A federal appeals court in San Francisco agreed Wednesday to take another look at whether a California law requiring police to collect DNA samples from anyone arrested on suspicion of a felony is constitutional.
The 9th U.S. Circuit Court of Appeals announced an expanded
11-judge panel will review a decision in which a smaller panel of the court
upheld the law by a 2-1 vote in February.
The law is part of an initiative measure enacted by state voters
It requires collection of DNA samples from people arrested on
suspicion of a felony regardless of whether they are ever charged or
convicted of a crime.
Four citizens who had DNA taken with cheek swabs after they were
arrested, but who were never convicted of a crime, claim the law violates
their constitutional Fourth Amendment right to be free of unreasonable
The four plaintiffs, from San Francisco, Berkeley and Sacramento,
are represented by the American Civil Liberties Union. Two who were arrested
at demonstrations were never charged with a crime and charges against the
other two were dropped.
They say DNA collection is far more intrusive than fingerprinting
because the DNA can reveal a person's entire genetic blueprint and can be
misused to reveal private genetic and medical information.
"DNA contains a tremendous amount of personal information," ACLU
attorney Michael Risher said earlier this year.
The lawsuit challenges only the collection of DNA from suspects
and does not oppose taking DNA when a person has been convicted of a crime or
when prosecutors have obtained a search warrant authorizing the procedure.
State lawyers defending the law contend there are restrictions on
the use of the information and that the DNA is useful for identifying
arrestees, solving past crimes and exonerating innocent people.
In the majority decision in which the smaller panel upheld the law
in February, 9th Circuit Judge Milan Smith wrote, "After weighing these
factors, we conclude that the government's compelling interests far outweigh
arrestees' privacy concerns."
The appeals court's grant of review by an 11-judge panel, known as
an en banc panel, means the February decision no longer has any legal force.
ALCU spokesman Rebecca Farmer said the larger panel will hear
arguments on the case during the week of Feb. 17.
The circuit court, which hears appeals from federal courts in nine
western states, reserves en banc review for the most important cases and
grants such hearings in only about 20 cases per year.