California law mandates that all those arrested — whether charged with a crime or not — should submit to a cheek swab. (William Thomas Cain/Getty Images)
California law mandates that all those arrested — whether charged with a crime or not — should submit to a cheek swab. (William Thomas Cain/Getty Images)

The 9th U.S. Circuit Court of Appeals has dealt civil liberties groups a setback in their attempt to overturn California’s law on collecting DNA from anyone arrested for a felony.

An 11-judge en banc panel denied an appeal for a preliminary injunction in a class-action suit filed by the American Civil Liberties Union of Northern California. The panel rejected the appeal in light of a U.S. Supreme Court decision last year that upheld a Maryland law that’s similar, though less sweeping, than the California statute.

The state law, authorized by the passage of Proposition 69 in 2004, requires law enforcement to collect and retain DNA samples from anyone arrested for a felony offense, including attempted crimes, whether or not charges are dropped or suspects are acquitted. The DNA is then added to law enforcement DNA databases. The rationale: to make it easier for police to identify subjects and unravel unsolved crimes.

(How many arrestees is that? The most recent numbers from the state Department of Justice report 429,807 felony arrests in California in 2012. By one estimate, about a third are not convicted or are never charged. Given those numbers, you can make a modest guess that in 2012, tens of thousands of people never found guilty of a felony had their DNA taken and stored in criminal databases.)

The ACLU and supporters, including San Francisco’s Electronic Frontier Foundation, contend the law violates the Constitution’s Fourth Amendment ban on unreasonable searches and seizures — and is fundamentally different from the Maryland law — because it’s so broad and because the state keeps DNA samples on file indefinitely even if suspects are never formally charged or convicted.

But the 9th Circuit appeals panel found that last June’s Supreme Court ruling in the Maryland case undermined the ACLU’s argument:

Plaintiffs’ … challenges turn on essentially the same question: 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?” After Maryland v. King, the answer is clearly yes.

In the Maryland case, the Supreme Court ruled that DNA identification is akin to police fingerprinting — simply an extension of a routine booking procedure with the aim of identifying suspects — and that the state’s interest in effective law enforcement outweighed individual expectations of privacy under the Fourth Amendment. Maryland’s law, which had been ruled unconstitutional by the state’s own high court, is applied to a smaller set of “serious” crimes, not any felony. Maryland destroys DNA and removes it from databases when suspects are not convicted.

Judge Milan Smith, a member of the panel that issued today’s 9th Circuit ruling, wrote a concurring opinion that said the U.S. Supreme Court decision is “fatal” to the ACLU’s case and that the differences it cites between the California and Maryland laws are “illusory.”

Neverthless, the appeals ruling allows the ACLU to continue litigating its case in U.S. District Court. Michael Risher, staff attorney for the ACLU of Northern California. said it’s determining what its next steps will be.

“This ruling means our case is alive and goes forward,” Risher told KQED’s Alex Emslie. “California’s law is much broader than Maryland’s law, and the 9th Circuit wants the trial court to take a look at those differences and see which of them matter and which of them don’t.”


Dan Brekke

Dan Brekke (Twitter: @danbrekke) has worked in media ever since Nixon's first term, when newspapers were still using hot type. He had moved on to online news by the time Bill Clinton met Monica Lewinsky. He's been at KQED since 2007, is an enthusiastic practitioner of radio and online journalism and will talk to you about absolutely anything. Reach Dan Brekke at

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