Friday, December 21, 2007

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.

“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 laRobert 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 laRobert 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


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Blogger Steven Rush said...

An interesting case indeed. I am curious as to where the court got their standard of qualification under RFRA: "defendant must first (1) articulate the scope of his beliefs, (2) show that his beliefs are religious...." at 853.
The court did not provide a cite and I have never seen that standard anywhere.

Sunday, April 13, 2008 11:15:00 AM  
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