Breaking News – Ninth Circuit En Banc Opinion "Affirms" Haskell v. Harris

Just released, the Ninth Circuit en banc, has affirmed the ND Ca decision (by Judge Charles Breyer) upholding California’s statute requiring people arrested for [corrected – thanks, Paul!]  any felony to provide DNA samples for inclusion in the state (and ultimately federal) database.

Sort of.

Ten of the 11 judges on the en banc panel said the plaintiffs challenged this on its face, but it is clear after the US Supreme Court’s June 2013 decision in Maryland v. King that this statute is not unconstitutional with regard to all people arrested for felonies in California.  But here’s the crucial (and final) paragraph of the four paragaph per curiam opinion:

Plaintiffs ask us to enter a preliminary injunction applicable only to a smaller class consisting of individuals arrested for certain felonies that are not, in plaintiffs’ view, covered by Maryland v. King. But we are a court of review, not first view: We are limited to deciding whether the district court abused its discretion in denying the injunction plaintiffs sought. See Bull v. City & Cnty. of S.F., 595 F.3d 964, 967–68 (9th Cir. 2010) (en banc). If plaintiffs believe they’re entitled to a preliminary injunction as to a smaller class, they are free to seek it from the district court and we will review it if and when it is presented to us.

What does that mean?  The plaintiffs, on the en banc re-argument after the Supreme Court decision, urged three ways in which the California statute was different from what the Supreme Court had upheld in Maryland v. King:

What might the dt ct do?  The plainitffs argued for three differences from Maryland v. King:

1.     Maryland has mandatory expungement of the DNA profile and destruction of the sample if there isn’t a conviction; California doesn’t.

2.    Maryland covered only burglary and assault and attempts at the same; the S Ct talked about “serious crimes,” California covers all felonies

3.    Maryland required some judicial finding of probable cause for arrest before the sample could be analyzed or put into the database (though it could be taken earlier); California doesn’t.

I think this decision rules out the first distinction – no California arrestees get mandatory expungement.

I think it clearly leaves open the chance that the dt ct might find the “serious crimes/all felnoies” distintion constitutionally meaningful.  I think it may, but doesn’t cleaerly, leae open the “judicial finidng of probable cause.”
Some will have that judicial finding (by getting bail or a quick preliminary hearing), some won’t, but are those “certain felonies that are not . . .covered by Maryland v. King“? Maybe?  Maybe not. I think not, but I’m not sure.

So I think Judge Breyer will get to decide at least whether “all felonies” meets Justice Kennedy’s views of “serious crimes.”  I think saying it doesn’t will put federal courts in an awfully tough position – just what felonies are and aren’t “serious crimes” for purposes of the Fourth Amendment?  But courts have said stranger things.

I do think this resolution isn’t entirely unexpected from Chief Judge Kozinski’s hints at the re-argument en banc and probably (though not certainly) immunize the CA 9 from S Ct review on this, while other cases percolate up to the Court.  Here’s what I said in a blog post then:

“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.”

I now think the probable cause may or may not be as important, but the “serious crimes/all felonies” will be.

I wrote a lot in  this blog about Maryland v King and Haskell v. Harris.  You can search the blog for all the posts, but here are some of the more important ones: on Maryland. v. King, on the California aftermath, on the en banc argument.

Hank Greely