Jennifer K. Wagner, J.D., Ph.D., is a solo-practicing attorney in State College, PA and a research associate at the University of Pennsylvania’s Center for the Integration of Genetic Healthcare Technologies.
In December 2009 the Northern District of California upheld the constitutionality of California’s Prop 69, which authorizes DNA fingerprinting as part of the routine booking process of individuals charged with felonies. There, in Haskell v. Brown, the defendants challenged California’s Prop 69 by arguing it violated both the 4th and 14th Amendments since, respectively, DNA fingerprinting upon felony arrest was, according to defendants, an unreasonable search and a violation of informational privacy.
In its 2009 opinion, the district court went to great lengths to review three landmark 9th Circuit cases regarding DNA sampling: Kincade,1 Kriesel,2 and Friedman.3 Ultimately the court held that the defendants failed to articulate adequately why DNA fingerprinting differs “in a legally significant way” from other forms of identification (e.g. mug shot photographs, dermatoglyphic fingerprinting). The court explained:
Understandably, much of what drives Plaintiffs’ focus on DNA and its ability to “reveal a host of private information about a person” is the “potential for misuse”—a threat that does not apply to fingerprints. (at 1198)
Applying the totality of the circumstances test (as opposed to the “special needs test”), the district court upheld Prop 69, finding it did not constitute an unreasonable search after balancing the privacy interests of arrestees with the governmental interests in the identification information.
Last week, in a split decision (2-1), the 9th Circuit Court of Appeals affirmed the district court’s 2009 ruling in Haskell.4 The court’s opinion (pdf) affirmed the district court’s determination that the totality of the circumstances test was the appropriate analytical framework. The privacy interests of the arrestees were weighed against the numerous governmental interests (notably, the government’s interests in “identifying arrestees, solving past crimes, preventing future crimes, and exonerating the innocent,” at 12). The court concluded that the governmental interests were compelling and strongly outweighed the interests of the arrestees.
The 9th Circuit’s ruling concludes with an important caveat that should comfort those uneasy with the decision:
We emphasize that our decision deals solely with DNA extraction, processing, and analysis as it presently exists, and is enforced. We acknowledge that future developments in the law could alter the constitutionality of the DNA Act, as amended. (at 15)
This should serve as a reminder that any constitutional question involving reasonableness is open for subsequent analysis to accommodate contextual changes. What is reasonable now may not have been a hundred years ago and may not be a hundred years from now. In theory this leaves the door open for constitutional challenges to DNA acts if the profiles involve the analysis of additional loci (e.g. the CODIS panel has been recommended to expand from 13 to 24 loci);5 however, because the recommended loci for the expanded panel also were chosen for identification purposes, a renewed challenge on this basis alone would likely result in the same outcome.
While many have waited anxiously for the Haskell case to be resolved, last week’s decision may not be the last word, even in California. Given the significant precedential value of this case, an en banc review by the 9th Circuit may be inevitable.
1 U.S. v. Kincade, 379 F.3d 813(9th Cir, 2004)
2 U.S. v. Kriesel, 508 F.3d 941 (9th Cir, 2009)
3 Friedman v. Boucher, 580 F.3d 847 (9th Cir, 2009)
4 Haskell v. Harris, — F.3d — (9th Cir, 2012)
5 Hares DR. Expanding the CODIS core loci in the United States. Forensic Sci. Int. Genet. 2011. Dsi:10.1016/j.fsigen.2011.04.012