Haskell v. Brown
| Decision Date | 23 December 2009 |
| Docket Number | No. C 09-04779 CRB.,C 09-04779 CRB. |
| Court | U.S. District Court — Northern District of California |
| Parties | Elizabeth A. HASKELL and Reginald Ento, Plaintiffs, v. Edmund G. BROWN Jr., et al., Defendants. |
Michael Temple Risher, ACLU Foundation of Northern California, Inc., Peter Clarence Meier, Eric Andrew Long, Katharine Chao, Sarah O. Chang, Paul, Hastings, Janofsky & Walker LLP, San Francisco, CA, for Plaintiffs.
Daniel J. Powell, Department of Justice, Attorney General's Office, Sherri Sokeland Kaiser, Office of the City Attorney, San Francisco, CA, for Defendants.
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs seek to enjoin the enforcement of California Penal Code § 296(a)(2)(C), which provides for the mandatory DNA sampling of felony arrestees in the State of California. Plaintiffs allege that this section violates both the Fourth and Fourteenth Amendments. Although Plaintiffs argue convincingly that arrestees have greater privacy interests than convicted felons, from whom the Ninth Circuit has already condoned the taking of DNA samples, Plaintiffs have not established that they are likely to succeed, or that the balance of the equities tips in their favor. Accordingly, the Court DENIES the motion.
California has collected biological samples for its law enforcement database since 1984. Opp. at 2 (citing 1983 Cal. Stat. Ch. 700, § 1 (repealed 1998)). In 1998, California's 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, § 2). Then, in November 2004, California voters passed Proposition 69, which enacted Penal Code section 296(a)(2)(C). MPI at 2. That new section greatly expanded the scope of individuals in California who are subject to warrantless DNA seizures by law enforcement. Id. Proposition 69 required warrantless seizure of DNA from all individuals convicted of any felony. Id. (citing § 296(a)(1)). It also provided that, beginning January 1, 2009, warrantless seizure of DNA would be required of any adult arrested for any felony. MPI at 2 (citing § 296(a)(2)(C)).
By law, collection of DNA takes place "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." MPI at 2 (citing § 296.1(a)(1)(A); Meier Decl. Ex. A at 2 (Cal DOJ DNA Information Bulletin 08-BFS-02)). DNA samples are taken using a buccal swab, which consists of gently scraping the inner cheek repeatedly with a small stick. Opp. at 3 (citing §§ 296; 296.1). DNA samples are not taken from individuals who have already had their DNA samples taken. See Konzak Decl. at ¶ 28; Meier Decl. Ex. A at 3 (). Law enforcement has no discretion in collecting these samples. Opp. at 3 (citing People v. King, 82 Cal.App.4th 1363, 1373, 99 Cal. Rptr.2d 220 (2000)).
After the DNA sample is taken, it is sent to the Department of Justice's lab for analysis. MPI at 3. The sample may only be tested to reveal an individual's identity. Opp. at 3 (). From the sample, a genetic profile is created based on thirteen (13) "junk" genetic markers ("loci") on the DNA, so titled because they are thought not to reveal anything about trait coding. Opp. at 3; Konzak Decl.1
The profile is then uploaded into California's DNA data bank, which is part of the nationwide Combined DNA Index System ("CODIS"), accessible to local, state and federal law enforcement. MPI at 3. "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." See United States v. Kincade, 379 F.3d 813, 819 n. 8 (9th Cir.2004) (en banc) (plurality); see also 61 Fed. Reg. 37496 (July 18, 1996) (). Arrestee DNA profiles are entered into a special Arrestee Index. Konzak Decl. at ¶ 34. The DNA samples themselves are retained at the lab. MPI at 1.
The DNA Act limits disclosure of samples and results of testing to law enforcement personnel. Opp. at 3 (citing § 299.5(f)). Any individual who uses a sample or DNA profile for any purpose other than identification, or who discloses the sample or DNA profile, faces up to a year in prison. Opp. at 3 (citing § 299.5(i)(1)(A)).2 Any DOJ employee who misuses or improperly discloses a sample or DNA profile is also subject to a fine of up to $50,000. Opp. at 3 (citing § 299.5(i)(2)(A)). To date, there has not been one instance in which charges were brought against an employee of the DOJ for violating the DNA Act. Opp. at 4 (citing Hares Decl. ¶¶ 14, 16-18). In addition, no audit has ever cited a California CODIS lab for any violation of confidentiality or use restrictions. See Konzak Decl. at ¶ 7.
Searching of the CODIS database takes place frequently. As soon as a profile is uploaded, it is immediately compared to the crime-scene samples already in that CODIS index. MPI at 3. Any new crime-scene samples are searched against it. Id. In addition, a search of the entire system is performed once a week. Id. (citing Birotte v. Superior Court, 177 Cal.App.4th 559, 565, 98 Cal.Rptr.3d 883 (2009)). When a "hit" is made—a match between the offender (convicted offender or arrestee) profile and a crime-scene profile—a confirmation process takes place, which includes a de novo analysis of the offender DNA sample. Von Beroldingen Decl. at ¶¶ 15-17. Once the hit has been confirmed, the CODIS unit sends a written notification of the offender's identity to the submitting laboratory, which then may forward the notification on to the client law enforcement agency. Id. at ¶ 18. California also conducts "familial searching," in which law enforcement uses the DNA database to identify a person whose DNA does not match the crime-scene evidence but is similar enough that the person might be related to the criminal. MPI at 3-4. However, the government maintains that it does not conduct familial searching of the Arrestee Index. Von Beroldingen Decl. at ¶ 13.
Under the statute, the process for expunging an individual's sample and profile is rather lengthy. Where no charges are filed, the case is dismissed, or the arrestee is found not guilty or factually innocent, the arrestee must still wait until the statute of limitations has run before applying for expungement. MPI at 4 (citing § 299(b)). Depending on the felony for which he or she was arrested, this is a minimum of three years. Id. After requesting relief and notifying the DOJ, former arrestees must then wait an additional 180 days before a court can authorize expungement. Id. (citing § 299(c)(2)(D)). Then, the court's order, either granting or denying expungement, is nonappealable. Id. (citing § 299(c)(1)). Moreover, expungement can be prevented if there is "an objection by the Department of Justice or the prosecuting attorney." Id. (citing § 299(c)(2)(D)). According to the government, "although the law allows prosecutors to wait the entire period of the statute of limitations to file charges," California District Attorneys do not wait for the statutory period to run in order to certify a dismissal for a defendant who wants his or her record expunged. Von Beroldingen Decl. at ¶ 6. Further, Defendants have offered to expunge the named Plaintiffs' samples on an expedited basis. Id. at ¶ 8. The government reports that it has expunged 904 convicted felon samples, and denied 8 requests for expungement. Id. at ¶ 7. It has apparently not expunged any arrestee samples.
Plaintiff Lily Haskell was arrested in March 2009 for allegedly trying to free another prisoner at a peace rally. MPI at 5. At jail, she was ordered to provide a DNA sample and was told that if she refused to comply immediately or if she waited for a lawyer, she would be charged with a misdemeanor. Id. She gave a sample, and was never charged with any crime. Id.
Plaintiff Reginald Ento was arrested in early 2009 for possession of stolen property. MPI at 5. The sheriff's deputy collected a DNA sample from him using a buccal swab. Id. Plaintiff Ento was released, and the allegations against him were dropped. Id.
The ACLU, counsel for Plaintiffs, first filed suit when Proposition 69 passed; however, that case was dismissed as unripe. See Weber v. Lockyer, 365 F.Supp.2d 1119, 1126 (N.D.Cal.2005). Plaintiffs then filed this class action suit in October 2009 against Edmund G. Brown, Jr., Attorney General; Eva Steinberger, Assistant Bureau Chief for DNA Programs, California Department of Justice; and Michael Hennessey, Sheriff of San Francisco County. They have now moved for a preliminary injunction, asking the Court to enjoin Defendants from seizing, searching, analyzing, or making any use of DNA samples or analysis of DNA samples from persons arrested for, but not convicted of, a crime. MPI at 1.
To prevail on a motion for preliminary injunction, Plaintiffs must establish that (1) they are likely to succeed on the merits; (2) they face irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. See Winter v. N.R.D.C., ___ U.S. ___, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008).
To continue reading
Request your trial
-
People v. Buza, A125542
...loci known as "noncoding" or "junk" DNA, because "they are thought not to reveal anything about trait coding" (Haskell v. Brown (N.D.Cal. 2009) 677 F.Supp.2d 1187, 1190 (Haskell)); the resulting profiles are so highly individuated that the chance of two randomly selected individuals sharing......
-
People v. Buza
...known as “noncoding” or “junk” DNA, because “they are thought not to reveal anything about trait coding” ( Haskell v. Brown (N.D.Cal.2009) 677 F.Supp.2d 1187, 1190( Haskell )); the resulting profiles are so highly individuated that the chance of two randomly selected individuals sharing the......
-
Haskell v. Harris
...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.Cal.2009). The court wrote, “Though the government might be able to introduce more reliable evidence about the efficacy of arrestee ......
-
U.S. v. Mitchell
...has a criminal record, whether he is the same person who committed an as-yet unsolved crime across town, etc.).” Haskell v. Brown, 677 F.Supp.2d 1187, 1199 (N.D.Cal.2009). The second component—what a person has done—has important pretrial ramifications. Running an arrestee's DNA profile thr......
-
Drawing the Line: Dna Databasing at Arrest and Sample Expungement
...(last visited Mar. 31, 2013) (detailing the CODIS hierarchy).52. Buza, 129 Cal. Rptr. 3d at 758; see also Haskell v. Brown, 677 F. Supp. 2d 1187, 1190-91 (N.D. Cal. 2009).53. Buza, 129 Cal. Rptr. 3d at 758; see also Gabel, supra note 5, at 16 ("A 'hit' occurs when an offender profile matche......
-
Maryland v. King and the Road Already Traveled: How the United Kingdom Tried—and Failed—to Balance State Interests With Privacy Rights
...rapid identifications outweighs [the defendant's] privacy interest in the collection and analysis of a DNA sample"); Haskell v. Brown, 677 F. Supp. 2d 1187 (N.D. Cal. 2009), aff'd sub nom. Haskell v. Harris, 669 F.2d 1049 (9th Cir. 2012) (rejecting a motion to enjoin enforcement of Californ......