March 21, 2014

En banc 9th Circuit: California's DNA Collection and Profiling of Arrestees is Constitutional

In a long-awaited opinion issued yesterday in Haskell v. Harris, the en banc 9th Circuit has upheld the constitutionality of the California law that authorizes the collection and testing of DNA samples from all persons arrested for or charged with any felony or attempted felony (profiles are entered into the national CODIS database). The practice of collecting DNA from arrestees began in Louisiana in 1997. The recent trend in state DNA collection practices for law enforcement has been to expand DNA profiling from those convicted of crimes to those arrested for various crimes. The Supreme Court upheld the constitutionality of arrestee DNA collection against a 4th Amendment challenge in Maryland v. King (2013) (see earlier post). California’s expansion of its DNA database was initiated with the passage of Proposition 69 in 2004, and expanded to include arrestees in 2009. An earlier 9th Circuit panel upheld the practice in 2012, while a state court disagreed and found the practice unconstitutional. In yesterday's ruling, Judge M. Smith filed a concurrence that accompanied the terse per curiam opinion from the full panel, acknowledged the impact of King
The Supreme Court’s decision in King is fatal to Plaintiffs’ claims. 
The court did note some of the safeguards in California’s policy (and which are found in most state policies):
Only law enforcement officials may access a DNA profile, and they may only use the DNA for identification purposes. Id. §§ 295.1(a), 299.5(f). Unauthorized access or disclosure is punishable under state law by imprisonment and a criminal fine. Id. § 299.5(i). Federal law imposes similar penalties for unauthorized use of, or access to, CODIS. See 4 2 U.S.C. §§ 14133(c), 14135e(c). An arrestee who is not ultimately convicted may ask the trial court to order the sample destroyed and the DNA profile expunged. Cal. Penal Code § 299(b). 
This case took an interesting twist in 2012, when scientists in the ENCODE project published more annotation of the human genome and the development invited an analysis that the genetic markers used in forensic DNA science were more informative (and thus the collection was more invasive) than law enforcement claimed (see submission to the court by the Electronic Frontier Foundation and earlier post). There is no mention of the ENCODE-based arguments in the opinion just released. In its amicus brief, the Obama administration sided with California in arguing for the constitutionality of the law.The 9th Circuit opinion signals that 4th Amendment challenges to arrestee DNA collection are unlikely to succeed in view of King. It's possible that more detailed annotation of the human genome might provide a basis for future arguments that the CODIS markers are more informationally revealing than is currently believed (thus altering the privacy calculus), but the 9th Circuit's ruling ignored the opportunity to opine on the relevance of evolving science, leaving that to future cases.

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