Dec. 6, 2013 San Jose Mercury News
Armed with a recent U.S. Supreme Court ruling, a federal appeals court on Monday will revisit a controversial legal challenge to California’s law allowing collection of DNA samples from anyone arrested for a felony.
Whether the Supreme Court’s ruling on Maryland’s similar — though narrower — DNA collection law shoots down an ongoing legal attack on California’s four-year-old statute will be the question before a special 11-judge 9th U.S. Circuit Court of Appeals panel.
In a 5-4 ruling, the Supreme Court upheld the constitutionality of Maryland’s law, likening collection of DNA samples to fingerprinting suspects booked into police custody.
Civil liberties advocates argue that California’s law is a much greater threat to privacy rights because it permits DNA sample collection and preservation from arrested suspects even if they are never charged with a crime. Maryland’s law permits DNA collection only from those charged with a serious felony, and after a judge finds probable cause they’ve committed the crime.
California Attorney General Kamala Harris says the differences between the California and Maryland laws are “not constitutionally significant” and has urged the 9th Circuit to uphold the law. The Obama administration has backed California’s defense of the law in the appeal, stressing the national importance of DNA collection laws that 28 states have enacted.
Before the Supreme Court ruling, the 9th Circuit last year appeared inclined to invalidate California’s law, expressing concerns about DNA being collected from individuals who may never be charged in court with a crime. But legal experts say the Supreme Court’s ruling in the Maryland case could make it tough for the 9th Circuit to overturn the California law.
“The fact they decided to reargue it is a good sign for (groups challenging the law),” said Hank Greely, a Stanford University law professor. “But I still think it’s an uphill climb for the plaintiffs.”
The American Civil Liberties Union in 2009 sued to block enforcement of California’s DNA collection law on behalf of an Oakland woman, Elizabeth Haskell, who was arrested during a San Francisco rally against the Iraq War. Haskell was arrested and required to submit to DNA testing but never charged.
A divided three-judge 9th Circuit panel upheld the law voters had approved in 2004 to go into effect in 2009, but the court agreed to rehear the case with an 11-judge panel. That panel heard arguments last year, then put the case on hold when the Supreme Court decided to review Maryland’s law.
Law enforcement officials consider DNA collection a crucial tool in solving crimes. In a recent brief urging the 9th Circuit to uphold the law, the California District Attorneys Association noted that 20,000 hits have led to solving crimes since law enforcement began gathering DNA from arrestees in 2009.
But civil liberties advocates say the law comes with a high price and needs to be scaled back to bar DNA collection without a warrant. “Personal privacy interests outweigh California’s interests in DNA collection,” the Electronic Frontier Foundation wrote in its brief.
While the 9th Circuit case raises federal legal questions, a similar challenge is unfolding in the California state courts, where the state Supreme Court has also ordered a further look at the issue in light of the U.S. Supreme Court’s Maryland decision.
In both cases, the issue boils down to whether there is enough difference between the California and Maryland laws to skirt the U.S. Supreme Court’s findings that DNA collection can be constitutional.
“The question is are there enough distinctions to make a difference,” Greely said. “If I had to bet, I’d say the U.S. Supreme Court would say there aren’t.”

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