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“Hands Off Our DNA” Lawsuit Gets Another Day in Court

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By Michael Risher, Staff Attorney, ACLU of Northern California  

Last week the Ninth Circuit Court of Appeals said it would rehear the ACLU of Northern California’s lawsuit challenging a California law that mandates that DNA is collected from anyone arrested on suspicion of a felony. This suit is the only civil suit in the country challenging a disturbing trend toward invasive DNA collection of people who haven’t been convicted of crime.

The federal class-action lawsuit, Haskell v. Harris, was filed on behalf of Lily Haskell and three other plaintiffs who were forced to turn over a cheek swab of their genetic blueprint to police. Lily was arrested after joining a peace rally in San Francisco. Although she was released without any charges, her DNA is now stored in national databank.  

Lily Haskell and the ACLU are seeking to stop California’s policy of mandating that DNA be collected from anyone arrested for a felony, whether or not they are ever charged or convicted. The mandatory DNA collection policy is a result of Proposition 69, which was enacted by California voters in 2004 and went into effect on January 1, 2009.

Under Prop 69, anyone who is merely arrested for a felony must provide a DNA sample that will then be stored in a criminal database accessible to local, state, national, and international law enforcement agencies. Instead of being limited to serious, violent offenses, the new requirement even applies to someone accused of writing a bad check and could be used to take DNA from victims of domestic violence who are arrested after defending themselves as well as people who are simply wrongfully arrested.

It’s plain and simple: this law violates constitutional guarantees of privacy and freedom from unreasonable search and seizure. Forcing someone to provide a DNA sample without any judicial oversight violates the Constitution. Under this law, innocent Californians will be subject to a lifetime of genetic surveillance because a single police officer suspected them of a crime.

A Scientific American editorial about the lawsuit makes this clear point: “DNA is not just a technological progression from fingerprinting. It is qualitatively different. As such, it needs to be treated as more than a mere formality of a police booking procedure.” 

Background: The United States Court of Appeals for the Ninth Circuit heard the case on July 13, 2010. On February 23, 2012, a divided three-judge panel of the Ninth Circuit upheld the law. The ACLU asked for en banc review (review by the full Court). Those oral arguments will take place the week of September 17.

California

It’s Your DNA – Or Is it?

By Michael Risher, Staff Attorney, ACLU of Northern California

Forcing people to provide a DNA sample without any judicial oversight, just because a single police officer has arrested them, violates the Constitution. That’s why California’s law mandating that DNA samples be taken from all felony arrestees is facing a legal challenge from the ACLU of Northern California (ACLU-NC).

At issue is Proposition 69, a voter-enacted law which mandates that anyone arrested on suspicion of a felony in California has to hand over a DNA sample, regardless of whether or not they are ever charged or convicted. As a result, tens of thousands of innocent Californians will be subject to a lifetime of genetic surveillance because a single police officer suspected them of a crime.

ACLU-NC filed suit in federal court last year seeking to stop this invasive law that violates the Fourth Amendment. Last week, the 9th Circuit Court of Appeals heard oral arguments in the ACLU’s appeal of a lower court’s denial of a request for a preliminary injunction to halt the law while the suit continues. The appeals court hearing on July 13 showed that the court takes the privacy concerns and other constitutional issues in this case very seriously. The court clearly recognized the importance of the case, questioning both sides closely and extending the time allotted for oral argument.

Instead of being limited to serious, violent offenses, this law even applies to someone who has written a bad check, shoplifters, and people arrested during political demonstrations. And because collection occurs before any review by a prosecutor or a court, even people who are wrongfully arrested — either because of police misconduct or because the police simply had been provided with incorrect information — will be ordered to provide a sample. For example, a domestic violence victim who injured her partner in self defense might well be arrested while the police investigated her story and then released when they confirmed it, but would still have had to provide a sample.

The practice of automatically collecting DNA from people who are merely arrested ignores the presumption of innocence and blurs the line between being suspected of a crime and being convicted.

The lead plaintiff in the suit, Lily Haskell, was arrested at a peace rally in San Francisco. She was not charged with a crime and was quickly released, but not before being required to provide a DNA sample. When your DNA is taken after an arrest at a political demonstration, it can have a silencing effect on political action. Now, her genetic information is stored indefinitely in a government database.

Data from the California Department of Justice reveal that nearly one-third of the 300,000 arrests every year in California on suspicion of a felony never result in a conviction. A disproportionate number of these arrestees are people of color. Communities of color will face an even greater burden from the impact of this kind of genetic surveillance. Moreover, there are reports from Great Britain, which also takes DNA from some persons who are arrested, of police making arrests without cause simply to obtain a DNA sample to put in the country’s database.

Databanks should focus on people who have been convicted of crimes, not on those whom a single police officer thinks may have committed a crime — that is a better use of our limited resources and it’s what the constitution demands.

Meanwhile, California’s huge forensic DNA database — the third largest in the world — already faces tremendous backlogs. The resources spent collecting thousands upon thousands of DNA samples from arrestees detract from the resources that could instead be devoted to processing crime scene samples to help solve violent and serious crimes like rape, assault, and murder.

California

The Causes of Wrongful Conviction

When the innocent go to prison, the guilty go free.

Tuesday night, Stephen Colbert interviewed the 200th DNA exoneree, Jerry Miller, http://www.innocenceproject.org/news/Blog.php 

Herman Atkins spent 12 years in prison for a crime he didn’t commit–watch his story, http://www.youtube.com/watch?v=rd-5HFipAqI

Three bills in the California Legislature would help prevent the most common causes of wrongful conviction:

Senate Bill 511 (Alquist) will require the electronic recording of police interrogation in cases involving homicides and other violent felonies. 

Senate Bill 756 (Ridley-Thomas) will require the appointment of a task force to draft guidelines for the conduct of police line-ups and photo arrays to increase the accuracy of eyewitness identifications. 

Senate Bill 609 (Romero) will require the corroboration of testimony by jailhouse informants. 

The California Commission on the Fair Administration of Justice—a group of law enforcement officers, prosecutors and defense attorneys—has recommended all three reforms, http://ccfaj.org/legislation-2007.html. 

These reforms will help protect the innocent and make sure the guilty are convicted. 

TAKE ACTION: Urge your State Assembly Member to support these bills at http://www.aclunc.org/justice