Federal appeals court to hear challenge to California DNA collection law

SAN FRANCISCO -- On a March day three years ago in San Francisco's Civic Center Plaza, Elizabeth "Lily" Haskell was arrested during a rally against the Iraq War, cuffed on a felony allegation that she tried to spring another protester who had been taken into custody.

But once hauled off to jail, Haskell found herself in the legal cross hairs for more than just civic rabble-rousing. Sheriff's deputies ordered her to submit to DNA testing under a then-new provision of California law, giving her the choice of letting them swab the inside of her cheek or face an additional misdemeanor charge and sit in a jail cell for two days.

Haskell relented and took the DNA test. But now the Oakland woman is at the center of an American Civil Liberties Union legal challenge to a state law that allows law enforcement to collect DNA samples from anyone arrested for a felony, regardless of whether they are later charged or convicted. In Haskell's case, prosecutors never followed up the 2009 arrest with a criminal charge.

"My DNA was taken without any kind of due process," Haskell said last week. "I believe people should have the right to refuse to give their DNA."

On Wednesday, a special 11-judge panel of the 9th U.S. Circuit Court of Appeals will hear arguments in the latest round in the case, which has highlighted a legal issue that appears bound for the U.S. Supreme Court. In fact, in a brief order earlier this year, Chief Justice John Roberts said

At the request of civil liberties lawyers, the 9th Circuit agreed to take a second look at the Haskell case after a three-judge panel, in a 2-1 ruling, earlier this year upheld a voter-approved 2004 California law allowing DNA collection. The 9th Circuit rejected arguments that the law, which went into effect in 2009, tramples on the constitutional rights of those arrested for felonies, saying "government's compelling interests far outweigh arrestees' privacy concerns."

In court papers, lawyers for Haskell and others arrested but never charged with felonies argue that the California law "is an unprecedented expansion of the government's power to collect DNA evidence and to DNA profile individuals who have never been convicted of any crime."

To the ACLU, there is no reason someone's DNA should wind up in the state's DNA database if the person has never appeared in court, much less in front of a jury.

"People who haven't been convicted of anything shouldn't be treated like criminals," ACLU attorney Michael Risher said.

Law enforcement officials argue that the DNA collection law is a crucial tool in solving crimes. They liken taking a DNA swab at the time of arrest to fingerprinting.

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Federal appeals court to hear challenge to California DNA collection law