Haskell v. Harris – First Thoughts on the Re-Argument En Banc

Back in June, a few days after the Supreme Court decision in Maryland v. King, I put up a long post on the possible ways California’s law requiring DNA “donation” from people arrested but not yet convicted of crimes might be distinguished from the Maryland law upheld by the Supreme Court.  I followed it with a few shorter ones, here, here, and sort of, here.  Today the Ninth Circuit heard re-argument, en banc, of Haskell v. Harris, the federal court challenge to the California statute. (A parallel state court suit, People v. Buza, was drop kicked by the California Supreme Court back to the lower appellate court for it to reconsider in light of Maryland v. King.  As far as I can tell, nothing further has happened yet in that case.)

Happily, the Ninth Circuit decided to live stream this oral argument, making it available freely over the web to anyone interested. I watched the live stream and tweeted during it.  Now I want to use this blog post to get down my first reactions, staring with four qualifications.

Preliminary Throat Clearing

The first thing to say is trite but oh so true – you just can’t be sure how a judge is going to vote based on what she or he says in oral argument.  Well, sometimes you can be almost sure, but they really do often surprise you.

The second thing to say is to thank the Ninth Circuit for live streaming the oral argument of this fascinating case (along with the other en banc arguments this week).  It would be nice if the live stream hadn’t skipped the first few (how many?) minutes of the plaintiffs’ argument and hadn’t proceeded in fits and starts for the next ten minutes or so – but it would be churlish to complain about it.  It was great that the Ninth Circuit is experimenting with ways for people to see the third branch of government at work and I sincerely appreciate what I got. So I’ll just note that it wasn’t perfect and expect that the video and Internet folks for the court will do better next time.  Plus, this gives me an excuse for misinterpreting some of the argument – “Oh, that must have been in a part where the feed was bad.”

Third, I hope, but can’t guarantee, that I got the judges’ identities correct.  I couldn’t read the nameplates (if any), wasn’t always entirely sure who was talking, and didn’t get confirmatory DNA from any of them.

And fourth, I thought each of the lawyers – Michael Risher (SLS grad) of the ACLU for the plaintiffs and Enid Camps, Deputy Attorney General (and Boalt grad) for the state – did a fine job.  Eleven judges is a lot to keep track of; with few exceptions I thought the lawyers grasped the judges’ points and did the best with them they could.  Very professional.

The Argument

So, those caveats caveated, how do I read the tealeaves that are this oral argument?  My current bottom line is . . . I don’t know. I could see them punting, reversing, or affirming, probably in that order of likelihood.  Here’s why.

I think a clear majority of this panel would like to rule broadly for Haskell and her co-plaintiffs.  Only Judge Milan Smith, who wrote the panel opinion upholding the California law, consistently asked questions and made comments that seemed to support the constitutionality of the law. I think that Judge Rawlinson only asked one short question during the worst of my problems with streaming. I think her question attacked one of the plaintiffs’ arguments. Judges Gould, Watford, and Randy Smith did not, I believe, speak.  The other six judges – Chief Judge Kozinski and Judges Pregerson, McKeown, Fisher, Paez, and Tallman – all seemed to me to be very concerned about DNA collection on arrest.  And they are enough for a majority even if all the rest voted the other way

The Meaning of Maryland v. King

But, of course, each was also concerned about the need to stay within the precedent the Supreme Court set with Maryland v King.  The judges talked about all three main distinctions between the cases – California’s failure to require a judicial determination of probable cause before analyzing the DNA, the absence of automatic expungement in California, and California’s coverage of “all felonies” instead of specific serious crimes.  I think it is fair to say that both the judges and Risher spent most time and energy on the absence of a judicial determination of probable cause.

At various times different judges came back to the relationship between the facts of the Maryland law and the breadth of the Supreme Court’s holding.  It was encapsulated for me when Judge Pregerson asked Camps why the Supreme Court decision kept emphasizing the potentially distinguishing parts of the Maryland law and Camps kept insisting that they didn’t emphasize them.

It is a real, and hard, question.  The Supreme Court opinion, by Justice Kennedy, mentions the judicial ascertainment of probable cause, the mandatory expungement, and the fact that Maryland only covers “serious” crimes.  Points for the plaintiffs. But the opinion never says those are important to its decision. It mentions the expungement point only in passing, spends little time on the judicial determination, and, although it uses the words “serious crimes” frequently, never makes it clear how important that is, let alone give any idea that any crime denominated a felony might not be “serious.”  Points for the state.

As Camps noted, the Justices heard a lot about the California statute and California cases in the arguments and briefs of the Maryland case.  Her implication – they knew they were making law for the California statute as well as the Maryland one.  But the other view, that if that’s they wanted to do, they should have made it clear, also has merit.  One judge (Kozinski?) said that Justice Kennedy writes careful opinions; he’s not usually going to expand beyond the facts before him.  (I hope I’m right that it was Kozinski who said that, as he clerked for then Ninth Circuit Judge Kennedy right out of law school.)

There’s surely no mandate in the Supreme Court opinion to view any or all of those three differences as constitutionally significant, but differences they are. And they seem more relevant than, say, the parties’ first names or the day of the week arrests took place. It isn’t crazy that they might be legally significant distinctions, but neither is it clear.  I did think Camps reached a bit too far in saying the Court clearly wanted to make a national decision, not a “one state” decision.  Yes, the Court did acknowledge that its decision had ramifications beyond the Maryland statute, but it doesn’t make the Fourth Amendment mean different things in different states, as Camps one point tried to argue, just because some differently written state laws do and some do not violate the Fourth Amendment.

The Judicial Determination of Probable Cause

The “judicial determination of probable cause” argument is probably the strongest of the possible distinctions.  Maryland required some such determination before the DNA, which could be collected earlier, could be analyzed or checked or put into a database. Risher also conceded that the state could take the DNA before such a determination as part of the administrative simplicity afforded by the booking process, but urged that Maryland’s process was constitutionally required. And there is some appeal to the idea that a person’s DNA profile couldn’t be used in a criminal database without anything more than the police – not a court – thinking there was probable cause for an arrest.

The response was “we don’t do that with fingerprints and the Court said DNA was like fingerprints.”  To which the riposte was a) the Court didn’t say DNA was like fingerprints in all ways, and b) DNA tells you much much more than fingerprints.  There are two problems with the second answer. First, it doesn’t tell you as much as people think it does – I believe it was Judge Pregerson who said it could tell the police everything about your family, your health, and your mental health.  Given the several decades of genohype we’ve all experienced, that’s an understandable belief, but it really isn’t true.  And it especially isn’t true for the CODIS markers.  (David Kaye of Penn State and I filed an amicus brief in Maryland v. King, “in support of neither side,” pointing out the limited information that the CODIS markers can provide.) But the second reason seems to me even more important.  The same argument about the power of DNA was made in Maryland v. King and dismissed on the ground that there were statutory protections against such misuse.  If statutory protections (and possibly no history of abuse, which is also true) are all you need to trump this personal privacy argument, the California statute has those, too.

Then there was another complication.  Risher argued California couldn’t constitutionally analyze or use the DNA collected at booking unless or until there had been some such judicial determination, which he seemed to think would necessarily happen (or not, leading to release) quickly.  This point seemed to experience some collisions with the realities of California police and judicial practice during the oral argument.  Everyone agreed that someone arrested in California cannot be detained for more than 48 hours without a judicial finding of probable cause, but apparently you can be arrested, released on bail set not be a real judge but by a county-adopted schedule, and still be under the court’s authority for some (indefinite?) period of time.  That didn’t get fleshed out as much as I would have liked, but it raised the question whether there was a nice clear time in California where a judicial determination of probable cause had to be made.

Procedural Issues

At one point a judge (and I’m not sure which one) raised the question whether Ms. Haskell had petitioned to have her DNA, and DNA records, destroyed, as the California law allows.  Risher took this as, and argued against it as (convincingly, I thought), an exhaustion requirement that should not be applied. Other judges then pushed the absence of mandatory expungement as a substantive flaw in the law.

The bigger procedural issue was raised, I think (and certainly pushed), by Chief Judge Kozinski.   The plaintiffs brought a class action but some of them were later subject to a judicial determination of probable cause.  As to that argument and to those class members, Maryland v. King, he noted, was determinative. They couldn’t get any relief.  This appeal was from the district court’s denial of a preliminary injunction; why not, Kozinski asked, affirm that denial as within the district court’s discretion and send it back for that court to sort out whether any more narrowly defined class should get relief.

Risher was not excited by this, at least as stated.  He agreed that the class needed to be narrowed, but said the Ninth Circuit needed to send it back with a clear statement of the constitutional rule the lower court should apply in narrowing the class.  It seemed to me he was worried about the possibility that the circuit would dump the whole mess back in the district court, just leading, as he put it, to the constitutional issue coming back to them after a few more years.  (As the plaintiffs brought this suit in October 2009, over four years ago, I can see why the prospect of a few more years of delay might not be exciting.)

So, What Do I Think It Means?

That I’ll be watching with interest to see the outcome?

Judge Fisher (full disclosure – a former law partner of mine) may have best captured the essence of this argument when he asked Camps “Are you going to speculate on what Justice Kennedy was thinking?”  And in fact, that may be what all of these judges now have to do.

The Maryland v. King decision was five to four, with Justice Kennedy writing a somewhat cryptic decision, and, I suspect, getting the assignment at least in part because he had the middle position. (If you aren’t sure you can hold a majority together, giving the opinion duty to the wobbliest justice can sometimes be an effective strategy.)  The four dissenters seemed firm, with Justice Scalia nearly vowing to fight this decision till his death or its, whichever comes first. Will Justice Kennedy be tempted by the requirement of a judicial determination of probable cause as a middle ground?  That’s the question one has to answer in figuring out what the Supreme Court would do with this case – and that is, in essence, “speculat[ing] on what Justice Kennedy was thinking.”

It’s not entirely clear, though, that that’s the task of these judges, which gets to some of the deepest questions about the proper role of a judge.  Should a lower court judges rule as they think their higher courts would rule, or should they rule as they think is right, to the extent the higher court’s precedents give them the space to do so? And there often is such space, areas where the higher court’s past cases don’t definitively decide the issue, allowing some discretion by the lower court. If some of these eleven judges think the California statute should be unconstitutional, but that five justices of the Supreme Court (effectively, in this case, Justice Kennedy) would – or would be likely to? – Disagree with them, what is their duty?  Some may won’t need to answer that.  They will think that the statute is both constitutional and that the Supreme Court will so find it; others may think that the statute is unconstitutional and the Supreme Court (Justice Kennedy) will find it so.  But this case could test some bedrock issues of the judicial role for judges whose answers to those two inquiries are discordant.

So what’s going to happen?  Beats me.

One possibly attractive option, mentioned by Chief Judge Kozinski, is to punt it back to the district court – in this case, Judge Charles Breyer, brother of Supreme Court Justice Stephen Breyer – to figure out an appropriate class and perhaps to explore more closely some of the ways people proceed through the California criminal justice system to see when and how the first judicial determination of probable cause is made in felony arrests.  That could be done without expressing a view on the underlying constitutional question.

A second option is to hold that the California statute is unconstitutional, probably on the “judicial determination of probable cause” ground, assisted by the lack of any automatic expungement.  This would probably be coupled with a remand to get the class right.  The state would, no doubt, seek review from the Supreme Court (through getting four votes from Justices for a writ of certiorari, or “cert.”).  The majority in Maryland v. King has enough votes to grant cert. and so do the four dissenters.  Whether either side would do so without being confident of Justice Kennedy’s vote is unclear but these issues of possible loopholes in Maryland v. King are going to come up.  One or the other set of four justices (the four that are most confident of success, I’d guess) seems to me likely to figure that it is better to answer them soon.

And the last option I see is to say, “more in sorrow than in anger,” that Maryland v. King covers the California case, the distinctions don’t make any difference, and the Ninth Circuit recognizes that the Supreme Court is always right even when it isn’t.  In that case, the plaintiffs will seek cert., but will only get it if the dissenters think they have a good chance of securing Justice Kennedy.

Now I’ll speculate.  I think the first and second options seem most likely to me – maybe 40 percent to 45 percent each.  Too many of these judges seemed genuinely concerned about the statute – and there is enough leeway in the Maryland opinion – to make me think they will surrender.  I think they are slightly more likely to send it back with a constitutional holding than without one, depending on just how willing six judges, a majority of this panel, are to risk a Supreme Court reversal.

I do think whatever happens won’t happen soon. I will be surprised if there aren’t at least four separate opinions in this case, with at least one staking out each of the three positions I laid out above.  Although the first argument of this case took place two months before the Supreme Court granted cert. in Maryland v. King, and hence the judges may have started writing opinions, I wouldn’t have put a priority on writing up this case while cert. was still pending – and any opinions now would have to deal extensively with the Supreme Court’s opinion.   I’m guessing sometime in the summer for a decision in this case.  (But that is the summer of 2014.)

However this court decides the case, what will the Supreme Court do?  Ask Justice Kennedy, not me . . . though I would note that by the time this case gets to the Supreme Court, it may not be made up of the same nine justices.  I’d be surprised if it got back to a hearing (assuming cert. were granted) before the spring of 2015 and it could push back into the 2015-16 term.

One last point – for Californians, the tale I have told could all be “sound and fury, signifying nothing.”  People v. Buza is still out there.  Whatever the United States constitution says about this collection, the California constitution might be held to forbid this collection.  After all, California’s constitution, unlike the federal constitution, has an express right of privacy.  With what little I know about the California Supreme Court, I think that’s unlikely, but not impossible. And the district court of appeal to which the case has been sent did initially hold, in an lengthy opinion by Presiding Justice Kline, that this did violate the Fourth Amendment, largely because of the lack of a judicial determination of probable cause.  That decision expressly reserved questions under the federal due process clause and the California constitution’s right of privacy – “Appellant additionally claims the statute violates his rights under the due process clause of the Fourteenth Amendment and his right to privacy under article I, section 1, of the California Constitution. In light of our resolution of the issue under the Fourth Amendment, it is not necessary for us to address these additional claims.”  So neither this Ninth Circuit decision, nor an eventual Supreme Court decision on it, will necessarily decide whether California police can collect, and use, DNA samples from people arrested of felonies without further action.

Sorry this is so long.  I wanted to get it out quickly and didn’t have time to make it shorter (stolen from a line variously attributed to Blaise Pascal, Voltaire, Benjamin Franklin, Mark Twain, Oscar Wilde, and Madame Curie.)

Hank Greely

3 Responses to Haskell v. Harris – First Thoughts on the Re-Argument En Banc
  1. Based upon my 30 years experience as an attorney handling criminal trials and appeals, there is no doubt in my mind that the King majority set for a bright-line rule in the penultimate sentence of their opinion.

    That rule is as follows: “When officers 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 cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

    This rule simply requires (1) an arrest based on probable cause, (2) for a “serious” offense, and (3) the in-custody detention of the suspect. If each element is met, the police may take a cheek swab of the suspect’s DNA and analyze its 13 CODIS loci.

    When it comes to the Fourth Amendment, the Court has historically sought to set forth clear, bright-line, rules so that cops, attorneys and judges know exactly what the government can and can’t do.

    It is also clear that the dissenting justices in King recognize that the majority’s penultimate sentence sets forth a bright-line rule, and the only issue in future cases will be whether or not the arrest was for a “serious” offense.

    Whether or not a particular arrestee-DNA statute provides for expungement is, under the bright-line rule, irrelevant to the right of the police to take and analyze the cheek swab DNA. If a suspect is exonerated and the government refuses to remove his DNA from the database, he can seek relief in the courts. But that issue is irrelevant to application of the majority’s bright-line rule.

    The bright-line rule also doesn’t require a judicial finding of probable cause before DNA can be taken and analyzed. A plain reading of the majority’s penultimate sentence makes this clear as the language authorizes the taking and analysis upon bringing the suspect to the station for booking into custody.

    A judicial determination of probable cause is not required during the first 48 hours that a suspect is held in custody. Thus, he will booked and his DNA taken and, in some instances with the advent of Rapid-DNA, analyzed well within the 48 hour window.

    In California, after a suspect is booked and DNA is obtained, the arresting officer will complete a “probable cause” declaration. Within the first 48 hours of custodial detention, this declaration will be reviewed by a judge and the suspect will be arraigned on formal charges filed by the prosecutor.

    If the judge determines that the arrest was not supported by probable cause, under the King majority’s bright-line rule, the government could not analyze the suspect’s DNA. But if that analysis had already taken place before the “no probable cause” determination, it would presumably be the “fruit” of the unlawful arrest and could not be used to prosecute the suspect for the previously unsolved crime to which it was linked.

    If the suspect is booked into custody and his DNA is obtained, but he is released from custody (on bail or on his own recognizance) before the expiration of 48 hours, he is entitled to a preliminary examination (where a judge determines if there is probable cause to believe that the suspect has committed the charged crime(s)) with 10 days. Under the King majority’s bright-line rule, the government does not have to wait until the preliminary examination (most of which are held far beyond the 10 day limit with the out-of-custody defendant’s consent) to analyze the DNA to determine if it is linked to an unsolved crime. But, as in the case of an in-custody suspect whose arrest a judge determines (within the 48 hour window) was not supported buy probable cause, if the judge at the preliminary examination determines that probable cause does not exist, the results of the DNA analysis linking the suspect to an unsolved crime could presumably not be used against him in the prosecution of that crime.

    When all is said and done, there is only one issue for the Ninth Circuit panel to decide: What is a “serious” offense under King? Does that term include all felonies, like California law provides? Or does it only include certain violent felonies, like the felonies involved in King?

    In my opinion, at a minimum, “serious” crimes includes all felony arrests, as all felonies have a potential punishment of at least one year in prison.

    Finally, with respect to Buza, I doubt that the court will interpret California Constitution’s right to privacy to prohibit what the King majority’s bright-line rule permits.

    Since the passage of Proposition 8 (“The Right To Truth In Evidence” Constitutional Amendment), California appellate courts, especially the California Supreme Court, rarely interpret the California Constitution to provide greater protection than the Supreme Court provides under a similar provision of the Federal Constitution.


  2. Thanks for the excellent comment on the case, and my blog post.

    I think your reading that the Supreme Court opinion is set a bright line rule is most likely correct, but . . . it did seem to me a bit odd that Justice Kennedy didn’t write it a bit more conclusively. He could have closed off the loopholes, granted at some cost in deciding, or opining on, issues not immediately before him but at some gain in clarity and avoiding future litigation (like this re-argument). It makes me wonder whether he was a soft yes and might turn the next time. (Not that Justice Scalia’s dissent would necessarily have won Justice Kennedy’s good will!)

    Given that the opinion did not expressly close off those avenues, I don’t think it would be unjudicial for Ninth Circuit judges to vote that one or more of the distinctions is relevant – but they’d be running a serious risk of being reversed. It seemed clear that some would like to. Do you think it would flat out “wrong” for them to accept the judicial determination argument = not “wrong as in the poorer side of the argument,” but “wrong as in clearly flouting precedent”?

    Oddly, the seriousness of the crime, though one of the three most likely distinctions, got very little attention at the hearing, though at least one judge made noises about how some felonies might not be very serious. I can’t imagine that the Supreme Court wants to get into the business, or encourage other federal courts to be in the business, of deciding whether crimes states are willing to call felonies are “serious.”

    As a matter of California practice, though, I wonder what will happen with wobblers – crimes that could be charged as either misdemeanors or felonies? I don’t know much about it – would the arresting police have to decide at that point how he or she thought the crime was going to be charged?

    As to Buza, I agree that the Cal Supreme Court seems unlikely to be sympathetic. (I said “With what little I know about the California Supreme Court, I think that’s unlikely, but not impossible.”) But the appellate court and Justice Kline might bite on the California argument, forcing the Cal Supreme Court – at some point in the next few years – to decide.

    Anyway, thanks for the very useful comment.


  3. I believe that Kennedy wrote his opinion with some wiggle room to keep Breyer on board. Kennedy’s position in Florence convinces me that he was not the “soft” yes in King.

    In contrast, Breyer’s dissent in Florence leads me to conclude that he may not go along with arrestee-DNA statutes that allow for collection and analysis in cases involving non-“serious” crimes. Alito and Roberts, in Florence, also indicated that they were concerned about permitting strip searches of persons arrested for minor crimes who are not placed in general population.

    With that background in mind, I am fairly confident that the King majority used the term “serious” offense in order to limit the reach of its holding. (Although Scalia believes that it will prove to be no limit at all.) Ultimately, it will be up to the Court to define that term. Until then, lower courts, including the Ninth Circuit, will be stuck with that task.

    I don’t think that the Ninth Circuit would be “clearly flouting precedent” by holding that a judicial finding of probable cause is required before the DNA sample could be analyzed. But, for the reasons set forth in my earlier post, I do believe that such a holding would be contrary to the majority’s bright-line rule. And, therefore, would be subject to a summary reversal by the Court — something the Ninth Circuit has been the “victim” of many, many times over the last several decades!

    Regarding wobblers, I believe what matters is whether the suspect was arrested for a felony or a misdemeanor, regardless of what a prosecutor ultimately decides to charge, if anything. I believe that the King majority (assuming they are all still on the bench) will ultimately decide that all felony arrests are “serious.” I am not sure that Breyer would extend that rule to misdemeanor arrests, thereby placing in jeopardy the federal arrestee-DNA statute that applies to misdemeanors.

    In any event, as a practical matter, at least in California under “realignment,” many times a person committing a misdemeanor, such as shoplifting, is not brought to the station to be booked and detained in custody (as the King majority’s bright-line rule requires as a prerequisite to DNA collection and analysis).

    I was surprised at how little time the Ninth Circuit devoted to what I see as the pivotal issue in the case: What is a “serious” offense?

    The (1) expungement, (2) judicial finding of probable cause, and (3) does he have to be charged before the DNA can be analyzed questions, while interesting academic subjects, were not necessary in light of what I see as a clear bright-line rule that, in Haskell, only leaves the “serious” offense issue open to debate.

    Thanks for your covering this case and your insightful, thought-provoking commentary. I, for one, really enjoy and appreciate it!



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