Archive for January, 2015

The Future of Criminal DNA Collection in 2015

Tuesday, January 6th, 2015

Jennifer Lynch – EFF


DNA can reveal an extraordinary amount of private information about you, includingfamilial relationships , medical history, predisposition for disease , and possibly evenbehavioral tendencies and sexual orientation . While DNA testing in a criminal context has some benefits—such as supporting innocence claims—the mass, suspicionless collection, testing, and storing of genetic material from large populations creates a danger for privacy that only grows with each new scientific discovery in the field of genomics. In this post, EFF Senior Staff Attorney Jennifer Lynch discusses state and federal cases that addressed DNA collection in 2014, following the Supreme Court’s landmark ruling in Maryland v. King.

2014 was a banner year for DNA cases. In the wake of Maryland v. King —the 2013 U.S. Supreme Court case upholding warrantless, suspicionless DNA collection from arrestees under Maryland state law—the constitutionality of DNA collection in the criminal context has continued to present challenging issues for courts.

Many of the courts that addressed DNA collection in 2014 followed the Supreme Court’s reasoning in King and held that DNA profiling upon arrest is a means of “identification” because it might help law enforcement to learn about a person’s past criminal behavior (read what we think of that analysis here ). For example, in Haskell v. Harris,  the Ninth Circuit Court of Appeals reviewed a challenge to California’s DNA collection law, which requires DNA collection from all individuals arrested for a felony, and upheld the statute’s constitutionality in light of King. And in State v. Raynor , the Maryland high court went one step further than bothKing and Haskell to uphold warrantless DNA collection from someone who hadn’t even been arrested for a crime. Glenn Raynor voluntarily came to the station to answer questions in a rape case, and after he refused to provide a DNA sample, the cops extracted DNA without his consent from tissue he left behind on a chair.

However, late in 2014, in People v. Buza , the California Court of Appeal refused to follow this path. Instead, it held that California’s DNA Act (the same statute the Ninth Circuit addressed inHaskell), “unreasonably intrudes such arrestees’ expectation of privacy” and therefore violates the search and seizure provision of the California Constitution, California’s equivalent to the Fourth Amendment. Similarly, earlier in 2014, the Vermont Supreme Court held in State v. Medina , that Vermont’s law mandating DNA collection and analysis from anyone arraigned for a felony after a probable cause determination violated the Vermont state Constitution.

Although Maryland v. King appeared to create a blanket rule that DNA collection from arrestees is always constitutional under the Fourth Amendment, the Buza court left open the possibility that DNA collection statutes could violate the federal as well as state constitution. The court highlights key differences between California’s law and Maryland’s (which the Supreme Court upheld in King) that greatly increase the law’s impact on privacy. These include:

  • California’s law applies to any person arrested for a felony, while Maryland’s only applies to arrests for burglary or a crime of violence;
  • California requires DNA collection and processing immediately after arrest, while Maryland does not require collection until after a judge makes a probable cause determination and the person arrested is charged with a qualifying crime;
  • California currently allows familial searches of its convicted offender database—searches designed to find a biological relative whose DNA is not in the database—and will likely allow these in the arrestee database in the future; Maryland does not allow them;
  • California’s process for getting DNA expunged from the database is slow, “quixotic,” nearly impossible, and unreviewable; Maryland’s law includes an automatic expungement provision.

The court found these and other differences combined to “significantly alter the weight of the governmental interests and privacy considerations to be balanced in determining constitutionality under the Fourth Amendment.”

Nevertheless, after quoting liberally from Scalia’s scathing dissent  in King and noting thatKing“eviscerated protections against suspicionless searches long recognized under both the federal and state constitutions,” the Buza court seemed to acknowledge what it was up against and stepped back from deciding the case on Fourth Amendment grounds.

Instead, Buza and Medina both limited their holdings to their respective state constitutions. This was likely a strategic decision. Not only do the California and Vermont constitutions offer greater privacy protections than the Fourth Amendment, the cases can’t be appealed to the federal Supreme Court if they’re decided purely on the basis of state law. Further, other courts post-King that have addressed arrestee DNA collection statutes under the Fourth Amendment (like Raynor and Haskell), have invariably found those statutes pass constitutional muster.

Although the California Court of Appeal’s opinion is thorough and welcome, several of the facts the court focuses on may change as technology advances, and this could undermine the applicability of the court’s decision in future cases.

First, the court recognizes that, right now, DNA cannot effectively be used to “identify” someone—immediately establish who that person is—because it takes so long to process a DNA sample. While this was true in 2009, when the police tried to collect Mr. Buza’s DNA, it very likely won’t be true in the near future. As we have noted before,  law enforcement and the federal government are investing more and more money into Rapid DNA analyzers—machines that can be operated by a layperson, outside a lab and can process a DNA profile in under 90 minutes. A Rapid DNA profile can be compared to the profiles already stored in a DNA database to verify a person’s identity—in only about 60 minutes more than it would take to verify identity through a fingerprint. If a court relies on the current DNA processing backlog as a reason to find collection from arrestees unconstitutional, this rationale could be obviated by the widespread use of Rapid DNA in the near future.

Second, the court notes that because a person’s name and identifying information are not stored with his DNA profile in the database, this further undermines the government’s argument that it’s using DNA for identification. However, the FBI announced  at a 2014 biometrics conference that it’s exploring the possibility of using a universal identification number to link CODIS DNA profiles to data in its Next Generation Identification (NGI) biometrics database. This, combined with the use of Rapid DNA, could make it extremely easy to actually identify someone using a DNA profile.

A better basis for the constitutionality analysis is that, as both the Buza and Medina courts note, DNA collection from arrestees and arraignees not only impacts populations that have strong and recognized privacy interests—the presumed-innocent arrestees and arraignees themselves and their biological relatives—but also that “DNA contains an extensive amount of sensitive personal information beyond mere identifying information” and has the potential to reveal intensely private details about a person’s life and future. This is not trivial. In California, 20% of all people arrested for a felony—57,601 people in 2012—were never even charged with, much less convicted of a crime. And there are few rules in place in many states that protect sensitive DNA data from inappropriate use .

The Buza court notes the “stark contrast” between the Supreme Court’s analysis of privacy interests in DNA in King and its discussion of privacy interests in the data stored on our phones in Riley v. California . While in King, the Court minimized the privacy interest impacted by DNA collection, in Riley, the Court relied on the mere potential for privacy harm to hold warrantless cell phone searches unconstitutional. It’s unclear why the possible search of one’s entire genome should deserve lesser protection than the possible search of that same person’s “photographs, picture messages, text messages, Internet browsing history,” and other data on her phone.

We will continue to follow these issues. As we have done before in Buza , Haskell U.S. v. Mitchell U.S. v. Pool  and King , we plan to file an amicus brief in support of Supreme Court review in Raynor in early 2015. And if the California Department of Justice decides to seek review in Buza, we’ll be there with a brief, too. As we noted in our brief  in King, “the ‘slippery slope toward ever-expanding warrantless DNA testing’ that judges throughout the country have predicted is already upon us.” But Buza and Medina give us hope that, in Scalia’s words,King“will some day be repudiated.” We’ll be there to encourage courts to do just that.

This article first appeared on Electronic Frontier Foundation  and is republished here under Creative Commons license.


Kentucky candidates filing date January 27, 2015

Monday, January 5th, 2015
Secretary of State Alison Lundergan Grimes is reminding persons interested in being a candidate in the 2015 Primary Election that the deadline to file with her office is later this month. Candidates who wish to be placed on the ballot for the May 19, 2015, Primary Election must file their candidacy papers by 4 p.m. EST at the Office of Secretary of State on Tuesday, January 27.

Appeals court judge Stumbo to seek vacant post on Kentucky Supreme Court

Monday, January 5th, 2015


Appeals court judge Stumbo to seek vacant post on Kentucky Supreme Court


jcheves@herald-leader.comJanuary 4, 2015 Updated 12 hours ago

  Kentucky Court of Appeals Judge Janet Stumbo of Prestonsburg said Sunday that she would seek the Kentucky Supreme Court’s vacant 7th District seat that represents Eastern Kentucky. Justice Will T. Scott of Pike ville resigned from the seat Friday ahead of a possible run for the Republican nomination for governor.

Stumbo, 60, has served several terms on the Court of Appeals and Supreme Court since 1989. She also has worked as assistant Floyd County attorney; partner in the firm of Stumbo, DeRossett & Pillersdorf; and instructor at the Appalachian School of Law and the University of Kentucky College of Law.

“I believe my 23 years of experience as both a Supreme Court justice and Court of Appeals judge, along with my experience as a practicing attorney, make me uniquely qualified for this position,” she said in a statement.

Scott’s successor on the state’s highest court will be chosen by Gov. Steve Beshear from three names to be presented to him by a nominating commission. The successor will fill the office until an election.

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Court Hears Call to Bolster Access-to-Justice Lawyer Fees

Saturday, January 3rd, 2015

Joel Stashenko, New York Law Journal    | 0 Comments

Assemblyman Robin Schimminger
Assemblyman Robin Schimminger

A government agency’s attempt to reduce the shelter allowance of a disabled woman has prompted the state Court of Appeals to take up what advocates for low-income New Yorkers say is an important access-to-justice issue for individuals before state government.

In Matter of Solla v. Berlin, 24, the court is being asked whether the state’s Equal Access to Justice Act (EAJA) requires that people whose legal actions result in state agencies voluntarily granting them relief are entitled to reasonable attorney fees, even though they have no final, favorable judgment as proof of their success.

The court is being urged to give a liberal interpretation to the EAJA by the New York City Bar Association, the Legal Aid Society of New York City, the New York Civil Liberties Union and by state Assemblyman Robin Schimminger, a Kenmore Democrat who sponsored the legislation establishing the EAJA in 1989.

The court will hear arguments in Solla on Jan. 15.

The case has hinged in lower courts on whether the Legislature intended the EAJA, Article 86 of the CPLR, to allow attorney fee recovery where legal action prompted an agency to correct its conduct, but did not create a final document clearly stating that a litigant prevailed.

Specifically, the statute provides that a “court shall award to a prevailing party … fees and other expenses incurred by such party in any civil action brought against the state, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust.”

Schimminger said in an amicus curiae brief  before the Court of Appeals that the idea behind EAJA was to create a state analogue to 28 U.S.C. 2412, the federal Equal Access to Justice Act. Both the federal and state statutes operate under the “catalyst theory,” where litigants’ ability to precipitate the sought-after changes in agency policies entitles them to attorney fees, he said in his brief.

“Without allowing for the recovery of attorney’s fees under this theory, the efficacy of the bill as intended would have been dramatically diminished, and would fail to carry out the original intent of the legislation: to level the playing field for those without the necessary resources to challenge unauthorized state action through litigation,” said Schimminger, an assemblyman since 1977 and longtime chairman of the chamber’s Committee on Economic Development.

Had he intended to limit the law’s use only to “prevailing parties,” Schimminger said he would have said so in the legislation.

“I would not have drafted the state EAJA in such a manner as to so dramatically limit and constrain a party’s ability to obtain attorney’s fees to cases where only a court order, decision or final judgment had been issued in their favor,” his brief said.

The Legal Aid Society said the “catalyst theory” is the only practical interpretation of the state EAJA and the one that makes the statute effective.

“If attorneys’ fees are denied under the ‘catalyst theory,’ Legal Aid and other not-for-profit organizations, as well as private attorneys dedicated to practice in the area, will suffer … losses of funding that will curtail their ability to represent low-income New Yorkers,” the Legal Aid Society said in an amici  that was joined by the New York Civil Liberties Union, the New York Legal Assistance Group, Housing Works and the Empire Justice Center.

The groups said that the narrow interpretation of the EAJA urged by the state would lead to the illogical result that the stronger the litigant’s case is against an agency, the more likely that the agency would abandon the case and comply with the litigant’s position before a final judgment.

“In a rather cruel irony, this could make the most meritorious cases the least attractive to counsel because the strong cases are the ones in which the state agencies would seem likely to voluntarily reverse their conduct,” the legal services groups told the Court of Appeals. “Low-income New Yorkers will have even more difficulty obtaining counsel if attorneys are denied fees precisely because the litigation they commenced was successful.”

Kenneth Stephens of the Legal Aid Society’s civil appeals and law reform unit and David Hille and Silvia Medina of White & Case prepared the joint brief.

The New York City Bar Association argued that the empowerment the EAJA provides to lower-income litigants is all the more important due to the recognized lack of free legal services to poor New Yorkers. A task force appointed by Chief Judge Jonathan Lippman estimates that only about 20 percent of low-income or indigent New Yorkers have access to needed legal services (NYLJ, Dec. 7, 2012).

“The EAJA is intended to compensate parties who are forced to bring litigation to enforce their rights, especially involving the most egregious of agency violations,” the city bar said in a brief  prepared by Sebastian Riccardi, aided by Andrew Kalloch, Kate Skolnick and Ian Spiridigliozzi.

State Special Counsel Cecelia Chang, who is scheduled to argue on the state’s behalf on Jan. 15, will contend that giving the EAJA a catalyst effect was not the Legislature’s intent. Further, the Appellate Division, First Department, decision upholding attorney fees for Solla under the EAJA (NYLJ, March 6, 2013), was contrary to the First Department’s precedents in Auguste v. Hammons , 285 AD2d 417 (2001), and Wittlinger v. Wing , 289 AD2d 171 (2001), Chang will maintain.

“The Legislature intended to follow settled background law requiring a party to obtain court-ordered relief, such as a favorable judgment or court-ordered consent decree, to be deemed a prevailing party; it had no intent to follow (and likely was not even aware of) the so-called catalyst theory,” the state’s brief said. “Awarding catalyst fees would, moreover, upset the balance of the act’s dual goals: to incentivize suits against unreasonable state action while also carefully circumscribing the state’s (and ultimately the taxpaying public’s) potential fee liability.”

The case developed from the decision by New York City’s Human Resources Administration in September 2010 to reduce Luz Solla’s restricted monthly shelter payment from $1,390 to $1,181. Solla said the reduction forced her to use part of her disabled daughter’s Supplemental Security Income benefits to help pay her rent.

The state Office of Temporary and Disability Assistance overruled the city agency and ordered Solla’s benefits to be restored, but she sued when the Human Resources Administration failed to comply with the state’s order for several months.

Though the agency ultimately restored Solla’s benefits, the state opposed the South Brooklyn Legal Services’ attempts under the EAJA to recover attorney fees for representing her.

Manhattan Supreme Court Justice Alexander Hunter denied Solla’s motion for attorney fees, a determination the First Department overturned unanimously in Matter of Solla v. Berlin, 106 AD3d 80 (2013).

Attorney Peter Kempner of the South Brooklyn Legal Services will argue on Solla’s behalf before the Court of Appeals.

The Court of Appeals livestreams  oral arguments. The Solla case is scheduled to begin at about 3 p.m. on Jan. 15.

@|Joel Stashenko can be reached via email or on Twitter @JoelStashenko .

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