SAN FRANCISCO — A California deputy attorney general, defending a state law requiring everyone arrested for a felony to provide a genetic sample, endured tough questioning Wednesday from members of an 11-judge federal appeals court panel.
At least three of the 9th U.S. Circuit Court of Appeals judges deciding the case made it clear they found the law distasteful, especially since it’s the arresting officer and not judges or prosecutors who decide whether collecting a DNA sample is appropriate.
“It’s that officer who is there and decides a felony has been committed” triggering the collection of a DNA sample, said Judge Harry Pregerson. “That’s a terrible intrusion of privacy.”
Judges Richard Paez and N. Randy Smith were also outspoken in their opposition. It will take the votes of six judges to invalidate the law.
Before its complete enactment in 2009, only those convicted of a felony or those arrested for sexual assault or murder were required to provide samples. The changes were passed by 62 percent of the electorate as Proposition 69.
Law enforcement officials say expanding DNA collection helps in solving so-called cold cases through matches in California’s DNA database, which has nearly 2 million samples.
Genetic material collected at crime scenes is compared against samples stored in the database, generating some 400 leads a month, more than double the average monthly rate of 183 in 2008. More than 10,000 suspects have been identified in the last five years.
“It’s a vital to public safety,” argued Deputy Attorney General Daniel Powell. Powell said swiping the inside of a suspect’s cheek with a cotton swab was “minimally invasive” and served the same exact function as fingerprinting all who have been arrested. He also argued that investigators are looking only in a limited area of the suspect’s genetic code and aren’t interested in a person’s health history or ancestry.
“It’s my genetic material,” said Lily Haskell, one of three people represented by the ACLU in challenging the law. “It’s a serious invasion of my privacy. I don’t want the government to hold on to my DNA.”
Haskell was arrested at an anti-war protest in San Francisco after an officer accused her of violating an anti-lynching law by interfering with the arrest of another. At the jail, she was told she faced misdemeanor charges and would not be released for another two days if she refused to submit to a cheek swab. She complied and was never charge with a felony.
Judge Smith and others were troubled that the state Department of Justice could keep Haskell’s DNA until the statute of limitations of the anti-lynching law expired.
“I don’t see what the government loses by putting (collection) off until conviction,” Smith said.
The 11 judges considering the ACLU-backed lawsuit seeking to invalidate Proposition 69 are a mixed political bag of Republican and Democratic appointees with varying views of privacy cases.
Pregerson, the longest-serving judge on the appeals court, was appointed by President Lyndon Johnson. President Bill Clinton appointed Paez, and President George W. Bush appointed Smith.
ACLU lawyer Michael Risher’s toughest obstacle was Judge Milan Smith’s concern that a separate case on a similar law in Maryland, which the U.S. Supreme Court is expected to take up, could decide the California case for them. (The Maryland case is Alonzo Jay King, Jr. v. State of Maryland, Court of Appeals No. 68, September Term, 2011.)
Milan Smith, also an appointee of President George W. Bush who is not related to N. Randy Smith, wondered why the 9th Circuit shouldn’t wait until the Supreme Court rules on the Maryland law. In allowing Maryland’s DNA collection law to remain while the Supreme Court action is pending, Chief Justice John Roberts said it appeared the state would prevail.
Risher replied that Maryland’s law and California’s law are significantly different. California’s law applies to all felony arrestees, regardless whether they’re ultimately charged or not. Maryland’s law applies only to a few types of violent crimes such as murder and sexual assault. The sample is only analyzed after an arrestee is formally charged, and it is destroyed if charges are dropped.
In California, arrestees not charged with a felony must fill out and submit a two-page form to the state Department of Justice to have their samples removed from the state’s DNA database. That process also concerned several judges, who expressed concern that the state DOJ would retain possession of the genetic sample of people not charged with felonies but who felt intimidated by the expungement process.
“Once they have it, they have it,” said Chief Justice Alex Kozinski, a Ronald Reagan appointee with a noted Libertarian streak when it comes to privacy issues. “What if another law is passed that says they can test for everything.”