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It’s Your DNA — Or Is it?

Michael Risher,
Senior Staff Attorney,
ACLU of Northern California
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July 19, 2010

Forcing people to provide a DNA sample without any judicial oversight, just because a single police officer has arrested them, violates the Constitution. That’s why California’s law mandating that DNA samples be taken from all felony arrestees is facing a legal challenge from the ACLU of Northern California (ACLU-NC).

At issue is Proposition 69, a voter-enacted law which mandates that anyone arrested on suspicion of a felony in California has to hand over a DNA sample, regardless of whether or not they are ever charged or convicted. As a result, tens of thousands of innocent Californians will be subject to a lifetime of genetic surveillance because a single police officer suspected them of a crime.

ACLU-NC filed suit in federal court last year seeking to stop this invasive law that violates the Fourth Amendment. Last week, the 9th Circuit Court of Appeals heard oral arguments in the ACLU’s appeal of a lower court’s denial of a request for a preliminary injunction to halt the law while the suit continues. The appeals court hearing on July 13 showed that the court takes the privacy concerns and other constitutional issues in this case very seriously. The court clearly recognized the importance of the case, questioning both sides closely and extending the time allotted for oral argument.

Instead of being limited to serious, violent offenses, this law even applies to someone who has written a bad check, shoplifters, and people arrested during political demonstrations. And because collection occurs before any review by a prosecutor or a court, even people who are wrongfully arrested — either because of police misconduct or because the police simply had been provided with incorrect information — will be ordered to provide a sample. For example, a domestic violence victim who injured her partner in self defense might well be arrested while the police investigated her story and then released when they confirmed it, but would still have had to provide a sample.

The practice of automatically collecting DNA from people who are merely arrested ignores the presumption of innocence and blurs the line between being suspected of a crime and being convicted.

The lead plaintiff in the suit, Lily Haskell, was arrested at a peace rally in San Francisco. She was not charged with a crime and was quickly released, but not before being required to provide a DNA sample. When your DNA is taken after an arrest at a political demonstration, it can have a silencing effect on political action. Now, her genetic information is stored indefinitely in a government database.

Data from the California Department of Justice reveal that nearly one-third of the 300,000 arrests every year in California on suspicion of a felony never result in a conviction. A disproportionate number of these arrestees are people of color. Communities of color will face an even greater burden from the impact of this kind of genetic surveillance. Moreover, there are reports from Great Britain, which also takes DNA from some persons who are arrested, of police making arrests without cause simply to obtain a DNA sample to put in the country’s database.

Databanks should focus on people who have been convicted of crimes, not on those whom a single police officer thinks may have committed a crime — that is a better use of our limited resources and it’s what the constitution demands.

Meanwhile, California’s huge forensic DNA database — the third largest in the world — already faces tremendous backlogs. The resources spent collecting thousands upon thousands of DNA samples from arrestees detract from the resources that could instead be devoted to processing crime scene samples to help solve violent and serious crimes like rape, assault, and murder.

(Cross-posted to Daily Kos and Calitics.)

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