Calif Arrestee DNA Collection OK

An 11-judge federal appeals panel upheld the constitutionality of California’s law mandating DNA collection for anyone arrested for a felony – rejecting a call to limit collection to only those convicted of a crime.

The 9th U.S. Circuit Court of Appeals, in an unsigned opinion, rejected claims that the state’s 2004, voter-approved proposition 69 violated the constitution by collecting DNA swabs from arrestees and submitting them to government databases.

The full court was faced with a U.S. Supreme Court decision in June that approved, by a 5-4 vote, DNA collection under a Maryland law.  The high court’s opinion suggested DNA collection was no different than fingerprinting and photographing suspects who are arrested.

The panel said that even the plaintiffs’ counsel conceded that California’s DNA collection law was permissible after the Maryland ruling by the Supreme Court in 2013.

“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,” the panel wrote.

The case was brought by four people arrested at political demonstrations in 2009.

Elizabeth Haskell and two others were never charged with crimes and a fourth man was charged but later the charged was dismissed.

They challenged the taking of mouth swabs for genetic tissue an improper search and seizure in violation of the Constitution’s Fourth Amendment.

Haskell’s lawyer Michael Risher had argued that while DNA may be taken after arrest it should not be tested or used until a person is formally charged.

During oral arguments in December, Chief Judge Alex Kozinski offered a compromise position to send the case back to the district court to reshape and narrow the class of people seeking relief to only those arrestees never charged with a crime.

In Thursday’s decision, the panel left that option open, saying the plaintiffs could go back to district court to seek an injunction for a smaller class.  If they believe they are entitled to it, “they are free to seek it from the district court and we will review it if and when it is presented to us.”

Judge Milan Smith wrote separately to say that under the Maryland ruling California’s DNA collection is constitutional “for anyone arrested for, or charged with, a felony.”  Any attempt to narrow the class would be futile, he said.

The unanimous panel included Kozinski, Smith, Judges Harry Pregerson, Margaret McKeown, Raymond Fisher, Ronald Gould, Richard Paez, Richard Tallman, Johnnie Rawlinson, Randy Smith and Paul Watford.

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

View audio argument, here.


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