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9th Cir. Finally, Predictably Decides Calif. DNA Swabbing Case

By William Peacock, Esq. | Last updated on

This is a disappointing, yet utterly unsurprising result, after a years-long appeals process that was put on hold pending last year's equally unfortunate Maryland v. King decision by the U.S. Supreme Court.

Last year, the High Court held that Maryland's practice of collecting DNA from felons was pretty much no big deal, akin to fingerprinting as a means of identification. Haskell v. Harris is a similar case, challenging a somewhat similar law in California.

So yes, after a pro-California ruling by a panel, some indication that the en banc court was leaning the other way, and the Supreme Court bombshell, California's law stands, and the injunction that would've stopped all DNA collection has been denied.

Per Curium: Maryland v. King Controls

"Plaintiffs' facial and as-applied challenges turn on essentially the same question: Is California's DNA collection scheme constitutional as applied to anyone 'arrested for, or charged with, a felony offense by California state or local officials?' After Maryland v. King, 133 S. Ct. 1958 (2013), the answer is clearly yes. Plaintiffs' counsel conceded as much at oral argument. 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."

'Nuff said, at least for the majority. The thing is, the ACLU's injunction request covered all arrestees, not just ones that wouldn't have been covered by Maryland's law. What's the difference between the two states?

Materially Indistinguishable From Maryland?

In Maryland, if you aren't convicted, your DNA is automatically expunged. In California, the arrestee has to make the request.

It may sound like a tiny difference, but according to statistics provided by the ACLU and the California Attorney General's office to the Los Angeles Times, there are about 300,000 felony arrestees per year, 100,000 of whom are not convicted. Out of those, fewer than 100 have made requests to expunge their DNA from the databank -- though out of those, 96 percent have had their requests granted.

Another difference? Maryland's law is limited to burglaries, crimes of violence, and attempts at either, while California's law covers all felonies, including "wobblers" that can be charged as either a misdemeanor or felony.

While the ACLU initially requested an injunction covering all arrestees, the plaintiffs also later asked the Ninth Circuit to issue an injunction for a smaller class. The majority declined, but provided hope:

"But we are a court of review, not first view [...] If plaintiffs believe they're entitled to a preliminary injunction as to a smaller class, 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, unhappy with that last bit, wrote separately, noting:

"California's DNA collection law is materially indistinguishable from the Maryland law ... Because the last paragraph of the per curiam opinion vaguely implies that something of Plaintiffs' lawsuit may survive King, I respectfully concur only in the judgment."

Smith also quoted King:

"The Court recognized that although other DNA collection statutes 'vary in their particulars, such as what charges require a DNA sample, their similarity means that this case implicates more than the specific Maryland law.'"

And tied up his rant bluntly:

"After King, Plaintiffs' facial and as-applied challenges to California's DNA collection law are clearly without merit, and any amendment to Plaintiffs' complaint would be futile. This case is over, and the district court has no obligation to give the Plaintiffs an opportunity to amend their complaint."

What are your thoughts? Maryland's law is obviously much, much more narrow than California's, and doesn't expose the innocent to the risk of having their DNA stored. Is that enough of a difference to distinguish the laws? Tweet us your thoughts at @FindLawLP.

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