More than four years ago, Elizabeth Haskell of Oakland, California, was arrested on suspicion of trying to forcibly free another protester, though she was released without charges. At the time of her arrest, she submitted to a DNA swab under threat of additional charges and jail time.
Four years and five months later, her case has now been scheduled for its third trip to the Ninth Circuit, and its second en banc hearing. That's set for December 9, 2013, with the U.S. Supreme Court's holding in Maryland v. King cited as the cause of the delay.
Maryland v. King
On June 3, the U.S. Supreme Court, in all its wisdom, and with an unusual ideological split (conservatives and liberals on both sides of the 5-4 split), upheld Maryland's DNA collection and identification law as a reasonable search incident to arrest.
While some might argue that combing through a person's DNA is unconstitutionally intrusive, the Court held that Maryland's process, which only scans "junk" DNA (which contains no information on genetic diseases or dispositions) for purposes of identification, was perfectly acceptable as an evolution of many forms of identification, from mug shots to fingerprints.
The dissent noted that when searches are conducted for investigative purposes, rather than for identification, the Fourth Amendment applies. Here, the investigative purpose outweighed the identification purpose because they were using the information to solve cold cases.
Prior Holdings, Future Predictions
The initial panel held, similarly to the U.S. Supreme Court, that California's law was substantively similar to fingerprinting, while the dissent, much like Scalia, emphasized the investigatory purpose.
The en banc rehearing never resulted in a decision, as while they were deliberating on the matter, the Supreme Court handed down its decision in King.
We don't normally like to get into predictions, but one would imagine that had the Ninth Circuit's holding been in concert with SCOTUS, and upheld California's law, there would not have been a need for a rehearing.
Between Maryland's law, as discussed in the Supreme Court's opinion, and California's DNA and Forensic Identification Data Base and Data Bank Act of 1998, the most significant difference seems to be the action by the state when someone is not charged or convicted of a felony.
Absent a conviction, Maryland will delete the DNA information from the database. By comparison, California doesn't delete the information automatically and requires those not convicted of a qualifying offense to apply for expungement.
It's a pretty significant difference in our eyes, but we're not sure if it'll be enough to swing the Ninth Circuit toward reversing the panel. Even if it does, we can only imagine that the battle will continue though a petition to the Supreme Court.
- Haskell v. Harris -- Order (Ninth Circuit Court of Appeals)
- En Banc Rehearing Reveals Skepticism of DNA Database (FindLaw's U.S. Ninth Circuit Blog)
- 9th Cir Grants En Banc Rehearing in DNA Sample Case (FindLaw's U.S. Ninth Circuit Blog)