>
C.
0 0

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page1 of 26

1 PETER C. MEIER (SB# 179019) petermeier@paulhastings.com

ERIC A. LONG (SB# 244147) ericlong@paulhastings.com

...•... '

2 KATHARINE CHAO (SB# 247571) katharinechao@paulhastings.com SARAH O. CHANG (SB# 257921) sarahchang@paulhastings.com

-,.. '"

3 PAUL, HASTINGS, JANOFSKY & WALKER LLP

55 Second Street

4 Twenty-Fourth Floor

San Francisco, CA 94105-3441

5 Telephone: (415) 856-7000

Facsimile: (415) 856-7100

6

MICHAEL T. RISHER (SB# 19 I627) mrisher@acIunc.org

7 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF

NORTHERN CALIFORNIA, INC.

8 39 Drumm Street

San Francisco, CA 94111

9 Telephone: (415) 621-2493

Facsimile: (415) 255-8437

10

Attorneys for Plaintiffs

11 ELIZABETH AIDA HASKELL and REGINALD ENTO,

on behalf of themselves and others similarly situated

12

13

14

UNITED STATES DISTRICT COURT

15

FOR THE NORTHERN DISTRICT OF CALIFORNIA

16

17 ELIZABETH AIDA HASKELL and REGINALD ENTO, on behalf of
18 themselves and others similarly situated,

19

Plaintiffs,

4779
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

20

vs.

CLASS ACTION

21 EDMUND G. BROWN, JR., Attorney General of California; EVA
22 STEINBERGER, Assistant Bureau Chief for DNA Programs, California Department
23 of Justice; and MICHAEL HENNESSEY, Sheriff, San Francisco County,
24 Defendants.
25

26

27

28

CLASS ACTION COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page2 of 26

1

Plaintiffs, for their Complaint in this action, allege and aver as follows:

2

INTRODUCTION

3

1. This is a facial challenge to a California statute that requires people who

4 are arrested for any felony to provide DNA samples to be analyzed and included in a criminal

5 database, without a warrant or any judicial oversight. Plaintiffs Elizabeth ("Lily") Aida Haskell

6 and Reginald Ento request declaratory and injunctive relief on behalf of themselves and others

7 similarly situated on the grounds that this law, California Penal Code § 296(a)(2)(C), violates

8 their rights under the Fourth and Fourteenth Amendments to the United States Constitution.

9

2. As of January 1,2009, California law mandates the compulsory extraction,

10 collection, analysis, storage, and dissemination for expressly law enforcement purposes of the

11 DNA of "any adult person arrested or charged with any felony offense." Cal. Penal Code

12 § 296(a)(2)(C) (hereinafter "§ 296(a)(2)(C)").1 This will result in the mandatory DNA sampling

13 from hundreds of thousands of individuals in California who have not been, and in many cases

14 never will be, convicted of any crime, and without any judicial oversight because collection

15 occurs "immediately after arrest." § 296.1(a)(1)(A).

16

3. This law, enacted in 2004 as part of Proposition 69, dramatically expanded

17 the scope of mandatory, suspicionless, and warrantless seizure and testing of DNA in California.

18 As a result, California now has the largest criminal DNA databank of any of the 50 states, and

19 one of the most expansive programs for the compulsory collection, retention, and sharing of DNA

20 data in existence anywhere. Indeed, California law enforcement officials have described

21 California's program as "[t]he third largest DNA database in the world."

22

4. Under this statutory scheme, not only is an arrestee's body tissue seized for

23 the purpose of constructing the arrestee's DNA profile - part of an individual's genetic blueprint

24 - but the State also stores the arrestee's body tissue forever so that it can conduct additional DNA

25 analysis of it in the future. Although persons who are not ultimately convicted may apply for a

26 court order to have their biological samples destroyed and their DNA profiles expunged from the

27 database, the procedures for trying to obtain this relief are inadequate. First, the procedures do

28 I All statutory references are to the California Penal Cod~ unless othelwise indicated.

-1-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page3 of 26

I not allow for timely relief. People, like the Plaintiffs in this case, who were arrested but not

2 charged must wait until the statute of limitations has run before they can even apply for

3 expungement. § 299(b)( I). This means a delay of at least three years and, in some cases, much

4 longer. §§ 799-801. Then, after they have requested relief, iunocent arrestees will face an

5 additional delay of at least six months before the court can authorize expungement.

6 § 299(c)(2)(D). Even then, any expungement petition is subject to additional procedural barriers,

7 including a right of veto by the prosecuting attorney. Finally, the court has the unreviewable

8 discretion to deny such relief even to persons who have been found to be factually innocent of the

9 crime for which they were anested. § 299(b), (c).

10

5. Section 296(a)(2)(C) mandates the seizure of and broad publication to

II local, state, and national law enforcement agencies of DNA profiles from large numbers of

12 persons as to whom the state has no more legitimate interest in such infonnation than it has for

13 any other law-abiding member of the public. The compulsory testing requirement applies to

14 persons arrested - but not even charged, much less convicted - of many offenses for which their

15 DNA has no conceivable relevance, such as the use of unauthorized signatures in a campaign

16 advertisement, writing checks with insufficient funds, accepting a bribe to throw a sporting event,

17 racing a horse under a fictitious name, counterfeiting railroad tickets, or simple possession of a

18 controlled substance, including such minor ones as codeine. See Cal. Penal Code §§ 115.1, 337c,

19 337f, 476(c), 481; Cal. Health & Safety Code § 11350. Others subject to compUlsory extraction

20 of their DNA pursuant to § 296(a)(2)(C) include:

21

•

persons who are alTested but never charged with a felony;

22

•

persons who are arrested and charged with a felony, but whose charges are

23

quickly dropped in the recognition that they al·e innocent;

24

•

persons who are arrested for a felony and are acquitted at trial and

25

detennined by the court to be factually innocent of the crime under Penal

26

Code § 851.8(e);

27

•

persons who are arrested as a result of mistaken identity, including victims

28

of identity theft;

Case No.

-2-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page4 of 26

1

•

persons, such as victims of domestic violence, who are arrested for

2

violence cOll11l1itted in self-defense and who either have the charges against

3

them dropped or are subsequently acquitted;

4

•

participants in political demonstrations and other activities who have

5

committed no crime but are nonetheless arrested in connection with broad

6

sweeps of participants by the police;

7

•

persons who are wrongfully arrested due to police misconduct;

8

•

persons who are arrested for cultivation of marijuana but against whom

9

charges are dropped or dismissed upon a showing that they were in lawful

10

possession of the marijuana for medical purposes;

11

•

persons who have been arrested for dmg possession, complete a pretrial

12

diversion program pursuant to § 1000 et seq., and thereafter have their

13

charges dismissed;

14

•

persons who have been arrested for felony drug offenses and who,

15

following successful completion of treatment programs, have had their

16

convictions expunged in compliance with Proposition 36 or other state

17

laws; and

18

•

persons who are arrested for minor offenses that can be, but rarely are,

19

charged as felonies, even when they are ultimately charged with nothing

20

more than misdemeanors pursuant to § 17(b) (California's so-called

21

"wobbler" statute). This can include, for example, offenses such as

22

second-time shoplifting, or even entering a store with the intent to shoplift

23

with no prior criminal history.

24

6. Overall, approximately one-third of the hundreds of thousands of persons

25 arrested for felony offenses in California in any given year are ultimately never convicted of any

26 crime whatsoever. Many others are convicted of nothing more than a misdemeanor. According

27 to the California Department of Justice, of the approximately 332,000 people arrested for felonies

28 in California in 2007, more than 101,000 were not convicted of any crime. Another

Case No.

-3-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page5 of 26

1 approximately 13,500 of these arrestees received only a fine or jail time without probation,

2 indicating that they were convicted only of misdemeanors. The statistics for the previous several

3 years are similar - since 1998, the number of persons arrested by California authorities on

4 suspicion of a felony has ranged from a low of267,512 in 2000 to a high of 345,415 in 2004.

5 There is no reason to think that these numbers will drop below this range over the next several

6 years.

7

7. The expansive mandatory DNA testing established by § 296(a)(2)(C)

8 violates the Fourth and Fourteenth Amendments of the United States Constitution. The statute

9 not only pelmits, but requires, broad and ongoing violations of the fundamental protections

10 afforded all persons by the United States Constitution to be secure in their persons from

11 unreasonable searches and seizures and to due process oflaw. Ignoring the clear limitations

12 recognized by the courts in upholding carefully-circumscribed DNA testing programs for persons

13 convicted offelony offenses, § 296(a)(2)(C) reaches broadly to mandate testing of hundreds of

14 thousands of people who are legally presumed innocent (and in a large proportion of cases

15 actually are innocent) of any crime at all. No justification has been identified for this program

16 beyond the generalized law enforcement interest in solving crimes other than the one for which

17 the individual was arrested. But the United States Constitution pennits this kind of law

18 enforcement interest to be pursued only in the presence of reasonable individualized suspicion

19 and (absent unusual circumstances) issuance ofa warrant on probable cause. § 296(a)(2)(C) is

20 accordingly unconstitutional.

21

8. This action is brought on behalf of persons who are required to provide a

22 DNA sample pursuant to § 296(a)(2)(C) solely as a result of being arrested for a felony. Plaintiffs

23 do not challenge the other provisions of Cal. Penal Code §§ 295 et seq., which require

24 compulsory DNA testing for persons who are actnally convicted of a criminal offense. Nor do

25 Plaintiffs challenge the lawful collection and analysis of DNA samples pursuant to a valid

26 warrant or other sufficient court order requiring DNA testing in connection with a specific

27 criminal investigation or proceeding as to which the requisite probable cause is shown connecting

28 the person to be tested with a particular criminal offense. Rather, Plaintiffs challenge the mass,

Case No.

-4-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page6 of 26

1 programmatic DNA testing of hundreds of thousands of persons - persons not convicted or who

2 are otherwise not under supervision of the criminal justice system - as to whom the long-

3 recognized Constitutional prerequisites to such searches and seizures have been established.

4

JURISDICTION AND VENUE

5

9. This action arises under 42 U.S.C. § 1983 and the United States

6 Constitution. This Comt has subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 1343.

7

10. The Defendants are all public officials of the State of California or its

8 political subdivisions. Each ofthe Defendants resides within this District and/or performs official

9 duties within the State of California. This Court, accordingly, has personal jurisdiction over each

10 of the Defendants.

11

11. Venue properly lies within this District under 28 U.S.C. § 1391(b). One or

12 more of the named Defendants perform their official duties in this District, and a substantial part

13 of the events or omissions giving rise to Plaintiffs' claims have occurred or will occur in this

14 District.

15

INTRADISTRICT ASSIGNMENT

16

12. Pursuant to Local Rule 3-2, this action may properly be assigned to the San

17 Francisco or Oakland divisions of this Comt.

18

THE PARTIES

19

Plaintiffs

20

13. Plaintiff Elizabeth ("Lily") Aida Haskell is an individual residing in

21 Oakland, California. On March 21, 2009, Ms. Haskell was arrested at a peace rally against the

22 War on Iraq in San Francisco's Civic Center. Ms. Haskell was atTested under Cal. Penal Code §

23 405a (taking a person from police custody, a felony under § 405b) and § 148 (obstructing or

24 delaying a peace officer, a misdemeanor) when she allegedly tried to free another protestor who

25 had been talcen into custody. After arrest, Ms. Haskell was taken to a San Francisco jail, where

26 San Francisco Sheriffs Department persounel demanded a DNA sample. Two sheriffs deputies

27 told Ms. Haskell that she would be charged with a separate misdemeanor if she did not provide a

28 DNA sample by swabbing the inside of her cheek. Ms. Haskell asked about access to a lawyer

Case No.

-5-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page7 of 26

1 before providing the sample. One of the deputies told Ms. Haskell that she could talk to a lawyer

2 but that she would still be charged with a separate misdemeanor for not immediately providing a

3 DNA sample. She was also told that she would not be released from jail until after alTaignment if

4 she did not provide a DNA sample on the spot and without advice from a lawyer.

5

14. No charges were ever filed against Ms. Haskell based on this alTest. No

6 law enforcement entity or personnel obtained any sort of warrant to take her DNA.

7

15. On information and belief, Defendants have analyzed or will soon analyze

8 Ms. Haskell's DNA sample, and her DNA profile has been, or shortly will be, uploaded into

9 CODIS. On information and belief, there is no other legal basis for the seizure, analysis, or

10 retention of Ms. Haskell's DNA sample other than her aITest under Penal Code § 405a by the San

11 Francisco County police as alleged herein.

12

16. Plaintiff Reginald Ento is an individual residing in Sacramento, California.

13 On or about January 1, 2009, Mr. Ento was aITested by local law enforcement officers, for alleged

14 receipt of stolen property (Cal. Penal Code § 496), specifically, outdated film cameras marked

IS "Property ofD.S. Forest Service." This offense may be treated either as a misdemeanor or as a

16 felony at the prosecutor's or court's discretion. Id. § 17(a), (b). After he was aITested, Mr. Ento

17 was detained at the Sacramento County Jail. While incarcerated, a sheriffs deputy collected a

18 DNA sample from Mr. Ento by inserting a swab into his mouth and scraping the inside of his

19 cheek. Mr. Ento did not consent to this collection of his DNA. In. fact, the deputy indicated that

20 if necessary, the DNA sample would be collected from Mr. Ento by force.

21

17. No charges were ever filed against Mr. Ento based on this aITest. No law

22 enforcement entity or personnel obtained a warrant to take Mr. Ento's DNA.

23

18. On information and belief, Defendants have analyzed or will soon analyze

24 Mr. Ento's DNA sample, and his DNA profile is, or shortly will be, uploaded into CODIS. On

25 information and belief, there is no other legal basis for the seizure, analysis, or retention of Mr.

26 Ento's DNA sample other than his aITest under Penal Code § 496 by the Sacramento County

27 police as alleged herein.

28

Case No.

-6-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page8 of 26

1

19. None of the Plaintiffs is currently incarcerated or subject to any form of

2 probation, parole, or other supervised release. Upon information and belief, none of the Plaintiffs

3 is currently the subject of a valid warrant or court order for the seizure of his or her DNA based

4 upon a finding of probable cause or any reasonable suspicion linking him or her to any crime for

5 which such DNA would be relevant evidence. Nor does any other ground currently exist (apart

6 from § 296(a)(2)(C» on which any Plaintiff may be compelled to submit a sample of his or her

7 body tissue for DNA testing and use for law enforcement purposes.

8

Defendants

9

20. All Defendants are sued in their official capacities only.

10

21. Defendant Edmund G. Brown, Jr. is the Attorney General of the State of

11 California. Under Article 5, Section 13 of the California State Constitution, he is the "chieflaw

12 officer of the State," with a duty "to see that the laws of the state are uniformly and adequately

13 enforced." This provision further grants him "direct supervision over every district attorney and

14 sheriff and over such other law enforcement officers as may be designated by law." As Attorney

15 General, defendant Brown also supervises the operations of the California Department of Justice.

16 Cal. Gov. Code § 12510. The California Department of Justice is directly responsible for

17 implementing § 296(a)(2)(C) and the state's DNA database and for ensuring that specimens are

18 collected from arrestees. Cal. Penal Code § 295(g)-(h). To fulfill this responsibility, the

19 Department of Justice has issued a number of administrative bulletins that govern local law-

20 enforcement collection of DNA samples from arrestees, as authorized by Penal Code § 295(h).

21 Therefore, all California law enforcement persounel who collect DNA from arrestees pursuant to

22 § 296(a)(2)(C) do so as agents of and in active participation with defendant Brown.

23

22. Defendant Eva Steinberger is the Assistant Bureau Chief of Forensic

24 Sciences and current director of the California Department of Justice Jan Bashinski DNA

25 Laboratory in Richmond, in Contra Costa County, California. This laboratory analyzes, stores,

26 and compares the DNA samples collected pursuant to § 296(a)(2)(C), as mandated by statute. Id.

27 §§ 295(k), 295.1 (c). On infOlmation and belief, Steinberger has, in her capacity as director,

28 responsibility for supervising functions of the Department of Justice and the California

Case No.

-7-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page9 of 26

1 Department of Justice Laboratory in implementing § 296(a)(2)(C), including, inter alia, providing

2 procedural guidance, equipment, and materials to local law enforcement agencies for the seizure

3 of body tissue; receiving, maintaining, storing, and analyzing biological samples; contracting with

4 third parties to assist with DNA analysis; and maintaining databases and databanks of analysis

5 results and other information.

6

23. Defendant Michael Hemlessey is the Sheriff of San Francisco County. Cal.

7 Penal Code §§ 295 et seq. vests in this defendant, and the other law enforcement officers of San

8 Francisco County whom he supervises, the responsibility for the search and seizure of body tissue

9 from felony arrestees pursuant to § 296(a)(2)(C).

10

CLASS ACTION ALLEGATIONS

11

Plaintiff Class

12

24. Plaintiffs bring this action as a class action pursuant to Fed. R. Civ. P.

13 23(b)(2) or, alternatively, Fed. R. Civ. P. 23(b)(1), on their own behalf and on behalf of all other

14 persons who are, or will be, compelled to submit to the search and seizure of their body tissue and

15 DNA under § 296(a)(2)(C) solely by reason of the fact that they have been arrested for, or

16 charged with, a felony offense (the "Plaintiff Class").

17

25. The Plaintiff Class includes hundreds of thousands of people who are

18 arrested every year in California on suspicion of a felony. It is so numerous that joinder is

19 impracticable.

20

26. The claims of Plaintiff Class members share common issues of law,

21 including but not limited to:

22

a. Whether the compulsory sampling, analysis, and retention of the DNA of

23

members of the Plaintiff Class pursuant to § 296(a)(2)(C) violates the

24

Fourth Amendment to the United States Constitution;

25

b. Whether the compulsory sampling, analysis, and retention of the DNA of

26

members of the Plaintiff Class, and the dissemination of DNA profiles and

27

other information derived from those samples, pursuant to § 296(a)(2)(C)

28

constitutes an excessive goverl1111ent intrusion into the Plaintiff Class

Case No.

-8-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page10 of 26

I

members' private and personal genetic information, in that it is neither

2

supported by a legitimate state purpose outweighing individual privacy

3

interests nor narrowly tailored to meet any legitimate state purpose, thus

4

violating the Plaintiff Class members' right to privacy under the Due

5

Process Clause of the Fourteenth Amendment ofthe United States

6

Constitution; and

7

c. Whether the compulsory sampling, analysis, and retention of the DNA of

8

members of the Plaintiff Class pursuant to § 296(a)(2)(C) without a

9

requirement of any pre-testing due process protections or the mandatory

10

expungement of data and samples from persons against whom charges are

11

dropped, who are acquitted, whose convictions are reversed, or who are

12

otherwise adjudicated to be iunocent, violates the Due Process Clause of

13

the Fourteenth Amendment to the United States Constitution.

14

27. The claims of Plaintiff Class members share common issues of fact,

IS including but not limited to:

16

a. The adverse effects that iml0cent arrestees will suffer from having their

17

DNA analyzed and placed in a criminal databank, including but not limited

18

to an increased danger of future arrest, of wrongful arrest and conviction,

19

and an invasion of their genetic privacy;

20

b. The amount of personal information that the govermnent may be able to

21

obtain through an analysis of an arrestee's DNA (either at the point of

22

initial analysis or any time thereafter by accessing the stored biological

23

sample) using current technology and in light ofreasonably-projected

24

scientific advances;

25

c. The extent to which the specific portions of the DNA molecule targeted for

26

analysis by California contain private information about the individual

27

arrestee, including information about familial relationships; and

28

d. Whether collection of DNA from arrestees, on the mere fact of arrest for a

Case No.

-9-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page11 of 26

1

felony, will exacerbate the already disproportionate representation of racial

2

minorities in the California criminal justice system, undermine the

3

legitimacy of that system, and contribute to the hannful notion that

4

criminality has a basis in biology.

5

28. The claims or defenses of the named Plaintiffs are typical of the claims of

6 members of the Plaintiff Class.

7

29. The named Plaintiffs will fairly and adequately protect the interests of the

8 Plaintiff Class. The named Plaintiffs have no interest that is now or may be potentially

9 antagonistic to the interests of the class. The attorneys representing the Plaintiffs include

10 experienced civil rights attorneys and are considered able practitioners in federal constitutional

11 litigation. These attorneys should be appointed as class counsel.

12

30. Defendants have threatened to act and will continue to act on grounds

13 generally applicable to the Plaintiff Class, thereby making final injunctive and declaratory relief

14 appropriate to the class as a whole. The Plaintiff Class may therefore be properly certified

15 pursuant to Fed. R. Civ. P. 23(b)(2).

16

31. Prosecution of separate actions by individual members of the Plaintiff

17 Class would create the risk of inconsistent or varying adjudications and would establish

18 incompatible standards of conduct for individual members of the Plaintiff Class. The Plaintiff

19 Class may therefore be properly certified, alternatively, under Fed. R. Civ. P. 23(b)(I).

20

THE MATTERS IN CONTROVERSY

21

The Development and Sharing of DNA Databases

22

32. Before the passage of Proposition 69 in 2004, California law provided for

23 mandatory DNA testing of persons who had been convicted of certain serious felony offenses and

24 the inclusion of data derived from those tests in a state-wide database. Only persons who had

25 actually been convicted of one of the enumerated felonies were subject to this compulsory testing

26 program, and even in those cases the law provided important due process protections to those

27 whose DNA was taken. For example, the pre-Proposition 69 California statute provided for the

28 automatic expungement of the physical DNA sample and associated database entries for any

Case No.

-10-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page12 of 26

1 person whose conviction was reversed. Before Proposition 69, California law enforcement also

2 had authority to conduct one-time searches (called "keyboard searches") using a DNA sample

3 obtained with a warrant or the subject's consent, whereby the DNA profile could be searched

4 against the forensic DNA profiles in CODIS. However, this authority did not allow law

5 enforcement to pennanently upload the subject's DNA profile into the database.

6

33. California routinely shares DNA profiles and other infonnation gathered

7 through its DNA testing programs with law enforcement agencies elsewhere. California

8 participates in the nationwide Combined DNA Index System database ("CODIS"). CODIS is a

9 nationwide program, supervised by the Federal Bureau ofInvestigation, that automatically shares

10 the contents of every participating jurisdiction's, including California's, DNA Databases with law

11 enforcement throughout the nation. As relevant to this case, CODIS contains a forensic database,

12 containing profiles of DNA recovered from crime scenes; an offender database, containing DNA

13 profiles of persons who have been convicted of certain crimes; and a more recent addition, an

14 arrestee database, containing DNA profiles of people merely arrested for certain crimes. As of

IS 2008, the CODIS database contains over 6.5 million offender profiles, including data derived

16 from state and federal DNA sampling programs, and not including the vast number of arrestee

17 profiles that will be added pursuant to § 296(a)(2)(C). Infonnation in the CODIS database is

18 widely available to law enforcement agencies throughout the United States, to international law

19 enforcement agencies such as Interpol, and to the national law enforcement agencies of other

20 conntries. Until recently, the federal CODIS system permitted only DNA data taken from

21 persons actually convicted of a felony to be included in the offender database; CODIS now

22 pennits, however, inclusion of arrestee DNA profiles as well.

23

34. The sharing of DNA profiles and other infonnation gathered through DNA

24 testing is not limited to the CODIS system. Law enforcement agencies in California are also

25 authorized to share DNA profiles and other information with one another, and with law

26 enforcement agencies in other states, tlu·ough cross-references of individual state and local

27 databases.

28

Case No.

-11-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page13 of 26

1

35. The purpose of the collection and sharing of data in CaDIS and other

2 criminal DNA databases is to provide DNA profiles that can be used to match against DNA found

3 in crime-scene samples, in order to identify suspects in those crimes. The mandatory collection

4 of DNA from arrestees in Califomia pursuant to § 296(a)(2)(C) is intended to provide law

5 enforcement with broad access to otherwise unavailable information about those individuals that

6 might link them to offenses other than those for which they have been arrested.

7

Proposition 69 and Penal Code §§ 295 et seq.

8

36. Proposition 69, a copy of which is attached as Exhibit A, was approved by

9 the Califomia electorate in the November 2, 2004 general election, in accordance with Article II,

10 Section 8 of the California Constitution.

11

37. Proposition 69 amended Cal. Penal Code Sections 295 et seq. The

12 amended statutes include several important new provisions that dramatically expand the reach of

13 the State's mandatory testing regime, while at the same time eliminating.key due-process

14 protections that had previously existed.

15

38. The declared purpose of the searches and seizures required by Proposition

16 69 is to further law enforcement goals:

17

Law enforcement should be able to use the DNA Database and Data

Bank Program to substantially reduce the number of unsolved

18

crimes; to help stop serial crime by quickly comparing DNA

profiles of qualifying persons and evidence samples with as many

19

investigations and cases as necessary to solve crime and apprehend

perpetrators; to exonerate persons wrongly suspected or accused of

20

crime; and to identify human remains.

21 Proposition 69 § lI(c). Proposition 69 further asserts that expanded DNA testing is "[t]he most

22 reasonable and certain means" of enhancing the law enforcement interests in identifying and

23 apprehending criminal offenders. Id. §§ II(d)(l)-(4).

24

39. Proposition 69 requires that, as of "January 1 of the fifth year following"

25 its enactment, any adult arrested for any felony must submit to DNA sampling." Id. § III(3),

26 codified as Penal Code § 296(a)(2)(A). In Infonnation Bulletin No. 04-BFS-03 dated March 15, 27 2005, the California Department of Justice confinned that "[b]eginning in 2009, all adults

28

Case No.

-12-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page14 of 26

1 arrested for any felony offense on or after January I, 2009" are subject to mandatory search and

2 seizure of their body tissue for purposes of DNA analysis as set forth in § 296(a)(2)(C).

3

40. The Department has directed that "DNA collection from arrestees should

4 occur during the booking process or as soon as possible after the arrest and before the subject is

5 released from confinement or custody." Cal. DoJ Info. Bulletin No. 08-BFS-02 at 2 (citing Penal

6 Code § 296.1(a)(l)(A». Law enforcement is to check the arrestee's criminal history information

7 in the state and local databases before taking a sample to see whether the arrestee has already

8 provided a DNA sample, in order to prevent the taking of duplicate samples. Id. If the

9 Department already has "suitable DNA sample and print impressions" on file for that arrestee, a

10 new sample will not be taken. Id.

11

41. Cal. Penal Code §§ 295 et seq. establishes a presumption that body tissue

12 samples will be tal(en through the "buccal swab" method, by which ilmer cheek cells are scraped

13 from the inside ofthe mouth. Body tissue may be taken, however, through other methods (e.g.,

14 blood sampling) at the direction of the California Department of Justice. Id. § 295(e). The

15 Department of Justice is directed to provide appropriate equipment, materials, and instructions to

16 each facility at which body tissue is to be seized.

17

42. Refusal to submit to sampling is a crime, punishable by one year in jail and

18 a fine. Id. § 298.1 (a). In addition, law enforcement is authorized to physically force a person to

19 give a sample. Id. § 298(b).

20

43. Once taken, the arrestee's body tissue is forwarded to the Jan Bashinski

21 DNA Laboratory of the Department of Justice (the "Bashinski Lab"). The Bashinski Lab then

22 arranges for the DNA analysis to be performed, either by its own personnel or through third-party

23 contractors. After the analysis is completed, the results are entered into the state's DNA Database

24 and shared freely with other law enforcement agencies nationally and internationally, including

25 (but not limited to) through the CODIS system.

26

44. Cal. Penal Code §§ 295 et seq. does not effectively limit the types of

27 genetic information to be collected and maintained from the biological sample and does not

28 require destruction of the underlying sample after the DNA profile has been created and uploaded

Case No.

-13-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page15 of 26

I into the database. Instead, the body tissue sample is retained indefinitely for further analysis.

2 Thus, the statute allows the state to maintain all genetic information that can be derived from an

3 arrestee's DNA.

4

45. As amended by Proposition 69, California law fails to provide for the

5 automatic expungement of data and sanlples taken from persons whose convictions are

6 overturned. Nor is there any provision for automatic expungement of samples taken from persons

7 who are arrested but never charged, persons against whom charges are dropped, persons who are

8 acquitted, or even persons who are found by a court to be factually innocent of the offense for

9 which they were atTested. Instead, any person who wants to have his or her sample expunged

10 must file a petition for such expungement in the court of the county where the atTest OCCUlTed as

'II described below.

12

46. AtTestees who were never charged with an offense - such as Ms. Haskell

13 and Mr. Ento - must wait a minimunl of tlu'ee years before requesting expungement. Such people

14 can only file a request for expungement if "no accusatory pleading has been filed within the

15 applicable period allowed by law charging the person with a qualifying offense as set forth in

16 subdivision (a) of Section 296." § 299(b)(I). This "applicable period allowed by law" is the

17 statute of limitations, which ranges from a minimum of three years for even the least serious

18 felony to a maximum of life for embezzlement of public money or for any offense that catTies a

19 life sentence. §§ 799-801. During this waiting period, the person's profile will remain in the

20 DNA database and be searched repeatedly. Because CODIS conducts a routine, weekly search of

21 DNA offender/arrestee profiles against profiles generated from crime scene samples (in addition

22 to any additional searches as needed), the person will have their DNA profile searched on a

23 weekly basis, at minimum, during this tln'ee-year waiting period.

24

47. In addition, no expungement petition may be granted until at least 180 days

25 following the filing of the petition, and no limits are imposed on the use of the petitioner's DNA

26 data or dissemination of that data to other law enforcement agencies during that 180-day period.

27 And even if the petition for expungement is granted, no mechanism is provided for the return of

28

Case No.

-14-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page16 of 26

1 the petitioner's DNA sample, profile, or other infonnation from other law enforcement agencies

2 with whom it has been shared.

3

48. Even after these lengthy waiting periods, the court cannot grant a petition if

4 either the prosecuting attomey or the Department of Justice has objected to it; thus, the law allows

5 the prosecuting attomey and Department of Justice, or either ofthem, to block expungement

6 merely by filing an objection. See § 299(c)(2)(d). In addition, the law expressly provides that

7 "[t]he court has the discretion to grant or deny the request for expungement," without setting forth

8 any factors that should guide the court's discretion. § 299(c)(1). Furthennore, "denial ofa

9 request for expungement is a nonappealable order and shall not be reviewed by petition for writ."

10 § 299(c)(1). This means not only that arrestees whose requests for expungement are denied have

11 no recourse, but also that Califomia appellate courts will have no opportunity to make decisional

12 law to guide the trial courts' discretion. Thus, the court's ability to deny such a petition is

13 completely standardless and unreviewable.

14

49. Finally, the statute allows the Depmtment of Justice to refuse to destroy a

15 sample even after it has received the requisite court order for destruction, if the Depmtment

16 determines that it has additional grounds to maintain the sample. § 299(d). The law does not

17 provide for any sort of challenge or appeal if the Depmtment refuses to destroy a sa:tnple after

18 receiving a court order.

19

50. When a sa:tnple is analyzed and the resulting profile is put into CODIS, that

20 profile is then regularly and automatically accessed, searched, and compared with millions of

21 other DNA profiles in the CODIS system. In general, these searches occur weekly. Thus, even if

22 an arrestee is eventually successful in getting her sample destroyed and profile expunged, during

23 the delays discussed above that profile will have been accessed multiple times.

24

51. On infonnation and belief, the CODIS database, like most govermnent

25 computer databases, is regularly backed-up. On infonnation and belief, there is no procedure for

26 removing arrestee profiles from these backup copies of the database.

27

52. Cal. Penal Code §§ 295 et seq. allows for the sharing of DNA profiles

28 mldior the underlying biological sa:tnples with a broad array of international, federal, state and

Case No.

-15-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page17 of 26

1 local law enforcement officers, including private crime laboratories and other third parties that

2 have been approved by the Department of Justice. Therefore, the procedural and substantive

3 baniers to expungement, including those alleged herein, are inadequate to bring § 296(a)(2)(C)

4 within the constitutional boundaries of the Fourth and Fourteenth Amendments to the United

5 States Constitution because the Plaintiff Class will suffer continuing injury due to the presence of

6 class members' DNA profile in DNA databases before any prerequisites to expungement can be

7 satisfied.

8

53. The Depatiment of Justice publishes regular statistical reports on the

9 number of samples being collected and processed at the Bashinski Lab. The reports show that the

10 state is collecting tens of thousands of new DNA samples per month under authority of Penal

11 Code §§ 295 et seq. The 2009 reports that have been published so far consistently show that the

12 backlog of untested DNA samples continues to grow as more samples are received by the

13 laboratory than are analyzed and uploaded into CODIS.

14

54. For exatnple, the Department's report for the first quarter of 2009 shows

15 that between January 1 and March 31, the lab uploaded 58,534 profiles to CODIS, an average of

16 19,511 satnples per month. During this same three-month period, the lab received 73,797

17 samples, meaning that the backlog of samples that had been received but not yet analyzed and

18 uploaded into CODIS grew by 15,263. The Department reports that as of March 31, 2009, this

19 backlog included 49,982 satnples.

20

55. Similarly, the Department reports that in April 2009 the lab's backlog grew

21 by an additional 3,608 samples, to 53,590. During this period, the lab uploaded 25,579 profiles to

22 CODIS, while receiving 29,287. Thus, the lab's ending backlog totaled more than twice the

23 number of samples that it was able to analyze and upload into CODIS during the month of April,

24 and more than 2.5 times the average monthly number of samples it was able to analyze and

25 upload during the first quarter of 2009.

26

56. On infolTl1ation and belief based on these figures, the average time between

27 the lab's receipt of an arrestee sample and the eventual uploading to CODIS of the profile

28 associated with that sample is more than two months.

Case No.

-16-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page18 of 26

1

The Nature Of DNA Testing And The Impact On Plaintiffs

2

57. Under Cal. Penal Code §§ 295 et seq., the body tissue seized from

3 Plaintiffs and others will be processed, or has already been processed, to extract samples of their

4 DNA, which are then analyzed to generate DNA profiles. DNA (an abbreviation for

5 "deoxyribonucleic acid") is the cellular material that contains each person's unique genetic code.

6

58. The DNA profiles that are currently stored in law enforcement databases

7 are sometimes referred to as "DNA fingerprints." This is a misnomer, for although fingerprints

8 and DNA resemble each other in that each is unique for each individual person, the seizure,

9 banking, and analysis of DNA samples differs fundamentally from the mere taking of a

10 fingerprint.

11

59. Fingerprinting involves the creation of an image or impression of the

12 external physical conformation of the fingertips, and a fingerprint reveals nothing more about the

13 person than the unique patterns on the skin of his or her fingers. Thus, while fingerprints can be

14 used effectively to provide evidence of the identity of a person, they reveal no other information

15 about that person.

16

60. DNA, in contrast, is a microscopic arrangement of chemical constituents

17 within the nucleus of a human cell that make up an individual's genetic blueprint. DNA analysis

18 can reveal a vast array of highly private information, including familial relationships, ethnic traits

19 and other physical characteristics, genetic defects, and propensity to certain diseases, such as

20 sic1de-cell anemia, Down syndrome, and certain types of cancers. The amount of infonnation

21 about a person that can be revealed by DNA is expanding every year. Some scientists have

22 suggested that DNA analysis can be used to predict personality traits, propensity for antisocial

23 behavior, and sexual orientation, as well as an ever-expanding variety of existing and future

24 health conditions and other physical traits.

25

61. Already, state and federal officials have issued policy memoranda

26 authorizing the use of state and federal DNA databases for so-called familial searching - more

27 accurately known as partial-match searching - where the database is used to locate a person who

28 does not match the crime-scene sample but whose DNA is similar to that left at the scene, in the

Case No.

-17-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page19 of 26

I hope that the near-match may be a family member of the perpetrator. Thus, rather than using the

2 database to identify the culprit, it is used to single-out an individual who is demonstrably innocent

3 of the crime - because the crime scene DNA does not match his - in the hope that investigating

4 . this innocent person will provide a clue to the identity of the actual culprit. This represents an

5 unreasonable intl1lsion into the private life of an individual who has not even been accused of a

6 crime but who mayor may not be related to the perpetrator. A DNA specialist with the California

7 Department of Justice acknowledged this in a 2007 internal memorandum analyzing the

8 desirability of allowing for familial searching. That memorandum provided that "a policy of

9 disclosing partial database matches would shift the delicate Fourth Amendment balance that

10 comis have struck in holding DNA database programs constitutional by diluting the state interest

11 in the expeditious and accurate nature of the DNA database while weakening the disclosure

12 restrictions that minimize invasions of privacy" and that a "policy permitting the reporting of

13 arrestee names for the purpose of investigating potential relatives, even before those arrestees

14 have been convicted (or not convicted and consequently expunged) could be viewed as an

15 overreaching application of the Database. In tum, this may impair DO]'s arguments in support of

16 the Fourth Amendment reasonableness of aJTestee collections in the first instance."

17

62. Due to the expansive nature of the information that may be gleaned from

18 an individual's DNA, the compulsory seizure of biological material from Plaintiffs for the

19 purpose of constructing Plaintiffs' DNA profiles provides law enforcement personnel and other

20 government officials with direct access to the most fundamentally private personal information

21 that any person possesses. Such seizure invades a location - the genetic code locked within each

22 person's cells - in which, absent unusual circmnstances, the average person has the very highest

23 possible expectation of privacy.

24

63. AITestee testing, if allowed to go forward unfettered, will serve to worsen

25 the race-based inequities present in our criminal-justice system. Racial minorities are already

26 disproportionately represented in California's criminal justice system, particulaJ-Iy at the arrestee

27 level. Mandatory aJTestee DNA collection means that anybody who is aJTested for a felony will

28 forever have his DNA included in the CaDIS database, unless he is successfully able to navigate

Case No.

-18-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page20 of 26

1 the cumbersome expungement process. He will therefore face a lifetime of what some

2 researchers have called genetic surveillance, with his DNA continually being compared against

3 DNA taken from crime scenes throughout the nation. With the increased use of so-called familial

4 searching, his family will also be included in this surveillance, This will further increase the

5 impact of arrestee testing on people of color and their communities.

6

Declaratory Relief Under 28 U.Soc. §§ 2201, 2202

7

64, Plaintiffs reallege and incorporate here the allegations in Paragraphs 1-63,

8 above, as though fully set forth.

9

65. There exists an actual, present and justiciable controversy between

10 Plaintiffs and Defendants conceming their rights and duties with respect to Defendants' conduct

11 described herein. Plaintiffs contend that Defendants violated, and continue to violate, Plaintiffs'

12 rights under the constitutions and laws ofthe United States, specifically that, on its face and as

13 applied to them and to others in the Plaintiff Class, § 296(a)(2)(C) is unlawful and

14 unconstitutional. On information and belief, Defendants deny that their conduct violated, or

15 continues to violate, Plaintiffs' rights under the constitutions and laws of the United States.

16 Plaintiffs fear that they are now and will again be subjected to such unlawful and unconstitutional

17 actions, and seek a judicial declaration that Defendants' conduct deprived, and continues to

18 deprive, Plaintiffs of their rights under the constitution and laws of the United States.

19

66, This controversy is ripe for judicial decision, and declaratory relief is

20 necessary and appropriate so that the parties may know the legal obligations that govem their

21 present and future conduct.

22

COUNT I: VIOLATION OF THE FOURTH AMENDMENT TO

23

THE UNITED STATES CONSTITUTION (42 UoS.Co § 1983)

24

67. Plaintiffs hereby reallege and incorporate by reference the allegations

25 contained in Paragraphs 1-66 as though fully set forth herein.

26

68. The Fourth Amendment to the United States Constitution protects the right

27 of people to be free from unreasonable searches and seizures and prohibits searches or seizures

28

Case No,

·19·

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page21 of 26

1 for law enforcement purposes absent a warrant or a recognized exception to the warrant

2 requirement.

3

69. Plaintiffs have a reasonable expectation that their bodily integrity and their

4 genetic privacy will be respected.

5

70. Section 296(a)(2)(C) mandates the compulsory seizure and search of

6 biological material from Plaintiffs and other members of the Plaintiff Class, and the DNA

7 analysis of that biological material for generalized law enforcement purposes, without a warrant

8 or any required showing of probable cause or individualized suspicion linking the person at issue

9 to any specific crime for which his or her DNA is relevant.

10

71. The involuntary extraction of biological material from the Plaintiff Class

11 for purposes of DNA analysis pursuant to § 296(a)(2)(C) constitutes an unreasonable search and

12 seizure under the Fourth Amendment to the United States Constitution.

13

72. Every analysis of these biological samples by government personnel serves

14 to reveal information about the person whose DNA is being examined and therefore constitutes a

15 further and independent search (and violation) ofthe Fomih Amendment beyond that occasioned

16 by the initial extraction of the biological sample.

17

73. The compulsory and warrantless search and seizure of biological material

18 from Plaintiffs and members of the Plaintiff Class is inherently unreasonable within the meaning

19 of the Fourth Amendment and is not supported by any recognized exception to the Fourth

20 Amendment's warrant and probable cause requirements. The subsequent DNA analysis and

21 storage of such biological material further constitutes an unreasonable search and seizure within

22 the meaning ofthe Fourth Amendment and is also not justified by any recognized exception to

23 the warrant and probable cause requirements. On its face and as applied to the Plaintiff Class, §

24 296(a)(2)(C) is accordingly unconstitutional.

25 III

26 III

27 III 28 III

Case No.

-20-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page22 of 26

1

COUNT II: VIOLATION OF SUBSTANTIVE DUE PROCESS

2 •
3 4

UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION (42 U.S.C. § 1983)
74. Plaintiffs hereby reallege and incorporate by reference the allegations

5 contained in Paragraphs 1-73 as though fully set forth herein.

6

75. The Due Process Clause of the Fourteenth Amendment to the United States

7 Constitution provides a substantive right to privacy with respect to personal matters such as

8 medical and genetic information.

9

76. Because § 296(a)(2)(C) requires government intrusion into private and

10 personal genetic information of Plaintiffs by procuring, analyzing, indefinitely retaining, and

11 disseminating their biological samples and DNA information, the Fourteenth Amendment to the

12 United States Constitution requires that the intrusion be supported by a legitimate governmental

13 purpose that outweighs Plaintiffs' privacy interests and that the intrusion be narrowly tailored to

14 meet that legitimate purpose.

15

77. California's interest in maintaining biological samples and DNA profiles

16 from arrestees does not outweigh Plaintiffs' privacy interests with respect to their genetic

17 material; nor is Cal. Penal Code §§ 295 et seq., including § 296(a)(2)(C), narrowly tailored to

18 further the state's interest. Accordingly, § 296(a)(2)(C), on its face and as applied to the Plaintiff

19 Class, violates their rights to privacy and substantive due process under the Fourteenth

20 Amendment to the United States Constitution.

21

COUNT III: VIOLATION OF PROCEDURAL DUE PROCESS

22

UNDER THE FOURTEENTH AMENDMENT TO THE

23

UNITED STATES CONSTITUTION (42 U.S.c. § 1983)

24

78. Plaintiffs hereby reallege and incorporate by reference the allegations

25 contained in Paragraphs 1-77 as though fully set forth herein.

26

79. The Due Process Clause of the Fomieenth Amendment to the United States

27 Constitution prohibits the deprivation of life, liberty or property without dne process of law.

28

Case No.

-21-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page23 of 26

1

80. Cal. Penal Code §§ 295 et seq. violates procedural process in numerous

2 respects, including the following:

3

a. Cal. Penal Code §§ 295 et seq. denies Plaintiffs any opportunity to be heard

4

as to whether any legitimate reason exists for the compulsory seizure and

5

DNA analysis of their biological material for law enforcement purposes;

6

b. Cal. Penal Code §§ 295 et seq. denies Plaintiffs meaningful remedies to

7

assure complete, certain, and immediate expungement of and destruction of

8

their biological samples, DNA profiles, and other data should their arrests

9

not lead to a felony conviction or if any conviction is overturned; and

10

c. Cal. Penal Code §§ 295 et seq. requires the deprivation of Plaintiffs'

11

property and liberty interests in their own biological and genetic material

12

without notice or any opportunity to be heard as to whether the an'est giving

13

rise to the compulsory collection of their biological samples was lawful.

14

81. Because it fails to afford such basic procedural protections to Plaintiffs and

15 other members of the Plaintiff Class who are subject to its mandatory testing provisions, Cal.

16 Penal Code §§ 295 et seq. violates on its face and as applied to the Plaintiff Class, the Due

17 Process Clause of the Fourteenth Amendment to the United States Constitution.

18

RELIEF SOUGHT

19

WHEREFORE, Plaintiffs, on behalf of themselves and the Plaintiff Class, seek the

20 following relief:

21

1. A declaration that California Penal Code § 296(a)(2)(C) is unconstitutional

22 on its face and as applied to persons who are subject to its compulsory search !md seizure

23 provision solely as a result of their status as persons who have been arrested for, or charged with,

24 a felony.

25

2. A prelimimuy and permanent injunction:

26

a) enjoining Defendants, including all of defendant Brown's officers,

27

agents, servants, employees, attorneys, and other persons in active

28

concert or participation with defendant Brown, from the

Case No.

-22-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page24 of 26

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case No.

compulsory search, seizure, collection, analysis, and/or retention of biological samples from any member of the Plaintiff Class made pursuant to California Penal Code § 296(a)(2)(C) until and unless he or she is actually convicted of a felony offense, unless such search, seizure, collection, analysis, and/or retention is supported by a warrant issued on probable cause; b) enjoining Defendants, including all of defendant Brown's officers, agents, servants, employees, attorneys, and other persons in active concert or participation with defendant Brown, from assisting any other state or local law enforcement official or third party in searching, seizing, collecting, analyzing, or retaining biological samples, or DNA data obtained from such samples, from any· member of the Plaintiff Class made pursuant § 296(a)(2)(C) until and unless he or she is actually convicted of a felony offense, unless such search, seizure, collection, analysis, and/or retention is supported by a warrant issued on probable cause; and c) ordering Defendants, including all of defendant Brown's officers, agents, servants, employees, attorneys, and other persons in active concert or participation with defendant Brown, to promptly destroy any biological samples obtained from members of the Plaintiff Class pursuant § 296(a)(2)(C) that are in their possession or that have been, or in the future are, forwarded to the Department of Justice (or any entity with which it has contracted), and to expunge all associated DNA profiles and other data from all state and local databases and other files, unless the submitting law enforcement agency has certified that the sample was taken either (i) following conviction for a felony offense or (ii) pursuant to a warrant issued

-23-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page25 of 26

1

upon probable cause or other court order issued under authority

2

other than § 296(a)(2)(C).

3

3. Costs and attorneys fees incurred in this action pursuant to 42 U.S.C.

4 §1988 and other applicable authority.

5

4. Such other and further relief as may be just and proper.

6

7 DATED: October 7, 2009 8 9 10 11 12 13 14 15 16 17 18 19 20 21
22 23
24
25
26
27
28

PAUL, HASTINGS, JANOFSKY & WALKER LLP
By: ____~/_/~ ._1~;('. ~/J~t~u--.-----------Peter C. Meier
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC.
R~ •
By: Michael T. Risher
Attorneys for Plaintiffs ELIZABETH AIDA HASKELL and REGINALD ENTO, on behalf of themselves and others similarly situated

Case No.

-24-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1 Filed10/06/09 Page26 of 26

CERTIFICATION OF INTERESTED ENTITIES OR PERSONS 1

2

Pursuant to Civil L.R. 3-16, the undersigned certifies that as of this date, other than

3 the named parties, there is no such interest to report.

4

5 DATED: October 7, 2009
6

PAUL, HASTINGS, JANOFSKY & WALKER LLP

7 8

By: ______~/~/~/U~t./-U~~?~--- -----------
Peter C. Meier

9 Attorneys for Plaintiffs

10

ELIZABETH AIDA HASKELL and REGINALD ENTO,

on behalf of themselves and others similarly situated

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Case No.

-25-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document1-1 Filed10/06/09 Page1 of 12
EXHIBIT A

Case3:09-cv-04779-CRB Document1-1TEFiXledT10O/06F/0P9 RPOagPe2OoSf 1E2D LAWS

SEC. 8,3, (a) Funds appropriated pursuant to the Gaming Revenue Act 0/2004 shall not be deemed to be part of "tolal allocations to school districts and community college dis'ricts ftvm General Fund proceeds oftaxes appropriated pursuant to Article Xlf! B ,. as that term is used in paragraphs (2) and (3) ofsubdivision (b) q{Sectioll 8,
(b) Revenues derived/fVfn payments made pursuant to the Gaming
be Revenue Act of2004 shaff not be deemed to be "Genera! rund revenues,
which may appropriauHi pursuant to Article XIII B" as that term is used in paragraph (1) (~rsubdivision (b) 0/ Section 8 nOr shalf they be considered in the determination of 'per capita General Fund revenues" as that umn is used in paragraph (3) ofsubdivision (b) and in subdivi~ sion (e) qj'Sectiofl 8.
SEC. 14, Section 14 is added to Article XIII B of the California Constitution, to read:
SEC. J4, (a) For purposes of this article, "proceeds of taxes" shall not include the revenues created by the Gaming Revenue Act 0(2004.
(b) For purpose,,,' of this article, "appropriations subject to limitation /I of each entity ofgovernment shall not include appropriarions of revenues from the Gaming Revenue Trust Fund created by the Gaming Revenue Act 0/2004.
SEC. 15. Amcndment
The statutory provisions of this act may be amended only by a vote of two~thirds of the membership of both houses of the Legislature, All statutory amendments to this act shall be to further the act and must be consistent with its purposes.
SEC. 16. Consistency With Other Ballot Measures
The provisions of this act are not in conflict with any initiative measure that appears on the same ballot that amends the California Constitution to authorize gaming of lUlY khld. In the event that this act and another measure that amends the California Constitution to permit gaming of any kind are adopted at the same election, the courts are

bereby directed to reconcile their respective statutory provisions to the greatest extent possible and to give effect to every provision of both measures.
SEC. 17. Additional Funding
No moneys in the Gaming Revenue Trust Fund shall be used to supplant federal, state, or local funds used for child protective and foster care services, neighborhood sheriff", and police officers, and firefighters but shall be used exclusively to stlpplement the total amount of federal. state, and local funds allocated for child protective services and foster care which improve the educational outcomes of abused and neglected children and children in foster care and for additional sherins, police officers, and firefighters.
SEC. 18, Judicial Proceedings
In any action for declaratory or injunctive relicf, or for relief by way of any extraordinary writ, wherein the construction, application, or validity of Section 3 of this act or any part thereof is called into question, a Court shall not grant any temporary restraining order, preN 11minary or permanent injunction, or any peremptory writ. of mandate, certiorari, or prohibition, or other provisional or permanent order \'0 restrain, stay, or othclwise interfere with the operation of the act except upon a finding by the court, based on clear and convincing eVIdence, that the public interest will not be prejudiced thereby, and no such order shall be effective for morc than 15 calendar days. A cOUrt shall not restrain any part of this act except the specific provisions that are challenged,
SEC. 19. Severability
If any provision of this act or the application thereof to any person or circumstances is held invalid or unconstitutional, such invalidity or unconstitutionality shall not a"ffect other provisions or applications of this act that can be given effect without the invalid or unconstitutional provision or application, and to this end the provisions of this act are severable.

This initiative measure is submitted to the people in accordance with the provisions of Section 8 of Article IT of the California Constitution.
This initiative measure amends a section of the Government Code, and amends, repeals, and adds sections to the Penal Code; therefore, eXisting provisions proposed to be deleted are printed in stril(est1t tryl"e and new provisions proposed to be add.ed are printed in italic type to
indicate that they arc new.
PROPOSED LAW
SECTION I. Title
(a) This measure shall be known and referred to as the DNA Fingerprint, Unsolved Crime and fnnocence Protection Act.
SEC. II. Findings and Declarations of Purpose
The people of the State ofCaUfornia do hereby find and declare that:
(a) Our communities have a compelling interest in protecting themselves from crime.
(b) There is critical and urgent need to provide law enforcement officers and agencies with the latest scientific technology available for accurately and expeditiously identifying, apprehending, arresting, and convicting criminal offenders and exonerating persons wrongly suspected or accused of crime.
(c) Law enforcement should be able to use the DNA Database and Data Bank Program to substantially reduce the number of unsolved crimes; to help stop serial crime by quickly comparing DNA profiles of qualifying persons and evidence smnples with as many investigations and cases as necessary to solve crime and apprehend perpetrators; to exonerate persons wrongly suspected or accused of clime; and to identify human remains.
(d) Expanding the statewide DNA Database and Data Bank Program is:
(!) The most reasonable and certain means to accomplish effective crime solving in California, to aid in the identification of missing and unidentified persoll", and to exonerate persons wrongly suspected or

accused of crimc;
(2) The most reasonable and certain means to solve crime as effectively as other states which have found that the majority orviolellt criminals have nonviolent criminal prior convictions, and that the majority of cold hits (\11d criminal investigation links are missed if a DNA data-
base or data bank is limited only to violent crimes;
(3) The most reasonable and certain means to rapidly and subgtantially increase the number of cold hits and criminal investigation Jinks so that serial crime offenders may be identified, apprehended and convicted for crimes they committed in the past and prevented from com~ mitting future crimes that would jeopardize public safety and devastate lives; and
(4) The most reasonable and certain means to ensure that Califomia's Database and Data Bank Program is fully compatible with, and a meaningful part of, the nationwide Combined DNA Index System (CODIS).
(e) The state has a compelling interest in the accurate identification of criminal offenders, and DNA testing at the earliest stages of criminal proceedings fol' felony offenses will help thwart criminal perpetrators from concealing their identities and thus prevent time-consuming and expensive investigations of innocent persons.
(f) The state has a compelling interest in the accurate identification of criminal offenders, and it is reasonable to expect qualifying offend~ ers to provide forensic DNA samples for the limited identification purw poses set forth in this chapter.
(g) Expanding the statewide DNA Database and Data Bank Program is the most reasonable and certain means to ensure that persons wrongly suspected or accused of crime arc quickly exonerated So that they may reestablish their standing in the community. Moreover, a person whose sample has been collected for Database and Data Bank purposes must be able to seek expungement of his or her profile from the Database and Data Bank.
SEC. III. DNA and Forensic Identification Database and Data Bank Act

Text of Proposed Laws I 135

TEXT OFCPaRseO3:0P9O-cvS-0E4D779L-CARWB SDocument1-1 Filed10/06/09 Page3 of 12

SEC. 1. Section 295 orthe Penal Code is amended to read:
295. (a) This chapter shall be known and may be cited as the DNA and Forensic Identification Data Ba.~9 Database and Data Bank Act of 1998 , as amended,
(b) The Legislatttfe HflelS aha deeiat'es people qf the State of (:alijornia set forth all of the following:
(1) Deoxyribonucleic acid (DNA) and forensic identification analysis is a useful law enforcement tool for identifying and prosecuting 'semis1 ane! i ielsflt et+enasf3 criminal offenders and exonerating the innocent.
(2) ft is the intent of the Legisltttttre people of{he State ofCalifornia , in order to further the purposes of this chaptel~ to require DNA and forensic identification ~ data bank samples from all persons, including juveniles, for the felony and misdemeanor offenses described in subdivision (a) of Section 296,
(3) It is necessary to enact this act defining and governing the state's DNA and forensic identification database and ~ data bank in order to clarify existing law and to enable the state's DNA and ~ isel'll'iFieatisl'l aataaS3e aHa eat-aaaR\( pregffiffl: Forensic Identification Database and Data Bank Program to become a more effective law enforcement tool,
(c) The purpose of the, DNA and ¥erehsie iseHtiFieatisH sataaaHlE Forensic ldenfffication Database and Data Bank Program is to assist federal, state, and local criminal justice and law enforcement agencies within and outside California in the expeditious and accurate detection and prosecution of individuals responsible for sex offenses and other ~ crimes, the exclusion of suspects who are being investigated for these crimes, and the identification of missing and unidentified persons, particularly abducted children.
(d) Like the collection a/fingerprints, the collection qf DNA sam~ pIes pursuant to this chapter is an administrative requirement to assist in the accurate ident(fication of criminal ojf(!.1ldel~s.
(e) Unless otherwise requested by the Department ofJustice, collec-
tion (l biological samples jor DNA analy.)'is .from qual{fying persons
under this chapter is limited to collection of inner cheek cells oj the mouth (buccal swab sample:.),
(f) The Department qfJustice DNA Laboratory may obwin through jederal, state, or local law enforcement agencies blood specimens.ii"Om qual{/ying persons as de;fined in subdivision (a) of Section 296, and according to procedures set forth ill Section 298, when it is determined in the discretio/l of the Department ofJustice that such specimens are necessary in a particular case or lVould aid the department in obtain~ ing an accuratejo/'ensic DNA pY(~filefof' fdenttfication pU/poses.
fEij (g) The Department of Justice, through its DNA Laboratory, shall be responsible tor the management and administration of the state's DNA database aI'lel eBJaetmlE iEieHtiFieatisB flregrslTl DNA and Forensic Identifit'ation Database and Data Bank PlVgram and for !iai~ son with the Federal Bureau of Investigation (FBI) regarding the state's pm1icipation in a national 01' international DNA database and data bank program such as the FBI's Combined DNA Index System (COOlS) that allows the storage and exchange of DNA records submit~ ted by state and local forensic DNA laboratories nationwide.
~ (h) The Department of Justice shall be responsible for implcw menting this chapter,
(J) The Department of Justice DNA Laboratory, the Department of Corrections, the Board qf Corrections, and the Department of the Youth Authority ~ may adopt policies and enact regulations for the implementation of this chapter, as necessary, to give effect to the intent and purpose of this chapter, and to ensure that BhtaStu;l( data bank blood specimens, ~ buccal swab samples, and thumb and palm print impressions as required by this chapter are collected from quali~ tying affeFlsefs persons in a timely manner, as soon as possible after arrest, conviction., or a plea or finding of guilty, no contest, or not guilty by reason of insanity, or upon #i€t any disposition rendered in the case of a juvenile who is a-aj\if:l.geel a "are sf tHe eSIiFt adjudicated under Section 602 of the Welfare and Institutions Code for commission of any of this chapter's enumerated qualifYing offenses, including at/empts. or when it is determined that a qualifying e#eI'l4er person has not given the required specimens, samples or print impressions. ~ Before adopting any policy or regulation implementing this chap~ ter, the Department of Corrections! the Board of Corrections, and the Department of the Youth Authority shall aelsj9t the f3sjieies aHe reg lila tisl19 fer ilTlplelfleHting I'hL'I ehetflter ;; itl: seek advice from and:ffi-eeft~ consult with the Department of Justice DNA Laboratory Director,
136 I Text of Proposed Laws

(2) Given the speCificity (?f this chapter, and except as provided in
subdivision ((.o) of Section 298.1, any administrative bulletins. notices, regulations, policies, procedures. or gUidelines adopted by the Department of Justice and its DNA Laboratory, the Departmel1t of Corrections, the Department of the Youth Authority, or the Board of Corrections jbr the purpose qf the implementing this chapfer are exempt from the pJ'OvisiOlIS of the Administrative Procedure Act, Chapter 3,5 (commencing with Section 11340), Chapter 4 (commencing with Section J1370), Chapter 4.5 (commencing with Section
1./ 400), and Chapter 5 (commencing wlch Section 11500) q! Part I (~I'
Division 3 (~fTitle 2 (~fthe Government Code.
(3) The Department of Corrections. the Board of Corrections, and the Department of the Youth Authority shall submit copies of any of their policies and regulations with respect to this chapter to the Department of Justice DNA Laboratory Director, and peliesieall, quarterly shall submit to the director written reports updating the director as to the status of their compliance with this chapter.
(4) On or befbre April I in the year.f()/lowing adoprhm (?lthe act that added this paragraph, and quarrer(v thereq{!eJ; the Department (~! Justice DNA Laboratory shall submit (I quarrerly repol't to be published electronical~y on a Department {~lJustice website Gnd made available for public review. The quarter~v report shall state the total number (~f' samples received, the number ofsamples received/rom the Department
of Corrections, the number 0/ samples jidly analyzed jor inclusion in
the CODIS database, and the number of prqfiles uploaded into the CODIS database fbI' the reporting period. Each quarterly report shall state the lotal, annual, {md quarterly number qf qualifying prqfiles in
the Department (l Justice DNA Laboratory data bank both .fJ'OJI1 per~
sons and case evidence, and the number of hits and investigations
aided, as reported to the National DNA Index S;lstem, The quarter(1' report shall also c01'!firm the labomtOJ)I:~ accreditation status and par~ ticipation in COD1S and shall include an accounting (?!thefunds col~ lected, expended, and disbursed pursuant to subdivision (k),
(5) On or be/ore April I in the year folloWing adoption of the act that added this paragraph, and quarterly therea/iel; the Depal'lment qf Corrections shall submit a quarterly repol'f to be published electronically on a Department qfCorrections website and made availablefor public review, The quarterly report shall state the total numher of in.mates housed in state ci)l"!'eCtional/acilities, including a breakdown o.fthose housed in state prisons, camps, communi(ji correctionalfaci!~ ities, and otherjclcilities such as prisoner mother/aeilitles, Eaeh quar~ terly report shall also state the lOtal, annual, and quarterly number (~f
inmates who have yet to provide specimens, samples and print impres~
sions pursuant to this chapter and the number ofspecimens, samples and print impressions that have yet to befiwwarded to the Department
(d'Jilstice DNA Laboratory within 30 days (?fcoliection.
~ (1) (1) When the specimens, samples, and print impressions required by this chapter are collected at a county jailor other county a.steRtian facility, including a private community correctional facility, the county sheriff or chief administrative officer of the county jailor other eeteI'ltien facility shall be responsible for ensuring all of the f()l!owing:
(A) The requisite specimens, samples, and print impressions are collected from qualifying effeFleer!'l persons immediately following arrest, conviction, or adjudication, or during the ,booking or intake or reception center process at that facility, or reasonably promptly thereafter,
(B) The requisite specimens, samples, and print impressions arc collected as soon as administratively practicable after a qualifying ~ person. reports to the facility for the purpose of providing spec~ imcns, samples, and print impressions.
(C) The specimens, samples, and print impressions collected pur~ suallt to this chapter are forwarded immediately to the Department of Justice, and in compliance with department policies.
(2) The specimens, samples, and print impressions required by this chapter shall be col!ected by a person using a collection kit approved by the Department of Justice and in accordance with the requirements and procedures set forth in subdivision (b) of Section 298.
(3) The cOllilties shall be reimbursed f()f the costs of obtaining specimens, samples, and print impressions subject to the conditions and limitations set forth by the Department of Justice policies governing reimbursement for collecting specimens, samples, and print il11prcs~ sions pursuant to this chapter,
(j) The trial court may order that a portion of the costs assessed pursuant to Section 1203.1c, 1203./ e. or 1203.1 m include a reason~

Case3:09-cv-04779-CRB Document1-1TEFiXledT10O/06F/0P9 RPOagPeO4 oSf E12D lAWS

Pwposition 69

able portion of the cos! (~r obtaining specimens, samples, and print impressions ;nfurtherance a/this chapter and thefunds collected pursuant to this subdivision shall be deposited in the Department of Jilstice DNA Testing Fund as created by paragraph (2) afsubdivision (b) o/Section 2903.
fg1 (Ic) Any funds appropriated by the Legislature to implement this chapter, including funds or costs ordered pursuant to subdivision (;) to reimburse counties, shall be deposited into the Department of Justice DNA Testing Fund as created by paragraph (2) of subdivision (b) of Section 290.3.
W (I) The Department of Justice DNA Laboratory shall be lmown
as the Jan Bashinski DNA Laboratory.
SEC. 2. Section 295.1 of the Penal Code is amended to read:
295.1. (a) The Department of Justice shall perform DNA analysis
and other torensic identification analysis pursuant to this chapter only
for identification purposes.
(b) The Department of Justice Bureau of Criminal Identification and [nfonnation shall perform examinations of palm prints pursuant to this chapter only for identiJication purposes.
(c) The DNA Laboratory of the Department of Justice shall serve as a repository for blood specimcns and ~ buccal swab and other bio~ logical samples collected. and shall analyze specimens and samples, and store, compile, correlate, comparc, maintain, and use DNA and forensic identification profiles and records related to the fOllowing:
(l) Forensic casework (mdforensic unknowns.
(2) Known and evidentiary specimens and samp'les from crime
scenes or criminal investigations.
(3) Missing or unidentified persons.
(4) Of:feflaers Persons required to provide specimens, samples, and print impressions under this chaptcr.
(5) Legally obtained samples.
~ (6) Anonymous DNA records used for training, research, statistical analysis of populations, qualifY assurance, or quality controL
(d) The computerized data bank and database of the DNA Laboratory of the Department of Justice shall include files as necessary to implement this chapter.
(e) Nothing in this section shall be construed as requiring the Department of Justice to provide ,Ipecimens or samples for quality contro! or other purposes to those who request specimens or samples.
(I) Submission qfsamples, specimens, or profiles fbI' the state DNA Database and Data Bank Program shall include infbrmation as required by the Department q{Justice fbI' ensuring search capabilities and compliance with National DNA Index System (NDIS) standards.
SEC. 3. Section 296 of the Penal Code is amended to read:
296. (a) The following persons shall proVide buccal swab sam~ tiles, right thumbprints, and a full palm print impression ofeach hand, and any blood .5pecimens or other biological samples required pursuant to this chapter fbI' law el?fiJrcement identification ana~ysis:
W (I) Any person, including any juvenile, who is convicted of or
pleads guilty or no contest to anyfelony offense Elffj sftke fells' irtg effiTtes, or is found not guilty by reason of insanity of any effl:te falls\" ilig 9fimes, felony ojtense, or any juvenile who is adjudicated under Section 602 of the Welfare and Institutions Code for committing any .klonyojfense, sHail, regareless sf Sel11;9F1ee iFAfl8gee sr eiispssitieI: reF! eeree, l'Je leEjoHiree ta ~re iae t\;(''l sflseildel:s ef191ssEi; fi ""ftli"a JElfl1flis, rig:I\!' titdl¥lefJrints, amI a full flalrl'l: print irl'IpfeS3iafl afeas!; bahel fer Ian eHfuFeelli:eflt ieleRti'fieatisB aBEll; sis.
(/\:) Ali) eFFeFIse Sf at1'ell<:Jj.it te eSfAJRit all) felsFI) sff!:!l'Ise eleseri13ea ifl SsetieFl 290, sr Sf!) falen~ 6Rim,je that im:}'l6SeS ltj3SB a pensa tAe eet; ts register iH Galifsrnia ae a sell sWelleet' l:mder SeetieB 299,
CB) P1t1reer iB oislatien efSeetieH 187, 19Q, 19ft.Qr;, Sf all) aegree sf 1Tli'lISer as set fsr~lt in Gh8:~tel I (ecHillleheil1g \\ ith Seetien 187) sf Title g efPart i sf the PeRal Cses, Sf aR) 8Helli!3t ts e6nrlilit Rle:raer.
(01 VeluF.tsl'), lTlSHsla:lghter iii iela~ieB ef £eetisB 192 er aH sttefHflt to eeH1I1tit .eilfHtEiry 11'Isl1!'if!t1:l:gAter.
ED) Felst1) 3fl8liJai a13l::1se ia ,ielatieH ef£eetiefl273.5.
(6) Aggl'8 atea self:'18:1 8SS8l:ilt efa sailel ill y,je!atisR efSeetiel'l2G9.
(F) A [c1en) eWells!:! sf 8:ss8<lIt 61" 1:laMef) iB "ielatiel1 ef £eetiet: 21+.1, 229, 241.1, 243, 243.1, 20.3, 243.4. 243.7, 241, 24., 21>.2, 245.3, Sf 24;.>.

(G) KiaHftl3ping ill 'ielatien €If SHeal isisFI.) Ea) ts (8), iltelt13i e, 81" Seetish 29=7, Sf Seelien 298, 299, 2Q()j, 81 21 g, Sf an ~el'Rf.lt 1'8 €lelt!: l1:it on) af the.~e e#Shses,
(JI) Ma, 116Flt iFl tielatiefl sf Seetien 293 er aggfB'I steEl mayhem itl dela+ieR sf SeetisfI 29S, BY 8a ettsfl:"j3t {"€I 66Il1l1iit eithef sf thess
~
(I) 'Fe:fhus h~ ,iolatie). ef8eefiefl2QG 81 lifl El'''A:elllfltte Sfllltfl it tertdre.
EJ) B'ttrgl8:F) as aeiffieEl iFi Jbl19ai;i,li8F1 Ea) sf Bestion 169 er fill attell1:]3t ta Selitlf1it this eH'eAse.
(K) REI191gef)' as aeRfleEi in.lliBelinisien (a.:) 81' (e) sf£eetit:l:B 212.3 sr 8fl aHerflj3t I'e 8SfI'llait eititef af these eFFefl3e3.
(L) Arsefl in ,ielatisn sf subel., isien (a) sr (61 sf Seetier. 131 er 8H attell'lf't 1;8 eSBln~it eit!\er sftheJ6 offelt.. 8s.
01) Garjasl(il'lg in ieiB:ti811 sf£eetisB 213 sr fiB attsFAj3t ts 8eH1I1.it' this effeflfle.
Ell) 1'erfsrist ostt it) iR ,'ielatiel: sf Seetian 111 j8 sr 111 19, er!:1: i'sier:,. ni81stier: Elf Seetien 1141 gj, er an fltteA'l:~t te eeffil'i~it an) sf
tHese effehses.
(2) Any adull. person who is arrestedfor Of' charged with any (?f'lhe following felony offlmses:
(A) Any felony offense spectfied in Section 290 or attempt to commit any felony offense described in Section 290, or any felony offense that imposes upon a person the duty to register in Cal!fi>mia as a sex (~ffend­
er under Section 290.
(B) Murder or voluntary manslaughter or any attempt to commie murder 01' vohmtal:v manslaughter.
(C) Commencing on January I (~(the/!tth yearfollowing enactment qfthe act that added this subparagraph, as amended, any adult person arrested or chwged with anyj/31ony offense.
~ (3) Any pcrson, including any juvenile, who is required to rcg~ ister under Scction 290 or 457. / because of the commission of~ or the attempt to commit, a felony or misdemeanor offense speeiFies in Seetiel: ~, or any perSall, including any juvenile, who is housed in a mental health fi;rcility or sex offender treatment program qfter re/i.m'G1 to such facility or program bya court ({fier being charged with any./i3lony (~tfi.mse amj,v ke is eef11JhiH'ea te 611] iFistit~~ltiel1 liFiaer tke jdtrisaietiel1 €If tke Dej3arfi1tSnt af' M:!9 ....:'s:&11 Alitl~arity P here he et' sHe lItas senfiFleel; €Iris grantee f)fOBaiiSH, of is er j e.s eell'lWliftea t:e a .Jtate Lesf.litaiaJ 6 R'lsntal J) aisoraerea 3e;!{ effeflser l:iltSel Al'tiele 1 (esffiffieBeiAg iffi Seetien €i3@@) efCJaJsf)ter 2: efPart 2 8fDivisisfI 6 €If the V4;lfare aBa JRstiF\itjOR.~ Ceee, shalll:Je rec.:!1:1ireete flrs,iae tOle .Ipeeifllehs 8f13lses; a sali,a .lftffi pIe, right liklilw.{:!f1riflts, aHa s i'M1l13s1m print iB1f;lreBsisn sf sash kafla to ~hat il1.9ti:<itiafl aI', in the ease sfa fJerS81'1 gnl:nleEi j3Fesstiell, Il a flersstl SHa at a (aeatieR \IithiA the ee<ll1t) aesignateel fer te8~ing.
(4) Th,e term 'felony" as used ill this subdivision includes an attempt to commit the o.ffense.
(5) Nothing in this chapter shall be construed as prohibiting collection and anaiysis afspecimens, samples, or print impressions as a COIIdition (~f a plea./or a IIIHH/ua/UYing offense.
(b) The provisions q/ this chapter and ils requirements for submission 0/ specimens, samples and print impressions as soon as adminis~ , trative(y practicable .~ha!l app(y to all qual(fYil1g persons regardless 4
sentence imposed, including any sentence q(death, life without the posSibility o/paroie, or (lilY if/e or indeterminate term, or any other disposition rendered in the case ofan adult or juvenile tried as an adult, or whether the person is diverted, fined. or referred fbI' evaluation, and
regardless of disposition rendered or placement made in the case (?f
juvenile who /sfolll1d to have committed any/dOilY qffense 0]' is adjudi~ cated under Section 602 of the Wef/hre and Institutions Code.
~ (c) The provisions of this chapter and its requirements for sub~ mission ta teal'ing ofspecimens, samples, and print impressions as soon as administratively practicable to ~ro 'iat! .JpeeimSFI!J, 88:1 lJ_le." !Inti flrint ililpre.3siens by qualffied persons as described in subdivision (a) shall apply regardless of placcment or confincmcnt in any mcntal hospital or other public or private treatment facility, and shall include, but not be
limited to, the foHowing persons, including juveniles:
(I) Any person committed to a state hospital Of other treatment facility as a mentally disordered sex offcnder under Article 1 (com~ mencing with Section 6300) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code.
(2) Any person who has a sevcre mental disordcr as sct forth within the provisions of Article 4 (commencing with Section 2960) of Chap~ tel' 7 of Title I of Part 3 of the Penal Code.
Text of Proposed Laws I 137

TEXT OFCPasRe3O:0P9-OcvS-0E47D79L-CARWB SDocument1-1 Filed10/06/09 Page5 of 12

(3) Any person found to be a sexually violent predator pursuant to Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code.
f:e1 (d) The provisions of this chapter are mandatory and apply
whether or not the court advises a person, including any juvenile, that he or she must provide the aat'aaank data bank and database specimens, samples, and print impressions as a condition of probation, parole, or any plea of guilty, no contest, or not guilty by reason of insanity, or any
admission to any ofthc offenses described in subdivision (a).
(a) At sentsneiBg Sf aiS)38sitisB, :he j:lrsseeutil1'; atten'ley shall' el ii) il'l "ritiFlg that tHe ISfll1iElite s8J'Iiplss ars J'efj:l:lired: I'J) la .., anti that they 11&"e Beef! taleeR, Sf are ssh6El-:·tleEi ts<be tah:en 1gefer6 the eFfeAaer is releasee ell ~reaatien, er ether, eLea1:lJea rele6se. Haw 8"'6f, a l'aihir8 b) tlole }3f9.:eet:l:til'lg aMerne) s1' aB) ether Ie 8i"lfereSl1tent ageRS) ta ;sr If) .!aB1j31e reEj:ail811tSht 81 8811861;1911 shall liS'!; relis' 6 a ~erssf! sf t41s fefjuirSll1Sf!t ta j3rs, iae stl;h'lj3ies.
(e) If at any stage of court proceedings (he prosecuting attorney
determines that ,lpecimens, samples, and print impressions required by this chapter have not already been taken from any person, as defined . under subdivision (a) qj'Section 296, the prosecuting attorney shall notif.il the court orally on the record. or in writing, and request that the court order collection q(the specimens, sample.<,·, and print impressions required by law. However. a/i.dlure by the prosecuting attorney or allY other law enforcement agency to notifY the court shall not relieve a pe,.~ son (?f the obligation to provide specimens, samples, and print impressiems pursuant ro this chapte!:
W (f) Prior tofinal disposition or sentencing in the case the court
shall inquire and verifi; that the ,\pecimens, samples, alld prillt impressions required by this chapter have been obtained and that this fact is included in the abstract (?{'judgment or dispositional order in the case ofajuvenile. The abstract ofjudgment issued by the court shall indicate that the court has ordered the person to comply with the requirements of this chapter and that the person shall be included in the state's DNA and Forensic Identification Data Base and Data Bank program and be subject to this chapter.
Hovvever, failure by the court to verifjl specimen, sample, and print impression collection or enter these facts in the abstract ofjudgment or dispositional order in the case of a juvenile shall not invalidate it an arrest, plea, conviction, or disposition, or otherwise relieve a person from the requirements of this chapter.
SEC. 4, Section 296. I of the Penal Code is amended to read:
296.1. (a) The specimens, samples, and print impressions required by this chapter shall be collected /ivm persons described in subdivision (a) ojSection 296fhr present and past qua/{j'ying (!ffenses of record asjbllows:
(1) Col/ection ji'om any adult pel:WIl following arrest for a fdony o.ffense as specified in subparagraphs (A), (B), and (C) afparagraph (2) o.fsubdivision (a) o/Section 296:
(A) Each adult person arrested/hr a/elony (~ffense as specified in
subparagraphs (A), (B), and (C) o.fparagraph (2) ofsubdivision (a) 0/
Section 296 shall provide rhe buccal swab samples and thumb and palm print impressions and any blood or Ofher specimens required pursuant to this chapter immediately fbllowing arrest, or during the booking or intake or reception center process or as soon as administratively prac~ ticable after arrest, but, in any case, prior to release on bail or pending trial or any physical release/rom conjinement or custody.
(B) {( the person subject to this chapter did not have specimens, samples, and print impressions taken immediately following arrest or during booking or intake procedures or is released on baU or pending trial or is nor coY!fined or incarcerated at the time (?fSenfencing or otherwise bypasses a prison inmate reception center maintained by the Department of Corrections, the court shall order the person to report within .five calendar days to a county jail jacility or to a cifJl, state, local, private, or other designatedjacilifY to prOllide the required specimens, samples, and print impressions in accordance with subdivision (i) o/Section 295.
(2) Collection/rom persons corifined or in custody after conviction 0,. (l((judication:
(A) Any person, including any juvenile who is imprisoned or con~ .fined or placed in a state correctional institution, a coun~l'jail, a/acilify within the jurisdiction of the Department 0.( the Youth Authority, the Board of Corrections, a residential treatment pmgram, or any state,
local, city, private, or other facility a,/ter a conviction 0/ any felony or

69 (cant,)
misdemeanor (lfense, or any adjudication or disposition rendered in the case of a juvenile, whether or not that crime or qffense is one set fOrth ill subdivision (a) OfSection 296, shall provide buccal swab samples and thumb and palm print impressions and any blood or other specimens required pursuant to this chapter, immediately at intake, or during the prison reception center process, or as soon as admin15..tralively practicable at the appropriate custodial or receiving institution or
placed in program if:
(i) The person has a record (If' an)' pas! Of' present convictioll or adjudication as a ward 4the court in Calfj'omia (?(a qua/(f.i,jng qfJimse described in subdivision (a) ofSection 296 or has a record ofany pa<;t or present conviction or at{judication in any other court, including any stale, federal, or military court, qj' any oj/ense that, if' committed or attempted in this state, would have been ptlllishahle as an offense described in subdivision (a) ofSectioll 296,' and
(ii) The person~' blood Jpecimens, buccal swab samph:s, (lnd thumb and palm print impressions authorized by fhis chapter are not in the possession q( the Department ofJustice DNA LaboratolJI or have not been recorded as part of the department j. DNA data bank program.
(3) Collection/rom persons on probation, parole, or other release:
(A) Any person, including any juvenile. who has a record (l any
past or present conviction 01' Q({judication for an (~[fel1s(~ sel fbrth in subdivision (a) o.j'Section 296, and who is on probation or parolejor anyfelony or misdemeanor ojkl1se. 144tether or not that crime or (?fknse is one set/brth in subdivision (a) of SectioN 296, shall provide buccal swab samples and thumb and palm prillt impressions and any blood
specimens required pursuant to this c!Japtel; ff';
(i) The per,yon has a record (l any past or present conviction or
adjudication as a ward qfrhe court in Cal(/hrnia qj'a qualtt.liing o.ffense described in subdivision (a) ofSection 296 or has a record ofatly past or present conviction or adjudication in any other court, including allY state, flderal, or military court, 0./ any (~!rense that, (l committed or attempted in this state, would have been punishable as an offense described in subdivision (a) q!'Section 296; and
(ii) The person:~ blood specimens, buccal swab samples, and thumb and palm print impressions authorized by this chapler are 1101 in the possessioll (~( the Department qf Justice DNA Labo/'atOl:V or have not been recorded as part of the department's DNA data bank program.
(B) The person shall have any required ,11Jecimens, samples, and print impressions collected within five calendar days i?/' being notified by the court, or a law errfbrcement agency or other agen(v authorized by the Department 0.( Justice. The specimens, samples, cmd print impressions shall be collected in accordance with subdivision (0 of Section 295 af a county jail jacility or a city, state, local. private, or otherjacifity designated/br this coliectioll.
(4) Collectionfi'Om parole violatOl:Y alld olhers returned fo custody:
(A) {f a person, ineluding any juvenile, who has heell released on parole, jiulough, or other release for all)' (dfense or crime, whether or flot setforth in subdivision (a) o.fSectioll 296, is returned to (/ state cor~
rectional or other illslitutionfbr a violation 0/a condition ofhis or her
parole, furlough, or other release, or.for any other reason, that person shall provide buccal swab samples and thumb and palm print impres~ siems and allY blood or other specimens required pursuant to this chap~ fer, at a state correctional or other receiving institution, if
(i) The person has a record qf' any past or present conviction or ac{judication a,)' (( ward o.fthe court in California ofa qual(fjling o.ffense described in subdivision (a) ofSection 296 or has a record oj'any past or present cOllviction or adjudication in any other court, including any state, federal, or military court, of an)' offense that, (j' committed or attempted in this state, would have been punishable as an offense described in subdivision (a) ofSection 296; alld
(if) The person:~ blood specimens, buccal swab samples, and thumb and palm print impressions authorized by this chapter are not in the possession of the Department o.(Justice DNA Laborat01J' 01' have not been recorded as part of the department :1,. DNA data bank program.
(5) Collection /i'Oln persOIlS accepted into California from other jurisdictions:
(A) When an ojjemderfrom another stale is accepted into this state under (my qj'the interstate compacts described in Article 3 (commenc~ ing with Section 11/75) Or Article 4 (commencing with Seclion I JJ89)
of Chapter 2 of Title I (!l Par! 4 of this code, or Chapter 4 (commenc-
ing with Sectioll J3(0) of Part I o.j' Dil'ision 2 (~f' the We(<Jl'e and

138 I Text of Proposed Laws

Case3:09-cv-04779-CRB Document1-1TEFiXledT10O/06F/0P9 RPOagPeO6 oSf E12D LAWS

Institutions Code, or under any other reciprocal agreement with any county, state, or/ederal agency, or any other provision q( law, l1,herher or not the offender is confined or released. the acceptance is conditionalan the (~ffenderproviding blood specimens, buccal swab samples, and
palm and thumb print impressions pursuant to this chapter, ifthe offend-
er has a record C?f any past or present conviction or adjudication in Cal{fornia ofa quat{/ying offense described in subdivision (a) o/Section 296 or has a record ofany past or present conviction or adjudication or
had a disposition rendered in any other court, including ally state, fed-
era/, or militmJ1 court, qlany offense that, if committed or attempted in
this state, would have been punishable as an qrfense described in subdivision (a) of Sectlon 296,

(l~) lfthe person is not cOI!iined, the specimen.':>·, samples, and print

impressions required by this chapter must be provided M1ilhinjive calen-

dar days after the person reports to tlte supervising agent or within Jive

calendar days of notice to the person, whichever occu/'s first. The per-

son shall report to a coun(y jail facility in the county where he or she

resides or temporarily is located to have the specimens, samples, and

print impressions collected pursuant to lhis thaptel: The !>pecimens,

m samples, and print impressions shall be collected in accordance with

subdivhiion o.fSectfon 295.

.

(C) ({the person is cOl'!.fined, he or she shall provide the blood specimens, buccal swab samples, and thumb and palm print impressions
required by this chapter as soon as practicable after his or her recell)! in a state, county, city, local, private, 01' other designatedfacili~]1.

(6) Collection from persons in federal institutions:

(A) Subject to the approval of the Director (~rthe FBf, persons con-
.fined or incarcerated in afederal prison orfederal institution who have a record ofany past or present conviction orjuvenile adjudication for a qual(fjling offense described in subdivision (a) afSection 296, or o/a similar crime under the laws ofthe United States or any other state that would constitute an q{l<.:mse described in subdivision (a) qrSecfion 296,
are subject to 1his chapter and shall provide blood specimens, bucca! swab samples, and thumb and palm print impressions pursuant to this chapter (f any of the /(;llowing app~y:

(i) The person committed a qualifying offense ill California.

(ii) 'f7w person was resident a/California at the time q(the qualifjiing oJfimse.

(iii) The person hps ally record of a Cal{/ornia conviction fbr an oJf€mse described in subdivision (a) q(Section 296. regardless qrwhen
the crime was committed.

(iv) The person ydll be released in California.

(8) The Department of Justice Dl'·/A LaboratolJ) shall, upon the
request (~( the United States Department (~fJustice, fbrward portions 0/
the specimens or samples. taken pursuant to rhis chaptel; to the United Slates Department ofJustice DNA data bank laboratolJI. The jpecimens
and samples required by this chapter shall be taken in accordance with the procedures set .!brth in subdivision (/) q( Section 295. The Department of Justice DNA LaboratOl'Y is authorized to analyze and
upload specimens and samples collected pursuant to this section upon approval ofthe Direerar ofthe FBI.

(b) Retroactive application (~(paragraphs OJ, (2), (3), (4), (5). and
(6) ofsubdivision (a).

(I) Subdivision (a) and all o/its paragraphs shall have retroactive application. Collection shall occur pursuant to paragraphs (I). (2), (3), (4), (5), and (6) a/subdiviSion (a) regardless (~lwhen the crime charged
or committed became a qua/ifjJing offense pursuant to thL', chapter, and regardLess of when the person was convicted of the qualifying (ij.!ense
described in subdivision (a) q(Sectio/1 296 or a similar crime under the La'ws of the United States or any other state, 01' pursuant to the United States Code qj'Military Justice, 10 U.S. C. , Sectiom. 801 andfollowing, or when disposition was rendered in the case of a juvenile who is adjudged a ward (~f the court fbI' comml:~'sioll (?( a qua/([ving olfimse
described in subdivision (a) 0/Section 296 or a similar crime under the
laws 0/ the United States 01' any other state.

(a) AI.., fJersen, inelt:leiRg EH~ jld\ anile, He eeffles' itHin the fJfS .isisl'ls sf this eka~ter fa! eli af¥ehSe set Ferth ilt s"t'laaLisian (a) af
£ee1;ien 296, ena wLe is graJ.tes \3raba!ian, ef SSLes his er ker entiFs teflTl ef eSllHnelTlent il'l: a eet:ln~ jail, SF is Het s9a:eflsee to a terlfl of
eanHheR.eflt iR a state 13rlss11 iaeilitry, sr ethsl"....ise bY\9assss a \3risen iAffiate rsesj3tisl: seAter ffiail:tainsEi 8) the I!)efJartffisHt sf CsrreetiSH:9,
shall, as saSH as aSFfliliUrativel) lwastieaele, a'lilt in !tfI) eaJS, r-risr ts 13h).lieal relea.le frsl" e"t'lstaa), be re::j:dlrea t'e fJrs,iae ',.' 13 npeeimehs sf elsss, S 98.11,.a saffitlle, ana tl'l:URle aRe 13alifl 13riht ilt1\3rsssisRS as set

fenA ia 3dedidsioFl (8) sfSeetiEH'l: 2%, at a S01:llil) jail faeilit) Sf ether state, leeel, er l"lloats 'faeilil') aesignates Fef tHe eelleetisn sf lhsss Sfleeil}1eAS, samples, ami \3fint iI'Hf)Fessishs, in aeeursaAee" ith ,)Heei i sieR Ef) E)fSeat'iel1 2%.
I¥tohe l"erssn st-lbjeet ts this eha!3tsl' is net ifl9fll'eeratea at the tin:;e sf s9ntefleing, the 9€1l:irt shall sreler tHe f,lsreSI1 ts repal'1: 'i\ ithi1~ B', e ealen gar days te a seaRl; jail f'aeilit; s~ ether state, Jeeal, SI' rJli,ate faeilit) se.;igRfHeEl far t.hs ealleetien sf Sfleeintens, "lalflfl1es, ane priflt it'n~res SiSHS te f!rs dEls these sfleeiJilene, sSlr.ples, aHa \3ri1:t i1ltj3reJSieflS in seesHial1se" il'h s1:IeEk isi81'1 (n ofSeetiaR 293.
(19) If tI flefsen ,be ss·n.e.) dithin the flrs isisns e f t'1ti.~ eLapter fer al1 ef'fense set' [arlit ill suesi, isien (a) ef £eetieH 296 iJ sent-sneed ts BeHS a tenT! sf illlflfissnlHeflt iB a sffite eenest-isRal iFlatii'"tltiep, the 9irestsl sf GerfsetisAs shall eelles: tLe bleed ,)peeinH1Flo, JHli 1, SHIrl 131138, aHEl I'lUII'h~ aHa l~alrfl t"yint impr8ssiens I efJdired 8) t!:i.1 ehapl:er ff8ffi the !3erser. 8.drll'lg l'l'1:e intalEe j3fssess at the resepti8R eeLter eesig Hates ay tae a.ireetsf, er as S881'1 an 8sl1"liRisR'atio ely Ilrastieable theFs aftsr at a reesi, jAg perl:{~i iRStit1:ltiSfl.
(e1 An; j:P8rS8n, il'lsl,Hiing, Slit Ret Iin~itse te, an, ju\eHile €Ifill al'l) ~el'seB eel'\,je~eel alia. seFlteHeea ta aeat-h, life 1 itl18dt the p:3siaiJit') af 13arele, 8r an) life 51 il'leetenninete tefl", \.118 I.J imj9ri.JtW!ea er eelti'iRSa in a state eerrsetisAai institutiefl, a eer:..ntry jail, a faeility dithin the j"t'lris aietisfl ef the DSf,lartFH81'1t ef tl~e ¥8"dth A1:ltheritry, Sf aRY sther state, leea\, sr j3ri' ate faeilit) after a 8en:ietisR sf any erime, sr ai.ljl€)sitiel1 reneeree in tIle eaile of ajd\8F1ils, "het!:er Sf net that el'ir'fle 611' !)'f+elICe is SAS set fert-h iii saBa.i \isisl: (0:) (f8eetisfl 2%, aLai! 13m ..iee t.; 61 iiltlee irfH'!118 sf blseEl:; flo sfloli. e sBffiflle, O:l'Iei thumb and \3flolR"l pril'!t il~Ij:.'JfeSfliell5 \:!tlrStHtFl:t tie thiJ e};af3~er, as sesn as flEilnini,ltfflti; 81) f3Faetieaele ense it has been eetenBiAea tllet eeth ef ~Re Cell€' "iHg flJ3fJl):
(I) TI~e flerSSll Hflsl3een eSR' leted Elr aeljtisieateEi a 'varel efthe eetlrt in CalifeFlo1Jia: €If a etttalifyiAg s'ffsH.le ae.Jeribee iii at:lbaid~iel'l (a) of SeetisfI 296 aF RuB been !!lell; ietes or hae fI ei8poilitieR rel~aefea in an) etfler 8e1:fft, iRelttsiBg aF!) al:ate, keeral, ef Hlilital J eel:lrt, MaR) eFfCl.se tHat, ifesFflffiitted erausl1')j9teEi in ~hiJ state,' 's:ilEl hffve beel'l f1U1~islla8Ie as SI'l: St€sHS9 ae.lsfiaea iR sdhlEhdsiol1 (a) efSeetisH 2%.
(2) THe !'lersen's ~leea s]geeimeHs, salix.o: s8ffiflles, ans th'lll119 ana j3elm flril'lt iffiflre.'L iens 8ldtheri9.isa 13) tl.is ek8:flter are fle~ il1 tHe lasses sieri eHhe aSf.!altlnSl'lt efJt4.]tiee aNA balHlfatef) a: part sf the Dl>IA aata eaRll }'3fOgfttfth
This s1:Ibaj' i.liEIH aj3j9lies reGSn4hu3 sf ,he1: tIle flefsen ) as eew iet sa eftl-te Ettlelif)'iHg effimse aecerieeEl in 8«I3E1i 'lsieB (a) cf Seetien 29r:i Sf a sin'lilar srime ',maer the Ie s eftl:e Cl'Iitslii States sr fiR) ether gtate, Sf; hefl E1i5~8.Jiti(n 11 as rei Eleres iii the sase sf a j~;el1:i!e "he is aajuagea a are aftks 9SrlJt fZer eam!l'Ii5Sien Bfa Ettlali~jl'lg eA'eREiS liIeselibed if'1 subdi; L!iSll (8) sf Seetiel: 296 vr (; .~ilHilar erin~e tlHt!el tLe la s efthe Uflitea 8ta~es 5r 811') other stA:te.
(a) AfI)' f3ersen, iHei«Eiil'lg an) jU/8Hile, ,he sen~e.~ "'itl9:iH tHe pre 151en9 of thiJ ehl:1:~ter faF SF! offell.)e .Jet fart!: ifl .lUheivision (a) sf £eetiefl29G, (\REI hE) is SR j3re6atisH Sf parsls, shfllles re€jtlireE! te flre ,ise t. 61 s~eeifl'leRS efbleeEl; a sati a: s€unple, aRa. ti:t!ll'JIB ana J3fl1Ji. fJriHt iffij3ressiens as rel1I~:i'feElI9I:lrSl:lant to t;hia el'laptef, if it is aetermiHea that tofle ]gersea has Bet pre.isrlsl) Iwe' isee ~heJe sj3eeirl'l:elts, saffil~les, ana fJrint il'l:1j3ressiens te lac elifSreSHiBt'lt, 81' if it is seteff'l'tiBea tllat ~hsss S13eeil1~ens, SalHtlles, efta j9riRt inlf3rs.~siah5 are net in the passessisn ef tl1e f:>ej:P8rtt¥HHH af Justiee. The l~ersen :hall ha 8 \'l.s St, eeill'lellG, S[dn l3ies, aRa flrint iffi\3ressisl'l:9 6s11eetea \, itHin H e ealeRsAF sa) a sf aeiltg I~etif.:ietl e) ala .. efl'fflreement ageRS) sr ether agene; al:1theri7.!:es b) tlte geflartffi9Rt sf 11:15tie8. THe 8f3eeifl'len.l, 58:I'fIple.J, ana J'lrint ilHf3ressisHfi shall ae esl!eeteEi [11 aeeefE1anee ,ith aBoaElioi.'isl1 (I) efSestien29§" at a eeuHt) jail faeiliFJ sr ether state. leeal, Sf pri' at.e fueilit) sesignates fer this eelleetisR.
THin slieEl:i ,iBisl' skall &fJfJI) 1e.:oLI E1ls..J Elf 7 lien tI,e alinle eel"l,:ltrea 899ame fj €J:t:mlit~ illg offense 13\:lrDliHnt te 0,1.1 eLapter.
(e~ \Pben an sft'eREler i'ren~ anether .,tate it' ileee]9tse ints this Mate 1:II1ser ElH; aftke ili~er.jtate eSl'flflaets eeserilleEl iB Artiele 3 (eelHFflsne ing "itl<! Seetien Ill?§") srArtisls q (eemrl'leneiflg ,til Seet'ien 1189) sf Chapter 213fT/tie J sf Part ~ l f'l:l:is eeae, Iilr Chapter q Eeol111.,ene il'l:g itt Seetien 13Qfi9 sf Part 1 sf DL isiaH 2 ef the Welfars ana IlIStitl:1tislt.l Geee, or duder an) othel reeiprseal agle9lHBnt ;,itk (\11) eeRnt), state Sf fsaeral a-gene)" er SHY ether 13rEl <'isia]': ef la 1, q bethsr Elr l:et the si'f'enser is eSHfinea €It' releaseS, the aeee~taHee is eenal tieRal 6R r+:e sf'feneer flreviaing blesEl .I13eeiFRen.:, .18:li"a .Jamfjle.), IU1a pahu amI Hl"t'lme j:lfiht in1f3feSsisl'ls pl:lrJdalH ta thi.l eh8:\3ter, if the s'fFeHe!er •• as ;:len, ieteEi ef aB etkli5e I hieh 1Ie tile! fJotlaJit) as fI erifRe aeseribee iA !meai'oisiel'l Ea:) efSeetien 296, Sf iftke 13erSsl'l1 8:.~ een
Text of Proposed Laws i 139

TEXT OFCPasRe3O:0P9-OcvS-0E47D79L-CARWB SDocument1-1 Filed10/06/09 Page7 of 12

vietea of a siB-1iler erims lihEler ~ke lEw s sf the Uflitsa States ,ar EtA) ether state.

iese If the f3sre8fl if flet eenfil'l96; tl e s~eeir:\ens, salA~Jes, tHla flrint

il¥1:l"re" SiSI'IB F9f]:direa 19) ~ki!] eI apts!" 1l-1:ISt BS ~re i

,tithiJ' 1'i; 9 eal

Sflasr SS) 5 after fils efFshl'ier rSFlens to 14.9 Si:'I.t'SI • j,Jillg agel;! sr ' i itltin
H; e 9als1l6B:f aa; s sf ftetiee te the eFf'lmeier, 'Nhieke o'sr eeeufS BFet. The

f,lSr.'8FJ shall rSF'srt ta a e8uhl; jail ti19i1il'), ifl tHe eSlill'!? 11 here he SF she

,"esises Elf MFflfJ6ffiriJy is lesafes fa Bale toRe sf!seimsns, aElHlfJJss, ana

flrilH iml'lressiells eeHeeted j9arau6Ht 1'9 tUg eha.J3tsr. T!:ts Sj3SeiA:9HS,

eam13ie", Elfie f:'riHt ifl43fessieHs shaH be gelleetse. in aees1(4a1:se 11 ith

Jl:d:lfH "isisl! (t) ef Seetiell 295.

If the f!9raen is 9S11BHSe, he ElF S,'iS ,shall J3revies t'RS 818$8 sJ3sei
ffiefl5, sali-' a Sarfl]3!s", aBEL fHl:HTJf.J (me flaifl'. print ilhfJrSr,)isns F9€j'aif6a. B, tki.l ekap!er as SeieR 8s13f9:etieaeie after hi,) sr her Fseeij3t 1B a [Jtate, ee:1B:'l), !(leal, pri "ate, sr etHer faeilit).

(f) SMajeel' t'a the 8f.lf.lfe,al ef!'he 9if'oSster of the f'eaeraJ 13afscHi ef In 8stigatien, flsrsslls eel'lMneei er iBeareera1:ee iii a feaeral f)riSeR ar federal iflstit'l:ltien lassies in CaliferAia "he are sell; ieted efa ~\ialify iflg eG'eRSS aessl'ieea in 9l::'1hEl:i,isisl:1 (tB sf Sestish 296 sr sf a similar erime liilser tHe la's eftJ:e Ul:1itea States ar an) el~her state t!:lat 'VEnits. eSA:'Hitl:tte SR e#snse aes8riaea ilk sdbaivI,)ll1l1 (a) ef Seetil2H 2%; arB
sttbjeet is t4tis ehapter aHa sHall flrsoiEle Elsea SfJeeiffiefls, ,1Et'i,a sarA pIes, fiftS tl¥dl¥lf.J tHiS 13ail¥l fJriItt irRf!Jressiens ~UnHiafjt:6 thi.s ehopter if affj> of ~he fells" ing af.'~I;':

(I) The j'3er')81'1 e(lI¥1J'tlittes a EtliAlifjing effenf3e 111 Calife1l1ifl.

(2) The !3SrsSfI q as a rBsidsfH sf CaJiJ'ernia at the ~ime ef 14.e ~l:la!i F) tRg effense.

(3) The per.~tm has all) reeerasfa Galit:."lrl1ia sGw:ietisn fsr a .~e){ 8f '< it~leBt slfease aefleriees il-1 ,lueEih isielt Eft) sf Seetisll 296, regard less sf "hel: ~He erime "'as eSffimiaea.

(1) THe flers5Fl Till ae Jeleaseel iB GalifsrAia.

Ones a feaeTar sate; !:JanIE is estaBlishes etl'la tteeessie[e te tHe
De)3artlaeltt ef llistiee, the Del3flrtmeltt sf Justise Dl>IA baeeFater)
sh!tll, liflall the rSef,l9st ef lffie Ul'Iites St&t'es PS\9flrtl'lleFlt sf hstiee, for" firB tH8 ,lafl4}les taken )3t:l:fSl'lflnt ta this ehafJter, ;, itlt the eneer'tisp, ef t>lies8 takes [rem 5blS\geets f3HfBuafll" te sueai; isiea (a) sf Seetisn 297, ts the Unites Sta~es De\901'1'lheht efJustiee D"P'IA eate eanl[ la1:1e rater). The s8R'1pies al'lll ifl1f,,"e3Sierifl rSEldirea ey tltis eh!lflter 911&1113e !'al~efl ill aeeeraanee vitI: the j9reeesJ:res set 'fer13fi 111 BaaS!, iSISh (B ef
Seefiol'l 29§.

(g) Ifa j")erSSlt ; he is l'siearea en ptfFele, f.i::llicugh, sr ether release, 1:1 re{;;.rnee te a state eerreetiehal iH.Ritl:ltieR feF a ,ielati()1'l sf a eel'lai tieD efltis sr her j3arele, 'A:5.rieligh, a1' ather release, amI is seLiRg sr 8t AB) tilH8 has senes a term efifJlf3risSfltflent fer eeffifl:itting lifl ef.fsflse
ae.)elF'aee iF! sHeai I isisn (8:) sf Seethlh 2%, aftd Le ef she Elia I'Ist firs ,"jae sl~eein~ells, i'l8:ft::ples, Bftd ¥lfiltt iFilfjfeSsisl'ls fll:USdRflt 1'8 the State's Dl>lA sata tahlE jJregrani, fI:'l:e f3erseB sl.sll sl':l:6rnit te eelleetiea ef1:lleea S]geeirnSflS, salina sBmI'les, BRa thl:llne al'la fJah'l'l fJriF,t il'l'lflressisHs at a
st:ate ssrreetisl'laI il'lstitl:ltien.

THis Stiea, <,isieR fl'j3fllies regafaless Ef tte eritae at' PeDal Csse pie latieA fer r !:lie]) a !9srB€h L fstl'tfBeS 1:e a sfa!e E!srreetiOl)al i~:stit\itien
lIlta regarale,ls ef:4le sate t4~e Ej<1alif:,illg al"kn.ls "sa 8el¥.lflitteS..

SEC., 5. Section 297 of the Penal Code is amended to read:

297. (a) (I) The laboratories of the Department of Justice that
are accredited by the American Society of Crime Laboratory Directors Laboratory Accreditation Board (ASCLD/LAB) or (lny certifying
body approved by the ASCLD/LAB, and any law enjorcement crime laboratory designated by the Department of Justice that is accredited
by the ASCLD/LAI3 or any certifying body approved by the ASCLD/LAB, are authorized to analyze crime scene samples and
other samples of known and unknown origin and to compare and check the forensic identification profiles, including DNA profiles, of these
samples against available DNA and forensic identification data banks and sata ~'ases databases in order to establish identit.y and origin of
samples for identification purposes.

(2) Laboratories, including law enfbrcement laboratorIes, that are
accredited by ASCLDILAB or any cer!ffying body approved by the
ASCLDILAB that contract with the Department 0/ Justice pursllallt
to Sectioll 298.3 are authorized to perform anonymous analysis qf specimens and samples fbI' ji>rellsic identification as provided in this chaptel:

(I,) ,(I) 6lEee13t as fJr8' ielaE! if! fJ&ragraflli (2), n eielegieal s6fT'l:f!le take" in tits eSl:!:rse ef a el imihal in, tstigatiel'l, sitker \ sluntaril) el' 6) e6tlrt erser, fi'sm a 13erse~l ,he J..\as Ret !:leef! SSA; istss, lilOY sl'Il; be eall:1j38:rea lie ,~ample.~ ttilam H'eB~ ihatspeeiHe erilfliJ)sJ iw'estjgnti13B ana may net ee eelT'l:pl'lred t6 sFIJ etter ,jamples frshl any ether erifninal iw'es~igation "itl:eat a ee:'trt srBer.
(3) A eielsgieai sal:nflle e!1tained 'A'SIf! ( oHsfjeet, Sd'i sefiiAea if! flsre gF6:t3h fj), ill a erjl~lilH~J ilH sstigathm lJl£I) Be !lfll!l;zsi:ll'6r fsransie ieen ti'Heat'ielt pre'iiles, ineil1aing OH\ I'll eRie:'! se that the f,lreflle san be plasse in a SHs~eet Elata base flle al'lEl ssarehea trgainst t~1s Dn~ S6tH bailie JireR'e.) sf sa,le e, 18:81,e5. Pet tHe j'1l:1r~ege,i oftJlis 5<1Bdi, '.lien, tIle Dl>JA data aan\c sefflf!arisSR sf lHiSj3set ans e1 isehee )3fsBles lTia) ~e
ITlaae, a, t!:ls D1>IA Labsl'BtSf) ef the BSflsltlTlSnt sf JHetiee, af ali,
erira:s laesrato" eesigJ:tl:tss h) tfJe PepartaiSltt ef.hl.ltie8 that is aeBres itsa ll, the ASCU)'LAB (Dr ali) eertH~il1g Lea) apflHI,ed E) tLe A£CbD'bAB.
(3) Fer tfle I9lirfJ80es eftltis sl':l:bsi isien, "s: SI$5j'3Set" ffiSaBS Bf)erS8lt agailtJt "lleH'l ali infermati8R Sf inaistJusnt has besn filea f'br SBe ef~he erilfl:ss listes in BI::IS5i isle!) (9:) efSeE3tisl'l 296. rSf the PdfFsSSS eft11i3 sl:ffiaivisisH, a fleniSH s!:eil. Fsrnail'l a sllsf!set fer t e YSRrs FFSR1 the Elate efths FiliBg 5ftl:!s itlRH'fnst'ien 51 insist-ment 81' until die D~)/'. lal~en~ ter) rsseLes flstiHeatislt that tke pSFi'lElll Lafl seen heE'jdiHea 8f tLe eharges er tfte sharges 1 81-e aiSl't1issee.
(b) (1) A biological sample obtained/rom a suspect in a criminal investigation fbI' the commi.,,~\·ion (~r any crime may be allo(vzed fiJI'
jbrensic identification profiles, including DNA pl'q/iies, by the DNA Laboratory (?f'the Department qfJustice or ally law el~fi:m:ement crime laboratOlY accredited by the ASCLDILAB or any cert(!.Vfng hody approved by the ASCLDILAB and then compared by the Department qi' Justice in and befl-1-'een as mallY cas:es and investigatiol1.':' as necessmy, and searched against theji>rensic identification prqfiles. including DNA pr<?/iles, stored in thefiles o/the Department o/Justice DNA data bank or database 01' all)' avail(~ble data banks or databases as part of the
Department qf'Justice DNA Database and Data Bank Program,
(2) The law el~rorcement investigating agency submitting a specimen, sample, or pl'int impression to the DNA Laborlltvry of the Department q{Jilstice or law enforcement crime laboratory pursuanl to this section shall inform the Department of Justice DNA LaboratOlY
within two yeal's whether the person remains c< suspect in a crimina! investigation. Upon written notification from a law el'!fol'cement agency that _a person is no longer a suspect il1 a criminal investigatIon, the Department a/Justice DNA Labomtm)" shall remove the su.~pecf sam-
ple/rom its data bank:tiles. However, any identification, warrant, arrest, or prosecution based upon (/ data bem/{ 01' database match shall not he invalidated or dismissed due to a failure to pwge or delay ill purging
records.
(c) All laboratories, including the Department of Justice DNA lab~ oratories, contributing DNA profiles for inclusion in Calif"ornia's DNA Data Bank shall be accredited by the ASCLD/LAB or any certifying body approved by the ASCLD/LAB. Additionally, each laboratory shall submit to the Department of Justice for review the allnual report required by the ASCLD/LAI3 or any certifying body approved by the ASCLD/LAB which documents the laboratory's adherence to ASCLDILAB standards or the standards of any certifying body approved by the ASCLD/LAI3. The requirements of this subdivision 8ppl) ts Galifel'l1ia IEH3eratsJ'isfi 8M!; ami do not preclude DNA profiles developed in California from being searched in the National DNA f}..effi -Beee Database or Data Bank (CODTS).
(d) Nothing in this scction precludes local law enfhrcement DNA laboratories lf1eet'iftg 'Feel:nieal "lerlcil'lg GrstlfJ Em Q"P'IA Anal)sis Metlies9 (TV'CP'\H) 91' 8eientiHs "1erldng Grsaf3 Sf! DFlA o.nal)'sis Hetlioss EswGD.6J 1) gt:tiaeliRs,1 ST JHUI6araJ pFsfltdlgatea 1::>, tLe 0>\4. Ael bor; BSI':lf(4 as esra!=Jlisll:ea f3rIf,iHBnt ta Saeriel'! 1113] sf Title 111 ef toke Ultitea StateB Cese, from maintaining /ocal/fJrenslc databases and data bank~ or performing forensic identification alla!y~ ses, including DNA pronting, iflBs199htient sf independently from the Department of Justice DNA and Forensic Identification Data Base and Data Bank fWegFeffi Program.
(e) The limitation on the types of offenses set forth in subdivision (a) of Section 296 as subject to the collection and testing procedures of this chapter is for the purpose of facilitating the administration of this chapter by the Department of Justice, and :dlal! not he considered cause fbr dismissing an investigation or prosecution 01' reversing a verdict or disposition.

140 I Text of Proposed Laws

Case3:09-cv-04779-CRB Document1-1TEFXileTd10O/0F6/0P9RPOagPeO8 oSfE12D LAWS

PnJpo5ition (amt.)

(f) The detention, arrest, wardship, adjudication, or conviction of a person based upon a data bank match or anta ease database information is not invalidated if it is ffitet; determined that the specimens, samples, or print impressions were obtained or placed or retained in a data bank or seta -ease database by mistake.
SEC. 6. Section 298 of the Penal Code is amended to read:
298. (a) The Director of Corrections, or the Chief Administrative Officer of the detention facility, jail, or other facility at which the blood specimens, ~ buccal swab samples, and thumb and palm print impressions were coHected shall cause these specimens, samples, and print impressions to be forwarded promptly to the Department of Justice. The specimens, samples, and print impressions shall be collect~ ed by a person using a Department of Justice approved collection kit and in accordance with the requirements and procedures set forth in subdivision (b).
(b) (1) The Department of Justice shall provide all blood specimen vials, buccal swab collectors, mailing tubes, labels, and instructions for the collection of the blood specimens, 5fl-H¥a buccal swab samples, and thumbprints. The specimens, samples, and thumbprints shall thereafter be forwarded to the DNA Laboratory of the Department of Justice for analYSis of DNA and other forensic identification markers.
Additionally, the Department of Justice shall provide all full palm print cards, mailing envelopes, and instructions for the collection of full palm prints, The full palm prints, on a form prescribed by the Department of Justice, shall thereafter be forwarded to the Department of Justice for maintenance in a file for identification purposes,
(2) The withdrawal of blood shall be performed in a medically approved manner. Only health care providers trained and certitled to draw blood may withdraw the blood specimens for purposes of this section.
(3) Buccal swab samples may be procured by law enforcement or corrections personnel or other individuals trained to assist in buccal swab collection.
~ (4) Right thumbprints and a full palm print impression of each hand shall be taken on forms prescribed by the Department of Justice. The palm print forms shall be fonvarded to and maintained by the BUreau of Criminal Identification and Information of thc Department of Justice. Right thumbprints also shall be taken at the time of the "itlt8ffl,\al colLection of ~ samples and specimens and shall be placed on the sample and !lpecimen containen and forms as directed by the Department o/Justice ane the Meee I ial lal:3el , The eleee 1 ial samples, specimens, and forms anEl t-l:l:IrnBflFiltt !'aRdS shall be ror~ warded to and maintained by the DNA Laboratory of the Department of Justice,
(5) The law enforcement 01' custodial agency collecting specimens, samples, or print impressions is re!lponsiblefor cO'1/inning that the per~ son qual[fies for entry into the Depatfment of Justice DNA Database and Data Bank Program prior to collecting the specimens, samples, or print impressions pursuant to this chapte!:
f41 (6) The DNA Laboratory of the Department of Justice is
responsible tor establishing procedures for entering data bank and ~ ~ database information. The D~lA !aaofa~elJ flFeeedt'tl'es shall een nTHl that the e#eAEler tt:lalifies far eAtt) inte tHe D'PL\ Elata esnlr flrier tEl aeRial el'ltl')' sflhe iRF€l'fRfltisfI if! ~e tl-1e D~IA tiata baRic
(c) (1) Persons authorized to draw blood or obtain samples or prim impressions under this chapter for the data bank or aata sase database shall not be civilly or criminaHy liable either for withdrawing blood when done in accordance with medically accepted procedures, or for
obtaining ~ buccal swab samples by scraping inner cheek cells (l
the mouth, or thumb or palm print impressions when performed in accordance with standard professional practices.
(2) There is no civil or criminal cause of action against any law
s enforcement agency or the Department of Justice, or any employee
. thereof, for a mistake in cO'?firming a person or sample:5' qualtrying status for inclusion within the database or data bank or ill placing an entry in a data bank or a aaffi ease database.
(3) The failure qf the Department of Justice or local law e!~force~
ment 10 comply withAl'ticle 4 or any orher provision ofthis chapter shall not invalidate an arrest. plea, conviction, or di,\positiO/l.
SEC. 7. Section 298.2 is added to the Penal Code, to read:
298.2. (a) Any person who is required to submit a specimen ,"'ampIe or print impression pursuant to this chapter who engages or attempts to engage in any q(the following acts is gui!(Y ofa/elony puni,~'hab{e by imprisonment ill the state prison/or two, three, orfoUl' years:

(I) Knowingly facilitates the colLection of a wrong/lIlly aUributed blood spedmen, buectll swab sample, or thumb or palm print impression, with the intent that a government agent or employee be deceived as to the origin ofa DNA profile or as to any idenf!fication iI?formatioll associated with a specimen. sample. 01' print impression required for submission pursuant to this chapter.

(2) KnOWingly tampers with W~JI specimen. sample. prillt, or the col~
lection containerfor any specimen o}'"sample. with the intenlthat any government agenl or employee be deceived as to the identity q{the pe/'~ son 10 whom the specimen, sample, 01' print relates,

SEC. 8. Section 298.3 is added to the Penal Code, to read:

298,3. (a) To ensure expeditious and economical processing of offender .~1Jecimens and samples for inclusion in the FlU:,,' CODIS .~)stem and the state:" DNA Database and Data Bank Program, the Department ofJustice DNA LaborGwl)1 is authorized to contract with other laboratories, whether public or private, inciuding law enjorce~ ment laboratories, that have the capabili~F qffully ana~j'zing o.1fender
specimens or samples within 60 days q( receipt, fol' the anonymous
analysis of:,pecimens and sampies/or/orensic identification testing as prOVided in this chapter and in accordance with (he quality assurance requirement established hy CODlS and ASCLDILA B.

(b) Contingent upon the ClvailabiliZY ofsufficient funds in the state:S·
DNA Identification Fund established pursuant 10 Section 76104.6, the Department qfJu,''Itice DNA Laboratory shall immediately contract with other laboratories, whether public or private, including law enj()rce~ ment laboratories, for the anonymous' analysis qf" (?ffimder rc~ference specimens or samples and any arrestee reference specimens or samples collected pursuant to subdivision (a) ofSection 29610rforensic identi~ fication testing as prOVided in subdivision (a) qf this section and in accordance with the quali~y assurance requirements established l~v CODlS and ASCLDILAB fbI' any specimens or ,mmp/es tha~ are notjully analyzed and uploaded into the CODlS database within six months (~( the receipt of the reference specimens or samples by the Department of
Justice DNA Laboratory.

SEC. 9. Section 299 of the Penal Code is amended to read:

299. (6) /" jgerS6A ..,,'H8se 91>lA !,raMie AUS seeh inehlElea in the data
bnrH[ jmnll:iSBt :e tHis ehsj3ter shall he e RiB Elf kef illfeflTlati!. Pi SHe l'l.aterials e.(I'l!il'lgea Frefl: t>l:e elata ean!: Ile1~ the M1.ae1'15 iBg eel:, isl'iol'l Elf eis~esitiel1 .:er,jllg as the easis for il'le!liEHng the BNA !,refile ha.,
aeen re ,'ersee (lI:s the eape EliPl1l:l5Sea tlls deteReent kes heel'! fel:l116 fbstl:lally irll1eeel'!t €If t4te 1.'I11eerlyil'lg efl'eRse f1ur.:Hal.t te Seatien g§ l,8, tRS eefeneeflt hafl ~eePl fem.e net gtliit), sr tHe aerel:aaPlt has eeen
aeEjl:l:ittea sf the liBeleR, iag S#eBse, The 612 uU Issl:liag the re, ersal, Elis
1o/.ls8al, Sl' aeE\l'littal silall erge!' the eRt'l:lngel:''l'Iant aHa skall Sella a eSfl; €If that erEler ta the Depal'tmel'l:t 191' Jl1stiee 91>IA LatHlratel; Direeter. Upes ree~i\'lt €If tke ectin erElef, tlte De\'lartr19:eht sf Jl1stiee shall e:JlfluAge all iaehtiFiaele irlfsHfl:atislt in the Elata banlr Ej:fle aH; eriH'liRal
iElentifieatisl'l: resel'Els fJsrtaiHiI:g t€: tile fler.l€:fI,

(a) A person whose DNA pmflle has been included in the data bank pursuant to this chapter shall have his or her DNA specimen and
sample destroyed and searchable database prq/'ile expunged./i'om the data bank program pursuant to the procedures setforth in subdivision
(b) if the person has 110 past or present o.tfem'e or pending charge
which qualUles that person for ineluslon within the slate So DNA ulld
Forensic Ident{jication Database and Data Bank Program and there otherwise is no legal basis fbI' retaining the ,Ipecimen or sampLe or
searchable prelife,

(b) (1) A t~erJ8H ",kese DH,\ j3rei;ile Lao eeen ifleit;lsee iii a !:lata eanll pl:iRldaht te this 8Haflter Pursuant to subdivision (a), a person who has no past or present qualf[Fing qffense, andjor whom there otherwise
is no legal basis jar retaining the specimen or :,;ample or searchable prqfile. may make a written request to e"~.iii Ige irrt!iJ i iaH J I a,it' I la:tt! ; ia:{.1 .fiam hle JtJla bewtk. have his or her specimen and sample destroyed and searchable database prqfile expunged from the data
bank program if:

(1) Following arrest, no aect/saw!)! pleading has been,filed within the applicable p(~riod allowed by law charging Ihe person with a qual~
ilving ojfense as set jorth in subdivision (a) of Section 296 or ff" (he charges which serl'ed as the hasisfor including the DNA pn?file i/1 the state~' DNA Database and Data Bank ldenl[fica{ion Program have been dismissed prior to at{judication by a {riel' (?f/act;

(2j The underlying conviction or disposition serving as the basisfbr including the DNA pr<?fiLe has been reversed and the case dismissed;

(3) The person has be$nfoundj(Jclua/~r innocent oflhe underlying

offense pursuant to Section 851.8. or Section 781,5 (lthe We(tare and

Institutions Code; or

TexrofProposed Laws I 141

TEXT OFCPasReO3:0P9O-cvS-0E47D79L-CARWBSDocument1-1 Filed10/06/09 Page9 of 12

(4) The defendant has beenfbund not gUilty or the defendant has been acquitMd of the underzYing offense.
(c) (I) The person requesting the data bank cotTY to be expunged mtlst send a copy of his or her request to the trial court of the county where the arrest occurred. or that entered the conviction or rendered disposition in the case, to the DNA Laboratory of the Department of Justice, and to the prosecuting attorney ofthe county in which he or she was arrested 0/; convicted, or adjudicated, with proof of service on all parties. The court has the discretion to grant or deny the request for expungemcmt. The denial of a request for expungement is a nonappealable order and shall not be reviewed by petition for writ.
(2) Exc~'Pt as provided below, the Department of Justice shall destroy a specimen alld sample and expunge the searchable DNA database prc!/ile all iaefltif.1sale il-:fsfFltatisli in tAe asta 13aHh stul fUr; erin't inaI iaentiHeatial1 resarels pertaining to the person who has no present or past qual(fying offense of record upon receipt of a court order that verifies the applicant has made the Ilccessary showing at a noticed hearing, and that includes all of the following:
(A) The written request for expungt,'lncnt pursuant to this section.
(B) A certified copy of the court order reversing and dismissing the conviction or case, or a letter from the district attorney certifying that no accusatory pleading ha.s been filed or the charges which served as the basis for collecting a DNA specimen and sample have been dismissed prior to adjudication by a trier ofjact, the defcndant has been found factually innocent, the defendant has been found not guilty, the defendant has been acquitted of the underlying oJfense, or the underlying conviction has been reversed and the case dismissed.
(C) Proof of written notice to the prosccuting attorney and the Department of Justice that expungement has been requested.
(D) A court order verifying that no retrial or appeal of the case is pending. that it has been at least 180 days since the defendant or minor has notified the prosecuting attorney and the Departm.ent of Justice of the expungement request, and that the court has not received all objection from thc Department of Justice or the prosecuting attorney.
~ (d) Upon order from the court, the Deparm1cnt of Justice shall destroy any specimen or sample collected from the person and any erimiRal iaeFltifleatiEH" ree8ra~ searchable DNA database profile pertaining to the person, unless the department determines that the person is suly'ect to the prOVisions qfthis chapter because ofa pa,H qualifying (~r.rense o.frecord or is or has othenvise become obligated to submit a blood specimen or buccal swab sample as a result of a separate arrest, conviction, juvenile adjudication, or finding of guilty or not guilty by
eg.reason of insanity for an offense described in subdivision (a) of
Section 296, or as a condition of a plea.
The Department of Justice is not required to destroy (tFl !R±tBfftsi analytical data or other #effi items obtained from a blood spec-
imen or saliva, or buccal swab sample, if evidence relating to another person subject to the provisions of this chapter would thereby be destroyed or otherwise compromised.
Any identification, warrant, probable cause to arrest, or arrest based upon a data bank or database match is not invalidated due to a failure to expunge or a delay in expunging records.
(e1) The Departl'lteltt ()L~\::I,.tiBe DHA Laeeratef5 ,.Hall p8riaaieal!y re'ie" its flIes fa seterR1ine dlefkeF its folIes eef1:tail'l J;lj:>!A referenee sSFilj31e ~r8file9 tl'en~ .J\i,)j:leets as Elefil:aa in JI:lBs!vi.lim"l (1-3) of SeetioFl i!97 "ha fiFe no leRger eligie!e fer inel1::lsisll in fhe data BeHle The DHA f,JreJ4!es efta samples sterea in the sl':Isjgeet data Blise freH1 a flerse:n 'hke is a slilsl3eet in a eriH'linu\ iF!, es~igetien skell be flt'lFgeel: vith iB til 0 years eft-he elate ef the Blil:g sf' the iJtFHrl.tatien sr illelietfflent ef WRSH fhe D~h1: lae8Faterj rassi, as n8tiee tRat the 31:l!8f.1eet as eS€j!:lHted ef tAe eharges Sgail1St the s\:l:sfleet ,,·ere e1:isl1'1isseEi; whieh 9,'ef see:4rs e£tF1ier. TAe Reties 01'.611 insltll;,le fl eertHi9a eet')' efthe eSlirt eraer Elis 11'lissiHg tAe iltfslfhatiah 81 ifleliettl'lel'lt, it eertiHsel eel'!; ef :lte aefan
aaHt's FiH",,6rpriRfs 8:1'1S the aefet1:aant's ell lHHnaer.
(e) Notwithstanding any other provision of law. the Department o.f Ju,\·tice DNA Laboratory is !lot required to (!.}j;punge DNA pr<?file or .fimmsic ident(fic:ation in/ormation or destroy or return .specimens, .Y(l/J1-
pies, or print impressions taken pursuant fo this section if the duty to
register under Section 290 or 457. J is terminated.
(/) Notwithstanding any other provision of law, including Sections 17, 1203.4, and 1203.4a, ajudge is 1101 authorized to relieve a person (!f the separate admillistrative du(l' to provide specimen:.,., sam~ pIes, or print impressions required by this chapter (f a person has been found gllilty or was adjudicated a ward (?fthe court by a trier o.ffact of
142 I Text of Proposed Laws

a quahfyingpjj(!./lse as defined in subdivision (a) (~fSection 296, or was found nut guilty by reason o/insaniZ)J or pleads no contest to a qua/i[ving (rffense CIS d4ined ill subdivision (a) qfSecrion 296.
SEC. 10. Section 299.5 of the Pemd Code is amended to read:
2995. (a) All DNA and forensIC IdentIficatIOn profiles and other Identification mfOimatlon retamed by the Depaltment of Justice pursuant to thiS chaptci are exempt from any law requmng clisclosUJe of mformatlOll to the public and shall be confidential except as otherwise provided in this chapter.
(b) AU evidence and forensic samples containing biological material retained by the Department of Justice DNA Laboratory or other state Jaw enforcement agency are exempt from any law requiring disclosure of information to thc public or the return of biological specimens. samples, or prillt impressions .
(c) Non-DNA forensic identification information may be flied with the o-lTender's file maintained by the Sex Registration Unit of the Department of Justice or in othcr computerized data bank or database systems maintained by the Department of Justice.
(d) The DNA and other forensic identiIlcation information retained by the Department of Justice pursuant to this chapter shall not be included in the state summary criminal history information. However, nothing in this chapter preclude:; law enforcement personnel from entering into a persall's criminal history information or offender file maintained by the Department of Justicc, the fact that the specimens, samples, and print impreSSions required by this chapter have or have not been collected from that person.
(e) The fact that the blood specimens, ~ or bucc{(l swab samples, and print impressions required by this chapter have been received by the DNA Laboratory of the Department of Justice shall be included in the state summary crimina! history information as soon as administratively practicable.
The full palm prints of each hand shall be filed and l1laintained by the Automated Latent Print Section of the Bureau of Criminal Identification and Information ofthe Department ofJustice, and may be included in the state summary criminal history information.
(I) DNA samples and DNA pn~files and other forensic identification information shall be released only to law enforcement agencies, including, but I)Ot limited to, parole officers of the Department {)f Corrections, hearing officers of the parole IlUthority, probation otficers, the Attomey General's office, district attorneys' offices, and prosecuting city attorneys' offices, €IF te 6: eeclrt 81' aalT,;iflistrst:ioe tri Bclflal, SHeej3t af! speeif~ unless otherwise spec{!icaIZv authorized by this chapter, Dissemination of this jFlfenhftti8R DNA /jpecimens, samples, and DNA pro.fIles and other forensic identffication information to law enforcement agencies and district attorneys' offices outside this state shall be performed in conformity with the provisions of this chapter,
(g) A defendant's DNA and other forensic identification information developed pursuant to this chapter shall be available to his or her defense c01l11sel upon court order made pUrSl.lant to Chapter 10 (commencing with Section 1054) ofTitlc 6 of Part 2.
(h) Excepf as proVided in suhdivision (g) and in order to protect !he
cOl!/identialit)' and priv{(c:Y (l datclbase and data bank in.fimnation, the
Department (1!'Justice and local pll~)lic DNA laboratories shai! no! o!herwise he compelled in a criminal or civil proceeding to provide any DNA pto.file orf(Jrensic identification database or data bank il'!formation or its computer database program sqlfware or structures to ally person or party seeking such records or in.!ormation whether by subpoena or discovery, or other procedural device or inquilJI.
fg1 (I) (1) (A) Any person who knowingly uses an offender /jpecimen., sample, or DNA profile collected pursuant to this chapter for other than criminal identification or exclusion purposes, or fbI' other than the identification ofmissing persons, or who knowingly discloses DNA or other forensic identification information developed pursuant to this section to an unauthorized individual or agency, for other than
criminal identification or exclusion purposes, or.for the ident{ficatioll
of missing persons, in violation of this chaph~l~ shall be punished by imprisonment in a county jail not exceeding 011e year or by imprisonment in the state prison.
(B) Any person who, for the purpose of financial gain, knowingly
uses (111 eFfel'lele! a specimen, sample, or DNA profile collected pllrsuanr
to rhis chapter for other than criminal identification or exclusion pur~
poses or fi)r the ident{fication (l missing persons or who, for the pur-
pose of financial gain, knowingly discloses DNA or other forensic iden-

Case3:09-cv-04779-CRB Document1-1TEFilXedT10O/06F/09PRPOagPe1O0SofE1D2 LAWS

Proposition 69

tification infonnation developed pursmmt to this section to an unauthorized individual or agency, for other than criminal identification or exclusion purposes or/or other than the identification (~rmissing persons. in violation of this chapter, shaH, in addition to the pen'alty provided in subparagraph (A), be punished by II criminal fine in an amount three times that of any financial gain received or ten thousand dollars ($10,000), whichever is greater.
(2) (A) If any employee of the Department of Justice knowingly
uses an et+eliaer a specimen, sample, or DNA profile collected pUl:wal'lf
to this chapter for other than criminal identification or exclusion purposes, or knowingly discloses DNA or other forensic identification information developed pursuant to this section to an unauthorized individllal or agency, for other than criminal identification or exclusion purposes or for other than the fdent(fication of missing persons, in violation of this chapter, the department shall be liable in civil damages to the donor of the DNA identification information in the amount of five thousand dollars ($5,000) for each violation, plus attorney's fees and costs, In the event of multiple disclo~ures, the total damages available to the donor of the DNA is limited to fifty thousand dollars ($50,000) plus attorney's fees and costs,
(B) (I) Notwithstanding any other law, this shall be the sale and exclusive remedy against the Department of Jllstice and its employees available to the donor of the DNA,
OJ) The Department oi'Justice employee disclosing DNA identification information in violation of this chapter shall be absolutely immune from civil liability under this or any other law,
(3) It is not a violatIon of this section for a law enforcement agency in its discretion to publicly disclose the fact of a DNA profile
s match, or the name of the person ident(fied by fhe DNA match when
this match is the basis of law ellforcemenr inve,'l'tigatton, arn~st, or prosecution ofa particular persoll, or the identification a/a missing or abducted person,
fft1 (j) It is not a violation of this chapter to furnish DNA or other
forensic identification information of the defendant to his Or her defense counsel for criminal defense purposes in compliance with discovery.
ftt (k) It is not a violation of this section for law eT!/orcement to
release DNA and other forensic identification information developed purS\lant to this chapter to a jury or grand jury, or in a document filed with a court or administrative agency, or as part of ajudicial or administrative proceeding, or for this information to become part oflhc public transcript or record of proceedings when, ill the di.<;crelion (~r law
el?/orcement, disclosure is necessmy because the DNA iY!formalion pertains to the basis for law enfOrcement:',. identification, arrest,
investigation, prosecution, or exclusion (~ra particular p(lrSOn related
to the case,
fB (I) It is not a violation of this section to include information
obtained from a file in a transcript or record of a judicial proceeding, or in any other public record when the inclusion of the information in the public record is authorized by a court, statute, or decisional law,
fit? (m) It is not a violation of this section for the DNA Laboratory
of the Department of Justice, or an organization retained as em agent Qf the Department ofJustice, or a local public laboratory to use anonymous BAA records or criminal history information ohta;ned pursuant to this chapter for training, research, statistical analysis of popUlations, or quality assurance or quality control.
(1) It is hSt n ,iei&tian sf this seetisfl te aissemin&te st&tistisal Sf rSSe&rSfl iH:fsrmatisA ebtaiReEl ffEHfI the SFfflF!aer'8 f:l:le, tillS est1'l:fluteri0.ea eataeat:lE S) stSfll, t:lRj sf tl:e Bl'lA lttasrater) 's elataeases, er tHe ffill f.!alR'l j3ril'lt File, j3rs"iEieEll"l:at l.'he Bl:iBjeet aftile HIe is het iasntiFies 8flS eal'lltst be iaentifi9s Fren~ the infarmatien ai.Jeio,:sa, All feEjl:leS~9 tel' eta tistieal HI' ISfiSateh illt8fF!;attSI'. e13taineei thHn tHe BNAt antaaanlt sLall be eatalegeEl 13; the Derartfnent sf .htstiee. CSldn.eneihg Jamie!? I, 2G'G'G', tl~e 8epafH'fI8l'1t sllall ,9Hl:;ll1i~ all tll'lliesl laM's/' to the Ledi.llaRlrs ine11:lEiil1e;, "'itk rssJ3 eet to sael~ reEll1:sst, l.'hs reEj1:l:sster's IltUfle sr agefle;, ~he )31:11)38JS efthe rSffHe,lt, fiei'flel the rS€jl:iest is folated te a slil1"lillo-l in'> 9stigatisll el' SSI:ut j3fseeeaing, hetJtsr tile IeEjl:l:eBt ,r as gralttsa Sf senied; Sfl) leasens faf eeflial, 98,:t9 ihsl:uree Sf e9tilfl9;tes sf the eS.lt sf the re€j1:l:e.lt, &l.8 the elate sf the reC:l:l:le.Jt.
fa+) (n) The Department of Justice shaH make public the methodology and procedures to be used in its DNA program prior to the commencement of'DNA testing in its laboratories. The Department of Justice shaH review and consider on an ongoing basis the findings and results of any peer review and validation studies submitted to the depart~ mcnt by members of the relevant scientific community experienced in

the use of DNA technology, This material shall be available to crimina! defense counsel upon court order made pursuant' to Chapter 10 (commencing with Section 1054) of Title 6 of Part 2.
fn1 (0) In order to maintain the computer system security of the
Department of Justice DNA and fersBsie ielen~i11eatieA e1ataease atHI e1aw;badE J3fegfB:ffi I"orel/sic Idenr(/ic(J/ion Database and Data Bank Program, the computer software and database structures used by the DNA Laboratory of the Department of Justice to implement this chapter are confidential.
(8) 1>let:king tA tJ:Jis see!iSR shall flreelbH!e (\ estlrt ¥rsm en4sring ain 80.,,'SI') )3l:lI\ittSht te Clu1f!ter 19 (eeml'l'leflli!ing with £eetien 19)1) sf Title 6 sf Part 2.
SEC, 1J, Section 299,6 of the Penal Code is amended to read:
299,6, (a) Nothing in this chapter shall prohibit the Department of Justice, in its sole discretion, from the sharing or disseminating of population Elata ease database or data bank information, DNA profile orforensic Mentification database or data bank information, analytical data and results generatedforfhrensic identification database and data bank purposes, or protocol and forensiC DNA analysis methods and qualiw assurance or quality control procedures with any of the fonowing:
(1) Federal, state, or local law enforcement agencies.
(2) Crime laboratories, whether public or private, that serve federal, state, and local Jaw enforcement agencies that have been approved by the Department of Justice,
(3) The attorney general's office of any state,
(4) Any state orfedemlly authorized audiling agent or hoard Ihm inspects or reviews the work of the Department (~f Justice Dlv'A Laboratory for the purpose of ensuring thaI the laboral(1)1 meets ASCLDILAB and FBI standards jbr accreditation and quality assur~ ance standards necessary under this chapter and for the state :s' participation in CODIS and other nationaL OJ' international crime~solving net}lIorh.
~ (5) Any third party that the Department of Justice decms necessary to assist the department's crime laboratory with statistical analyses of tfl.e population aal'a ease databases, 01' the analyses (!fforensic proto~ col, research methods, or quality control procedures, or to assist in the recovery or identification of human remains for humanitaria.n purposes, including identification of missillg persons,
(a) ~lstkillg iF! I'llj,' ei:apter shat! )3rekieit tHe sharing sr siSBSlt:iAat iflg ef\9fstseel ftfH:l: f'ereRsie DNA anal),.)]!! fI:sl'fleJs ani ~HEllil? eeRti's\ ~f6esr.4ereB "it}l ali) srtAs f'sIlG" iIlg:
(I) PeEleraL state, sr leealla , enfureellleHt &geReies.
t.., (2) Griffie laaeratslies, l'hetker fll:lBlis or f3ri fate, tltat sef, e feaeral,
.ltute, aHEI Jee&i lad eltfereeffiel1t agsneis.J tLat La. S beeH hPJ)! e; eel t41e Be~a,rtl'flel1: sf Jl.'lstise,
(3) The attslRey general's e#lee ofarl)' &tate,
(4) Afl5 141ir8 part.) that tiI)S DefHlTtment efJdJtiee seelfl8 fleees.J81', t8 a.Jsist the eSfl&rl'lfl8At'.1, erirl'le iabel'M'er) Ii it!. anal) ses sf FarSlliile preteeei, feseareh lLetkeels, 61 L1ua!i~ EJ111trul f.!rseeelures,
fe1 (b) The population e1afa base darabuses and data ~ hanks of
the DNA Laboratory of the Department of Justice may be made avail~ able to and searched by the FBI and any other agency participating in the FBI's CODIS System or any other national or international law enforcement database or data bank system.
te) (c) The Department of Justice may provide portions of tfl.e bio~ logical samples including blood specimens flfl4, saliva sampLes, and buccal swab samplcs collected pursuant to this chapter to local public law el?lorcement DNA laboratories for identiflcatioll purposes provided that the privacy provisions of this section are followed by the local pub~ lie law elr/brcement laboratory and if each of the foHowing conditions is met:
(1) The procedures used by the local public DNA laboratory for the handling of specimens and samples 'and the disclosure of results are the same as those established by the Department of Justice pursuant to Sections 297, 298, and 299.5.
(2) The methodologies and procedures used by the local public DNA laboratory for DNA or forensic identification analysis are compatible with those eatablishea used by the Department of Justice !91:l:rSliaHt ts 5I:lBa:i,'isiefl Ei) sf £eetiefl 2995, or otherwise are deter· In_ined by the Department of Justice to be valid and appropriate for identification plll'{}oses,

Text of Proposed Laws 1 143

TEXT OFCPasRe3O:0P9-OcvS-0E47D79L-CARWB SDocument1-1 Filed10/06/09 Page11 of 12

(3) Only tests of value to law enforcement for identification purpos~ es are perfOflT1Cd and a copy of the results of the analysis are sent to the Department of Justice.

(4) All provisions of this section concerning privacy and security are followed.

(5) The local public law enforcement DNA. laboratory assumes all

costs of securing the specimens and samples and provides appropriate

tubes, labels, and iflSfflietisHs materials necessary to secure the speci~

mens and samples.

fol (d) Any local DNA laboratory that produces DNA profiles of

known reference samples for inclusion within the permanent files of
the state's DNA Data Bank program sl:aU eS"R'lflI) .ita ana l:Je s:i6jeet

tEll all sf the r:tles, reg1:l1atieB9, fH:fi restrietisl:s sf this eha\3tef !l:lul

shall follow the policies of the DNA Laboratory of the Department

of Justice.

.

SEC. 12. Section 300 of tile Penal Code is amended to read:

300. Nothing in this chapter shall limit or abrogate any existing authority of law enforcement officers to take, maintain, store, and utilize DNA or forensic identification markers, blood specimens, buccal swab samples, saliva samples, or thumb or palm print impressions for identification purposes.

SEC. 13. Section 300.1 of the Penal Code is amended to read:

300.1. (a) Nothing in this chapter shall be construed to restrict the authority of local law en/hl'cemenf to maintain their own DNA-related databases or data banks, or to restrict the Department of Justice with respect to data banks and Elata f:'!flBeB databases created by other statutory authority, including, but not limited to, eats BaBe,) databases related to fingerprints, firearms and other weapons, child abuse, domestic vio~ lenee deaths, child deaths, driving offenses, missing persons, violent crime information as described in Title 12 (commencing with Section 14200) of Part 4, and criminal justice statistics permitted by Section
13305.
(b) Nothing in this chapter shall be construed to limit the allthol'i~V
qf local or county coroners or their agents, in the course oj'their scien-
tific investigation, to utilize genetic and DNA technology to inquire illto and determine the circumstances, manne,; and cause q( death, or to employ or use oUtside laboratories, ho:,pitals, or research institutions that utifize genetic and DNA technology.

SEC. 14. Section 300.2 is added to the Penal Code, to read:

300.2. Any requirement to provide saliva samples pursuant to this
chapter shall be construed as a requirement to prOVide buccal swab
samples as oj the (!ffective date (?f the act that added this section. However, the Department ofJustice may retain and use previously col~
lec!ed saliva and other biological samples as part of its database and databank program and for quaJ;~v control pW7)oses in c01!/ormity with
the provisions ofthis chapter.

SEC. IV. Supplemental Funding

SEC. 1. Section 76104.6 is added to the Government Code, to read:

76104.6. (a) ror the purpose oj' implementing the DNA fingerprint, Unsolved Crime and Innocence Protection Act, there shall be levied an additional penalty of one dol/arjor evel], ten dol~ la/:~ ($10) orFactionthereofin each county which shaLl be collected together with and in the same manner as the amounts established by .Section 1464 ofthe Penal Code, upon everyjine, penal~v, orfoifeiture imposed and collected by the courts for criminal o.ffenses. including
all C?ffenses involving a violation C?fthe Vehicle Code 01' any local ordinance adopted pursuant to the Vehicle Code, except parking (~ffenses subject to Article 3 (commencing with Section 40200) o/Chapter I of Division 17 of the Vehicle Code. These moneys shall be taken from
fines and jiu:!eitul'es deposited with the counf;Y treasurer prior to any division pursuant to Sectioll 1463 of the Penal Code. The board of
supervisors shall establish in the county treasury a DNA Idenf{(ication Fund into which shall be depOsited the collected mon-
eys pursuant to this section. The moneys q( the fund shalf be allocat-
ed pursuant to subdivision (b).

(b) (1) The fund moneys described in subdivision (a), together with any interest earned thereon, shall be held by the county treasurer separate f''Om any funds subject to tranr/er or division pursuant to Section 1463 of the Penal Code, Deposits to the fimd may continue through and including the 20th year ({fier the initial ca/{mdar year in
which the surcharge is collected, or longer ifand as necessary to make
payments upon any lease or leaseback arrangement utilized to finance
any ofthe projects spec(fied herein.

144 I Text of Proposed Laws

(2) On the last day (?{each calendar quarter (?fthe year specified in

this subdivision, the county treasurer shaLl tran.~'fe,..timd moneys in the

county~· DNA ldenttfication Fund to the state Contro1!erfol' credit to

the state:i' DNA Identification Fund, which is herebv established in the

State Treasury, asjiJllows:

.

(A) in thefil'st two calendar years/allowing the elfi!cfive date (?fthi.., secthm, 70 percent qf'the amounts collected, including interest earned thereon;

(B) in the third calendaryearfollowing the effective date ofthis sec" lion, 50 percent qf the amounts collecred, including interest earned thereon:

((J in the /hurth calendar year fallowing the r:;{(ective date of this section and in eClch calendar year thereaftel; 25 percent qf'the amounts collected, incfudtng interest earned thereon.

(3) Funds remaining in the county:\" DNA 1denNfication Fund shall be used only to reimburse local sheriffor othel' la)1-' enforcement agencies to collect DNA :~,pecimens, samples, and print impressions pursuant to this chapter: Jor expenditures and administrative costs
made or incul'red to comply with the requirements ofparagraph (5) (?f subdivision (l}) C!/ Section 298 includil1g the procurement (~j' equip-
ment and software integral to cOI{(irming that a person qualifies fhr en!I)1 into the Department (~lJlIstice DNA Database and Data Bank Program; and tv local sheriff police, district afforney, and regional state crime laboratories fi)r e..xpenditures and administrative costs
made or incurred in connection with the processing, analysis, tracking, and storage of DNA crime scene samples from cases in which
DNA evidence would be uS'e/ul in ident!fjling or prosecuting suspects,
including the procurement ofequipment and software/b,. the processing. analysis, tracking, and storage oj'DNA crime scene samples from
unsolved cases.

(4) The staId· DNA ldenfijication Fund shall be administered by the Department of Justice. Funds in the state :). DNA 1dent(ficafion Fund, upon appropriation by the Legislature, shall be used by the Attorney General only to support DNA testing in the state and to Qffset the impacts Qlincreased testing and shall be allocated asjbllows:

(A) Of the amount tran!.>/erred pursuant to subparagraph (A) of paragraph (2) of subdivision (b), 90 percent 10 the Department of
Justice DNA LahomtOl:lI. firs!, to comply with the requirements of Section 298.3 <?f the Penal Code and. secolld, .fbr e.tpendilures and administrative costs made or incurred in connection with the process-
ing, analysis, tracking, and storage q{ DNA specimens and ::mmples including the procurement 0.( equipment and software/hr the proces.~·"
ing. analysis, tracking, and storage of DNA samples and specimens obtained pursuant to the DNA and Fbrensic Ident{ficatiol1 Database
and Datahank Act, as amended, and 10 percent to the Department of Justice 1nfhrmation Bureau Criminal History Unit for expenditures and administrative costs thaI have been approved by the Chit!( (~f' the
Department qf Justice Bureau C!f' Forensic Services made or incurred
to update equipment and sojhvare to jacilitate compliance with the requirements Q(subdivision (e) o.fSection 299.5 of the Penal Code.

(B) Of the amount tran::.ferred pursuant to subparagruph (8) (~l paragraph (2) of subdivision (h), junds shalf be allocated by the Department oj JW,'lice DNA Laborato/y, first, to comply with the requirements qfSectio/1 298.3 qfthe Penal Code and, second,fbr expenditures and administrative costs made or incurred ill connectioll with the processing, analysis, tracking, and storage q{ DNA specimens and
samples including the procurement Cit equipment and so/tv.'((re fbI' the
processing, analysis, tracking, and storage (~/DNA samples and .\'peci~ mens obtained pursuant to the DNA and Forensic Identification Database and DatabankAct, as amended.

(C) Of the amount transferred pursuant to subparagraph (C) 0.( paragraph (2) o.l subdivision (b), jimds shall be altocated by the Department (~{ Justice to the DNA Laboratm:v to c()mp~v with the requirements Q(Sec/ion298.3 oIthe Penal Code and/or expenditures and admini.!:trative costs made or incurred in connection with the processing, analysis, tracking; and storage (~(DNA specimens and samples including the procu/'ement of equipment and sQftware lor the processing, analysis, tracking, and storage C!l DNA samples and specimens obtained pursuant to the DNA and Forensic Identification Database and Databank Act, as amended.

(c) On or be/ore April 1 in the year fbllowing adoption of this section, and annually thereajiel; the board o/supervisors Qleach coun-
ty shall submit a report to the Legislature and the Depal'!m<mt (?f
Justice. The report shall include the total amount o.ffines collected and allocated pursuant to this section. and the amounts expended hy the

Case3:09-cv-04779-CRB Document1-1TFEileXdT10/O06F/09PRPOagPe1O2 SofE12D LAWS

county for each program authorized pursuant to paragraph (3) (~rsubw
division (b) of this section. The Department (?f Justice shall make the reports publicly available on the department:~ Web site.
(d) All reguirements imposed on the Department o/Justice pursuant to Ihe DNA fi'ngerprint, Unsolved Crime and Innocence Protect/anAc!
are contingent upon the availability offilllding and are limited by revenue, on afiscal year basis, received by the Department a/Justice pur:mall! to this section and any additional appropriation approved by the Legislature for purposes related to implementing this measure.
(e) Upon approval f?f the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, the Legislature shall/oan the Department (?f Justic(~ Geneml Fund in the amount of $7, 000, 000 for pUl]Joses q( implementing that act, This loan shall be repaid with interest calculated at the rate earned hy the Pooled Money Investment Account at the time the loan is made, Principal and interest on the loan shall be repaid In Jidl no later than jour yeerrs from the date the loan was made and shall be repaid jrom revenue generated pursuant to this section.
SEC, V. General Provisions
(a) Conflicting Measures: If this measure is approved by the voters,

69
but superseded by any other conflicting ballot measure approved by more voters at the same election, and the conflicting ballot measure is later held invalid. it is the intent of the voters that this measure shall be self-executing and be given the full force of the law,
(b) SeverabHity: The provisions of this measure are severable. If any provision of this measure or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
(c) Amendment: The provisions of this measure may be amended by a statute that is passed by each house of the Legislature and signed by the Governor. All amendments to this measure shall be to fbrther the measure and shall be consistent with its purposes to enhance the use of DNA identification evidence for the purpose of accurate and expeditious crime-solving and exonerating the innocent.
(d) Supplantation: All funds distributed to state or local governmental entities pursuant to this measurc shall not supplant any federal, state, or local funds that would, in the absence of this measure, be made available to support Jaw enforcement and prosecutorial activities.

iPro•oosition

This initiative mea'sure is submitted to the peopie in accordance with the provisions of Section 8 of Article II of the California Constitution.
This initiative measure amends the California Constitution and adds a section to the Govemment Code; therefore, existing proVisions proposed to be deleted arc printed in strilfesdt t; fl9 and new provisions proposed to be added are printed in italic type to indicate that they are new.
PROPOSED LAW
THE INDIAN GAMING FAIR-SHARE REVENUE ACT OF 2004
SECTION I. Title
This act shall be known as the "Indian Gaming 'Fair-Share Revenue Act of 2004."
SEC. 2, Findings and Purpose
The people of the State of California hereby find and declare as follows:
(a) The purpose of the people of the State of California in enacting this measure is to provide a means for California Indian tribes to contribute their fair share of gaming revenues to the State of California, Both the people of California and California Indian tribal governments desire for tribes to assist in restoring Jinancial"integrity to the state by contributing an amount that is equivalent to what any private California corporation pays to the state on the net income it earns from its lawful business activities.
(b) In March 2000, the people of the State of California adopted Proposition IA, which authorized the Governor to negotiate tribal-state gaming compacts with federally recognized Indian tribes tor the opera" tion of slot machines and certain casino games on tribal lands in California in accordance with federal law. Proposition I A was enacted by the people in recognition of the fact that, historically, Indian tribes within the state have long slltTered from high rates of unemployment and inadequate' educati.onal, housing, elderly care; and health care opportunities, while typically being located on lands that arc not conducive to economic development in order to meet those needs,
(c) Since the adoption of Proposition lA, over 50 Indian tribes have entered into tribal gaming compacts with the State of California. These compacts and the gaming facilities they authorize have assisted Indian tribes throllghollt the state to move towards economic self-sufllciem,..-y by providing a much-needed revenue source for various tribal purposes, including tribal government services and programs such as those that address reservation housing, elderly care, education, health care, roads, sewers, water systems, and other tribal needs, Tribal gaming has also spurred new development, has created thousands ofjobs for Indians and non~lndians alike, and has had a substantial positive economic impact on the local communities in which these facilities are located.
(d) Under the existing tribal gaming compacts, Indian tribes also pay millions of doUars each year into two state special funds that arc used to provide grants to local governments, to finance programs

addressing gambling addiction, to reimbun:e the state for the cost.'> of regulating tribal gaming, and to share gaming revenues with other Indian tribes in the sta1e that do not operate gaming facilities, However, because Indian tribes are sovereign governments and llrc exempt tbm most forms of taxation, they do not pay any corporate income taxes directly to the state on the profits derived from their gaming operations.
(e) Given California's CUlTent fiscal crisis, the state llccd~ to find new ways to generate revenues for the General Fund in the State Treasury, Indian tribes want to and should do their part tt) assist California in meeting its budget needs by contributing to the 1>tatc a fair share of the net income they receive t1'om gaming activities in recognition of their continuing right to operate tribal gaming facilities in an economic environment free of competition from caSino-style gaming on non-Indian lands. A fair share for the Indian tribes to contribute to the state is an amount that is equivalent to the amount of corporate taxes that a private California corporation pays to the state on the net incom,e it earns from its lawful business activities,
(t) Accordingly, in order to provide additional revenues to the State of California in this time of fiscal crisis, this measure authorizes and requires the Governor to enter into new or amended tribal gaming C0111pacts under which the Indian tribes agrce to contribute to the state a fair share of the net income derived from their gaming activities in exchange for the continued exclusive right to operate casino-style gaming faci!i~ ties in California, In addition, in order to maximize revenues for the state and to permit the free markot to determine the number and type of casino games and devices that will exist on tribal lands, this meaSl.lre requires these ne"'" or amendcd compacts to allow each tribal govcrnment to choose the number and size of the gaming facilities it operates, and the types of games offered, that it believes will maximize the tribe's income, as long as the facilities are restricted to and are located in those areas that have been deSignated by both the State of California and the United States government as tribal lands. Under the new or amended compacts authQrized by this measure, Indian tribes must also prepare environmcntal impact reports analyzing the off"reservation impacts of any proposed new or expanded gaming facilities, and they must consult with the public and local government officials to develop a good~taith plan to mitigate any significant adverse environmental impacts.
SEC. 3, Section 19 of Article TV of the California Constitution is amended to read:
SEC. 19, (a) The Legislature has no power to authorize lotteries and shall prohibit the sale of lottery tickets in the State.
(b) The Legislature may provide for the regulation of horse races and horse race meetings aild wagering on the results,
(c) Notwithstanding subdivision (a), the Legislature by statutc may authorize cities and cOllntie..'l. to provide for. bingo games, but only for charitable purposes,
(d) Notwithstanding subdivision (a), there is authorized the establishment of a California Statc Lottery.

Text of Proposed Laws 1 145

Case3:09-cv-04779-CRB Document1-2 Filed10/06/09 Page1 of 2

.t lS 44 (Rev, 12/07) (cand rev 1-16-08)

CIVIL COVER SHEET

The JS 44 civil cover sheet and the infonnation contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided

by local rules of court This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating

the civil docket sheet ~EE INSTRUCTIONS ON PAGE TWO OF THE FORM~

I. (a) PLAINTIFFS

DEFENDANTS EDMUND G. BROWN, JR., Attorney General of California; EVA STEINBERGER, Assistant Bureau

ELIZABETH AIDA HASKELL and REGINALD ENTO, on behalf of i Chief for DNA Programs, Califomia Department of Justice; and

themselves and others similarly situated,

MICHAEL ENNESSEY, Sheriff, San Francisco County

(b) County of Residence of First Listed Plaintiff ALAMEDA
(EXCEPT IN U.S, PLAINTIFF CASES)
filin (c) Attorney's (Firm Name, Address, and Telepho€R:/j...

County of Residence

Listed Defendant

SAN FRANCISCO

(IN U.S, PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES. USE THE LOCATION OF THE

LAND INVOLVED,

ttorneys (If Known)

PAUL, HASTINGS, JANOFSKY & WALKER LLP 55 Second Street, 24th Floor San Francisco, CA 94105 Telephone: (415) 856-7000

II. BASIS OF JURISDICTION (Place an "X" in One Box Only)

02

U,S, Government Plaintiff
U,S, Government Defendant

[]] 3 Federal Question (U,S, Government Not a Pany)
of Parties in Item Ill)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" In One Box for PlaintIff

(For Diversity Cases Only)

and One Box for Defendant)

Citi,..n ofThis State

PTf OEF
0 I 0 I Incorporated or Principal Place
of Business In This State

PTI'
04

DU'
04

Citizen of Another State 0 2 0 2 incorporated and Principal Place 0 5

o

of Business In Another State

o 3 0 3 Foreign Nation

06

IV. NATURE OF SUIT (Place an "X" inOlle Box Only)
CONTRACT-----ii-------:-T-::O":cR=T~S-------.,..--:--:-=-===-------------r--BAN-'K---R-U-PT=-C~._ OTHER ST.UUTES.-=

0 110 Insurance 0 120 MariQe 0 130 ~iIIer Act 0 140 Negotiable Instrument 0 150 Recovery of Overpayment
& Enforcement of Judgment 0 15 I Med icare Act 0 152 Recovery of De faulted
Student Loans (Excl. Veterans)
0 153 Recovery of Overpayment of Veteran's Benefits
0 160 Stockhokters' Suits 0 190 Other Contract 0 195 Contract Product Liability r::J 196Fra~_ _ _.
REAL PROPERTY
0 210 Land Condemnation 0 220 Foreclosure 0 230 Rent Lease & Ejectment 0 240 Torts to Land 0 245 Tort Product Liability 0 290 All Other Real Property

PERSONAL INJ UR Y

PERSONAL INJURY

610 Agriculture

422 Appeal 28 USC 158

400 State Reapportionment

10 Airplane 15 Airplane Product
Liability 20 Assault, Libel &
Slander 30 Federal Employers

0362 Personal InjuryMed, Malpractice
365 Personal InJUry Product Liability
0368 ASbesto.s Personal Injury Product

620 Other Food & Drug

423 Withdrawal

410 Antitrust

625 Drug Related Seizure

28 USC 157

430 Banks and Banking

!630

of Property 21 Liquor Laws

USC

881i~P-R-O-P-E-R-T-Y-R-IG-H-T-S--==446500

Commerce Deportation

640 R.R" & Truck

~20 Copyrights

470 Rackeleer Influenced and

'650 Auhne Regs,

830 Patent

Corrupt Organizations

Liability 40 Marine

Liabihty PERSONAL PROPERTY

660 Occupational Safety/Health

840 Trademark

480 Consumer Credit 490 Cable/Sat TV

45 Marine Produc t Liability
50 Motor Vehicle 55 Motor Vehicle

0 370 Other Fraud 0371 Truth in Lending
380 Other Personal Property Damage

I ' 690 Other LABOR '---f---S-O-C-J-A-L-S-E-C-U-R-IT-y---r"""l850SecuritiesiCommodities!

",""",,'

Bill~----'---

Exchange

"'"'"" 710 Fair Labor Standards

861 HIA (1395fl)

875 Customer Challenge

Product Liab ility

385 Property Damage!

Act

862 Black Lung (923)

60 Other Personal Injury
_ _+

_ _ Product Li'bi~ity 720 Labor/Mgmt. Relations

-==~_~

730 Labor/MgmtReporting

~863 DIWCiDlWW (405(g» 864SSlDTitle XVI

CIVIL RIGHTS

PRISONER PETITIONS

& Disclosure Act 740 Railway Labor Act

865 RSI (405(g)

510 Motions to Vacate

790 Other Labor Litigation : - - - .

12 USC 3410
890 Other Statutory Actions 891 Agricultural Acts
892 Economic Stabilization Act 893 Environmental ~atters
:~~ ;;::~mA!I~~::~r~~tC~n

~;o'S7,e:n,te;n,c:e?u.:

791 Empl. Ret. inc, Security Act

57F~0E~DT-EaxR-Ae-Ls(~TU~A.S-X.P-SI-UainI-TtiSf~~f'--=E"'I"JAO~cooteal of Fee

445 Amer. wiDis abilities Employment
446 Amer. w!Disabilities Other
440 Other Civil Rights

535 Death Penalty 540 Mandamus & Other

f--~-IM-.M-JGRATlO!~8I71IRSo_r DTehfienrddantP)a

550 Civil Rights 555 Prison Condition

462 Naturalizatim Applicaron 463 Habeas Corpus-

26 USC 7609

Alien Detainee

,

p465 Other Immigration Actl)ns

I

V. ORIGIN (place an "X" in Oue Box Only)

o III I Original

2 Removed from 0 3 Remanded from

Proceeding

State Court

Appellate Court

04 Reinstated or Reopened

Transferred from
o 5 anothe r district
(specifY)

06 Multidistrict Litigation

Appeal to District 07 Judge from
Magistrate Judgment

VI. CAUSE OF ACTION

1Cite the U.S, Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

~42USC§1983 .

. _ _ _ _ _ _ _ _ _ _._ _ _ _ _ _ _._ _ _~_ _ _ _ __

i Brief description of cause:
IComplaint fOT Declaratory, Injunctive, OT Othe_T_R_e_li_e_ f _ _ __

VII. REQUESTED IN

III CHECK IF THIS IS A CLASS ACTION DEMAND S

CHECK YES only if demanded in complarnt

COMPLAIN~T:..;:_ _ _ _......:UN~D;..;:E:.c.R::.:F"',R:;.;;,.::.C.:..:.,P.:...,;;;.;23'--_ _-;:---;;""""''''''''''c--_ _ _ _ _ _ _ _ _ _ _ _ _ _..;;J.;;;U.:.;R''Y,..:D;,.:E;;,;;M-=AN:.:::..:.::D: 0 Y.slII No

VIII. RELATED CASE(S)

PLEASE REFER TO CJVI

CERNING REQtJlREMENT TO FILE

- - -IF-ANY

"NOTICE OF RELATED A

IX. DIVISIONAL ASSIGNMENT (CIVIL L.R. 3-2)

(PLACE AND "X" IN ONE BOX ONLY)

FRANCISCO/OAKLAND

o SAN JOSE

DATE
October 7, 2009

SIGNA'''Wl''''Jur'a.

_ _ _ _ _ _ _ ,_ _ _

_ _ _ _ _ _ _ _ _ _._ _ _ __

~

~_-..(,"""'=.:.=.:_L"'=_.

Case3:09-cv-04779-CRB Document1-2 Filed10/06/09 Page2 of 2

•• JS 44 Reverse (Rev. 12107)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the infonnation contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use ofthe Clerk ofCourt for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk ofCourt for each civil complaint filed. The attorney filing a case should complete the form as foHows:

I. (a) Plaintif&-Defendanls. Enter names (last, frrst, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a govemment agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identiry first the agency and then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name ofthe county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in 'Which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)

(c) Attorneys. Enter the frrm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)".

II. Jurisdiction. The basis ofjurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis ofjurisdiction, precedence is given in the order shown below.

United States plaintiff. (I) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.

United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "XU in this box.

Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty ofthe United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box I or 2 should be marked.

Diversity of citizenship. (4) This refers to suits under 28 U.S.c. 1332, where parties are citizens of diflerent states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section 1lI below; federal question actions take precedence over diversity cases.)
m. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity ofcitizenship was indicated above. Mark this section
for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most defmitive.

V. Origin. Place an "XU in one ofthe seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.

Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box.

Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.

Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers.

Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority ofTitle 28 U.S.C. Section 1407. When this box is checked, do not check (5) above.

Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge's decision.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a briefdescription of the cause. Do not cite jurisdictional statutes

unless diversity.

Example:

U.S. Civil Statute: 47 USC 553

Brief Description: Unauthorized re~eptio!Lof cable servic~

vn. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.

Demand. In this space enter the dollar amount (in thousands ofdollars) being demanded or indicate other demand such as a preliminary injunction.

Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbers
and the correspond ing judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet.

 </s> Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page1 of 26

1 PETER C. MEIER (SB# 179019) petermeier@paulhastings.com ERIC A. LONG (SB# 244147) ericlong@paulhastings.com
2 KATHARINE CHAO (SB# 247571) katharinechao@paulhastings.com SARAH O. CHANG (SB# 257921) sarahchang@paulhastings.com
3 PAUL, HASTINGS, JANOFSKY & WALKER LLP 55 Second Street
4 Twenty-Fourth Floor San Francisco, CA 94105-3441
5 Telephone: (415) 856-7000 Facsimile: (415) 856-7100
6 MICHAEL T. RISHER (SB# 191627) mrisher@aclunc.org
7 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC.
8 39 Drumm Street San Francisco, CA 94111
9 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
10 Attorneys for Plaintiffs
11 ELIZABETH AIDA HASKELL, REGINALD ENTO, JEFFREY PATRICK LYONS, JR., and AAKASH DESAI,
12 on behalf of themselves and others similarly situated

13

14

UNITED STATES DISTRICT COURT

15

FOR THE NORTHERN DISTRICT OF CALIFORNIA

16

17 ELIZABETH AIDA HASKELL, REGINALD ENTO, JEFFREY PATRICK
18 LYONS, JR., and AAKASH DESAI, on behalf of themselves and others similarly
19 situated,

20

Plaintiffs,

Civil Case No. C 09-04779 CRB
CLASS ACTION
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

21

vs.

22 EDMUND G. BROWN, JR., Attorney General of California; EVA
23 STEINBERGER, Assistant Bureau Chief for DNA Programs, California Department
24 of Justice; and MICHAEL HENNESSEY, Sheriff, San Francisco County,
25 Defendants.
26

27

28

Case No. C 09-04779 CRB

FIRST AMENDED COMPLAINT FOR DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page2 of 26

1

Plaintiffs, for their Complaint in this action, allege and aver as follows:

2

INTRODUCTION

3

1. This is a facial challenge to a California statute that requires people who

4 are arrested for any felony to provide DNA samples to be analyzed and included in a criminal

5 database, without a warrant or any judicial oversight. Plaintiffs Elizabeth (“Lily”) Aida Haskell,

6 Reginald Ento, Jeffrey Patrick Lyons, Jr., and Aakash Desai request declaratory and injunctive

7 relief on behalf of themselves and others similarly situated on the grounds that this law,

8 California Penal Code § 296(a)(2)(C), violates their rights under the Fourth and Fourteenth

9 Amendments to the United States Constitution.

10

2. As of January 1, 2009, California law mandates the compulsory extraction,

11 collection, analysis, storage, and dissemination for expressly law enforcement purposes of the

12 DNA of “any adult person arrested or charged with any felony offense.” Cal. Penal Code 13 § 296(a)(2)(C) (hereinafter “§ 296(a)(2)(C)”).1 This will result in the mandatory DNA sampling

14 from hundreds of thousands of individuals in California who have not been, and in many cases

15 never will be, convicted of any crime, and without any judicial oversight because collection

16 occurs “immediately after arrest.” § 296.1(a)(1)(A).

17

3. This law, enacted in 2004 as part of Proposition 69, dramatically expanded

18 the scope of mandatory, suspicionless, and warrantless seizure and testing of DNA in California.

19 As a result, California now has the largest criminal DNA databank of any of the 50 states, and

20 one of the most expansive programs for the compulsory collection, retention, and sharing of DNA

21 data in existence anywhere. Indeed, California law enforcement officials have described

22 California’s program as “[t]he third largest DNA database in the world.”

23

4. Under this statutory scheme, not only is an arrestee’s body tissue seized for

24 the purpose of constructing the arrestee’s DNA profile – part of an individual’s genetic blueprint

25 – but the State also stores the arrestee’s body tissue forever so that it can conduct additional DNA

26 analysis of it in the future. Although persons who are not ultimately convicted may apply for a

27 28 1 All statutory references are to the California Penal Code unless otherwise indicated.

Case No. C 09-04779 CRB

-2-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page3 of 26

1 court order to have their biological samples destroyed and their DNA profiles expunged from the

2 database, the procedures for trying to obtain this relief are inadequate. First, the procedures do

3 not allow for timely relief. People, like the Plaintiffs in this case, who were arrested but not

4 charged must wait until the statute of limitations has run before they can even apply for

5 expungement. § 299(b)(1). This means a delay of at least three years and, in some cases, much

6 longer. §§ 799-801. Then, after they have requested relief, innocent arrestees will face an

7 additional delay of at least six months before the court can authorize expungement.

8 § 299(c)(2)(D). Even then, any expungement petition is subject to additional procedural barriers,

9 including a right of veto by the prosecuting attorney. Finally, the court has the unreviewable

10 discretion to deny such relief even to persons who have been found to be factually innocent of the

11 crime for which they were arrested. § 299(b), (c).

12

5. Section 296(a)(2)(C) mandates the seizure of and broad publication to

13 local, state, and national law enforcement agencies of DNA profiles from large numbers of

14 persons as to whom the state has no more legitimate interest in such information than it has for

15 any other law-abiding member of the public. The compulsory testing requirement applies to

16 persons arrested – but not even charged, much less convicted – of many offenses for which their

17 DNA has no conceivable relevance, such as the use of unauthorized signatures in a campaign

18 advertisement, writing checks with insufficient funds, accepting a bribe to throw a sporting event,

19 racing a horse under a fictitious name, counterfeiting railroad tickets, or simple possession of a

20 controlled substance, including such minor ones as codeine. See Cal. Penal Code §§ 115.1, 337c,

21 337f, 476(c), 481; Cal. Health & Safety Code § 11350. Others subject to compulsory extraction

22 of their DNA pursuant to § 296(a)(2)(C) include:

23

•

persons who are arrested but never charged with a felony;

24

•

persons who are arrested and charged with a felony, but whose charges are

25

quickly dropped in the recognition that they are innocent;

26

•

persons who are arrested for a felony and are acquitted at trial and

27

determined by the court to be factually innocent of the crime under Penal

28

Code § 851.8(e);

Case No. C 09-04779 CRB

-3-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page4 of 26

1

•

persons who are arrested as a result of mistaken identity, including victims

2

of identity theft;

3

•

persons, such as victims of domestic violence, who are arrested for

4

violence committed in self-defense and who either have the charges against

5

them dropped or are subsequently acquitted;

6

•

participants in political demonstrations and other activities who have

7

committed no crime but are nonetheless arrested in connection with broad

8

sweeps of participants by the police;

9

•

persons who are wrongfully arrested due to police misconduct;

10

•

persons who are arrested for cultivation of marijuana but against whom

11

charges are dropped or dismissed upon a showing that they were in lawful

12

possession of the marijuana for medical purposes;

13

•

persons who have been arrested for drug possession, complete a pretrial

14

diversion program pursuant to § 1000 et seq., and thereafter have their

15

charges dismissed;

16

•

persons who have been arrested for felony drug offenses and who,

17

following successful completion of treatment programs, have had their

18

convictions expunged in compliance with Proposition 36 or other state

19

laws; and

20

•

persons who are arrested for minor offenses that can be, but rarely are,

21

charged as felonies, even when they are ultimately charged with nothing

22

more than misdemeanors pursuant to § 17(b) (California’s so-called

23

“wobbler” statute). This can include, for example, offenses such as

24

second-time shoplifting, or even entering a store with the intent to shoplift

25

with no prior criminal history.

26

6. Overall, approximately one-third of the hundreds of thousands of persons

27 arrested for felony offenses in California in any given year are ultimately never convicted of any

28 crime whatsoever. Many others are convicted of nothing more than a misdemeanor. According

Case No. C 09-04779 CRB

-4-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page5 of 26

1 to the California Department of Justice, of the approximately 332,000 people arrested for felonies

2 in California in 2007, more than 101,000 were not convicted of any crime. Another

3 approximately 13,500 of these arrestees received only a fine or jail time without probation,

4 indicating that they were convicted only of misdemeanors. The statistics for the previous several

5 years are similar – since 1998, the number of persons arrested by California authorities on

6 suspicion of a felony has ranged from a low of 267,512 in 2000 to a high of 345,415 in 2004.

7 There is no reason to think that these numbers will drop below this range over the next several

8 years.

9

7. The expansive mandatory DNA testing established by § 296(a)(2)(C)

10 violates the Fourth and Fourteenth Amendments of the United States Constitution. The statute

11 not only permits, but requires, broad and ongoing violations of the fundamental protections

12 afforded all persons by the United States Constitution to be secure in their persons from

13 unreasonable searches and seizures and to due process of law. Ignoring the clear limitations

14 recognized by the courts in upholding carefully-circumscribed DNA testing programs for persons

15 convicted of felony offenses, § 296(a)(2)(C) reaches broadly to mandate testing of hundreds of

16 thousands of people who are legally presumed innocent (and in a large proportion of cases

17 actually are innocent) of any crime at all. No justification has been identified for this program

18 beyond the generalized law enforcement interest in solving crimes other than the one for which

19 the individual was arrested. But the United States Constitution permits this kind of law

20 enforcement interest to be pursued only in the presence of reasonable individualized suspicion

21 and (absent unusual circumstances) issuance of a warrant on probable cause. § 296(a)(2)(C) is

22 accordingly unconstitutional.

23

8. This action is brought on behalf of persons who are, or have been, required

24 to provide a DNA sample pursuant to § 296(a)(2)(C) solely as a result of being arrested for a

25 felony. Plaintiffs do not challenge the other provisions of Cal. Penal Code §§ 295 et seq., which

26 require compulsory DNA testing for persons who are actually convicted of a criminal offense.

27 Nor do Plaintiffs challenge the lawful collection and analysis of DNA samples pursuant to a valid

28 warrant or other sufficient court order requiring DNA testing in connection with a specific

Case No. C 09-04779 CRB

-5-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page6 of 26

1 criminal investigation or proceeding as to which the requisite probable cause is shown connecting

2 the person to be tested with a particular criminal offense. Rather, Plaintiffs challenge the mass,

3 programmatic DNA testing of hundreds of thousands of persons – persons not convicted or who

4 are otherwise not under supervision of the criminal justice system – as to whom the long-

5 recognized Constitutional prerequisites to such searches and seizures have been established.

6

JURISDICTION AND VENUE

7

9. This action arises under 42 U.S.C. § 1983 and the United States

8 Constitution. This Court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 1343.

9

10. The Defendants are all public officials of the State of California or its

10 political subdivisions. Each of the Defendants resides within this District and/or performs official

11 duties within the State of California. This Court, accordingly, has personal jurisdiction over each

12 of the Defendants.

13

11. Venue properly lies within this District under 28 U.S.C. § 1391(b). One or

14 more of the named Defendants perform their official duties in this District, and a substantial part

15 of the events or omissions giving rise to Plaintiffs’ claims have occurred or will occur in this

16 District.

17

INTRADISTRICT ASSIGNMENT

18

12. Pursuant to Local Rule 3-2, this action may properly be assigned to the San

19 Francisco or Oakland divisions of this Court.

20

THE PARTIES

21

Plaintiffs

22

13. Plaintiff Elizabeth (“Lily”) Aida Haskell is an individual residing in

23 Oakland, California. On March 21, 2009, Ms. Haskell was arrested at a peace rally against the

24 War on Iraq in San Francisco’s Civic Center. Ms. Haskell was arrested under Cal. Penal Code §

25 405a (taking a person from police custody, a felony under § 405b) and § 148 (obstructing or

26 delaying a peace officer, a misdemeanor) when she allegedly tried to free another protestor who

27 had been taken into custody. After arrest, Ms. Haskell was taken to a San Francisco jail, where

28 San Francisco Sheriff’s Department personnel demanded a DNA sample. Two sheriff’s deputies

Case No. C 09-04779 CRB

-6-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page7 of 26

1 told Ms. Haskell that she would be charged with a separate misdemeanor if she did not provide a

2 DNA sample by swabbing the inside of her cheek. Ms. Haskell asked about access to a lawyer

3 before providing the sample. One of the deputies told Ms. Haskell that she could talk to a lawyer

4 but that she would still be charged with a separate misdemeanor for not immediately providing a

5 DNA sample. She was also told that she would not be released from jail until after arraignment if

6 she did not provide a DNA sample on the spot and without advice from a lawyer.

7

14. No charges were ever filed against Ms. Haskell based on this arrest. No

8 law enforcement entity or personnel obtained any sort of warrant to take her DNA.

9

15. On information and belief, Defendants have analyzed or will soon analyze

10 Ms. Haskell’s DNA sample, and her DNA profile has been, or shortly will be, uploaded into

11 CODIS. On information and belief, there is no other legal basis for the seizure, analysis, or

12 retention of Ms. Haskell’s DNA sample other than her arrest under Penal Code § 405a by the San

13 Francisco County police as alleged herein.

14

16. Plaintiff Reginald Ento is an individual residing in Sacramento, California.

15 On or about January 1, 2009, Mr. Ento was arrested by local law enforcement officers, for alleged

16 receipt of stolen property (Cal. Penal Code § 496), specifically, outdated film cameras marked

17 “Property of U.S. Forest Service.” This offense may be treated either as a misdemeanor or as a

18 felony at the prosecutor’s or court’s discretion. Id. § 17(a), (b). After he was arrested, Mr. Ento

19 was detained at the Sacramento County Jail. While incarcerated, a sheriff’s deputy collected a

20 DNA sample from Mr. Ento by inserting a swab into his mouth and scraping the inside of his

21 cheek. Mr. Ento did not consent to this collection of his DNA. In fact, the deputy indicated that

22 if necessary, the DNA sample would be collected from Mr. Ento by force.

23

17. No charges were ever filed against Mr. Ento based on this arrest. No law

24 enforcement entity or personnel obtained a warrant to take Mr. Ento’s DNA.

25

18. On information and belief, Defendants have analyzed or will soon analyze

26 Mr. Ento’s DNA sample, and his DNA profile is, or shortly will be, uploaded into CODIS. On

27 information and belief, there is no other legal basis for the seizure, analysis, or retention of Mr.

28

Case No. C 09-04779 CRB

-7-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page8 of 26

1 Ento’s DNA sample other than his arrest under Penal Code § 496 by the Sacramento County

2 police as alleged herein.

3

19. Plaintiff Jeffrey Patrick Lyons, Jr. is an individual residing in Oakland,

4 California. On March 16, 2009, Mr. Lyons participated in a demonstration outside the Israeli

5 consulate in San Francisco, to show his solidarity with a political activist who had been seriously

6 injured at a protest in Israel. During the demonstration, San Francisco police officers arrested Mr.

7 Lyons for allegedly trying to take a person from police custody. He was then taken to jail at 850

8 Bryant Street in San Francisco and ordered to provide a DNA sample. He complied with this

9 order. The San Francisco District Attorney’s office charged Mr. Lyons with a felony, Penal Code

10 § 405a, based on this arrest. On November 9, 2009, the case against Mr. Lyons was dismissed.

11

20. No law enforcement entity or personnel obtained a warrant to take Mr.

12 Lyon’s DNA.

13

21. On information and belief, Defendants have analyzed or will soon analyze

14 Mr. Lyon’s DNA sample, and his DNA profile is, or shortly will be, uploaded into CODIS. On

15 information and belief, there is no other legal basis for the seizure, analysis, or retention of Mr.

16 Lyon’s DNA sample other than his arrest under Penal Code § 405a by the San Francisco County

17 police as alleged herein.

18

22. Plaintiff Aakash Desai is an individual residing in Berkeley, California.

19 Mr. Desai is a graduate student at the University of California, Berkeley majoring in

20 environmental engineering. On Friday, November 20, 2009, he participated in a demonstration in

21 Wheeler Hall on the Cal campus, protesting custodial layoffs and furloughs, as well as tuition fee

22 hikes. During the demonstration, U.C. Berkeley police officers arrested Mr. Desai and took him

23 to the Berkeley city jail, where he was told he was being charged with felony burglary. Mr. Desai

24 was then ordered to, and did, provide a DNA sample, although he did not want to. He was

25 eventually released on bail. When Mr. Desai went to court for his arraignment on the Monday

26 following his arrest, he learned that no charges had been filed against him.

27

23. No law enforcement entity or personnel obtained a warrant to take Mr.

28 Desai’s DNA.

Case No. C 09-04779 CRB

-8-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page9 of 26

1

24. On information and belief, Defendants will soon analyze Mr. Desai’s DNA

2 sample and upload the resulting profile into CODIS, unless this Court orders them not to. On

3 information and belief, there is no other legal basis for the seizure, analysis, or retention of Mr.

4 Desai’s DNA sample other than his arrest for felony burglary by U.C. Berkeley police as alleged

5 herein.

6

25. None of the Plaintiffs is currently incarcerated or subject to any form of

7 probation, parole, or other supervised release. Upon information and belief, none of the Plaintiffs

8 is currently the subject of a valid warrant or court order for the seizure of his or her DNA based

9 upon a finding of probable cause or any reasonable suspicion linking him or her to any crime for

10 which such DNA would be relevant evidence. Nor does any other ground currently exist (apart

11 from § 296(a)(2)(C)) on which any Plaintiff may be compelled to submit a sample of his or her

12 body tissue for DNA testing and use for law enforcement purposes.

13

Defendants

14

26. All Defendants are sued in their official capacities only.

15

27. Defendant Edmund G. Brown, Jr. is the Attorney General of the State of

16 California. Under Article 5, Section 13 of the California State Constitution, he is the “chief law

17 officer of the State,” with a duty “to see that the laws of the state are uniformly and adequately

18 enforced.” This provision further grants him “direct supervision over every district attorney and

19 sheriff and over such other law enforcement officers as may be designated by law.” As Attorney

20 General, defendant Brown also supervises the operations of the California Department of Justice.

21 Cal. Gov. Code § 12510. The California Department of Justice is directly responsible for

22 implementing § 296(a)(2)(C) and the state’s DNA database and for ensuring that specimens are

23 collected from arrestees. Cal. Penal Code § 295(g)-(h). To fulfill this responsibility, the

24 Department of Justice has issued a number of administrative bulletins that govern local law-

25 enforcement collection of DNA samples from arrestees, as authorized by Penal Code § 295(h).

26 Therefore, all California law enforcement personnel who collect DNA from arrestees pursuant to

27 § 296(a)(2)(C) do so as agents of and in active participation with defendant Brown.

28

Case No. C 09-04779 CRB

-9-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page10 of 26

1

28. Defendant Eva Steinberger is the Assistant Bureau Chief of Forensic

2 Sciences and current director of the California Department of Justice Jan Bashinski DNA

3 Laboratory in Richmond, in Contra Costa County, California. This laboratory analyzes, stores,

4 and compares the DNA samples collected pursuant to § 296(a)(2)(C), as mandated by statute. Id.

5 §§ 295(k), 295.1(c). On information and belief, Steinberger has, in her capacity as director,

6 responsibility for supervising functions of the Department of Justice and the California

7 Department of Justice Laboratory in implementing § 296(a)(2)(C), including, inter alia, providing

8 procedural guidance, equipment, and materials to local law enforcement agencies for the seizure

9 of body tissue; receiving, maintaining, storing, and analyzing biological samples; contracting with

10 third parties to assist with DNA analysis; and maintaining databases and databanks of analysis

11 results and other information.

12

29. Defendant Michael Hennessey is the Sheriff of San Francisco County. Cal.

13 Penal Code §§ 295 et seq. vests in this defendant, and the other law enforcement officers of San

14 Francisco County whom he supervises, the responsibility for the search and seizure of body tissue

15 from felony arrestees pursuant to § 296(a)(2)(C).

16

CLASS ACTION ALLEGATIONS

17

Plaintiff Class

18

30. Plaintiffs bring this action as a class action pursuant to Fed. R. Civ. P.

19 23(b)(2) or, alternatively, Fed. R. Civ. P. 23(b)(1), on their own behalf and on behalf of all other

20 persons who have been, are, or will be, compelled to submit to the search and seizure of their

21 body tissue and DNA under § 296(a)(2)(C) solely by reason of the fact that they have been

22 arrested for, or charged with, a felony offense (the “Plaintiff Class”).

23

31. The Plaintiff Class includes hundreds of thousands of people who are

24 arrested every year in California on suspicion of a felony. It is so numerous that joinder is

25 impracticable.

26

32. The claims of Plaintiff Class members share common issues of law,

27 including but not limited to:

28

Case No. C 09-04779 CRB

-10-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page11 of 26

1

a. Whether the compulsory sampling, analysis, and retention of the DNA of

2

members of the Plaintiff Class pursuant to § 296(a)(2)(C) violates the

3

Fourth Amendment to the United States Constitution;

4

b. Whether the compulsory sampling, analysis, and retention of the DNA of

5

members of the Plaintiff Class, and the dissemination of DNA profiles and

6

other information derived from those samples, pursuant to § 296(a)(2)(C)

7

constitutes an excessive government intrusion into the Plaintiff Class

8

members’ private and personal genetic information, in that it is neither

9

supported by a legitimate state purpose outweighing individual privacy

10

interests nor narrowly tailored to meet any legitimate state purpose, thus

11

violating the Plaintiff Class members’ right to privacy under the Due

12

Process Clause of the Fourteenth Amendment of the United States

13

Constitution; and

14

c. Whether the compulsory sampling, analysis, and retention of the DNA of

15

members of the Plaintiff Class pursuant to § 296(a)(2)(C) without a

16

requirement of any pre-testing due process protections or the mandatory

17

expungement of data and samples from persons against whom charges are

18

dropped, who are acquitted, whose convictions are reversed, or who are

19

otherwise adjudicated to be innocent, violates the Due Process Clause of

20

the Fourteenth Amendment to the United States Constitution.

21

33. The claims of Plaintiff Class members share common issues of fact,

22 including but not limited to:

23

a. The adverse effects that innocent arrestees will suffer from having their

24

DNA analyzed and placed in a criminal databank, including but not limited

25

to an increased danger of future arrest, of wrongful arrest and conviction,

26

and an invasion of their genetic privacy;

27

b. The amount of personal information that the government may be able to

28

obtain through an analysis of an arrestee’s DNA (either at the point of

Case No. C 09-04779 CRB

-11-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page12 of 26

1

initial analysis or any time thereafter by accessing the stored biological

2

sample) using current technology and in light of reasonably-projected

3

scientific advances;

4

c. The extent to which the specific portions of the DNA molecule targeted for

5

analysis by California contain private information about the individual

6

arrestee, including information about familial relationships; and

7

d. Whether collection of DNA from arrestees, on the mere fact of arrest for a

8

felony, will exacerbate the already disproportionate representation of racial

9

minorities in the California criminal justice system, undermine the

10

legitimacy of that system, and contribute to the harmful notion that

11

criminality has a basis in biology.

12

34. The claims or defenses of the named Plaintiffs are typical of the claims of

13 members of the Plaintiff Class.

14

35. The named Plaintiffs will fairly and adequately protect the interests of the

15 Plaintiff Class. The named Plaintiffs have no interest that is now or may be potentially

16 antagonistic to the interests of the class. The attorneys representing the Plaintiffs include

17 experienced civil rights attorneys and are considered able practitioners in federal constitutional

18 litigation. These attorneys should be appointed as class counsel.

19

36. Defendants have threatened to act and will continue to act on grounds

20 generally applicable to the Plaintiff Class, thereby making final injunctive and declaratory relief

21 appropriate to the class as a whole. The Plaintiff Class may therefore be properly certified

22 pursuant to Fed. R. Civ. P. 23(b)(2).

23

37. Prosecution of separate actions by individual members of the Plaintiff

24 Class would create the risk of inconsistent or varying adjudications and would establish

25 incompatible standards of conduct for individual members of the Plaintiff Class. The Plaintiff

26 Class may therefore be properly certified, alternatively, under Fed. R. Civ. P. 23(b)(1).

27

28

Case No. C 09-04779 CRB

-12-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page13 of 26

1

THE MATTERS IN CONTROVERSY

2

The Development and Sharing of DNA Databases

3

38. Before the passage of Proposition 69 in 2004, California law provided for

4 mandatory DNA testing of persons who had been convicted of certain serious felony offenses and

5 the inclusion of data derived from those tests in a state-wide database. Only persons who had

6 actually been convicted of one of the enumerated felonies were subject to this compulsory testing

7 program, and even in those cases the law provided important due process protections to those

8 whose DNA was taken. For example, the pre-Proposition 69 California statute provided for the

9 automatic expungement of the physical DNA sample and associated database entries for any

10 person whose conviction was reversed. Before Proposition 69, California law enforcement also

11 had authority to conduct one-time searches (called “keyboard searches”) using a DNA sample

12 obtained with a warrant or the subject’s consent, whereby the DNA profile could be searched

13 against the forensic DNA profiles in CODIS. However, this authority did not allow law

14 enforcement to permanently upload the subject’s DNA profile into the database.

15

39. California routinely shares DNA profiles and other information gathered

16 through its DNA testing programs with law enforcement agencies elsewhere. California

17 participates in the nationwide Combined DNA Index System database (“CODIS”). CODIS is a

18 nationwide program, supervised by the Federal Bureau of Investigation, that automatically shares

19 the contents of every participating jurisdiction’s, including California’s, DNA Databases with law

20 enforcement throughout the nation. As relevant to this case, CODIS contains a forensic database,

21 containing profiles of DNA recovered from crime scenes; an offender database, containing DNA

22 profiles of persons who have been convicted of certain crimes; and a more recent addition, an

23 arrestee database, containing DNA profiles of people merely arrested for certain crimes. As of

24 2008, the CODIS database contains over 6.5 million offender profiles, including data derived

25 from state and federal DNA sampling programs, and not including the vast number of arrestee

26 profiles that will be added pursuant to § 296(a)(2)(C). Information in the CODIS database is

27 widely available to law enforcement agencies throughout the United States, to international law

28 enforcement agencies such as Interpol, and to the national law enforcement agencies of other

Case No. C 09-04779 CRB

-13-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page14 of 26

1 countries. Until recently, the federal CODIS system permitted only DNA data taken from

2 persons actually convicted of a felony to be included in the offender database; CODIS now

3 permits, however, inclusion of arrestee DNA profiles as well.

4

40. The sharing of DNA profiles and other information gathered through DNA

5 testing is not limited to the CODIS system. Law enforcement agencies in California are also

6 authorized to share DNA profiles and other information with one another, and with law

7 enforcement agencies in other states, through cross-references of individual state and local

8 databases.

9

41. The purpose of the collection and sharing of data in CODIS and other

10 criminal DNA databases is to provide DNA profiles that can be used to match against DNA found

11 in crime-scene samples, in order to identify suspects in those crimes. The mandatory collection

12 of DNA from arrestees in California pursuant to § 296(a)(2)(C) is intended to provide law

13 enforcement with broad access to otherwise unavailable information about those individuals that

14 might link them to offenses other than those for which they have been arrested.

15

Proposition 69 and Penal Code §§ 295 et seq.

16

42. Proposition 69, a copy of which is attached as Exhibit A, was approved by

17 the California electorate in the November 2, 2004 general election, in accordance with Article II,

18 Section 8 of the California Constitution.

19

43. Proposition 69 amended Cal. Penal Code Sections 295 et seq. The

20 amended statutes include several important new provisions that dramatically expand the reach of

21 the State’s mandatory testing regime, while at the same time eliminating key due-process

22 protections that had previously existed.

23

44. The declared purpose of the searches and seizures required by Proposition

24 69 is to further law enforcement goals:

25

Law enforcement should be able to use the DNA Database and Data

Bank Program to substantially reduce the number of unsolved

26

crimes; to help stop serial crime by quickly comparing DNA

profiles of qualifying persons and evidence samples with as many

27

investigations and cases as necessary to solve crime and apprehend

perpetrators; to exonerate persons wrongly suspected or accused of

28

crime; and to identify human remains.

Case No. C 09-04779 CRB

-14-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page15 of 26

1 Proposition 69 § II(c). Proposition 69 further asserts that expanded DNA testing is “[t]he most

2 reasonable and certain means” of enhancing the law enforcement interests in identifying and

3 apprehending criminal offenders. Id. §§ II(d)(l)-(4).

4

45. Proposition 69 requires that, as of “January 1 of the fifth year following”

5 its enactment, any adult arrested for any felony must submit to DNA sampling.” Id. § III(3),

6 codified as Penal Code § 296(a)(2)(A). In Information Bulletin No. 04-BFS-03 dated March 15,

7 2005, the California Department of Justice confirmed that “[b]eginning in 2009, all adults

8 arrested for any felony offense on or after January 1, 2009” are subject to mandatory search and

9 seizure of their body tissue for purposes of DNA analysis as set forth in § 296(a)(2)(C).

10

46. The Department has directed that “DNA collection from arrestees should

11 occur during the booking process or as soon as possible after the arrest and before the subject is

12 released from confinement or custody.” Cal. DoJ Info. Bulletin No. 08-BFS-02 at 2 (citing Penal

13 Code § 296.1(a)(1)(A)). Law enforcement is to check the arrestee’s criminal history information

14 in the state and local databases before taking a sample to see whether the arrestee has already

15 provided a DNA sample, in order to prevent the taking of duplicate samples. Id. If the

16 Department already has “suitable DNA sample and print impressions” on file for that arrestee, a

17 new sample will not be taken. Id.

18

47. Cal. Penal Code §§ 295 et seq. establishes a presumption that body tissue

19 samples will be taken through the “buccal swab” method, by which inner cheek cells are scraped

20 from the inside of the mouth. Body tissue may be taken, however, through other methods (e.g.,

21 blood sampling) at the direction of the California Department of Justice. Id. § 295(e). The

22 Department of Justice is directed to provide appropriate equipment, materials, and instructions to

23 each facility at which body tissue is to be seized.

24

48. Refusal to submit to sampling is a crime, punishable by one year in jail and

25 a fine. Id. § 298.1(a). In addition, law enforcement is authorized to physically force a person to

26 give a sample. Id. § 298(b).

27

49. Once taken, the arrestee’s body tissue is forwarded to the Jan Bashinski

28 DNA Laboratory of the Department of Justice (the “Bashinski Lab”). The Bashinski Lab then

Case No. C 09-04779 CRB

-15-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page16 of 26

1 arranges for the DNA analysis to be performed, either by its own personnel or through third-party

2 contractors. After the analysis is completed, the results are entered into the state’s DNA Database

3 and shared freely with other law enforcement agencies nationally and internationally, including

4 (but not limited to) through the CODIS system.

5

50. Cal. Penal Code §§ 295 et seq. does not effectively limit the types of

6 genetic information to be collected and maintained from the biological sample and does not

7 require destruction of the underlying sample after the DNA profile has been created and uploaded

8 into the database. Instead, the body tissue sample is retained indefinitely for further analysis.

9 Thus, the statute allows the state to maintain all genetic information that can be derived from an

10 arrestee’s DNA.

11

51. As amended by Proposition 69, California law fails to provide for the

12 automatic expungement of data and samples taken from persons whose convictions are

13 overturned. Nor is there any provision for automatic expungement of samples taken from persons

14 who are arrested but never charged, persons against whom charges are dropped, persons who are

15 acquitted, or even persons who are found by a court to be factually innocent of the offense for

16 which they were arrested. Instead, any person who wants to have his or her sample expunged

17 must file a petition for such expungement in the court of the county where the arrest occurred as

18 described below.

19

52. Arrestees who were never charged with an offense – such as the named

20 Plaintiffs – must wait a minimum of three years before requesting expungement. Such people can

21 only file a request for expungement if “no accusatory pleading has been filed within the

22 applicable period allowed by law charging the person with a qualifying offense as set forth in

23 subdivision (a) of Section 296.” § 299(b)(1). This “applicable period allowed by law” is the

24 statute of limitations, which ranges from a minimum of three years for even the least serious

25 felony to a maximum of life for embezzlement of public money or for any offense that carries a

26 life sentence. §§ 799-801. During this waiting period, the person’s profile will remain in the

27 DNA database and be searched repeatedly. Because CODIS conducts a routine, weekly search of

28 DNA offender/arrestee profiles against profiles generated from crime scene samples (in addition

Case No. C 09-04779 CRB

-16-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page17 of 26

1 to any additional searches as needed), the person will have their DNA profile searched on a

2 weekly basis, at minimum, during this three-year waiting period.

3

53. In addition, no expungement petition may be granted until at least 180 days

4 following the filing of the petition, and no limits are imposed on the use of the petitioner’s DNA

5 data or dissemination of that data to other law enforcement agencies during that 180-day period.

6 And even if the petition for expungement is granted, no mechanism is provided for the return of

7 the petitioner’s DNA sample, profile, or other information from other law enforcement agencies

8 with whom it has been shared.

9

54. Even after these lengthy waiting periods, the court cannot grant a petition if

10 either the prosecuting attorney or the Department of Justice has objected to it; thus, the law allows

11 the prosecuting attorney and Department of Justice, or either of them, to block expungement

12 merely by filing an objection. See § 299(c)(2)(d). In addition, the law expressly provides that

13 “[t]he court has the discretion to grant or deny the request for expungement,” without setting forth

14 any factors that should guide the court’s discretion. § 299(c)(1). Furthermore, “denial of a

15 request for expungement is a nonappealable order and shall not be reviewed by petition for writ.”

16 § 299(c)(1). This means not only that arrestees whose requests for expungement are denied have

17 no recourse, but also that California appellate courts will have no opportunity to make decisional

18 law to guide the trial courts’ discretion. Thus, the court’s ability to deny such a petition is

19 completely standardless and unreviewable.

20

55. Finally, the statute allows the Department of Justice to refuse to destroy a

21 sample even after it has received the requisite court order for destruction, if the Department

22 determines that it has additional grounds to maintain the sample. § 299(d). The law does not

23 provide for any sort of challenge or appeal if the Department refuses to destroy a sample after

24 receiving a court order.

25

56. When a sample is analyzed and the resulting profile is put into CODIS, that

26 profile is then regularly and automatically accessed, searched, and compared with millions of

27 other DNA profiles in the CODIS system. In general, these searches occur weekly. Thus, even if

28

Case No. C 09-04779 CRB

-17-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page18 of 26

1 an arrestee is eventually successful in getting her sample destroyed and profile expunged, during

2 the delays discussed above that profile will have been accessed multiple times.

3

57. On information and belief, the CODIS database, like most government

4 computer databases, is regularly backed-up. On information and belief, there is no procedure for

5 removing arrestee profiles from these backup copies of the database.

6

58. Cal. Penal Code §§ 295 et seq. allows for the sharing of DNA profiles

7 and/or the underlying biological samples with a broad array of international, federal, state and

8 local law enforcement officers, including private crime laboratories and other third parties that

9 have been approved by the Department of Justice. Therefore, the procedural and substantive

10 barriers to expungement, including those alleged herein, are inadequate to bring § 296(a)(2)(C)

11 within the constitutional boundaries of the Fourth and Fourteenth Amendments to the United

12 States Constitution because the Plaintiff Class will suffer continuing injury due to the presence of

13 class members’ DNA profile in DNA databases before any prerequisites to expungement can be

14 satisfied.

15

59. The Department of Justice publishes regular statistical reports on the

16 number of samples being collected and processed at the Bashinski Lab. The reports show that the

17 state is collecting tens of thousands of new DNA samples per month under authority of Penal

18 Code §§ 295 et seq. The 2009 reports that have been published so far consistently show that the

19 backlog of untested DNA samples continues to grow as more samples are received by the

20 laboratory than are analyzed and uploaded into CODIS.

21

60. For example, the Department’s report for the first quarter of 2009 shows

22 that between January 1 and March 31, the lab uploaded 58,534 profiles to CODIS, an average of

23 19,511 samples per month. During this same three-month period, the lab received 73,797

24 samples, meaning that the backlog of samples that had been received but not yet analyzed and

25 uploaded into CODIS grew by 15,263. The Department reports that as of March 31, 2009, this

26 backlog included 49,982 samples.

27

61. Similarly, the Department reports that in April 2009 the lab’s backlog grew

28 by an additional 3,608 samples, to 53,590. During this period, the lab uploaded 25,579 profiles to

Case No. C 09-04779 CRB

-18-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page19 of 26

1 CODIS, while receiving 29,287. Thus, the lab’s ending backlog totaled more than twice the

2 number of samples that it was able to analyze and upload into CODIS during the month of April,

3 and more than 2.5 times the average monthly number of samples it was able to analyze and

4 upload during the first quarter of 2009.

5

62. On information and belief based on these figures, the average time between

6 the lab’s receipt of an arrestee sample and the eventual uploading to CODIS of the profile

7 associated with that sample is more than two months.

8

The Nature Of DNA Testing And The Impact On Plaintiffs

9

63. Under Cal. Penal Code §§ 295 et seq., the body tissue seized from

10 Plaintiffs and others will be processed, or has already been processed, to extract samples of their

11 DNA, which are then analyzed to generate DNA profiles. DNA (an abbreviation for

12 “deoxyribonucleic acid”) is the cellular material that contains each person’s unique genetic code.

13

64. The DNA profiles that are currently stored in law enforcement databases

14 are sometimes referred to as “DNA fingerprints.” This is a misnomer, for although fingerprints

15 and DNA resemble each other in that each is unique for each individual person, the seizure,

16 banking, and analysis of DNA samples differs fundamentally from the mere taking of a

17 fingerprint.

18

65. Fingerprinting involves the creation of an image or impression of the

19 external physical conformation of the fingertips, and a fingerprint reveals nothing more about the

20 person than the unique patterns on the skin of his or her fingers. Thus, while fingerprints can be

21 used effectively to provide evidence of the identity of a person, they reveal no other information

22 about that person.

23

66. DNA, in contrast, is a microscopic arrangement of chemical constituents

24 within the nucleus of a human cell that make up an individual’s genetic blueprint. DNA analysis

25 can reveal a vast array of highly private information, including familial relationships, ethnic traits

26 and other physical characteristics, genetic defects, and propensity to certain diseases, such as

27 sickle-cell anemia, Down syndrome, and certain types of cancers. The amount of information

28 about a person that can be revealed by DNA is expanding every year. Some scientists have

Case No. C 09-04779 CRB

-19-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page20 of 26

1 suggested that DNA analysis can be used to predict personality traits, propensity for antisocial

2 behavior, and sexual orientation, as well as an ever-expanding variety of existing and future

3 health conditions and other physical traits.

4

67. Already, state and federal officials have issued policy memoranda

5 authorizing the use of state and federal DNA databases for so-called familial searching – more

6 accurately known as partial-match searching – where the database is used to locate a person who

7 does not match the crime-scene sample but whose DNA is similar to that left at the scene, in the

8 hope that the near-match may be a family member of the perpetrator. Thus, rather than using the

9 database to identify the culprit, it is used to single-out an individual who is demonstrably innocent

10 of the crime – because the crime scene DNA does not match his – in the hope that investigating

11 this innocent person will provide a clue to the identity of the actual culprit. This represents an

12 unreasonable intrusion into the private life of an individual who has not even been accused of a

13 crime but who may or may not be related to the perpetrator. A DNA specialist with the California

14 Department of Justice acknowledged this in a 2007 internal memorandum analyzing the

15 desirability of allowing for familial searching. That memorandum provided that “a policy of

16 disclosing partial database matches would shift the delicate Fourth Amendment balance that

17 courts have struck in holding DNA database programs constitutional by diluting the state interest

18 in the expeditious and accurate nature of the DNA database while weakening the disclosure

19 restrictions that minimize invasions of privacy” and that a “policy permitting the reporting of

20 arrestee names for the purpose of investigating potential relatives, even before those arrestees

21 have been convicted (or not convicted and consequently expunged) could be viewed as an

22 overreaching application of the Database. In turn, this may impair DOJ’s arguments in support of

23 the Fourth Amendment reasonableness of arrestee collections in the first instance.”

24

68. Due to the expansive nature of the information that may be gleaned from

25 an individual’s DNA, the compulsory seizure of biological material from Plaintiffs for the

26 purpose of constructing Plaintiffs’ DNA profiles provides law enforcement personnel and other

27 government officials with direct access to the most fundamentally private personal information

28 that any person possesses. Such seizure invades a location – the genetic code locked within each

Case No. C 09-04779 CRB

-20-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page21 of 26

1 person’s cells – in which, absent unusual circumstances, the average person has the very highest

2 possible expectation of privacy.

3

69. Arrestee testing, if allowed to go forward unfettered, will serve to worsen

4 the race-based inequities present in our criminal-justice system. Racial minorities are already

5 disproportionately represented in California’s criminal justice system, particularly at the arrestee

6 level. Mandatory arrestee DNA collection means that anybody who is arrested for a felony will

7 forever have his DNA included in the CODIS database, unless he is successfully able to navigate

8 the cumbersome expungement process. He will therefore face a lifetime of what some

9 researchers have called genetic surveillance, with his DNA continually being compared against

10 DNA taken from crime scenes throughout the nation. On information and belief, with the

11 increased use of so-called familial searching, his family will also be included in this surveillance.

12 This will further increase the impact of arrestee testing on people of color and their communities.

13

Declaratory Relief Under 28 U.S.C. §§ 2201, 2202

14

70. Plaintiffs reallege and incorporate here the allegations in Paragraphs 1-69,

15 above, as though fully set forth.

16

71. There exists an actual, present and justiciable controversy between

17 Plaintiffs and Defendants concerning their rights and duties with respect to Defendants’ conduct

18 described herein. Plaintiffs contend that Defendants violated, and continue to violate, Plaintiffs’

19 rights under the constitutions and laws of the United States, specifically that, on its face and as

20 applied to them and to others in the Plaintiff Class, § 296(a)(2)(C) is unlawful and

21 unconstitutional. On information and belief, Defendants deny that their conduct violated, or

22 continues to violate, Plaintiffs’ rights under the constitutions and laws of the United States.

23 Plaintiffs fear that they are now and will again be subjected to such unlawful and unconstitutional

24 actions, and seek a judicial declaration that Defendants’ conduct deprived, and continues to

25 deprive, Plaintiffs of their rights under the constitution and laws of the United States.

26

72. This controversy is ripe for judicial decision, and declaratory relief is

27 necessary and appropriate so that the parties may know the legal obligations that govern their

28 present and future conduct.

Case No. C 09-04779 CRB

-21-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page22 of 26

1

COUNT I: VIOLATION OF THE FOURTH AMENDMENT TO

2

THE UNITED STATES CONSTITUTION (42 U.S.C. § 1983)

3

73. Plaintiffs hereby reallege and incorporate by reference the allegations

4 contained in Paragraphs 1-72 as though fully set forth herein.

5

74. The Fourth Amendment to the United States Constitution protects the right

6 of people to be free from unreasonable searches and seizures and prohibits searches or seizures

7 for law enforcement purposes absent a warrant or a recognized exception to the warrant

8 requirement.

9

75. Plaintiffs have a reasonable expectation that their bodily integrity and their

10 genetic privacy will be respected.

11

76. Section 296(a)(2)(C) mandates the compulsory seizure and search of

12 biological material from Plaintiffs and other members of the Plaintiff Class, and the DNA

13 analysis of that biological material for generalized law enforcement purposes, without a warrant

14 or any required showing of probable cause or individualized suspicion linking the person at issue

15 to any specific crime for which his or her DNA is relevant.

16

77. The involuntary extraction of biological material from the Plaintiff Class

17 for purposes of DNA analysis pursuant to § 296(a)(2)(C) constitutes an unreasonable search and

18 seizure under the Fourth Amendment to the United States Constitution.

19

78. Every analysis of these biological samples by government personnel serves

20 to reveal information about the person whose DNA is being examined and therefore constitutes a

21 further and independent search (and violation) of the Fourth Amendment beyond that occasioned

22 by the initial extraction of the biological sample.

23

79. The compulsory and warrantless search and seizure of biological material

24 from Plaintiffs and members of the Plaintiff Class is inherently unreasonable within the meaning

25 of the Fourth Amendment and is not supported by any recognized exception to the Fourth

26 Amendment’s warrant and probable cause requirements. The subsequent DNA analysis and

27 storage of such biological material further constitutes an unreasonable search and seizure within

28 the meaning of the Fourth Amendment and is also not justified by any recognized exception to

Case No. C 09-04779 CRB

-22-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page23 of 26

1 the warrant and probable cause requirements. On its face and as applied to the Plaintiff Class, §

2 296(a)(2)(C) is accordingly unconstitutional.

3

COUNT II: VIOLATION OF SUBSTANTIVE DUE PROCESS

4

UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES

5

CONSTITUTION (42 U.S.C. § 1983)

6

80. Plaintiffs hereby reallege and incorporate by reference the allegations

7 contained in Paragraphs 1-79 as though fully set forth herein.

8

81. The Due Process Clause of the Fourteenth Amendment to the United States

9 Constitution provides a substantive right to privacy with respect to personal matters such as

10 medical and genetic information.

11

82. Because § 296(a)(2)(C) requires government intrusion into private and

12 personal genetic information of Plaintiffs by procuring, analyzing, indefinitely retaining, and

13 disseminating their biological samples and DNA information, the Fourteenth Amendment to the

14 United States Constitution requires that the intrusion be supported by a legitimate governmental

15 purpose that outweighs Plaintiffs’ privacy interests and that the intrusion be narrowly tailored to

16 meet that legitimate purpose.

17

83. California’s interest in maintaining biological samples and DNA profiles

18 from arrestees does not outweigh Plaintiffs’ privacy interests with respect to their genetic

19 material; nor is Cal. Penal Code §§ 295 et seq., including § 296(a)(2)(C), narrowly tailored to

20 further the state’s interest. Accordingly, § 296(a)(2)(C), on its face and as applied to the Plaintiff

21 Class, violates their rights to privacy and substantive due process under the Fourteenth

22 Amendment to the United States Constitution.

23

COUNT III: VIOLATION OF PROCEDURAL DUE PROCESS

24

UNDER THE FOURTEENTH AMENDMENT TO THE

25

UNITED STATES CONSTITUTION (42 U.S.C. § 1983)

26

84. Plaintiffs hereby reallege and incorporate by reference the allegations

27 contained in Paragraphs 1-83 as though fully set forth herein.

28

Case No. C 09-04779 CRB

-23-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page24 of 26

1

85. The Due Process Clause of the Fourteenth Amendment to the United States

2 Constitution prohibits the deprivation of life, liberty or property without due process of law.

3

86. Cal. Penal Code §§ 295 et seq. violates procedural process in numerous

4 respects, including the following:

5

a. Cal. Penal Code §§ 295 et seq. denies Plaintiffs any opportunity to be heard

6

as to whether any legitimate reason exists for the compulsory seizure and

7

DNA analysis of their biological material for law enforcement purposes;

8

b. Cal. Penal Code §§ 295 et seq. denies Plaintiffs meaningful remedies to

9

assure complete, certain, and immediate expungement of and destruction of

10

their biological samples, DNA profiles, and other data should their arrests

11

not lead to a felony conviction or if any conviction is overturned; and

12

c. Cal. Penal Code §§ 295 et seq. requires the deprivation of Plaintiffs’

13

property and liberty interests in their own biological and genetic material

14

without notice or any opportunity to be heard as to whether the arrest giving

15

rise to the compulsory collection of their biological samples was lawful.

16

87. Because it fails to afford such basic procedural protections to Plaintiffs and

17 other members of the Plaintiff Class who are subject to its mandatory testing provisions, Cal.

18 Penal Code §§ 295 et seq. violates on its face and as applied to the Plaintiff Class, the Due

19 Process Clause of the Fourteenth Amendment to the United States Constitution.

20

RELIEF SOUGHT

21

WHEREFORE, Plaintiffs, on behalf of themselves and the Plaintiff Class, seek the

22 following relief:

23

1. A declaration that California Penal Code § 296(a)(2)(C) is unconstitutional

24 on its face and as applied to persons who are subject to its compulsory search and seizure

25 provision solely as a result of their status as persons who have been arrested for, or charged with,

26 a felony.

27

2. A preliminary and permanent injunction:

28

Case No. C 09-04779 CRB

-24-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page25 of 26

1

a)

2

3

4

5

6

7

8

9

10

b)

11

12

13

14

15

16

17

18

19

20

c)

21

22

23

24

25

26

27

28

Case No. C 09-04779 CRB

enjoining Defendants, including all of defendant Brown’s officers, agents, servants, employees, attorneys, and other persons in active concert or participation with defendant Brown, from the compulsory search, seizure, collection, analysis, and/or retention of biological samples from any member of the Plaintiff Class made pursuant to California Penal Code § 296(a)(2)(C) until and unless he or she is actually convicted of a felony offense, unless such search, seizure, collection, analysis, and/or retention is supported by a warrant issued on probable cause; enjoining Defendants, including all of defendant Brown’s officers, agents, servants, employees, attorneys, and other persons in active concert or participation with defendant Brown, from assisting any other state or local law enforcement official or third party in searching, seizing, collecting, analyzing, or retaining biological samples, or DNA data obtained from such samples, from any member of the Plaintiff Class made pursuant § 296(a)(2)(C) until and unless he or she is actually convicted of a felony offense, unless such search, seizure, collection, analysis, and/or retention is supported by a warrant issued on probable cause; and ordering Defendants, including all of defendant Brown’s officers, agents, servants, employees, attorneys, and other persons in active concert or participation with defendant Brown, to promptly destroy any biological samples obtained from members of the Plaintiff Class pursuant § 296(a)(2)(C) that are in their possession or that have been, or in the future are, forwarded to the Department of Justice (or any entity with which it has contracted), and to expunge all associated DNA profiles and other data from all state and local databases and other files, unless the submitting law enforcement

-25-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56 Filed12/01/09 Page26 of 26

1

agency has certified that the sample was taken either (i) following

2

conviction for a felony offense or (ii) pursuant to a warrant issued

3

upon probable cause or other court order issued under authority

4

other than § 296(a)(2)(C).

5

3. Costs and attorneys fees incurred in this action pursuant to 42 U.S.C.

6 §1988 and other applicable authority.

7

4. Such other and further relief as may be just and proper.

8

9 DATED: December 1, 2009

PAUL, HASTINGS, JANOFSKY & WALKER LLP

10

11

By:

/s/ Peter C. Meier

Peter C. Meier

12

13

AMERICAN CIVIL LIBERTIES UNION

14

FOUNDATION OF NORTHERN CALIFORNIA, INC.

15

16

By:

/s/ Michael T. Risher

Michael T. Risher

17

Attorneys for Plaintiffs

18

ELIZABETH AIDA HASKELL, REGINALD ENTO,

JEFFREY PATRICK LYONS, JR., and AAKASH

19

DESAI, on behalf of themselves and others similarly

situated

20

21 LEGAL_US_W # 63321578.2

22

23

24

25

26

27

28

Case No. C 09-04779 CRB

-26-

FIRST AMENDED COMPLAINT FOR

DECL. & INJUNCTIVE RELIEF

Case3:09-cv-04779-CRB Document56-1 Filed12/01/09 Page1 of 11
TEXT OF PROPOSED LAWS

Proposition 68 (cont.)

SEC. 8.3. (a) Funds appropriated pursuant to the Gaming Revenue Act of 2004 shall not be deemed to be part of “total allocations to school districts and community college districts from General Fund proceeds of taxes appropriated pursuant to Article XIII B” as that term is used in paragraphs (2) and (3) of subdivision (b) of Section 8.
(b) Revenues derived from payments made pursuant to the Gaming Revenue Act of 2004 shall not be deemed to be “General Fund revenues , which may be appropriated pursuant to Article XIII B” as that term is used in paragraph (1) of subdivision (b) of Section 8 nor shall they be considered in the determination of “per capita General Fund revenues” as that term is used in paragraph (3) of subdivision (b) and in subdivision (e) of Section 8.
SEC. 14. Section 14 is added to Article XIII B of the California Constitution, to read:
SEC. 14. (a) For purposes of this article, “proceeds of taxes” shall not include the revenues created by the Gaming Revenue Act of 2004.
(b) For purposes of this article, “appropriations subject to limitation” of each entity of government shall not include appropriations of revenues from the Gaming Revenue Trust Fund created by the Gaming Revenue Act of 2004.
SEC. 15. Amendment
The statutory provisions of this act may be amended only by a vote of two-thirds of the membership of both houses of the Legislature. All statutory amendments to this act shall be to further the act and must be consistent with its purposes.
SEC. 16. Consistency With Other Ballot Measures
The provisions of this act are not in conﬂict with any initiative measure that appears on the same ballot that amends the California Constitution to authorize gaming of any kind. In the event that this act and another measure that amends the California Constitution to permit gaming of any kind are adopted at the same election, the courts are

hereby directed to reconcile their respective statutory provisions to the greatest extent possible and to give effect to every provision of both measures.
SEC. 17. Additional Funding
No moneys in the Gaming Revenue Trust Fund shall be used to supplant federal, state, or local funds used for child protective and foster care services, neighborhood sheriffs and police ofﬁcers, and ﬁreﬁghters but shall be used exclusively to supplement the total amount of federal, state, and local funds allocated for child protective services and foster care which improve the educational outcomes of abused and neglected children and children in foster care and for additional sheriffs, police ofﬁcers, and ﬁreﬁghters.
SEC. 18. Judicial Proceedings
In any action for declaratory or injunctive relief, or for relief by way of any extraordinary writ, wherein the construction, application, or validity of Section 3 of this act or any part thereof is called into question, a court shall not grant any temporary restraining order, preliminary or permanent injunction, or any peremptory writ of mandate, certiorari, or prohibition, or other provisional or permanent order to restrain, stay, or otherwise interfere with the operation of the act except upon a finding by the court, based on clear and convincing evidence, that the public interest will not be prejudiced thereby, and no such order shall be effective for more than 15 calendar days. A court shall not restrain any part of this act except the specific provisions that are challenged.
SEC. 19. Severability
If any provision of this act or the application thereof to any person or circumstances is held invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this act that can be given effect without the invalid or unconstitutional provision or application, and to this end the provisions of this act are severable.

Proposition 69

This initiative measure is submitted to the people in accordance with the provisions of Section 8 of Article II of the California Constitution.
This initiative measure amends a section of the Government Code, and amends, repeals, and adds sections to the Penal Code; therefore, existing provisions proposed to be deleted are printed in strikeout type and new provisions proposed to be added are printed in italic type to indicate that they are new.
PROPOSED LAW
SECTION I. Title
(a) This measure shall be known and referred to as the DNA Fingerprint, Unsolved Crime and Innocence Protection Act.
SEC. II. Findings and Declarations of Purpose
The people of the State of California do hereby ﬁnd and declare that:
(a) Our communities have a compelling interest in protecting themselves from crime.
(b) There is critical and urgent need to provide law enforcement ofﬁcers and agencies with the latest scientiﬁc technology available for accurately and expeditiously identifying, apprehending, arresting, and convicting criminal offenders and exonerating persons wrongly suspected or accused of crime.
(c) Law enforcement should be able to use the DNA Database and Data Bank Program to substantially reduce the number of unsolved crimes; to help stop serial crime by quickly comparing DNA proﬁles of qualifying persons and evidence samples with as many investigations and cases as necessary to solve crime and apprehend perpetrators; to exonerate persons wrongly suspected or accused of crime; and to identify human remains.
(d) Expanding the statewide DNA Database and Data Bank Program is:
(1) The most reasonable and certain means to accomplish effective crime solving in California, to aid in the identiﬁcation of missing and unidentiﬁed persons, and to exonerate persons wrongly suspected or

accused of crime;
(2) The most reasonable and certain means to solve crime as effectively as other states which have found that the majority of violent criminals have nonviolent criminal prior convictions, and that the majority of cold hits and criminal investigation links are missed if a DNA database or data bank is limited only to violent crimes;
(3) The most reasonable and certain means to rapidly and substantially increase the number of cold hits and criminal investigation links so that serial crime offenders may be identiﬁed, apprehended and convicted for crimes they committed in the past and prevented from committing future crimes that would jeopardize public safety and devastate lives; and
(4) The most reasonable and certain means to ensure that California’s Database and Data Bank Program is fully compatible with, and a meaningful part of, the nationwide Combined DNA Index System (CODIS).
(e) The state has a compelling interest in the accurate identiﬁcation of criminal offenders, and DNA testing at the earliest stages of criminal proceedings for felony offenses will help thwart criminal perpetrators from concealing their identities and thus prevent time-consuming and expensive investigations of innocent persons.
(f) The state has a compelling interest in the accurate identiﬁcation of criminal offenders, and it is reasonable to expect qualifying offenders to provide forensic DNA samples for the limited identiﬁcation purposes set forth in this chapter.
(g) Expanding the statewide DNA Database and Data Bank Program is the most reasonable and certain means to ensure that persons wrongly suspected or accused of crime are quickly exonerated so that they may reestablish their standing in the community. Moreover, a person whose sample has been collected for Database and Data Bank purposes must be able to seek expungement of his or her proﬁle from the Database and Data Bank.
SEC. III. DNA and Forensic Identiﬁcation Database and Data Bank Act

Text of Proposed Laws | 135

Case3:09-cv-04779-CRB Document56-1 Filed12/01/09 Page2 of 11
TEXT OF PROPOSED LAWS

Proposition 69 (cont.)

SEC. 1. Section 295 of the Penal Code is amended to read:
295. (a) This chapter shall be known and may be cited as the DNA and Forensic Identiﬁcation Data-Base Database and Data Bank Act of 1998 , as amended .
(b) The Legislature ﬁnds and declares people of the State of California set forth all of the following:
(1) Deoxyribonucleic acid (DNA) and forensic identification analysis is a useful law enforcement tool for identifying and prosecuting sexual and violent offenders criminal offenders and exonerating the innocent .
(2) It is the intent of the Legislature people of the State of California , in order to further the purposes of this chapter, to require DNA and forensic identiﬁcation databank data bank samples from all persons, including juveniles, for the felony and misdemeanor offenses described in subdivision (a) of Section 296.
(3) It is necessary to enact this act deﬁning and governing the state’s DNA and forensic identiﬁcation database and databank data bank in order to clarify existing law and to enable the state’s DNA and forensic identiﬁcation database and databank program Forensic Identiﬁcation Database and Data Bank Program to become a more effective law enforcement tool.
(c) The purpose of the DNA and forensic identiﬁcation databank Forensic Identiﬁcation Database and Data Bank Program is to assist federal, state, and local criminal justice and law enforcement agencies within and outside California in the expeditious and accurate detection and prosecution of individuals responsible for sex offenses and other violent crimes, the exclusion of suspects who are being investigated for these crimes, and the identiﬁcation of missing and unidentiﬁed persons, particularly abducted children.
(d) Like the collection of ﬁngerprints, the collection of DNA samples pursuant to this chapter is an administrative requirement to assist in the accurate identiﬁcation of criminal offenders.
(e) Unless otherwise requested by the Department of Justice, collection of biological samples for DNA analysis from qualifying persons under this chapter is limited to collection of inner cheek cells of the mouth (buccal swab samples).
(f) The Department of Justice DNA Laboratory may obtain through federal, state, or local law enforcement agencies blood specimens from qualifying persons as deﬁned in subdivision (a) of Section 296, and according to procedures set forth in Section 298, when it is determined in the discretion of the Department of Justice that such specimens are necessary in a particular case or would aid the department in obtaining an accurate forensic DNA proﬁle for identiﬁcation purposes.
(d) (g) The Department of Justice, through its DNA Laboratory, shall be responsible for the management and administration of the state’s DNA database and databank identiﬁcation program DNA and Forensic Identiﬁcation Database and Data Bank Program and for liaison with the Federal Bureau of Investigation (FBI) regarding the state’s participation in a national or international DNA database and data bank program such as the FBI’s Combined DNA Index System (CODIS) that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories nationwide.
(e) (h) The Department of Justice shall be responsible for implementing this chapter.
(1) The Department of Justice DNA Laboratory, the Department of Corrections, the Board of Corrections, and the Department of the Youth Authority shall may adopt policies and enact regulations for the implementation of this chapter, as necessary, to give effect to the intent and purpose of this chapter, and to ensure that databank data bank blood specimens, saliva buccal swab samples, and thumb and palm print impressions as required by this chapter are collected from qualifying offenders persons in a timely manner, as soon as possible after arrest , conviction, or a plea or ﬁnding of guilty, no contest, or not guilty by reason of insanity, or upon the any disposition rendered in the case of a juvenile who is adjudged a ward of the court adjudicated under Section 602 of the Welfare and Institutions Code for commission of any of this chapter’s enumerated qualifying offenses, including attempts, or when it is determined that a qualifying offender person has not given the required specimens, samples or print impressions . The Before adopting any policy or regulation implementing this chapter, the Department of Corrections , the Board of Corrections, and the Department of the Youth Authority shall adopt the policies and regulations for implementing this chapter with seek advice from and in consultation consult with the Department of Justice DNA Laboratory Director.
136 | Text of Proposed Laws

(2) Given the speciﬁcity of this chapter, and except as provided in subdivision (c) of Section 298.1, any administrative bulletins, notices, regulations, policies, procedures, or guidelines adopted by the Department of Justice and its DNA Laboratory, the Department of Corrections, the Department of the Youth Authority, or the Board of Corrections for the purpose of the implementing this chapter are exempt from the provisions of the Administrative Procedure Act, Chapter 3.5 (commencing with Section 11340), Chapter 4 (commencing with Section 11370), Chapter 4.5 (commencing with Section 11400), and Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.
(3) The Department of Corrections , the Board of Corrections, and the Department of the Youth Authority shall submit copies of any of their policies and regulations with respect to this chapter to the Department of Justice DNA Laboratory Director, and periodically quarterly shall submit to the director written reports updating the director as to the status of their compliance with this chapter.
(4) On or before April 1 in the year following adoption of the act that added this paragraph, and quarterly thereafter, the Department of Justice DNA Laboratory shall submit a quarterly report to be published electronically on a Department of Justice website and made available for public review. The quarterly report shall state the total number of samples received, the number of samples received from the Department of Corrections, the number of samples fully analyzed for inclusion in the CODIS database, and the number of proﬁles uploaded into the CODIS database for the reporting period. Each quarterly report shall state the total, annual, and quarterly number of qualifying proﬁles in the Department of Justice DNA Laboratory data bank both from persons and case evidence, and the number of hits and investigations aided, as reported to the National DNA Index System. The quarterly report shall also conﬁrm the laboratory’s accreditation status and participation in CODIS and shall include an accounting of the funds collected, expended, and disbursed pursuant to subdivision (k).
(5) On or before April 1 in the year following adoption of the act that added this paragraph, and quarterly thereafter, the Department of Corrections shall submit a quarterly report to be published electronically on a Department of Corrections website and made available for public review. The quarterly report shall state the total number of inmates housed in state correctional facilities, including a breakdown of those housed in state prisons, camps, community correctional facilities, and other facilities such as prisoner mother facilities. Each quarterly report shall also state the total, annual, and quarterly number of inmates who have yet to provide specimens, samples and print impressions pursuant to this chapter and the number of specimens, samples and print impressions that have yet to be forwarded to the Department of Justice DNA Laboratory within 30 days of collection.
(f) (i) (1) When the specimens, samples, and print impressions required by this chapter are collected at a county jail or other county detention facility, including a private community correctional facility, the county sheriff or chief administrative ofﬁcer of the county jail or other detention facility shall be responsible for ensuring all of the following:
(A) The requisite specimens, samples, and print impressions are collected from qualifying offenders persons immediately following arrest, conviction, or adjudication, or during the booking or intake or reception center process at that facility, or reasonably promptly thereafter.
(B) The requisite specimens, samples, and print impressions are collected as soon as administratively practicable after a qualifying offender person reports to the facility for the purpose of providing specimens, samples, and print impressions.
(C) The specimens, samples, and print impressions collected pursuant to this chapter are forwarded immediately to the Department of Justice, and in compliance with department policies.
(2) The specimens, samples, and print impressions required by this chapter shall be collected by a person using a collection kit approved by the Department of Justice and in accordance with the requirements and procedures set forth in subdivision (b) of Section 298.
(3) The counties shall be reimbursed for the costs of obtaining specimens, samples, and print impressions subject to the conditions and limitations set forth by the Department of Justice policies governing reimbursement for collecting specimens, samples, and print impressions pursuant to this chapter.
(j) The trial court may order that a portion of the costs assessed pursuant to Section 1203.1c, 1203.1e, or 1203.1m include a reason-

Case3:09-cv-04779-CRB Document56-1 Filed12/01/09 Page3 of 11
TEXT OF PROPOSED LAWS

Proposition 69 (cont.)

able portion of the cost of obtaining specimens, samples, and print impressions in furtherance of this chapter and the funds collected pursuant to this subdivision shall be deposited in the Department of Justice DNA Testing Fund as created by paragraph (2) of subdivision (b) of Section 290.3.
(g) (k) Any funds appropriated by the Legislature to implement this chapter, including funds or costs ordered pursuant to subdivision (j) to reimburse counties, shall be deposited into the Department of Justice DNA Testing Fund as created by paragraph (2) of subdivision (b) of Section 290.3.
(h) (l) The Department of Justice DNA Laboratory shall be known as the Jan Bashinski DNA Laboratory.
SEC. 2. Section 295.1 of the Penal Code is amended to read:
295.1. (a) The Department of Justice shall perform DNA analysis and other forensic identiﬁcation analysis pursuant to this chapter only for identiﬁcation purposes.
(b) The Department of Justice Bureau of Criminal Identiﬁcation and Information shall perform examinations of palm prints pursuant to this chapter only for identiﬁcation purposes.
(c) The DNA Laboratory of the Department of Justice shall serve as a repository for blood specimens and saliva buccal swab and other biological samples collected, and shall analyze specimens and samples, and store, compile, correlate, compare, maintain, and use DNA and forensic identiﬁcation proﬁles and records related to the following:
(1) Forensic casework and forensic unknowns .
(2) Known and evidentiary specimens and samples from crime scenes or criminal investigations.
(3) Missing or unidentiﬁed persons.
(4) Offenders Persons required to provide specimens, samples, and print impressions under this chapter.
(5) Legally obtained samples.
(5) (6) Anonymous DNA records used for training, research, statistical analysis of populations, quality assurance, or quality control.
(d) The computerized data bank and database of the DNA Laboratory of the Department of Justice shall include ﬁles as necessary to implement this chapter.
(e) Nothing in this section shall be construed as requiring the Department of Justice to provide specimens or samples for quality control or other purposes to those who request specimens or samples.
(f) Submission of samples, specimens, or proﬁles for the state DNA Database and Data Bank Program shall include information as required by the Department of Justice for ensuring search capabilities and compliance with National DNA Index System (NDIS) standards.
SEC. 3. Section 296 of the Penal Code is amended to read:
296. (a) The following persons shall provide buccal swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples required pursuant to this chapter for law enforcement identiﬁcation analysis:
(a) (1) Any person , including any juvenile, who is convicted of or pleads guilty or no contest to any felony offense any of the following crimes , or is found not guilty by reason of insanity of any of the following crimes, felony offense, or any juvenile who is adjudicated under Section 602 of the Welfare and Institutions Code for committing any felony offense. shall, regardless of sentence imposed or disposition rendered, be required to provide two specimens of blood, a saliva sample, right thumbprints, and a full palm print impression of each hand for law enforcement identiﬁcation analysis:
(A) Any offense or attempt to commit any felony offense described in Section 290, or any felony offense that imposes upon a person the duty to register in California as a sex offender under Section 290.
(B) Murder in violation of Section 187, 190, 190.05, or any degree of murder as set forth in Chapter 1 (commencing with Section 187) of Title 8 of Part 1 of the Penal Code, or any attempt to commit murder.
(C) Voluntary manslaughter in violation of Section 192 or an attempt to commit voluntary manslaughter.
(D) Felony spousal abuse in violation of Section 273.5.
(E) Aggravated sexual assault of a child in violation of Section 269.
(F) A felony offense of assault or battery in violation of Section 217.1, 220, 241.1, 243, 243.1, 243.3, 243.4, 243.7, 244, 245, 245.2, 245.3, or 245.5.

(G) Kidnapping in violation of subdivisions (a) to (e), inclusive, of Section 207, or Section 208, 209, 209.5, or 210, or an attempt to commit any of these offenses.
(H) Mayhem in violation of Section 203 or aggravated mayhem in violation of Section 205, or an attempt to commit either of these offenses.
(I) Torture in violation of Section 206 or an attempt to commit torture.
(J) Burglary as deﬁned in subdivision (a) of Section 460 or an attempt to commit this offense.
(K) Robbery as deﬁned in subdivision (a) or (b) of Section 212.5 or an attempt to commit either of these offenses.
(L) Arson in violation of subdivision (a) or (b) of Section 451 or an attempt to commit either of these offenses.
(M) Carjacking in violation of Section 215 or an attempt to commit this offense.
(N) Terrorist activity in violation of Section 11418 or 11419, or a felony violation of Section 11418.5, or an attempt to commit any of these offenses.
(2) Any adult person who is arrested for or charged with any of the following felony offenses:
(A) Any felony offense speciﬁed in Section 290 or attempt to commit any felony offense described in Section 290, or any felony offense that imposes upon a person the duty to register in California as a sex offender under Section 290.
(B) Murder or voluntary manslaughter or any attempt to commit murder or voluntary manslaughter.
(C) Commencing on January 1 of the ﬁfth year following enactment of the act that added this subparagraph, as amended, any adult person arrested or charged with any felony offense.
(2) (3) Any person , including any juvenile, who is required to register under Section 290 or 457.1 because of the commission of, or the attempt to commit, a felony or misdemeanor offense speciﬁed in Section 290 , or any person, including any juvenile, who is housed in a mental health facility or sex offender treatment program after referral to such facility or program by a court after being charged with any felony offense and who is committed to any institution under the jurisdiction of the Department of the Youth Authority where he or she was conﬁned, or is granted probation, or is or was committed to a state hospital as a mentally disordered sex offender under Article 1 (commencing with Section 6300) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code, shall be required to provide two specimens of blood, a saliva sample, right thumbprints, and a full palm print impression of each hand to that institution or, in the case of a person granted probation, to a person and at a location within the county designated for testing .
(4) The term “felony” as used in this subdivision includes an attempt to commit the offense.
(5) Nothing in this chapter shall be construed as prohibiting collection and analysis of specimens, samples, or print impressions as a condition of a plea for a non-qualifying offense.
(b) The provisions of this chapter and its requirements for submission of specimens, samples and print impressions as soon as administratively practicable shall apply to all qualifying persons regardless of sentence imposed, including any sentence of death, life without the possibility of parole, or any life or indeterminate term, or any other disposition rendered in the case of an adult or juvenile tried as an adult, or whether the person is diverted, ﬁned, or referred for evaluation, and regardless of disposition rendered or placement made in the case of juvenile who is found to have committed any felony offense or is adjudicated under Section 602 of the Welfare and Institutions Code.
(b) (c) The provisions of this chapter and its requirements for submission to testing of specimens, samples, and print impressions as soon as administratively practicable to provide specimens, samples, and print impressions by qualiﬁed persons as described in subdivision (a) shall apply regardless of placement or conﬁnement in any mental hospital or other public or private treatment facility, and shall include, but not be limited to, the following persons, including juveniles:
(1) Any person committed to a state hospital or other treatment facility as a mentally disordered sex offender under Article 1 (commencing with Section 6300) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code.
(2) Any person who has a severe mental disorder as set forth within the provisions of Article 4 (commencing with Section 2960) of Chapter 7 of Title 1 of Part 3 of the Penal Code.
Text of Proposed Laws | 137

Case3:09-cv-04779-CRB Document56-1 Filed12/01/09 Page4 of 11
TEXT OF PROPOSED LAWS

Proposition 69 (cont.)

(3) Any person found to be a sexually violent predator pursuant to Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code.
(c) (d) The provisions of this chapter are mandatory and apply whether or not the court advises a person, including any juvenile, that he or she must provide the databank data bank and database specimens, samples, and print impressions as a condition of probation, parole, or any plea of guilty, no contest, or not guilty by reason of insanity, or any admission to any of the offenses described in subdivision (a).
(d) At sentencing or disposition, the prosecuting attorney shall verify in writing that the requisite samples are required by law, and that they have been taken, or are scheduled to be taken before the offender is released on probation, or other scheduled release. However, a failure by the prosecuting attorney or any other law enforcement agency to verify sample requirement or collection shall not relieve a person of the requirement to provide samples.
(e) If at any stage of court proceedings the prosecuting attorney determines that specimens, samples, and print impressions required by this chapter have not already been taken from any person, as deﬁned under subdivision (a) of Section 296, the prosecuting attorney shall notify the court orally on the record, or in writing, and request that the court order collection of the specimens, samples, and print impressions required by law. However, a failure by the prosecuting attorney or any other law enforcement agency to notify the court shall not relieve a person of the obligation to provide specimens, samples, and print impressions pursuant to this chapter.
(e) (f) Prior to ﬁnal disposition or sentencing in the case the court shall inquire and verify that the specimens, samples, and print impressions required by this chapter have been obtained and that this fact is included in the abstract of judgment or dispositional order in the case of a juvenile. The abstract of judgment issued by the court shall indicate that the court has ordered the person to comply with the requirements of this chapter and that the person shall be included in the state’s DNA and Forensic Identiﬁcation Data Base and Data Bank program and be subject to this chapter.
However, failure by the court to verify specimen, sample, and print impression collection or enter these facts in the abstract of judgment or dispositional order in the case of a juvenile shall not invalidate a an arrest, plea, conviction, or disposition, or otherwise relieve a person from the requirements of this chapter.
SEC. 4. Section 296.1 of the Penal Code is amended to read:
296.1. (a) The specimens, samples, and print impressions required by this chapter shall be collected from persons described in subdivision (a) of Section 296 for present and past qualifying offenses of record as follows:
(1) Collection from any adult person following arrest for a felony offense as speciﬁed in subparagraphs (A), (B), and (C) of paragraph (2) of subdivision (a) of Section 296:
(A) Each adult person arrested for a felony offense as speciﬁed in subparagraphs (A), (B), and (C) of paragraph (2) of subdivision (a) of Section 296 shall provide the buccal swab samples and thumb and palm print impressions and any blood or other specimens required pursuant to this chapter immediately following arrest, or during the booking or intake or reception center process or as soon as administratively practicable after arrest, but, in any case, prior to release on bail or pending trial or any physical release from conﬁnement or custody.
(B) If the person subject to this chapter did not have specimens, samples, and print impressions taken immediately following arrest or during booking or intake procedures or is released on bail or pending trial or is not conﬁned or incarcerated at the time of sentencing or otherwise bypasses a prison inmate reception center maintained by the Department of Corrections, the court shall order the person to report within ﬁve calendar days to a county jail facility or to a city, state, local, private, or other designated facility to provide the required specimens, samples, and print impressions in accordance with subdivision (i) of Section 295.
(2) Collection from persons conﬁned or in custody after conviction or adjudication:
(A) Any person, including any juvenile who is imprisoned or conﬁned or placed in a state correctional institution, a county jail, a facility within the jurisdiction of the Department of the Youth Authority, the Board of Corrections, a residential treatment program, or any state, local, city, private, or other facility after a conviction of any felony or

misdemeanor offense, or any adjudication or disposition rendered in the case of a juvenile, whether or not that crime or offense is one set forth in subdivision (a) of Section 296, shall provide buccal swab samples and thumb and palm print impressions and any blood or other specimens required pursuant to this chapter, immediately at intake, or during the prison reception center process, or as soon as administratively practicable at the appropriate custodial or receiving institution or placed in program if:
(i) The person has a record of any past or present conviction or adjudication as a ward of the court in California of a qualifying offense described in subdivision (a) of Section 296 or has a record of any past or present conviction or adjudication in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this state, would have been punishable as an offense described in subdivision (a) of Section 296; and
(ii) The person’s blood specimens, buccal swab samples, and thumb and palm print impressions authorized by this chapter are not in the possession of the Department of Justice DNA Laboratory or have not been recorded as part of the department’s DNA data bank program.
(3) Collection from persons on probation, parole, or other release:
(A) Any person, including any juvenile, who has a record of any past or present conviction or adjudication for an offense set forth in subdivision (a) of Section 296, and who is on probation or parole for any felony or misdemeanor offense, whether or not that crime or offense is one set forth in subdivision (a) of Section 296, shall provide buccal swab samples and thumb and palm print impressions and any blood specimens required pursuant to this chapter, if:
(i) The person has a record of any past or present conviction or adjudication as a ward of the court in California of a qualifying offense described in subdivision (a) of Section 296 or has a record of any past or present conviction or adjudication in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this state, would have been punishable as an offense described in subdivision (a) of Section 296; and
(ii) The person’s blood specimens, buccal swab samples, and thumb and palm print impressions authorized by this chapter are not in the possession of the Department of Justice DNA Laboratory or have not been recorded as part of the department’s DNA data bank program.
(B) The person shall have any required specimens, samples, and print impressions collected within ﬁve calendar days of being notiﬁed by the court, or a law enforcement agency or other agency authorized by the Department of Justice. The specimens, samples, and print impressions shall be collected in accordance with subdivision (i) of Section 295 at a county jail facility or a city, state, local, private, or other facility designated for this collection.
(4) Collection from parole violators and others returned to custody:
(A) If a person, including any juvenile, who has been released on parole, furlough, or other release for any offense or crime, whether or not set forth in subdivision (a) of Section 296, is returned to a state correctional or other institution for a violation of a condition of his or her parole, furlough, or other release, or for any other reason, that person shall provide buccal swab samples and thumb and palm print impressions and any blood or other specimens required pursuant to this chapter, at a state correctional or other receiving institution, if:
(i) The person has a record of any past or present conviction or adjudication as a ward of the court in California of a qualifying offense described in subdivision (a) of Section 296 or has a record of any past or present conviction or adjudication in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this state, would have been punishable as an offense described in subdivision (a) of Section 296; and
(ii) The person’s blood specimens, buccal swab samples, and thumb and palm print impressions authorized by this chapter are not in the possession of the Department of Justice DNA Laboratory or have not been recorded as part of the department’s DNA data bank program.
(5) Collection from persons accepted into California from other jurisdictions:
(A) When an offender from another state is accepted into this state under any of the interstate compacts described in Article 3 (commencing with Section 11175) or Article 4 (commencing with Section 11189) of Chapter 2 of Title 1 of Part 4 of this code, or Chapter 4 (commencing with Section 1300) of Part 1 of Division 2 of the Welfare and

138 | Text of Proposed Laws

Case3:09-cv-04779-CRB Document56-1 Filed12/01/09 Page5 of 11
TEXT OF PROPOSED LAWS

Proposition 69 (cont.)

Institutions Code, or under any other reciprocal agreement with any county, state, or federal agency, or any other provision of law, whether or not the offender is conﬁned or released, the acceptance is conditional on the offender providing blood specimens, buccal swab samples, and palm and thumb print impressions pursuant to this chapter, if the offender has a record of any past or present conviction or adjudication in California of a qualifying offense described in subdivision (a) of Section 296 or has a record of any past or present conviction or adjudication or had a disposition rendered in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this state, would have been punishable as an offense described in subdivision (a) of Section 296.
(B) If the person is not conﬁned, the specimens, samples, and print impressions required by this chapter must be provided within ﬁve calendar days after the person reports to the supervising agent or within ﬁve calendar days of notice to the person, whichever occurs ﬁrst. The person shall report to a county jail facility in the county where he or she resides or temporarily is located to have the specimens, samples, and print impressions collected pursuant to this chapter. The specimens, samples, and print impressions shall be collected in accordance with subdivision (i) of Section 295.
(C) If the person is conﬁned, he or she shall provide the blood specimens, buccal swab samples, and thumb and palm print impressions required by this chapter as soon as practicable after his or her receipt in a state, county, city, local, private, or other designated facility.
(6) Collection from persons in federal institutions:
(A) Subject to the approval of the Director of the FBI, persons conﬁned or incarcerated in a federal prison or federal institution who have a record of any past or present conviction or juvenile adjudication for a qualifying offense described in subdivision (a) of Section 296, or of a similar crime under the laws of the United States or any other state that would constitute an offense described in subdivision (a) of Section 296, are subject to this chapter and shall provide blood specimens, buccal swab samples, and thumb and palm print impressions pursuant to this chapter if any of the following apply:
(i) The person committed a qualifying offense in California.
(ii) The person was resident of California at the time of the qualifying offense.
(iii) The person has any record of a California conviction for an offense described in subdivision (a) of Section 296, regardless of when the crime was committed.
(iv) The person will be released in California.
(B) The Department of Justice DNA Laboratory shall, upon the request of the United States Department of Justice, forward portions of the specimens or samples, taken pursuant to this chapter, to the United States Department of Justice DNA data bank laboratory. The specimens and samples required by this chapter shall be taken in accordance with the procedures set forth in subdivision (i) of Section 295. The Department of Justice DNA Laboratory is authorized to analyze and upload specimens and samples collected pursuant to this section upon approval of the Director of the FBI.
(b) Retroactive application of paragraphs (1), (2), (3), (4), (5), and (6) of subdivision (a).
(1) Subdivision (a) and all of its paragraphs shall have retroactive application. Collection shall occur pursuant to paragraphs (1), (2), (3), (4), (5), and (6) of subdivision (a) regardless of when the crime charged or committed became a qualifying offense pursuant to this chapter, and regardless of when the person was convicted of the qualifying offense described in subdivision (a) of Section 296 or a similar crime under the laws of the United States or any other state, or pursuant to the United States Code of Military Justice, 10 U.S.C., Sections 801 and following, or when disposition was rendered in the case of a juvenile who is adjudged a ward of the court for commission of a qualifying offense described in subdivision (a) of Section 296 or a similar crime under the laws of the United States or any other state.
(a) Any person, including any juvenile, who comes within the provisions of this chapter for an offense set forth in subdivision (a) of Section 296, and who is granted probation, or serves his or her entire term of conﬁnement in a county jail, or is not sentenced to a term of conﬁnement in a state prison facility, or otherwise bypasses a prison inmate reception center maintained by the Department of Corrections, shall, as soon as administratively practicable, but in any case, prior to physical release from custody, be required to provide two specimens of blood, a saliva sample, and thumb and palm print impressions as set

forth in subdivision (a) of Section 296, at a county jail facility or other state, local, or private facility designated for the collection of these specimens, samples, and print impressions, in accordance with subdivision (f) of Section 295.
If the person subject to this chapter is not incarcerated at the time of sentencing, the court shall order the person to report within ﬁve calendar days to a county jail facility or other state, local, or private facility designated for the collection of specimens, samples, and print impressions to provide these specimens, samples, and print impressions in accordance with subdivision (f) of Section 295.
(b) If a person who comes within the provisions of this chapter for an offense set forth in subdivision (a) of Section 296 is sentenced to serve a term of imprisonment in a state correctional institution, the Director of Corrections shall collect the blood specimens, saliva samples, and thumb and palm print impressions required by this chapter from the person during the intake process at the reception center designated by the director, or as soon as administratively practicable thereafter at a receiving penal institution.
(c) Any person, including, but not limited to, any juvenile and any person convicted and sentenced to death, life without the possibility of parole, or any life or indeterminate term, who is imprisoned or conﬁned in a state correctional institution, a county jail, a facility within the jurisdiction of the Department of the Youth Authority, or any other state, local, or private facility after a conviction of any crime, or disposition rendered in the case of a juvenile, whether or not that crime or offense is one set forth in subdivision (a) of Section 296, shall provide two specimens of blood, a saliva sample, and thumb and palm print impressions pursuant to this chapter, as soon as administratively practicable once it has been determined that both of the following apply:
(1) The person has been convicted or adjudicated a ward of the court in California of a qualifying offense described in subdivision (a) of Section 296 or has been convicted or had a disposition rendered in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this state, would have been punishable as an offense described in subdivision (a) of Section 296.
(2) The person’s blood specimens, saliva samples, and thumb and palm print impressions authorized by this chapter are not in the possession of the Department of Justice DNA Laboratory as part of the DNA data bank program.
This subdivision applies regardless of when the person was convicted of the qualifying offense described in subdivision (a) of Section 296 or a similar crime under the laws of the United States or any other state, or when disposition was rendered in the case of a juvenile who is adjudged a ward of the court for commission of a qualifying offense described in subdivision (a) of Section 296 or a similar crime under the laws of the United States or any other state.
(d) Any person, including any juvenile, who comes within the provisions of this chapter for an offense set forth in subdivision (a) of Section 296, and who is on probation or parole, shall be required to provide two specimens of blood, a saliva sample, and thumb and palm print impressions as required pursuant to this chapter, if it is determined that the person has not previously provided these specimens, samples, and print impressions to law enforcement, or if it is determined that these specimens, samples, and print impressions are not in the possession of the Department of Justice. The person shall have the specimens, samples, and print impressions collected within ﬁve calendar days of being notiﬁed by a law enforcement agency or other agency authorized by the Department of Justice. The specimens, samples, and print impressions shall be collected in accordance with subdivision (f) of Section 295 at a county jail facility or other state, local, or private facility designated for this collection.
This subdivision shall apply regardless of when the crime committed became a qualifying offense pursuant to this chapter.
(e) When an offender from another state is accepted into this state under any of the interstate compacts described in Article 3 (commencing with Section 11175) or Article 4 (commencing with Section 1189) of Chapter 2 of Title 1 of Part 4 of this code, or Chapter 4 (commencing with Section 1300) of Part 1 of Division 2 of the Welfare and Institutions Code, or under any other reciprocal agreement with any county, state or federal agency, or any other provision of law, whether or not the offender is confined or released, the acceptance is conditional on the offender providing blood specimens, saliva samples, and palm and thumb print impressions pursuant to this chapter, if the offender was convicted of an offense which would qualify as a crime described in subdivision (a) of Section 296, or if the person was con-

Text of Proposed Laws | 139

Case3:09-cv-04779-CRB Document56-1 Filed12/01/09 Page6 of 11
TEXT OF PROPOSED LAWS

Proposition 69 (cont.)

victed of a similar crime under the laws of the United States or any other state.
If the person is not conﬁned, the specimens, samples, and print impressions required by this chapter must be provided within ﬁve calendar days after the offender reports to the supervising agent or within ﬁve calendar days of notice to the offender, whichever occurs ﬁrst. The person shall report to a county jail facility in the county where he or she resides or temporarily is located to have the specimens, samples, and print impressions collected pursuant to this chapter. The specimens, samples, and print impressions shall be collected in accordance with subdivision (f) of Section 295.
If the person is conﬁned, he or she shall provide the blood specimens, saliva samples, and thumb and palm print impressions required by this chapter as soon as practicable after his or her receipt in a state, county, local, private, or other facility.
(f) Subject to the approval of the Director of the Federal Bureau of Investigation, persons conﬁned or incarcerated in a federal prison or federal institution located in California who are convicted of a qualifying offense described in subdivision (a) of Section 296 or of a similar crime under the laws of the United States or any other state that would constitute an offense described in subdivision (a) of Section 296, are subject to this chapter and shall provide blood specimens, saliva samples, and thumb and palm print impressions pursuant to this chapter if any of the following apply:
(1) The person committed a qualifying offense in California.
(2) The person was a resident of California at the time of the qualifying offense.
(3) The person has any record of a California conviction for a sex or violent offense described in subdivision (a) of Section 296, regardless of when the crime was committed.
(4) The person will be released in California.
Once a federal data bank is established and accessible to the Department of Justice, the Department of Justice DNA Laboratory shall, upon the request of the United States Department of Justice, forward the samples taken pursuant to this chapter, with the exception of those taken from suspects pursuant to subdivision (b) of Section 297, to the United States Department of Justice DNA data bank laboratory. The samples and impressions required by this chapter shall be taken in accordance with the procedures set forth in subdivision (f) of Section 295.
(g) If a person who is released on parole, furlough, or other release, is returned to a state correctional institution for a violation of a condition of his or her parole, furlough, or other release, and is serving or at any time has served a term of imprisonment for committing an offense described in subdivision (a) of Section 296, and he or she did not provide specimens, samples, and print impressions pursuant to the state’s DNA data bank program, the person shall submit to collection of blood specimens, saliva samples, and thumb and palm print impressions at a state correctional institution.
This subdivision applies regardless of the crime or Penal Code violation for which a person is returned to a state correctional institution and regardless of the date the qualifying offense was committed.
SEC. 5. Section 297 of the Penal Code is amended to read:
297. (a) (1) The laboratories of the Department of Justice that are accredited by the American Society of Crime Laboratory Directors Laboratory Accreditation Board (ASCLD/LAB) or any certifying body approved by the ASCLD/LAB, and any law enforcement crime laboratory designated by the Department of Justice that is accredited by the ASCLD/LAB or any certifying body approved by the ASCLD/LAB, are authorized to analyze crime scene samples and other samples of known and unknown origin and to compare and check the forensic identiﬁcation proﬁles, including DNA proﬁles, of these samples against available DNA and forensic identiﬁcation data banks and data-bases databases in order to establish identity and origin of samples for identiﬁcation purposes.
(2) Laboratories, including law enforcement laboratories, that are accredited by ASCLD/LAB or any certifying body approved by the ASCLD/LAB that contract with the Department of Justice pursuant to Section 298.3 are authorized to perform anonymous analysis of specimens and samples for forensic identiﬁcation as provided in this chapter.

(b) (1) Except as provided in paragraph (2), a biological sample taken in the course of a criminal investigation, either voluntarily or by court order, from a person who has not been convicted, may only be compared to samples taken from that speciﬁc criminal investigation and may not be compared to any other samples from any other criminal investigation without a court order.
(2) A biological sample obtained from a suspect, as deﬁned in paragraph (3), in a criminal investigation may be analyzed for forensic identiﬁcation proﬁles, including DNA proﬁles so that the proﬁle can be placed in a suspect data base ﬁle and searched against the DNA data bank proﬁles of case evidence. For the purposes of this subdivision, the DNA data bank comparison of suspect and evidence proﬁles may be made, by the DNA Laboratory of the Department of Justice, or any crime laboratory designated by the Department of Justice that is accredited by the ASCLD/LAB or any certifying body approved by the ASCLD/LAB.
(3) For the purposes of this subdivision, “a suspect” means a person against whom an information or indictment has been ﬁled for one of the crimes listed in subdivision (a) of Section 296. For the purposes of this subdivision, a person shall remain a suspect for two years from the date of the ﬁling of the information or indictment or until the DNA laboratory receives notiﬁcation that the person has been acquitted of the charges or the charges were dismissed.
(b) (1) A biological sample obtained from a suspect in a criminal investigation for the commission of any crime may be analyzed for forensic identiﬁcation proﬁles, including DNA proﬁles, by the DNA Laboratory of the Department of Justice or any law enforcement crime laboratory accredited by the ASCLD/LAB or any certifying body approved by the ASCLD/LAB and then compared by the Department of Justice in and between as many cases and investigations as necessary, and searched against the forensic identiﬁcation proﬁles, including DNA proﬁles, stored in the ﬁles of the Department of Justice DNA data bank or database or any available data banks or databases as part of the Department of Justice DNA Database and Data Bank Program.
(2) The law enforcement investigating agency submitting a specimen, sample, or print impression to the DNA Laboratory of the Department of Justice or law enforcement crime laboratory pursuant to this section shall inform the Department of Justice DNA Laboratory within two years whether the person remains a suspect in a criminal investigation. Upon written notiﬁcation from a law enforcement agency that a person is no longer a suspect in a criminal investigation, the Department of Justice DNA Laboratory shall remove the suspect sample from its data bank ﬁles. However, any identiﬁcation, warrant, arrest, or prosecution based upon a data bank or database match shall not be invalidated or dismissed due to a failure to purge or delay in purging records.
(c) All laboratories, including the Department of Justice DNA laboratories, contributing DNA proﬁles for inclusion in California’s DNA Data Bank shall be accredited by the ASCLD/LAB or any certifying body approved by the ASCLD/LAB. Additionally, each laboratory shall submit to the Department of Justice for review the annual report required by the ASCLD/LAB or any certifying body approved by the ASCLD/LAB which documents the laboratory’s adherence to ASCLD/LAB standards or the standards of any certifying body approved by the ASCLD/LAB. The requirements of this subdivision apply to California laboratories only and do not preclude DNA proﬁles developed in California from being searched in the National DNA Data Base Database or Data Bank (CODIS).
(d) Nothing in this section precludes local law enforcement DNA laboratories meeting Technical Working Group on DNA Analysis Methods (TWGDAM) or Scientiﬁc Working Group on DNA Analysis Methods (SWGDAM) guidelines or standards promulgated by the DNA Advisory Board as established pursuant to Section 14131 of Title 42 of the United States Code, from maintaining local forensic databases and data banks or performing forensic identiﬁcation analyses, including DNA proﬁling, independent of independently from the Department of Justice DNA and Forensic Identiﬁcation Data Base and Data Bank program Program .
(e) The limitation on the types of offenses set forth in subdivision (a) of Section 296 as subject to the collection and testing procedures of this chapter is for the purpose of facilitating the administration of this chapter by the Department of Justice, and shall not be considered cause for dismissing an investigation or prosecution or reversing a verdict or disposition .

140 | Text of Proposed Laws

Case3:09-cv-04779-CRB Document56-1 Filed12/01/09 Page7 of 11
TEXT OF PROPOSED LAWS

Proposition 69 (cont.)

(f) The detention, arrest, wardship, adjudication, or conviction of a person based upon a data bank match or data base database information is not invalidated if it is later determined that the specimens, samples, or print impressions were obtained or placed or retained in a data bank or data base database by mistake.
SEC. 6. Section 298 of the Penal Code is amended to read:
298. (a) The Director of Corrections, or the Chief Administrative Ofﬁcer of the detention facility, jail, or other facility at which the blood specimens, saliva buccal swab samples, and thumb and palm print impressions were collected shall cause these specimens, samples, and print impressions to be forwarded promptly to the Department of Justice. The specimens, samples, and print impressions shall be collected by a person using a Department of Justice approved collection kit and in accordance with the requirements and procedures set forth in subdivision (b).
(b) (1) The Department of Justice shall provide all blood specimen vials, buccal swab collectors, mailing tubes, labels, and instructions for the collection of the blood specimens, saliva buccal swab samples, and thumbprints. The specimens, samples, and thumbprints shall thereafter be forwarded to the DNA Laboratory of the Department of Justice for analysis of DNA and other forensic identiﬁcation markers.
Additionally, the Department of Justice shall provide all full palm print cards, mailing envelopes, and instructions for the collection of full palm prints. The full palm prints, on a form prescribed by the Department of Justice, shall thereafter be forwarded to the Department of Justice for maintenance in a ﬁle for identiﬁcation purposes.
(2) The withdrawal of blood shall be performed in a medically approved manner. Only health care providers trained and certiﬁed to draw blood may withdraw the blood specimens for purposes of this section.
(3) Buccal swab samples may be procured by law enforcement or corrections personnel or other individuals trained to assist in buccal swab collection.
(3) (4) Right thumbprints and a full palm print impression of each hand shall be taken on forms prescribed by the Department of Justice. The palm print forms shall be forwarded to and maintained by the Bureau of Criminal Identification and Information of the Department of Justice. Right thumbprints also shall be taken at the time of the withdrawal collection of blood samples and specimens and shall be placed on the sample and specimen containers and forms as directed by the Department of Justice and the blood vial label . The blood vial samples, specimens, and forms and thumbprint forms shall be forwarded to and maintained by the DNA Laboratory of the Department of Justice.
(5) The law enforcement or custodial agency collecting specimens, samples, or print impressions is responsible for conﬁrming that the person qualiﬁes for entry into the Department of Justice DNA Database and Data Bank Program prior to collecting the specimens, samples, or print impressions pursuant to this chapter.
(4) (6) The DNA Laboratory of the Department of Justice is responsible for establishing procedures for entering data bank and database database information. The DNA laboratory procedures shall conﬁrm that the offender qualiﬁes for entry into the DNA data bank prior to actual entry of the information in to the DNA data bank.
(c) (1) Persons authorized to draw blood or obtain samples or print impressions under this chapter for the data bank or data-base database shall not be civilly or criminally liable either for withdrawing blood when done in accordance with medically accepted procedures, or for obtaining sa1iva buccal swab samples by scraping inner cheek cells of the mouth, or thumb or palm print impressions when performed in accordance with standard professional practices.
(2) There is no civil or criminal cause of action against any law enforcement agency or the Department of Justice, or any employee thereof, for a mistake in conﬁrming a person’s or sample’s qualifying status for inclusion within the database or data bank or in placing an entry in a data bank or a data-base database .
(3) The failure of the Department of Justice or local law enforcement to comply with Article 4 or any other provision of this chapter shall not invalidate an arrest, plea, conviction, or disposition.
SEC. 7. Section 298.2 is added to the Penal Code, to read:
298.2. (a) Any person who is required to submit a specimen sample or print impression pursuant to this chapter who engages or attempts to engage in any of the following acts is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years:

(1) Knowingly facilitates the collection of a wrongfully attributed blood specimen, buccal swab sample, or thumb or palm print impression, with the intent that a government agent or employee be deceived as to the origin of a DNA proﬁle or as to any identiﬁcation information associated with a specimen, sample, or print impression required for submission pursuant to this chapter.
(2) Knowingly tampers with any specimen, sample, print, or the collection container for any specimen or sample, with the intent that any government agent or employee be deceived as to the identity of the person to whom the specimen, sample, or print relates.
SEC. 8. Section 298.3 is added to the Penal Code, to read:
298.3. (a) To ensure expeditious and economical processing of offender specimens and samples for inclusion in the FBI’s CODIS System and the state’s DNA Database and Data Bank Program, the Department of Justice DNA Laboratory is authorized to contract with other laboratories, whether public or private, including law enforcement laboratories, that have the capability of fully analyzing offender specimens or samples within 60 days of receipt, for the anonymous analysis of specimens and samples for forensic identiﬁcation testing as provided in this chapter and in accordance with the quality assurance requirement established by CODIS and ASCLD/LAB.
(b) Contingent upon the availability of sufﬁcient funds in the state’s DNA Identiﬁcation Fund established pursuant to Section 76104.6, the Department of Justice DNA Laboratory shall immediately contract with other laboratories, whether public or private, including law enforcement laboratories, for the anonymous analysis of offender reference specimens or samples and any arrestee reference specimens or samples collected pursuant to subdivision (a) of Section 296 for forensic identiﬁcation testing as provided in subdivision (a) of this section and in accordance with the quality assurance requirements established by CODIS and ASCLD/LAB for any specimens or samples that are not fully analyzed and uploaded into the CODIS database within six months of the receipt of the reference specimens or samples by the Department of Justice DNA Laboratory.
SEC. 9. Section 299 of the Penal Code is amended to read:
299. (a) A person whose DNA proﬁle has been included in the data bank pursuant to this chapter shall have his or her information and materials expunged from the data bank when the underlying conviction or disposition serving as the basis for including the DNA proﬁle has been reversed and the case dismissed, the defendant has been found factually innocent of the underlying offense pursuant to Section 851.8, the defendent has been found not guilty, or the defendant has been acquitted of the underlying offense. The court issuing the reversal, dismissal, or acquittal shall order the expungement and shall send a copy of that order to the Department of Justice DNA Laboratory Director. Upon receipt of the court order, the Department of Justice shall expunge all identiﬁable information in the data bank and any criminal identiﬁcation records pertaining to the person.
(a) A person whose DNA profile has been included in the data bank pursuant to this chapter shall have his or her DNA specimen and sample destroyed and searchable database profile expunged from the data bank program pursuant to the procedures set forth in subdivision (b) if the person has no past or present offense or pending charge which qualifies that person for inclusion within the state’s DNA and Forensic Identification Database and Data Bank Program and there otherwise is no legal basis for retaining the specimen or sample or searchable profile.
(b) (1) A person whose DNA proﬁle has been included in a data bank pursuant to this chapter Pursuant to subdivision (a), a person who has no past or present qualifying offense, and for whom there otherwise is no legal basis for retaining the specimen or sample or searchable proﬁle, may make a written request to expunge information and materials from the data bank. have his or her specimen and sample destroyed and searchable database proﬁle expunged from the data bank program if:
(1) Following arrest, no accusatory pleading has been ﬁled within the applicable period allowed by law charging the person with a qualifying offense as set forth in subdivision (a) of Section 296 or if the charges which served as the basis for including the DNA proﬁle in the state’s DNA Database and Data Bank Identiﬁcation Program have been dismissed prior to adjudication by a trier of fact;
(2) The underlying conviction or disposition serving as the basis for including the DNA proﬁle has been reversed and the case dismissed;
(3) The person has been found factually innocent of the underlying offense pursuant to Section 851.8, or Section 781.5 of the Welfare and Institutions Code; or
Text of Proposed Laws | 141

Case3:09-cv-04779-CRB Document56-1 Filed12/01/09 Page8 of 11
TEXT OF PROPOSED LAWS

Proposition 69 (cont.)

(4) The defendant has been found not guilty or the defendant has been acquitted of the underlying offense.
(c) (1) The person requesting the data bank entry to be expunged must send a copy of his or her request to the trial court of the county where the arrest occurred, or that entered the conviction or rendered disposition in the case, to the DNA Laboratory of the Department of Justice, and to the prosecuting attorney of the county in which he or she was arrested or, convicted, or adjudicated , with proof of service on all parties. The court has the discretion to grant or deny the request for expungement. The denial of a request for expungement is a nonappealable order and shall not be reviewed by petition for writ.
(2) Except as provided below, the Department of Justice shall destroy a specimen and sample and expunge the searchable DNA database proﬁle all identiﬁable information in the data bank and any criminal identiﬁcation records pertaining to the person who has no present or past qualifying offense of record upon receipt of a court order that veriﬁes the applicant has made the necessary showing at a noticed hearing, and that includes all of the following:
(A) The written request for expungement pursuant to this section.
(B) A certiﬁed copy of the court order reversing and dismissing the conviction or case , or a letter from the district attorney certifying that no accusatory pleading has been ﬁled or the charges which served as the basis for collecting a DNA specimen and sample have been dismissed prior to adjudication by a trier of fact, the defendant has been found factually innocent, the defendant has been found not guilty, the defendant has been acquitted of the underlying offense, or the underlying conviction has been reversed and the case dismissed.
(C) Proof of written notice to the prosecuting attorney and the Department of Justice that expungement has been requested.
(D) A court order verifying that no retrial or appeal of the case is pending, that it has been at least 180 days since the defendant or minor has notiﬁed the prosecuting attorney and the Department of Justice of the expungement request, and that the court has not received an objection from the Department of Justice or the prosecuting attorney.
(c) (d) Upon order from the court, the Department of Justice shall destroy any specimen or sample collected from the person and any criminal identiﬁcation records searchable DNA database proﬁle pertaining to the person, unless the department determines that the person is subject to the provisions of this chapter because of a past qualifying offense of record or is or has otherwise become obligated to submit a blood specimen or buccal swab sample as a result of a separate arrest, conviction, juvenile adjudication, or ﬁnding of guilty or not guilty by reason of insanity for an offense described in subdivision (a) of Section 296, or as a condition of a plea.
The Department of Justice is not required to destroy an autoradiograph analytical data or other item items obtained from a blood specimen or saliva, or buccal swab sample, if evidence relating to another person subject to the provisions of this chapter would thereby be destroyed or otherwise compromised .
Any identiﬁcation, warrant, probable cause to arrest, or arrest based upon a data bank or database match is not invalidated due to a failure to expunge or a delay in expunging records.
(d) The Department of Justice DNA Laboratory shall periodically review its ﬁles to determine whether its ﬁles contain DNA reference sample profiles from suspects as defined in subdivision (b) of Section 297 who are no longer eligible for inclusion in the data bank. The DNA proﬁles and samples stored in the suspect data base from a person who is a suspect in a criminal investigation shall be purged within two years of the date of the ﬁling of the information or indictment or when the DNA laboratory receives notice that the suspect was acquitted or the charges against the suspect were dismissed, which ever occurs earlier. The notice shall include a certiﬁed copy of the court order dismissing the information or indictment, a certiﬁed copy of the defendant’s ﬁngerprints and the defendant’s CII number.
(e) Notwithstanding any other provision of law, the Department of Justice DNA Laboratory is not required to expunge DNA proﬁle or forensic identiﬁcation information or destroy or return specimens, samples, or print impressions taken pursuant to this section if the duty to register under Section 290 or 457.1 is terminated.
(f) Notwithstanding any other provision of law, including Sections 17, 1203.4, and 1203.4a, a judge is not authorized to relieve a person of the separate administrative duty to provide specimens, samples, or print impressions required by this chapter if a person has been found guilty or was adjudicated a ward of the court by a trier of fact of

a qualifying offense as deﬁned in subdivision (a) of Section 296, or was found not guilty by reason of insanity or pleads no contest to a qualifying offense as deﬁned in subdivision (a) of Section 296.
SEC. 10. Section 299.5 of the Penal Code is amended to read:
299.5. (a) All DNA and forensic identiﬁcation proﬁles and other identiﬁcation information retained by the Department of Justice pursuant to this chapter are exempt from any law requiring disclosure of information to the public and shall be conﬁdential except as otherwise provided in this chapter.
(b) All evidence and forensic samples containing biological material retained by the Department of Justice DNA Laboratory or other state law enforcement agency are exempt from any law requiring disclosure of information to the public or the return of biological specimens , samples, or print impressions .
(c) Non-DNA forensic identiﬁcation information may be ﬁled with the offender’s ﬁle maintained by the Sex Registration Unit of the Department of Justice or in other computerized data bank or database systems maintained by the Department of Justice.
(d) The DNA and other forensic identiﬁcation information retained by the Department of Justice pursuant to this chapter shall not be included in the state summary criminal history information. However, nothing in this chapter precludes law enforcement personnel from entering into a person’s criminal history information or offender ﬁle maintained by the Department of Justice, the fact that the specimens, samples, and print impressions required by this chapter have or have not been collected from that person.
(e) The fact that the blood specimens, saliva or buccal swab samples, and print impressions required by this chapter have been received by the DNA Laboratory of the Department of Justice shall be included in the state summary criminal history information as soon as administratively practicable .
The full palm prints of each hand shall be ﬁled and maintained by the Automated Latent Print Section of the Bureau of Criminal Identiﬁcation and Information of the Department of Justice, and may be included in the state summary criminal history information.
(f) DNA samples and DNA profiles and other forensic identification information shall be released only to law enforcement agencies, including, but not limited to, parole officers of the Department of Corrections, hearing officers of the parole authority, probation officers, the Attorney General’s office, district attorneys’ offices, and prosecuting city attorneys’ offices, or to a court or administrative tribunal, except as specified in unless otherwise specifically authorized by this chapter. Dissemination of this information DNA specimens, samples, and DNA profiles and other forensic identification information to law enforcement agencies and district attorneys’ offices outside this state shall be performed in conformity with the provisions of this chapter.
(g) A defendant’s DNA and other forensic identiﬁcation information developed pursuant to this chapter shall be available to his or her defense counsel upon court order made pursuant to Chapter 10 (commencing with Section 1054) of Title 6 of Part 2.
(h) Except as provided in subdivision (g) and in order to protect the conﬁdentiality and privacy of database and data bank information, the Department of Justice and local public DNA laboratories shall not otherwise be compelled in a criminal or civil proceeding to provide any DNA proﬁle or forensic identiﬁcation database or data bank information or its computer database program software or structures to any person or party seeking such records or information whether by subpoena or discovery, or other procedural device or inquiry.
(g) (i) (1) (A) Any person who knowingly uses an offender specimen, sample, or DNA proﬁle collected pursuant to this chapter for other than criminal identiﬁcation or exclusion purposes, or for other than the identiﬁcation of missing persons, or who knowingly discloses DNA or other forensic identiﬁcation information developed pursuant to this section to an unauthorized individual or agency, for other than criminal identiﬁcation or exclusion purposes, or for the identiﬁcation of missing persons, in violation of this chapter, shall be punished by imprisonment in a county jail not exceeding one year or by imprisonment in the state prison.
(B) Any person who, for the purpose of ﬁnancial gain, knowingly uses an offender a specimen, sample, or DNA proﬁle collected pursuant to this chapter for other than criminal identiﬁcation or exclusion purposes or for the identiﬁcation of missing persons or who, for the purpose of ﬁnancial gain, knowingly discloses DNA or other forensic iden-

142 | Text of Proposed Laws

Case3:09-cv-04779-CRB Document56-1 Filed12/01/09 Page9 of 11
TEXT OF PROPOSED LAWS

Proposition 69 (cont.)

tiﬁcation information developed pursuant to this section to an unauthorized individual or agency, for other than criminal identiﬁcation or exclusion purposes or for other than the identiﬁcation of missing persons , in violation of this chapter, shall, in addition to the penalty provided in subparagraph (A), be punished by a criminal ﬁne in an amount three times that of any ﬁnancial gain received or ten thousand dollars ($10,000), whichever is greater.
(2) (A) If any employee of the Department of Justice knowingly uses an offender a specimen, sample, or DNA proﬁle collected pursuant to this chapter for other than criminal identiﬁcation or exclusion purposes, or knowingly discloses DNA or other forensic identiﬁcation information developed pursuant to this section to an unauthorized individual or agency, for other than criminal identiﬁcation or exclusion purposes or for other than the identiﬁcation of missing persons , in violation of this chapter, the department shall be liable in civil damages to the donor of the DNA identiﬁcation information in the amount of ﬁve thousand dollars ($5,000) for each violation, plus attorney’s fees and costs. In the event of multiple disclosures, the total damages available to the donor of the DNA is limited to ﬁfty thousand dollars ($50,000) plus attorney’s fees and costs.
(B) (i) Notwithstanding any other law, this shall be the sole and exclusive remedy against the Department of Justice and its employees available to the donor of the DNA.
(ii) The Department of Justice employee disclosing DNA identiﬁcation information in violation of this chapter shall be absolutely immune from civil liability under this or any other law.
(3) It is not a violation of this section for a law enforcement agency in its discretion to publicly disclose the fact of a DNA profile match , or the name of the person identified by the DNA match when this match is the basis of law enforcement’s investigation, arrest, or prosecution of a particular person, or the identification of a missing or abducted person .
(h) (j) It is not a violation of this chapter to furnish DNA or other forensic identification information of the defendant to his or her defense counsel for criminal defense purposes in compliance with discovery.
(i) (k) It is not a violation of this section for law enforcement to release DNA and other forensic identification information developed pursuant to this chapter to a jury or grand jury, or in a document filed with a court or administrative agency, or as part of a judicial or administrative proceeding, or for this information to become part of the public transcript or record of proceedings when, in the discretion of law enforcement, disclosure is necessary because the DNA information pertains to the basis for law enforcement’s identification, arrest, investigation, prosecution, or exclusion of a particular person related to the case .
(j) (l) It is not a violation of this section to include information obtained from a ﬁle in a transcript or record of a judicial proceeding, or in any other public record when the inclusion of the information in the public record is authorized by a court, statute, or decisional law.
(k) (m) It is not a violation of this section for the DNA Laboratory of the Department of Justice , or an organization retained as an agent of the Department of Justice, or a local public laboratory to use anonymous DNA records or criminal history information obtained pursuant to this chapter for training, research, statistical analysis of populations, or quality assurance or quality control.
(l) It is not a violation of this section to disseminate statistical or research information obtained from the offender’s ﬁle, the computerized databank system, any of the DNA laboratory’s databases, or the full palm print ﬁle, provided that the subject of the ﬁle is not identiﬁed and cannot be identiﬁed from the information disclosed. All requests for statistical or research information obtained from the DNA databank shall be cataloged by the Department of Justice. Commencing January 1, 2000, the department shall submit an annual letter to the Legislature including, with respect to each request, the requester’s name or agency, the purpose of the request, whether the request is related to a criminal investigation or court proceeding, whether the request was granted or denied, any reasons for denial, costs incurred or estimates of the cost of the request, and the date of the request.
(m) (n) The Department of Justice shall make public the methodology and procedures to be used in its DNA program prior to the commencement of DNA testing in its laboratories. The Department of Justice shall review and consider on an ongoing basis the ﬁndings and results of any peer review and validation studies submitted to the department by members of the relevant scientiﬁc community experienced in

the use of DNA technology. This material shall be available to criminal defense counsel upon court order made pursuant to Chapter 10 (commencing with Section 1054) of Title 6 of Part 2.
(n) (o) In order to maintain the computer system security of the Department of Justice DNA and forensic identiﬁcation database and databank program Forensic Identiﬁcation Database and Data Bank Program , the computer software and database structures used by the DNA Laboratory of the Department of Justice to implement this chapter are conﬁdential.
(o) Nothing in this section shall preclude a court from ordering discovery pursuant to Chapter 10 (commencing with Section 1054) of Title 6 of Part 2.
SEC. 11. Section 299.6 of the Penal Code is amended to read:
299.6. (a) Nothing in this chapter shall prohibit the Department of Justice, in its sole discretion, from the sharing or disseminating of population data base database or data bank information , DNA proﬁle or forensic identiﬁcation database or data bank information, analytical data and results generated for forensic identiﬁcation database and data bank purposes, or protocol and forensic DNA analysis methods and quality assurance or quality control procedures with any of the following:
(1) Federal, state, or local law enforcement agencies.
(2) Crime laboratories, whether public or private, that serve federal, state, and local law enforcement agencies that have been approved by the Department of Justice.
(3) The attorney general’s ofﬁce of any state.
(4) Any state or federally authorized auditing agent or board that inspects or reviews the work of the Department of Justice DNA Laboratory for the purpose of ensuring that the laboratory meets ASCLD/LAB and FBI standards for accreditation and quality assurance standards necessary under this chapter and for the state’s participation in CODIS and other national or international crime-solving networks.
(4) (5) Any third party that the Department of Justice deems necessary to assist the department’s crime laboratory with statistical analyses of the population data base databases, or the analyses of forensic protocol, research methods, or quality control procedures, or to assist in the recovery or identiﬁcation of human remains for humanitarian purposes, including identiﬁcation of missing persons.
(b) Nothing in this chapter shall prohibit the sharing or disseminating of protocol and forensic DNA analysis methods and quality control procedures with any of the following:
(1) Federal, state, or local law enforcement agencies.
(2) Crime laboratories, whether public or private, that serve federal, state, and local law enforcement agencies that have been approved by the Department of Justice.
(3) The attorney general’s ofﬁce of any state.
(4) Any third party that the Department of Justice deems necessary to assist the department’s crime laboratory with analyses of forensic protocol, research methods, or quality control procedures.
(c) (b) The population data-base databases and data bank banks of the DNA Laboratory of the Department of Justice may be made available to and searched by the FBI and any other agency participating in the FBI’s CODIS System or any other national or international law enforcement database or data bank system.
(d) (c) The Department of Justice may provide portions of the biological samples including blood specimens and , saliva samples, and buccal swab samples collected pursuant to this chapter to local public law enforcement DNA laboratories for identiﬁcation purposes provided that the privacy provisions of this section are followed by the local public law enforcement laboratory and if each of the following conditions is met:
(1) The procedures used by the local public DNA laboratory for the handling of specimens and samples and the disclosure of results are the same as those established by the Department of Justice pursuant to Sections 297, 298, and 299.5.
(2) The methodologies and procedures used by the local public DNA laboratory for DNA or forensic identiﬁcation analysis are compatible with those established used by the Department of Justice pursuant to subdivision (i) of Section 299.5, or otherwise are determined by the Department of Justice to be valid and appropriate for identiﬁcation purposes.

Text of Proposed Laws | 143

Case3:09-cv-04779-CRB Document56-1 Filed12/01/09 Page10 of 11
TEXT OF PROPOSED LAWS

Proposition 69 (cont.)

(3) Only tests of value to law enforcement for identiﬁcation purposes are performed and a copy of the results of the analysis are sent to the Department of Justice.
(4) All provisions of this section concerning privacy and security are followed.
(5) The local public law enforcement DNA laboratory assumes all costs of securing the specimens and samples and provides appropriate tubes, labels, and instructions materials necessary to secure the specimens and samples.
(e) (d) Any local DNA laboratory that produces DNA profiles of known reference samples for inclusion within the permanent files of the state’s DNA Data Bank program shall comply with and be subject to all of the rules, regulations, and restrictions of this chapter and shall follow the policies of the DNA Laboratory of the Department of Justice.
SEC. 12. Section 300 of the Penal Code is amended to read:
300. Nothing in this chapter shall limit or abrogate any existing authority of law enforcement ofﬁcers to take, maintain, store, and utilize DNA or forensic identiﬁcation markers, blood specimens, buccal swab samples, saliva samples, or thumb or palm print impressions for identiﬁcation purposes.
SEC. 13. Section 300.1 of the Penal Code is amended to read:
300.1. (a) Nothing in this chapter shall be construed to restrict the authority of local law enforcement to maintain their own DNA-related databases or data banks, or to restrict the Department of Justice with respect to data banks and data-bases databases created by other statutory authority, including, but not limited to, data-bases databases related to ﬁngerprints, ﬁrearms and other weapons, child abuse, domestic violence deaths, child deaths, driving offenses, missing persons, violent crime information as described in Title 12 (commencing with Section 14200) of Part 4, and criminal justice statistics permitted by Section 13305.
(b) Nothing in this chapter shall be construed to limit the authority of local or county coroners or their agents, in the course of their scientiﬁc investigation, to utilize genetic and DNA technology to inquire into and determine the circumstances, manner, and cause of death, or to employ or use outside laboratories, hospitals, or research institutions that utilize genetic and DNA technology.
SEC. 14. Section 300.2 is added to the Penal Code, to read:
300.2. Any requirement to provide saliva samples pursuant to this chapter shall be construed as a requirement to provide buccal swab samples as of the effective date of the act that added this section. However, the Department of Justice may retain and use previously collected saliva and other biological samples as part of its database and databank program and for quality control purposes in conformity with the provisions of this chapter.
SEC. IV. Supplemental Funding
SEC. 1. Section 76104.6 is added to the Government Code, to read:
76104.6. (a) For the purpose of implementing the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, there shall be levied an additional penalty of one dollar for every ten dollars ($10) or fraction thereof in each county which shall be collected together with and in the same manner as the amounts established by Section 1464 of the Penal Code, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses, including all offenses involving a violation of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code, except parking offenses subject to Article 3 (commencing with Section 40200) of Chapter 1 of Division 17 of the Vehicle Code. These moneys shall be taken from fines and forfeitures deposited with the county treasurer prior to any division pursuant to Section 1463 of the Penal Code. The board of supervisors shall establish in the county treasury a DNA Identification Fund into which shall be deposited the collected moneys pursuant to this section. The moneys of the fund shall be allocated pursuant to subdivision (b).
(b) (1) The fund moneys described in subdivision (a), together with any interest earned thereon, shall be held by the county treasurer separate from any funds subject to transfer or division pursuant to Section 1463 of the Penal Code. Deposits to the fund may continue through and including the 20th year after the initial calendar year in which the surcharge is collected, or longer if and as necessary to make payments upon any lease or leaseback arrangement utilized to ﬁnance any of the projects speciﬁed herein.

(2) On the last day of each calendar quarter of the year speciﬁed in this subdivision, the county treasurer shall transfer fund moneys in the county’s DNA Identiﬁcation Fund to the state Controller for credit to the state’s DNA Identiﬁcation Fund, which is hereby established in the State Treasury, as follows:
(A) in the ﬁrst two calendar years following the effective date of this section, 70 percent of the amounts collected, including interest earned thereon;
(B) in the third calendar year following the effective date of this section, 50 percent of the amounts collected, including interest earned thereon;
(C) in the fourth calendar year following the effective date of this section and in each calendar year thereafter, 25 percent of the amounts collected, including interest earned thereon.
(3) Funds remaining in the county’s DNA Identification Fund shall be used only to reimburse local sheriff or other law enforcement agencies to collect DNA specimens, samples, and print impressions pursuant to this chapter; for expenditures and administrative costs made or incurred to comply with the requirements of paragraph (5) of subdivision (b) of Section 298 including the procurement of equipment and software integral to confirming that a person qualifies for entry into the Department of Justice DNA Database and Data Bank Program; and to local sheriff, police, district attorney, and regional state crime laboratories for expenditures and administrative costs made or incurred in connection with the processing, analysis, tracking, and storage of DNA crime scene samples from cases in which DNA evidence would be useful in identifying or prosecuting suspects, including the procurement of equipment and software for the processing, analysis, tracking, and storage of DNA crime scene samples from unsolved cases.
(4) The state’s DNA Identiﬁcation Fund shall be administered by the Department of Justice. Funds in the state’s DNA Identiﬁcation Fund, upon appropriation by the Legislature, shall be used by the Attorney General only to support DNA testing in the state and to offset the impacts of increased testing and shall be allocated as follows:
(A) Of the amount transferred pursuant to subparagraph (A) of paragraph (2) of subdivision (b), 90 percent to the Department of Justice DNA Laboratory, ﬁrst, to comply with the requirements of Section 298.3 of the Penal Code and, second, for expenditures and administrative costs made or incurred in connection with the processing, analysis, tracking, and storage of DNA specimens and samples including the procurement of equipment and software for the processing, analysis, tracking, and storage of DNA samples and specimens obtained pursuant to the DNA and Forensic Identiﬁcation Database and Databank Act, as amended, and 10 percent to the Department of Justice Information Bureau Criminal History Unit for expenditures and administrative costs that have been approved by the Chief of the Department of Justice Bureau of Forensic Services made or incurred to update equipment and software to facilitate compliance with the requirements of subdivision (e) of Section 299.5 of the Penal Code.
(B) Of the amount transferred pursuant to subparagraph (B) of paragraph (2) of subdivision (b), funds shall be allocated by the Department of Justice DNA Laboratory, ﬁrst, to comply with the requirements of Section 298.3 of the Penal Code and, second, for expenditures and administrative costs made or incurred in connection with the processing, analysis, tracking, and storage of DNA specimens and samples including the procurement of equipment and software for the processing, analysis, tracking, and storage of DNA samples and specimens obtained pursuant to the DNA and Forensic Identiﬁcation Database and Databank Act, as amended.
(C) Of the amount transferred pursuant to subparagraph (C) of paragraph (2) of subdivision (b), funds shall be allocated by the Department of Justice to the DNA Laboratory to comply with the requirements of Section 298.3 of the Penal Code and for expenditures and administrative costs made or incurred in connection with the processing, analysis, tracking, and storage of DNA specimens and samples including the procurement of equipment and software for the processing, analysis, tracking, and storage of DNA samples and specimens obtained pursuant to the DNA and Forensic Identiﬁcation Database and Databank Act, as amended.
(c) On or before April 1 in the year following adoption of this section, and annually thereafter, the board of supervisors of each county shall submit a report to the Legislature and the Department of Justice. The report shall include the total amount of ﬁnes collected and allocated pursuant to this section, and the amounts expended by the

144 | Text of Proposed Laws

Case3:09-cv-04779-CRB Document56-1 Filed12/01/09 Page11 of 11
TEXT OF PROPOSED LAWS

Proposition 69 (cont.)

county for each program authorized pursuant to paragraph (3) of subdivision (b) of this section. The Department of Justice shall make the reports publicly available on the department’s Web site.
(d) All requirements imposed on the Department of Justice pursuant to the DNA Fingerprint, Unsolved Crime and Innocence Protection Act are contingent upon the availability of funding and are limited by revenue, on a ﬁscal year basis, received by the Department of Justice pursuant to this section and any additional appropriation approved by the Legislature for purposes related to implementing this measure.
(e) Upon approval of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, the Legislature shall loan the Department of Justice General Fund in the amount of $7,000,000 for purposes of implementing that act. This loan shall be repaid with interest calculated at the rate earned by the Pooled Money Investment Account at the time the loan is made. Principal and interest on the loan shall be repaid in full no later than four years from the date the loan was made and shall be repaid from revenue generated pursuant to this section.
SEC. V. General Provisions
(a) Conﬂicting Measures: If this measure is approved by the voters,

but superseded by any other conﬂicting ballot measure approved by more voters at the same election, and the conﬂicting ballot measure is later held invalid, it is the intent of the voters that this measure shall be self-executing and be given the full force of the law.
(b) Severability: The provisions of this measure are severable. If any provision of this measure or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
(c) Amendment: The provisions of this measure may be amended by a statute that is passed by each house of the Legislature and signed by the Governor. All amendments to this measure shall be to further the measure and shall be consistent with its purposes to enhance the use of DNA identiﬁcation evidence for the purpose of accurate and expeditious crime-solving and exonerating the innocent.
(d) Supplantation: All funds distributed to state or local governmental entities pursuant to this measure shall not supplant any federal, state, or local funds that would, in the absence of this measure, be made available to support law enforcement and prosecutorial activities.

Proposition 70

This initiative measure is submitted to the people in accordance with the provisions of Section 8 of Article II of the California Constitution.
This initiative measure amends the California Constitution and adds a section to the Government Code; therefore, existing provisions proposed to be deleted are printed in strikeout type and new provisions proposed to be added are printed in italic type to indicate that they are new.
PROPOSED LAW
THE INDIAN GAMING FAIR-SHARE REVENUE ACT OF 2004
SECTION 1. Title
This act shall be known as the “Indian Gaming Fair-Share Revenue Act of 2004.”
SEC. 2. Findings and Purpose
The people of the State of California hereby ﬁnd and declare as follows:
(a) The purpose of the people of the State of California in enacting this measure is to provide a means for California Indian tribes to contribute their fair share of gaming revenues to the State of California. Both the people of California and California Indian tribal governments desire for tribes to assist in restoring ﬁnancial integrity to the state by contributing an amount that is equivalent to what any private California corporation pays to the state on the net income it earns from its lawful business activities.
(b) In March 2000, the people of the State of California adopted Proposition 1A, which authorized the Governor to negotiate tribal-state gaming compacts with federally recognized Indian tribes for the operation of slot machines and certain casino games on tribal lands in California in accordance with federal law. Proposition 1A was enacted by the people in recognition of the fact that, historically, Indian tribes within the state have long suffered from high rates of unemployment and inadequate educational, housing, elderly care, and health care opportunities, while typically being located on lands that are not conducive to economic development in order to meet those needs.
(c) Since the adoption of Proposition 1A, over 50 Indian tribes have entered into tribal gaming compacts with the State of California. These compacts and the gaming facilities they authorize have assisted Indian tribes throughout the state to move towards economic self-sufﬁciency by providing a much-needed revenue source for various tribal purposes, including tribal government services and programs such as those that address reservation housing, elderly care, education, health care, roads, sewers, water systems, and other tribal needs. Tribal gaming has also spurred new development, has created thousands of jobs for Indians and non-Indians alike, and has had a substantial positive economic impact on the local communities in which these facilities are located.
(d) Under the existing tribal gaming compacts, Indian tribes also pay millions of dollars each year into two state special funds that are used to provide grants to local governments, to finance programs

addressing gambling addiction, to reimburse the state for the costs of regulating tribal gaming, and to share gaming revenues with other Indian tribes in the state that do not operate gaming facilities. However, because Indian tribes are sovereign governments and are exempt from most forms of taxation, they do not pay any corporate income taxes directly to the state on the profits derived from their gaming operations.
(e) Given California’s current ﬁscal crisis, the state needs to ﬁnd new ways to generate revenues for the General Fund in the State Treasury. Indian tribes want to and should do their part to assist California in meeting its budget needs by contributing to the state a fair share of the net income they receive from gaming activities in recognition of their continuing right to operate tribal gaming facilities in an economic environment free of competition from casino-style gaming on non-Indian lands. A fair share for the Indian tribes to contribute to the state is an amount that is equivalent to the amount of corporate taxes that a private California corporation pays to the state on the net income it earns from its lawful business activities.
(f) Accordingly, in order to provide additional revenues to the State of California in this time of ﬁscal crisis, this measure authorizes and requires the Governor to enter into new or amended tribal gaming compacts under which the Indian tribes agree to contribute to the state a fair share of the net income derived from their gaming activities in exchange for the continued exclusive right to operate casino-style gaming facilities in California. In addition, in order to maximize revenues for the state and to permit the free market to determine the number and type of casino games and devices that will exist on tribal lands, this measure requires these new or amended compacts to allow each tribal government to choose the number and size of the gaming facilities it operates, and the types of games offered, that it believes will maximize the tribe’s income, as long as the facilities are restricted to and are located in those areas that have been designated by both the State of California and the United States government as tribal lands. Under the new or amended compacts authorized by this measure, Indian tribes must also prepare environmental impact reports analyzing the off-reservation impacts of any proposed new or expanded gaming facilities, and they must consult with the public and local government ofﬁcials to develop a good-faith plan to mitigate any signiﬁcant adverse environmental impacts.
SEC. 3. Section 19 of Article IV of the California Constitution is amended to read:
SEC. 19. (a) The Legislature has no power to authorize lotteries and shall prohibit the sale of lottery tickets in the State.
(b) The Legislature may provide for the regulation of horse races and horse race meetings and wagering on the results.
(c) Notwithstanding subdivision (a), the Legislature by statute may authorize cities and counties to provide for bingo games, but only for charitable purposes.
(d) Notwithstanding subdivision (a), there is authorized the establishment of a California State Lottery.

Text of Proposed Laws | 145

 </s> 1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

United States District Court For the Northern District of California

11 ELIZABETH A. HASKELL and 12 REGINALD ENTO,

13

Plaintiffs,

14 v.

15 EDMUND G. BROWN JR., et al.,

Defendants. 16

No. C 09-04779 CRB ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION
/

17 Plaintiffs seek to enjoin the enforcement of California Penal Code § 296(a)(2)(C),
18 which provides for the mandatory DNA sampling of felony arrestees in the State of
19 California. Plaintiffs allege that this section violates both the Fourth and Fourteenth
20 Amendments. Although Plaintiffs argue convincingly that arrestees have greater privacy
21 interests than convicted felons, from whom the Ninth Circuit has already condoned the
22 taking of DNA samples, Plaintiffs have not established that they are likely to succeed, or that
23 the balance of the equities tips in their favor. Accordingly, the Court DENIES the motion.
24 I. BACKGROUND
25 1. DNA Seizure, Analysis and Expungement in California
26 California has collected biological samples for its law enforcement database since
27 1984. Opp. at 2 (citing 1983 Cal. Stat. Ch. 700, § 1 (repealed 1998). In 1998, California’s
28 Legislature enacted the DNA Act, which authorized the seizure of DNA from individuals

convicted of certain serious and violent crimes. Opp. at 2 (citing 1998 Cal. Stat. Ch. 696, §

United States District Court For the Northern District of California

1 2). Then, in November 2004, California voters passed Proposition 69, which enacted Penal

2 Code section 296(a)(2)(C). MPI at 2. That new section greatly expanded the scope of

3 individuals in California who are subject to warrantless DNA seizures by law enforcement.

4 Id. Proposition 69 required warrantless seizure of DNA from all individuals convicted of any

5 felony. Id. (citing § 296(a)(1)). It also provided that, beginning January 1, 2009,

6 warrantless seizure of DNA would be required of any adult arrested for any felony. MPI at 2

7 (citing § 296(a)(2)(C)).

8

By law, collection of DNA takes place “immediately following arrest, or during the

9 booking . . . process or as soon as administratively practicable after arrest, but, in any case,

10 prior to release on bail or pending trial or any physical release from confinement or custody.”

11 MPI at 2 (citing § 296.1(a)(1)(A); Meier Decl. Ex A at 2 (Cal DOJ DNA Information

12 Bulletin 08-BFS-02)). DNA samples are taken using a buccal swab, which consists of gently

13 scraping the inner cheek repeatedly with a small stick. Opp. at 3 (citing §§ 296; 296.1).

14 DNA samples are not taken from individuals who have already had their DNA samples

15 taken. See Konzak Decl. at ¶ 28; Meier Decl. Ex. A at 3 (noting that agents are to determine

16 if an individual’s DNA sample has already been taken, to avoid “duplicate collections”).

17 Law enforcement has no discretion in collecting these samples. Opp. at 3 (citing People v.

18 King, 82 Cal. App. 4th 1363, 1373 (2000)).

19

After the DNA sample is taken, it is sent to the Department of Justice’s lab for

20 analysis. MPI at 3. The sample may only be tested to reveal an individual’s identity. Opp.

21 at 3 (citing § 295.1 (“The Department of Justice shall perform DNA analysis . . . pursuant to

22 this chapter only for identification purposes”). From the sample, a genetic profile is created

23

24

25

26

27

28

2

United States District Court For the Northern District of California

1 based on thirteen (13) “junk” genetic markers (“loci”) on the DNA, so titled because they are 2 thought not to reveal anything about trait coding. Opp. at 3; Konzak Decl.1

3

The profile is then uploaded into California’s DNA data bank, which is part of the

4 nationwide Combined DNA Index System (“CODIS”), accessible to local, state and federal

5 law enforcement. MPI at 3. “Beyond the STR-generated DNA profile, CODIS records

6 contain only an identifier for the agency that provided the DNA sample, a specimen

7 identification number, and the name of the personnel associated with the analysis.” See

8 United States v. Kincade, 379 F.3d 813, 819 n. 8 (9th Cir. 2004) (en banc) (plurality); see

9 also 61 Fed. Reg. 37496 (July 18, 1996) (federal DNA database contains DNA profiles,

10 defined as “a set of DNA identification characteristics” – database not to “contain case-

11 related or other personally identifying information about the person from whom the DNA

12 sample was collected”). Arrestee DNA profiles are entered into a special Arrestee Index.

13 Konzak Decl. at ¶ 34. The DNA samples themselves are retained at the lab. MPI at 1.

14

The DNA Act limits disclosure of samples and results of testing to law enforcement

15 personnel. Opp. at 3 (citing § 299.5(f)). Any individual who uses a sample or DNA profile

16 for any purpose other than identification, or who discloses the sample or DNA profile, faces 17 up to a year in prison. Opp. at 3 (citing § 299.5(i)(1)(A).2 Any DOJ employee who misuses

18 or improperly discloses a sample or DNA profile is also subject to a fine of up to $50,000.

19 Opp. at 3 (citing § 299.5(i)(2)(A). To date, there has not been one instance in which charges

20 were brought against an employee of the DOJ for violating the DNA Act. Opp. at 4 (citing

21

22
1The Court is aware that so-called “junk” DNA m ight someday be found to contain genetic 23 programming material. See United States v. Kincade, 379 F.3d 813, 818 n.6 (9th Cir. 2004) (en banc)
(plurality); but see D.H. Kaye, “Please, Let’s Bury the J unk: The Codis Loci and the Revelation of 24 Private Information,” 102 Nw. U. L. Rev. Colloquy 70 , 71 (2007) (“No one can say for certain what
the future of genetics holds, but based on current knowledge and practice, the information coded in the 25 databases is and will rem ain, with . . . lim ited exceptions . . . usef ul only f or identification”).
Nonetheless, the Court must address the facts as they are – and as they are understood– today. 26
2 However, Plaintiffs assert that “[a]lt hough both federal a nd California law only allow 27 disclosure for ‘law enforcement identification purposes,’ nothing about ‘identification purposes’ limits
on its face to information regarding non-coding regions of the genome.” Murphy Decl. at ¶ 41. If the 28 government were to begin analyzing the coding regions of individuals’ DNA, that would be a different
case; those facts are not currently before the Court.

3

United States District Court For the Northern District of California

1 Hares Decl. ¶¶ 14, 16-18). In addition, no audit has ever cited a California CODIS lab for

2 any violation of confidentiality or use restrictions. See Konzak Decl. at ¶ 7.

3

Searching of the CODIS database takes place frequently. As soon as a profile is

4 uploaded, it is immediately compared to the crime-scene samples already in that CODIS

5 index. MPI at 3. Any new crime-scene samples are searched against it. Id. In addition, a

6 search of the entire system is performed once a week. Id. (citing Birotte v. Superior Court,

7 177 Cal. App. 4th 559, 565 (2009)). When a “hit” is made– a match between the offender

8 (convicted offender or arrestee) profile and a crime-scene profile– a confirmation process

9 takes place, which includes a de novo analysis of the offender DNA sample. Von

10 Beroldingen Decl. at ¶¶ 15-17. Once the hit has been confirmed, the CODIS unit sends a

11 written notification of the offender’s identity to the submitting laboratory, which then may

12 forward the notification on to the client law enforcement agency. Id. at ¶ 18. California also

13 conducts “familial searching,” in which law enforcement uses the DNA database to identify a

14 person whose DNA does not match the crime-scene evidence but is similar enough that the

15 person might be related to the criminal. MPI at 3-4. However, the government maintains that

16 it does not conduct familial searching of the Arrestee Index. Von Beroldingen Decl. at ¶ 13.

17

Under the statute, the process for expunging an individual’s sample and profile is

18 rather lengthy. Where no charges are filed, the case is dismissed, or the arrestee is found not

19 guilty or factually innocent, the arrestee must still wait until the statute of limitations has run

20 before applying for expungement. MPI at 4 (citing § 299(b)). Depending on the felony for

21 which he or she was arrested, this is a minimum of three years. Id. After requesting relief

22 and notifying the DOJ, former arrestees must then wait an additional 180 days before a court

23 can authorize expungement. Id. (citing § 299 (c)(2)(D)). Then, the court’s order, either

24 granting or denying expungement, is nonappealable. Id. (citing § 299(c)(1)). Moreover,

25 expungement can be prevented if there is “an objection by the Department of Justice or the

26 prosecuting attorney.” Id. (citing § 299(c)(2)(D)). According to the government, “[a]lthough

27 the law allows prosecutors to wait the entire period of the statute of limitations to file

28 charges,” California District Attorneys do not wait for the statutory period to run in order to

4

United States District Court For the Northern District of California

1 certify a dismissal for a defendant who wants his or her record expunged. Von Beroldingen

2 Decl. at ¶ 6. Further, Defendants have offered to expunge the named Plaintiffs’ samples on

3 an expedited basis. Id. at ¶ 8. The government reports that it has expunged 904 convicted

4 felon samples, and denied 8 requests for expungement. Id. at ¶ 7. It has apparently not

5 expunged any arrestee samples.

6

2. Plaintiffs in this Case

7

Plaintiff Lily Haskell was arrested in March 2009 for allegedly trying to free another

8 prisoner at a peace rally. MPI at 5. At jail, she was ordered to provide a DNA sample and

9 was told that if she refused to comply immediately or if she waited for a lawyer, she would

10 be charged with a misdemeanor. Id. She gave a sample, and was never charged with any

11 crime. Id.

12

Plaintiff Reginald Ento was arrested in early 2009 for possession of stolen property.

13 MPI at 5. The sheriff’s deputy collected a DNA sample from him using a buccal swab. Id.

14 Plaintiff Ento was released, and the allegations against him were dropped. Id.

15

The ACLU, counsel for Plaintiffs, first filed suit when Proposition 69 passed;

16 however, that case was dismissed as unripe. See Weber v. Lockyer, 365 F.Supp. 2d 1119,

17 1126 (N.D. Cal. 2005). Plaintiffs then filed this class action suit in October 2009 against

18 Edmund G. Brown, Jr., Attorney General; Eva Steinberger, Assistant Bureau Chief for DNA

19 Programs, California Department of Justice; and Michael Hennessey, Sheriff of San

20 Francisco County. They have now moved for a preliminary injunction, asking the Court to

21 enjoin Defendants from seizing, searching, analyzing, or making any use of DNA samples or

22 analysis of DNA samples from persons arrested for, but not convicted of, a crime. MPI at 1.

23 II. DISCUSSION

24

To prevail on a motion for preliminary injunction, Plaintiffs must establish that (1)

25 they are likely to succeed on the merits; (2) they face irreparable harm in the absence of

26 preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the

27 public interest. See Winter v. N.R.D.C., 129 S. Ct. 365, 374 (2008).

28

1. Likelihood of Success

5

United States District Court For the Northern District of California

1

As a preliminary matter, Plaintiffs assert that § 296(a)(2)(C) violates both the Fourth

2 and Fourteenth Amendments. They argue that under the Fourteenth Amendment, the DNA

3 sampling violates arrestees’ right to informational privacy. MPI at 2-3. They further argue

4 that the government has shown neither a legitimate interest in those individuals’ DNA, nor

5 that its actions are narrowly tailored to meet that interest. Id. at 9. But Plaintiffs merge their

6 Fourteenth Amendment and Fourth Amendment arguments in their papers; and indeed,

7 courts generally treat this issue as a Fourth Amendment issue. See Norman-Bloodsaw v.

8 Lawrence Berkeley Laboratory, 135 F.3d 1260, 1269 (9th Cir. 1998) (“Because it would not

9 make sense to examine the collection of medical information under two different approaches,

10 we generally analyze medical tests and examinations under the rubric of the Fourth

11 Amendment”) (internal quotations omitted). Accordingly the Court’s focus, like the parties’,

12 is on the Fourth Amendment.

13

Plaintiffs argue that the taking of arrestees’ DNA samples constitutes an unreasonable

14 search under the Fourth Amendment. MPI at 6. Invasions of the body are searches, and are

15 entitled to Fourth Amendment protection. See Skinner v. Railway Labor Executives’ Ass’n,

16 489 U.S. 602, 616 (1989); Schmerber v. California, 384 U.S. 757, 767 (1966). Just like

17 compulsory extraction of blood for DNA testing, buccal swab sampling constitutes a search

18 under the Fourth Amendment. See Friedman v. Boucher, 580 F.3d 847, 852 (9th Cir. 2009).

19

Section 296(a)(2)(C) does not require a warrant for buccal swab testing. A search’s

20 reasonableness usually depends on whether it was made pursuant to a warrant issued under

21 probable cause. See Rise v. Oregon, 59 F.3d 1556, 1559 (9th Cir. 1995), overruled on other

22 grounds by Ferguson v. City of Charleston, 532 U.S. 67 (2001). However, there are “certain

23 established and well-defined exceptions to the warrant clause.” United States v. Brown, 563

24 F.3d 410, 414-15 (9th Cir. 2009). Here, the government does not argue that a specific

25 exception applies– and for good reason. The Ninth Circuit has rejected the application of the

26 “special needs” exception to other DNA cases, because that exception pertains only to

27 searches for “non-law enforcement purposes,” and one of the purposes of DNA searches is

28

6

United States District Court For the Northern District of California

1 the solving of “cold cases,” a quintessential law enforcement purpose. See Friedman, 580

2 F.3d at 853.

3

Instead, the Ninth Circuit analyzes cases such as this by assessing whether the search

4 is reasonable, “gauged by the totality of the circumstances.” See Kincade, 379 F.3d at 8315 32; see also Rise, 59 F.3d at 1559.3 Most other circuits apply this same test. See Banks v.

6 United States, 490 F.3d 1178, 1183 (10th Cir. 2007) (adopting totality of circumstances test

7 and noting that “the Third, Fourth, Fifth, Eighth, Ninth, Eleventh, and District of Columbia

8 Circuits apply a reasonableness test informed by the totality of the circumstances”). Courts

9 are to “balance the degree to which DNA profiling interferes with the privacy interests of the

10 [individual] against the significance of the public interests served by such profiling.”

11 Kincade, 379 F.3d at 836. See also United States v. Kriesel, 508 F.3d 941, 947 (9th Cir.

12 2007) (following Samson v. California, 547 U.S. 843, 848 (2006)).

13

A. Landmark Cases in the Ninth Circuit

14

Three recent cases illustrate how the Ninth Circuit has weighed the individual’s

15 interest against the government’s interest in the context of DNA sampling.

16

In Kincade, decided in 2004, the Ninth Circuit found that the balance tipped in favor

17 of the government. That case involved the compulsory DNA profiling of certain convicted

18 but conditionally released federal offenders pursuant to the federal DNA Act. 379 F.3d at

19 816. Kincade, who had committed a qualifying offense, was asked to submit a blood sample

20

21

22

23
3 Plaintiffs point to Friedman and argue that the Ninth Circuit does not apply the totality of the 24 circumstances test, instead following Schm erber’s requirement of either a warrant or both probable
cause and exigent circumstances. MPI at 7. Although Friedman arguably did not apply the totality of 25 the circumstances test, it did not reject that test, either– it simply found that the search at issue was
unjustified under either the “special needs” exception, the state’s reliance on a statute, or “on general 26 Fourth Amendment principles.” See580 F.3d at 858. To the extent thastome test other than the totality
of the circumstances test is appropriate in the case of arrestees’ DNA, the Ninth Circuit has not yet so 27 held. Moreover, Kincade characterized other circuits’ use of the totality of the circumstances test as
applying to “compulsory DNA profiling,” without reference to the population being tested. See 379 28 F.3d at 831. While Plaintiffs maintained, at the motion hearing, that the totality of the circumstances
test was improper, they argued that they should nonetheless win under that test.

7

United States District Court For the Northern District of California

1 to his probation officer pursuant to the Act, and he refused. Id. at 820. The court, sitting en

2 banc, applied the totality of the circumstances test.4

3

The court first took stock of Kincade’s expectation of privacy, and found that

4 “parolees and other conditional releasees are not entitled to the full panoply of rights and

5 protections possessed by the general public,” but that “those who have suffered a lawful

6 conviction are properly subject to a broad range of [restrictions] that might infringe

7 constitutional rights in free society.” Id. at 833 (internal quotations omitted). It added that

8 conditional releasees are “clearly informed of the condition requiring them to submit to

9 compulsory DNA profiling, thus further reducing any expectation of privacy they otherwise

10 may enjoy.” Id. at 838 n. 36. The court concluded that this population had a “substantially

11 diminished expectation[] of privacy.” Id. at 839.

12

The court then assessed the invasiveness of the search. While the court recognized

13 that “compulsory blood tests implicate the individual’s interest in bodily integrity– a

14 ‘cherished value of our society,’” it added that “the intrusion occasioned by a blood test is

15 not significant” because such tests are commonplace, the quantity of blood extracted is

16 minimal, and the procedure usually involves no risk, trauma or pain. Id. at 836 (citing

17 Schmerber, 384 U.S. at 771-72 and Skinner, 489 U.S. at 625). The court went on to find

18 that, beyond the extraction of blood, “the DNA profile derived from [it] establishes only a

19 record of the defendant’s identity– otherwise personal information in which the qualified

20 offender can claim no right of privacy once lawfully convicted of a qualifying offense

21 (indeed, once lawfully arrested and booked into state custody).” Id. at 837. Though Kincade

22 and amici argued that the DNA samples “could be mined for more private information or

23 otherwise misused in the future,” the court took comfort in the protections against misuse

24 built into the Act, and noted that “our job is limited to resolving the constitutionality of the

25 program before us, as it is designed and as it has been implemented.” Id. at 837-38.

26

27
4 Judge O’Scannlain’s opinion (joined by four other judges) applied the tot ality of the 28 circumstances test, but Judge Gould, concurring, advocated applying the special needs exception. See
id. at 840 (Gould, J., concurring). Five judges dissented. See id. at 842, 871, 875.

8

United States District Court For the Northern District of California

1

Finally, the court evaluated the government’s interests in Kincade’s DNA. The court

2 echoed the holding in Rise that “[o]nce a person is convicted . . . his identity has become a

3 matter of state interest.” Id. at 837 (citing Rise, 59 F.3d at 1560). It went on to list three

4 “undeniably compelling” interests served by the DNA Act. Id. at 838. First, it noted that

5 society had an “overwhelming interest” in supervising parolees and making certain that they

6 complied with the requirements of their release. Id. Second, it asserted that such profiling

7 has a deterrent effect, and that the rates of re-arrest among parolees is quite high. Id. at 838-

8 39. Third, it held that “by contributing to the solution of past crimes, DNA profiling of

9 qualified federal offenders helps bring closure to countless victims of crime.” Id. at 839.

10 Together, the court found the weight of these government interests to be “monumental.” Id.

11

The court then concluded that in light of the individual’s minimal interest, the minimal

12 intrusion, and the “overwhelming societal interests” served, the taking of Kincade’s DNA

13 was reasonable under the totality of the circumstances. Id. The court emphasized “the

14 limited nature of [its] holding,” explaining that it pertained to “lawfully adjudicated criminals

15 whose proven conduct substantially heightens the government’s interest in monitoring them

16 and quite properly carries lasting consequences.” Id. at 835-36. However, Judge Reinhardt

17 cautioned in a powerful dissent that “countless groups of individuals . . . have reduced

18 expectations of privacy” – including arrestees – and that “in the face of ‘monumental

19 government law enforcement interests, I find it difficult to understand when suspicionless

20 searches would be found to violate the Fourth Amendment.” Id. at 864-65 (Reinhardt, J.,

21 dissenting). He warned that “[t]he ‘balancing of interests’ does not provide much of a

22 balance– to the contrary, any reasonable reading of the plurality’s decision reveals that the

23 ‘balance’ will always tilt in favor of the government.” Id. at 866.5

24

In Kriesel, a 2007 case, the Ninth Circuit again found that the balance tipped in favor

25 of the government, this time as to the expansion of the federal DNA Act to include all

26 felonies. See 508 F.3d at 942. Kriesel was a convicted felon whose terms of supervised

27
5 In a separate dissent, Judge Kozinski also noted that “[a]pplying the plurality’s ba lancing 28 analysis, I’m hard pressed to see how this would violate anyone’s Fourth Aemndment rights.” Id.at 872
(Kozinski, J., dissenting).

9

United States District Court For the Northern District of California

1 release included a condition that he submit his person to search. Id. at 944. He objected to

2 the taking of his DNA. Id. Noting that “the majority of circuits adopt a ‘totality of the

3 circumstances’ framework,” the court applied the test as follows. Id. at 946.

4

First, the court held that parolees have severely diminished expectations of privacy.

5 Id. at 947 (citing Samson, 126 S. Ct. at 2199 and Kincade, 379 F.3d at 834). Specifically the

6 court found that due to Kriesel’s “status as a supervised releasee, he has a diminished

7 expectation of privacy in his own identity.” 508 F.3d at 947.

8

Next, the court looked at the invasiveness of the search, and found that “tracking . . .

9 identity is the primary consequence of DNA collection.” Id. While the court stated that it

10 was “mindful of the caution that DNA often reveals more than identity, and that with

11 advances in technology, junk DNA may reveal far more extensive genetic information,” it

12 noted that the Act contained privacy protections that created criminal penalties for

13 unauthorized use of the DNA. Id. at 847-48. In addition, the court held again that the

14 intrusion caused by a blood test is “not significant.” Id. at 948.

15

Finally, the court held that the government’s interests as articulated in Kincade

16 “applie[d] with equal force.” Id. at 949. It found that the government has an interest in

17 identification, and that “[a]lthough fingerprint evidence might often be sufficient to identify a

18 past offender, DNA collection provides another means” to meet this “significant need.” Id.

19 It found that “the deterrent effect of such profiling fosters society’s interest in reducing

20 recidivism,” and that non-violent offenders’ recidivism rates, though not as high as violent

21 offenders’, are “significant.” Id. at 949-50, n.11. And it found that the government has an

22 interest in solving past crimes, even nonviolent crimes. Id.

23

In light of this balancing test, the court found the taking of Kriesel’s DNA to be

24 reasonable. Id. at 950.

25

In Friedman, decided in September 2009, the Ninth Circuit found that the balance

26 tipped in favor of the individual. In that case, Friedman had committed a crime in Montana,

27 completed his sentence, and upon his release was neither a parolee or a probationer. 580

28 F.3d at 851. He then moved to Nevada, and, while a pre-trial detainee awaiting prosecution

10

United States District Court For the Northern District of California

1 on unrelated charges, was asked to provide a DNA sample. Id. The sample was not required

2 by any Nevada law; the detective simply wanted it to try to solve cold cases. Id. When

3 Friedman refused, the detective forced Friedman’s mouth open and forcefully took a buccal

4 swab. Id.

5

Rather than apply a full totality of the circumstances test, the court addressed each of

6 the three justifications the government offered for why the search was constitutional. Id. at

7 853. It rejected the first two, finding that the special needs exception did not apply, and that

8 “adherence to a state statute does not guarantee compliance with the Fourth Amendment” –

9 even if the Minnesota law the government pointed to had applied. Id. at 853-54.

10

Then the court addressed the government’s final argument– that the search was

11 “reasonable.” Id. at 856. It held that “[n]either the Supreme Court nor our court has

12 permitted general suspicionless, warrantless searches of pre-trial detainees for grounds other

13 than institutional security or other legitimate penological interests.” Id. at 857. While it

14 acknowledged various appellate cases upholding state DNA laws, it held that none involved

15 a pretrial detainee “or a state law that mandated searches of pretrial detainees.” Id. at 857.6

16 The court then distinguished Kincade and Kriesel, noting that “both of those cases concerned

17 extracting DNA from convicted felons still under state supervision.” Id. The court held that

18 the bases for those cases did not apply, because Friedman was no longer being supervised by

19 any authority; the Nevada authorities’ “purpose was simply to gather human tissue for a law

20 enforcement databank, an objective that does not cleanse an otherwise unconstitutional

21 search.” Id. at 858. The court did not address the other government interests identified in

22 Kincade and Kriesel.

23

In light of this analysis, the court in Friedman held that the taking of Friedman’s DNA

24 was not reasonable and violated the Fourth Amendment. Id.

25

Given the foregoing background, this Order will now address and weigh the

26 individual’s interest and the government’s interest in the present case.

27
6 It is unclear what weight the court would havegiven to these cases ifany had involved a state 28 law mandating searches of pretrial detainees, particularly in light of the court’s holding that adherence
to a state law does not guarantee compliance with the Fourth Amendment.

11

United States District Court For the Northern District of California

1

B. The Individual’s Interest in this Case

2

Plaintiffs argue that “individuals who have merely been arrested or charged with a

3 crime enjoy a much higher expectation of privacy” than convicted felons, who have a

4 “severely diminished expectation[] of privacy.” MPI at 10 (internal citation omitted).

5 Undoubtedly this is true. Convicted felons “have suffered a lawful conviction [and so] are

6 properly subject to a broad range of [restrictions]” to which free people are not. See

7 Kincade, 379 F.3d at 833 (internal citations omitted). The Ninth Circuit in United States v.

8 Scott, 450 F.3d 863, 873 (9th Cir. 2006), held that a defendant “out on his own recognizance

9 before trial” had privacy interests “far greater than a probationer’s.” Similarly, Judge

10 Easterbrook has described a privacy continuum for offenders in the criminal justice system:

11 at one end are prisoners, whose privacy interests are “extinguished by the judgments placing

12 them in custody,” while at the other end are those who have never been convicted. Green v.

13 Berge, 354 F.3d 675, 679-80 (7th Cir. 2004) (Easterbrook, J., concurring). He commented

14 that “what is ‘reasonable’ under the fourth amendment for a person on conditional release, or

15 a felon, may be unreasonable for the general population.” Id. at 680.

16

While arrestees certainly have a greater privacy interest than prisoners, it is this

17 Court’s view that they also have a lesser privacy interest than the general population. See,

18 e.g., Robert Berlet, “A Step Too Far: Due Process and DNA Collection in California After

19 Proposition 69,” 40 U.C. Davis L. Rev. 1481, 1503 (2007) (“Arrestees have a greater

20 expectation of privacy than convicts, but less than free people”).7 Though Kincade and

21 Kriesel both limited their holdings to convicted felons, see Kincade, 379 F.3d at 836, Kriesel,

22 508 F.3d at 950, even Judge Reinhardt’s dissent in Kincade noted that “[a]rrestees’ privacy

23 interests, too, appear to be significantly reduced.” 379 F.3d at 864 (Reinhardt, J., dissenting)

24 (citing Chimel v. California, 395 U.S. 752, 762-63 (1969)). Indeed, the Ninth Circuit has

25 held that while fingerprinting of “free persons” is a “sufficiently significant interference with

26 individual expectations of privacy” to require probable cause or articulable suspicion,

27
7 Plaintiffs essentially acknowledged this pointat the motion hearing, by answering the Court’s 28 question of whether it had the right to object to the taking of its DNA for identification purposes with
“You and I do. We haven’t been arrested.”

12

United States District Court For the Northern District of California

1 “everyday ‘booking’ procedures routinely require even the merely accused to provide

2 fingerprint identification, regardless of whether investigation of the crime involves

3 fingerprint evidence.” Rise, 59 F.3d at 1559-60.

4

Plaintiffs have not argued that arrestees’ privacy interest is such that they cannot

5 reasonably be forced to identify themselves upon arrest through photographs or fingerprints.

6 Kincade stated, in dicta, that once an individual is “lawfully arrested and booked into state

7 custody,” he can claim no right of privacy in his identity. 379 F.3d at 837. Magistrate Judge

8 Hollows endorsed this position in United States v. Pool, No. CR S-09-0015, 2009 U.S. Dist.

9 WL 2152081, at *7 (E.D. Cal. May 27, 2009),8 writing that “[a]n arrestee has a diminished

10 expectation of privacy in his own identity,” and that “[p]robable cause has long been the

11 standard which allowed an arrestee to be photographed, fingerprinted and otherwise be

12 compelled to give information which can later be used for identification purposes.”9

13

Plaintiffs have not articulated how DNA differs in a legally significant way from other

14 means of identification. They are in good company: the Ninth Circuit has held that the

15 “information derived from the blood sample is substantially the same as that derived from

16 fingerprinting.” See Rise, 59 F.3d at 1559; see also Pool, 2009 U.S. Dist. WL 2152081, at *8

17 (“The court agrees that DNA sampling is analogous to taking fingerprints as part of the

18 routine booking process upon arrest”); United States v. Amerson, 483 F.3d 73, 87 (2d Cir.

19 2007) (citing Jones v. Murray, 962 F.2d 302, 307 (4th Cir. 1992)) (“[t]he government

20 justification for this form of identification, therefore, relies on no argument different in kind

21 from that traditionally advanced for taking fingerprints and photographs, but with additional

22 force because of the potentially greater precision of DNA sampling and matching methods”).

23 Plaintiffs’ arguments at the motion hearing that DNA is different because it is “something of

24

25
8 This opinion was adopted by District Judge Garcia, see United States v. Pool, No. CR S-0926 0015, 2009 U.S. Dist. WL 215029 (E.D. Cal. July 15, 2009) , and is currently on appeal to the Ninth
Circuit. 27
9 But see United States v. Purdy, No. 8:05CR204, 2005 WL 3465721 at *7 (D. Neb. Dec. 19, 28 2005) (holding that DNA sampling of arrestees is unconstitutional, in part because “[t]he probable cause
that supports an arrest is not necessarily probable cause for a DNA search.”).

13

United States District Court For the Northern District of California

1 mine which is very personal,” “the building blocks of our existence,” and implicates “our

2 personhood,” are emotionally stirring, but not legally compelling.

3

Understandably, much of what drives Plaintiffs’ focus on DNA and its ability to

4 “reveal a host of private information about a person” is the “potential for misuse” – a threat

5 that does not apply to fingerprints. See MPI at 9. Thus, what is unsettling about the analogy

6 Plaintiffs raised at the motion hearing– that the government taking someone’s DNA is like

7 taking from him a letter he has written to his partner, even if it assures him it will not read the

8 letter– is the fear that the government may one day betray that promise, and peek. Or worse,

9 that it will use the contents of that letter in a harmful way. However, as the court held in

10 Kincade, “beyond the fact that the [statute] itself provides protections against such misuse,

11 our job is limited to resolving the constitutionality of the program before us.” 379 F.3d at

12 837-38. California’s law provides for protections against misuse, see Opp. at 3, and there is

13 no evidence of misuse before the Court.

14

Though arrestees’ privacy interest is certainly greater than that of convicted felons,

15 Plaintiffs have not shown that arrestees cannot reasonably be forced to identify themselves

16 upon arrest through DNA evidence. Moreover, the Ninth Circuit has held that the intrusion

17 caused by a blood test is “not significant”– certainly a buccal swab is even less so. See

18 Kriesel, 508 F.3d at 948. Accordingly, arrestees’ privacy interest, while greater than that in

19 Kincade and Kriesel, is not weighty.

20

C. The Government’s Interest in this Case

21

However, the government’s interests in this case are also not as great as those

22 identified in Kincade and Kriesel. In Kincade, the court characterized as “a state interest” the

23 confirmation of a defendant’s identity. 379 F.3d at 837 (citing Rise, 59 F.3d at 1560). The

24 Kincade court also discussed government interests in supervising parolees, deterring

25 recidivism, and contributing to the solution of past crimes. Id. at 838-39.

26

Two of those interests are essentially absent here. As the court reasoned in Friedman,

27 580 F.3d at 858, arrestees are not under the supervision of any authority. See also Scott, 450

28 F.3d at 874 (“[t]he government’s interests in surveillance and control as to a pretrial releasee

14

United States District Court For the Northern District of California

1 are . . . considerably less than in the case of a probationer”). Moreover, no evidence has been

2 presented in this case that arrestees are more likely to commit future crimes than members of

3 the general population. See also id. (“the assumption that [a pretrial releasee] was more

4 likely to commit crimes than other members of the public, without an individualized

5 determination to that effect, is contradicted by the presumption of innocence”).

6

i. Identification

7

On the other hand, the government’s interest in accurately identifying the individuals

8 from whom it is taking the DNA, discussed in Kincade, is present here. The government has

9 a strong interest in identifying arrestees. See Pool, 2009 U.S. Dist. WL 2152081, at *7 (“An

10 arrestee’s identity obviously becomes a matter of legitimate state interest”); Jones, 962 F.2d

11 at 306 (“when a suspect is arrested upon probable cause, his identification becomes a matter

12 of legitimate state interest”); Banks, 490 F.3d at 1190 (recognizing the “Government’s

13 interest in accurately identifying suspects who might try to conceal their identities in a

14 variety of ways”). Plaintiffs even acknowledged as much at the motion hearing.

15

Plaintiffs urge, however, that what the government is doing “is not identification; it is

16 investigation for the purposes of inculpation.” Reply at 4. Similarly, the district court in

17 United States v. Mitchell, No. 2:09cr105, 2009 U.S. Dist. LEXIS 103575 at *28 (W.D. Penn.

18 Nov. 6, 2009) held that although the defendant in that case, a pretrial detainee, had “a

19 diminished expectation of privacy in his identity,” “to compare the fingerprinting process and

20 the resulting identification information obtained therefrom with DNA profiling is pure folly”

21 and “oversimplification.” Plaintiffs further assert that the government’s practice of verifying

22 a subject’s identity with fingerprints before taking his DNA (in order to avoid taking

23 duplicate DNA samples) is proof that fingerprints are used for identification, while DNA is

24 used for something else. See Pltfs’ Post-Argument Citations.

25

While this argument has some initial logical appeal, the Ninth Circuit has

26 unequivocally held that what DNA evidence does is identify. See Rise, 59 F.3d at 1559 (“the

27 information derived from the blood sample is . . . an identifying marker unique to the

28 individual from whom the information is derived”); Kincade, 379 F.3d at 837 (“the DNA

15

United States District Court For the Northern District of California

1 profile derived from the defendant’s blood sample establishes only a record of the

2 defendant’s identity”); Kriesel, 508 F.3d at 947 (“tracking . . . identity is the primary

3 consequence of DNA collection”). See also § 295.1(a) (“The Department of Justice shall

4 perform DNA analysis . . . pursuant to this chapter only for identification purposes”). This

5 court has no illusions – nor does it believe that the Ninth Circuit in Rise, Kincade, and

6 Kriesel was either confused or disingenuous– about what “identification” means in this

7 context.

8

Put simply: identification means both who that person is (the person’s name, date of

9 birth, etc.) and what that person has done (whether the individual has a criminal record,

10 whether he is the same person who committed an as-yet unsolved crime across town, etc.).

11 Who the person is can often be checked using fingerprints, but that does not preclude the

12 government from also checking that individual’s identity in other ways. An individual might

13 wear gloves at some point, thwarting fingerprint identification, or wear a mask, thwarting the

14 use of photographs. The more ways the government has to identify who someone is, the

15 better chance it has of doing so accurately. See Proposition 69, Dec. of Purpose, § II (e)

16 (“The state has a compelling interest in the accurate identification of criminal offenders, and

17 DNA testing at the earliest stages of criminal proceedings for felony offenses will help

18 thwart criminal perpetrators from concealing their identities”); see also Amerson, 483 F.3d at

19 87 (discussing “the potentially greater precision of DNA sampling and matching methods”)

20 and Banks, 490 F.3d at 1192 (DNA “more advanced and accurate”). The second component

21 of identity, what the person has done, is no less important. Nor is it new. Plaintiffs could

22 point the Court to no case holding that once an individual has been identified through his

23 fingerprints, the government was barred from running those same fingerprints against crime

24 scene samples for investigative purposes (or from showing individuals’ photographs to

25

26

27

28

16

United States District Court For the Northern District of California

1 victims or witnesses).10 This use was helpfully characterized by one of the government’s

2 declarants as “forensic identification.” See Konzak Decl. at ¶ 9.

3

ii. Solution of Past Crimes

4

Thus, an additional government interest, contributing to the solution of past crimes, is

5 served by taking the DNA of arrestees. Plaintiffs argue that expansion of the United

6 Kingdom’s DNA database to include arrestee information “failed to increase the databank’s

7 efficacy in solving crime.” MPI at 11 (citing Wallace Decl. at ¶¶ 13-26). The government

8 responds that “maintaining arrestee samples resulted in a 74% increase in overall DNA 9 matches.” Opp. at 8 (citing Konzak Decl. at ¶ 1511). Plaintiffs object to this interpretation,

10 Reply at 10-11, but in any case the Court need not rely on UK data.

11

The government has asserted that as of October 31, 2009, California’s DNA Data

12 Bank Program has had 10,664 hits, and that of those hits, 291 have involved arrestee

13
10 Plaintiffs argued instead that even if the initial search is valid (to establish who the person 14 is), running an individual’s DNA profile against otheDr NA profiles in order to inculpate that individual
in a crime (to establish what that person has done)is a second, unreasonable search. In support of this 15 argument they cite to Ferguson v. City of Charleston, 532 U.S. 67 (2001), in which the Supreme Court
held that a state hospital’s test of pregnant patienst’ urine, for the purpose of obtaining evidence of those 16 patients’ cocaine use that was then turned over to law enforcement, was an unreasonable search. That
case is distinguishable. It was not about whether an initial search became invalid when a subsequent, 17 different search was performed; there, the “immediate objective . . . was to generate evidence for law
enforcement purposes.” 532 U.S. at 83. In light of the immediate objective of the search, the Court 18 found that the search did not fit within the “special needs” exception. Id. at 84. Also distinguishable,
and cited by Plaintiffs, is United States v. Mulde,r808 F.2d 1346 (1987), in which the Ninth Circuit held 19 that a private search of an individual’s belongingsby a hotel does not implicate the Fourth Amendment,
but the police’s subsequent chemical analysis of tablets found in those belongings did. The government 20 there argued that the search was permissible either as a search of abandoned property or as part of the
original, private search. 808 F.2d at 1348. The coutrdisagreed, distinguishing the case fromSupreme 21 Court authority permitting “on the spot” fiel d tests of whether a substance was cocaine, because the
chemical analysis “could have revealed an arguably private fact.” Id.at 1348-49. Here, both the initial 22 (who is the person) and subsequent (what have tehy done) search are conducted by the government, and
the subsequent “search” involves the m ere matching of a legitimately-obtained DNA profile against 23 other DNA profiles in a database– n ot a more detailed, more invasive search of the original DNA
sample. Accordingly, this Court finds more relevant the D.C. Circuit’s analysis in Johnson v. Quande,r 24 440 F.3d 489, 498 (D.C. Cir. 2006), holding t hat “the process of m atching one piece of personal
information against governm ent records does not implicate the F ourth Amendment.” T he court 25 specifically held that accessing the DNA profiles in the CODIS database is not a separate search under
the Fourth Amendment, adding that “the consequences of the contrary conclusion would be staggering,” 26 creating “an intolerable burden” on law enforcem ent “if every ‘search’ of an ordinary fi ngerprint
database were subject to Fourth Amendment challenges.” Id. at 499. 27
11 Konzak’s declaration actually states that there was a 74% increase overall in DNA matches 28 over the course of the program, “as a result of the increase in offender sampling and crime scene DNA
activity.” Konzak Decl. at ¶ 15.

17

United States District Court For the Northern District of California

1 submissions. Konzak Decl. at ¶ 12. The government further asserts that through September

2 2009, there have been over 71,400 offender hits within states and over 10,400 hits between

3 states at the National level, about 1,038 of which are to arrestee submissions. Id. at ¶ 13.

4 These statistics suggest, unsurprisingly, that arrestee submissions contribute to the solution of

5 crimes, but not to the same degree as convicted offender submissions.

6

Plaintiffs argue that the government’s interest in the solving of past crimes is

7 undermined, because the arrestee samples create significant backlogs, delaying the analysis

8 of other samples. Reply at 11. But the government maintains that “the average processing

9 time for arrestee samples is currently about 31 calendar days,” and that “the increase in

10 submissions from all adult arrestee collections has not increased our backlog 223%” but that

11 “it has essentially stayed the same.” Konzak Decl. at ¶ 40. Though Plaintiffs might be able

12 to come forward at a later point in the litigation and establish that arrestee testing has created

13 such a backlog that it has wholly undermined the government’s interest in solving past

14 crimes, it has not done so at this stage.

15

iii. Prevention of Future Crimes

16

In addition, the government has articulated an interest in arrestee testing not present in

17 Kincade: the prevention of future crimes. Opp. at 8. The government points to small studies

18 done in Denver, Chicago, and Maryland, each of which focused on a handful of violent

19 repeat offenders, and purported to show that had arrestee testing been done on those

20 criminals early on, their subsequent violent crimes could have been prevented. See

21 Morrissey Decl., Speich Decl., and Powell Decl. Plaintiffs object to this evidence as

22 unreliable, and ask the Court to give it little weight. See Objections. The Court will give

23 these studies little weight. Plaintiffs have taken a closer look at several of the examples in

24 these studies, noting that mandatory testing at these offenders’ first convictions “would have

25 generated the same result.” Reply at 8-9. Though the government might be able to introduce

26 more reliable evidence about the efficacy of arrestee DNA in preventing future crimes, it has

27

28

18

United States District Court For the Northern District of California

1 not done so convincingly at this stage of the litigation. Accordingly this interest is not

2 strong.12

3

D. Conclusion as to Likelihood of Success

4

Arrestees undoubtedly have a greater privacy interest than convicted felons, but

5 Plaintiffs have not shown that that interest outweighs the government’s compelling interest in

6 identifying arrestees, and its interest in using arrestees’ DNA to solve past crimes.

7 Accordingly, based on the evidence presently before the Court, California’s DNA searching

8 of arrestees appears reasonable. Plaintiffs will argue that so holding conflicts with the Ninth

9 Circuit’s decision in Friedman. However, Friedman did not engage in a thorough totality of

10 the circumstances test: it did not consider government interests beyond supervision, nor did it

11 examine the extent of Friedman’s privacy interest. See 580 F.3d at 862-65 (Callahan, J.,

12 dissenting) (dissent, instead, conducted balancing analysis between individual’s privacy

13 interests and government’s legitimate interest in identification). Though Friedman warns that

14 “[n]either the Supreme Court nor our court has permitted general suspicionless, warrantless

15 searches of pre-trial detainees for grounds other than institutional security or other legitimate

16 penological interests,” id. at 857, the Court finds that doing so here– certainly at this stage of

17 the litigation– is proper under the totality of the circumstances test required by Rise, Kincade

18 and Kriesel.

19

2. Irreparable Harm

20

Plaintiffs argue that the inclusion of their DNA profiles in a searchable database

21 constitutes an ongoing violation of their rights. MPI at 13. The government responds that

22 because Plaintiffs have not been convicted of any crime, they could bring a suit under 42

23 U.S.C. § 1983 for damages, which would provide adequate compensation. Opp. at 13 (citing

24 Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)). Nonetheless, “it has long been

25 established that the loss of constitutional freedoms, for even minimal periods of time,

26
12 The government also claims an interest in exonerating the innocent. Opp. at 9, 14. At this 27 stage of the litigation, this interest is not ve ry strong. Though convi cting the right person can
theoretically serve to exonerate (or obviate the riskof investigating and prosecuting) the wrong person, 28 the government has not yet introduced any evidence that the taking of arrestees’ DNA has led to either
an increase in exonerations or a decrease in false accusations/convictions.

19

United States District Court For the Northern District of California

1 unquestionably constitutes irreparable injury.” See Mills v. District of Columbia, 571 F.3d

2 1304, 1312 (D.C. Cir. 2009) (internal quotations omitted). If the Court found that the harm

3 Plaintiffs claim was likely, it would be irreparable. However, because it appears that

4 Plaintiffs are unlikely to prevail on the merits of their constitutional arguments, the Court

5 does not find that they are facing irreparable harm.

6

3. Balance of Equities

7

Plaintiffs assert that the balance of the equities tips in their favor, because “[u]nless

8 they are enjoined, Defendants will invade the privacy of a huge class of persons who enjoy a

9 presumption of innocence and an expectation of privacy in [their DNA profiles],” whereas

10 “[the government] will not suffer any comparable harm.” MPI at 13-14. Plaintiffs further

11 argue that if an injunction is granted, the government “will still continue to identify arrested

12 persons by taking their fingerprints and will continue to be able to collect DNA Samples

13 immediately upon conviction.” Id. at 14.

14

This argument assumes that the DNA sampling of arrestees is an unconstitutional

15 invasion of privacy– a position this Order has not adopted. In addition, Plaintiffs’ argument

16 assumes that fingerprints and DNA are equally effective means of identification. But see

17 Amerson, 483 F.3d at 87 (discussing “the potentially greater precision of DNA sampling and

18 matching methods”); and Banks, 490 F.3d at 1192 (DNA “more advanced and accurate”). It

19 also assumes that the collection of arrestee samples does not increase the DNA databases’

20 efficacy, a position at odds with the data provided by the government. See Konzak Decl. at

21 ¶¶ 12, 13.

22

Most problematic, Plaintiffs’ argument that the government would not suffer

23 comparable harm overlooks the tremendous expense that appears likely if an injunction is

24 granted. The government points to the over $4.9 million it has spent on implementing the

25 statute, Opp. at 15, but that money was apparently spent on increased laboratory space that

26 could be used for other DNA testing even if the injunction was granted, see Konzak Decl. at

27

28

20

United States District Court For the Northern District of California

1 ¶ 17.13 More troubling, although Plaintiffs claim that “Defendants can simply exclude

2 arrestee profiles from their searches,” Reply at 14, they have asked the Court to enjoin

3 Defendants from “seizing, searching, analyzing, or making any use of DNA samples or

4 analysis of [arrestee] DNA samples.” MPI at 1. This would– it would seem– require the

5 government to retrain law enforcement officers across the state,14 research which individuals

6 in the arrestee index have subsequently been convicted of a crime, and remove all other

7 arrestee profiles from CODIS. See Konzak Decl. at ¶¶ 31-34. This cost appears to be

8 significant.

9

In light of these various factors, the balance of the equities tips in the government’s

10 favor.

11

4. Public Interest

12

Plaintiffs argue that “preventing wholesale violations of the Constitution serves the

13 public interest.” MPI at 14. In American Federation of Teachers– West Virginia, AFL-CIO

14 v. Kanawha County Board of Education, 592 F. Supp. 2d 883, 906 (S.D. W. Va. 2009)

15 (internal quotations omitted), the court held that “[a]n injunction would prevent the likely

16 infringement of petitioners’ rights under the Fourth Amendment and upholding constitutional

17 rights surely serves the public interest.” However, here Plaintiffs have not demonstrated a

18 likely infringement of their Fourth Amendment rights. Moreover, the government identifies

19 public interests in (1) swiftly and accurately solving crimes, and (2) seeing the public’s vote

20 honored. Opp. at 13-14. This Order has already addressed the impact of arrestee DNA

21 sampling on the solving of crime, but the public interest in Proposition in 69 is also notable.

22 Whatever the parties or even the Court think of the wisdom of Proposition 69, California

23 voters approved it with 62.1% of the vote. Powell Decl. at ¶ 3, Ex. B. Thus, the public

24 interest likely favors the government.

25

26

13 The government has also apparently spentover $3.1 million to upgrade the number and types

of instruments used at the labs, id. at ¶ 25, though again, that investment would presumably not be in

27 vain.

28

14 The government has reportedly spent $252,000 trani ing law enforcement as to how to conduct

DNA testing (and presumably, on whom to conduct such testing). See Willie Decl. at ¶ 6.

21

United States District Court For the Northern District of California

1

CONCLUSION

2

Plaintiffs have not demonstrated that they are likely to succeed on the merits, or that

3 the balance of the equities tips in their favor. The Court therefore DENIES the motion for a

4 preliminary injunction.

5

IT IS SO ORDERED.

6

7 Dated: December 23, 2009 8

CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

G:\CRBALL\2009\4779\order re PI.wpd

22

 </s> Case3:09-cv-04779-CRB Document81 Filed01/07/10 Page1 of 3

1 PETER C. MEIER (SB# 179019) petermeier@paulhastings.com ERIC A. LONG (SB# 244147) ericlong@paulhastings.com
2 KATHARINE CHAO (SB# 247571) katharinechao@paulhastings.com SARAH O. CHANG (SB# 257921) sarahchang@paulhastings.com
3 PAUL, HASTINGS, JANOFSKY & WALKER LLP 55 Second Street
4 Twenty-Fourth Floor San Francisco, CA 94105-3441
5 Telephone: (415) 856-7000 Facsimile: (415) 856-7100
6 MICHAEL T. RISHER (SB# 191627) mrisher@aclunc.org
7 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC.
8 39 Drumm Street San Francisco, CA 94111
9 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
10 Attorneys for Plaintiffs
11 ELIZABETH AIDA HASKELL, REGINALD ENTO, JEFFREY PATRICK LYONS, JR., and AAKASH DESAI,
12 on behalf of themselves and others similarly situated

13

14

UNITED STATES DISTRICT COURT

15

FOR THE NORTHERN DISTRICT OF CALIFORNIA

16

17 ELIZABETH AIDA HASKELL, REGINALD ENTO, JEFFREY PATRICK
18 LYONS, JR., and AAKASH DESAI, on behalf of themselves and others similarly
19 situated,

20

Plaintiffs,

21

vs.

Civil Case No. C 09-4779 CRB CLASS ACTION
STIPULATION DISMISSING DEFENDANT MICHAEL HENNESSEY PURSUANT TO FED. R. CIV. P. 41(a)(1)(A)(ii)

22 EDMUND G. BROWN, JR., Attorney General of California; EVA
23 STEINBERGER, Assistant Bureau Chief for DNA Programs, California Department
24 of Justice; and MICHAEL HENNESSEY, Sheriff, San Francisco County,
25 Defendants.
26

Honorable Charles R. Breyer Complaint Filed: October 7, 2009 First Am. Complaint Filed: December 1, 2009

27

28

CASE NO. C 09-4779 CRB

STIPULATION DISMISSING DEFENDANT HENNESSEY

Case3:09-cv-04779-CRB Document81 Filed01/07/10 Page2 of 3

1

Plaintiffs Elizabeth Aida Haskell, Reginald Ento, Jeffrey Patrick Lyons, Jr., and Aakash

2 Desai, on behalf of themselves and others similarly situated (“Plaintiffs”); Defendants Edmund G.

3 Brown Jr., Attorney General of California, and Eva Steinberger, Assistant Bureau Chief for DNA

4 Programs, California Department of Justice (“State Defendants”); and Defendant Michael

5 Hennessey, Sheriff for the County of San Francisco (“City Defendant”) (collectively “All

6 Defendants”), by and through their counsel, hereby agree and stipulate as follows:

7

RECITALS

8

1.

Plaintiffs filed a Class Action Complaint for Declaratory and Injunctive Relief on

9 October 7, 2009 (the “Complaint”). The Complaint challenges a provision of California law that

10 requires collection of DNA samples from individuals arrested or charged with any felony at the

11 time of their arrest. The Complaint alleges that this practice violates the Fourth Amendment as

12 well as substantive and procedural due process as protected by the Fourteenth Amendment.

13

2.

Plaintiffs filed a First Amended Complaint on December 1, 2009.

14

3.

All parties now agree that venue in this District is proper and that no local law

15 enforcement agency is a necessary party to this action because all such agencies will be bound by

16 any injunction against the State Defendants under Fed. R. Civ. P. 65. Accordingly, the parties

17 have agreed that Defendant Hennessey should therefore be voluntarily dismissed without

18 prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii).

19

NOW THEREFORE, Plaintiffs and All Defendants hereby stipulate to the following:

20

AGREEMENT

21

Plaintiffs hereby voluntarily dismiss Defendant Hennessey without prejudice pursuant to

22 Fed. R. Civ. P. 41(a)(1)(A)(ii). The Parties further agree that in the event Plaintiffs move in the

23 future to name Mr. Hennessey as a Defendant in this action (or name him in another action

24 challenging the collection of DNA), the provisions of Fed. R. Civ. P. 41(d) will not apply.

25

26

27

28

CASE NO. C 09-4779 CRB

-1-

STIPULATION DISMISSING

DEFENDANT HENNESSEY

Case3:09-cv-04779-CRB Document81 Filed01/07/10 Page3 of 3

1 DATED: January 7, 2010

PAUL, HASTINGS, JANOFSKY & WALKER LLP

2

By:

/s/ Eric A. Long

3

Eric A. Long

Attorneys for Plaintiffs

4

ELIZABETH AIDA HASKELL, REGINALD ENTO,

JEFFREY PATRICK LYONS, JR., and AAKASH

5

DESAI, on behalf of themselves and others similarly

situated 6

7 DATED: January 7, 2010

OFFICE OF THE ATTORNEY GENERAL

8 9 10 11 12 13 14 DATED: January 7, 2010 15 16 17 18

By:

/s/ Daniel J. Powell

Daniel J. Powell

Deputy Attorney General

Attorneys for Defendants EDMUND G. BROWN JR., Attorney General of California and EVA STEINBERGER, Assistant Bureau Chief for DNA Programs, California Department of Justice

CITY AND COUNTY OF SAN FRANCISCO

By:

/s/ Sherri Sokeland Kaiser

Sherri Sokeland Kaiser

Deputy City Attorney

Attorney for Defendant MICHAEL HENNESSEY, Sheriff for the County of San Francisco

19

20

I attest that concurrence in the filing of this document has been obtained from Daniel J. Powell, attorney for Defendants Brown and Steinberger, and Sherri Sokeland Kaiser, attorney for

21 Defendant Hennessey.

22 By: /s/ Eric A. Long

23

Eric A. Long Paul, Hastings, Janofsky & Walker LLP

24 Attorneys for Plaintiffs

25

26 LEGAL_US_W # 63507252.1 27

28

CASE NO. C 09-4779 CRB

-2-

STIPULATION DISMISSING

DEFENDANT HENNESSEY

 </s> CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea1goef: 519of 59

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ELIZABETH AIDA HASKELL;



REGINALD ENTO; JEFFREY PATRICK

LYONS, JR.; AAKASH DESAI, on

behalf of themselves and others

similarly situated, Plaintiffs-Appellants,

No. 10-15152

v.

 D.C. No. 3:09-cv-04779-CRB

KAMALA D. H ARRIS,* Attorney General of California; E VA

OPINION

STEINBERGER, Assistant Bureau

Chief for DNA Programs,

California Department of Justice,

 Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted July 13, 2010—San Francisco, California
Submission Withdrawn June 2, 2011
Resubmitted November 1, 2011
Filed February 23, 2012

*Kamala D. Harris is substituted for her predecessor, Edmund G. Brown, as Attorney General of California, pursuant to Fed. R. App. P. 43(c)(2).
1949

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea2goef: 529of 59

1950

HASKELL v. H ARRIS

Before: William A. Fletcher and Milan D. Smith, Jr., Circuit Judges, and James Dale Todd, Senior District Judge.**

Opinion by Judge Milan D. Smith, Jr.; Dissent by Judge William A. Fletcher

**The Honorable James Dale Todd, Senior District Judge for the U.S. District Court for Western Tennessee, sitting by designation.

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea3goef: 539of 59

1952

HASKELL v. H ARRIS

COUNSEL
Michael T. Risher (argued), American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, Cali-

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea4goef: 549of 59

HASKELL v. H ARRIS

1953

fornia, and Peter C. Meier and Eric A. Long, Paul, Hastings, Janofsky & Walker LLP, San Francisco, California, for the plaintiffs-appellants.

Daniel J. Powell, Deputy Attorney General (argued), Kamala D. Harris, Attorney General of California, James M. Humes, Chief Deputy Attorney General, Jonathan K. Renner, Senior Assistant Attorney General, Constance L. LeLouis, Supervising Deputy Attorney General, and Enid A. Camps, Deputy Attorney General, San Francisco, California, for the defendants-appellees.

Daniel J. Broderick, Federal Defender, David Porter, Assistant Federal Defender, Rachelle Barbour, Research and Writing Attorney, Sacramento, California, and John T. Philipsborn, San Francisco, California, for amici curiae Federal Defender of the Eastern and Southern Districts of California, California Attorneys for Criminal Justice, and the National Association of Criminal Defense Lawyers.

Jonathan S. Franklin, Tillman J. Breckenridge, and Mark T. Emery, Fulbright & Jaworski L.L.P., Washington, D.C., for amicus curiae DNA Saves.

Anne Marie Schubert, Albert C. Locher, Jan Scully, and W. Scott Thorpe, Sacramento, California, for amicus curiae California District Attorneys Association.

OPINION
M. SMITH, Circuit Judge:
Plaintiffs-Appellants Elizabeth Aida Haskell, Reginald Ento, Jeffrey Patrick Lyons, Jr., and Aakash Desai (collectively, Plaintiffs) appeal the district court’s denial of their motion for a preliminary injunction to stop the enforcement of

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea5goef: 559of 59

1954

HASKELL v. H ARRIS

the 2004 Amendment, infra, to California’s DNA and Forensic Identification Data Base and Data Bank Act of 1998 (DNA Act), Cal. Penal Code § 296(a)(2)(C), which amendment requires law enforcement officers to collect DNA samples from all adults arrested for felonies. They contend that the 2004 Amendment violates their Fourth Amendment right to be free of unreasonable searches and seizures.

We assess the constitutionality of the 2004 Amendment by considering the “totality of the circumstances, ” balancing the arrestees’ privacy interests against the Government’s need for the DNA samples . Law enforcement officials collect a DNA sample from a buccal swab of the arrestee’s mouth, a de minimis intrusion that occurs only after a law enforcement officer determines there is probable cause to believe that the individual committed a felony. Law enforcement officers analyze only enough DNA information to identify the individual, making DNA collection substantially similar to fingerprinting, which law enforcement officials have used for decades to identify arrestees, without serious constitutional objection. Moreover, state and federal statutes impose significant criminal and civil penalties on persons who misuse DNA information. On the other side of the balance, DNA analysis is an extraordinarily effective tool for law enforcement officials to identify arrestees, solve past crimes, and exonerate innocent suspects. After weighing these factors, we conclude that the Government’s compelling interests far outweigh arrestees’ privacy concerns. Thus, we hold that the 2004 Amendment does not violate the Fourth Amendment, and we affirm.

BACKGROUND

In 1998, the California legislature enacted the DNA Act, Cal. Stat. Ch. 696, § 2, which requires DNA testing of individuals convicted of certain offenses. The DNA Act is intended to aid local, state, and federal law enforcement agencies “in the expeditious and accurate detection and prosecution of individuals responsible for sex offenses and other

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea6goef: 569of 59

HASKELL v. H ARRIS

1955

crimes, the exclusion of suspects who are being investigated for these crimes, and the identification of missing and unidentified persons, particularly abducted children. ” Cal. Penal Code § 295(c).

Law enforcement use of California’s DNA database has proven remarkably effective. Since 1998, California law enforcement officials have identified more than 10,000 offenders by using their DNA. To build on the positive results achieved through the implementation of the DNA Act, in 2004, California voters approved Proposition 69, the DNA Fingerprint, Unsolved Crime and Innocence Protection Act (the 2004 Amendment), which expanded the DNA Act’s testing requirement to include “any adult person arrested or charged with any felony offense . . . immediately following arrest, or during the booking . . . process or as soon as administratively practicable after arrest, but, in any case, prior to release on bail or pending trial or any physical release from confinement or custody. ” Cal. Penal Code §§ 296(a)(2)(C); 296.1(a)(1)(A). Proposition 69 cited the “critical and urgent need to provide law enforcement officers and agencies with the latest scientific technology available for accurately and expeditiously identifying, apprehending, arresting, and convicting criminal offenders and exonerating persons wrongly suspected or accused of crime. ”

The 2004 Amendment became effective on January 1, 2009. Officers usually collect the DNA sample from a buccal swab that is gently swept along an arrestee’s inner cheek. An arrestee’s failure to cooperate with the collection is a misdemeanor. Cal. Penal Code § 298.1(a).

Once officers collect the DNA sample, it is sent to a State laboratory, which creates a DNA profile of the arrestee. The laboratory creates a profile only for identification purposes by analyzing thirteen genetic markers known as “junk DNA,” which are not linked to any known genetic traits. The laboratory uses “short tandem repeat ” technology (STR), which is

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea7goef: 579of 59

1956

HASKELL v. H ARRIS

the repeated sequence of base pairs at each of the thirteen markers. The variation in the number of sequences at each marker creates a unique profile that law enforcement uses for identification. “One person might have two copies of the first marker that are four and eight repeats long, copies of the second that are eleven and twenty-three copies long, copies of the third that are three and ten copies long, and so on through all thirteen markers. ” United States v. Mitchell , 652 F.3d 387,401 (3d Cir. 2011) (en banc) (quoting Henry T. Greely et al., Family Ties: The Use of DNA Offender Databases to Catch Offenders’ Kin , 34 J.L. Med. & Ethics 248, 250 (2006)). The odds that two people share identical sequences on all thirteen markers are “one in several hundred billion. ” Id.

The State laboratory then uploads the DNA profile into the Combined DNA Index System (CODIS), a nationwide collection of federal, state, and local DNA profiles. “Beyond the STR-generated DNA profile, CODIS records contain only an identifier for the agency that provided the DNA sample, a specimen identification number, and the name of the personnel associated with the analysis. ” United States v. Kincade , 379 F.3d 813, 819 n.8 (9th Cir. 2004) (en banc) (citing H.R. Rep. No. 106-900(I), at *27 (2000)).

When an arrestee’s DNA profile is uploaded into CODIS, it is compared to the DNA samples collected from crime scenes. If the database reveals a “hit,” the offender DNA sample is tested again for confirmation. If the test confirms a match, CODIS informs the laboratory that submitted the crime scene sample of the identity of the matching DNA profile, and the laboratory sends that information to law enforcement.

Only law enforcement officials are permitted to access a DNA profile, and they may only use the DNA to identify criminal suspects. Cal. Penal Code §§ 295.1(a); 299.5(f). They may not use the sample to reveal other traits, such as

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea8goef: 589of 59

HASKELL v. H ARRIS

1957

medical conditions. Unauthorized access or disclosure of DNA information is punishable under State law by up to a year in prison and a fine of up to $50,000. Cal. Penal Code § 299.5(i). Federal law imposes similar penalties for unauthorized use of, or access to, CODIS. See 42 U.S.C. § 14133(c), 14135e(c).

An arrestee who is not ultimately convicted may ask either the California Department of Justice or the trial court to order the sample destroyed and the DNA profile expunged. Cal. Penal Code § 299. The individual must await the expiration of the statute of limitations for the crime(s) for which he or she was charged before requesting expungement, unless prosecutors dismiss the charges sooner. The court may order the expungement 180 days after the arrestee’s request. Id.

After the police determined that probable cause existed in each case, Plaintiffs were arrested for felonies in California and provided DNA samples. However, they were never convicted of the felonies for which they were charged. On October 7, 2009, Plaintiffs filed a class-action complaint against the State officials who administer the DNA collection system. The class consists of “persons who are required to provide a DNA sample pursuant to § 296(a)(2)(C) solely as a result of being arrested for a felony. ” Their lawsuit, filed under 42 U.S.C. § 1983, alleges that the 2004 Amendment violates their Fourth Amendment rights to be free from unreasonable searches and seizures, and their Fourteenth Amendment due process rights.1 They then sought a preliminary injunction to enjoin California from collecting DNA samples from people who were arrested, but not convicted.

The district court provisionally certified the class. On December 23, 2009, the district court denied the preliminary injunction, concluding that, as a matter of law, Plaintiffs had

1In their appellate filings, Plaintiffs have merged their Fourteenth Amendment claim into their Fourth Amendment claim.

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea9goef: 599of 59

1958

HASKELL v. H ARRIS

not demonstrated a likelihood of success on the merits because California’s DNA collection requirement does not violate the Fourth Amendment. The district court also concluded that Plaintiffs did not allege irreparable harm, the balance of equities tipped in favor of the State, and injunctive relief likely would not be in the public interest. Plaintiffs timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1292(a)(1). We review the district court’s factual determinations for clear error. Klein v. City of San Clemente, 584 F.3d 1196, 1200 (9th Cir. 2009). We review the district court’s application of the preliminary injunction balancing test for abuse of discretion and the legal conclusions de novo. Stormans, Inc. v. Selecky , 586 F.3d 1109, 1119 (9th Cir. 2009). “To determine whether the district court abused its discretion, the reviewing court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. ” DISH Network Corp. v. FCC , 653 F.3d 771, 776 (9th Cir. 2011) (citation and internal quotation marks omitted).

DISCUSSION

A federal court may grant a preliminary injunction only if the plaintiff establishes four elements: (1) likelihood of success on the merits; (2) likelihood of suffering irreparable harm absent a preliminary injunction; (3) the balance of equities tips in the plaintiff’s favor; and (4) injunctive relief is in the public interest. Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20 (2008). If we agree with the district court’s conclusion that Plaintiffs have not satisfied their burden of establishing the first element, “we need not consider the remaining three.” DISH Network Corp., 653 F.3d at 777; see also Advertise.com, Inc. v. AOL Adver., Inc., 616 F.3d 974, 982 (9th Cir.

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea1g0eo: f1509of 59

HASKELL v. H ARRIS

1959

2010); Doe v. Reed, 586 F.3d 671, 681 n.14 (9th Cir. 2009), aff’d 130 S. Ct. 2811 (2010).

The likelihood of Plaintiffs’ success on the merits hinges on whether California’s mandatory DNA collection requirement under the 2004 Amendment, as applied to felony arrestees who have not been convicted, violates the Fourth Amendment. Plaintiffs challenge the 2004 Amendment, California Penal Code § 296(a)(2)(C), both facially and as applied to them. To successfully mount a facial challenge, the Plaintiffs “must establish that no set of circumstances exists under which the [2004 Amendment] would be valid, ” United States v. Salerno, 481 U.S. 739, 745 (1987), while their as-applied challenge only requires a demonstration that the 2004 Amendment is unconstitutional as applied to the Plaintiffs. Thus, if we find that the 2004 Amendment is constitutional as applied to the provisionally certified class, the facial challenge also fails.

I. Analytical framework

[1] The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. ” U.S. Const. amend. IV (emphasis added).

[2] It is undisputed that a compelled DNA extraction is a “search” for Fourth Amendment purposes. See, e.g., Kincade, 379 F.3d at 821 n.15 ( “The compulsory extraction of blood for DNA profiling unquestionably implicates the right to personal security embodied in the Fourth Amendment, and thus constitutes a ‘search’ within the meaning of the Constitution.”). The question before us is whether California’s DNA collection requirement under the 2004 Amendment is an unreasonable search. In line with the Constitution’s plain text, “[t]he touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea1g1eo: f1519of 59

1960

HASKELL v. H ARRIS

security.’ ” Pennsylvania v. Mimms , 434 U.S. 106, 108-09 (1977) (quoting Terry v. Ohio , 392 U.S. 1, 19 (1968)).

We apply the “totality of the circumstances ” balancing test to determine whether a warrantless search is reasonable. See Samson v. California, 547 U.S. 843, 848 (2006) (applying totality of the circumstances test to determine whether a mandatory search as a condition of parole violates the Fourth Amendment); United States v. Kriesel , 508 F.3d 941, 946-47 (9th Cir. 2007) (applying totality of the circumstances test to mandatory DNA collection from convicted federal felons). Under the totality of the circumstances test, “[w]hether a search is reasonable is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Samson, 547 U.S. at 848 (citation and internal quotation marks omitted).

Plaintiffs contend that we may only consider the totality of the circumstances if we first find that the 2004 Amendment satisfies a “special needs” exception to the Fourth Amendment. In Kriesel, we explicitly rejected the special needs test when we applied the totality of the circumstances analysis to the mandatory DNA collection requirement without first determining whether a special need existed. 508 F.3d at 946. Although Kriesel involved DNA collection from convicted felons, Plaintiffs cite no precedent that would require the “special needs” test for DNA collection from arrestees to assess the constitutionality of a search conducted for law enforcement purposes. Interestingly, the Supreme Court even applied the totality of the circumstances test to determine whether strip searches of pretrial detainees were constitutional. Bell v. Wolfish, 441 U.S. 520, 559-60 (1979); see also Mitchell, 652 F.3d at 403 (selecting the totality of the circumstances analysis over the special needs test to assess the constitutionality of a federal requirement that pretrial detainees provide DNA samples as a condition of release). Accordingly,

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea1g2eo: f1529of 59

HASKELL v. H ARRIS

1961

we apply only the totality of the circumstances analysis to Plaintiffs’ challenge to the 2004 Amendment.

II. Past cases involving compelled DNA testing

[3] The constitutionality of California’s requirement that all felony arrestees provide DNA samples is a question of first impression for us. 2 However, in four cases, we have applied the totality of the circumstances analysis and upheld mandatory DNA collection, from persons who have been convicted of felonies.

In Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995), we upheld a state law that required certain convicted felons to provide DNA blood samples. Applying a totality of the circumstances analysis, we concluded that the statute did not violate the

2Two recent opinions addressed the constitutionality of such requirements, but we are not bound by either.
In United States v. Pool , 621 F.3d 1213 (9th Cir. 2010), a three-judge panel of our court upheld a federal statute that required DNA collection as a condition of pre-trial release. The case was called en banc, thereby vacating the panel opinion. On September 19, 2011, before an en banc panel heard argument, the appeal was dismissed as moot because the defendant had pleaded guilty. Because the panel opinion was vacated, we do not rely on Pool’s reasoning.
The California Court of Appeal, in People v. Buza , 197 Cal. App. 4th 1424 (Ct. App. 2011), held that California’s DNA Act’s requirement for felony arrestees to provide their DNA under the 2004 Amendment violates the United States Constitution. We are not bound by Buza for three reasons. First, federal courts are not required to follow state courts’ interpretations of federal law. See Congoleum Corp. v. DLW Aktiengesellschaft , 729 F.2d 1240, 1242 (9th Cir. 1984). Second, Buza relies primarily on Ninth Circuit dissents, not the controlling, majority opinions. Finally, the California Supreme Court granted review of Buza on October 19, 2011, thereby automatically depublishing Buza. Cal. Rules of Court 8.1105(e); 8.1115. “Although we are not precluded from considering unpublished state court opinions, we are not bound by them either. ” Nunez by Nunez v. City of San Diego , 114 F.3d 935, 943 n.4 (9th Cir. 1997) (internal citation omitted).

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea1g3eo: f1539of 59

1962

HASKELL v. H ARRIS

Fourth Amendment because of “the reduced expectations of privacy held by persons convicted of one of the felonies to which [the statute] applies, the blood extractions’ relatively minimal intrusion into these persons’ privacy interests, the public’s incontestable interest in preventing recidivism and identifying and prosecuting murderers and sexual offenders, and the likelihood that a DNA data bank will advance this interest[.]” Id. at 1562.

In Kincade, we upheld a requirement that people convicted of certain serious federal felonies provide DNA blood samples. 379 F.3d at 840. The plurality of the en banc court applied the totality of the circumstances analysis and concluded that the compelled DNA collection “can only be described as minimally invasive — both in terms of the bodily intrusion it occasions, and the information it lawfully produces.” Id. at 838. On the other side of the balancing test, the plurality concluded that the DNA collection helps ensure that a parolee complies with requirements of release, reduces recidivism, and “helps bring closure to countless victims of crime who long have languished in the knowledge that perpetrators remain at large. ” Id. at 839.

Similarly, in Kriesel, we upheld an amendment to the federal DNA collection act, which requires DNA collection from all persons convicted of federal felonies. We held that, under the totality of the circumstances, the statute is constitutional “because the government’s significant interests in identifying supervised releasees, preventing recidivism, and solving past crimes outweigh the diminished privacy interests that may be advanced by a convicted felon currently serving a term of supervised release.” 508 F.3d at 950.

Most recently, in Hamilton v. Brown , 630 F.3d 889 (9th Cir. 2011), we held that California’s requirement that prison inmates must provide blood samples for DNA identification comports with the Fourth Amendment.

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea1g4eo: f1549of 59

HASKELL v. H ARRIS

1963

Rise, Kincade, Kriesel, and Hamilton involved DNA searches of people who have been convicted of felonies. We acknowledge that convicted persons have lesser privacy expectations than persons who have only been arrested for felonies. See United States v. Scott , 450 F.3d 863, 873 (9th Cir. 2006) (holding that a defendant “out on his own recognizance before trial ” has privacy interests “far greater than a probationer’s.”). However, the general principles outlined in these cases are instructive for our totality of the circumstances analysis.

III. Friedman v. Boucher

Before applying the totality of the circumstances analysis to the 2004 Amendment, we must address Plaintiffs’ claim that Friedman v. Boucher , 580 F.3d 847 (9th Cir. 2009) requires us to find, as a matter of law, that the 2004 Amendment is unconstitutional.

In Friedman, plaintiff Kenneth Friedman pled guilty in Montana to sexual intercourse without consent, in 1980. Id. at 851. He was released from prison in 2001, at which point he was not on parole or otherwise under state supervision. Montana law required Friedman to submit a DNA sample, but he never did. In March 2003, after he had moved to Las Vegas, Friedman was incarcerated as a pre-trial detainee on unrelated charges, and, at the direction of a deputy district attorney, a police detective forced Friedman to provide DNA via a buccal swab. Id. No Nevada statute authorized the collection of DNA, nor were there any limits on the use of the information derived from Friedman’s DNA. Friedman sued under 42 U.S.C. § 1983, alleging a violation of his Fourth Amendment rights. The district court found that the defendants had qualified immunity and dismissed the case. Id.

We found that the Montana statute did not provide Nevada police with authority to collect Friedman’s DNA sample, nor did the search constitute a “special need” that is exempt from

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea1g5eo: f1559of 59

1964

HASKELL v. H ARRIS

the Warrant Clause. Id. at 853-54. Although we did not explicitly apply the totality of the circumstances analysis, we briefly assessed the “reasonableness” of the Nevada officer’s actions and distinguished the case from Kincade and Kriesel because Friedman was not on parole or otherwise under police supervision. Id. at 857-58. Accordingly, we reversed the district court, concluding:

The warrantless, suspicionless, forcible extraction of a DNA sample from a private citizen violates the Fourth Amendment. The actions of the officers were not justified under the ‘special needs’ exception, reliance on an extraterritorial statute, or on general Fourth Amendment principles. The search and seizure of Friedman’s DNA violated the Constitution.

Id. at 858.

Although Friedman contains very broad dicta that Plaintiffs have construed as requiring us to find that all DNA collection from felony arrestees is per se unconstitutional, its holding is expressly limited to the unique set of facts in that case. See Friedman, 580 F.3d at 851 ( “Because the forcible taking of the DNA sample under these circumstances violated Friedman’s clearly established Fourth Amendment rights, we reverse.”) (emphasis added) . Thus, Friedman requires us to find the 2004 Amendment unconstitutional only if we conclude that the circumstances of that case are sufficiently similar to the facts here. We conclude that Friedman differs significantly from this case for five reasons.

First, the DNA collection in Friedman was conducted at the whim of one deputy district attorney, acting without any statutory authority. Although the Las Vegas police attempted to collect the DNA under the Montana statute, we held that they were not allowed to do so because the Montana statute did not apply extraterritorially. See Friedman, 580 F.3d at 854 (“Defendants were Nevada officials searching a Nevada citi-

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea1g6eo: f1569of 59

HASKELL v. H ARRIS

1965

zen in the state of Nevada for Nevada law enforcement purposes. They are not entitled to justify their search with a Montana statute.”) In contrast, the DNA collected in California from the Plaintiffs was approved in a statewide ballot referendum, which is “a basic instrument of democratic government[.]” Eastlake v. Forest City Enters, Inc. , 426 U.S. 668, 679 (1976); see also Southern Alameda Spanish Speaking Org. v. City of Union City , 424 F.2d 291, 294 (9th Cir. 1970) (describing the referendum as “an exercise by the voters of their traditional right through direct legislation to override the views of their elected representatives as to what serves the public interest.”). Millions of California voters considered the reasonableness of collecting DNA from arrestees, in stark contrast to the search in Friedman.

Second, the police in Friedman singled out one individual for a search. In contrast, the California DNA Act is programmatic and applies to all felony arrestees. California police officers lack any discretion to choose which individuals are subject to DNA collection. Because officers in California cannot choose the subjects of DNA collection, there is far less potential for abuse or arbitrary action. “An essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents.” Skinner v. Ry Labor Executives’ Ass’n, 489 U.S. 602, 621-22 (1989). “[S]tandardized criteria . . . or [an] established routine” can prevent a search from being “a ruse for a general rummaging in order to discover incriminating evidence. ” Florida v. Wells, 495 U.S. 1, 4 (1990); see also United States v. Weikert, 504 F.3d 1, 14 (1st Cir. 2007) ( “Courts have acknowledged that the presence of such discretion affects the balancing of interests[.]”).

Third, the detective “forced Friedman’s jaw open and forcefully took a buccal swab from the inside of Friedman’s mouth.” Friedman, 580 F.3d at 851. This use of force weighed heavily in our reasonableness analysis. Id. at 856-57.

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea1g7eo: f1579of 59

1966

HASKELL v. H ARRIS

In contrast, California arrestees typically swipe the buccal swab along their own mouths; thus law enforcement officials do not usually use force. Although the 2004 Amendment allows law enforcement officials to compel the taking of DNA samples, a supervisor must first provide written approval for the use of force, and the force must “be preceded by efforts to secure the voluntary compliance with this section.” Cal. Penal Code § 298.1(c)(1)(C).

Fourth, the California DNA Act imposes criminal penalties on people who misuse DNA information, Cal. Penal Code § 299.5(i); Nevada had no such safeguards because no statute authorized the DNA collection. Friedman’s DNA theoretically could have been accessed by anyone and used for any purpose, not just identification. In Rise, the restrictions on access to DNA information weighed in favor of finding the statute reasonable. 59 F.3d at 1561.

Finally, the California DNA Act is clearly intended to allow law enforcement officials to identify criminal suspects, a purpose that we expressly approved in Rise. See 59 F.3d at 1560 (“[E]veryday ‘booking’ procedures routinely require even the merely accused to provide fingerprint identification, regardless of whether investigation of the crime involves fingerprint evidence.”). It is unclear what purpose the DNA collection in Friedman was intended to serve because it was not authorized by any Nevada statute or regulation. In a recent en banc opinion upholding a federal requirement for DNA collection as a condition of pretrial release, the Third Circuit declined to follow Friedman because it “did not consider the identification purpose of DNA samples[.] ” Mitchell, 652 F.3d at 413 n.23. We agree with the Third Circuit’s reasoning on this point.

Our dissenting colleague claims that Friedman “requires us to hold that Proposition 69 violates the Fourth Amendment, ” yet he glosses over the significant differences we cite between that case and this one. The search in Friedman raised far more

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea1g8eo: f1589of 59

HASKELL v. H ARRIS

1967

significant Fourth Amendment concerns than does the case before us because there was no statutory authorization for the search, authorities singled out one individual, and there were no restrictions on the access to, or use of, the DNA information. Accordingly, the “reasonableness” analysis of Friedman is inapposite here, its holding does not bind us, and we proceed to apply a totality of the circumstances test to the specific facts of this case.

IV. Totality of the circumstances

In assessing the totality of the circumstances, we balance the individual’s privacy interests against the Government’s interests in prison administration and law enforcement. Samson, 547 U.S. at 848.

A. Felony arrestees’ privacy interests

The 2004 Amendment does not provide the Government carte blanche to take buccal swabs from anyone and everyone. It applies only to persons arrested on suspicion of having committed a felony. Before individuals can be required to give a buccal swab DNA sample under the 2004 Amendment, a law enforcement officer must determine that there is probable cause to suspect that person of having committed a felony.

Even critics of mandatory DNA sampling concede that a felony arrestee has a significantly diminished expectation of privacy. See Kincade, 379 F.3d at 864 (Reinhardt, J., dissenting) (“Arrestees’ privacy interests, too, appear to be significantly reduced.”). Upon arrest, individuals are often booked and placed in a jail cell pending arraignment or bail, and at that point they are typically subjected to numerous degrading physical and emotional intrusions. They may be subjected to visual body cavity searches, Bell, 441 U.S. at 558 & n.39 (upholding searches where male inmates “must lift [their] genitals and bend over to spread [their] buttocks for visual inspection” and “[t]he vaginal and anal cavities of female

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea1g9eo: f1599of 59

1968

HASKELL v. H ARRIS

inmates also are visually inspected ”); Bull v. City & Cnty. of San Francisco, 595 F.3d 964, 974-75 (9th Cir. 2010) (en banc) (same); be monitored by guards of the opposite sex while they shower and use the toilet, Johnson v. Phelan , 69 F.3d 144, 145 (7th Cir.1995); be restrained and peppersprayed, Garrett v. Athens-Clarke Cnty., Ga., 378 F. 3d 1274, 1278 (11th Cir. 2004); have their telephone access restricted, Valdez v. Rosenbaum , 302 F.3d 1039, 1048-49 (9th Cir. 2002); occasionally be housed with violent detainees who leave them “with facial injuries that require[ ] surgery, Schoelch v. Mitchell , 625 F.3d 1041, 1043 (8th Cir. 2010); and be “in lockdown for as much as 23½ hours a day, always shackled in chains, even when taking a shower or making a phone call, and rarely being allowed to see daylight and breathe fresh air.” Jeff German, Conditions at jail ‘harsh’ but court can’t change them, Las Vegas Sun (Oct. 28, 2008). The dissent suggests, without any authority for his claim, that security interests and other exigent circumstances allow these privacy intrusions, but not DNA sampling. Just as such intrusive jail-related conditions could not lawfully be imposed on ordinary citizens, neither does the 2004 Amendment impose the taking of buccal DNA swabs from ordinary citizens. 3

We evaluate Plaintiffs’ allegations that the 2004 Amendment is unreasonable against this backdrop of diminished privacy rights. We evaluate two distinct claims of privacy intrusion: the physical collection of the DNA, and the analysis of the information contained in that sample.

3Plaintiffs contend that, because approximately one-third of arrestees are never convicted, the 2004 Amendment results in the Government’s maintaining a database of DNA profiles of innocent citizens. This argument ignores the fact that an arrestee who is not convicted may ask the trial court to expunge the DNA profile from the database. Cal. Penal Code § 299(b). This process effectively addresses Plaintiffs’ concerns that California will build a database of DNA profiles of people who are ultimately found innocent.

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea2g0eo: f2509of 59

HASKELL v. H ARRIS 1. The physical intrusiveness of the search

1969

[4] Nearly half a century ago, the Supreme Court upheld as “reasonable” a hospital’s extraction of a blood sample, which was done “[a]t the direction of a police officer ” who was investigating a person suspected of driving under the influence. Schmerber v. California , 384 U.S. 757, 758, 771 (1966). See also Skinner, 489 U.S. at 616 (“[I]t is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable.”) . Like the Plaintiffs in this case, the suspect in Schmerber had not yet been convicted of a crime.

[5] The typical modern DNA collection procedure—the buccal swab—is far less invasive than the blood test approved in Schmerber. In the buccal swab DNA sampling, a cotton swab is briefly inserted into the person’s mouth; in the typical blood extraction (such as the one addressed in Schmerber), a needle must be inserted into a blood vessel for a perceptible amount of time. The buccal swab cannot seriously be viewed as an unacceptable violation of a person’s bodily integrity. 4 See United States v. Amerson , 483 F.3d 73, 84 n.11 (2d Cir. 2007) (“[A] cheek swab can be taken in seconds without any discomfort.”); Jules Epstein, “Genetic Surveillance” — The Bogeyman Response to Familial DNA Investigations , 2009 U. Ill. J.L. TECH & POL’Y 141, 152 (2009) ( “The taking of bodily material for DNA testing is perhaps the least intrusive of all seizures — it involves no penetration of the skin, pain, or substantial inconvenience.”). Moreover, California law enforcement officers typically allow arrestees to perform the buccal swab collection on themselves, further minimizing the physical privacy intrusion.

4As in Schmerber, the parties in this case are not among “the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing. . . . We need not decide whether such wishes would have to be respected. ” 384 U.S. at 771.

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea2g1eo: f2519of 59

1970

HASKELL v. H ARRIS

[6] In short, the physical extraction of DNA using a buccal swab collection technique is little more than a minor inconvenience to felony arrestees, who have diminished expectations of privacy. Moreover, it is substantially less intrusive, both physically and emotionally, than many of the other types of approved intrusions that are routinely visited upon arrestees, see supra at 1967-68.

2. The Government’s use and retention of DNA information

Plaintiffs challenge not only the physical intrusion of the buccal swab, but the collection and use of the information contained in the DNA sample.

[7] Although Plaintiffs use the phrase “DNA profile” to evoke images of an oppressive “Big Brother” cataloguing our most intimate traits, the reality is far less troubling. A DNA profile contains only thirteen “junk DNA” markers that are not linked to any genetic or physical trait. They are used only to identify the individual. See Cal. Penal Code § 295.1(a) (“The Department of Justice shall perform DNA analysis . . . pursuant to this chapter only for identification purposes. ”); Kincade, 379 F.3d at 837 ( “[T]he DNA profile derived from the defendant’s blood sample establishes only a record of the defendant’s identity — otherwise personal information in which the qualified offender can claim no right of privacy once lawfully convicted of a qualifying offense (indeed, once lawfully arrested and booked into state custody). ”); Amerson, 483 F.3d at 85 ( “[A]t least in the current state of scientific knowledge, the DNA profile derived from the offender’s blood sample establishes only a record of the offender’s identity.”).

[8] Given the minimal amount of information contained in a DNA profile, we are persuaded that DNA, as collected and used under the 2004 Amendment, is substantially indistinguishable from traditional fingerprinting as a means of identi-

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea2g2eo: f2529of 59

HASKELL v. H ARRIS

1971

fying arrestees and, incidentally, tying arrestees to criminal investigations. See Rise, 59 F.3d at 1559 ( “The information derived from the blood sample is substantially the same as that derived from fingerprinting - an identifying marker unique to the individual from whom the information is derived.”); Mitchell, 652 F.3d at 412 ( “[B]ecause DNA profiles developed pursuant to the DNA Act function as ‘genetic fingerprints’ used only for identification purposes, arrestees and pretrial detainees have reduced privacy interests in the information derived from a DNA sample. ”).

Although there are some distinctions between DNA and fingerprints, these distinctions do not implicate serious privacy concerns. These differences include, among others: DNA identification is more robust and reliable than fingerprint identification, see Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 129 S. Ct. 2308, 2316 (2009) ( “Modern DNA testing can provide powerful new evidence unlike anything known before. ”); DNA is more often left at crime scenes than fingerprints, thus enhancing DNA’s investigative efficacy; and, as emphasized by Plaintiffs, DNA contains a much broader range of identifying information than fingerprints and is more susceptible to misuse. Nevertheless, the relative reliability and greater availability of DNA do not affect any cognizable privacy interests (as individuals do not have a “privacy interest” per se in the efficiency of law enforcement operations), and the wider potential usage of DNA data (and accompanying potential for abuse) is carefully restricted by the strict limitations established in the DNA Act.

[9] Fingerprinting has been consistently upheld as constitutional. Hayes v. Florida , 470 U.S. 811, 813-18 (1985); Napolitano v. United States, 340 F.2d 313, 314 (1st Cir. 1965) (“Taking of fingerprints . . . is universally standard procedure, and no violation of constitutional rights. ”); United States v. Iacullo, 226 F.2d 788, 793 (7th Cir. 1955) ( “[Defendant’s] constitutional rights were not violated when his fingerprints were taken and at the trial used as a basis for comparison with

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea2g3eo: f2539of 59

1972

HASKELL v. H ARRIS

fingerprints found on newspapers used to wrap narcotics. ”); United States v. Kelly , 55 F.2d 67, 68-69 (2d Cir. 1932). Indeed, at oral argument, Plaintiffs’ counsel conceded that fingerprinting does not violate the Fourth Amendment. Given the certain constitutionality of fingerprinting and the clear analogy between fingerprinting and DNA identification under the DNA Act, as amended, privacy concerns here are diminished substantially. We agree with the dissent’s concession that “fingerprints and DNA are similar. ” We also generally have no quarrel with the dissent’s statement that the Supreme Court has “held that fingerprints may not be taken unless there is consent, a warrant, or probable cause. ”5

The dissent’s key argument collapses, however, because he completely ignores the fact that the California DNA Act clearly requires that law enforcement officers may only compel DNA collection upon a finding of probable cause that the individual has committed a felony. Moreover, each of the four cases on which the dissent relies for some of his remarkable theories— Hayes; Davis v. Mississippi , 394 U.S. 721 (1969); United States v. Ortiz-Hernandez , 427 F.3d 567 (9th Cir. 2005); and United States v. Garcia-Beltran, 389 F.3d 864 (9th Cir. 2004), involved the compelled taking of fingerprints of people who had been arrested without probable cause. 6 This

5However, we disagree with our colleague’s dismissal as “dictum” of the Supreme Court’s clear statement that “[t]here is thus support in our cases for the view that the Fourth Amendment would permit seizures for the purpose of fingerprinting, if there is reasonable suspicion that the suspect has committed a criminal act, [and] if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect’s connection with that crime. ” Hayes, 470 U.S. at 816-17 (1985).
6See Hayes, 470 U.S. at 813-14 ( “[T]here was no probable cause to arrest, no consent to the journey to the police station, and no judicial authorization for such a detention for fingerprinting purposes. ”); Davis, 394 U.S. at 725 ( “[T]he State conceded that the arrest on December 12 and the ensuing detention through December 14 were based on neither a warrant nor probable cause ”); Ortiz-Hernandez, 427 F.3d at 575 ( “[W]e cannot say that the district court clearly erred when it ruled that consider-

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea2g4eo: f2549of 59

HASKELL v. H ARRIS

1973

distinction completely undermines our dissenting colleague’s novel interpretation of the Fourth Amendment, and his reliance on the four cited cases. We agree that the California DNA Act would be unconstitutional if it allowed police officers to collect DNA samples from random citizens on the street without any probable cause to believe that they committed a crime. In reality, however, the police cannot collect DNA without first determining that there is probable cause that the individual committed a felony.

The other fatal flaw in the dissent’s novel construction of the Fourth Amendment is his entirely unsupported assumption that the information derived from compelled fingerprinting and DNA collection may only be used in connection with the crime for which probable cause was found. The dissent cites absolutely no authority for this unprecedented and misguided reading of the Fourth Amendment. Were he correct, our entire criminal justice system would be upended because law enforcement officers would be prevented from using basic investigative tools. For example, under our dissenting colleague’s theory, the police could never be allowed to match crime scene fingerprints to databases of prints collected from past arrestees.

Like the dissent, Plaintiffs rely on slippery-slope arguments by challenging not only what California actually does with the DNA samples, but what it could do with the information. Their opposition rests on hypothetical scenarios in which the Government uses the DNA sample to do more than merely identify individuals. Plaintiffs suggest that the Government could test the DNA for diseases such as cystic fibrosis and

ing the totality of evidence upon which Detective Anderson relied when he placed Ortiz-Hernandez under formal arrest, the evidence was insufficient to establish probable cause. ”); Garcia-Beltran, 389 F.3d at 865 (“[T]he government conceded that the police did not have probable cause to arrest Garcia-Beltran”).

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea2g5eo: f2559of 59

1974

HASKELL v. H ARRIS

Alzheimer’s disease. This line of reasoning—framed in bleak Orwellian terms by the California Court of Appeal in Buza, 197 Cal. App. 4th at 1443-44—ignores the clear statutory limitations drawn by the Legislature, and the fact that there is no evidence in the record of a single case of DNA misuse in California. If we were addressing a legislative scheme in which the Government could freely use a person’s DNA sample in any manner and for any purpose, serious privacy interests could be at stake. But we are not presented with an openended legislative scheme in which citizens’ entire genomes are placed on file with the Government. The DNA Act, as amended by the 2004 Amendment, sharply limits the range of permissible uses of the DNA information obtained and imposes significant criminal penalties upon those who violate such limitations. See Cal. Penal Code §§ 295.1, 299.5(f), 299.5(i). See, e.g., Weikert , 504 F.3d at 13 ( “[T]he [federal] DNA Act offers a substantial deterrent to such hypothetical abuse by imposing a criminal penalty for misuse of DNA samples.”).

Plaintiffs argue that California’s limits on access and use are ineffective because California data is shared with law enforcement agencies nationwide via CODIS. This argument also fails because federal law imposes similar penalties for unauthorized use of CODIS. See 42 U.S.C. § 14133(c), 14135e(c). Moreover, even if an unauthorized person were to access California’s DNA database, the only information available would be junk DNA that identifies felony arrestees. And if the junk DNA could reveal other traits, misuse of that information would likewise be barred by federal law. For example, the Genetic Information Nondiscrimination Act of 2008, Pub. L. 110-233, 122 Stat. 881, prohibits health insurers and employers from discriminating against people based on their genetic information.

While it is hypothetically possible that, at some future time, rogue Government employees may record and analyze more extensive DNA information, see Kincade, 379 F.3d at 847

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea2g6eo: f2569of 59

HASKELL v. H ARRIS

1975

(Reinhardt, J., dissenting), or that the California Legislature might expand the permissible scope and uses of the DNA data, see id. at 845-46, we cannot legitimately weigh the constitutionality of the current legal regime by arguing about hypothetical and highly speculative actions that would undeniably violate the DNA Act, as amended by the 2004 Amendment, as now in effect. “[O]ur job is limited to resolving the constitutionality of the program before us, as it is designed and as it has been implemented,” and we must “base decisions not on dramatic Hollywood fantasies . . . but on concretely particularized facts developed in the cauldron of the adversary process and reduced to an accessible record. ” Kincade, 379 F.3d at 838; see also Mitchell, 652 F.3d at 408 ( “While we acknowledge the seriousness of [defendant’s] concerns about the possible misuse and future use of DNA samples, we conclude that these hypothetical possibilities are unsupported by the record before us and thus do not have any substantial weight in our totality of the circumstances analysis. ”); Weikert, 504 F.3d at 14 (noting absence of evidence in the record showing misuse of DNA information stored in CODIS); Amerson, 483 F.3d at 87 (same). If and when such changes occur, future courts will be available to consider actual facts and applications, and determine whether the law, as then constituted, violates the Constitution.

[10] Setting aside Plaintiffs’ parade of horribles, California’s limited use of the DNA and the complete absence of any evidence of abuse lead us to conclude that the collection of information from “junk DNA” markers does not significantly intrude upon felony arrestees’ privacy.

B. The Government’s interests in prison administration and law enforcement

[11] The Government has four key interests we weigh on the other side of the balance: identifying arrestees, solving past crimes, preventing future crimes, and exonerating the innocent.

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea2g7eo: f2579of 59

1976

HASKELL v. H ARRIS

1. Identification of arrestees

The amended DNA Act’s primary purpose is to identify arrestees. See Cal. Penal Code § 295.1(a) (“The Department of Justice shall perform DNA analysis . . . pursuant to this chapter only for identification purposes ”). This interest is longstanding and unobjectionable. “[W]hen a suspect is arrested upon probable cause, his identification becomes a matter of legitimate state interest. ” Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992); see also Kriesel , 508 F.3d at 947 (“[T]racking . . . identity is the primary consequence of DNA collection”).

“Identification” encompasses not merely a person’s name, but also other crimes to which the individual is linked. “Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder.” Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt Cnty. , 542 U.S. 177, 186 (2004). “Whether an arrestee is possibly implicated in other crimes is critical to the determination of whether or not to order detention pending trial.” Mitchell, 652 F.3d at 414; see also WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1123 (2002) (broadly defining “identity” as “the condition of being the same with something described, claimed, or asserted or of possessing a character claimed ”). The collection and use of DNA for identification purposes is substantially identical to a law enforcement officer obtaining an arrestee’s fingerprints to determine whether he is implicated in another crime. See Johnson v. Quander , 440 F.3d 489, 498 (D.C. Cir. 2006) (“[T]he process of matching one piece of personal information against government records does not implicate the Fourth Amendment.”).

Plaintiffs contend that DNA profiling is unnecessary because law enforcement officers already identify arrestees using traditional fingerprinting. However, this argument ignores the significant advantages of DNA profiling over fin-

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea2g8eo: f2589of 59

HASKELL v. H ARRIS

1977

gerprinting. Criminals can easily hide their fingerprints by wearing gloves, but they cannot mask their DNA. See Mitchell, 652 F.3d at 414. DNA testing provides “the capacity to identify or to exclude individuals, quickly, accurately, and at reasonable expense.” Amerson, 483 F.3d at 89. “[F]or purposes of identifying a particular person as the defendant, a DNA profile is arguably the most discrete, exclusive means of personal identification possible. ” People v. Robinson , 47 Cal. 4th 1104, 1134 (2010) (internal quotation marks omitted). Nothing in the Constitution compels us to adopt a Luddite approach that would prevent the Government from using this new and highly effective tool to replace (or supplement) older ones.

Plaintiffs also assert that the Government takes “months” to analyze DNA samples, the effect of which is to show that DNA analysis does not advance the Government’s interest in identifying arrestees. This argument exaggerates the facts: on average, Government analysis of DNA takes 31 days, but some samples have been processed in as few as five days. Although only of persuasive value, Plaintiffs also ignore the high likelihood that DNA technology will improve and substantially reduce processing times. Moreover, even at current processing rates, DNA analysis can be highly effective. For example, California’s Criminal Justice Realignment legislation, Assembly Bill 109, Stats. 2011, Ch. 15, which went into effect on October 1, 2011, requires the transfer of many State prisoners to county jails. To reduce overcrowding in county jails, the statute allows prisoners to be released on their own recognizance sixty days after their arrest, subject to a discretionary review by the county. Collecting DNA at the time of arrest will help the county determine whether a prisoner is linked to other crimes before deciding whether to release the prisoner. Because release cannot occur before sixty days after arrest, the 31-day average processing time will give counties adequate time to compare arrestees’ DNA with current and past crime data before they are released.

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea2g9eo: f2599of 59

1978

HASKELL v. H ARRIS

2. Solving past crimes

DNA’s remarkable ability to accurately identify arrestees is a sufficiently compelling interest to justify the 2004 Amendment. However, the DNA database also serves other important law enforcement purposes. By accurately identifying arrestees, the DNA database also helps solve past crimes. Solving crimes is a legitimate factor in our totality of the circumstances analysis because it “helps bring closure to countless victims of crime who long have languished in the knowledge that perpetrators remain at large. ” Kincade, 379 F.3d at 839; see also Mitchell , 652 F.3d at 414-415 (“Collecting DNA samples from arrestees can speed both the investigation of the crime of arrest and the solution of any past crime for which there is a match in CODIS. ”).

Law enforcement officials already have used California’s expanded database to solve numerous past crimes. As of October 31, 2009 — ten months after Proposition 69 took effect — felony arrestee DNA samples had aided California police in 291 database hits. Matches from offender DNA profiles to crime scene profiles increased by approximately 50 percent between 2008 and 2009, when Proposition 69 took effect.

For example, in March 2009, police collected Donald Carter’s DNA when he was arrested in Sacramento for possession of a controlled substance. Three months later, the police, using the DNA database, linked his profile to DNA collected from a 1989 murder of an 80-year-old woman. Similarly, Rene Hernandez, who had no prior felony convictions, was arrested on August 16, 2009 for felony assault in Santa Cruz County, and his DNA was collected at that time. In October 2009, the DNA database matched his profile to DNA that was collected from the victim of a February 2009 sexual assault and robbery.

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea3g0eo: f3509of 59

HASKELL v. H ARRIS

1979

As California continues to add felony arrestees’ DNA to its database, law enforcement officers will undoubtedly solve even more past crimes.

3. Preventing future crimes

DNA analysis not only solves past crimes, but it helps police prevent crimes from occurring in the future. By implementing the 2004 Amendment, law enforcement officials will have a catalogue of arrestees’ DNA, a tool that will undoubtedly help solve and prevent future crimes.

The mere existence of the DNA database creates a strong deterrent effect. As discussed supra, it is much easier for a criminal to cover his fingerprints than it is to prevent any DNA from being left at a crime scene. A felony arrestee is less likely to commit another crime in the future if he knows that his DNA is catalogued in the State database. See, e.g., Kincade, 379 F.3d at 839 (stating that mandatory DNA profiles of convicted felons “fosters society’s enormous interest in reducing recidivism ”); Jones, 962 F.2d at 311 ( “[T]he Commonwealth’s interest in combatting and deterring felony recidivism justifies the involuntary taking of the sample and the creation of the DNA data bank as reasonable in the context of the Fourth Amendment. ”).

4. Exonerating innocent suspects

By helping identify the actual perpetrators of crimes, the DNA database also allows law enforcement officers to eliminate innocent persons from suspect lists. See Kincade, 379 F.3d at 839 n.38 (DNA fingerprinting “promptly clears thousands of potential suspects ”); United States v. Sczubelek , 402 F.3d 175, 185 (3d Cir. 2005) ( “[T]he DNA samples will help to exculpate individuals who are serving sentences of imprisonment for crimes they did not commit and will help to eliminate individuals from suspect lists when crimes occur. ”).

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea3g1eo: f3519of 59

1980

HASKELL v. H ARRIS

DNA databases have proven remarkably effective in exonerating the innocent. According to the Innocence Project, there have been 273 post-conviction DNA exonerations in the United States since 1989. In 123 of the cases, the true suspects or perpetrators were also identified.

The case of David Allen Jones is a powerful illustration of the benefits of arrestee DNA sampling. Jones, a mentally disabled janitor, was wrongly convicted in 1995 for three murders in the Los Angeles area. See Andrew Blankstein, et al., DNA Analysis Links Inmate to 12 Slayings , L.A. Times, Oct. 23, 2004, at A1. Jones spent nearly nine years in prison. He was released in 2004, after DNA collected at two of the murder scenes was linked to the DNA profile of Chester Dwayne Turner. Although Turner had been arrested 20 times between 1987 and 2002, his DNA sample was not collected until after he was convicted of rape in 2002. Id. Had the 2004 Amendment been in effect in 1995, it is likely that Jones never would have been imprisoned because police would have had access to Turner’s DNA profile.

There are few greater injustices than the wrongful imprisonment of an innocent person. The privacy intrusion caused by a buccal swab of a felony arrestee is minor compared to society’s compelling goal of ensuring that innocent people are exonerated.

C. Balancing

[12] Given the arrestee’s diminished privacy interests; the de minimis nature of the physical intrusion entailed in the taking of a buccal swab; the carefully circumscribed scope of the DNA information being extracted; the stringent limits on the manner in which that information may be used; and the wellestablished law enforcement interest in obtaining arrestees’ identifying information, and further, to deter future criminal acts and to exculpate innocent arrestees—the balance of inter-

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea3g2eo: f3529of 59

HASKELL v. H ARRIS

1981

ests tilts strongly in favor of upholding the constitutionality of the 2004 Amendment.

We emphasize that our decision deals solely with DNA extraction, processing, and analysis as it presently exists, and is enforced. We acknowledge that future developments in the law could alter the constitutionality of the DNA Act, as amended. See Kincade, 379 F.3d at 842 n.3 (Gould, J., concurring in the judgment) . But we cannot test the amended DNA Act’s current legality in light of uncertain future amendments to the law, which themselves would likely violate the DNA Act, as amended by the 2004 Amendment.

CONCLUSION

[13] Because the 2004 Amendment does not violate the Fourth Amendment as applied to the Plaintiffs, the facial challenge also fails because Plaintiffs cannot “establish that no set of circumstances exists under which the Act would be valid. ” Salerno, 481 U.S. at 745. Accordingly, we hold that the district court did not err in determining that Plaintiffs did not establish a likelihood of success on the merits, and we affirm its denial of the preliminary injunction.

AFFIRMED.

W. FLETCHER, Circuit Judge, dissenting:
I respectfully dissent.
In Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009), we held that the taking of a DNA sample without a warrant, and without suspicion of a crime that the DNA sample would help solve, violated the plaintiff’s clearly established Fourth Amendment rights. Proposition 69 requires that DNA samples be taken from all felony arrestees, with or without their con-

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea3g3eo: f3539of 59

1982

HASKELL v. H ARRIS

sent, upon their arrest. There is no need for a warrant, and there is no need for suspicion of a crime that the DNA sample would help solve. Our decision in Friedman requires us to hold that Proposition 69 violates the Fourth Amendment.

Even if Friedman were not on the books, I would conclude that Proposition 69 is unconstitutional. My reasoning is straightforward. Fingerprints may be taken from an arrestee in order to identify him—that is, to determine whether he is who he claims to be. But fingerprints may not be taken from an arrestee solely for an investigative purpose, absent a warrant or reasonable suspicion that the fingerprints would help solve the crime for which he was taken into custody. Hayes v. Florida, 470 U.S. 811, 814 -15 (1985); Davis v. Mississippi, 394 U.S. 721, 727 -28 (1969); United States v. Ortiz-Hernandez , 427 F.3d 567, 576 (9th Cir. 2005); United States v. Garcia-Beltran, 389 F.3d 864, 865 (9th Cir. 2004) . DNA samples are not taken from felony arrestees under Proposition 69 in order to identify them. Rather, they are taken solely for an investigative purpose, without a warrant or reasonable suspicion. The taking of DNA samples from arrestees solely for that purpose is invalid under Hayes, Davis, Ortiz-Hernandez, and Garcia-Beltran.

I. Background

The four named plaintiffs were arrested for felonies in 2009. They were compelled under Proposition 69 to provide DNA samples immediately after their arrests. Two of the plaintiffs were never charged with crimes. The other two plaintiffs were charged with felonies, but the charges were dismissed. No warrants authorized taking any of the DNA samples. Nor was there a suspicion of any crime that the DNA samples would help solve.

Elizabeth Haskell was arrested on March 21, 2009, for allegedly trying to take a person from police custody during a San Francisco peace demonstration. She was taken to the

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea3g4eo: f3549of 59

HASKELL v. H ARRIS

1983

San Francisco County jail, where she was ordered to provide a DNA sample. She was told that she would be charged with a misdemeanor if she refused to comply immediately. She provided a sample but states she would have refused if she had not been threatened. Haskell was never charged with a crime. She states, “I now live with the fear that my DNA might be falsely matched to a sample obtained from a crime scene, even if I remain completely law abiding. As a political activist, I also recognize the taking of DNA from those arrested during political activities as an intimidation tactic, increasing the cost of voicing any freedom of expression. ”

Reginald Ento was arrested in early 2009 on suspicion of possessing stolen property. He was taken to the Sacramento County jail, where a sheriff’s deputy collected a DNA sample without his consent. Ento states that the deputy told him that the DNA could be taken by force if necessary. He states, “Not long after my DNA sample was collected, the charges against me were dropped and I was released from custody. At no time during my contact with law enforcement officials was I ever informed that I could seek to have my DNA sample destroyed and information regarding my DNA removed from any law enforcement databases, based on the fact that the charges against me [were] dropped. ”

Jeffrey Lyons Jr. was arrested on March 16, 2009, for allegedly trying to take a person from police custody during a demonstration outside the Israeli consulate. He was taken to the San Francisco County jail, where he was ordered to provide a DNA sample. He complied with the order. Lyons was charged with a felony, but the charge was dismissed. He states that after the charge was dismissed, “I called the San Francisco District Attorney’s office . . . to ask for help in getting my DNA sample expunged. . . . The woman at the District Attorney’s office said that I would have to file a motion and that I should talk to my lawyer. I then said that because my lawyer had been paid by the court I didn’t know whether I would have to pay him to do this; she said she didn’t know

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea3g5eo: f3559of 59

1984

HASKELL v. H ARRIS

and suggested that I call the public defender’s office and that maybe they would help me. ”

Aakash Desai is a graduate student at the University of California, Berkeley. He participated in a demonstration in Wheeler Hall on the Berkeley campus on November 20, 2009, protesting tuition increases as well as custodial furloughs and layoffs. Campus police arrested Desai and took him to the Berkeley city jail. Desai was told at the jail that he was being charged with felony burglary. He was told that if he refused to provide a DNA sample he would be charged with a misdemeanor and his bail would be increased. Desai then provided a DNA sample. He states, “When I went to court on the following Monday for my arraignment, I learned that no charges had been filed.”

In 1998, the California legislature passed the DNA Act, which created a program of warrantless DNA testing of individuals convicted of certain violent crimes. See 1998 Cal. Stat. ch. 696, § 2. In November 2004, California voters passed Proposition 69. Proposition 69 requires that DNA be taken from all individuals convicted of felonies. Cal. Penal Code § 296(a)(1). It also provides, effective January 1, 2009, for expansion of the DNA program to felony arrestees. Cal. Penal Code § 296(a)(2)(A)-(C).

Plaintiffs challenge the expansion to arrestees. Approximately 300,000 individuals are arrested for felonies in California each year. About a third of them are never convicted of the felonies for which they are arrested. Many, including two of the plaintiffs, are never even charged with felonies.

The arrestee is photographed and fingerprinted during the booking process. See Cal. Penal Code § 7(21). The arrestee’s fingerprints are used to ascertain or verify his or her identity. Police officials then use the arrestee’s identity, thus ascertained or verified, to determine if he or she has already provided a DNA sample. If the arrestee has not already provided

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea3g6eo: f3569of 59

HASKELL v. H ARRIS

1985

a DNA sample, officials compel the arrestee to provide one. Arrestees are told that they will not be released from jail until they provide a DNA sample and that they can be charged with a misdemeanor for refusing to provide one. Arrestees may be told that force can be used to obtain a DNA sample. See Cal. Penal Code § 298.1(a)-(b).

A judicial determination of probable cause for the arrest is not required, either before arrest or before a DNA sample is taken. As a practical matter, Proposition 69 precludes a judicial determination of probable cause after the arrest, for it requires that the sample be taken “immediately following an arrest, or during the booking . . . process or as soon as administratively practicable after arrest. ” Cal. Penal Code § 296.1(a)(1)(A). Proposition 69 nowhere mentions the desirability, or even the possibility, of a judicial determination of probable cause prior to taking the DNA sample.

After the arrestee has been identified and the DNA sample has been collected, the sample is sent to a laboratory where it is analyzed to create a DNA profile. The analysis occurs on average approximately one month after collection of the sample. California retains the sample after the analysis. See Cal. Penal Code § 295.1(c).

Once the arrestee’s DNA sample is analyzed, the arrestee’s DNA profile is entered into the Combined DNA Index System (“CODIS”). CODIS is a system of federal, state, and local DNA databases operated by the National DNA Index System (“NDIS”). CODIS stores DNA records in a number of different indexes, including an Arrestee Index and a Convict Index. California arrestees’ DNA profiles are entered into the Arrestee Index.

All fifty states and the federal government participate in CODIS. Forty-seven states and the federal government collect DNA from all convicted felony offenders. Twenty-two states and the federal government collect DNA from some or all

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea3g7eo: f3579of 59

1986

HASKELL v. H ARRIS

arrestees. Law enforcement agencies around the country can access the DNA profiles contained in CODIS.

CODIS uses 13 genetic markers—in technical terms, short tandem repeat polymorphisms ( “STRPs”)—to create DNA profiles. The 13 genetic markers used by CODIS “ ‘were purposely selected because they are not associated with any known physical or medical characteristics.’ ” United States v. Kincade, 379 F.3d 813, 818-19 (9th Cir. 2004) (en banc) (plurality) (quoting H.R. Rep. No. 106-900, pt. 1 at 36 (2000)). These markers are sometimes called “junk DNA.” Dr. Robert Nussbaum, Chief of Medical Genetics at the University of California, San Francisco, Department of Medicine, states, “There is currently no evidence that specific variants at any of the 13 core CODIS STRPs are themselves associated with traits of functional or medical significance. ” Dr. Nussbaum states that in some cases the information associated with these STRPs “might allow one to infer functional or other medical information.” It is possible that “junk DNA” may be discovered, at some future time, to be directly associated with traits of functional or medical significance. See Kincade, 379 F.3d at 818 n.6; see also, e.g. , Gina Kolata, Reanimated ‘Junk’ DNA Is Found to Cause Disease , N.Y. Times, Aug. 20, 2010 at A1.

Once entered into CODIS, a DNA profile may be compared to the hundreds of thousands of crime-scene DNA profiles already entered into CODIS. A DNA profile provides an extremely accurate means of distinguishing one individual from another and a powerful tool to link particular individuals to DNA traces left at crime scenes. See Kincade, 379 F.3d at 818-19 (9th Cir. 2004). A comparison between DNA profiles and crime-scene DNA samples is performed each week by CODIS. If there is a match between a crime-scene sample and a DNA profile (a “hit”), NDIS notifies the submitting laboratory, which then forwards the match information to the relevant law enforcement agency. Fingerprints linked to the DNA

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea3g8eo: f3589of 59

HASKELL v. H ARRIS

1987

profile are used to identify the individual whose DNA profile matched a crime-scene DNA sample.

California conducts “familial searching” using DNA profiles in CODIS. A familial search identifies DNA profiles that are not a precise match to the crime-scene DNA sample, but are a close enough match to suggest that the individual whose DNA profile is in CODIS may be related to an individual who left DNA at the crime scene. Defendants state that, as a matter of policy, California does not now conduct familial searching using DNA profiles in the Arrestee Index (as distinct from the Convict Index). Plaintiffs contend, however, that the State will likely conduct familial searching of the Arrestee Index in the future. This is so, they contend, because a supervisor of the California DNA program has stated that all California DNA profiles are now entered into the Arrestee Index rather than the Convict Index, and that California cannot easily transfer those profiles from the Arrestee Index to the Convict Index after a conviction has been obtained.

The DNA samples and profiles taken from arrestees are retained unless an arrestee successfully applies for expungement. Expungement is a lengthy, uncertain, and expensive process. If no charges are filed, an individual must wait until the relevant felony’s statute of limitations has run before applying for expungement. See Cal. Penal Code § 299(b)(1). Depending on the felony for which the individual was arrested, the statute of limitations is three years or longer. See Cal. Penal Code §§ 799-801. If charges are filed, an arrestee often need not wait until the expiration of the statute of limitations. Expungement may be sought after the charges are dismissed by a trier of fact before adjudication; after a conviction has been reversed and the case dismissed; after the arrestee has been found factually innocent; or after the arrestee has been acquitted of the charged offense. Cal. Penal Code § 299(b)(1)-(4). Arrestees seeking expungement must pay their own expenses and attorney’s fees. Unlawfulness of an arrest is not a ground for expungement.

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea3g9eo: f3599of 59

1988

HASKELL v. H ARRIS

After requesting expungement, an arrestee must wait a minimum of 180 days before a court can act. See Cal. Penal Code § 299(c)(2)(D). The court has discretion to grant or deny the request for expungement. The denial of a request for expungement is a nonappealable order and cannot be reviewed by petition for writ. Cal. Penal Code § 299(c)(1). The prosecuting attorney can prevent expungement by making an objection. See Cal. Penal Code § 299(c)(2)(D). The State reports that California has expunged more than 900 convicted felon profiles and denied eight requests for expungement. It does not report expungement of any arrestee profiles.

California law provides some protection for individuals who have submitted DNA. DNA samples may be tested only to create the DNA profile. The DNA Act prohibits use of individual samples or profiles for purposes other than lawenforcement-related matching. See Cal. Penal Code § 299.5(f)(I). However, California law does permit statistical studies using anonymous DNA profiles. Individuals who misuse DNA profiles in violation of California law are subject to imprisonment for up to a year and a fine of up to $50,000. See Cal. Penal Code § 299.5(I). The district court found that there have been no reported instances of misuse.

II. Friedman v. Boucher

In Friedman, we addressed the taking of DNA testing from an arrestee without a warrant and without suspicion of a crime that the DNA might help to solve. Friedman was a pre-trial detainee in the Clark County, Nevada, jail, pending prosecution on criminal charges. Friedman v. Boucher, 580 F.3d 847, 851 (9th Cir. 2009). Our opinion does not state whether the charges were felony or misdemeanor. A Las Vegas police officer forcefully took a DNA sample from Friedman at the direction of a county Deputy District Attorney who wanted the DNA for inclusion in the Nevada cold case data bank. Id. at 851. Friedman brought a § 1983 damages action against the police officer who took the sample and the district attorney

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea4g0eo: f4509of 59

HASKELL v. H ARRIS

1989

who asked for it. We held that the defendants had violated Friedman’s clearly established Fourth Amendment right to be free from an unreasonable search. Id. at 858.

We had previously upheld the compelled taking of DNA samples from convicted felons. See United States v. Kriesel , 508 F.3d 941, 942 (9th Cir. 2007); United States v. Kincade , 379 F.3d 813, 832 (9th Cir. 2004) (en banc); Rise v. Oregon , 59 F.3d 1556, 1562 (9th Cir. 1995). However, we refused to extend these cases to a warrantless, suspicionless, compelled taking of DNA from a pre-trial detainee. Friedman, 580 F.3d at 856-58. We wrote that government interests justifying the unconsented taking of DNA from convicted felons in our earlier cases were not present: “The Nevada authorities extracted DNA from Friedman not because they suspected he had committed a crime, nor to aid in his reintegration into society, nor as a matter of his continuing supervision. Their purpose was simply to gather human tissue for a law enforcement databank, an objective that does not cleanse an otherwise unconstitutional search.” Id. at 858.

The majority gives five reasons why it believes our decision in Friedman does not control this case. None of the reasons is sufficient to distinguish Friedman.

First, the majority states, “[T]he DNA collection . . . was conducted at the whim of deputy district attorney, acting without any statutory authority. . . . In contrast, the DNA collected in California from the Plaintiffs was approved in a statewide ballot referendum, which is a ‘basic instrument of democratic government[.]’ ” Maj. Op. at 1965. We made clear in Friedman that absence of an authorizing statute was not determinative of the appellant’s Fourth Amendment claim. We wrote that “adherence to a state statute does not guarantee compliance with the Fourth Amendment. ” Id. at 853 (citing Virginia v. Moore, 553 U.S. 164, 171 (2008)). Further, if the action of a state or local official is taken pursuant to an unconstitutional

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea4g1eo: f4519of 59

1990

HASKELL v. H ARRIS

state law, it does not matter whether that law was enacted by the legislature or approved directly by the voters.

Second, the majority states, “[T]he police in Friedman singled out one individual for a search. In contrast, the California DNA Act is programmatic, and applies to all felony arrestees.” Maj. Op. at 1965. That a search is of a single person, at the discretion of an individual official, or of a group of people, mandated by a general rule, has never been a touchstone of Fourth Amendment analysis. Our opinion in Friedman did not rely on the fact that the search in that case was of a single individual. In rejecting the government’s arguments, we noted that “the government’s position . . . would endorse routine, forcible DNA extraction. ” 580 F.3d at 857 (emphasis added). We held such routine searches could not be justified by “ ‘the mere chance that desired evidence might be obtained.’ ” Id. (quoting Schmerber v. California , 384 U.S. 757, 769-70 (1966)). In holding the plaintiff’s Fourth Amendment right to be clearly established, we wrote that our precedent “precluded the interpretation that the government could forcibly extract DNA from all pre-trial detainees as a matter of routine, unrelated to facility security considerations. ” Id. at 859 (emphasis added).

Third, the majority states, “[T]he detective ‘forced Friedman’s jaw open and forcefully took a buccal swab from the inside of Friedman’s mouth.’ . . . In contrast, California arrestees typically swipe the buccal swab along their own mouths; thus law enforcement officials do not usually use force.” Maj. Op. at 1966. California law expressly permits the use of force (as well as the use of criminal misdemeanor charges) if an arrestee refuses to provide a DNA sample. See Cal. Penal Code § 296.1(a). Indeed, Reginald Ento, one of the plaintiffs in this case stated that he was threatened with force when he declined to provide a sample. Our opinion in Friedman describes the physical compulsion used to take the DNA, but our holding does not turn on the use of physical force. We held the compelled search unconstitutional because it could

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea4g2eo: f4529of 59

HASKELL v. H ARRIS

1991

not be justified by a permissible law enforcement objective. Friedman, 580 F.3d at 853-858 (rejecting all three of the State’s claims that an exception to the warrant requirement applied).

Fourth, the majority states, “[T]he California DNA Act imposes criminal penalties on people who misuse DNA information . . . ; Nevada had no such safeguards because no statute authorized the DNA collection. ” Maj. Op. at 1966. In Friedman, we expressed no concern that the officer might “misuse” the arrestee’s DNA sample in the sense of using it for purposes other than placement in the State’s cold case database. Friedman, 580 F.3d at 858. Rather, we held that the compelled taking of Friedman’s DNA and its placement in the database for investigative purposes was, in and of itself, a misuse. Whether a coerced DNA sample would be used, or misused, in other ways is irrelevant under Friedman.

Fifth, the majority states, “[T]he California DNA Act is clearly intended to allow law enforcement officials to identify criminal suspects, a purpose that we expressly approved in Rise [v. Oregon, 59 F.3d 1556, 1560 (9th Cir. 1995)]. . . . It is unclear what purpose the DNA collection in Friedman was intended to serve because it was not authorized by any Nevada statute or regulation.” Maj. Op. at 1966. The majority is wrong in stating that the purpose of Proposition 69 is to identify the felony arrestees who are compelled to provide DNA samples. Rather, as I discuss below, its sole purpose is to assist in criminal investigations. The majority is also wrong in stating that the purpose of the DNA collection in Friedman was unclear. We wrote that “the deputy district attorney wanted to put Friedman’s DNA sample in a cold case data bank.” Friedman, 580 F.3d at 851. We wrote, further, that the deputy district attorney “represented to a Nevada Justice Court that she had ordered the search to use Friedman’s DNA in the investigation of cold cases, ” and that the police officer “wanted the sample as an aid to solve cold cases. ” Id.

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea4g3eo: f4539of 59

1992

HASKELL v. H ARRIS

Unlike the majority, I conclude that our decision in Friedman controls this case. We are bound by Friedman unless we go en banc to overturn it.

III. Fourth Amendment

Even if Friedman were not controlling, I would conclude that Proposition 69 violates the Fourth Amendment.

The majority emphasizes the similarity between fingerprints and DNA. See, e.g., Maj. Op. at 1971-72 ( “Given the certain constitutionality of fingerprinting and the clear analogy between fingerprinting and DNA identification under the DNA Act, as amended, privacy concerns here are diminished substantially.”). I agree that fingerprints and DNA are similar. Precisely because of that similarity, Proposition 69 is unconstitutional.

Fingerprints and DNA are both valuable law enforcement tools. In United States v. Kelly, 55 F.2d 67 (2d Cir. 1932), an early appellate decision upholding fingerprinting, the court held fingerprinting was a permissible tool of identification, as “an extension of methods of identification long used in dealing with persons under arrest for real or supposed violations of the criminal laws. ” Id. at 69. Subsequent court decisions have upheld the use of fingerprints for identification purposes. See, e.g., Napolitano v. United States , 340 F.2d 313, 314 (1st Cir. 1965) (“Taking of fingerprints [of those released on bail] is universally standard procedure, and no violation of constitutional rights.”).

But there are limits on the purpose for which fingerprints may be taken. The Supreme Court has twice held that fingerprints may not be taken unless there is consent, a warrant, or probable cause. In Davis v. Mississippi , 394 U.S. 721, 722 (1969), police in Meridian, Mississippi, arrested and took the fingerprints of “at least 24 Negro youths,” including Davis, as part of a rape investigation. The police were required to have

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea4g4eo: f4549of 59

HASKELL v. H ARRIS

1993

probable cause in order to arrest Davis. See, e.g., Draper v. United States, 358 US. 307, 310 (1959) (“The crucial question . . . is whether [the arresting officer had] ‘probable cause’ within the meaning of the Fourth Amendment . . . to believe that petitioner had committed or was committing a violation of the narcotic laws. ” (footnote and internal citations omitted)).

Davis’s fingerprints, taken by the police, matched fingerprints found on a windowsill of the victim’s home. Based in part on that match, Davis was convicted and sentenced to life in prison. The Court held that the fingerprint evidence should have been suppressed because it had been taken in violation of the Fourth Amendment. The Court noted that the state had conceded that Davis had been arrested without probable cause. Davis, 94 U.S. at 723. The Court rejected two reasons argued in support of taking Davis’s fingerprints—that the fingerprints had been taken as part of an investigation into a crime and that fingerprints are a particularly reliable kind of evidence. The Court wrote, “[T]o argue that the Fourth Amendment does not apply to the investigatory stage is fundamentally to misconceive the purposes of the Fourth Amendment.” Id. at 726. It wrote, further, “[W]e find no merit in the suggestion . . . that fingerprint evidence, because of its trustworthiness, is not subject to the proscriptions of the Fourth and Fourteenth Amendments. Our decisions recognize no exception to the rule that illegally seized evidence is inadmissible at trial, however relevant and trustworthy the seized evidence may be as an item of proof. ” Id. at 723-24.

In Hayes v. Florida , 470 U.S. 811, 812 (1985), police in Punta Gorda, Florida, were investigating a series of burglaryrapes. After interviewing over thirty men who generally fit the description of the assailant, “investigators came to consider [Hayes] a principal suspect. ” Id. Police went to Hayes’s house. They told him that he could either come to the police station voluntarily to be fingerprinted or that he would be arrested. Police then arrested Hayes and took him to the sta-

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea4g5eo: f4559of 59

1994

HASKELL v. H ARRIS

tion, where they took his fingerprints. The police were required to have probable cause in order to arrest Hayes.

Hayes’s fingerprints matched those left at the scene of one of the crimes. Id. at 813. Based in part on the match, Hayes was convicted of burglary and sexual battery. The Court held that Davis required suppression of the fingerprints. It wrote that there had been, in fact, no probable cause. It wrote, “Here, as in Davis, there was no probable cause to arrest, no consent to the journey to the police station, and no judicial authorization for such a detention for fingerprinting purposes. . . . None of our later cases have undercut the holding in Davis that transportation to and investigative detention at the station house without probable cause or judicial authorization together violate the Fourth Amendment. ” Id. at 814-15.

The Court in Hayes wrote in dictum that in some circumstances fingerprints could possibly be taken without probable cause. It wrote:

None of the foregoing implies that a brief detention in the field for the purpose of fingerprinting, where there is only reasonable suspicion not amounting to probable cause, is necessarily impermissible under the Fourth Amendment. There is thus support in our cases for the view that the Fourth Amendment would permit seizures for the purpose of fingerprinting, if there is reasonable suspicion that the suspect has committed a criminal act, [and] if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect’s connection with that crime . . . .

Id. at 816-7 (internal citations omitted).

Relying on Davis and Hayes, we have distinguished between fingerprint evidence taken for identification and for investigative purposes. In United States v. Garcia-Beltran ,

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea4g6eo: f4569of 59

HASKELL v. H ARRIS

1995

389 F.3d 864, 865 (9th Cir. 2004), the government conceded that arresting officers lacked probable cause for the arrest of the defendant. It nonetheless argued for the use of his fingerprints, on the ground that they had been taken merely as evidence of his identity. We held that fingerprints could be taken for identification purposes, but could not be taken solely for investigative purposes. We remanded to the district court for a determination of the purpose for which the fingerprints had been taken. Id. at 86-68. We held the same thing a year later in United States v. Ortiz-Hernandez , 427 F.3d 567 (9th Cir. 2005). We wrote, “It is established law under Hayes and Davis that if fingerprints are taken for investigatory purposes, they must be suppressed in a criminal trial. ” Id. at 576; see also United States v. Olivares-Rangel , 458 F.3d 1104, 1115-16 (10th Cir. 2006) ( “[I]n determining whether the fingerprint evidence in this case should be suppressed, we must determine the original purpose for arresting and later fingerprinting Defendant; that is, was Defendant fingerprinted merely as part of a routine booking or processing procedure or was the illegal arrest in part for the purpose of obtaining unauthorized fingerprints so Defendant could be connected to additional alleged illegal activity. ”); United States v. Guevara-Martinez, 262 F.3d 751, 755-56 (8th Cir. 2001) (suppressing fingerprints taken for investigatory purposes after an arrest without probable cause).

I would apply to DNA the law that we already apply to fingerprints. Under that law, if DNA is taken from arrestees under Proposition 69 for purposes of identification, that taking is permissible. However, if it is taken solely for purposes of investigation, that taking is a seizure in violation of the Fourth Amendment.

The meaning of “identification,” as used in our caselaw, is the conventional meaning of the term. Identification is a determination of who someone is—his or her name, along with identifying information such as date of birth, address, and the like. In Garcia-Beltran, we contrasted investigation,

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea4g7eo: f4579of 59

1996

HASKELL v. H ARRIS

which was an attempt “to connect [the defendant] to alleged criminal activity,” to identification, which was an attempt to determine if he was “really who he says he is. ” GarciaBeltran, 389 F.3d at 865, 867. Similarly, in Rise, we drew a “constitutionally significant distinction between the gathering of fingerprints from free persons to determine their guilt of an unsolved criminal offense and the gathering of fingerprints for identification purposes from persons within the lawful custody of the state. ” United States v. Rise, 59 F.3d 1556, 1560, overruled on other grounds by City of Indianapolis v. Edmond, 531 U.S. 32 (2000) and Ferguson v. City of Charleston, 532 U.S. 67 (2001).

The majority in this case employs an idiosyncratic, expansive definition of “identification,” including investigation within that definition. The majority writes, “ ‘Identification’ encompasses not merely a person’s name, but also other crimes to which the individual is linked. ” Maj. Op. at 1976. “The collection and use of DNA for identification purposes is substantially identical to a law enforcement officer obtaining an arrestee’s fingerprints to determine whether he is implicated in another crime.” Id. at 1976. The majority writes, further,

Plaintiffs contend that DNA profiling is unnecessary because law enforcement officers already identify arrestees using traditional fingerprinting. However, this argument ignores the significant advantages of DNA profiling over fingerprinting. Criminals can easily hide their fingerprints by wearing gloves, but they cannot mask their DNA.

Id. (emphasis added). The majority’s statement that criminals “can easily hide their fingerprints by wearing gloves ” makes clear, if it was not clear already, that it includes investigation in its definition of identification. Under our caselaw’s definition of identification, it makes no sense to say that a criminal can hide his identity by wearing gloves. A criminal wears

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea4g8eo: f4589of 59

HASKELL v. H ARRIS

1997

gloves while he is committing a crime, not while police are identifying him at the police station.

Proposition 69 employs the same idiosyncratic, expansive definition of “identification.” California’s DNA Act, which includes Proposition 69, provides that the California Department of Justice “shall perform DNA analysis and other forensic identification analysis . . . only for identification purposes.” Cal. Penal Code § 295.1(a). Yet it is clear that DNA samples taken under Proposition 69 are used solely for investigative purposes. The text of Proposition 69 makes clear that its objective is solving crime. The phrases “solve crime” or “crime solving” are used five times in the text of the proposition. See, e.g., Cal. Prop. 69, § II(d)(1)-(d)(2) (2004) (“Expanding the statewide DNA Database and Data Bank Program is [t]he most reasonable and certain means to accomplish effective crime solving in California ” and is “[t]he most reasonable and certain means to solve crime as effectively as other states . . . . ”); id. at § II(c) (“Law enforcement should be able to use the DNA Database . . . to substantially reduce the number of unsolved crimes [and] to help stop serial crime by quickly comparing DNA profiles of qualifying persons and evidence samples with as many investigations and cases as necessary to solve crime and apprehend perpetrators . . . . ”).

The ballot argument in favor of Proposition 69, contained

in the official voters’ pamphlet, focused on the crime-solving

potential of DNA. The ballot argument began, “In California,

the remains of a boy missing for two decades are finally iden-

tified. Two cold murders are solved in Kansas. And in Texas,

a serial sexual predator is captured. The cases are cracked

thanks to technology police are calling the fingerprints of the

21st century.” Ballot Pamp., Gen. Elec. (Nov. 2, 2004), argu-

ment in favor of Prop. 69 (emphasis removed) (internal

citations and quotations omitted),

available at

http://vote2004.sos.ca.gov/voterguide/propositions/prop69-

arguments.htm. The ballot argument continued, stating that

taking a DNA sample from an arrestee “is more efficient and

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea4g9eo: f4599of 59

1998

HASKELL v. H ARRIS

helps police conduct accurate investigations. No wasting time
chasing false leads[.]” Id.; see also People v. Buza , 129 Cal.
Rptr. 3d 753, 774-75 (Cal. Ct. App. 2011) (listing additional examples).1

The protocol for taking DNA samples from arrestees under Proposition 69 also makes clear that the samples are taken from arrestees not for identification, but rather for investigation. As described above, the first step at booking is to take the arrestee’s fingerprints, which are then used to identify him. Once police have identified the arrestee, they check to determine whether he has already given a DNA sample. If he has, no additional sample is taken. If he has not, a sample is taken. After analysis of the sample, the arrestee’s DNA profile is sent to CODIS. It takes a month, on average, for the DNA analysis to be performed. By that time, the arrestee has long since been identified. Indeed, the arrestee must be identified before his DNA sample can be taken.

Even under the Supreme Court’s dictum in Hayes, Proposition 69 violates the Fourth Amendment. Under the Hayes dictum, DNA may not be taken from an unconsenting arrestee unless there is “reasonable suspicion” that the arrestee has committed a criminal act and there is a “reasonable basis” to believe that the arrestee’s DNA will “establish or negate the suspect’s connection with that crime.” Hayes, 470 U.S. at 817 (emphasis added). A DNA sample is not taken under Proposition 69 because there is reasonable suspicion that the arrestee has committed a criminal act and that the DNA will help solve “that crime.” Rather a DNA sample is taken because a person has been arrested for a felony. The DNA is taken from the arrestee as a matter of course, without the need for any suspicion that he has committed any crime that the DNA will help solve. The DNA is taken because there is a possibility

1The California Supreme Court has granted California’s petition for review in People v. Buza. 262 P.3d 854 (Cal. 2011). As a result, the appellate court’s opinion has been withdrawn.

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea5g0eo: f5509of 59

HASKELL v. H ARRIS

1999

that the DNA may help solve some other crime—a crime about which the police taking the DNA have no knowledge, indeed a crime that may not even exist.

The majority makes two objections to this analysis. First, the majority writes:

The dissent’s key argument collapses, however, because he completely ignores the fact that the California DNA Act clearly requires that law enforcement officers may only compel DNA collection upon a finding of probable cause that the individual has committed a felony. Moreover, each of the four cases on which the dissent relies for some of his remarkable theories—Hayes, Davis [ ], OrtizHernandez [ ], and Garcia-Beltran [ ]— involved the compelled taking of fingerprints without probable cause. This distinction completely undermines our dissenting colleague’s novel interpretation of the Fourth Amendment, and his reliance on the four cited cases.

Maj. Op. at 1972-73 (citations and emphasis omitted).

The majority misreads these cases. In all four cases, there had indeed been a determination of probable cause for the arrest. That determination had been made by the police, as a necessary precondition for making the arrests, just as it must be made by the police under Proposition 69. The Supreme Court in Hayes and Davis, and our court in Ortiz-Hernandez and Garcia-Beltran, stated that there had not, in fact, been probable cause. But police in all four cases believed there had been probable cause, as a necessary precondition of the arrests.

More important, the issue in all four cases was whether there was probable cause for the crime for which the defendants had been arrested. There is no such probable cause here.

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea5g1eo: f5519of 59

2000

HASKELL v. H ARRIS

Under Proposition 69, the arrest is made for a felony, but the DNA sample is not taken to investigate that felony. It is taken to investigate another crime for which there is no probable cause. It is uncontested that the law enforcement officials who take the samples have no probable cause (or even reasonable suspicion) that the arrestee has committed another crime. Indeed, there may not even be another crime.

Second, the majority writes:

The other fatal flaw in the dissent’s novel construction of the Fourth Amendment is his entirely unsupported assumption that the information derived from compelled fingerprinting and DNA collection may only be used in connection with the crime for which probable cause was found.

Maj. Op. at 1973. I make no such assumption. It is established law that if fingerprints are lawfully taken—for example, for identification purposes—they may be used for later investigative purposes. Ortiz-Hernandez, 427 F.3d at 577; GarciaBeltran, 389 F.3d at 868. I assume that this law applies equally to DNA samples. That is, if a DNA sample is lawfully taken, it may be used thereafter for investigative purposes. The problem under Proposition 69 is that the samples are not lawfully taken.

I conclude, based on Hayes, Davis, Ortiz-Hernandez, and Garcia-Beltran, that taking DNA samples from felony arrestees under Proposition 69, without consent, without a warrant, and without suspicion of any crime committed by the arrestee that the DNA will help solve, violates the Fourth Amendment.

IV. Totality of the Circumstances

The unconstitutionality of Proposition 69 is clear under Hayes, Davis, Ortiz-Hernandez, and Garcia-Beltran. The

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea5g2eo: f5529of 59

HASKELL v. H ARRIS

2001

totality of the circumstances test applied by the majority is therefore irrelevant. I nonetheless address the majority’s application of the test to show that the majority has overstated the strength of the State’s interests in taking DNA samples from arrestees and has understated the strength of the plaintiffs’ privacy interests.

A. Interests of the State

The majority relies on four “key interests” of the State. Maj. Op. at 1975. I take them in turn.

1. Identification of Arrestees

The majority relies on California’s interest in the “identification of arrestees,” stating that this is the “primary purpose” of Proposition 69. Id. As I have just shown, the DNA taken from arrestees under Proposition 69 is not used to identify them. Rather, it is used solely to investigate.

2. Solving Past Crimes

The majority relies on the State’s interest in solving crimes, stating that inclusion of arrestees’ DNA profiles in the CODIS database “helps solve past crimes. ” Id. at 1978. As noted above, DNA is taken from all felony arrestees almost immediately after their arrest. About one-third of the arrestees are never convicted of the felony for which they are arrested. About two-thirds of them are. The DNA of two-thirds of the felony arrestees would therefore be placed in the CODIS upon conviction even without Proposition 69. The State’s interest is thus served by Proposition 69 only to the extent that the DNA of arrestees who are never convicted of a felony is useful in solving crime, and to the extent that the DNA taken from those who are convicted is useful before the date of their conviction.

The majority states that ten months after Proposition 69 took effect “felony arrestee DNA samples had aided Califor-

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea5g3eo: f5539of 59

2002

HASKELL v. H ARRIS

nia police in 291 database hits. ” Id. The basis for this statement is a declaration of Kenneth Konziak, a Laboratory Director and Technical Manager/Leader for the State of California DNA Data Bank Program. Mr. Konziak states that as of October 31, 2009, “CAL-DNA, used as an investigative tool, has recorded 10,664 hits . . . . Of these 10,664 hits, so far 291 have involved arrestee submissions. ”

However, the “arrestee submissions” to which Mr. Konziak

refers in his declaration are submissions from all felony

arrestees, including the submissions from the two-thirds of the

arrestees who will be convicted. Without more, we have no

way of knowing how many of the 291

“hits” were for

arrestees who were later convicted. The hits for later-

convicted arrestees should be excluded from the analysis,

except to the extent that the hits were made because their

DNA samples were analyzed earlier than they otherwise

would have been.

The majority also provides examples of two crimes, committed by Donald Carter and Rene Hernandez, that have been solved through the use of DNA in the arrestee database. Maj. Op. at 1978. These are two of six examples given in the amicus brief filed in this court by the California District Attorneys Association. None of these six examples was provided to the district court. In none of them are we told that the DNA samples were provided by never-convicted arrestees. In five of the six examples, the brief states that the criminal charges were still pending; in the sixth, the brief is silent. Given the brief’s description of the circumstances of the crimes that were charged in these six cases, it seems probable that all of the six will be, or by now have been, convicted of the felonies for which they were arrested.

It is likely that the inclusion of the DNA profiles of neverconvicted California felony arrestees in the CODIS database under Proposition 69 will help solve some crimes, but based

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea5g4eo: f5549of 59

HASKELL v. H ARRIS

2003

on the evidence presented to the district court we do not know how likely.

3. Preventing Future Crimes

The district court was presented with evidence purporting to show the effectiveness of Proposition 69 in preventing future crime, but the court gave it “little weight.” Haskell v. Brown, 677 F. Supp. 2d 1187, 1201 (N.D. 2009). The court wrote, “Though the government might be able to introduce more reliable evidence about the efficacy of arrestee DNA in preventing future crimes, it has not done so convincingly at this stage of the litigation. ” Id.

Despite the district court’s statement, the majority writes, “DNA not only solves past crimes, but it helps police prevent crimes from occurring in the future. ” Maj. Op. at 1979.

4. Exonerating Innocent Suspects

The district court gave little weight to the State’s interest in exonerating the innocent served by Proposition 69. It wrote, “At this stage of the litigation, this interest is not very strong. Though convicting the right person can theoretically serve to exonerate (or obviate the risk of investigating and prosecuting) the wrong person, the government has not yet introduced any evidence that the taking of arrestees’ DNA has led to either an increase in exonerations or a decrease in false accusations/convictions.” 677 F. Supp. 2d at 1201 n.12.

Despite the district court’s statement, the majority writes that “the DNA database also allows law enforcement officers to eliminate innocent persons from suspect lists ” and, in some cases, to free those who have been wrongly convicted. Maj. Op. at 1979. “There are few greater injustices than the wrongful imprisonment of an innocent person. ” Id. at 1980.

The majority uses the famous Chester Turner case to support its argument that DNA testing of never-convicted

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea5g5eo: f5559of 59

2004

HASKELL v. H ARRIS

arrestees serves to exonerate the innocent. David Jones was convicted in 1995 for three murders he did not commit. Turner was convicted of rape in 2002 and a DNA sample was then taken. Turner’s DNA profile matched DNA collected at two of the three murder scenes, and Jones was released from prison in 2004. If Turner’s DNA had been available in 1995, it likely would have prevented Jones’s wrongful conviction. But Proposition 69 was not necessary for this purpose. Turner had been convicted of a felony before 1995. If Turner’s DNA had been taken when he was convicted of that felony, as it could have been even without Proposition 69’s authorization of DNA collection from arrestees, it would have been available to exonerate Jones during the investigation of the murders.

B. Plaintiff’s Privacy Interests

Our cases upholding mandatory DNA testing have started from the assumption of “ ‘severely diminished expectations of privacy’ ” for those who have been convicted of crimes. See Kriesel, 508 F.3d at 941 (quoting Samson, 547 US. at 882). In those cases, we have found that felony parolees and those on supervised release are “ ‘not entitled to the full panoply of rights and protections possessed by the general public.’ ” Kriesel, 508 F.3d at 947 (quoting Kincade, 379 F.3d at 833).

This case, however, concerns arrestees. All four of the plaintiffs were arrested for felonies, but no plaintiff was convicted of the felonies for which he or she was arrested. Two of them were not even charged.

An arrestee does not have the same privacy interest as a person in the general population. See Rise, 59 F.3d at 1559-60 (holding those booking procedures requiring fingerprint identification of arrestees would be unlawful as applied to “free persons”). But we have repeatedly recognized that an arrestee has greater privacy interests than someone who has been convicted. See, e.g., United States v. Scott, 450 F.3d 863, 873 (9th

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea5g6eo: f5569of 59

HASKELL v. H ARRIS

2005

Cir. 2006) (holding that a “defendant out on his own recognizance before trial” possessed “privacy . . . interests far greater than a probationer’s”).

The majority recites “numerous degrading physical and emotional intrusions” to which imprisoned arrestees are subject, Majority Op. at 1967, but it misunderstands the nature of the privacy interests and does not take into account the justifications for impinging on those interests. The invasive search procedures upheld in Bell v. Wolfish , 441 U.S. 520, 558 & n.39 (1979) and Bull v. City & Cnty. of San Francisco , 595 F.3d 964, 971-73 (9th Cir. 2010), were justified by the need for “security and order ” in jails. Bell, 441 U.S. at 561. The same is true of the opposite-sex monitoring of prisoners while in the shower and bathroom upheld by the Seventh Circuit. Johnson v. Phelan, 69 F.3d 144, 146 (7th Cir. 1995) (noting the need for such monitoring because “inter-prisoner violence is endemic”).

The other intrusions cited by the majority have only been upheld in exigent or specialized situations. For example, the Eleventh Circuit has upheld the restraint and pepper-spray of an arrestee, but in that case, the arrestee “repeatedly placed officers’ lives and innocents’ lives in danger by engaging the police in a multi-county vehicle chase that did not end until [he] had crashed twice.” Garrett v. Athens-Clarke Cnty., Ga. , 378 F.3d 1274, 1280 (11th Cir. 2004). In Valdez v. Rosenbaum, we upheld a four-and-one-half month telephone-access restriction imposed on a pre-trial detainee. 302 F.3d 1039, 1048 (9th Cir. 2002). That restriction was imposed at the request of prosecutors “to prevent Valdez from tipping off his co-conspirators about the recently-issued indictments and, thereby, to ensure their capture with minimal danger to the arresting officers.” Id. at 1046.

Finally, the majority cites a case described in a newspaper article for the proposition that pretrial detainees can be “in lockdown for as much as 23½ hours a day, always shackled

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea5g7eo: f5579of 59

2006

HASKELL v. H ARRIS

in chains, even when taking a shower or making a phone call, and rarely being allowed to see daylight and breathe fresh air.” Maj. Op. at 1968. The majority misunderstands what happened in that case. The court did not find these conditions constitutional. Instead, the court held that the criminal defendant could not challenge them as a part of his criminal trial. The court denied the defendant’s motion “without prejudice to his right to file a separate civil action. ” Order at 14, United States v. Morgan, No. 2:07-cr-00145-KDJ-PAL (D. Nev. Oct. 23, 2008), ECF 399.

The majority’s assessment of plaintiffs’ privacy interest turns on the analogy between fingerprints and DNA. We once observed that “information derived from the [DNA] sample is substantially the same as that derived from fingerprinting. ” Rise, 59 F.3d at 1559-60. Our sister circuits have made similar observations. See United States. v. Mitchell , 652 F.3d 387, 410 (3rd. Cir. 2011) (en banc) ( “Given the record in front of us today, we conclude that a DNA profile is used solely as an accurate, unique, identifying marker—in other words, as fingerprints for the twenty-first century. ”); Boroian v. Mueller , 616 F.3d 60, 67 (1st Cir. 2010) ( “Given the DNA Act’s stringent limitations on the creation and use of DNA profiles, CODIS currently functions much like a traditional fingerprint database, permitting law enforcement to match one identification record against others contained in the database. ”); Banks v. United States , 490 F.3d 1178, 1192 (10th Cir. 2007) (“These restrictions allow the Government to use an offender’s DNA profile in substantially the same way that the Government uses fingerprint and photographic evidence—to identify offenders, to solve past and future crimes, and to combat recidivism.”).

But our more recent decisions have explicitly recognized that DNA testing constitutes a greater infringement on privacy than fingerprinting. In Kriesel, we noted that “concerns about DNA samples being used beyond identification purposes are real and legitimate.” 508 F.3d at 947-48. In Kincade, a major-

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea5g8eo: f5589of 59

HASKELL v. H ARRIS

2007

ity of the en banc court found that DNA testing represents a significantly greater infringement on privacy than fingerprinting. Judge Gould, concurring, wrote that “unlike fingerprints, DNA stores and reveals massive amounts of personal, private data about [an] individual. ” 379 F.3d at 842 n.3. “[U]nlike DNA, a fingerprint says nothing about the person’s health, their propensity for particular disease, their race and gender characteristics, and perhaps even their propensity for certain conduct.” Kriesel, 508 F.3d at 948 (quoting Kincade, 379 F.3d at 842 n.3 (Gould, J., concurring)).

The majority stresses the limited subset of genetic information used by law enforcement to establish a DNA profile, socalled “junk DNA.” Maj. Op. at 1970. However, “studies have begun to question the notion that junk DNA does not contain useful genetic programming material. ” Kincade, 379 F.3d at 818 n.6 (citation omitted). “[W]ith advances in technology, junk DNA may reveal far more extensive genetic information.” Kriesel, 508 F.3d at 947.

Even with today’s technology, however, junk DNA reveals more information than a fingerprint. Unlike fingerprint patterns, which do not appear to be hereditary, DNA sampling reveals information about familial relationships. Identical twins do not have the same fingerprints, but they do have the same DNA. Siblings, parents, and children, who do not have similar fingerprints, have similar DNAs. Because of this similarity, DNA has been used for “familial searching,” in which law enforcement officials look for partial DNA matches between crime scene DNA samples and DNA profiles in CODIS. Defendants claim that California does not currently conduct such familial searches on arrestee DNA profiles, but the possibility—even likelihood—that California will begin conducting such searches in the future remains. But see Mitchell, 652 F.3d at 409 n.19 (finding privacy concerns based on familial searching “speculative”).

CaseC: a1s0e-135:0195-2cv-00427/7293-/C2R01B2 DoIDcu: m80e7n8t141951 FiDlekdtE02n/t2ry8:/1523-1PagPea5g9eo: f5599of 59

2008

HASKELL v. H ARRIS Conclusion

We have never allowed the compulsory taking of DNA samples from mere arrestees. We should not begin now. Proposition 69 does not authorize the taking of DNA samples from felony arrestees for identification purposes. Rather, it authorizes the taking of DNA samples for solely investigative purposes. Such takings are unconstitutional under the Supreme Court’s decisions in Davis and Hayes, and under our decisions in Ortiz-Hernandez and Garcia-Beltran.

Because the unconstitutionality of Proposition 69 is clear under these cases, the totality of the circumstances test that we have applied in cases involving convicted felons is irrelevant. However, if I were to apply the test, I would find the State interests served by taking DNA samples from felony arrestees who will never be convicted of the felony for which they are arrested, and from arrestees before they are convicted of that felony, much weaker than the majority finds them. I would find the strength of plaintiffs’ privacy interests much stronger.

I respectfully dissent.

 </s> Case: 10-15152 03/20/2014

ID: 9023370 DktEntry: 171-1 Page: 1 of 13

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ELIZABETH AIDA HASKELL; REGINALD ENTO; JEFFREY PATRICK LYONS, JR.; AAKASH DESAI, on behalf of themselves and others similarly situated,
Plaintiffs-Appellants,

No. 10-15152
D.C. No. 3:09-cv-04779-
CRB

v.

OPINION

KAMALA D. HARRIS, Attorney General; EVA STEINBERGER, Assistant Bureau Chief for DNA Programs, California Department of Justice,
Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California
Charles R. Breyer, Senior District Judge, Presiding
Argued and Submitted En Banc December 9, 2013—San Francisco, California
Filed March 20, 2014
Before: Alex Kozinski, Chief Judge, Harry Pregerson, M. Margaret McKeown, Raymond C. Fisher, Ronald M.
Gould, Richard A. Paez, Richard C. Tallman, Johnnie B.

Case: 10-15152 03/20/2014

ID: 9023370 DktEntry: 171-1 Page: 2 of 13

2

HASKELL V. HARRIS

Rawlinson, Milan D. Smith, Jr., N. Randy Smith and Paul J. Watford, Circuit Judges.

Per Curiam Opinion; Concurrence by Judge Milan D. Smith, Jr.

SUMMARY*

Civil Rights
The en banc court affirmed the district court’s denial of a preliminary injunction in a class action brought under 42 U.S.C. § 1983 in which plaintiffs challenged a California law that requires all persons arrested for or charged with any felony or attempted felony to submit DNA samples for inclusion in law enforcement databases.
The en banc court determined that plaintiffs’ facial and as-applied challenges to the law turned on essentially the same question: Whether California’s DNA collection scheme was constitutional as applied to anyone “arrested for, or charged with, a felony offense by California state or local officials.” The en banc court held that after Maryland v. King, 133 S. Ct. 1958 (2013), the answer to that question was clearly yes. The en banc court held that the district court therefore did not abuse its discretion by denying a preliminary injunction that would apply to the entire class.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

Case: 10-15152 03/20/2014

ID: 9023370 DktEntry: 171-1 Page: 3 of 13

HASKELL V. HARRIS

3

The en banc court declined plaintiffs’ request to enter a preliminary injunction applicable only to a smaller class consisting of individuals arrested for certain felonies that were not, in plaintiffs’ view, covered by King. The en banc court stated that if plaintiffs believed they were entitled to a preliminary injunction as to a smaller class, they were free to seek it from the district court and then seek review on appeal.

Concurring in the judgment, Judge M. Smith stated that he agreed that the district court properly denied the motion for a preliminary injunction, but wrote separately to emphasize that California’s DNA collection law is materially indistinguishable from the Maryland law upheld in King. Judge M. Smith stated that because the last paragraph of the per curiam opinion vaguely implied that something of plaintiffs’ lawsuit may survive King, he respectfully concurred only in the judgment.

COUNSEL
Peter C. Meier, Paul Hastings LLP, San Francisco, California, Michael T. Risher, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, California (argued), for Plaintiffs-Appellants.
Kamala D. Harris, Attorney General, Douglas J. Woods, Senior Assistant Attorney General, Tamar Pachter, Supervising Deputy Attorney General, Enid A. Camps, Deputy Attorney General (argued), Daniel J. Powell, Deputy Attorney General, San Francisco, California, for DefendantsAppellees.

Case: 10-15152 03/20/2014

ID: 9023370 DktEntry: 171-1 Page: 4 of 13

4

HASKELL V. HARRIS

OPINION

PER CURIAM:

California law requires that all persons arrested for or charged with any felony or attempted felony submit DNA samples for inclusion in law enforcement databases. Cal. Penal Code § 296(a)(2), (4). Plaintiffs brought a class action under 42 U.S.C. § 1983, alleging that the law is unconstitutional on its face and as applied to the certified class, which includes “[a]ll persons who are, or will be, compelled to submit to the search and seizure of their body tissue and DNA under California Penal Code § 296(a)(2)(C) solely by reason of the fact that they have been arrested for, or charged with, a felony offense by California state or local officials.” The district court denied a motion for a preliminary injunction, Haskell v. Brown, 677 F. Supp. 2d 1187, 1189–90 (N.D. Cal. 2009), and plaintiffs appealed, 28 U.S.C. § 1292(a)(1).

A plaintiff seeking a preliminary injunction must demonstrate (1) a likelihood of success on the merits, (2) that he is likely to suffer irreparable harm in the absence of an injunction, (3) that the balance of equities favors his position and (4) that the injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Winter “requires the plaintiff to make a showing on all four prongs.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). Here, the plaintiffs cannot show that they will likely succeed on the merits.

Plaintiffs’ facial and as-applied challenges turn on essentially the same question: Is California’s DNA collection scheme constitutional as applied to anyone “arrested for, or

Case: 10-15152 03/20/2014

ID: 9023370 DktEntry: 171-1 Page: 5 of 13

HASKELL V. HARRIS

5

charged with, a felony offense by California state or local officials?” After Maryland v. King, 133 S. Ct. 1958 (2013), the answer is clearly yes. Plaintiffs’ counsel conceded as much at oral argument. Given that concession, plaintiffs cannot show that the district court abused its discretion in denying a preliminary injunction that would apply to the entire class. See Winter, 555 U.S. at 20; Alliance for the Wild Rockies, 632 F.3d at 1131.

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.

AFFIRMED.

M. SMITH, Circuit Judge, concurring in the judgment:
I agree with the per curiam opinion that California’s DNA collection law is clearly “constitutional as applied to anyone arrested for, or charged with, a felony offense by California state or local officials.” Accordingly, I also agree that the district court properly denied Plaintiffs-Appellants’ (Plaintiffs) motion for a preliminary injunction. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). I

Case: 10-15152 03/20/2014

ID: 9023370 DktEntry: 171-1 Page: 6 of 13

6

HASKELL V. HARRIS

write separately, however, to make clear what the per curiam opinion regrettably leaves unsaid. California’s DNA collection law is materially indistinguishable from the Maryland law upheld in Maryland v. King, 133 S. Ct. 1958 (2013), and Plaintiffs’ facial and as-applied challenges to California’s law therefore fail. Because the last paragraph of the per curiam opinion vaguely implies that something of Plaintiffs’ lawsuit may survive King, I respectfully concur only in the judgment.

I.

Because the per curiam opinion does not describe the relevant factual and procedural background of this case, I do so here.

A.

In 2004, California voters approved Proposition 69, which requires law enforcement to collect DNA samples from “any adult person arrested or charged with any felony offense . . . immediately following arrest, or during the booking . . . process or as soon as administratively practicable after arrest, but, in any case, prior to release on bail or pending trial or any physical release from confinement or custody.” Cal. Penal Code §§ 296(a)(2)(C), 296.1(a)(1)(A). The law took effect on January 1, 2009. Officers typically collect the DNA sample from a buccal swab that is swept along an arrestee’s inner cheek. An arrestee’s failure to comply with the DNA collection is a misdemeanor. Id. § 298.1(a).

Once officers collect the DNA sample, it is sent to a state laboratory, which creates a DNA profile of the arrestee. The laboratory then uploads the DNA profile into the Combined

Case: 10-15152 03/20/2014

ID: 9023370 DktEntry: 171-1 Page: 7 of 13

HASKELL V. HARRIS

7

DNA Index System (CODIS), a nationwide collection of federal, state, and local DNA profiles.

Only law enforcement officials may access a DNA profile, and they may only use the DNA for identification purposes. Id. §§ 295.1(a), 299.5(f). Unauthorized access or disclosure is punishable under state law by imprisonment and a criminal fine. Id. § 299.5(i). Federal law imposes similar penalties for unauthorized use of, or access to, CODIS. See 42 U.S.C. §§ 14133(c), 14135e(c). An arrestee who is not ultimately convicted may ask the trial court to order the sample destroyed and the DNA profile expunged. Cal. Penal Code § 299(b).

B.

Plaintiffs in this case provided DNA samples in connection with their felony arrests, but they were never convicted of the crimes for which they were arrested. On October 7, 2009, Plaintiffs filed a complaint, on behalf of a putative class, asserting that California’s DNA collection law is unconstitutional, both facially and as applied. On October 30, 2009, Plaintiffs moved for a preliminary injunction barring the application of the law to persons arrested for, but not convicted of, a felony offense. The district court denied Plaintiffs’ motion for a preliminary injunction on December 23, 2009. Plaintiffs timely appealed.

II.

The Supreme Court’s decision in King is fatal to Plaintiffs’ claims. In King, the Court held that “[w]hen officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station

Case: 10-15152 03/20/2014

ID: 9023370 DktEntry: 171-1 Page: 8 of 13

8

HASKELL V. HARRIS

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.” 133 S. Ct. at 1980. The Court recognized that although other DNAcollection statutes “vary in their particulars, such as what charges require a DNA sample, their similarity means that this case implicates more than the specific Maryland law. At issue is a standard, expanding technology already in widespread use throughout the Nation.” Id. at 1968.

Despite the clarity of the Supreme Court’s holding, Plaintiffs argue that King does not apply to California’s DNA collection law. But the purported distinctions that Plaintiffs identify are illusory.

A.

Plaintiffs first argue that King is distinguishable because Maryland’s law applies only to burglaries, crimes of violence, and attempts at either, which the Supreme Court characterized as “serious crimes.” Id. at 1967. By contrast, California’s law applies to all felonies. See Cal. Penal Code § 296(a)(2)(C). Plaintiffs contend that this difference is significant, as the California law applies to more minor crimes in which DNA evidence will rarely be relevant, including “wobblers” that can be charged as either a misdemeanor or a felony.

This argument has no traction. The Maryland law’s list of “serious crimes,” King, 133 S. Ct. at 1967, does not differ significantly from the California law’s limitation to adult felony arrestees. A felony is, of course, a serious crime. See Black’s Law Dictionary 694 (9th ed. 2009) (defining felony

Case: 10-15152 03/20/2014

ID: 9023370 DktEntry: 171-1 Page: 9 of 13

HASKELL V. HARRIS

9

as “[a] serious crime usu[ally] punishable by imprisonment for more than one year or by death”). Indeed, in outlining the scope of its decision, the Supreme Court explained that “[b]oth federal and state courts have reached differing conclusions as to whether the Fourth Amendment prohibits the collection and analysis of a DNA sample from persons arrested, but not yet convicted, on felony charges.” King, 133 S. Ct. at 1966 (emphasis added). The Court then stated that it “granted certiorari . . . to address the question.” Id. When viewed against this broad language, Plaintiffs’ attempt to limit King in this way is baseless.

More fundamentally, the Court’s reasoning in King is not dependent on the seriousness of the crimes involved. In upholding Maryland’s law, the Supreme Court defined the state’s interest in obtaining DNA as “identifying [the arrestee] not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody.” King, 133 S. Ct. at 1980. Under the Court’s rationale, the magnitude of the state’s interest does not necessarily depend on the seriousness of the crime of arrest. As the majority observed, “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” Id. at 1971 (quoting Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1520 (2012)) (internal alteration omitted).

The four dissenting Justices in King similarly recognized that there is no basis for limiting the Court’s holding to certain enumerated crimes. Describing the breadth of the majority’s reasoning, Justice Scalia explained in dissent that “[i]f one believes that DNA will ‘identify’ someone arrested for assault, he must believe that it will ‘identify’ someone arrested for a traffic offense.” King, 133 S. Ct. at 1989

Case: 10-15152 03/20/2014

ID: 9023370 DktEntry: 171-1 Page: 10 of 13

10

HASKELL V. HARRIS

(Scalia, J., dissenting). Justice Scalia thus reasoned that “[a]s an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.” Id. He predicted that “[w]hen there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, ‘We can find no significant difference between this case and King.’” Id.

Thus, the California law’s limitation to felony arrests is not meaningfully different from the Maryland law’s restriction to certain “serious crimes.” In upholding the Maryland law, the Supreme Court identified the state’s interest as identifying the arrestee as part of the booking process. This state interest does not vary with the “seriousness” of the felony at issue. Accordingly, Plaintiffs’ first attempt to distinguish King fails.

B.

Plaintiffs next argue that California’s law is distinguishable from the Maryland law approved in King because (1) it authorizes the collection of DNA from arrestees never charged with a crime; and (2) it allows police to analyze DNA samples without a judicial finding of probable cause. But, under King, these differences are not constitutionally relevant.

Unlike California, Maryland does not process DNA samples until after suspects are arraigned. See King, 133 S. Ct. at 1967. Nevertheless, the Supreme Court in King repeatedly emphasized the permissibility of DNA collection from arrestees at booking, holding that “DNA is, like fingerprinting and photographing, a legitimate police booking

Case: 10-15152 03/20/2014

ID: 9023370 DktEntry: 171-1 Page: 11 of 13

HASKELL V. HARRIS

11

procedure that is reasonable under the Fourth Amendment.” Id. at 1980. Indeed, the Court expressly held that “[i]n light of the context of a valid arrest supported by probable cause [the arrestee’s] expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks.” Id. (emphasis added).

In light of the Supreme Court’s focus on the collection of DNA samples in connection with arrest and booking, Plaintiffs’ argument that the filing of charges and a judicial probable-cause determination are conditions precedent to permissible DNA collection is unsupportable. Refusing to draw such a line makes good sense. The government’s interest in identifying arrestees attaches “when an individual is brought into custody,” id. at 1971, irrespective of whether the suspect is ultimately charged. For this reason, the Court explained that “[w]hen probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving those interests.” Id. The dissent likewise recognized that the majority’s reasoning applies to all arrests, regardless of subsequent charging decisions. See id. at 1989 (Scalia, J., dissenting) (“As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.” (emphasis added)). Plaintiffs’ arguments to the contrary are unavailing.

C.

Finally, Plaintiffs assert that California’s law is distinguishable from Maryland’s because California retains and uses DNA samples indefinitely even if a suspect is never charged or convicted. By contrast, Maryland automatically

Case: 10-15152 03/20/2014

ID: 9023370 DktEntry: 171-1 Page: 12 of 13

12

HASKELL V. HARRIS

expunges the DNA samples of every person it fails to convict. See Md. Pub. Safe Code Ann. § 2-504(d)(2). While Plaintiffs are correct that expungement of DNA samples is not automatic under California law, this distinction is not constitutionally relevant.

Even though California does not automatically expunge DNA samples, California law enables an arrestee to request expungement if no charges are filed, his case is dismissed, or he is found not guilty. Cal. Penal Code § 299(b). Plaintiffs counter that California will not, in practice, expunge DNA samples and profiles until after the relevant statute of limitations has expired. But Defendants-Appellees represent that the California Department of Justice interprets § 299 “to allow expungement as soon as the prosecuting attorney declines to press charges.” Appellees’ Supplemental Br. at 8 n.2. In view of this representation, there is strong reason to believe that the differences in expungement procedures between Maryland and California are not as great as Plaintiffs suggest.

In any event, the King Court did not view Maryland’s expungement procedures as important to the constitutionality of Maryland’s law. The Fourth Amendment search at issue is a buccal swab, and the “minor intrusion” that this “brief” procedure represents is not affected at all by the availability of expungement procedures. King, 133 S. Ct. at 1980. While the Supreme Court also analyzed whether the processing of the arrestee’s DNA sample intruded on his privacy interests, it did not suggest that post-collection expungement procedures would affect the constitutional inquiry. See id. at 1979–80. And the dissent did not view the majority’s holding as so limited. See id. at 1989 (Scalia, J., dissenting)

Case: 10-15152 03/20/2014

ID: 9023370 DktEntry: 171-1 Page: 13 of 13

HASKELL V. HARRIS

13

(“Perhaps the construction of such a genetic panopticon is wise.”).

III.

The majority in King expressly recognized that its decision “implicates more than the specific Maryland law,” id. at 1968, and the four dissenting Justices emphatically agreed. See id. at 1989 (Scalia, J., dissenting). After King, Plaintiffs’ facial and as-applied challenges to California’s DNA collection law are clearly without merit, and any amendment to Plaintiffs’ complaint would be futile. This case is over, and the district court has no obligation to give the Plaintiffs an opportunity to amend their complaint. For the foregoing reasons, I respectfully concur only in the judgment.

Case: 10-15152 03/20/2014

ID: 9023370 DktEntry: 171-2 Page: 1 of 5

United States Court of Appeals for the Ninth Circuit

Office of the Clerk 95 Seventh Street San Francisco, CA 94103

Information Regarding Judgment and Post-Judgment Proceedings

Judgment • This Court has filed and entered the attached judgment in your case. Fed. R. App. P. 36. Please note the filed date on the attached decision because all of the dates described below run from that date, not from the date you receive this notice.

Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2) • The mandate will issue 7 days after the expiration of the time for filing a petition for rehearing or 7 days from the denial of a petition for rehearing, unless the Court directs otherwise. To file a motion to stay the mandate, file it electronically via the appellate ECF system or, if you are a pro se litigant or an attorney with an exemption from using appellate ECF, file one original motion on paper.

Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1) Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)

(1) A. •
•

Purpose (Panel Rehearing): A party should seek panel rehearing only if one or more of the following grounds exist: ► A material point of fact or law was overlooked in the decision; ► A change in the law occurred after the case was submitted which
appears to have been overlooked by the panel; or ► An apparent conflict with another decision of the Court was not
addressed in the opinion. Do not file a petition for panel rehearing merely to reargue the case.

B. Purpose (Rehearing En Banc) • A party should seek en banc rehearing only if one or more of the following
grounds exist:

Post Judgment Form - Rev. 08/2013

1

Case: 10-15152 03/20/2014

ID: 9023370 DktEntry: 171-2 Page: 2 of 5

► Consideration by the full Court is necessary to secure or maintain uniformity of the Court’s decisions; or
► The proceeding involves a question of exceptional importance; or ► The opinion directly conflicts with an existing opinion by another
court of appeals or the Supreme Court and substantially affects a rule of national application in which there is an overriding need for national uniformity.
(2) Deadlines for Filing: • A petition for rehearing may be filed within 14 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the United States or an agency or officer thereof is a party in a civil case, the time for filing a petition for rehearing is 45 days after entry of judgment. Fed. R. App. P. 40(a)(1). • If the mandate has issued, the petition for rehearing should be accompanied by a motion to recall the mandate. • See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the due date). • An order to publish a previously unpublished memorandum disposition extends the time to file a petition for rehearing to 14 days after the date of the order of publication or, in all civil cases in which the United States or an agency or officer thereof is a party, 45 days after the date of the order of publication. 9th Cir. R. 40-2.
(3) Statement of Counsel • A petition should contain an introduction stating that, in counsel’s judgment, one or more of the situations described in the “purpose” section above exist. The points to be raised must be stated clearly.
(4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2)) • The petition shall not exceed 15 pages unless it complies with the alternative length limitations of 4,200 words or 390 lines of text. • The petition must be accompanied by a copy of the panel’s decision being challenged. • An answer, when ordered by the Court, shall comply with the same length limitations as the petition. • If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a petition for panel rehearing or for rehearing en banc need not comply with Fed. R. App. P. 32.

Post Judgment Form - Rev. 08/2013

2

Case: 10-15152 03/20/2014

ID: 9023370 DktEntry: 171-2 Page: 3 of 5

• The petition or answer must be accompanied by a Certificate of Compliance found at Form 11, available on our website at www.ca9.uscourts.gov under Forms.
• You may file a petition electronically via the appellate ECF system. No paper copies are required unless the Court orders otherwise. If you are a pro se litigant or an attorney exempted from using the appellate ECF system, file one original petition on paper. No additional paper copies are required unless the Court orders otherwise.
Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1) • The Bill of Costs must be filed within 14 days after entry of judgment. • See Form 10 for additional information, available on our website at www.ca9.uscourts.gov under Forms.
Attorneys Fees • Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees applications. • All relevant forms are available on our website at www.ca9.uscourts.gov under Forms or by telephoning (415) 355-7806.
Petition for a Writ of Certiorari • Please refer to the Rules of the United States Supreme Court at www.supremecourt.gov
Counsel Listing in Published Opinions • Please check counsel listing on the attached decision. • If there are any errors in a published opinion, please send a letter in writing within 10 days to: ► Thomson Reuters; 610 Opperman Drive; PO Box 64526; St. Paul, MN 55164-0526 (Attn: Jean Green, Senior Publications Coordinator); ► and electronically file a copy of the letter via the appellate ECF system by using "File Correspondence to Court," or if you are an attorney exempted from using the appellate ECF system, mail the Court one copy of the letter.

Post Judgment Form - Rev. 08/2013

3

Case: 10-15152 03/20/2014

ID: 9023370 DktEntry: 171-2 Page: 4 of 5

Form 10. Bill of Costs ................................................................................................................................(Rev. 12-1-09)

United States Court of Appeals for the Ninth Circuit

BILL OF COSTS

Note:

If you wish to file a bill of costs, it MUST be submitted on this form and filed, with the clerk, with proof of service, within 14 days of the date of entry of judgment, and in accordance with 9th Circuit Rule 39-1. A late bill of costs must be accompanied by a motion showing good cause. Please refer to FRAP 39, 28 U.S.C. § 1920, and 9th Circuit Rule 39-1 when preparing your bill of costs.

v.

9th Cir. No.

The Clerk is requested to tax the following costs against:

Cost Taxable under FRAP 39, 28 U.S.C. § 1920, 9th Cir. R. 39-1
Excerpt of Record Opening Brief Answering Brief

REQUESTED Each Column Must Be Completed

ALLOWED To Be Completed by the Clerk

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

No. of Pages per Cost per

Docs.

Doc.

Page*

TOTAL COST

$

$

$

$

$

$

Reply Brief

$

$

$

$

Other**

$

$

$

$

TOTAL: $

TOTAL: $

* Costs per page may not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1.
** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be considered.

Attorneys' fees cannot be requested on this form.

Continue to next page.

Case: 10-15152 03/20/2014 Form 10. Bill of Costs - Continued

ID: 9023370 DktEntry: 171-2 Page: 5 of 5

I,

, swear under penalty of perjury that the services for which costs are taxed

were actually and necessarily performed, and that the requested costs were actually expended as listed.

Signature ("s/" plus attorney's name if submitted electronically) Date
Name of Counsel:

Attorney for:

(To Be Completed by the Clerk) Date

Costs are taxed in the amount of $ Clerk of Court By:

, Deputy Clerk

 </s> Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 1 of 23

United States District Court Northern District of California

1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 ELIZABETH AIDA HASKELL, et al.,

9

Plaintiffs,

10

v.

11 EDMUND G. BROWN, et al.,

Case No. 09-cv-04779-CRB
ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS

12

Defendants.

13

14

In 2014, Defendants brought a Motion for Judgment on the Pleadings, arguing that

15 this case, which challenges California’s DNA Act, is foreclosed by Maryland v. King, 133

16 S. Ct. 1958 (2013). See Mot. (dkt. 151); see also Opp’n (dkt. 159); Reply (dkt. 162); 2014

17 Mot. Hearing (dkt. 167). The Court did not rule on the motion, however, instead staying

18 the case pending final resolution of a similar challenge to California’s DNA Act in state

19 court. See Order Staying Case (dkt. 169). In April of 2018, the California Supreme Court,

20 in People v. Buza, 4 Cal. 5th 658 (2018), upheld California’s DNA Act under both federal

21 and California law as to the felony arrestee in that case. This Court lifted its stay, and

22 sought the parties’ views on Buza. See Order Lifting Stay and Directing Briefing (dkt.

23 170); see also Pls. Br. (dkt. 171); Defs. Br. (dkt. 172); Order Directing Briefing and Setting

24 Hearing (dkt. 173); Pls. Reply (dkt. 175); Defs. Reply (dkt. 176); 2018 Mot. Hearing (dkt.

25 177). As explained below, the Court now GRANTS Defendant’s motion under King and

26 consistent with Buza.

27 I. BACKGROUND

28

The Court’s December 2009 Order Denying Motion for Preliminary Injunction (dkt.

Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 2 of 23

United States District Court Northern District of California

1 78) included a lengthy background section, which the Court will not replicate here. In

2 sum, Plaintiffs are individuals who were arrested on felony crimes and whose DNA

3 samples were taken at the station house. FAC (dkt. 56) ¶¶ 13–25. No charges were filed

4 against Plaintiffs Haskell, Ento, or Desai after their arrests. Id. ¶¶ 14, 17, 22. Plaintiffs

5 brought suit in October 2009, alleging that California Penal Code section 296(a)(2)(C),

6 which provides for the mandatory DNA sampling of felony arrestees in California, is an

7 illegal search and seizure under the Fourth Amendment, a violation of their rights to

8 substantive due process under the Fourteenth Amendment, and a violation of their rights to

9 procedural due process under the Fourteenth Amendment. See generally Compl. (dkt. 1).

10 Plaintiffs amended their complaint in December 2009, see generally FAC, and the Court

11 denied Plaintiffs’ Motion for Preliminary Injunction that same month, see Order Denying

12 Motion for Preliminary Injunction. A Ninth Circuit panel affirmed. See Haskell v. Harris,

13 669 F.3d 1049 (9th Cir. 2012).

14

While this case was pending before an en banc panel, the Supreme Court issued the

15 King decision, upholding Maryland’s arrestee DNA law. See generally King, 133 S. Ct. at

16 1958. The Maryland law authorizes the collection of DNA from individuals “charged with

17 . . . a crime of violence or an attempt to commit a crime of violence; or . . . burglary or an

18 attempt to commit burglary.” Id. at 1967. It prohibits law enforcement from processing

19 the DNA sample or placing it into a database without consent until the arrestee is

20 arraigned. Id. And it provides that the sample is to be immediately destroyed if all

21 qualifying charges are later found to be without probable cause, if a criminal action against

22 the individual does not result in conviction, if the conviction is reversed or vacated and no

23 new trial permitted, or if the individual is pardoned. Id. The Supreme Court, rather than

24 limit its discussion to the Maryland law, noted that twenty-eight states “have adopted laws

25 similar to the Maryland Act” and explained that “[a]lthough those statutes vary in their

26 particulars, such as what charges require a DNA sample, their similarity means that this

27 case implicates more than the specific Maryland law.” Id. at 1968.

28

The Supreme Court held that a DNA swab procedure is a search subject to the

2

Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 3 of 23

United States District Court Northern District of California

1 Fourth Amendment; in analyzing that search, the Court weighed five government interests

2 against the individual arrestees’ interest in privacy. Id. at 1970–79. The Court focused

3 primarily on “the need for law enforcement officers in a safe and accurate way to process

4 and identify the persons and possessions they must take into custody,” id. at 1970,

5 explaining that “‘[i]n every criminal case, it is known and must be known who has been

6 arrested and who is being tried.’” Id. at 1971 (quoting Hiibel v. Sixth Judicial Dist. Court

7 of Nev., Humboldt Cnty., 542 U.S. 177, 191 (2004)). The Court observed that it “must

8 give great weight both to the significant government interest at stake in the identification

9 of arrestees and to the unmatched potential of DNA identification to serve that interest,”

10 and held that, balanced against the “minimal” “intrusion of a cheek swab” and the

11 arrestee’s “necessarily . . . diminished” expectations of privacy, the search was reasonable.

12 Id. at 1977–78. The Court therefore concluded: “When officers make an arrest supported

13 by probable cause to hold for a serious offense and they bring the suspect to the station to

14 be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like

15 fingerprinting and photographing, a legitimate police booking procedure that is reasonable

16 under the Fourth Amendment.” Id. at 1980 (emphasis added).

17

Following King, the Ninth Circuit held that this Court did not err in denying a

18 preliminary injunction on behalf of anyone arrested for, or charged with, a felony. Haskell

19 v. Harris, 745 F.3d 1269, 1271 (9th Cir. 2014) (en banc) (per curium). The Ninth Circuit

20 declined to enter a narrower injunction urged by Plaintiffs, adding that “[i]f plaintiffs

21 believe they’re entitled to a preliminary injunction as to a smaller class, they are free to

22 seek it from the district court and we will review it if and when it is presented to us.”

23 Haskell, 745 F.3d at 1271. Judge Milan Smith concurred, asserting that the majority

24 opinion “vaguely implies that something of Plaintiffs’ lawsuit may survive King” but that,

25 under King, “[t]his case is over.” See id. at 1271, 1275 (Smith, J., concurring).

26

This Court then stayed this case while awaiting the California Supreme Court’s

27 decision in People v. Buza, 4 Cal. 5th 658 (2018). See Order Staying Case. That decision

28 came in April. See Buza, 4 Cal. 5th 658. The defendant in Buza was arrested for arson

3

Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 4 of 23

United States District Court Northern District of California

1 and related felonies; at booking, he refused to provide a DNA specimen as required by the

2 DNA Act. 4 Cal. 5th at 684. He was convicted of the arson-related felonies as well as the

3 misdemeanor offense of refusing to provide a DNA sample. Id. After the Court of Appeal

4 twice reversed the misdemeanor conviction, the California Supreme Court reversed the

5 Court of Appeal, based on King. Id. at 670 (“King . . . has significantly altered the terms

6 of the debate.”). Although the defendant argued that there were “three features of the

7 DNA Act . . . that, in his view, distinguish this case from King,” id. at 694, the court 8 disagreed, id. at 683.1 Although the court began by framing the issue quite broadly, see id.

9 at 669 (“We granted review to decide whether the collection and analysis of forensic

10 identification DNA database samples from felony arrestees . . . violates . . . the Fourth

11 Amendment to the United States Constitution”), it then narrowed its focus: “The sole

12 question before us is whether it was reasonable, under . . . the Fourth Amendment. . . to

13 require the defendant in this case to swab his cheek as part of a routine jail booking

14 procedure following a valid arrest for felony arson,” id. at 691 (emphasis added). In fact,

15 the Buza court noted that “a group . . . in federal court have already challenged the law’s

16 application to those who are never charged with any crime,” citing this case. Id. at 693.

17

At this Court’s direction, the parties submitted supplemental briefs about the impact

18 of the Buza opinion. See Pls. Br.; Defs. Br.; Pls. Reply; Defs. Reply. Unsurprisingly,

19 Defendants urge the Court to grant their motion for judgment on the pleadings, arguing

20 that King controls, see Defs. Br. at 2, and Plaintiffs urge the Court to deny the motion,

21 arguing that they were arrested but never charged, and so neither King nor Buza apply, see

22 Pls. Br. at 2.

23 II. LEGAL STANDARD

24

Judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) is

25 proper “when the moving party clearly establishes on the face of the pleadings that no

26 material issue of fact remains to be resolved and that it is entitled to judgment as a matter

27

28

1 The court went on to conclude that the DNA Act is also constitutional under the California Constitution, an issue not before this Court. See id. at 691; FAC (dkt. 56).

4

Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 5 of 23

United States District Court Northern District of California

1 of law.” Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th

2 Cir. 1990) (citation omitted). When a party invokes Rule 12(c) to raise the defense of

3 failure to state a claim, the motion faces the same test as a motion under Rule 12(b)(6).

4 Wood v. Cnty. of Alameda, 875 F. Supp. 659, 661 (N.D. Cal. 1995). “A dismissal on the

5 pleadings for failure to state a claim is proper only if ‘the movant clearly establishes that

6 no material issue of fact remains to be resolved. . . .’” McGlinchy v. Shell Chem. Co., 845

7 F.2d 802, 810 (9th Cir. 1988) (citing Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d 1480,

8 1482 (9th Cir. 1984)).

9 III. DISCUSSION

10

Defendants argue that King forecloses this case. See Mot. at 8–18; Reply at 1–10.2

11 Plaintiffs have taken different positions in opposing that argument. In 2014, they asserted

12 that the DNA Act is unconstitutional, despite King, both because of differences between

13 the California law and the Maryland law at issue in King, and because the government

14 interests identified in King do not apply with the same force to individuals arrested but not

15 charged. See Opp’n at 6–14. In 2018, they have taken a new position, arguing that while

16 it is “still an open question after” King whether the DNA Act is unconstitutional as to

17 individuals arrested and not charged, “[e]ven if the Fourth Amendment allows the

18 government to seize a DNA sample from everybody arrested on suspicion of a felony,

19 once the government determines that it will not prosecute a person, or charges are

20 dismissed, the government’s interests no longer justify analyzing that sample to obtain a

21 DNA profile.” Pls. Br. at 1. The Court addresses Plaintiffs’ arguments in reverse order:

22 (A) that while taking a DNA sample at booking is permissible, analyzing it is not; (B) that

23 the government interests in King are not present here; and (C) that there are significant

24

25

2 Defendants also argue that the DNA Act does not violate Plaintiffs’ rights to substantive or procedural due process. Mot. at 18–21. Plaintiffs do not address due process in their Opposition

26

brief, and indeed suggest that they are no longer making such a challenge. See Opp’n at 6 (“The question before this court is therefore whether any of the plaintiffs have stated a claim that the law

27

violates the Fourth Amendment as applied to their arrests.”). Nor did they raise the issue at the motion hearing. Accordingly, the Court considers the due process claims waived. See Jenkins v.

28

County of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005) (plaintiff abandoned claims by not raising them in opposition to motion for summary judgment).

5

Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 6 of 23

United States District Court Northern District of California

1 differences between the Maryland and California laws.

2

A. Taking But Not Analyzing DNA

3

Plaintiffs assert in their briefing, and repeated at the motion hearing, that they are

4 “propos[ing]” a “rule” that would allow law enforcement to seize samples from all felony

5 arrestees, but that would prevent law enforcement from analyzing those samples until a

6 prosecutor has filed charges. Pls. Br. at 7, 8. The Court rejects this new position.

7

First, while nothing prevents Plaintiffs from proposing rules, the Court is not in the

8 business of weighing legislative proposals. The DNA Act says what it says. It allows for

9 the taking and analysis of a felony arrestee’s DNA at booking. See FAC ¶¶ 45–49; Cal.

10 Penal Code §§295–299.5. While a different system might be better, or worse, the Court’s

11 task is to assess the constitutionality of the DNA Act as written.

12

Second, Plaintiffs’ new position is inconsistent with King. Plaintiffs are clever to

13 argue that, while it might make sense to take an arrestee’s DNA sample at booking, the

14 government cannot justify analyzing that sample once the arrestee is no longer accused of

15 a crime. See Pls. Br. at 4–8. This new position, allowing for early DNA collection,

16 eliminates some of Defendants’ 2014 arguments—for example, that if law enforcement did

17 not take a DNA sample at booking, “[i]ndividuals out of custody prior to charging have

18 every incentive to flee knowing that a DNA sample taken later after charging will likely

19 connect them to their unsolved violent crimes.” See Reply at 8; id. n.4; see also Buza, 4

20 Cal. 5th at 676 (“there are practical reasons for collecting the required DNA sample at the

21 time of booking. . . . if the arrestee is released pending adjudication, officials may not have

22 another opportunity.”). But King does not separate out the two steps in DNA

23 identification.

24

King held that the government’s interests attach when an individual is taken into

25 custody. 133 S. Ct. at 1966 (“collection and analysis of a DNA sample from persons

26 arrested, but not yet convicted, on felony charges”); id. at 1971 (“[w]hen probable cause

27 exists to remove an individual from the normal channels of society and hold him in legal

28 custody”); id. (“real interest in identification at stake when an individual is brought into

6

Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 7 of 23

United States District Court Northern District of California

1 custody.”); id. (“[a] suspect’s criminal history is a critical part of his identity that officers

2 should know when processing him for detention.”); id. at 1980 (“context of arrest gives

3 rise to significant state interests in identifying respondent”); see also Haskell, 745 F.3d at

4 1274 (M. Smith, concurring) (“The government’s interest in identifying arrestees attaches

5 ‘when an individual is brought into custody,’ . . . irrespective of whether the suspect is

6 ultimately charged.”) (quoting King, 133 S. Ct. at 1971); Buza, 4 Cal. 5th at 677 (“That

7 interest is one that attaches as soon as the suspect is ‘formally processed into police

8 custody’”) (quoting King, 133 S. Ct. at 1971).

9

King also held that, at the time that interest attaches—that is, “[w]hen officers make

10 an arrest supported by probable cause to hold for a serious offense and they bring the

11 suspect to the station to be detained in custody”—law enforcement may both “tak[e] and

12 analyz[e] a cheek swab of the arrestee’s DNA.” 133 S. Ct. at 1980. “Taking and

13 analyzing” the cheek swab is, the Court held, “like fingerprinting and photographing, a

14 legitimate police booking procedure.” Id. The Supreme Court spoke of both the taking of

15 an arrestee’s DNA and the analysis of that DNA as part of the broader process of

16 identification. As Buza explained, “‘DNA identification’ . . . necessarily involves both

17 taking and analyzing the sample.” 4 Cal. 5th at 677. It would make little sense for the

18 Court to have stated that “[a] suspect’s criminal history is a critical part of his identity that

19 officers should know when processing him for detention,” King, 133 S. Ct. at 1971, if it

20 meant that officers are only permitted to take, rather than analyze, DNA at booking: it is

21 the DNA analysis and the database search that provide officers with the arrestee’s criminal

22 history.

23

The Court’s treatment of the taking and analyzing as part of a single “identification”

24 process, rather than two independent searches, is consistent with its explanation that “the

25 13 CODIS loci are not themselves evidence of any particular crime, in the way that a drug

26 test can by itself be evidence of illegal narcotics.” See id. at 1972. Plaintiffs argue that

27 “[j]ust as the authority of the police to seize a cell phone incident to arrest does not mean

28 that they may search it without making a further showing, their authority to seize a DNA

7

Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 8 of 23

United States District Court Northern District of California

1 sample does not mean they can search (or continue to search) it unless they have valid

2 justification for doing so.” Pls. Br. at 6 (citing Riley v. California, 134 S. Ct. 2473

3 (2014)). But law enforcement officers conduct drug tests and search phones to look for

4 evidence of crime. See King, 133 S. Ct. at 1972; Riley, 134 S. Ct. at 2484 (impermissible

5 to search data on cell phone seized incident to arrest, because such data does not implicate

6 “concerns for officer safety or evidence preservation”). Law enforcement analyzes a DNA

7 sample taken at booking not to look for evidence of the crime for which the individual was

8 arrested, but to compare the arrestee’s unique DNA identifier against “records already in

9 their valid possession”—a tasked aimed at discovering “who has been arrested.” See 10 King, 133 S. Ct. at 1971–72.3

11

Plaintiffs rely on a recent Supreme Court decision holding that, in the context of a

12 traffic stop, “[a]uthority for the seizure . . . ends when tasks tied to the traffic infraction

13 are—or reasonably should have been—completed,” see Pls. Br. at 4 (quoting Rodriguez v.

14 United States, 135 S. Ct. 1609, 1614 (2015)). The Court in Rodriguez explained that

15 “[t]he seizure remains lawful only ‘so long as [unrelated] inquiries do not measurably

16 extend the duration of the stop.’” 135 S. Ct. at 1615. Accordingly, the Court held that,

17 although it was permissible for an officer to make “ordinary inquiries incident to [the

18 traffic] stop,” such as “checking the driver’s license, determining whether there are

19 outstanding warrants against the driver, and inspecting the automobile’s registration and

20 proof of insurance,” a dog sniff intended to detect “evidence of ordinary criminal

21 wrongdoing,” was not traffic-related and therefore improperly prolonged the stop. Id.

22 Rodriguez does not apply, because the context and purpose of booking a felony arrestee at

23 the station house is so unlike a traffic stop, and because identifying an arrestee through his

24 DNA is more like “checking the driver’s license, determining whether there are

25 outstanding warrants against the driver, and inspecting the automobile’s registration and

26

27

3 While Plaintiffs note that they “have consistently argued that the analysis of their DNA is a distinct search,” see Pls. Reply at 1 (citing FAC ¶ 79), that allegation is a legal conclusion not

28

entitled to any weight, see Papasan v. Allain, 478 U.S. 265, 286 (1986) (citation omitted) (court is “not bound to accept as true a legal conclusion couched as a factual allegation.”).

8

Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 9 of 23

United States District Court Northern District of California

1 proof of insurance” than it is a dog sniff in search of evidence.

2

Plaintiffs’ further analogies of a parole search, Pls. Reply at 3, or of the search

3 incident to arrest discussed in Arizona v. Gant, 129 S. Ct. 1710 (2009),4 likewise fall flat,

4 because King did not view DNA analysis as a separate search for evidence. See King, 133

5 S. Ct. at 1972; Buza, 4 Cal. 5th at 673 (observing that the Supreme Court in King held

6 “that analysis of the DNA sample, once collected, does not result in a privacy intrusion

7 that violates the federal Constitution.”); cf. Johnson v. Quander, 440 F.3d 489, 498 (D.C.

8 Cir. 2006) (“the process of matching one piece of personal information against government

9 records does not implicate the Fourth Amendment”); id. at 499 (“intolerable burden if

10 every ‘search’ of an ordinary fingerprint database were subject to Fourth Amendment

11 challenges.”).

12

Plaintiffs suggest that it is disingenuous to pair the taking and analysis of DNA,

13 because of the time that elapses between the two steps. See, e.g., Opp’n at 7–9.5 Although

14 California law permits analysis of DNA samples without delay, Plaintiffs asserted in 2014

15 that it takes approximately two months for law enforcement to upload a DNA sample into

16 CODIS after collection. See Opp’n at 8 n.5; FAC ¶¶ 60–62. Indisputably, the time

17 between the two steps is shrinking. See Buza, 4 Cal. 5th at 677 (“in California it has

18 typically taken much longer—at the time of briefing, an average of 30 days—to generate

19 an identification profile from an arrestee’s DNA sample”); see also Defs. Reply at 8 n.6

20 (representing that the lag in California is currently eighteen days). And it is not difficult to

21 imagine that what once took months will soon take minutes. See, e.g., King, 133 S. Ct. at

22 1977 (noting that the FBI is testing devices with a 90 minute processing time); see also id. 23 (“[n]ew technology will only further improve its speed and therefore its effectiveness.”).6

24

25

4 In Gant, the Court held that “circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is ‘reasonable to believe evidence relevant to the crime of arrest might be

26

found in the vehicle,’” but that law enforcement cannot simply search an arrestee’s car for evidence of wrongdoing when there is no evidentiary basis to do so. 129 S. Ct. at 1719 (quoting

27

Thornton v. United States, 541 U.S. 615, 632 (Scalia, J., concurring)). 5 Relatedly, at the motion hearing, Plaintiffs stated that while DNA analysis might be a routine

28

part of a booking procedure, “you don’t have a booking procedure lasting for weeks.” 6 Plaintiffs asserted at the motion hearing that if law enforcement could analyze the DNA while

9

Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 10 of 23

United States District Court Northern District of California

1

Even so, the Supreme Court has already considered and rejected this argument. In

2 King, the Court noted that “respondent’s primary objection to this analogy is that DNA

3 identification is not as fast as fingerprinting, and so it should not be considered to be the 4 21st-century equivalent.” Id. at 1976.7 But the Court explained that “rapid analysis of

5 fingerprints is itself of recent vintage,” that fingerprints used to take “weeks or months to

6 process,” and that it was not the technology that sped up fingerprint analysis that rendered

7 fingerprint analysis constitutional. Id. “The question of how long it takes to process

8 identifying information obtained from a valid search goes only to the efficacy of the search

9 for its purpose of prompt identification, not the constitutionality of the search.” Id. Buza

10 echoed this view, conceding that “[a] DNA profile is not, at least under present

11 technological conditions, generated immediately or nearly immediately, in the manner of

12 fingerprints,” but stating that “[s]uch delays have not been thought to undermine the basic

13 identification purposes of the information.” 4 Cal. 5th at 688.

14

Accordingly, the Court rejects Plaintiffs’ new position that even if it is permissible

15 to take an arrestee’s DNA at booking, it is unconstitutional to analyze that sample until or

16 unless the arrestee is charged with a crime. See Pls. Br. at 1. The Court now turns to

17 Plaintiffs’ original arguments distinguishing King.

18

B. Weighing of Interests

19

1. Government Interests

20

Plaintiffs insist that “only one of the five government interests that King identified

21 as legitimate can support taking, analyzing, and retaining DNA from people who are not

22 charged with any offense or are discharged for lack of probable cause before the sample is

23 sent to the laboratory, analyzed, and uploaded into CODIS.” Opp’n at 6; see also Pls. Br.

24

25 still processing the arrestees, “we lose.” That is not the case presently.

26

7 At the motion hearing here, Plaintiffs objected to the fingerprint-DNA analogy for an additional reason: because analyzing fingerprints only involves looking at ink, while analyzing DNA

27

involves chemicals—purportedly a more advanced technology. Both involve analysis, however. That one analyzes loops, whorls, and arches, while the other analyzes repeated DNA sequences is

28

a distinction without a difference. See id. at 1972 (“the only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides.”).

10

Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 11 of 23

United States District Court Northern District of California

1 at 4 (“With one possible exception, these interests all relate to processing a defendant

2 through the criminal-justice system,” and all disappear when a defendant is no longer part

3 of the criminal-justice system). Plaintiffs thus reject as inapplicable the government

4 interests King recognized in (a) identification of arrestees, (b) safety for facility staff and

5 detainees, (c) availability for trial, and (d) proper bail/release determinations, although they

6 concede that (e) “taking DNA from arrestees may result in freeing a person wrongfully

7 imprisoned for some other crime.” Opp’n at 7–9; see also Pls. Br. at 5 (“Although

8 [exonerating the innocent] may apply to people who are not ultimately prosecuted for a

9 crime, it cannot in itself support seizing and searching DNA from an arrestee.”). Plaintiffs

10 understate the government’s interests.

11

To be clear, as discussed above, King held that the government’s interests attach

12 when an individual is taken into custody. See 133 S. Ct. at 1971. When an individual is

13 taken into custody, prosecutors have not yet determined whether that individual will be

14 charged. Analyzing the government’s interests at the time of booking, but with knowledge

15 not available at the time of booking (i.e., that an individual will not subsequently be

16 charged), is putting one’s thumb on the scales. It also ignores the possibility that

17 identifying information revealed by DNA analysis could actually guide a prosecutor’s 18 determination of whether to charge. 8 Buza observed that “[e]ven if a DNA profile is not

19 generated until weeks or months after the initial booking, the information it yields about

20 the arrestee and his criminal history can still have an ‘important bearing’ on the processing

21 of an arrestee—whether, for example, to revisit an initial determination to release the

22 arrestee or to impose new release conditions.” 4 Cal. 5th at 689. Nonetheless, even as to

23 individuals arrested but not subsequently charged, the government’s interest at booking is

24

25

8 For example, at the motion hearing, the Court asked Plaintiffs’ counsel about a hypothetical arrest of an individual in possession of a firearm and a small quantity of drugs. The individual

26

says that his name is Jones and that he has a license for the firearm. His DNA results come back and show that his name is actually Smith, and that he is a convicted felon who was therefore not

27

permitted to carry a firearm. The Court stated that the government has an interest in knowing that the individual arrested was a felon in possession of a firearm. Plaintiffs’ counsel rejected the

28

government interest at issue as “a generalized interest in crime control,” but the Court views it as one way that DNA analysis could inform a charging decision.

11

Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 12 of 23

United States District Court Northern District of California

1 weighty.

2

Certainly the government interest that King identified in “ensuring that the custody

3 of an arrestee does not create inordinate ‘risks for facility staff, for the existing detainee

4 population, and for a new detainee’” is not relevant when an arrestee will be released from

5 custody before a DNA result is available. See 133 S. Ct. at 1972. Similarly, the

6 government interest that King identified in “‘ensuring that persons accused of crimes are

7 available for trials,’” id. at 1972–73, does not apply where there will be no trial. However,

8 the other three government interests King identified still apply.

9

a. Identification

10

The government has a significant interest in identification of arrestees. Id. at 1971

11 (“[i]n every criminal case, it is known and must be known who has been arrested and who

12 is being tried.”) (internal quotation marks omitted); see also Florence v. Bd. of Chosen

13 Freeholders of Cnty. of Burlington, 132 S. Ct. 1510, 1512 (2012) (jail operators “know

14 little at the outset about [an] arrestee,” who “may be carrying a fake ID or lie about his

15 identity.”); Proposition 69, Dec. of Purpose, § II (e) (“The state has a compelling interest

16 in the accurate identification of criminal offenders, and DNA testing at the earliest stages

17 of criminal proceedings for felony offenses will help thwart criminal perpetrators from

18 concealing their identities.”). Plaintiffs here complain that it is “convoluted” to claim that

19 connecting an individual with his past crimes is part of identification. See Pls. Reply at 2.

20 Though that might have been a valid criticism when this Court held in 2009 that

21 “identification means both who that person is . . . and what that person has done,” see

22 Order Denying Motion for Preliminary Injunction at 16, it no longer is in light of the

23 Supreme Court’s holding that “[a]n individual’s identity is more than just his name or

24 Social Security number. . . . A suspect’s criminal history is a critical part of his identity,”

25 King, 133 S. Ct. at 1971. The Court explained that “[p]olice already seek this crucial

26 identifying information” by taking photographs and comparing them to sketch artists’

27 drawings, showing mugshots to witnesses, and running fingerprints through electronic

28 databases of criminals and unsolved crimes, and it concluded that “the only difference

12

Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 13 of 23

United States District Court Northern District of California

1 between DNA analysis and the accepted use of fingerprint databases is the unparalleled

2 accuracy DNA provides.” Id. at 1971–72.

3

The government interest in identifying arrestees—both who they are and what they

4 have done—is present even if the arrestee is not ultimately charged with the felony for

5 which he has been arrested. Law enforcement still has a right to know “who has been

6 arrested” even if there is no “who is being tried.” See id., 133 S. Ct. at 1971; see also id. at

7 1970 (“need for law enforcement officers in a safe and accurate way to process and

8 identify the persons and possessions they must take into custody.”). Such an individual

9 might still be linked to a previous crime. See id. at 1971 (“It is a common occurrence that

10 people detained for minor offenses can turn out to be the most devious and dangerous

11 criminals.”). The government’s interest in knowing the criminal histories of its arrestees is

12 served by fingerprinting, photographing, and DNA analysis. Id. at 1971–72. Plaintiffs do

13 not argue that the government cannot take the fingerprints or photographs of individuals

14 arrested but not subsequently charged. Cf. Rise v. State of Or., 59 F.3d 1556, 1560 (9th

15 Cir. 1995) (“everyday ‘booking’ procedures routinely require even the merely accused to

16 provide fingerprint identification, regardless of whether investigation of the crime involves

17 fingerprint evidence.”); Smith v. United States, 324 F.2d 879, 882 (D.C. Cir. 1963)

18 (“elementary that a person in lawful custody may be required to submit to photographing, 19 and fingerprinting”) (internal citations omitted). DNA is no different.9

20

b. Assessing Danger

21

Another government interest the Court recognized in King is accurately assessing

22 “the danger [an arrestee] poses to the public,” which will “inform a court’s determination

23 whether the individual should be released on bail.” King, 133 S. Ct. at 1973. While bail

24 determinations do not apply to an individual never charged, Defendants reason

25 persuasively that “[w]hile the individual is out of custody on bail or . . . release, DNA

26

27 9 Plaintiffs suggested at the hearing that an individual would not expect the government to analyze

28

his DNA once he has been released from custody. The Court disagrees; it would not be a reasonable expectation that once an arrestee gave a sample, law enforcement would not look at it.

13

Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 14 of 23

United States District Court Northern District of California

1 testing results may identify the arrestee as a violent criminal who should not be released in

2 the community to reoffend.” Reply at 8. Taking the arrestee’s DNA at booking gives law

3 enforcement an early view into the arrestee’s dangerousness. See King, 133 S. Ct. at 1974

4 (“additional and supplemental data establishing more about the person’s identity and

5 background can provide critical information relevant to the conditions of release and

6 whether to revisit an initial release determination.”). This interest is therefore present.

7

c. Exoneration

8

Finally, the Court in King recognized that the government has an interest in

9 exoneration: “the identification of an arrestee as the perpetrator of some heinous crime

10 may have the salutary effect of freeing a person wrongfully imprisoned for the same

11 offense.” Id. at 1974. Plaintiffs concede, as they must, that this interest “may apply” to

12 individuals arrested but not charged. Opp’n at 8; Pls. Br. at 5. But they dismiss the

13 interest as an “afterthought” by the Court, assert that it cannot alone justify the invasion of

14 an individual’s privacy, and cite this Court’s Order Denying Preliminary Injunction, which

15 noted that the government had not identified evidence of increased exonerations. Opp’n at

16 8–9. The government’s interest in exoneration commands one full paragraph in the King

17 opinion, see 133 S. Ct. at 1974 (quoting J. Dwyer, P. Neufeld, & B. Scheck, Actual

18 Innocence 245 (2000)), but it is not an afterthought. The Court again spoke of protecting

19 the innocent a few pages later, noting that “[b]y identifying not only who the arrestee is but

20 also what other available records disclose about his past to show who he is, the police can

21 ensure that they have the proper person under arrest . . . and, just as important, they can

22 also prevent suspicion against or prosecution of the innocent.” Id. at 1977 (emphasis

23 added).

24

Moreover, despite the lack of evidence here (the motion is based on the pleadings,

25 after all), there is no question either that DNA evidence leads to exonerations, or that

26 exonerations are a worthy interest. See Dist. Attorney’s Office for Third Judicial Dist. v.

27 Osborne, 557 U.S. 52, 55 (2009) (referring to DNA’s “unparalleled ability both to

28 exonerate the wrongly convicted and to identify the guilty”); United States v. Kincade, 379

14

Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 15 of 23

United States District Court Northern District of California

1 F.3d 813, 839 n.38 (9th Cir. 2004) (“the CODIS database can help absolve the innocent

2 just as easily as it can inculpate the guilty. . . . use of CODIS promptly clears thousands of

3 potential suspects—thereby preventing them from ever being put in that position, and

4 ‘advancing the overwhelming public interest in prosecuting crimes accurately’”) (quoting

5 Rise, 59 F.3d at 1561); see also Buza, 4 Cal. 5th at 666 (noting Prop. 69 goal of

6 “exonerating persons wrongly suspected or accused of crime”). Indeed, it is a truism that

7 there is no greater injustice than the wrongful conviction of innocent people. Whether the

8 government interest in exoneration can “alone” justify the DNA searches here is beside the

9 point, given the other government interests present.

10

The Supreme Court in King gave “great weight” to the “significant government

11 interest at stake” in arrestee DNA analysis. 133 S. Ct. at 1977. The government’s interests

12 in identifying arrestees, in assessing their dangerousness, and in exonerating the innocent,

13 present in King, are also present in the case of individuals arrested for felonies but not

14 charged. The government’s interest here is therefore still weighty.

15

2. Individual Interest

16

As to the individual interest, Plaintiffs do not argue that it is any different here than

17 it was in King. See generally Opp’n; Pls. Br.; Pls. Reply.

18

King found that “the intrusion of a cheek swab to obtain a DNA sample is a

19 minimal one.” 133 S. Ct. at 1977. It found that “[t]he expectations of privacy of an

20 individual taken into police custody ‘necessarily [are] of a diminished scope,’” id. at 1978

21 (quoting Bell v. Wolfish, 441 U.S. 520, 557 (1979)), and that “[b]oth the person and the

22 property in his immediate possession may be searched at the station house,” id. (quoting

23 United States v. Edwards, 415 U.S. 800, 803 (1974)); see also Kincade, 379 F.3d at 837

24 (holding that “the DNA profile . . . established only a record of defendant’s identity—

25 otherwise personal information in which the qualified offender can claim no right of

26 privacy once lawfully convicted of a qualifying offense (indeed, once lawfully arrested and

27 booked into state custody)”). The Court noted that “[a] search of the detainee’s person

28 when he is booked into custody may involve a relatively extensive exploration,” including

15

Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 16 of 23

United States District Court Northern District of California

1 “requiring at least some detainees to lift their genitals or cough in a squatting position.”

2 King, 133 S. Ct. at 1978 (internal quotation marks and citations omitted). And the Court

3 held that, compared to such procedures, the “brief intrusion” of a buccal swab “does not

4 increase the indignity already attendant to normal incidents of arrest.” Id. at 1979.

5

The Court in King further held that the analysis of an arrestee’s swab “did not

6 intrude on [arrestees’] privacy in a way that would make [their] DNA identification

7 unconstitutional,” as the CODIS loci “do not reveal the genetic traits of the arrestee,” “they

8 are not tested for that end,” and the Maryland law (like the California law here) “provides

9 statutory protections that guard against further invasion of privacy.” Id. at 1979; Cal.

10 Penal Code § 299.5.

11

Weighing the government’s significant interest here against the individual’s modest

12 interest, such searches are reasonable. See King,133 S. Ct. at 1980 (“DNA identification

13 of arrestees is a reasonable search that can be considered part of a routine booking

14 procedure.”); see also Kincade, 479 F.3d at 864–65, 866 (Reinhardt, J., dissenting) ( “in

15 the face of ‘monumental’ government law enforcement interests, I find it difficult to

16 understand when suspicionless searches would be found to violate the Fourth

17 Amendment.”).

18

C. Differences between the California and Maryland Laws

19

Plaintiffs next seek to distinguish King based on three differences between the

20 California law at issue here and the Maryland law upheld there. Those differences are: (1)

21 arrestee DNA samples are analyzed before arraignment in California; (2) more crimes

22 qualify for mandatory DNA analysis in California; (3) records and samples are not

23 automatically expunged in California. See Opp’n at 10–14. The defendant in Buza sought

24 to distinguish King on precisely the same three grounds, with no success. See 4 Cal. 5th at

25 674 (“none of the differences to which defendant points meaningfully alters the

26 constitutional balance struck in King.”). The Court likewise does not find any of the three

27 differences constitutionally significant.

28

16

United States District Court Northern District of California

Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 17 of 23
1. Timing of Analysis
1
The biggest difference Plaintiffs point to is the timing of DNA analysis: in
2
Maryland, DNA samples are taken at booking but not analyzed until an individual is
3
arraigned, while in California, DNA is both taken and analyzed (albeit with some lag time)
4
at booking. See Opp’n at 10 (citing King, 133 S. Ct. at 1967). The practical result of this
5
difference is that Maryland’s law has an added layer of protection for individuals that
6
California’s law does not.
7
The Supreme Court was aware of this difference between various states’ laws. Not
8
only did it recognize that “[t]wenty-eight States and the Federal Government have adopted
9
laws similar to the Maryland Act authorizing the collection of DNA from some or all
10
arrestees” and that “those statutes vary in their particulars,” but the ACLU’s amicus brief
11
specifically highlighted that “[m]any jurisdictions take DNA from persons never charged
12
with a crime.” See King, 133 S. Ct. at 1968; Brief of Amici Curiae American Civil
13
Liberties Union et al. Supporting Respondent at *54, Maryland v. King, 133 S. Ct. 1958
14
(2013) (No. 12-207), 2013 U.S. S. Ct. Briefs LEXIS 751. The brief explained that
15
Maryland’s law differed from some jurisdictions because it permitted DNA collection
16
“from persons charged with, not merely arrested for, a crime.” Id. It went on to explain
17
that “[o]ther jurisdictions mandate collection ‘immediately following arrest, or during the
18
booking . . . process as soon as administratively practicable after arrest,’ with the samples
19
analyzed as soon thereafter as possible,” citing to the California law. Id.
20
That different states analyze DNA at different times did not concern the Supreme
21
Court. See Buza, 4 Cal. 5th at 677 (“reasoning of King itself does not lend substantial
22
support to the argument that [delay of sample analysis until charges are filed] is required
23
under these circumstances.”). As discussed above, the Court did not find it meaningful
24
that Maryland’s taking and analysis occur at different times. It held instead that “[w]hen
25
officers make an arrest supported by probable cause to hold for a serious offense and they
26
bring the suspect to the station to be detained in custody, taking and analyzing”—not just
27
taking—“a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a
28
17

Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 18 of 23

United States District Court Northern District of California

1 legitimate police booking procedure that is reasonable under the Fourth Amendment.”

2 King, 133 S. Ct. at 1980; see also id. at 1966 (framing the question as “whether the Fourth

3 Amendment prohibits the collection and analysis of a DNA sample from persons arrested,

4 but not yet convicted, on felony charges.”) (emphasis added).

5

Indeed, far from suggesting that law enforcement should postpone learning an

6 arrestee’s criminal history, the Court envisioned that DNA identification would take place

7 at the time of booking. See, e.g., id. at 1971 (“A suspect’s criminal history is a critical part

8 of his identity that officers should know when processing him for detention.”); see also

9 DNA Saves Amicus Brief (dkt. 150-1) at 7 (“King relied on the government interest in

10 identifying all people who have been taken into custody, not merely those who have had

11 charges filed after a judicial hearing.”). The court in Buza likewise acknowledged that

12 delaying the collection or processing of samples until after a judicial probable cause

13 finding or arraignment could pose a “meaningful risk of interference with the central

14 interest identified in King: the accurate identification of arrestees who are taken into police

15 custody.” 4 Cal. 5th at 678; see also United States v. Mitchell, 652 F.3d 387, 414 (3d Cir.

16 2011) (“To the extent that DNA profiling assists the Government in accurate criminal

17 investigations and prosecutions (both of which are dependent on accurately identifying the

18 suspect), it is in the Government’s interest to have this information as soon as possible.”);

19 Cal. General Election Official Voter Information Guide, Proposition 69, Ballot Pamp.,

20 Gen. elec. (Nov. 2, 2004), text of Prop. 69, § II (Findings and Declaration of Purpose),

21 p.135, available at http://vote2004.sos.ca.gov/voterguide/english.pdf (Ballot Pamp.) and

22 Ex. A to FAC (Proposition 69 is intended to “accurately and expeditiously” identify

23 criminal offenders through DNA profiles “at the earliest stages of criminal proceedings for

24 felony offenses.”).

25

Plaintiffs argue that California’s law runs afoul of a “constitutional preference for

26 judicial involvement.” Opp’n at 11. They note that while a police officer’s assessment of

27 probable cause can justify arresting someone for a brief period, only a judicial finding of

28 probable cause can justify holding someone for more than 48 hours, id. (citing Gerstein v.

18

Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 19 of 23

United States District Court Northern District of California

1 Pugh, 420 U.S. 103, 113–14 (1975)), and that while law enforcement may seize an

2 individual’s cell phone incident to arrest, searching that phone requires a warrant or

3 exigent circumstances, id. (citing Riley, 134 S. Ct. at 2486). But, as discussed above, the

4 Court in King did not treat DNA analysis like holding an individual for an extended time,

5 or searching his cell phone records; it treated both taking and analyzing DNA as “part of a 6 routine booking procedure.” 133 S. Ct. at 1980. 10

7

The timing of DNA analysis in California does not render California’s law

8 unconstitutional.

9

2. List of Crimes

10

The second difference between the Maryland and California laws is the list of

11 crimes that qualify an arrestee for DNA identification. Although Plaintiffs stated at the

12 motion hearing that they are no longer pressing this point, the Court will address it briefly

13 in the interest of completeness.

14

Plaintiffs argued that “California takes DNA from persons arrested for far less

15 serious crimes than those covered by the Maryland statute,” noting that King was arrested

16 for first- and second-degree assault after “menacing a group of people with a shotgun,”

17 King, 133 S. Ct. at 1965, while California law requires DNA sampling of all felonies,

18 some of which sound quite mild in comparison, see Opp’n at 12–13 (noting that “taking

19 $250 worth of nuts from an orchard” is a felony); see also FAC ¶¶ 13, 16, 22 (listing the

20 felonies at issue here). Plaintiffs contend that the Supreme Court made repeated reference

21 to crimes of violence, that the government has a greater interest in solving serious crimes,

22 and that DNA evidence is likely to be more useful in solving serious crimes. Opp’n at 13.

23

This argument has no merit. The Supreme Court was clear that, although the case

24 before it dealt with a particular Maryland law, its ruling applied to other states’ arrestee

25 DNA laws. See King, 133 S. Ct. at 1968 (citing “Brief for State of California et al.”); see

26

27

10 Plaintiffs’ reliance on the “pre-King precedent” of United States v. Pool, 621 F.3d 1213, 1215, 1228 (9th Cir. 2010), vacated as moot, 659 F.3d 761 (2011), which treated a magistrate judge’s

28

finding of probable cause to detain a person for trial as the “watershed event” that allowed the government to seize and search DNA, is therefore misplaced. See Opp’n at 11.

19

Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 20 of 23

United States District Court Northern District of California

1 also Brief for State of California et al. as Amici Curiae Supporting Petitioner at *2,

2 Maryland v. King, 133 S. Ct. 1958 (2013) (No. 12-207), 2013 WL 98697 (informing Court

3 that “the majority of state legislatures and the United States Congress have enacted statutes

4 requiring felony arrestees to provide buccal swab samples”) (emphasis added). The Court

5 noted that, although the different states’ laws varied “in their particulars, such as what

6 charges require a DNA sample,” its ruling implicated those laws as well. King, 133 S. Ct.

7 at 1968. In fact, the Supreme Court framed the question before it as “whether the Fourth

8 Amendment prohibits the collection and analysis of a DNA sample from persons arrested,

9 but not yet convicted, on felony charges.” Id. at 1966 (emphasis added).

10

Although the Court did refer to “dangerous” or “serious” crimes at various times in

11 the King opinion, see, e.g., id. at 1978 (“Once an individual has been arrested on probable

12 cause for a dangerous offense . . .”), its central holding that DNA identification is part of a

13 routine booking procedure, id. at 1980, did not depend on a felony’s dangerousness. See

14 Buza, 4 Cal. 5th at 674–75 (“King did not purport to limit its holding to those felonies that

15 happen to be classified as ‘violent’ or ‘dangerous’ as a matter of state law, nor did it

16 purport to create a new classification of violent offenses as a matter of federal

17 constitutional law.”). There is good reason for this.

18

First, felonies are serious offenses. See id. at 674 (“as a matter of ordinary usage, a

19 felony is considered a ‘serious’ offense”); Haskell, 745 F.3d at 1273 (Smith, J.,

20 concurring) (“A felony is, of course, a serious crime.”); Black’s Law Dictionary 650 (8th

21 ed. 2004) (defining felony as “a serious crime, usually punishable by imprisonment for

22 more than one year or by death”); Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2585

23 (2010) (quoting Black’s Law Dictionary definition of felony).

24

Second, variations in state law would make it difficult to have any universal

25 understanding of what subset of felonies would constitute particularly “dangerous” or

26 “serious” crimes under the Fourth Amendment. The court in Buza noted this, explaining

27 that states are “under no obligation to classify any particular set of crimes as ‘violent,’ and

28 different states often classify similar crimes differently.” 4 Cal. 5th at 675 n.2.

20

Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 21 of 23

United States District Court Northern District of California

1 Additionally, the Supreme Court has rejected the notion that “the laws of each State

2 [should] determine the reach of the Fourth Amendment.” See California v. Greenwood,

3 486 U.S. 35, 43 (1998).

4

Third, the relevant balancing test does not change depending on the seriousness of

5 the felony. An individual’s privacy interest does not vary depending on which felony

6 crime he commits. And the government’s interest in identifying arrestees does not shrink

7 when the arrest is for a minor offense. Indeed, the Court explained in King that “[i]t is a

8 common occurrence that ‘[p]eople detained for minor offenses can turn out to be the most

9 devious and dangerous criminals.’” 133 S. Ct. at 1971 (citing Florence, 566 U.S. at 334-

10 35). Plaintiffs’ argument that DNA evidence is more likely to be useful in solving serious

11 crimes, see Opp’n at 13, misses the point—the DNA evidence is not sought to solve the

12 crime for which the individual was arrested, see King, 133 S. Ct. at 1972 (“the 13 CODIS

13 loci are not themselves evidence of any particular crime); Rise, 59 F.3d at 1560 (“everyday

14 ‘booking’ procedures routinely require even the merely accused to provide fingerprint

15 identification, regardless of whether investigation of the crime involves fingerprint

16 evidence.”). The dissenting Justices in King also understood this. See King, 33 S. Ct. at

17 1989 (Scalia, J., dissenting) (“If one believes that DNA will ‘identify’ someone arrested

18 for assault, he must believe that it will ‘identify’ someone arrested for a traffic offense.

19 This Court does not base its judgments on senseless distinctions.”).

20

That California’s arrestee-DNA law applies to a broader range of crimes than the

21 Maryland law does not make it unconstitutional.

22

3. Expungement

23

The final difference Plaintiffs point to is expungement; they argue that the

24 California law “lacks the automatic expungement provision of Maryland’s law,” that

25 “there is no indication of how long this process takes,” and that it is altogether

26 “inadequate.” Opp’n at 12. Plaintiffs cite no authority in support of this position. Id. In

27 fact, Plaintiffs cite no authority holding that California is required to expunge non-

28 qualifying DNA records and samples at all. See generally Opp’n. As Defendants point

21

Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 22 of 23

United States District Court Northern District of California

1 out, courts have not held that a state must always return fingerprints or other identifying

2 information taken at arrest. Mot. at 19–20 (citing United States v. Schnitzer, 567 F.2d 536,

3 539–40 (2d Cir. 1977) (arrest records, fingerprints, photographs); Loder v. Municipal

4 Court, 17 Cal.3d 859, 863–65, 877 (1976) (arrest records); United States v. Kriesel, 720

5 F.3d 1137, 1139-40 (9th Cir. 2013) at 1139–40 (retention of DNA sample as apart from

6 DNA profile)). The court in Buza, 4 Cal. 5th at 680, also observed that “retention of an

7 arrestee’s fingerprints, photographs, and other identifying information in law enforcement

8 files generally has not been thought to raise constitutional concerns, even though the 9 arrestee may later be exonerated.”11 Given King’s holding that DNA sampling serves the

10 same function as fingerprinting and photographing, see 133 S. Ct. at 1972, 1980, it is not

11 clear that the Supreme Court would find that expungement is required.

12

Nonetheless, California has an expungement process.12 The Department of Justice

13 has an expedited expungement procedure so that neither a court hearing nor a 180-day

14 waiting period is required. See generally RJN (dkt. 152-1) Ex. A (Streamlined

15 Expungement Application Form). If the expedited request is denied, an individual may

16 still initiate a court proceeding, using a one-page judicial council form. See RJN Ex. B

17 (Expungement Request Instructions) at 6; Judicial Council of California, Petition for

18 Expungement of DNA Profiles and Samples (Jan. 1, 2009) available at

19 http://www.courtinfo.ca.gov/forms/documents/cr185.pdf (last visited June 7, 2018).

20

21 11 But see People v. Christiansen, 230 Cal. App. 4th 178, 181 (2014) (finding that, upon finding of

22

factual innocence under Cal. Penal Code section 851.8, law enforcement must seal and destroy records of arrest, which includes fingerprint impressions).

23

12 An individual arrested for felonies but not charged (and others not at issue here) “may make a written request to have his or her specimen and sample destroyed and searchable database profile

24

expunged from the databank program.” Cal. Penal Code § 299(b)(1). The trial court has discretion to grant or deny the request, and its decision is nonappealable. Id. at § 299(c)(1). The

25

Department of Justice “shall destroy” a specimen and sample and expunge a record “upon receipt of a court order that verifies the applicant has made the necessary showing at a noticed hearing,

26

and that includes” a written request for expungement, a “letter from the district attorney certifying that no accusatory pleading has been filed,” proof of written notice to the prosecuting attorney and

27

the Department of Justice that expungement has been requested,” and a “court order verifying that no retrial or appeal is pending and that it has been at least 180 days since the defendant notified

28

the prosecuting attorney and Department of Justice of the expungement request and the court has not received an objection by either.” Id. at § 299(c)(2).

22

Case 3:09-cv-04779-CRB Document 179 Filed 06/22/18 Page 23 of 23

 </s> Case: 3:09-cv-4779 As of: 02/01/2019 06:50 AM PST 1 of 17
ADRMOP,CLOSED,E−Filing
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:09−cv−04779−CRB

Haskell et al v. Brown et al Assigned to: Hon. Charles R. Breyer Case in other court: USCA, 10−15152 Cause: 42:1983 Civil Rights Act
Plaintiff Elizabeth Aida Haskell

Date Filed: 10/06/2009 Date Terminated: 06/26/2018 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question
represented by Michael Temple Risher ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 Email: mrisher@aclunc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Clarence Meier Paul Hastings LLP 55 Second Street, 24th Floor San Francisco, CA 94105−3441 415−856−7000 Fax: 415−856−7100 Email: petermeier@paulhastings.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Andrew Long Paul Hastings LLP 55 Second Street, 24th Floor San Francisco, CA 94105 415−856−7000x7235 Fax: 415−856−7100 TERMINATED: 03/05/2014 ATTORNEY TO BE NOTICED
Katharine Chao Olivier Schreiber & Chao LLP 201 Filbert Street, Suite 201 San Francisco, CA 94133 (415) 484−0980 Email: kathy@osclegal.com TERMINATED: 12/06/2010 ATTORNEY TO BE NOTICED
Sarah O Chang Paul Hastings LLP 55 Second Street, 24th Floor San Francisco, CA 94105 415−856−7066 Fax: 415−856−7100 Email: sarahchang@paulhastings.com TERMINATED: 11/03/2011 ATTORNEY TO BE NOTICED
Shilpi Agarwal

Case: 3:09-cv-4779 As of: 02/01/2019 06:50 AM PST 2 of 17

ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111 (415) 621−2493 Fax: (415) 255−1478 Email: sagarwal@aclunc.org ATTORNEY TO BE NOTICED

Plaintiff
Reginald Ento on behalf of themselves and others similarly situated

represented by Michael Temple Risher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Clarence Meier (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric Andrew Long Paul Hastings LLP 55 Second Street, 24th Floor San Francisco, CA 94105 415−856−7000x7235 Fax: 415−856−7100 TERMINATED: 03/05/2014 ATTORNEY TO BE NOTICED

Katharine Chao (See above for address) TERMINATED: 12/06/2010 ATTORNEY TO BE NOTICED

Sarah O Chang (See above for address) TERMINATED: 11/03/2011 ATTORNEY TO BE NOTICED

Shilpi Agarwal (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jeffrey Patrick Lyons, Jr.

represented by Eric Andrew Long (See above for address) TERMINATED: 03/05/2014 ATTORNEY TO BE NOTICED

Shilpi Agarwal (See above for address) ATTORNEY TO BE NOTICED

Peter Clarence Meier (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Aakash Desai

represented by Eric Andrew Long (See above for address) TERMINATED: 03/05/2014 ATTORNEY TO BE NOTICED

Peter Clarence Meier

Case: 3:09-cv-4779 As of: 02/01/2019 06:50 AM PST 3 of 17
(See above for address) ATTORNEY TO BE NOTICED
Shilpi Agarwal (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Edmund G. Brown, Jr. Attorney General of California
Defendant Eva Steinberger Assistant Bureau Chief for DNA Programs, California Department of Justice
Defendant Michael Hennessey Sheriff, San Francisco County TERMINATED: 01/08/2010
Defendant Kamala D. Harris
Defendant Xavier Becerra

represented by Daniel J. Powell Department of Justice, Attorney General's Office 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 (415)703−5830 Fax: 415−703−1234 Email: Daniel.Powell@doj.ca.gov TERMINATED: 10/21/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel J. Powell (See above for address) TERMINATED: 10/21/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Enid A. Camps Office of the Attorney General 455 Golden Gate Ave Suite 11000 San Francisco, CA 94102 415−510−3771 Fax: 415−703−1234 Email: enid.camps@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sherri Sokeland Kaiser Office of the City Attorney City & County of San Francisco #1 Dr. Carlton B. Goodlett Place City Hall, Room 234 San Francisco, CA 94102−4682 (415) 554−4691 Fax: (415) 554−4747 TERMINATED: 02/10/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Enid A. Camps (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 3:09-cv-4779 As of: 02/01/2019 06:50 AM PST 4 of 17

Enid A. Camps (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus DNA Saves

represented by Eric Andrew Herzog Norton Rose Fulbright US LLP 555 S Flower St Fl 41 Los Angeles, CA 90071 213−892−9200 Fax: 213−892−9494 Email: eric.herzog@nortonrosefulbright.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
California District Attorneys Associaton

represented by Albert Calvin Locher 901 G Street Sacramento, CA 95814 916−421−2069 Email: lochera@sacda.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/06/2009
10/06/2009 10/06/2009 10/07/2009 10/14/2009
10/14/2009
10/14/2009
10/26/2009 10/26/2009

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against Edmund G. Brown, Jr, Michael Hennessey, Eva Steinberger. CLASS ACTION ( Filing fee $ 350, receipt number 34611037523.) SUMMONS ISSUED. Filed byElizabeth Aida Haskell, Reginald Ento. (mcl, COURT STAFF) (Filed on 10/6/2009) (Additional attachment(s) added on 10/15/2009: # 1 Exhibit A to Complaint, # 2 Civil cover sheet) (mcl, COURT STAFF). (Entered: 10/08/2009)
2 ADR SCHEDULING ORDER: Case Management Statement due by 1/15/2010. Case Management Conference set for 1/22/2010 08:30 AM. (Attachments: # 1 Standing Order)(mcl, COURT STAFF) (Filed on 10/6/2009) (Entered: 10/08/2009)
CASE DESIGNATED for Electronic Filing. (mcl, COURT STAFF) (Entered: 10/08/2009)
3 Summons Issued as to Edmund G. Brown, Jr, Michael Hennessey, Eva Steinberger. (mcl, COURT STAFF) (Entered: 10/08/2009)
4 CERTIFICATE OF SERVICE by Reginald Ento, Elizabeth Aida Haskell re 3 Summons Issued Proof of Service of Summons and Complaint on Edmund G. Brown, Jr., Attorney General of California (Meier, Peter) (Filed on 10/14/2009) (Entered: 10/14/2009)
5 CERTIFICATE OF SERVICE by Reginald Ento, Elizabeth Aida Haskell re 3 Summons Issued Proof of Service of Summons and Complaint on Michael Hennessey, Sheriff, San Francisco County (Meier, Peter) (Filed on 10/14/2009) (Entered: 10/14/2009)
6 CERTIFICATE OF SERVICE by Reginald Ento, Elizabeth Aida Haskell re 3 Summons Issued Proof of Service of Summons and Complaint on Eva Steinberger, Assistant Bureau Chief for DNA Programs of California Department of Justice (Meier, Peter) (Filed on 10/14/2009) (Entered: 10/14/2009)
7 STIPULATION Extending Time to File Responsive Pleading and Setting Briefing Schedule by Edmund G. Brown, Jr, Eva Steinberger. (Powell, Daniel) (Filed on 10/26/2009) (Entered: 10/26/2009)
8 Proposed Order re 7 Stipulation Extending Time to File Responsive Pleading and Setting Briefing Schedule by Edmund G. Brown, Jr, Eva Steinberger. (Powell, Daniel)

Case: 3:09-cv-4779 As of: 02/01/2019 06:50 AM PST 5 of 17

10/30/2009
10/30/2009 10/30/2009 10/30/2009 10/30/2009 10/30/2009
10/30/2009 10/30/2009 10/30/2009 10/30/2009 10/30/2009 10/30/2009

(Filed on 10/26/2009) (Entered: 10/26/2009)
9 ORDER re 7 Stipulation filed by Eva Steinberger, Edmund G. Brown, Jr., Set/Reset Deadlines as to 7 Stipulation. Responisve Pleading or Motion due by 11/23/2009.Responses due by 12/14/2009. Replies due by 12/21/2009. Motion Hearing set for 1/8/2010 10:00 AM in Courtroom 8, 19th Floor, San Francisco.. Signed by Judge Charles R. Breyer on 10/29/09. (be, COURT STAFF) (Filed on 10/30/2009) (Entered: 10/30/2009)
10 STIPULATION on Scope of Any Preliminary Injunctive Relief by Reginald Ento, Elizabeth Aida Haskell. (Attachments: # 1 Proposed Order)(Meier, Peter) (Filed on 10/30/2009) (Entered: 10/30/2009)
11 STIPULATION Between Plaintiffs and Defendant Hennessey on Scope of Any Preliminary Injunctive Relief by Reginald Ento, Elizabeth Aida Haskell. (Attachments: # 1 Proposed Order)(Meier, Peter) (Filed on 10/30/2009) (Entered: 10/30/2009)
12 MOTION for Preliminary Injunction Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction filed by Reginald Ento, Elizabeth Aida Haskell. Motion Hearing set for 12/4/2009 10:00 AM. (Attachments: # 1 Proposed Order)(Meier, Peter) (Filed on 10/30/2009) (Entered: 10/30/2009)
13 Declaration of Peter Meier in Support of 12 MOTION for Preliminary Injunction Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction filed byReginald Ento, Elizabeth Aida Haskell. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Related document(s) 12 ) (Meier, Peter) (Filed on 10/30/2009) (Entered: 10/30/2009)
14 Declaration of Michael Risher in Support of 12 MOTION for Preliminary Injunction Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction filed byReginald Ento, Elizabeth Aida Haskell. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Related document(s) 12 ) (Meier, Peter) (Filed on 10/30/2009) (Entered: 10/30/2009)
15 Declaration of Elizabeth Aida Haskell in Support of 12 MOTION for Preliminary Injunction Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction filed byReginald Ento, Elizabeth Aida Haskell. (Attachments: # 1 Exhibit 1)(Related document(s) 12 ) (Meier, Peter) (Filed on 10/30/2009) (Entered: 10/30/2009)
16 Declaration of Reginald Ento in Support of 12 MOTION for Preliminary Injunction Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction filed byReginald Ento, Elizabeth Aida Haskell. (Related document(s) 12 ) (Meier, Peter) (Filed on 10/30/2009) (Entered: 10/30/2009)
17 Declaration of Bruce Budowle in Support of 12 MOTION for Preliminary Injunction Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction filed byReginald Ento, Elizabeth Aida Haskell. (Attachments: # 1 Exhibit A)(Related document(s) 12 ) (Meier, Peter) (Filed on 10/30/2009) (Entered: 10/30/2009)
18 Declaration of Robert Nussbaum in Support of 12 MOTION for Preliminary Injunction Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction filed byReginald Ento, Elizabeth Aida Haskell. (Attachments: # 1 Exhibit A)(Related document(s) 12 ) (Meier, Peter) (Filed on 10/30/2009) (Entered: 10/30/2009)
19 Declaration of Helen Wallace in Support of 12 MOTION for Preliminary Injunction Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction filed byReginald Ento, Elizabeth Aida Haskell. (Attachments: # 1 Exhibit A)(Related document(s) 12 ) (Meier, Peter) (Filed on 10/30/2009) (Entered: 10/30/2009)
20 Declaration of Troy Duster in Support of 12 MOTION for Preliminary Injunction Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction filed byReginald Ento, Elizabeth Aida Haskell.

Case: 3:09-cv-4779 As of: 02/01/2019 06:50 AM PST 6 of 17

10/30/2009 11/02/2009 11/02/2009 11/06/2009 11/06/2009 11/06/2009 11/13/2009 11/13/2009
11/13/2009 11/13/2009 11/13/2009

(Attachments: # 1 Exhibit A)(Related document(s) 12 ) (Meier, Peter) (Filed on 10/30/2009) (Entered: 10/30/2009)
21 Declaration of Sara Huston Katsanis in Support of 12 MOTION for Preliminary Injunction Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction filed byReginald Ento, Elizabeth Aida Haskell. (Attachments: # 1 Exhibit A)(Related document(s) 12 ) (Meier, Peter) (Filed on 10/30/2009) (Entered: 10/30/2009)
22 ORDER Granting Stipulation Between Plaintiffs and Hennessey on Scope of any Preliminary Injuctive Relief re 11 Stipulation filed by Elizabeth Aida Haskell, Reginald Ento. Signed by Judge Charles R. Breyer on 10/30/09. (be, COURT STAFF) (Filed on 11/2/2009) (Entered: 11/02/2009)
23 ORDER Granting Stipulation on Scope of any Preliminary Injuctive Relief re 10 Stipulation filed by Elizabeth Aida Haskell, Reginald Ento. Signed by Judge Charles R. Breyer on October 30, 2009. (be, COURT STAFF) (Filed on 11/2/2009) (Entered: 11/02/2009)
24 Amended MOTION to Amend/Correct 12 MOTION for Preliminary Injunction Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction Amended Notice of Motion for Preliminary Injunction filed by Reginald Ento, Elizabeth Aida Haskell. Motion Hearing set for 12/4/2009 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Meier, Peter) (Filed on 11/6/2009) (Entered: 11/06/2009)
25 CERTIFICATE OF SERVICE by Reginald Ento, Elizabeth Aida Haskell re 12 MOTION for Preliminary Injunction Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction, 13 − 21 Declarations in support (Meier, Peter) (Filed on 11/6/2009) Modified on 11/9/2009 (mcl, COURT STAFF). (Entered: 11/06/2009)
26 CERTIFICATE OF SERVICE by Reginald Ento, Elizabeth Aida Haskell re 24 Amended MOTION to Amend/Correct 12 MOTION for Preliminary Injunction Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction Amended Notice of Motion for Preliminary Injunction. (Meier, Peter) (Filed on 11/6/2009) Modified on 11/9/2009 (mcl, COURT STAFF). (Entered: 11/06/2009)
27 Memorandum in Opposition to 24 Motion for Preliminary Injunction filed byMichael Hennessey. (Kaiser, Sherri) (Filed on 11/13/2009) Modified on 11/16/2009 (mcl, COURT STAFF). (Entered: 11/13/2009)
28 Memorandum in Opposition re 24 Amended MOTION to Amend/Correct 12 MOTION for Preliminary Injunction Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction Amended Notice of Motion for Preliminary InjunctionAmended MOTION to Amend/Correct 12 MOTION for Preliminary Injunction Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction Amended Notice of Motion for Preliminary Injunction filed byEdmund G. Brown, Jr, Eva Steinberger. (Attachments: # 1 Certificate of Service)(Powell, Daniel) (Filed on 11/13/2009) (Entered: 11/13/2009)
29 Declaration of Linton A. Von Beroldingen in Support of 28 Memorandum in Opposition,, filed byEdmund G. Brown, Jr, Eva Steinberger. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Related document(s) 28 ) (Powell, Daniel) (Filed on 11/13/2009) (Entered: 11/13/2009)
30 Declaration of Kenneth C. Konzak in Support of 28 Memorandum in Opposition,, filed byEdmund G. Brown, Jr, Eva Steinberger. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Related document(s) 28 ) (Powell, Daniel) (Filed on 11/13/2009) (Entered: 11/13/2009)
31 Declaration of Douglas R. Hares in Support of 28 Memorandum in Opposition,, filed byEdmund G. Brown, Jr, Eva Steinberger. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Related document(s) 28 ) (Powell, Daniel) (Filed on 11/13/2009) (Entered: 11/13/2009)

Case: 3:09-cv-4779 As of: 02/01/2019 06:50 AM PST 7 of 17

11/13/2009 11/13/2009 11/13/2009 11/13/2009 11/13/2009 11/17/2009 11/17/2009 11/18/2009 11/18/2009
11/20/2009
11/20/2009 11/20/2009 11/20/2009 11/20/2009

32 Declaration of Denver District Attorney Mitchell R. Morrissey in Support of 28 Memorandum in Opposition,, filed byEdmund G. Brown, Jr, Eva Steinberger. (Attachments: # 1 Exhibit A)(Related document(s) 28 ) (Powell, Daniel) (Filed on 11/13/2009) (Entered: 11/13/2009)
33 Declaration of Daniel J. Powell in Support of 28 Memorandum in Opposition,, filed byEdmund G. Brown, Jr, Eva Steinberger. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Related document(s) 28 ) (Powell, Daniel) (Filed on 11/13/2009) (Entered: 11/13/2009)
34 Declaration of Jayann Sepich in Support of 28 Memorandum in Opposition,, filed byEdmund G. Brown, Jr, Eva Steinberger. (Attachments: # 1 Exhibit A−E)(Related document(s) 28 ) (Powell, Daniel) (Filed on 11/13/2009) (Entered: 11/13/2009)
35 Declaration of Jeannine M. Willie in Support of 28 Memorandum in Opposition,, filed byEdmund G. Brown, Jr, Eva Steinberger. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3−4)(Related document(s) 28 ) (Powell, Daniel) (Filed on 11/13/2009) (Entered: 11/13/2009)
36 Declaration of Branden C. Woods in Support of 28 Memorandum in Opposition,, filed byEdmund G. Brown, Jr, Eva Steinberger. (Related document(s) 28 ) (Powell, Daniel) (Filed on 11/13/2009) (Entered: 11/13/2009)
37 STIPULATION Between Plaintiffs and Defendant Hennessey Extending Time to File Responsive Pleading and Setting Briefing Schedule by Reginald Ento, Elizabeth Aida Haskell. (Meier, Peter) (Filed on 11/17/2009) (Entered: 11/17/2009)
38 Proposed Order re 37 Stipulation Between Plaintiffs and Defendant Hennessey Extending Time to File Responsive Pleading and Setting Briefing Schedule by Reginald Ento, Elizabeth Aida Haskell. (Meier, Peter) (Filed on 11/17/2009) (Entered: 11/17/2009)
39 ERRATA re 29 Declaration in Support, of Memorandum in Opposition by Edmund G. Brown, Jr, Eva Steinberger. (Powell, Daniel) (Filed on 11/18/2009) (Entered: 11/18/2009)
40 ORDER re 37 Stipulation filed by Elizabeth Aida Haskell, Reginald Ento, Set/Reset Deadlines as to 37 Stipulation. Responsive pleading or Motions due by 11/23/2009. Responses due by 12/14/2009. Replies due by 12/21/2009. Motion Hearing set for 1/15/2010 10:00 AM in Courtroom 8, 19th Floor, San Francisco. Signed by Judge Charles R. Breyer on 11/18/09. (be, COURT STAFF) (Filed on 11/18/2009) Modified on 11/19/2009 (mcl, COURT STAFF). (Entered: 11/18/2009)
41 Reply to Opposition re 24 Amended MOTION to Amend/Correct 12 MOTION for Preliminary Injunction Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction Amended Notice of Motion for Preliminary InjunctionAmended MOTION to Amend/Correct 12 MOTION for Preliminary Injunction Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction Amended Notice of Motion for Preliminary Injunction filed byReginald Ento, Elizabeth Aida Haskell. (Meier, Peter) (Filed on 11/20/2009) (Entered: 11/20/2009)
42 Declaration of Christopher F. Gauger in Support of 41 Reply to Opposition,, filed byReginald Ento, Elizabeth Aida Haskell. (Related document(s) 41 ) (Meier, Peter) (Filed on 11/20/2009) (Entered: 11/20/2009)
43 Declaration of Brad D. Hall in Support of 41 Reply to Opposition,, filed byReginald Ento, Elizabeth Aida Haskell. (Attachments: # 1 Exhibit A)(Related document(s) 41 ) (Meier, Peter) (Filed on 11/20/2009) (Entered: 11/20/2009)
44 Declaration of Jeffrey Patrick Lyons, Jr. in Support of 41 Reply to Opposition,, filed byReginald Ento, Elizabeth Aida Haskell. (Related document(s) 41 ) (Meier, Peter) (Filed on 11/20/2009) (Entered: 11/20/2009)
45 Declaration of Peter C. Meier in Support of 41 Reply to Opposition,, Supplemental Declaration of Peter C. Meier in Support of Plaintiff's Reply Brief Re: Motion for Preliminary Injunction filed byReginald Ento, Elizabeth Aida Haskell. (Attachments: # 1 Exhibit A)(Related document(s) 41 ) (Meier, Peter) (Filed on 11/20/2009)

Case: 3:09-cv-4779 As of: 02/01/2019 06:50 AM PST 8 of 17

11/20/2009 11/20/2009
11/20/2009
11/20/2009 11/23/2009 11/23/2009 11/23/2009
11/25/2009 12/01/2009 12/01/2009 12/01/2009
12/01/2009 12/01/2009

(Entered: 11/20/2009)
46 Declaration of Erin Murphy in Support of 41 Reply to Opposition,, filed byReginald Ento, Elizabeth Aida Haskell. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 41 ) (Meier, Peter) (Filed on 11/20/2009) (Entered: 11/20/2009)
47 Declaration of Helen Wallace in Support of 41 Reply to Opposition,, Supplemental Declaration of Helen Wallace in Support of Plaintiffs' Reply Brief Re: Motion for Preliminary Injunctiion filed byReginald Ento, Elizabeth Aida Haskell. (Attachments: # 1 Exhibit A)(Related document(s) 41 ) (Meier, Peter) (Filed on 11/20/2009) (Entered: 11/20/2009)
48 Declaration of Michael T. Risher in Support of 41 Reply to Opposition,, Supplemental Declaration of Michael T. Risher in Support of Plaintiffs' Reply Brief Re: Motion for Preliminary Injunction filed byReginald Ento, Elizabeth Aida Haskell. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 41 ) (Meier, Peter) (Filed on 11/20/2009) (Entered: 11/20/2009)
49 OBJECTIONS to Plaintiffs' Objections to Defendants' Evidence in Support of Defendants' Opposition to 12 Motiion for Preliminary Injunction by Reginald Ento, Elizabeth Aida Haskell. (Meier, Peter) (Filed on 11/20/2009) Modified on 11/23/2009 (mcl, COURT STAFF). (Entered: 11/20/2009)
50 MOTION to Dismiss (FED. R. CIV. P. 12(b)(6)); Memorandum of Points and Authorities filed by Edmund G. Brown, Jr, Eva Steinberger. Motion Hearing set for 1/8/2010 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Powell, Daniel) (Filed on 11/23/2009) (Entered: 11/23/2009)
51 Joinder in 50 State Defendants' Motion to Dismiss, filed by Michael Hennessey. (Kaiser, Sherri) (Filed on 11/23/2009) Modified on 11/24/2009 (mcl, COURT STAFF). (Entered: 11/23/2009)
52 Renotice motion hearing of 50 Motion and Motion to Dismiss (FED. R. CIV. P. 12(b)(6)); Memorandum of Points and Authorities filed byEdmund G. Brown, Jr, Eva Steinberger. Motion Hearing set for 1/15/2010 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Powell, Daniel) (Filed on 11/23/2009) Modified on 11/24/2009 (mcl, COURT STAFF). (Entered: 11/23/2009)
53 STIPULATION Re: Filing of First Amended Complaint by Reginald Ento, Elizabeth Aida Haskell. (Attachments: # 1 Proposed Order)(Meier, Peter) (Filed on 11/25/2009) (Entered: 11/25/2009)
54 ORDER re 53 Stipulation filed by Elizabeth Aida Haskell, Reginald Ento, Motions terminated: 50 MOTION to Dismiss filed by Eva Steinberger, Edmund G. Brown, Jr.. Amended Pleadings due by 12/1/2009.. Signed by Judge Charles R. Breyer on 11/30/09. (be, COURT STAFF) (Filed on 12/1/2009) (Entered: 12/01/2009)
55 RESPONSE to re 49 Objection, by Edmund G. Brown, Jr, Eva Steinberger. (Attachments: # 1 Supplemental Declaration of Kenneth C. Konzak)(Powell, Daniel) (Filed on 12/1/2009) (Entered: 12/01/2009)
56 AMENDED COMPLAINT First Amended Complaint for Declaratory and Injunctive Relief against Edmund G. Brown, Jr, Michael Hennessey, Eva Steinberger. Filed byElizabeth Aida Haskell, Reginald Ento, Jeffrey Patrick Lyons, Jr, Aakash Desai. (Attachments: # 1 Exhibit A)(Meier, Peter) (Filed on 12/1/2009) Modified on 12/3/2009 (feriab, COURT STAFF). (Entered: 12/01/2009)
57 Certificate of Interested Entities by Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr, Aakash Desai (Meier, Peter) (Filed on 12/1/2009) (Entered: 12/01/2009)
58 MOTION to Certify Class Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Class Certification filed by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. Motion Hearing set for 1/29/2010 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Meier, Peter) (Filed on 12/1/2009) (Entered: 12/01/2009)

Case: 3:09-cv-4779 As of: 02/01/2019 06:50 AM PST 9 of 17

12/01/2009 12/01/2009 12/01/2009 12/01/2009 12/01/2009 12/02/2009 12/02/2009 12/04/2009 12/04/2009 12/07/2009 12/07/2009
12/07/2009

59 Declaration of Peter C. Meier in Support of 58 MOTION to Certify Class Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Class Certification filed byAakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Attachments: # 1 Exhibit A, B, C, D)(Related document(s) 58 ) (Meier, Peter) (Filed on 12/1/2009) (Entered: 12/01/2009)
60 Declaration of Michael T. Risher in Support of 58 MOTION to Certify Class Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Class Certification filed byAakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Related document(s) 58 ) (Meier, Peter) (Filed on 12/1/2009) (Entered: 12/01/2009)
61 Declaration of Aakash Desai in Support of 58 MOTION to Certify Class Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Class Certification filed byAakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Related document(s) 58 ) (Meier, Peter) (Filed on 12/1/2009) (Entered: 12/01/2009)
62 Declaration of Jeffrey Patrick Lyons, Jr. in Support of 58 MOTION to Certify Class Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Class Certification filed byAakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Related document(s) 58 ) (Meier, Peter) (Filed on 12/1/2009) (Entered: 12/01/2009)
63 Proposed Order re 58 MOTION to Certify Class Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Class Certification Proposed Order Granting Motion for Class Certification by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Meier, Peter) (Filed on 12/1/2009) (Entered: 12/01/2009)
64 ERRATA re 41 Reply to Opposition,, Errata to Plaintiffs' Reply Brief in Support of Motion for Preliminary Injunction by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Meier, Peter) (Filed on 12/2/2009) (Entered: 12/02/2009)
65 STIPULATION Re: Evidence At December 4, 2009 Hearing on Plaintiffs' Motion for Preliminary Injunction by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Attachments: # 1 Proposed Order)(Meier, Peter) (Filed on 12/2/2009) (Entered: 12/02/2009)
66 ORDER granting re evidence at 12/4/09 hearing re 65 Stipulation, filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. Signed by Judge Charles R. Breyer on 12/3/09. (be, COURT STAFF) (Filed on 12/4/2009) (Entered: 12/04/2009)
67 Minute Entry: Preliminary Injunction Hearing − Non−evidentiary held on 12/4/2009 before Charles R. Breyer (Date Filed: 12/4/2009). (Court Reporter Katherine Sullivan.) (be, COURT STAFF) (Date Filed: 12/4/2009) (Entered: 12/04/2009)
68 MOTION Plaintiffs' Administrative Motion to Submit Post−Argument Citations to Record Without Argument (Local Rule 7−11) filed by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Attachments: # 1 Proposed Order)(Meier, Peter) (Filed on 12/7/2009) (Entered: 12/07/2009)
69 Declaration of Katharine Chao in Support of 68 MOTION Plaintiffs' Administrative Motion to Submit Post−Argument Citations to Record Without Argument (Local Rule 7−11) MOTION Plaintiffs' Administrative Motion to Submit Post−Argument Citations to Record Without Argument (Local Rule 7−11) filed byAakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Attachments: # 1 Exhibit)(Related document(s) 68 ) (Meier, Peter) (Filed on 12/7/2009) (Entered: 12/07/2009)
70 [Proposed] Post−Argument Citations re 68 MOTION Plaintiffs' Administrative Motion to Submit Post−Argument Citations to Record Without Argument (Local Rule 7−11) MOTION Plaintiffs' Administrative Motion to Submit Post−Argument Citations to Record Without Argument (Local Rule 7−11) Plaintiffs' [Proposed] Post−Argument Citations to Record by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Meier, Peter) (Filed on 12/7/2009) Modified on 12/8/2009 (mcl, COURT STAFF). (Entered: 12/07/2009)

Case: 3:09-cv-4779 As of: 02/01/2019 06:50 AM PST 10 of 17

12/10/2009 12/14/2009 12/14/2009 12/14/2009 12/17/2009
12/17/2009 12/18/2009 12/23/2009 01/04/2010 01/06/2010 01/07/2010 01/08/2010 01/08/2010 01/13/2010 01/15/2010 01/15/2010

71 ORDER by Judge Charles R. Breyer granting 68 Motion to submit post−argument citiaitons to record without argument. (be, COURT STAFF) (Filed on 12/10/2009) (Entered: 12/10/2009)
72 STIPULATION Re: Deadline For Filing of Post−Argument Citations To Record Without Argument by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Meier, Peter) (Filed on 12/14/2009) (Entered: 12/14/2009)
73 Statement Plaintiffs' Post−Argument Citations To Record by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Meier, Peter) (Filed on 12/14/2009) (Entered: 12/14/2009)
74 Statement State Defendants' Post−Argument Citations by Edmund G. Brown, Jr, Eva Steinberger. (Powell, Daniel) (Filed on 12/14/2009) (Entered: 12/14/2009)
75 Transcript of Proceedings held on 12/4/09, before Judge Charles R. Breyer. Court Reporter/Transcriber Katherine Powell Sullivan, CRR, Telephone number 415−794−6659/Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 3/15/2010. (Sullivan, Katherine) (Filed on 12/17/2009) (Entered: 12/17/2009)
76 MOTION to Dismiss (Fed. R. Civ. P. 12(b)(6); Memorandum of Points and Authorities filed by Edmund G. Brown, Jr, Eva Steinberger. Motion Hearing set for 1/29/2010 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Powell, Daniel) (Filed on 12/17/2009) (Entered: 12/17/2009)
77 Joinder in 76 State Defendants' Motion to Dismiss by Michael Hennessey. (Kaiser, Sherri) (Filed on 12/18/2009) Modified on 12/21/2009 (mcl, COURT STAFF). (Entered: 12/18/2009)
78 ORDER by Judge Charles R. Breyer denying 24 , 12 Motion for Preliminary Injunction. (crblc2, COURT STAFF) (Filed on 12/23/2009) (Entered: 12/23/2009)
79 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Meier, Peter) (Filed on 1/4/2010) (Entered: 01/04/2010)
80 ADR Clerks Notice Setting ADR Phone Conference on 1/20/2010 at 10:30 a.m. Please take note that plaintiff's counsel initiates the call to all parties. (sgd, COURT STAFF) (Filed on 1/6/2010) (Entered: 01/06/2010)
81 STIPULATION Dismissing Defendant Michael Hennessey by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Long, Eric) (Filed on 1/7/2010) (Entered: 01/07/2010)
82 Statement Regarding 58 Plaintiffs' Motion for Class Certification by Edmund G. Brown, Jr, Eva Steinberger. (Powell, Daniel) (Filed on 1/8/2010) Modified on 1/11/2010 (mcl, COURT STAFF). (Entered: 01/08/2010)
83 Memorandum in Opposition to 50 Motion to Dismiss filed byAakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Meier, Peter) (Filed on 1/8/2010) Modified on 1/11/2010 (mcl, COURT STAFF). (Entered: 01/08/2010)
84 STIPULATION Continuing Date of Initial Case Management Conference; Proposed Order by Edmund G. Brown, Jr, Eva Steinberger. (Powell, Daniel) (Filed on 1/13/2010) (Entered: 01/13/2010)
85 JOINT CASE MANAGEMENT STATEMENT and Joint Rule 26(f) Conference Report filed by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Long, Eric) (Filed on 1/15/2010) (Entered: 01/15/2010)
86 Reply to Opposition re 58 MOTION to Certify Class Notice of Motion, Motion and Memorandum of Points and Authorities in Support of Motion for Class Certification / Reply Brief in Support of Motion for Class Certification filed byAakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Long, Eric) (Filed on 1/15/2010) (Entered: 01/15/2010)

Case: 3:09-cv-4779 As of: 02/01/2019 06:50 AM PST 11 of 17

01/15/2010 01/20/2010 01/20/2010 01/20/2010 01/21/2010 01/21/2010 01/21/2010 01/27/2010 01/29/2010 02/03/2010 02/03/2010 03/01/2010 06/03/2010 06/04/2010
09/09/2010 09/15/2010

87 Reply to Opposition re 76 Motion to Dismiss filed by Edmund G. Brown, Jr, Eva Steinberger. (Powell, Daniel) (Filed on 1/15/2010) Modified on 1/19/2010 (mcl, COURT STAFF). (Entered: 01/15/2010)
88 ORDER continuing CMC re 84 Stipulation filed by Eva Steinberger, Edmund G. Brown, Jr. Initial Case Management Conference set for 1/29/2010 10:00 AM.. Signed by Judge Charles R. Breyer on 1/15/2010. (be, COURT STAFF) (Filed on 1/20/2010) (Entered: 01/20/2010)
***Deadlines terminated 1/22/10 CMC. (be, COURT STAFF) (Filed on 1/20/2010) (Entered: 01/20/2010)
ADR Remark: ADR Phone Conference held by DB on 1/20/10. (sgd, COURT STAFF) (Filed on 1/20/2010) (Entered: 01/20/2010)
89 NOTICE OF APPEAL as to 78 Order on Motion for Preliminary Injunction by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. Filing fee $ 455. (Attachments: # 1 Civil Appeals Docketing Statement)(mcl, COURT STAFF) (Filed on 1/21/2010) (Entered: 01/21/2010)
90 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 89 Notice of Appeal. (mcl, COURT STAFF) (Entered: 01/21/2010)
91 Copy of Notice of Appeal and Docket sheet mailed to all counsel. (mcl, COURT STAFF) (Additional attachment(s) added on 1/21/2010: # 1 Docket sheet) (mcl, COURT STAFF). (Entered: 01/21/2010)
92 Transcript Designation and Ordering Form for proceedings held on December 4, 2009 before Judge Charles R. Breyer, (Long, Eric) (Filed on 1/27/2010) (Entered: 01/27/2010)
93 Minute Entry: Motions Hearing held on 1/29/2010 before Charles R. Breyer (Date Filed: 1/29/2010). Status Conference set for 6/11/2010 08:30 AM in Courtroom 8, 19th Floor, San Francisco. (Court Reporter Sarah Goekler.) (be, COURT STAFF) (Date Filed: 1/29/2010) (Entered: 01/29/2010)
94 USCA Case Number 10−15152 USCA for 89 Notice of Appeal, filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. (mcl, COURT STAFF) (Entered: 02/03/2010)
95 ORDER of USCA as to 89 Notice of Appeal, filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. Opening brief due 2/18/10 ; answering brief due 3/18/10. (mcl, COURT STAFF) (Filed on 2/3/2010) (Entered: 02/03/2010)
96 Defendants' ANSWER to Amended Complaint for Declaratory and Injunctive Relief byEdmund G. Brown, Jr, Eva Steinberger. (Powell, Daniel) (Filed on 3/1/2010) (Entered: 03/01/2010)
97 STIPULATION AND [PROPOSED] ORDER TO CONTINUE CASE MANAGEMENT CONFERENCE by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Long, Eric) (Filed on 6/3/2010) (Entered: 06/03/2010)
98 ORDER re continuance of CMC re 97 Stipulation filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento Further Case Management Conference set for 9/17/2010 08:30 AM in Courtroom 8, 19th Floor, San Francisco.. Signed by Judge Charles R. Breyer on 6/4/2010. (be, COURT STAFF) (Filed on 6/4/2010) (Entered: 06/04/2010)
99 STIPULATION AND [PROPOSED] ORDER RE: CONTINUANCE OF CASE MANAGEMENT CONFERENCE by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Long, Eric) (Filed on 9/9/2010) (Entered: 09/09/2010)
100 ORDER re continuance of CMC re 99 Stipulation filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento Further Case Management Conference set for 12/17/2010 08:30 AM in Courtroom 8, 19th Floor, San Francisco.. Signed by Judge Charles R. Breyer on 9/15/2010. (be, COURT STAFF) (Filed on 9/15/2010) (Entered: 09/15/2010)

Case: 3:09-cv-4779 As of: 02/01/2019 06:50 AM PST 12 of 17

12/06/2010 12/06/2010 12/08/2010
02/09/2011 02/11/2011 04/13/2011 05/04/2011 05/05/2011
06/13/2011 07/25/2011 09/22/2011 09/26/2011 11/03/2011 11/10/2011 02/28/2012 03/13/2012

101 NOTICE by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr Notice of Withdrawal as Attorney on behalf of Katharine Chao (Long, Eric) (Filed on 12/6/2010) (Entered: 12/06/2010)
102 STIPULATION and [Proposed] Order Re: Continuance of Case Management Conference by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Long, Eric) (Filed on 12/6/2010) (Entered: 12/06/2010)
103 ORDER for continuance of CMC re 102 Stipulation filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento Further Case Management Conference set for 2/18/2011 08:30 AM in Courtroom 8, 19th Floor, San Francisco.. Signed by Judge Charles R. Breyer on 12/7/2010. (be, COURT STAFF) (Filed on 12/8/2010) (Entered: 12/08/2010)
104 STIPULATION and [Proposed] Order Re: Continuance of Case Management Conference by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Long, Eric) (Filed on 2/9/2011) (Entered: 02/09/2011)
105 ORDER for continuance of CMC re 104 Stipulation filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento Further Case Management Conference set for 4/29/2011 08:30 AM.. Signed by Judge Charles R. Breyer on 2/10/2011. (be, COURT STAFF) (Filed on 2/11/2011) (Entered: 02/11/2011)
106 CLERKS NOTICE Further Case Management Conference reset for 5/13/2011 08:30 AM in Courtroom 8, 19th Floor, San Francisco. (beS, COURT STAFF) (Filed on 4/13/2011) (Entered: 04/13/2011)
107 STIPULATION and [Proposed] Order Regarding Continuance of Case Management Conference by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Long, Eric) (Filed on 5/4/2011) (Entered: 05/04/2011)
108 ORDER re continuance of CMC re 107 Stipulation filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento Further Case Management Conference set for 9/30/2011 08:30 AM in Courtroom 8, 19th Floor, San Francisco.. Signed by Judge Charles R. Breyer on 5/5/2011. (beS, COURT STAFF) (Filed on 5/5/2011) (Entered: 05/05/2011)
109 ORDER of USCA as to 89 Notice of Appeal, filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. (mcl, COURT STAFF) (Filed on 6/13/2011) (Entered: 06/13/2011)
110 NOTICE by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr Notice of Change of Firm Name (Long, Eric) (Filed on 7/25/2011) (Entered: 07/25/2011)
111 STIPULATION AND [PROPOSED] ORDER RE: CONTINUANCE OF CASE MANAGEMENT CONFERENCE by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Long, Eric) (Filed on 9/22/2011) (Entered: 09/22/2011)
112 ORDER re continuance of CMC re 111 Stipulation filed by Jeffrey Patrick Lyons, Jr., et al. Further Case Management Conference set for 3/30/2012 08:30 AM in Courtroom 5, 4th Floor, San Jose.. Signed by Judge Charles R. Breyer on 9/26/2011. (beS, COURT STAFF) (Filed on 9/26/2011) (Entered: 09/26/2011)
113 NOTICE by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr Notice of Withdrawal of Attorney (Sarah O. Chang) (Long, Eric) (Filed on 11/3/2011) (Entered: 11/03/2011)
114 ORDER of USCA as to 89 Notice of Appeal. This case is resubmitted as of November 1, 2011. (mjj2S, COURT STAFF) (Filed on 11/10/2011) (Entered: 11/14/2011)
115 USCA OPINION as to 89 Notice of Appeal, filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. The decision of the district court is affirmed. (mcl, COURT STAFF) (Filed on 2/28/2012) (Entered: 02/28/2012)
116 STIPULATION WITH PROPOSED ORDER RE: CONTINUANCE OF CASE MANAGEMENT CONFERENCE filed by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Long, Eric) (Filed on 3/13/2012) (Entered:

Case: 3:09-cv-4779 As of: 02/01/2019 06:50 AM PST 13 of 17

03/19/2012 08/09/2012 08/09/2012 08/15/2012 08/31/2012 09/13/2012 09/20/2012 09/24/2012
10/15/2012 11/28/2012 04/02/2013 04/11/2013

03/13/2012)
117 ORDER granting 116 STIPULATION WITH PROPOSED ORDER RE: CONTINUANCE OF CASE MANAGEMENT CONFERENCE filed by Jeffrey Patrick Lyons, et al. Further Case Management Conference reset for 9/28/2012 08:30 AM in Courtroom 6, 17th Floor, San Francisco.. Signed by Judge Charles R. Breyer on 3/16/2012. (beS, COURT STAFF) (Filed on 3/19/2012) (Entered: 03/19/2012)
118 ORDER of USCA as to 89 Notice of Appeal, filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. It is ordered that this case be reheard en banc pursuant to FRAP 35(a) and Circuit Rule 35−3. (mcl, COURT STAFF) (Filed on 8/9/2012) (Entered: 08/09/2012)
119 ORDER of USCA as to 89 Notice of Appeal, filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. En banc oral argument will take place during the week of 9/17/12. (mcl, COURT STAFF) (Filed on 8/9/2012) (Entered: 08/09/2012)
120 ORDER of USCA as to 89 Notice of Appeal, filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. Supplemental briefs due 8/31/12. (mcl, COURT STAFF) (Filed on 8/15/2012) (Entered: 08/15/2012)
121 ORDER of USCA as to 89 Notice of Appeal, filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. Oral argument will be held on 9/19/12 at 10:00 am. (mcl, COURT STAFF) (Filed on 8/31/2012) (Entered: 08/31/2012)
122 ORDER of USCA as to 89 Notice of Appeal, filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. Appellees' response due 9/10/12, response due 9/17/12. (mcl, COURT STAFF) (Filed on 9/13/2012) (Entered: 09/13/2012)
123 STIPULATION WITH PROPOSED ORDER RE: CONTINUANCE OF CASE MANAGEMENT CONFERENCE filed by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Long, Eric) (Filed on 9/20/2012) (Entered: 09/20/2012)
124 ORDER re 123 STIPULATION WITH PROPOSED ORDER RE: CONTINUANCE OF CASE MANAGEMENT CONFERENCE filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. Case Management Conference reset for 4/26/2013 08:30 AM in Courtroom 6, 17th Floor, San Francisco. Signed by Judge Charles R. Breyer on 9/24/2012. (beS, COURT STAFF) (Filed on 9/24/2012) (Entered: 09/24/2012)
125 ORDER of USCA as to 89 Notice of Appeal, filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. Appellants' motion and appellees' supplemental request for judicial notice are both granted. (mclS, COURT STAFF) (Filed on 10/15/2012) (Entered: 10/15/2012)
126 ORDER of USCA as to 89 Notice of Appeal, filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. Submission of this case is deferred pending the U.S. Supreme Court's decision in King v. Maryand. (mclS, COURT STAFF) (Filed on 11/28/2012) (Entered: 11/28/2012)
127 STIPULATION WITH PROPOSED ORDER RE: CONTINUANCE OF CASE MANAGEMENT CONFERENCE filed by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Long, Eric) (Filed on 4/2/2013) (Entered: 04/02/2013)
128 ORDER granting 127 STIPULATION WITH PROPOSED ORDER RE: CONTINUANCE OF CASE MANAGEMENT CONFERENCE filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. Case Management Statement due by 8/2/2013. Case Management Conference reset for 8/9/2013 08:30 AM in Courtroom 6, 17th Floor, San Francisco. Signed by Judge Charles R. Breyer on 4/10/2013. (beS, COURT STAFF) (Filed on 4/11/2013) (Entered: 04/11/2013)

Case: 3:09-cv-4779 As of: 02/01/2019 06:50 AM PST 14 of 17

06/12/2013 07/30/2013 08/02/2013
08/09/2013 08/16/2013 10/16/2013 10/18/2013
10/21/2013 11/15/2013 01/23/2014 01/24/2014
03/05/2014 04/01/2014 04/24/2014

129 ORDER of USCA re filing of supplemental briefs as to 89 Notice of Appeal, filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. (mclS, COURT STAFF) (Filed on 6/12/2013) (Entered: 06/12/2013)
130 STIPULATION WITH PROPOSED ORDER Re: Continuance of Case Management Conference filed by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Meier, Peter) (Filed on 7/30/2013) (Entered: 07/30/2013)
131 ORDER granting 130 STIPULATION WITH PROPOSED ORDER Re: Continuance of Case Management Conference filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. Case Management Statement due by 10/25/2013. Case Management Conference reset for 11/1/2013 08:30 AM in Courtroom 6, 17th Floor, San Francisco. Signed by Judge Charles R. Breyer on 8/1/2013. (beS, COURT STAFF) (Filed on 8/2/2013) (Entered: 08/02/2013)
132 ORDER of USCA as to 89 Notice of Appeal, filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. Apellees' 7/22/13 request for judicial notice is granted. (mclS, COURT STAFF) (Filed on 8/9/2013) (Entered: 08/09/2013)
133 ORDER of USCA as to 89 Notice of Appeal, filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. (mclS, COURT STAFF) (Filed on 8/16/2013) (Entered: 08/16/2013)
134 STIPULATION WITH PROPOSED ORDER Re: Continuance of Case Management Conference filed by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Meier, Peter) (Filed on 10/16/2013) (Entered: 10/16/2013)
135 ORDER granting 134 STIPULATION WITH PROPOSED ORDER Re: Continuance of Case Management Conference filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. Further Case Management Conference reset for 2/7/2014 08:30 AM in Courtroom 6, 17th Floor, San Francisco.. Signed by Judge Charles R. Breyer on 10/17/2013. (beS, COURT STAFF) (Filed on 10/18/2013) (Entered: 10/18/2013)
136 NOTICE by Eva Steinberger, Kamala D. Harris (Notice of Re−assignment of Counsel for Defendants) (Camps, Enid) (Filed on 10/21/2013) (Entered: 10/21/2013)
137 ORDER of USCA as to 89 Notice of Appeal, filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. Re−argument in this en banc case will be held 12/9/13 at 2:00 pm. (mclS, COURT STAFF) (Filed on 11/15/2013) (Entered: 11/15/2013)
138 STIPULATION WITH PROPOSED ORDER Re: Continuance of Case Management Conference filed by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Meier, Peter) (Filed on 1/23/2014) (Entered: 01/23/2014)
139 ORDER granting 138 STIPULATION Re: Continuance of Case Management Conference filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. Case Management Statement due by 5/9/2014. Case Management Conference reset for 5/16/2014 08:30 AM in Courtroom 6, 17th Floor, San Francisco. Signed by Judge Charles R. Breyer on 1/24/2014. (beS, COURT STAFF) (Filed on 1/24/2014) (Entered: 01/24/2014)
140 NOTICE by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr Notice of Withdrawal of Attorney (Meier, Peter) (Filed on 3/5/2014) (Entered: 03/05/2014)
141 USCA Opinion as to 89 Notice of Appeal, filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. The decision of the district court is affirmed. (mclS, COURT STAFF) (Filed on 4/1/2014) (Entered: 04/01/2014)
142 MANDATE of USCA as to 89 Notice of Appeal, filed by Jeffrey Patrick Lyons, Jr., Aakash Desai, Elizabeth Aida Haskell, Reginald Ento. The judgment of this Court, entered 3/20/14, takes effect this date. (mclS, COURT STAFF) (Filed on 4/24/2014) (Entered: 04/24/2014)

Case: 3:09-cv-4779 As of: 02/01/2019 06:50 AM PST 15 of 17

04/24/2014 05/09/2014 05/16/2014 07/18/2014
07/18/2014
07/18/2014
07/18/2014 07/18/2014 07/18/2014
07/18/2014
07/18/2014 07/18/2014 07/22/2014 07/25/2014 07/25/2014 07/28/2014 08/01/2014

143 CLERKS Letter Spreading Mandate to Counsel re 142 . (mclS, COURT STAFF) (Filed on 4/24/2014) (Entered: 04/24/2014)
144 CASE MANAGEMENT STATEMENT (JOINT) filed by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Meier, Peter) (Filed on 5/9/2014) (Entered: 05/09/2014)
145 Minute Entry: Further Case Management Conference held on 5/16/2014 before Charles R. Breyer (Date Filed: 5/16/2014). (Court Reporter − Not Reported.) (beS, COURT STAFF) (Date Filed: 5/16/2014) (Entered: 05/16/2014)
146 MOTION to Certify Class (Create Subclasses) filed by Elizabeth Aida Haskell. Motion Hearing set for 8/22/2014 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 8/1/2014. Replies due by 8/8/2014. (Meier, Peter) (Filed on 7/18/2014) (Entered: 07/18/2014)
147 Brief re 146 MOTION to Certify Class (Create Subclasses) Memorandum of Points and Authorities In Support of Motion To Create Subclasses filed byElizabeth Aida Haskell. (Related document(s) 146 ) (Meier, Peter) (Filed on 7/18/2014) (Entered: 07/18/2014)
148 Declaration of Peter C. Meier in Support of 146 MOTION to Certify Class (Create Subclasses) filed byElizabeth Aida Haskell. (Attachments: # 1 Exhibit Exhibit A to Declaration of Peter C. Meier In Support of Motion To Create Subclasses, # 2 Exhibit Exhibit B to Declaration of Peter C. Meier In Support of Motion To Create Subclasses)(Related document(s) 146 ) (Meier, Peter) (Filed on 7/18/2014) (Entered: 07/18/2014)
149 Proposed Order re 146 MOTION to Certify Class (Create Subclasses) by Elizabeth Aida Haskell. (Meier, Peter) (Filed on 7/18/2014) (Entered: 07/18/2014)
150 MOTION for Leave to File Amicus Curiae Brief filed by DNA Saves. Responses due by 8/1/2014. Replies due by 8/8/2014. (Attachments: # 1 Exhibit A − Amicus Curiae Brief, # 2 Proposed Order)(Herzog, Eric) (Filed on 7/18/2014) (Entered: 07/18/2014)
151 MOTION for Judgment on the Pleadings (Notice of Motion and Motion for Judgment on the Pleadings) filed by Kamala D. Harris, Eva Steinberger. Motion Hearing set for 8/22/2014 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 8/1/2014. Replies due by 8/8/2014. (Camps, Enid) (Filed on 7/18/2014) (Entered: 07/18/2014)
152 Request for Judicial Notice re 151 MOTION for Judgment on the Pleadings (Notice of Motion and Motion for Judgment on the Pleadings) filed byKamala D. Harris, Eva Steinberger. (Attachments: # 1 Exhibit Exhibits A − E)(Related document(s) 151 ) (Camps, Enid) (Filed on 7/18/2014) (Entered: 07/18/2014)
153 Proposed Order re 151 MOTION for Judgment on the Pleadings (Notice of Motion and Motion for Judgment on the Pleadings) by Kamala D. Harris, Eva Steinberger. (Camps, Enid) (Filed on 7/18/2014) (Entered: 07/18/2014)
154 MOTION to File Amicus Curiae Brief filed by California District Attorneys Associaton. Responses due by 8/1/2014. Replies due by 8/8/2014. (Attachments: # 1 Proposed Order)(Locher, Albert) (Filed on 7/18/2014) (Entered: 07/18/2014)
155 ORDER by Judge Charles R. Breyer granting 154 Motion to File Amicus Curiae Brief (beS, COURT STAFF) (Filed on 7/22/2014) (Entered: 07/22/2014)
156 Letter from Enid A. Camps to Honorable Charles R. Breyer, Judge . (Camps, Enid) (Filed on 7/25/2014) (Entered: 07/25/2014)
157 Proposed Order re 156 Letter by Kamala D. Harris, Eva Steinberger. (Camps, Enid) (Filed on 7/25/2014) (Entered: 07/25/2014)
158 ORDER RE PENDING MOTIONS. Signed by Judge Charles R. Breyer on 7/28/2014. (crblc1, COURT STAFF) (Filed on 7/28/2014) (Entered: 07/28/2014)
159 RESPONSE (re 151 MOTION for Judgment on the Pleadings (Notice of Motion and Motion for Judgment on the Pleadings) ) Plaintiffs' Memorandum in Opposition to Defendants' Motion for Judgment on the Pleadings filed byAakash Desai, Reginald

Case: 3:09-cv-4779 As of: 02/01/2019 06:50 AM PST 16 of 17

08/01/2014 08/01/2014 08/08/2014 08/08/2014 08/08/2014 08/14/2014 08/15/2014 10/10/2014 10/14/2014 12/03/2014 04/04/2018 04/24/2018 04/24/2018

Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Meier, Peter) (Filed on 8/1/2014) (Entered: 08/01/2014)
160 Request for Judicial Notice re 159 Opposition/Response to Motion, Plaintiffs' Request for Judicial Notice in Support of Opposition to Defendants' Motion for Judgment on the Pleadings filed byAakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 159 ) (Meier, Peter) (Filed on 8/1/2014) (Entered: 08/01/2014)
161 Proposed Order re 151 Motion for Judgment on the Pleadings by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Meier, Peter) (Filed on 8/1/2014) Modified on 8/4/2014 (mclS, COURT STAFF). (Entered: 08/01/2014)
162 REPLY (re 151 MOTION for Judgment on the Pleadings (Notice of Motion and Motion for Judgment on the Pleadings) ) (State Defendants' Reply Memorandum in Support of Motion for Judgment on the Pleadings) filed byKamala D. Harris, Eva Steinberger. (Camps, Enid) (Filed on 8/8/2014) (Entered: 08/08/2014)
163 OPPOSITION to 160 Request for Judicial Notice filed by Kamala D. Harris, Eva Steinberger. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Camps, Enid) (Filed on 8/8/2014) Modified on 8/11/2014 (mclS, COURT STAFF). (Entered: 08/08/2014)
164 Request for Judicial Notice re 162 Reply to Opposition/Response, (State Defendants' Second Request for Judicial Notice) filed byKamala D. Harris, Eva Steinberger. (Attachments: # 1 Exhibit Exhibit A (Declaration of Brandon Smith in Support of State Defendants' Motion for Judgment on the Pleadings)(Related document(s) 162 ) (Camps, Enid) (Filed on 8/8/2014) (Entered: 08/08/2014)
165 ORDER by Judge Charles R. Breyer granting 150 Motion for Leave to File Amicus Curiae Brief filed by DNA Saves (beS, COURT STAFF) (Filed on 8/14/2014) (Entered: 08/14/2014)
166 RESPONSE to re 163 Opposition/Response to Motion, 164 Request for Judicial Notice, Plaintiffs' Opposition to Defendants' Second Request for Judicial Notice and Response to Defendants' Opposition to Plaintiffs' Request for Judicial Notice by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Meier, Peter) (Filed on 8/15/2014) (Entered: 08/15/2014)
167 Minute Entry: Motion Hearing held on 10/10/2014 before Charles R. Breyer (Date Filed: 10/10/2014) re 151 MOTION for Judgment on the Pleadings (Notice of Motion and Motion for Judgment on the Pleadings) filed by Eva Steinberger, Kamala D. Harris. (Court Reporter Kathy Sullivan.) (beS, COURT STAFF) (Date Filed: 10/10/2014) (Entered: 10/14/2014)
168 AMENDED MINUTES to 167 Minute Entry: Motion Hearing held on 10/10/2014 before Charles R. Breyer (Date Filed: 10/10/2014) re 151 MOTION for Judgment on the Pleadings (Notice of Motion and Motion for Judgment on the Pleadings) filed by Eva Steinberger, Kamala D. Harris. (Court Reporter Kathy Sullivan.) (beS, COURT STAFF) (Filed on 10/14/2014) (Entered: 10/14/2014)
169 ORDER STAYING CASE. Signed by Judge Charles R. Breyer on 12/3/2014. (crblc1, COURT STAFF) (Filed on 12/3/2014) (Entered: 12/03/2014)
170 ORDER LIFTING STAY AND DIRECTING BRIEFING. Signed by Judge Charles R. Breyer on 4/4/2018. (crblc1S, COURT STAFF) (Filed on 4/4/2018) (Entered: 04/04/2018)
171 RESPONSE to re 151 MOTION for Judgment on the Pleadings (Notice of Motion and Motion for Judgment on the Pleadings) Plaintiffs' Supplemental Opposition to Defendants' Motion for Judgment on the Pleadings by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Meier, Peter) (Filed on 4/24/2018) (Entered: 04/24/2018)
172 Brief re 162 Reply to Opposition/Response, 151 MOTION for Judgment on the Pleadings (Notice of Motion and Motion for Judgment on the Pleadings) (State Defendants Supplemental Brief Pursuant to April 4, 2018 Court Order) filed byEva Steinberger, Xavier Becerra. (Related document(s) 162 , 151 ) (Camps, Enid) (Filed on

Case: 3:09-cv-4779 As of: 02/01/2019 06:50 AM PST 17 of 17

05/02/2018 05/07/2018 05/17/2018
05/17/2018 06/08/2018

4/24/2018) (Entered: 04/24/2018)
173 ORDER DIRECTING BRIEFING AND SETTING HEARING. Signed by Judge Charles R. Breyer on 5/2/2018. (crblc1, COURT STAFF) (Filed on 5/2/2018) (Entered: 05/02/2018)
174 NOTICE of Appearance by Shilpi Agarwal (Agarwal, Shilpi) (Filed on 5/7/2018) (Entered: 05/07/2018)
175 REPLY (re 151 MOTION for Judgment on the Pleadings (Notice of Motion and Motion for Judgment on the Pleadings) ) Plaintiffs' Supplemental Reply in Opposition to Defendants' Motion for Judgment on the Pleadings filed byAakash Desai, Reginald Ento, Elizabeth Aida Haskell, Jeffrey Patrick Lyons, Jr. (Meier, Peter) (Filed on 5/17/2018) (Entered: 05/17/2018)
176 REPLY (re 151 MOTION for Judgment on the Pleadings (Notice of Motion and Motion for Judgment on the Pleadings) ) (State Defendants Supplemental Reply Brief in Support of Motion for Judgment on the Pleadings ) filed byXavier Becerra, Eva Steinberger. (Camps, Enid) (Filed on 5/17/2018) (Entered: 05/17/2018)
177 Minute Entry for proceedings held before Judge Charles R. Breyer: Motion Hearing held on 6/8/2018 re 151 MOTION for Judgment on the Pleadings. Matter taken under submission. Court to issue Order.

Total Time in Court: 46 Minutes. Court Reporter: Belle Ball.

Plaintiff Attorney: Michael T. Risher and Shilpi Agarwal. Defendant Attorney: Enid Camps.

06/18/2018 06/22/2018 06/22/2018 08/08/2018

(This is a text−only entry generated by the court. There is no document associated with this entry.) (tlhS, COURT STAFF) (Date Filed: 6/8/2018) (Entered: 06/08/2018)
178 TRANSCRIPT ORDER for proceedings held on 06/08/2018 before Judge Charles R. Breyer by Aakash Desai, Reginald Ento, Elizabeth Aida Haskell, for Court Reporter Belle Ball. (Agarwal, Shilpi) (Filed on 6/18/2018) (Entered: 06/18/2018)
179 ORDER by Judge Charles R. Breyer granting 151 Motion for Judgment on the Pleadings. (crblc1, COURT STAFF) (Filed on 6/22/2018) (Entered: 06/22/2018)
180 JUDGMENT for defendants and against plaintiffs. Signed by Judge Charles R. Breyer on 6/22/2018. (crblc1, COURT STAFF) (Filed on 6/22/2018) Modified on 6/26/2018 (mclS, COURT STAFF). (Entered: 06/22/2018)
181 Transcript of Proceedings held on June 8, 2018, before Judge Charles R. Breyer. Court Reporter Belle Ball, CSR, CRR, RDR, telephone number (415)373−2529, belle_ball@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 178 Transcript Order ) Release of Transcript Restriction set for 11/6/2018. (Related documents(s) 178 ) (ballbb15S, COURT STAFF) (Filed on 8/8/2018) (Entered: 08/08/2018)


[CONTENT] October 6, 2009 | two | California | the U.S. District Court | the Northern District | California | 1983 ||| California ||| Due Process ||| Fourth ||| 2004 | California | Cal ||| Code ||| § | 295 ||| Proposition 69 | California ||| January 1, 2009 ||| Proposition 69 ||| December 1, 2009 | two | four ||| three ||| December 23, 2009 | the District Court | Charles R. Breyer ||| 677 ||| 2d 1187, 1190 | N.D. Cal | 2009 ||| Haskell | 669 | 1049 | 9th | 2012)</a |||  |||  ||| January 29 | 2010 | the District Court ||| Entry Granting Mot |||  |||  ||| California Penal Code § | 296(a)(2)(C ||| Order Granting Mot |||  ||| the District Court's | February 23, 2012 | three | the Ninth Circuit | Milan D. Smith | Jr. | the District Court's ||| PN-CA-0023-0005.pdf"><i | 669 | 1049 | 1051 | 9th | 2012)</a |||  ||| Government ||| PN-CA-0023-0005.pdf"><i | William A. Fletcher ||| Fletcher ||| PN-CA-0023-0005.pdf"><i | 1066</a ||| Fletcher | Proposition 69 ||| PN-CA-0023-0005.pdf"><i | 1080</a |||  ||| PN-CA-0023-0005.pdf"><i ||| Ninth Circuit | the District Court's | the Ninth Circuit ||| July 25, 2012 | the Ninth Circuit ||| 686 | 1121 | 9th | 2012 ||| the Ninth Circuit | the U.S. Supreme Court | Maryland ||| Maryland ||| June 2013 | the Supreme Court | 5 | Maryland ||| The Ninth Circuit | December 2013 ||| 727 | 916 | 9th Cir. 2013 ||| March 20, 2014 | banc court ||| Maryland | California |||  ||| 745 | 1269 | 9th Cir. 2014 ||| July 18, 2014 |||  |||  ||| California | Maryland ||| December 3, 2014 | California ||| April 2018 | the California Supreme Court | California ||| 4 Cal ||| 5th | 2018 ||| June 22, 2018 | Breyer ||| 317 ||| 3d 1095 | 2018 |||  |||  ||| First |||  ||| Second |||  ||| three | California | Maryland | 1 | California | 2 | California | 3 | California ||| three |||  [SUMMARY] On October 6, 2009, two individuals who had their DNA collected pursuant to a California statute filed this class action lawsuit in the U.S. District Court for the Northern District of California under 42 U.S.C. § 1983. Plaintiffs challenged a provision of California law which mandates the DNA collection of any individual arrested for or charged with a felony. The plaintiffs, represented by public interest counsel, sought declaratory and injunctive relief, and claimed that the practice violates substantive and procedural Due Process, as well as the right to be free from unreasonable searches and seizures. Specifically, the plaintiffs claimed that the practice infringes on rights guaranteed by the Fourth and Fourteenth Amendments of the U.S. Constitution because it mandates the DNA collection of all persons <i>arrested</i> for a felony--without requiring a warrant or that the individual actually be charged with or convicted of a felony. 

In 2004, California passed Proposition 69, which expanded the scope of the state's mandatory DNA collection laws, Cal. Penal Code. §§ 295 et seq. Prior to the enactment of Proposition 69, California law provided that only persons convicted of certain felonies were subject to the mandatory DNA testing program. Under the revised statute, which took effect on January 1, 2009, any individual arrested for a felony must provide their DNA for analysis and storage in a national database accessible by federal, state and local law enforcement agencies. Proposition 69 also eliminated language in the statute which provided for the automatic expungement of a person's DNA samples and database entries if that individual's conviction was reversed.

On December 1, 2009, the plaintiffs filed an amended complaint that added two more plaintiffs, bringing the total plaintiffs to four. None of the plaintiffs were convicted of charges related to the arrests which led to the collection of their DNA; three never had charges filed, and one had his case dismissed. 

On December 23, 2009, the District Court (Judge Charles R. Breyer) denied the plaintiffs' motion for a preliminary injunction. <a href="http://www.clearinghouse.net/chDocs/public/PN-CA-0023-0003.pdf"><i>Haskell v. Brown</i>, 677 F. Supp. 2d 1187, 1190 (N.D. Cal. 2009), <i>aff'd sub nom. Haskell v. Harris</i>, 669 F.3d 1049 (9th Cir. 2012)</a>. The court found that although the plaintiffs had established that arrestees have greater privacy interests than convicted felons, they had failed to show that this interest outweighs the government's compelling interest in using arrestees' DNA to solve past crimes. The court reasoned that as a result, the plaintiffs had failed to establish a likelihood of success on the merits or that the balance of equities tipped in their favor.

On January 29, 2010--shortly after denying the plaintiffs' motion for a preliminary injunction--the District Court granted the motion for class certification. <a href="http://www.clearinghouse.net/chDocs/public/PN-CA-0023-0006.pdf">Minute Entry Granting Mot. for Class Certification</a>. In doing so, the court adopted plaintiffs' proposed class description. This class description is "all persons who have been, are, or will be, compelled to submit to the search and seizure of their body tissue and DNA pursuant to California Penal Code § 296(a)(2)(C) solely because they have been arrested for, or charged with, a felony offense."  Proposed Order Granting Mot. for Class Certification.

The plaintiffs appealed the District Court's denial of the preliminary injunction, but on February 23, 2012, a divided three-judge panel of the Ninth Circuit (Judge Milan D. Smith, Jr. writing for the majority) affirmed the District Court's denial of plaintiffs' motion for a preliminary injunction. <a href="http://www.clearinghouse.net/chDocs/public/PN-CA-0023-0005.pdf"><i>Haskell v. Harris</i>, 669 F.3d 1049, 1051 (9th Cir. 2012)</a>. The majority applied a "totality of the circumstances" test, balancing arrestees' privacy interests against the government's need for their DNA samples. The court concluded that "the Government's compelling interests far outweigh arrestees' privacy concerns," and affirmed on that basis. <a href="http://www.clearinghouse.net/chDocs/public/PN-CA-0023-0005.pdf"><i>Id.</i></a>

Judge William A. Fletcher filed a dissenting opinion, in which he analogized the collection of arrestees' DNA to taking their fingerprints. Judge Fletcher argued that because in the absence of a warrant or reasonable suspicion an arrestee's fingerprints may only be taken for identification purposes--and not solely for an investigative purpose--the same logic applied to the collection of an arrestee's DNA. <a href="http://www.clearinghouse.net/chDocs/public/PN-CA-0023-0005.pdf"><i>Id.</i> at 1066</a>. Judge Fletcher felt that this made Proposition 69 unconstitutional, rendering the majority's "totality of the circumstances" test irrelevant. <a href="http://www.clearinghouse.net/chDocs/public/PN-CA-0023-0005.pdf"><i>Id.</i> at 1080</a>. However, he also noted that if he were to apply that test, he would find the "strength of plaintiffs' privacy interests much stronger." <a href="http://www.clearinghouse.net/chDocs/public/PN-CA-0023-0005.pdf"><i>Id.</i></a>

After the Ninth Circuit panel affirmed the District Court's decision, the plaintiffs petitioned the Ninth Circuit to rehear the appeal en banc. On July 25, 2012, the Ninth Circuit granted rehearing en banc. <i>Haskell v. Harris</i>, 686 F.3d 1121 (9th Cir. 2012). After oral argument on the rehearing, the Ninth Circuit issued an order stating that it would not rule on the appeal until the U.S. Supreme Court decided a related issue in <i>Maryland v. King</i>. In that case, Maryland's DNA collection laws were being challenged.

In June 2013, the Supreme Court, by a vote of 5-4, held that Maryland's DNA collection laws were constitutional. The Ninth Circuit subsequently ordered both sides to submit supplemental briefs and scheduled additional oral argument for December 2013. <i>Haskell v. Harris</i>, 727 F.3d 916 (9th Cir. 2013).

On March 20, 2014, the en banc court affirmed the district court's denial of a preliminary injunction. In a per curiam opinion, the appeals court held that after <i>Maryland v. King</i>, California's DNA collection scheme was constitutional. Further, the appeals court declined the plaintiffs' request to enter a preliminary injunction applicable to only a smaller class consisting of individuals arrested for certain felonies not covered by <i>King</i>. <i>Haskell v. Harris</i>, 745 F.3d 1269 (9th Cir. 2014). 

On July 18, 2014, the plaintiffs filed a motion to create subclasses. Proposed subclass A would include all persons arrested on suspicion of a felony but never charged with a
crime. Proposed subclass B would include only persons arrested for non-serious, non-violent felonies who were not actually charged. 

On that same date, the state filed a motion for judgment on the pleadings, arguing that because California's DNA collection law was materially indistinguishable from the Maryland law upheld in <i>King</i>, neither the plaintiffs nor any possible class fell outside the wide parameters of <i>King</i> and the case was therefore over. 

On December 3, 2014, however, the district court stayed the case pending final resolution of a similar challenge to California's DNA Act in state court. In April 2018, the California Supreme Court upheld the state's DNA Act under both federal and California law as to the felony arrestee in that case. <i>People v. Buza</i>, 4 Cal. 5th 658 (2018). 

On June 22, 2018, Judge Breyer granted the state's motion for judgment on the pleadings and entered judgment for the state. <i>Haskell v. Brown</i>, 317 F. Supp. 3d 1095 (N.D. Cal. 2018). The court rejected the plaintiffs' proposed "rule" that would allow law enforcement to seize samples from all felony arrestees, but that would prevent law enforcement from analyzing those samples until a prosecutor has filed charges. Further, the court rejected the plaintiffs' arguments distinguishing <i>King</i>. First, the court explained that the plaintiffs understated the state's interests in taking, analyzing, and retaining DNA from people who are not charged with any offense or are discharged for lack of probable cause. Specifically, the court held that the state has a significant interest in the identification of arrestees, in accurately assessing the danger an arrestee poses to the public, and in exoneration. Second, the court noted that the individual interest was no different than that in <i>King</i>. Thus, in weighing the state's significant interest against the individual's modest interest, the court deemed the searches reasonable. Finally, the plaintiffs attempted to distinguish <i>King</i> based on three differences between the California and Maryland laws:  (1)
arrestee DNA samples are analyzed before arraignment in California; (2) more crimes
qualify for mandatory DNA analysis in California; (3) records and samples are not
automatically expunged in California. The court held that none of these three differences were constitutionally significant.

The case is now closed.