Ninth Circuit Orders Rehearing of Haskell v. Harris

1037193_dna_fingerprint_5When the Supreme Court issued the Maryland v. King opinion on June 3, 2013 upholding Maryland’s DNA Collection Act, numerous cases were pending in which similar DNA fingerprinting upon arrest statutes in other jurisdictions were being challenged. The dissenting justices encouraged cases to press forward and give the Court an opportunity to change its current Fourth Amendment course, with Justice Scalia writing, “I … hope that today’s incursion upon the Fourth Amendment, like an earlier one, will some day be repudiated.” It was only a matter of time for us to see just what the impact of the Maryland v. King decision will be.

Turning Attention from Maryland to California
Among the cases put on hold while all eyes were on the Supreme Court’s handling of Maryland v. King was Haskell v. Harris, a case pending in the Ninth Circuit. You may recall that in February 2012 the Ninth Circuit (in a 2-1 decision) upheld California’s Proposition 69 (also known as the 2004 Amendment to California’s DNA and Forensic Identification Data Base and Data Bank Act of 1998, which took effect on January 1, 2009). The California law makes DNA fingerprinting mandatory for those adults arrested of felonies in the State of California, allows the processing of the DNA sample and generation of the DNA fingerprint or profile immediately upon collection, and provides that an arrestee who ultimately is not convicted may petition for expungement of the DNA sample and profile (in other words, there is no automatic expungement). Litigants promptly filed a petition for rehearing en banc, which was granted by the court on July 25, 2012. Oral arguments were held en banc on September 19, 2012 (en banc meaning that the case is so significant that all of the Ninth Circuit judges participated on the bench for the hearing, not just the three-judge panel that participated previously); however, the Ninth Circuit suspended its decision and would not issue a ruling while a similar case was before the Supreme Court.

As soon as the Maryland v. King opinion was issued, and as our esteemed colleague Hank Greely at Stanford reported, the Ninth Circuit ordered the parties to file supplemental briefs addressing the recent Supreme Court decision in relation to this case. Both sides filed those supplemental briefs in July, and on August 14, 2013, the Ninth Circuit ordered a rehearing en banc with oral arguments to occur in December. The court also extended the filing deadline for amicus briefs, which may be filed up to October 28, 2013.

Arguments Taking Shape
A look at the briefs filed gives a snapshot of what to expect at the oral arguments:

The ACLU’s (Plaintiff-Appellants) supplemental brief and subsequent Reply in support of its supplemental brief distinguishes Prop 69 from Maryland’s DNA Collection Act and argues these distinctions justify a different outcome than in King. The ACLU’s website summarizes its argument:

…it [Maryland’s law] applies only to people arrested and actually charged with a very small number of extremely serious crimes and allows the police to use DNA samples only after a judge says that they can. California’s law, in contrast, applies to people arrested for crimes such as joyriding, simple drug possession, and shoplifting, and allows the police to collect and use a sample with no judicial or even prosecutorial oversight…

The State of California’s (Defendant-Appellees) supplemental brief takes the position that the Supreme Court decision in Maryland v. King governs the outcome in this case and that while the two authorities are not identical, in all relevant aspects the requirements of Prop 69 and Maryland’s DNA Collection Act are not distinguishable in such a significant way that a different ruling would be justified.

The majority opinion penned by Justice Kennedy underscored the holding was intended to be narrow and that only Maryland’s DNA Collection Act was at issue (not California’s Prop 69, not the Federal DNA Fingerprint Act of 2005 decided in the Third Circuit in United States v. Mitchell, and not any of other DNA fingerprinting statutes adopted or in development in other states). Yet, as indicated in GLR’s coverage of the King ruling, the opinion was weak in its explanation of the Court’s legal rationale even if its holding was ultimately correct.

Constitutional law makes for strange bedfellows. In the upcoming oral arguments in Haskell, watch for the ACLU to take its cues from Justice Scalia (who wrote the scathing dissent in King).