Case o' The Week: 9th OK with Cali's Cheeky Swab - Haskell and Pre-Conviction DNA

"[W]e must base decisions not on dramatic Hollywood fantasies . . . but on concretely particularized facts developed in the cauldron of the adversary process and reduced to an accessible record." Haskell v. Harris, 2012 WL 589469, *12 (9th Cir. Feb. 23, 2012) (internal quotations and citation omitted).

Fair point by Haskell's author, Judge Milan Smith. Here's the concretely particularized facts:

 ● Political protestor arrested in California;

 ● Forced by cops to give DNA pre-conviction, or be charged with another crime;

 ● Protestor never actually charged with crime for which arrested --  and certainly never convicted of the crime;

 ● DNA nonetheless remains in national database and is used to investigate other crimes;

 ● Will cost the protestor a fortune to try to remove DNA from database, with no right to appointed counsel for task.

     (Maybe reality is more "dramatic" than a "Hollywood fantasy?")

Haskell v. Harris, 2012 WL 589469, *12 (9th Cir. Feb. 23, 2012),  decision available here.

Players: Decision by Judge Milan Smith, persuasive dissent by Judge W. Fletcher.

Facts: A 2004 Amendment to California’s DNA Act allows officers to collect a cheek-swab sample of anyone arrested for a felony offense. Id. at *1. (To emphasize - this sample is taken pre-conviction -- indeed, it is taken before charges are even brought). That DNA is stored in a database and is used to investigate other crimes. Id. at *2. It is a misdemeanor to refuse to give the sample. Id. at *2.

The Haskell civil plaintiffs were charged with felonies and were forced to give DNA samples. They were never convicted of the felonies for which they were arrested. Id. at *2. Three of the plaintiffs were political protestors who were never charged with any crime, or who had their charge dismissed. Id. at *16 -*17 (Fletcher W., J.,  dissenting).

Hon. Milan Smith

Plaintiffs brought a § 1983 class action alleging a violation of the Fourth Amendment and seeking a preliminary injunction. Id. at *2. The district court found no Fourth Amendment violation. Id. at *3.

Issue(s): “The constitutionality of California’s requirement that all felony arrestees provide DNA samples is a question of first impression for us.” Id. at *5.

“[We ask] whether California’s mandatory DNA collection requirement . . .  as applied to felony arrestees who have not been convicted, violates the Fourth Amendment.” Id. at *3.

“The question before us is whether California’s DNA collection requirement . . . is an unreasonable search. In line with the Constitution’s plain text, the touchstone of our analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security. . . We apply the ‘totality of the circumstances’ balancing test to determine whether a warrantless search is reasonable. Under the totality of the circumstances test, whether a search is reasonable is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Id. at *4.

Held: “We assess the constitutionality of the 2004 Amendment by considering the ‘totality of the circumstances,’ balancing the arrestees’ privacy interests against the Government’s need for the DNA samples. Law enforcement officials collect a DNA sample from a buccal swab of the arrestee’s mouth, a de minimis intrusion that occurs only after a law enforcement officer determines there is probable cause to believe that the individual committed a felony. Law enforcement officers analyze only enough DNA information to identify the individual, making DNA collection substantially similar to fingerprinting, which law enforcement officials have used for decades to identify arrestees, without serious constitutional objection. Moreover, state and federal statutes impose significant criminal and civil penalties on persons who misuse DNA information. On the other side of the balance, DNA analysis is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes, and exonerate innocent suspects. After weighing these factors, we conclude that the Government’s compelling interests far outweigh arrestees’ privacy concerns. Thus, we hold that the 2004 Amendment does not violate the Fourth Amendment, and we affirm.” Id. at *1 (internal quotations and citations omitted).   

Of Note: In a compelling dissent Judge Fletcher tackles and rebuts each of Judge Smith’s arguments. Id. at *16 (Fletcher, W., J., dissenting). For Judge Fletcher (and for us), the Ninth’s 2009 Friedman case controls: he wonders how Haskell is possible without taking Friedman en banc. Id. at *20.

Hon.  William Fletcher

Judge Fletcher also makes a persuasive distinction between pre-conviction DNA taken for identification (constitutional), versus pre-conviction DNA taken for investigation (verboten). Id. at *22. California pre-conviction DNA, the dissent emphasizes, is plainly used for investigation. Id. at *24.

A case that cries out for en banc review.
                   
How to Use: “Special needs?” D.O.A. Id. at *4. Judge Smith summarily rejects the Fourth Amendment’s “special needs” doctrine in a brief paragraph, and the dissent doesn’t complain – Samson’s “totality” is ascendent. Worth a read re: special needs.
                     
For Further Reading: How spooky is DNA? In one case, a DNA sample from an incarcerated son lead to a “familial” match, and then to the father’s arrest for old offenses. See article here.

   But don’t worry: pre-conviction DNA isn’t used for familial searching (well, at least it is not used - quite - yet). See Haskell, id. at *19 (Fletcher, W., J., dissenting).



Image of "Gattaca" from http://s90.photobucket.com/albums/k241/rhythmonly/Criterion/?action=view&current=Gattaca.png&sort=ascending
Imange of the Honorable Milan Smith from http://www.willamette.edu/wucl/images/Milan_Smith.jpg
Image of the Honorable William Fletcher from http://www.ajcsanfrancisco.org/site/apps/nl/content2.asp?c=irKPIUPFIsE&b=856751&ct=1129507



 Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org



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Case o' The Week: Catholic, Buddist Zimmerman - and that's OK, in the Ninth

Merry Christmas. Happy Hanukkah. Joyous Kwanzaa. Blessed solstice (left). The Ninth doesn't care if your beliefs fit neatly into any particular religion: if your convictions are sincerely held, the Ninth (and the Religious Freedom Restoration Act) has your back. See United States v. Gregory Michael Zimmerman, __ F.3d __, 2007 WL 4394421 (9th Cir. Dec. 18, 2007), decision available here.

Players: “Righteous” win by CD AFPD Gail Ivens.

Facts: After pleading guilty in a false ID case, Gregory Zimmerman was ordered to provide a DNA sample under the “Justice for All Act of 2004.” 2007 WL 4394421, Id. at *1. Though he has a Jewish name (a la “Robert Zimmerman” a.k.a. Bob Dylan), Zimmerman was raised Roman Catholic. Id. at *1. He also studied other religions, such as Buddhism. Id. at *2. Based on his religious beliefs, he objected to letting the Feds draw blood for DNA. Id. at *1, *2; see also Genesis 9:6. The district court didn’t buy it, noting that Roman Catholics have no objection to having blood drawn. Id. at *1.

Issue(s): “We consider whether compelling a criminal defendant to give a blood sample for DNA testing could violate his rights under the Religious Freedom Restoration Act (RFRA).” Id. at *1.

Held: “Without determining the precise scope of Zimmerman’s beliefs, the district court held that his beliefs weren’t religious . . . This was error.” Id. at *1. “While this may not be a mainstream religious belief or common interpretation of the Bible, Zimmerman’s belief that he can’t give a blood sample is based on his connection with god, not purely on secular philosophical concerns . . . As a result, the district court erred in holding that Zimmerman’s refusal to give a blood sample wasn’t based on a religious belief.” Id. at *2.

Of Note: This good per curiam decision (Kozinski, Rawlinson, and visiting judge Baer) gives the Religious Freedom Restoration Act an honest and protective reading. As the decision points out, the RFRA doesn’t require that a belief be central to a mainstream religion – the Act protects religious exercise “whether or not compelled by, or central to, a system of religious belief.” Id. at *1.

The decision also pragmatically emphasizes that an individual isn’t limited to the religious beliefs of his upbringing; “religious beliefs may evolve or change based upon life experiences or personal revelations.” Id. (again, a la “Robert Zimmerman” a.k.a. Bob Dylan).

Incidently, the decision pounds a few more nails in the coffins of Fourth and Fifth amendment challenges to the 2004 DNA Act. See id. at *3. For a useful – if depressing – recap of the bad law on the DNA Act, start with the last three paragraphs of the decision.

How to Use: Before your felon-clients with checkered pasts convert to “Zimmermanism,” encourage them to study the remand requirements of this decision. On remand, the district court is to get a bead on Zimmerman’s “precise scope of beliefs.” Id. at *2. Maybe he has a religious objection to drawing blood, but a tissue sample, hair sample, or cheek swab may be fair game. Id. If the scope of Zimmerman’s beliefs preclude providing these other DNA samples, the district court is to determine whether those beliefs are in fact “religious.” Id. The district court then needs to make a factual finding on the sincerity of the beliefs. [The Ninth here – unnecessarily – takes a pot shot at Zimmerman’s sincerity]. Id.

Thus, while the decision generally is an affirmation of the protections of the RFRA, in practice there are many hurdles to surmount before the Act can block the collection of DNA.

For Further Reading: “Whoever sheds the blood of a human, by a human shall that person’s blood be shed; for in his own image God made humankind.” Genesis 9:6. That verse, says the Ninth in Zimmerman, may fairly be read to prohibit the involuntary extraction of blood – an act that can be fundamentally offensive to deeply-held and sincere religious beliefs.

Notably, that same verse can be fairly read to prohibit the State’s execution of its prisoners – another act that is fundamentally offensive to the deeply-held and sincere religious beliefs of many. See “Genesis 9:6 and Capital Punishment,” available here.

Here’s a holiday wish that we will all, one day, become as enlightened as New Jersey. See article on New Jersey abolition of death penalty here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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