Despite a U.S. Supreme Court decision in June that collection of an arrestee’s DNA is like fingerprinting and photographing suspects, the 9th U.S. Circuit Court of Appeals wants to reconsider a similar California DNA collection law in December.
The circuit issued an order Wednesday that an 11-judge panel will ponder whether California’s similar DNA collection case is in any way different from the Supreme Court’s Maryland v. King decision.
Chief Judge Alex Kozinski issued an order, that in light of Maryland v. King and both sides’ supplemental briefs in the California case, it will be re-argued the week of December 9 in San Francisco.
Opponents of collecting DNA from arrestees say the high court’s ruling was not, as the state argues, a bright-line, per se rule that allows mandatory DNA collection from any arrestee.
“Different laws and circumstances may lead to a different balance,” according to lawyers for Elizabeth Haskell and others challenging the California law.
Courts are required to consider the “totality of the circumstances,” they argue.
In the original argument last September, the 11 judges of the en banc panel did not appear particularly sympathetic to the state’s argument that it may collect arrestee DNA routinely.
But the court held off ruling while the King case was pending in the U.S. Supreme Court. After King came down on the side of approving DNA collection, the 9th Circuit asked for added briefing and pondered whether it needed a do-over for oral arguments.
Wednesday they decided, yes, they wanted to hear the case again.
The case began after DNA collection of four arrestees at political demonstrations in 2009. Haskell and two others were never charged with crimes and a fourth man was charged but later had the charge dismissed. The challenged the taking of mouth swabs for genetic tissue as an improper seizure. The state’s DNA law allowed collection from arrestees and placement in law enforcement databases.
The four argued that it amounted to an illegal search in violation of the Fourth Amendment.
Now we’ll see how the 9th Circuit handles the Supreme Court decision.
Case: Haskell v. Harris, No. 10-15152
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