Judicial and Legislative Reactions in California to Maryland v. King, 133 S. Ct. 1958 (2013)

window where the light gets inThis year’s first news in the area of genetics and criminal law comes to us from California, where both the judicial and legislative branches are reacting to the U.S. Supreme Court decision in Maryland v. King. In Maryland v. King, the Supreme Court upheld DNA fingerprinting as a routine booking procedure for serious crimes as authorized by Maryland’s DNA Collection Act. Justice Kennedy’s opinion in King indicated it was intended to be a narrow ruling, focused on the specific facets of Maryland’s state statute. This narrow scope effectively left other DNA fingerprinting schemes open to constitutional challenges if they could be distinguished from the details of the Maryland statute. Among those schemes are California’s Proposition 69 and the Federal DNA Fingerprint Act of 2005. The latter scheme was upheld en banc (all the judges of the circuit sitting together, rather than in the usual three-judge panel) by the Third Circuit Court of Appeals in United States v. Mitchell in 2011 (United States v. Mitchell, 652 F.3d 387 (3rd Cir. 2011) (en banc), pet. for cert. filed (Nov. 22, 2011) (No. 11-7603, 11A384), cert. denied – S.Ct. – (Mar. 19, 2012).

The California scheme, known as California’s “DNA Fingerprint, Unsolved Crime and Innocence Protection Act,” arose out of a ballot initiative known commonly as “Prop 69,” which passed in 2004. Prop 69 was challenged in Haskell v. Brown and Haskell v. Harris (the name change reflecting the transition in office of Attorney General from Edmund G. Brown, Jr. to his successor, Kamala D. Harris, during the litigation). The class action plaintiffs (each arrested in California for a felony and asked to submit to DNA fingerprinting but ultimately not convicted of a felony), including Elizabeth A. Haskell who was arrested in March 2009 for allegedly trying to free a prisoner from a peace rally, sought a preliminary injunction to block the practice of DNA fingerprinting as a routine booking procedure for all felony arrests.

Prop 69 was initially upheld in 2009 by the Northern District of California, a decision affirmed in early 2012 by the Ninth Circuit Court of Appeals in a split 2-1 decision. The case was under further appeal to the Ninth Circuit sitting en banc, and the parties had already made oral arguments when the Supreme Court took up King. The fate of Prop 69 was put on hold pending the outcome of the Supreme Court case. Shortly after King was decided, the Ninth Circuit Court of Appeals ordered a rehearing of Haskell v. Harris. Parties submitted supplemental briefs, and oral re-argument in light of King was held before an en banc panel (and streamed live online) on December 9, 2013. The court issued its much-anticipated decision on March 20, 2014.

The Ninth Circuit, per curiam (a unanimous but unsigned opinion, which usually indicates that the judges thought the outcome was clear-cut), affirmed its original 2-1 ruling denying the injunction and upholding California’s Prop 69. Having been asked by the opponents of Prop 69, “Is California’s DNA collection scheme constitutional as applied to anyone ‘arrested for, or charged with, a felony offense by California state or local officials,” the court answered simply, “After Maryland v. King, 133 S. Ct. 1958 (2013), the answer is clearly yes.” (Opinion at p.5, emphasis in original). The court denied the request for a preliminary injunction that would have blocked the DNA fingerprinting of felony arrestees pursuant to Prop 69 because the plaintiffs were unable to show they would be likely to succeed at trial in proving that Prop 69 was unconstitutional.

The last paragraph of the decision, however, hinted that this fight might not be over, suggesting the complaint could be amended to a smaller class of plaintiffs. One of the judges, Judge Milan D. Smith, Jr., vehemently opposed such a suggestion and filed a concurring opinion (he agreed with the outcome but wanted to say something different about the rationale) to make the point that there are no viable shreds left to the Haskell v. Harris case. He articulated why the constitutional challenge to California’s Prop 69, in light of Maryland v. King, is dead: California’s Prop 69 is not distinguishable from the Maryland DNA Collection Act. First, Judge Smith noted all felonies are “serious” and dismissed the ACLU’s attempts to imply that the Supreme Court did not contemplate all felonies when it upheld DNA fingerprinting of arrestees for the serious crimes enumerated by Maryland’s scheme. Secondly, Judge Smith dismissed the ACLU’s argument that California’s processing of the DNA sample prior to arraignment is distinguishable from Maryland’s procedure that waits until after arraignment for a DNA sample to be processed. The rationale was straightforward: the government’s interest in identifying the individual arrested attaches when the individual is brought into custody and applies to all arrests regardless of subsequent charging decisions. Thirdly, Judge Smith rejected the argument that automatic expungement is a prerequisite for constitutionality of the booking practice.

Hank Greely indicated on Twitter and in a post at the Law and Biosciences Blog that he believes Haskell v. Harris may go on, via filing of an amended complaint that would specify a narrower class, in attempts to clarify whether all felony arrests are “serious” and therefore passing constitutional muster as per King. My take is that Judge Smith, in explaining why King controls, suggests that J. Kennedy’s opinion, while intended for narrow applicability, is actually written so as to invite misinterpretation and misapplication. This potentially broad scope (or slippery slope) was acknowledged in J. Scalia’s dissenting opinion in King (which was referenced by Judge Smith repeatedly in his Haskell concurrence).

Those who do not approve of DNA fingerprinting as part of routine arrest booking procedures for all felonies may have better luck focusing their efforts on legislative, not judiciary, solutions to their distaste for the practice. In light of US v. Mitchell and Maryland v. King, these constitutional fights are, by and large, not going to produce the results plaintiffs seek. I would also expect that, as the felony arrest booking procedure is adopted more widely across the United States, criminal defense attorneys will turn the attention to whether the initial arrest was simply a ruse to gain a DNA sample for investigative purposes in other matters and whether the fruit-of-the-poisonous tree doctrine could be used broadly to exclude any subsequent identification evidence. Moreover, law enforcement officers need to color well within the lines of DNA fingerprinting protocols or the “as applied” constitutional challenges will gain momentum.

The California legislature has begun attempts to clarify Prop 69 in light of Justice Scalia’s warnings in Maryland v. King. Assembly Bill No. 1697, introduced on February 13, 2014, seeks to rein in exactly what is permissible for “law enforcement identification purposes.” The bill’s current text states the act “does not amend” Prop 69. Instead, the text explains the bill is intended “to address the issue of research, a matter that Proposition 69 itself does not ‘specifically authorize or prohibit’…” Prop 69 in its current form acknowledges the DNA laboratory of the Department of Justice may analyze, store, and use DNA and forensic identification profiles for many functions, including “anonymous DNA records for training, research, statistical analysis of populations, quality assurance, or quality control.” The bill then attempts to amend provisions of the Penal Code, stating

“…the terms ‘research’ and ‘statistical analysis of populations,’ do not include the use of DNA sequence data for purposes of identifying or characterizing any general correlations between sequence-specific information and behaviors, health, or ethnicity. This type of research or statistical analysis of populations does not serve a forensic purpose.”

The bill explains, “It is the intent of the Legislature that nothing in this act shall limit, or otherwise affect, the forensic activities of the DOJ unrelated to research, or the use of research for quality control or quality assurance purposes.” In other words, the bill would set the scope of the genetic analysis “for identification purposes” more narrowly than some may interpret the Maryland v. King decision to permit and specifically closes off the opportunity to perform research such as molecular photofitting (i.e., predicting phenotypes from DNA). There are some glaring scientific weaknesses, including the idea that DNA records are ever appropriately considered anonymous. (As I explained previously, “This is … a premise hotly debated—whether a genome is ever de-identified or anonymous or, by contrast, whether it is itself always a personal identifier.”) AB 1697 was re-referred to the Committee on Public Safety on March 24, 2014, i.e., just days after the Haskell decision was announced.

These reactions to Maryland v. King may be the first, but they won’t be the last – in California or elsewhere. The highly publicized case, People v. Buza, is still pending (A125542). It was transferred to the Court of Appeal, First Appellate District, Division Two, on July 10, 2013 with directions to vacate its decision and to reconsider in light of King. Parties have been busy preparing supplemental briefs since January 2014 when the court ordered additional briefs that specifically address five main points: (1) that the facial challenge cannot proceed in light of King “because the procedures specified in the Act are not unconstitutional in all respects, even if they might be unconstitutional as applied to certain individuals in certain circumstances. On this issue, what is the significance, if any, of the fact that appellant was convicted of the misdemeanor offense of refusing to provide a DNA sample at the time of his arrest?”; (2) that claims now raised under California Constitution cannot be put forth because they were not previously raised; (3) that in the search and seizure context, the California Constitution (Art. 1, Sec. 1) is in lock-step with the United States Constitution (Fourth Amend.) on privacy protections; (4) that People v. Brisendine (1975) 13 Cal.3d 528 is no longer good law (i.e., that California courts won’t interpret Article 1, section 13 distinct from Article 1, section 1 of the California Constitution with cases such as United States v. Robinson on scope of search incident to arrest or booking); and (5) that the scope of Article 1, section 13, of the California Constitution was unaffected by Article 1, section 28 (i.e., that the exclusionary rule as a remedy for search and seizure violations under California’s Constitution is only available if such violations would also be subject to the exclusionary rule under the Fourth Amendment).

Challenges to current schemes in other states are undoubtedly moving their ways through the judiciary and legislative pipelines. In the next few months we should have some sense of King’s impact on DNA fingerprinting as a routine booking procedure for felony arrests.