There may be a slim majority on the 11-judge, 9th U.S. Circuit Court of Appeals panel willing to narrow California’s sweeping arrestee DNA collection law, based on questioning during arguments Monday before the clearly divided court.
At issue is the constitutionality of the state’s broad DNA collection law that allows anyone arrested for a felony to have a DNA swab collected, even if they are never charged and even if they were wrongly arrested. The full 11-judge en banc panel was grappling with a U.S. Supreme Court decision in June that approved, by a 5-4 vote, DNA collection under a Maryland law. That opinion suggested DNA collection was no different than fingerprinting and photographing suspects who are arrested.
There are significant differences with California’s law. “California is pretty extreme the other way,” said Judge Harry Pregerson. He said the Maryland law protects privacy and requires the DNA sample to be destroyed if the person is not prosecuted. “We are getting to a new age where you can identify people, not only who they are but who their relatives are and their physical problems and mental problems.”
The case began after DNA collection of four arrestees at political demonstrations in 2009. Haskell and two others were never charged with crimes and a fourth man was charged but later had the charge dismissed. They challenged the taking of mouth swabs for genetic tissue as an improper seizure. The state’s DNA law allowed collection from arrestees and placement in law enforcement databases.
The four argued that it amounted to an illegal search in violation of the Fourth Amendment.
Other judges differed with Pregerson. They pointed to the high court’s ruling on the Maryland law. “The reality is the Supreme Court said that DNA [collection] was like fingerprinting,” said Judge Milan Smith.
Judge Richard Paez countered that there is “no determination of probable cause” prior to collection of DNA when an arrestee is taken to the police station for booking.
Chief Judge Alex Kozinski asked if there were any cases that litigated the constitutionality of retaining fingerprints? Deputy Attorney General Enid Camps responded that there have been California state cases. Kozinski drew laughter when he said, “Yes, but who cares,” adding, “We’re talking about federal law.”
He said Justice Anthony Kennedy, author of the majority in the Maryland case, had ruled on that state law and not said, “and by the way it is broad enough to cover other states do.”
Kozinski called It “a typical Kennedy opinion. He is a very careful, common law guy who takes the case in front of him and decides that. [Kozinski should know, he was a Kennedy law clerk in 1975, prior to his judicial appointment.]
Judge Margarent McKeown focused on probable cause to collect the DNA asking what was wrong with where the plaintiffs’ would draw the line, at allowing police to collect DNA but not allowing it to be tested without probable case.
Opponents of collecting DNA from arrestees say the high court’s ruling was not, as the state argues, a bright-line, per se rule that allows mandatory DNA collection from any arrestee.
Attorney Michael Risher, representing Elizabeth Haskell and a group of arrestees at political demonstrations in 2009, argued that under the Supreme Court’s Maryland decision, “I believe DNA may only be taken from people formally charged. I acknowledge the government may take DNA before then, but it is not permitted to use it for testing.”
This brought sharp questions from Milan Smith and Judge Richard Tallman.
Ultimately, Kozinski offered a compromise position to send the case back to the district court in San Francisco to reshape and narrow the class of people seeking relief.
Risher responded, ‘It is a question of pure law. Otherwise we will be up here again in a year or two in the same situation.”
At the end of the hour-long argument it appeared Judges Kozinski, Pregerson, Paez, Randy Smith, Raymond Fisher and McKeown had problems with the breadth of the California law. While Judges Milan Smith and Tallman seemed more inclined to follow the outlines of the Supreme Court decision in the Maryland case. Several judges had no questions during the hearing, including Judges Johnny Rawlinson, Ronald Gould and Paul Watford.
Case: Haskell v. Harris, No. 10-15152
View audio argument, here.