“Hegel remarks somewhere that all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce.”

Karl Marx, The Eighteenth Brumaire of Louis Napoleon

If quoting a Marx, I usually go with Groucho, not Karl, but this one makes for a good exception.  Maryland v. King, the Supreme Court’s decision that mandatory collection of DNA from people arrested for “serious crimes” does not violate the Fourth Amendment, is not a tragedy.  I have blogged about Maryland v. King, as has CLB fellow Jake Sherkow, and we’ve even recorded a mini-podcast on the case, to be posted on this site in a few days.  One aspect, mentioned at the end of the mini-podcast, does deserve some special attention – the California angle, where this case has both a serious, though probably not “tragic” aftermath in California, and a farcical one.  This post examines the serious implications of Maryland v. King for California’s arrestee DNA collection law, concluding that it probably, but not certainly, validates it, at least as to federal constitutional issues. The next post lays out the farce.

The California Cases

 

Like Maryland – and the federal government and, by the Supreme Court’s count, 27 other states – California has a statute (in our case, adopted by the population by initiative, Prop. 69, in 2004) requiring that people arrested for felonies “donate” their DNA for analysis and the subsequent inclusion of the results in the forensic database.  The California statute has been challenged in two high profile cases:  Haskell v. Brown, in federal courts, and People v. Buza, in the state courts.

Haskell

 

Haskell v. Harris (at some points, before his elected promotion from Attorney General to Governor, this was Haskell v. (Jerry) Brown) is a federal class action with a long and complicated history.  It was brought by people arrested, for felonies, but never convicted, who claim, under Section 1983, that the mandatory DNA collection require by the California statute violates their rights under the Fourth and Fourteenth Amendment.  Plaintiffs, who were represented by the ACLU (through Michael Risher, a Stanford law grad), lost in the Northern District of California in December 2009 when Judge Breyer denied their motion for a preliminary injunction.  The district court did certify the class action and denied the government’s motion to dismiss.

The appeal was subsequently argued to a Ninth Circuit panel in July 2010, but the submission was withdrawn in June 2011 because the decision of a different Ninth Circuit panel in United States v. Pool, upholding the statute in a very similar question, had been granted rehearing en banc.  In late September the en banc panel dismissed the Pool case as moot, after the defendant’s guilty plea, so the Haskell case was resubmitted in November 2011. In February 2012 (19 months after the case was argued), the plaintiffs finally lost at the Ninth Circuit, when the panel ruled, two to one, to affirm the district court’s decision.  Judge Milan Smith wrote the majority opinion, joined by Judge James Dodd, a senior judge from the Western District of Tennessee, sitting by designation.  Judge William Fletcher dissented.

The Ninth Circuit granted rehearing en banc in July 2012 and heard arguments in the case on September 19, 2012. That en banc panel included Judges Kozinski, Pregerson, McKeown, Fisher, Gould, Paez, Tallman, Rawlinson, Milan Smith, Randy Smith, and Watford.  That seemed to some observers a pretty favorable panel for the plaintiffs.  Two months later, however, the Supreme Court granted certiorari in Maryland v. King, deciding to hear the very similar issues presented by that case.  As a result, the Ninth Circuit suspended its consideration of Haskell.

Buza

 

Meanwhile, the Buza case, an appeal of a misdemeanor criminal conviction for refusing to provide a DNA sample after a felony arrest, marched up the state court system.  In this case, which alleged violations of the federal constitution, as in Haskell, but also of the California constitution’s right of privacy, the California Court of Appeal held that the collection of DNA from an arrestee before arraignment or information.  The defendant, who had tried to set fire to a police car, allegedly as a political protest, was convicted on three felony counts, as well as on the misdemeanor count of refusing to provide a DNA sample. The Court reversed the last count, purely on Fourth Amendment grounds (finding it need not reach the state constitutional issues), stressing that no judicial determination of probable cause had been made in this case.

In October 2011, the California Supreme Court granted a hearing in Buza, which had the effect of automatically “depublishing” the appellate court opinion.  The last brief case was filed in July 2012, but no argument date was ever set.  In January 2013, the California Supreme Court expressly stated that the case was being held pending the outcome in Maryland v. King.

So, both the Ninth Circuit en banc panel, which has heard oral arguments, and the California Supreme Court, which has had briefings but not yet heard oral arguments, have been waiting for the Supreme Court’s Maryland v. King decision before deciding cases pending before them challenging the constitutionality of California’s arrestee DNA statutes.  The Supreme Court has now spoken ­– what will these courts do?

The California Statute and the Maryland Statute – The Differences

 

The Maryland statute upheld by the Court and the California statute in question in Haskell and Buza differ in four potentially significant ways:  qualifying crimes, timing of DNA collection, effects of non-conviction, and the possible use of the samples in so-called “family searches”.  They also differ, probably unimportantly, in the way in which the statutes are being challenged.

The Qualifying Crimes

The Maryland case requires that DNA samples be provided by arrestees accused of “a crime of violence, an attempted crime of violence, a burglary, or an attempted burglary.”  King was accused of second degree assault. California law requires collection of DNA from any adult arrested for or charged with any felony. Of the two named plaintiffs in the Haskell case, according to the district court opinion

Lily Haskell was arrested in March 2009 for allegedly trying to free another prisoner at a peace rally. MPI at 5. At jail, she was ordered to provide a DNA sample and was told that if she refused to comply immediately or if she waited for a lawyer, she would be charged with a  misdemeanor. Id. She gave a sample, and was never charged with any crime.  Id.

Presumably, trying to free a prisoner – the grounds for her arrest – could be charged as a felony of some kind.

Plaintiff Reginald Ento was arrested in early  2009 for possession of stolen property. MPI at 5.  The sheriff’s deputy collected a DNA sample from him using a buccal swab. Id. Plaintiff Ento was released, and the allegations against him were dropped.

Mr. Buza was charged with arson, possession of an incendiary device, and vandalism, at least some of which were clearly felonies, as well as the misdemeanor of refusing to provide a DNA sample.  (He was convicted of all four counts.)

The Supreme Court upheld Maryland’s law, stressing that it provided for DNA collection only for “serious offenses.” As Justice Scalia’s dissent forcefully noted, the Court never defines “serious offenses.”  Maryland’s list, which apparently the Court’s unstated definition, included crimes and attempted crimes of violence or burglary.  California’s statute covers all felonies, but are all felonies “serious offenses” for this Fourth Amendment purpose?

Timing of the DNA Activity

The Maryland statute provides that the DNA may be taken after arrest but that, unless the arrestee consents, it may not be processed or its results added to the database until after arraignment, at which point a judicial officer will have found probable cause to believe the defendant committed a crime.  The California statute provides that the DNA sample shall be taken “immediately following arrest, or during the booking . . . process or as soon as administratively practicable after arrest, but, in any case, prior to release on bail or pending trial or any physical release from confinement or custody.”  There are no requirements about when it may be processed or the results uploaded into the database.  There is certainly no requirement for a magistrate’s determination of probable cause or a grand jury indictment, a point stressed by the (now depublished) opinion of the California Court of Appeal in Buza.

Expungement

The Maryland statute requires that, in the words of the Court’s majority,

If “all qualifying criminal charges are determined to be unsupported by probable cause . . . the DNA sample shall be immediately destroyed.”  §2-504(d)(2)(i).  DNA samples are also destroyed if “a criminal action begun against the individual . . . does not result in a conviction,” “the conviction is finally reversed or vacated and no new trial is permitted,” or “the individual is granted an unconditional pardon”  x§2-511(a)(1).

The Court does not expressly say so, but presumably in the latter cases the defendant’s DNA profile must also be removed from the database.

In California, by contrast, neither the DNA nor the profile are automatically destroyed or removed upon “non-conviction.”  Instead, as summarized by the first Haskell panel,

An arrestee who is not ultimately convicted may ask either the California Department of Justice or the trial court to order the sample destroyed and the DNA profile expunged. Cal. Penal Code § 299. The individual must await the expiration of the statute of limitations for the crime(s) for which he or she was charged before requesting expungement, unless prosecutors dismiss the charges sooner. The court may order the expungement 180 days after the arrestee’s request. Id.

Family Searches

 

One controversial and much-discussed, though unlitigated, use of forensic DNA databases is to compare crime scene DNA to a database and, in the absence of a clear match, look for matches sufficiently close as plausibly come from relatives (usually fathers or sons) of the person in the database.  As the Supreme Court notes, the Maryland statute forbids such searches. California’s statute does not and, in fact, California authorities have used family searching on occasion, once to great fanfare in their arrest of the “Grim Sleeper.”

The Postures of the Challengers

 

Oddly, the two cases testing that law differ from Maryland v. King in another way – the King case is the obvious challenge.  King was convicted of a crime for which he became a suspect because his DNA profile was put into the database as a result of an arrest, not a conviction and he claims that unconstitutional taking of his sample taints that conviction.  In Buza, the defendant is directly appealing his (misdemeanor) conviction for refusing to provide a sample; in Haskell, the plaintiffs are not appealing any convictions (they were never even formally charged) but are suing under Section 1983 for violation of their constitutional rights.  I don’t think this makes the constitutional arguments meaningfully different.

Weighing the Distinctions

 

So how good are these distinctions? Or, put another way, how likely is it that either the Ninth Circuit en banc panel or the California Supreme Court will use these differences to distinguish Maryland v. King and strike down the California statute under the Fourth Amendment (successfully)? The answer, I think, is “low”, but lower for some of the distinctions than others.

The Qualifying Crimes

Maryland’s statute applies to burglaries, crimes of violence, and attempts at either.  California’s applies to felonies.  The Supreme Court talks of “serious crimes.”  A court could say that “felonies” include a lot of crimes that are not “serious,” especially in California where a fair number of crimes are “wobblers” that the district attorney can choose to charge as either a misdemeanor or a felony.  The problem with this argument is that the courts certainly do not want to try to define, bit by bit, which crimes are “serious enough” to allow pre-conviction collection of DNA.  To say that some felonies are not sufficiently serious requires a court to get serious about what it means by “serious,” which will not prove easy.  If you want an easy to follow line, the line between felonies and misdemeanors seems very plausible. This is not an attractive way to distinguish the constitutionality of the Maryland and California statutes.

Interesting, Justice Scalia, at least, seems to think none of this will matter. He argues that the “serious crime” idea in the majority opinion needs must collapse.

The Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver. The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for “serious offense[s].” Ante, at 28; see also ante, at 1, 9, 14, 17, 22, 23, 24 (re­peatedly limiting the analysis to “serious offenses”). I cannot imagine what principle could possibly justify this limitation, and the Court does not attempt to suggest any.  If one believes that DNA will “identify” someone arrested for assault, he must believe that it will “identify” someone arrested for a traffic offense. This Court does not base its judgments on senseless distinctions. At the end of the day, logic will out. When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, “We can find no significant difference between this case and King.” Make no mistake about it: As an entirely predictable conse­quence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.

This shows touching faith in the Supreme Court’s commitment to logical consistency (and one might include Justice Scalia in such a snarky comment).  One of the great things about being the Supreme Court is that you don’t have to be logically consistent – you can draw the lines where you want. This is particularly true if, like most justices but not (usually) Justice Scalia, you believe in “balancing tests,” where the seriousness of the alleged crime is weighed with the seriousness of the intrusion.  I have no trouble seeing the Supreme Court saying, in a future case that traffic offenses are not sufficient – and Justice Scalia’s diatribe on this point could actually have been intended to make such a result more likely.  In any event, if Justice Scalia were right about speeding tickets, the California statute is certainly not meaningfully distinguishable from Maryland’s.

 

The Time of the DNA Activity

This distinction is more promising.  Maryland allows immediate collection of a DNA sample after arrest, but does not allow analysis of the DNA or posting to the database of the results of that analysis. Thus, no arrestee’s DNA will be analyzed (let alone his profile put in the database) until some judicial (not just police) officer decides there is probable cause to believe the arrestee committed the charged offense. California has no such requirement.

Such a requirement is attractive.  It avoids the possibility of DNA being taken from people for whom there was no probable cause to arrest.  It also avoids the tactical use of arrests for the purpose of DNA collection – it has been alleged that sometimes the police have arrested political protesters solely for the purpose of getting their DNA with no intention to change them for a crime.  The two named plaintiffs in Haskell were never formally charged with any crimes and one of them alleged that she was told she would not be charged with any offense if she quickly gave a sample, which she did.  Justice Kline, in the careful, thoughtful, broadly researched and now-depublished (but still available) opinion of the California Court of Appeals in Buza, made much of the fact that California law did not require any judicial determination of probable cause, citing several other courts that had similar concerns.

If I had to draft an arrestee DNA collection statute, I would include Maryland’s requirement for a judicial finding of probable cause before use of the DNA sample.  But is that required by the Fourth Amendment?  The Supreme Court’s opinion in King does not provide much support for that position.

In describing the workings of the statutes, the Court says

Once taken, a DNA sample may not be processed or placed in a database before the individual is arraigned (unless the individual consents). Md. Pub. Saf. Code Ann. §2-504(d)(1) (Lexis 2011).  It is at this point that a judicial officer ensures that there is probable cause to detain the arrestee on a qualifying serious offense. [emphasis added]

And the Court regularly talks not just about arrests but about arrests supported by probable cause. It seems clear the Court would not find constitutional mandatory DNA collection when it followed an arrest not supported by probable cause – but does that mean it thinks someone other than the arresting police officers (i.e., a judicial officer) should be required to find that there is probable cause?

I think not.  For one thing, in talking about the fingerprint analogy and the various things the police should be able to do incident to arrest and booking, the Court never says or implies that any of those cannot be done before arraignment – it includes the DNA work in that category of actions.  As the Court says, without mentioning arraignment, the “expectations of privacy of an individual taken into police custody ‘necessarily [are] of a diminished scope.’”   And, finally, the penultimate sentence of the Court’s opinion reads

When offices make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a check swab of the arrestee’s DNA is like fingerprinting and photograph, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

There is no hint in that statement of an important role for a judicial determination of probable cause before allowing processing of the DNA. And that sentence certainly looks as though the Court intends it to summarize its holding – the only sentence that follows it is “The judgment of the Court of Appeals of Maryland is reversed.”

Now, in a subsequent decision, the Supreme Court could certainly say that it had not considered the value of the requirement of a judicial finding of probable cause in this case. After all, the Maryland statute required it and so no one was arguing about it.  (The dissent does not mention it except as an example of the slowness of actually getting DNA results.)  A future Supreme Court could distinguish the California statute from Maryland v King without difficulty – another example of why it is good to be the Supreme Court.  But how comfortable should a lower court be in holding that this distinction is constitutionally vital? Not very.*

Expungement

The Maryland statute provides automatic expungement; California requires the “not-convicted” person to jump through various procedural hoops.  Again, if I were writing such a statute, I would prefer the Maryland approach.  (It would be interesting to know how many ultimately “not-convicted” arrestees whose DNA was taken in California have, in fact, taken the steps needed to get their DNA expunged – I would guess only a tiny percentage.)  But is this constitutionally required?

There is no evidence in the Supreme Court opinion that it is.  The expungement provisions are mentioned when describing the Maryland statute and never thereafter.  The dissent does not mention them at all. Yes, they are a difference between the two statutes and one that might seem important, but anyone arguing that position will find no real help in the Court’s opinion.

Family Searching

 

Maryland prohibits family searching; California allows it.  But to make that into a constitutionally significant distinction, a court would first have to establish that family searching is illegal, immoral, and fattening – or, at least, unconstitutional. No court has done that so far and the commentators are mixed.  (My own published opinion is that such searches are, in some ways, troubling but probably constitutional.)  A court that wanted to press this distinction would further have to argue that this unconstitutionality is so bad that it infects a DNA collection statute, whether or not the samples collected from arrestees were used for such a purpose.   After all, why not just let those caught as a result of family searching make this argument?  The family searching argument seems several bridges too far.

So, What Will the Ninth Circuit and the California Supreme Court Do?

 

The best answer to that, of course, is “search me.”  [Pun intended.]  Predicting court decisions is a fool’s game – but I’ll be foolish, just this one time.

On June 6, the ACLU asked the Ninth Circuit en banc panel to permit additional 2,500 word briefs on Maryland v. King, to be filed within 30 days. I am confident it will argue that the California case is constitutionally different.  I suspect the court will grant the briefing request (I would).  It might even order additional oral argument on this issue.  But will it follow King or distinguish it?

In terms of likelihood of being reversed, distinguishing King seems dangerous.  The least weak distinction is that a judicial officer’s confirmation of the probable cause.   As noted above, it is a plausible distinction for a subsequent Supreme Court to make, but not necessarily for a lower court.  The chance of reversal, even summary reversal, is not small – it is possible that one or more justices in the King majority would switch (though that leaves them open to the reproach “why didn’t you say something about this at the time?”), though it is possible that some of the dissenting justices would not support such a distinction.  It is hard, for example, to see how it would make a difference to Justice Scalia.

The Ninth Circuit has, historically, been willing to risk reversal by the Supreme Court.  (To say the least.)  This particular en banc panel has eight judges appointed by Democratic presidents and only three appointed by Republican presidents, a rough but decent measure of “liberal”/”conservative” views.  One of the Republican appointees, Chief Judge Kozinski, is more libertarian than conservative and has already expressed, in an earlier en banc case (United States v. Kincade), his own deep unhappiness with mandatory DNA collection.  If any panel would risk it, this one might.  My own guess, though, is that they will not, though may note that the Supreme Court might be interested in clarifying the importance of the “judicial officer” distinction. (I would expect some separate opinions, however, although whether concurring or dissenting I cannot guess.)

Buza has been on hold at the California Supreme Court awaiting the King decision.  The California Supreme Court is generally more conservative than the Ninth Circuit (and certainly than this en banc panel of the Ninth Circuit).  It seems to me that they are even less likely than the Ninth Circuit to try to distinguish King.

One reason for that, though, is that California Supreme Court justices concerned about arrestee DNA collection have another bow to their string – the California Constitution.  This was not available to the Ninth Circuit, but the California Supreme Court, completely consistently with the U.S. Supreme Court’s King decision, say that the California statute meets the Fourth Amendment’s standards but violates the California Constitution, particularly its vague guarantee of a right to privacy.

The California constitutional issues were raised to the California Court of Appeal, but, in light of its decision on the Fourth Amendment, it expressly did not reach them.  The California Supreme Court could reversed the Buza decision and remand it back to that court for consideration of the California constitutional issues. I suppose it could also ask for additional briefing on the California issues and decide those issues now. I do not know enough about how the California Supreme Court interacts with its lower appellate courts to be confident about how it will proceed, but my best guess is that it will want to hear the lower court’s views, after briefing and argument by the parties, on this issue before plunging into the question itself.

Bottom line – I think the California statute will probably be upheld, at least for now.  The California Supreme Court is unlikely to try to distinguish the King decision on Fourth Amendment grounds; the Ninth Circuit might like to do so, but it would be taking a serious risk of a summary reversal.  In the longer run, the California Supreme Court may or may not strike it down on state constitutional grounds.  I suspect not, but I don’t know enough about the relevant California constitutional law to make a very informed guess.

Hank Greely

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* One might also try to argue that the Supreme Court already implicitly rejected that argument, because it cites the Court of Appeal decision in Buza, where the argument is strongly made, as one of the cases upon which the Maryland Court of Appeals relied in its (ultimately) incorrect decision.  This kind of second or third-hard disapproval of an argument in a case seems fairly weak in general, but is particularly bad argument here.  Although the Maryland court did cite and rely on Buza, it did not focus on the judicial officer argument in Buza for the very good reason that Maryland has a judicial probable cause requirement – that argument in Buza did not apply to the Maryland statute.