aren’t covered by the high court ruling because Maryland’s law is slightly different and covers only burglaries and violent crimes.

That argument, the opinion said, needs to be made before a trial court.

On that point, Judge Milan D. Smith Jr. disagreed, saying in a concurring opinion:

“I write separately…to make clear what the per curiam opinion regrettably leaves unsaid. California’s DNA collection law is materially indistinguishable from the Maryland law upheld in Maryland v. King…, and Plaintiffs’ facial and as-applied challenges to California’s law therefore fail. Because the last paragraph of the per curiam opinion vaguely implies that something of Plaintiffs’ lawsuit may survive King, I respectfully concur only in the judgment.”

Smith added:

“[A]ny amendment to Plaintiffs’ complaint would be futile. This case is over, and the district court has no obligation to give the Plaintiffs an opportunity to amend their complaint.”

ACLU attorney Michael Risher said the legal battle will continue.

“The ACLU lawsuit will continue, and we are determining what those steps will be,” Risher said.

The case is Haskell v. Harris, No. 10-15152,


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