The California aftermath of Maryland v. King begins (in a small way)
Today the Ninth Circuit ordered supplemental briefs in Haskell v. Harris:
Filed order (ALEX KOZINSKI, HARRY PREGERSON, M. MARGARET MCKEOWN, RAYMOND C. FISHER, RONALD M. GOULD, RICHARD A. PAEZ, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, MILAN D. SMITH, JR., N. RANDY SMITH and PAUL J. WATFORD) The parties are ordered to file supplemental briefs on the application of the Supreme Courts decision in Maryland v. King, 569 U.S. ___ , No. 12-207 (June 3, 2013), to the resolution of this case. Appellants shall file their brief no later than 21 days from the filing date of this order. Appellees brief shall be filed within 21 days of the filing of appellants brief. Appellants may file an optional reply brief within 7 days of the filing of appellees brief. The briefs shall not exceed 2500 words.
So the briefing schedule goes out to 7 weeks from today: August 13 (unless I’m getting my business days versus calendar days confused – too long, happily :), since I litigated). No indication of additional oral argument, but I suppose that may come after the panel has read the briefs (or may not).
No word yet from the California Supreme Court on Buza.
2 Responses to “The California aftermath of Maryland v. King begins (in a small way)”
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pvineman1
The plaintiffs in Haskell were arrested for felonies before their DNA was taken. King’s holding is limited to “serious” offenses, and, factually, the predicate felony in King involved violence. California’s arrestee DNA law applies to any felony. So one question for the court will be whether all felonies are “serious” offenses within the meaning of King, or there are “serious” felonies (which would trigger the King rule) and “non-serious” felonies (that are not covered by King)?
What theories are available to the Ninth Circuit to resolve this question? Here are my suggestions:
1. Simply draw the serious/non-serious offense line by holding that all felonies are serious, but anything less than a felony (i.e., misdemeanors and infractions) are non-serious. If this is the line the court selects, the next question will be whether you look to the law of the state whose arrestee DNA law is being challenged, in this case California, to see how it classifies its criminal offenses, or whether there is another source that could be relied upon to determine if a particular offense is a felony or a misdemeanor?
If the Haskell court looks exclusively to California law than its task will be easy. Simply thumb through the applicable code and see if California has classified the offense as a felony or a misdemeanor. But if the court uses this method, it poses a number of issues.
First, it provides a state which wants to expand its arrestee DNA database with a strong incentive to redefine its offenses — relabeling many misdemeanors as felonies or “wobblers” (an offense that can be charged, at the discretion of the prosecutor, as either a felony or a misdemeanor). I guess the Haskell court can hold that only offenses that were labeled as felonies as of the effective date of Prop. 69 could qualify as “serious” offenses under King. But this would appear to unduly limit the ability of the state to create new felony offenses should the circumstances arise, and would immunize those new felonies from application of the King “serious” offense rule.
Secondly, if the Haskell court is going to simply look at how California classifies offenses, can the court also evaluate if California (in its statutes and/or case law) has differentiated between “serious” felonies and “non-serious” felonies? If the court engages in that analysis, what impact will Penal Code section 1192.7 have? That section (enacted before the passage of Prop. 69) defines “serious” felonies in order to limit plea bargaining.
Would it be an appropriate exercise of discretion for the Haskell court to (1) draw a line between felony and non-felony offenses in defining the King serious/non-serious offense line?; (2) if so, should the court simply look at which offenses California has defined as felonies (as of the effective date of Prop. 69 or as of the date an arrestee’s DNA is taken)?; and (3) if the answer to (1) and (2) is yes, can the court look to California law for a definition of “serious” felonies (as set forth in 1192.7) in order to narrow down the category of felonies that constitute “serious” offenses under the King rule?
As an alternative method of establishing the distinction between “serious” felonies (qualifying for application of the King rule) and “non-serious” felonies (not subject to the King rule), can the court not rely exclusively upon California law and, instead, determine if the felonies for which the plaintiffs were arrested in Haskell are (or would have been) felonies in other states and/or under federal statutes? In other words, looking for a national consensus (i.e., majority-rule) on the issue.
Justice Kennedy, for one, has used this methodology in his constitutional jurisprudence, especially when addressing 8th Amendment issues. Since the definition of “serious” offenses as used in King directly impacts a significant and hotly-contested 4th Amendment issue that impacts the entire nation, and is not simply a matter of non-constitutional local dimension, isn’t there a place for national consensus in the equation, instead of allowing this issue to be dictated on a state-by-state basis depending on whether a particular state defines an offense as a felony or a misdemeanor?
Can the Haskell court, instead, draw the serious felony/non-serious felony line by determining whether the particular felony is a malum in se or malum prohibitum crime, with the former being “serious” (for purpose of the King rule) and the latter being “non-serious”?
Lastly, can the Haskell court simply limit King’s holding to its facts (since all holdings are so limited) such that only “violent” felonies are “serious” offenses? This might be the easiest, most attractive solution. It would essentially being stating that we (the Ninth Circuit) recognize that drawing the line between “serious” and “non-serious” felonies will have national consequences so we will leave it to our Nation’s highest court to (hopefully in the near future) provide the answer. Given the makeup of the en banc panel, I highly doubt that we can expect such humility.
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