Circuit to Reconsider Mandatory Arrestee DNA Collection

Source: NIH

California’s law mandating DNA sample collection for anyone arrested for a felony has been put on ice by the 9th U.S. Circuit Court of Appeals.  A majority of the judges voted to reconsider a February ruling that upheld DNA collection for people arrested – but not yet charged or convicted – of a felony.

Three of the newest members of the court, Judges  Jacqueline Nguyen, Paul Watford and Andrew Hurwitz did not participate in the vote, according to the court order.  That means a majority of the remaining 25 active judges voted to reconsider the case in an 11-judge en banc panel.

In February, a three-judge panel split 2-1 to uphold the 2004 amendment to the state’s DNA collection law.  It requires police to take DNA samples from felony arrestees, with or without their consent.

Judge Milan Smith wrote at the time that the law does not violate the Constitution’s fourth amendment protections against unreasonable searches.  That opinion can no longer be cited as circuit precedent.

Judge William Fletcher dissented.  He said the California law has not requirement for a warrant and no need for suspicion of a crime that the DNA sample would help solve.

The lawsuit was brought by plaintiffs arrested for felonies in 2009.  They were required to give DNA samples as a result of voter approval of Prop. 69.

Reconsideration of the case may suggest that a majority of the judges are sympathetic to Fletcher’s position, but the final outcome will depend on which 11 judges are chosen by random selection, to hear the appeal.

Elizabeth Haskell was arrested for allegedly trying to take a person from police custody during a San Francisco peace demonstration and Jeffrey Lyons Jr. faced the same allegations for his actions outside the Israeli consulate in San Francisco.  Reginald Ento was accused of possessing stolen property.

Aakash Desai, a graduate student at the University of California, Berkeley, was arrested while participating in a demonstration over tuition increases.  He was told he was being charged with felony burglary and had to give a DNA sample.  When he went to court he learned no charges had been filed.

The case is not likely to be heard until early next year.

Case:  Haskell v. Harris, No. 10-15152

Photo:  NIH


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