193 F.3d 72 (2nd Cir. 1999), 98-2790, Roe, Cobb, and Cerilli v Marcotte
|Docket Nº:||Docket No. 98-2790|
|Citation:||193 F.3d 72|
|Party Name:||ROBERT ROE, Consolidated-Plaintiff, THOMAS W. COBB, Plaintiff-Consolidated-Defendant-Appellant, RAYMOND J. CERILLI, Plaintiff-Counter-Defendant-Appellant, v RONALD MARCOTTE, RONALD CORMIER, MICHAEL SANTESE, DONALD POPILLO, Consolidated-Defendants-Appellees, v ROBERT BOSCO, Defendant-Counter-Claimant, LARRY R. MEACHUM, Commissioner, Official capacit|
|Case Date:||September 16, 1999|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued: June 28, 1999
Appeal from a judgment of the United States District Court for the District of Connecticut (Squatrito, J.) that granted defendants' motion for partial summary judgment dismissing plaintiffs' constitutional challenges to a Connecticut statute that required all convicted sex offenders to submit a blood sample for analysis and inclusion in a DNA data bank.
PETER L. COSTAS, Pepe & Hazard LLP, Hartford, CT, for Appellant Thomas W. Cobb.
RAYMOND J. CERILLI, Cheshire, CT, Appellant, Pro se.
TERRENCE M. O'NEILL, Assistant Attorney General, State of Connecticut, Hartford, CT (Richard Blumenthal, Attorney General for the State of Connecticut; Aaron S. Bayer, Deputy Attorney General, and Margaret Quilter Chapple, Assistant Attorney General, on the Brief), for Defendants-Counter-Claimants-Appellees Meachum, Barbieri, Hadlock, Halleran, Armstrong, Kirschner, and the State of Connecticut.
Before: KEARSE, STRAUB, and POOLER, Circuit Judges.
POOLER, Circuit Judge:
Plaintiffs, imprisoned upon their conviction of sexual offenses under Connecticut state law, challenge the constitutionality of Conn. Gen. Stat. § 54-102(g), which, among other things, requires all convicted sexual offenders who were incarcerated on the statute's effective date to submit a blood sample for analysis and inclusion in a DNA (deoxyribonucleic acid) data bank. Plaintiffs appeal from a judgment of the United States District Court for the District of Connecticut (Squatrito, J.) dismissing their challenges to the statute's constitutionality. They argue that the statute violates the Fourth Amendment's prohibition against unreasonable searches and seizures and the Fourteenth Amendment's guarantee of equal protection. We conclude that the statute is constitutional and affirm the judgment of the district court.
The underlying facts of this case are undisputed. Plaintiffs Thomas W. Cobb and Raymond J. Cerilli are inmates in the custody of the Connecticut Department of Correction. On January 9, 1990, a court sentenced Cobb to a 25-year term of imprisonment upon his conviction of two
counts of second degree sexual assault in violation of Conn. Gen. Stat. ("C.G.S.") § 53a-71(a)(1) and three counts of risk of injury to a minor in violation of C.G.S. § 53-21 in connection with the repeated sexual assault of his minor step-daughter. Cerilli currently is serving a 53-year sentence following his conviction of, among other things, first degree sexual assault in violation of C.G.S. § 53a-70(a). Defendants are current or former officers or employees of the State of Connecticut Department of Correction and Office of Adult Probation.
In 1994, the Connecticut legislature adopted Public Act 94-246, which was codified as C.G.S. § 54-102g ("the statute"). The effective date of the statute is October 1, 1994. It provides, in part:
(a) Any person who (1) is convicted of a violation of section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b on or after October 1, 1994, and is sentenced to the custody of the Commissioner of Correction or (2) has been convicted of a violation of [the previously referenced sections] and on October 1, 1994, is in the custody of the Commissioner of Correction shall, prior to release from such custody, have a sample of his blood taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person.
(b) Any person convicted of a violation of [the previously referenced sections] on or after October 1, 1994, who is not sentenced to a term of confinement shall, as a condition of such sentence, have a sample of his blood taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person.
Trained medical personnel must take the blood sample, and the Connecticut state police forensic science laboratory must perform the analysis. See id. §§ 54-102h, 54-102i. The results of the testing must remain stored in a confidential data bank. See id. § 45-102i. However, "[t]he [anonymous] results of an analysis and comparison of the identification characteristics from two or more blood or other biological samples shall be made available directly to federal, state and local law enforcement officers upon request made in furtherance of an official investigation of any criminal offense." Id. § 54-102j(a). "Only when a sample or DNA profile supplied by the person making the request satisfactorily matches a profile in the data bank shall the existence of data in the data bank be confirmed or identifying information from the data bank be disseminated." Id. § 54-102j(b).
Plaintiffs are subject to the provisions of the statute because of their convictions of sex offenses specified under the statute and their continued incarceration on or after October 1, 1994. To date, both have refused defendants' request that they submit a blood sample for analysis and inclusion in the data bank. In light of plaintiffs' refusal, the Attorney General of the State of Connecticut has the authority pursuant to State of Connecticut Department of Correction Administrative Directive No. 9.3 to seek a court order compelling them to provide a DNA sample.
In April 1995 and December 1995 respectively, Cerilli and Cobb filed complaints challenging the validity of the statute and seeking to prevent defendants from forcibly taking their blood. The court appointed Attorney Peter L. Costas pro bono counsel for Cerilli in October 1995 and for Cobb in January 1996. Upon plaintiffs' motions, the district court consolidated the two cases on September 9, 1996.1 Thereafter, plaintiffs filed amended complaints alleging that the statute violated their federal constitutional rights in that it (1) constituted an ex post facto law;
(2) violated their rights to due process and equal protection; (3) authorized an unreasonable search and seizure in violation of the Fourth Amendment; (4) inflicted cruel and unusual punishment in violation of the Eight Amendment; and (5) violated their right to privacy. Plaintiffs also alleged a claim under 42 U.S.C. § 1983 for deprivation of constitutional rights and sought redress for violations of various rights guaranteed by the Connecticut constitution. Plaintiffs sought compensatory and punitive damages, as well as an injunction preventing defendants' involuntary taking of their blood and a judgment declaring the statute unconstitutional. Defendants counterclaimed for a declaratory judgment upholding the statute's constitutionality and an injunction compelling plaintiffs to submit to the taking of a blood sample and allowing defendants to use reasonable force if necessary.
On cross-motions for summary judgment, the district court granted defendants' motion in part, dismissing all of plaintiffs' federal claims and declaring the statute constitutional, and denied plaintiffs' motion. The court dismissed plaintiffs' state law claims without prejudice to refiling in state court. The court later reopened and vacated its entry of summary judgment as to plaintiffs' Section 1983 claims.2 The district court then entered a partial judgment and certified the constitutionality issue for immediate appeal pursuant to 28 U.S.C. § 1292(b).3 Plaintiffs filed notices of appeal on August 29, 1998.
In July 1998, Attorney Costas moved for leave to withdraw as counsel to Cerilli, citing disagreements as to strategy and Cerilli's dissatisfaction with Costas' representation. The court granted Costas' motion to withdraw. Cerilli filed several motions in this Court for assignment of counsel, all of which we denied because Cerilli requested counsel to address issues not properly before the Court on appeal. In a May 28, 1999, order denying Cerilli's motion for assignment of counsel, we advised the parties that the appeal would proceed and argument would be scheduled despite Cerilli's failure to file a pro se brief by May 13, 1999, in compliance with a scheduling order. Costas perfected Cobb's appeal and appeared at oral argument. We now turn to Cobb's contentions.
Cobb does not seek to declare the entire DNA statute unconstitutional, but rather seeks to invalidate "only that portion which encompasses sexual offenders who were imprisoned on its effective date . . . whether or not their current imprisonment was predicated upon a sexual offense." Although he asserted numerous constitutional challenges below, Cobb raises only two on appeal: that the statute violates the Fourth Amendment's prohibition against unreasonable searches and seizures and that it violates the Equal Protection Clause of the Fourteenth Amendment. The Court reviews de novo the district court's grant of summary judgment. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995).
I. Fourth Amendment
Cobb argues that the statute violates the Fourth Amendment because it compels him to produce evidence that may be used in future criminal investigations merely because of his status as a convicted sex offender and without requiring a showing of probable cause or reasonable suspicion that he has committed a...
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