Page URL:

Challenge to compulsory DNA sampling of felony arrestees fails in California

27 February 2012
Appeared in BioNews 646

Collecting DNA samples from adults arrested in California will remain legal, after a federal appeals court ruled last Thursday that Proposition 69, the measure behind the practice, was lawful.

A divided ninth US Circuit Court of Appeals disallowed by two votes to one a challenge brought by the American Civil Liberties Union (ACLU) that the measure was unconstitutional under the US Fourth Amendment right to be free of 'unreasonable searches and seizures'.

The court rejected the argument that the collection and analysis of genetic data from people arrested by police, but not charged or convicted, amounted to a breach of privacy. It further decided that the state's interest in justice and genetic information outweighed the privacy concerns raised by the plaintiffs.

'DNA analysis is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes, and exonerate innocent suspects', Judge Milan Smith wrote, in giving the majority judgment. 'After weighing these factors, we conclude that the government's compelling interests far outweigh arrestees' privacy concerns'.

The ruling was hailed as, 'a victory for public safety in California', by Californian Attorney General Kamala Harris. She said DNA taken from arrested suspects had assisted the police in 'solving thousands of crimes'.

The class-action lawsuit was filed in October 2009 by the ACLU and the four plaintiffs in the case, all of whom had DNA samples taken from them when arrested. An application for a preliminary injunction to put a halt to the taking of DNA samples from arrestees was declined by a lower court, and again rejected on appeal.

Introduced by Californian voters in 2004, Proposition 69, which came into effect on 1 January 2009, requires Californian police to take a cheek swab from arrestees before they are charged. The samples would then be stored in a national database.

Citizens arrested and then not charged can apply to have their sample destroyed and their information deleted from the system. Those wanting to have their information removed are required to make an application to do so. But this process was criticised by Judge William Fletcher, dissenting in the case, as being 'lengthy, uncertain and expensive'.

Ruling against the plaintiffs, Judge Smith said DNA collection 'is substantially indistinguishable from traditional fingerprinting as a means of identifying arrestees and, incidentally, tying arrestees to criminal investigations'. He said the ability to tackle crime would be hampered if police were prevented from using information gathered from the identification of suspects in its investigations.

But Judge Fletcher, in his dissent, said that fingerprinting a suspect is not done exclusively for identification purposes. The DNA samples, he wrote, 'are taken solely for an investigative purpose, without a warrant or reasonable suspicion'.

Furthermore, a fingerprint, he argued, shows nothing more than a person's identity while a DNA sample can reveal more detailed information such as health risks, and family ties. He also noted that one-third of the 300,000 people arrested in the state for felonies each year are never charged.

Judge Smith disagreed and said there was little authority for the dissent. 'Like the dissent, [the] plaintiffs rely on slippery-slope arguments by challenging not only what California actually does with the DNA samples, but what it could do with the information', he said.

'This line of reasoning... ignores the clear statutory limitations drawn by the Legislature, and the fact that there is no evidence in the record of a single case of DNA misuse in California'.

The ruling does not affect the practice of DNA sampling of convicted criminals, which was not challenged in the case. The Californian Supreme Court is currently reviewing a separate challenge to the law in this area.

Court OKs Taking DNA From Felony Arrestees
Wired |  23 February 2012
Federal appeals court upholds California law forcing all felony arrestees to submit DNA
Washington Post |  23 February 2012
Haskell v. Brown
American Civil Liberties Union, Northern California |  13 July 2010
Haskell v Harris (No. 10-15152)
United States Court of Appeals, Ninth Circuit |  23 February 2012
Proposition 69
Legislative Analyst's Office |  2004
U.S. appeals court finds DNA testing constitutional
Reuters |  23 February 2012
10 June 2013 - by Ruth Retassie 
The US Supreme Court has ruled that the police are allowed to collect DNA from people they arrest...
26 March 2012 - by Dr Marianne Kennedy 
Officials in New York State in the USA have passed a bill requiring people convicted of almost any crime to provide a sample for the state's DNA database. While generally lauded, the move has attracted criticism from civil rights groups who claim that constitutional privacy issues are raised by the government holding so many people's genetic information on file...
5 March 2012 - by Ruth Saunders 
A free information resource detailing numerous disease-specific genetic tests that are now available was launched last week by the US National Institutes of Health (NIH)...
10 October 2011 - by Dr Mary Yarwood 
Plans to introduce broad powers to allow police to retain the DNA of innocent people should be abandoned, the UK Joint Committee on Human Rights (JCHR) has said....
1 June 2010 - by Dr Lux Fatimathas 
The DNA of up to four million newborn babies is being stored in UK hospitals without proper parental consent....
24 August 2009 - by Rosie Beauchamp 
This week Conservative MP Damien Green won his battle with police chiefs when they agreed to remove his record from the national DNA database. Mr Green's DNA was collected after his arrest last November over leaked Home Office documents, but no charges were brought against him....
27 May 2002 - by Dr Jess Buxton 
Last week saw the release of a new report on the protection of genetic information, from the UK's genetic watchdog, the Human Genetics Commission (HGC). It coincided with news of a millionaire film producer embroiled in a paternity dispute, following a secret DNA test carried out on dental floss stolen...
to add a Comment.

By posting a comment you agree to abide by the BioNews terms and conditions

Syndicate this story - click here to enquire about using this story.