On March 20, 2014, the Ninth Circuit U.S. Court of Appeals, in a unanimous en banc opinion (11 justices), rejected a challenge to California’s Proposition 69, which allows the collection of DNA from all arrested persons charged with felonies.

In the case of Haskell et al. v. Harris, the Court upheld “the district court’s denial of a preliminary injunction in a class action brought under 42 U.S.C. § 1983 in which plaintiffs challenged a California law that requires all persons arrested for or charged with any felony or attempted felony to submit DNA samples for inclusion in law enforcement databases.”

The en banc court stated that the question presented was “(w)hether California’s DNA collection scheme was constitutional as applied toanyone “arrested for, or charged with, a felony offense by California state or local officials?” The court held that after [the U.S. Supreme Court decision in] “Maryland v. King, 133 S. Ct. 1958 (2013), the answer is clearly yes.”

[We are most pleased to note that JONES & MAYER, as counsel to the California State Sheriffs’ Association (CSSA), the California Police Chiefs’ Association (CPCA), and the California Peace Officers’ Association (CPOA), prepared and submitted an amicus curiae brief supporting the California Attorney General in this litigation. It is also gratifying that the arguments set forth in the amicus brief are, virtually, the same legal basis set forth by the Ninth Circuit in its decision.]


The Court noted that, “California law requires that all persons arrested for or charged with any felony or attempted felony submit DNA samples for inclusion in law enforcement databases. Cal. Penal Code § 296(a)(2),(4). Plaintiffs brought a class action under 42 U.S.C. § 1983, alleging that the law is unconstitutional on its face and as applied to the certified class, which includes “[a]ll persons who are, or will be, compelled to submit to the search and seizure of their body tissue and DNA under California Penal Code § 296(a) solely by reason of the fact that they have been arrested for, or charged with, a felony offense by California state or local officials.” The district court denied a motion for a preliminary injunction, …, and plaintiffs appealed, ….”

The en banc Court stated that in order for a plaintiff to prevail on a motion for a preliminary injunction, it “must demonstrate (1) a likelihood of success on the merits, (2) that he is likely to suffer irreparable harm in the absence of an injunction, (3) that the balance of equities favors his position and (4) that the injunction is in the public interest.”

The Court noted that previous court decisions have held that to prevail “requires the plaintiff to make a showing on all four prongs. Here, the plaintiffs cannot show that they will likely succeed on the merits.”

Concurring Opinion

Circuit Judge Milan D. Smith agreed with the judgment but, in a separate concurring opinion, stated that in addition to supporting the decision that the district court properly denied the motion for a preliminary injunction, he emphasized that the DNA law in California is indistinguishable from the law upheld in Maryland v. King.

The Judge set forth the history of Proposition 69, how the DNA is collected, and what is done with it thereafter. The Judge then stated that “(t)he Supreme Court’s decision in King is fatal to Plaintiffs’ claims. In King, the Court held that ‘[w]hen officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment’.”

“Plaintiffs first argue that King is distinguishable because Maryland’s law applies only to burglaries, crimes of violence, and attempts at either, which the Supreme Court characterized as “serious crimes.” By contrast, California’s law applies to all felonies. See Cal. Penal Code § 296(a)(2)(C). Plaintiffs contend that this difference is significant, as the California law applies to more minor crimes in which DNA evidence will rarely be relevant, including “wobblers” that can be charged as either a misdemeanor or a felony.”

Judge Smith finds that “(t)his argument has no traction. The Maryland law’s list of serious crimes … does not differ significantly from the California law’s limitation to adult felony arrestees. A felony is, of course, a serious crime.”

This is, virtually, the position we took on behalf of CSSA, CPCA, and CPOA in the amicus brief submitted on their behalf.


This validates the constitutionality of California’s Proposition 69, codified as Penal Code section 296, which requires that all persons arrested for or charged with any felony submit DNA samples for inclusion in law enforcement’s databases. As such, your agencies are authorized to continue to take DNA samples from all persons arrested on felony charges.

As Judge Smith stated, “(i)n upholding Maryland’s law, the Supreme Court defined the state’s interest in obtaining DNA as identifying [the arrestee] not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody.”

Furthermore, “the California law’s limitation to felony arrests is not meaningfully different from the Maryland law’s restriction to certain ‘serious crimes.’ In upholding the Maryland law, the Supreme Court identified the state’s interest as identifying the arrestee as part of the booking process. This state interest does not vary with the ‘seriousness’ of the felony at issue.”

We urge that securing advice and guidance from your agency’s legal counsel is always important when analysis and/or application of the law is needed.

As always, should you wish to discuss this decision in greater detail, feel free to contact me at (714) 446 —1400 or via email at mjm@jones-mayer.com.

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