A federal appeals court says California can continue to enforce its voter-approved DNA law, which requires police to take genetic samples of anyone arrested for a felony. But — to the relief of a Bay Area political protester and other opponents of the law — the court says their legal challenge can continue as well.
The law was part of a 2004 ballot measure but didn’t take effect until 2009. It requires officers to swab an inner cheek of all felony arrestees for DNA and enter the information in a national database. The previous state law had required DNA samples only after a felony conviction.
State officials say the law is a valuable crime-solving tool. Civil liberties groups say it’s an invasion of privacy.
The U.S. Supreme Court took its first look at state DNA laws in June and voted 5-4 to uphold a Maryland law that requires genetic samples from anyone who is charged with a serious felony, which includes burglaries and crimes of violence. Based on that ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco denied a request Thursday to block enforcement of the California law.
But in a 10-1 decision, the court said opponents can go back to a federal judge in San Francisco and try to persuade him to block provisions of the California law that are broader than Maryland’s — such as DNA sampling from those arrested for low-grade felonies, like drug possession and repeated shoplifting. The California law also allows samples to be taken earlier, at the time of arrest, and according to the plaintiffs, also makes it hard to get a DNA sample removed from the database even if the person is never convicted of a felony.
The only disagreement came from Judge Milan Smith, who said the Supreme Court had made it clear that a state could require DNA sampling — a “minor intrusion,” as the court described it — from anyone arrested for any felony, major or minor. That means the California law is also constitutional, he said.
The lead plaintiff in the California case is Elizabeth Haskell of Oakland, who was arrested at a March 2009 antiwar rally in San Francisco on suspicion of forcibly trying to free another demonstrator. She gave a DNA sample and was later released without charges.
Attorney Michael Risher of the American Civil Liberties Union, who represents Haskell and others challenging the California law, said Thursday’s order gives them “the opportunity to show that as applied to people who are arrested for less-serious offenses, who are never charged with a crime, who never go before a judge for a probable-cause determination, this law is unconstitutional.”
Bob Egelko , SF Gate