Friday, December 6, 2013

Get Serious: The US Department of Justice's Amicus Brief in Haskell v. Harris

As the U.S. Court of Appeals for the Ninth Circuit returns to the question of the constitutionality of California's DNA database law, the United States has weighed in with an amicus brief. It is worried (or should be) that the en banc panel will take too seriously the Supreme Court's references to “serious offenses” in Maryland v. King, the DNA-on-arrest case decided last June. The Maryland law that the Court narrowly upheld authorizes DNA collection for violent felonies, burglaries (and attempts to commit those crimes). The California law under attack in Haskell is broader, applying to all felony arrests, including those that would seem rather petty to the casual observer. (The federal law is broader still, encompassing every offense, no matter how trivial, for which a person is dragged into custody.)

Consequently, it comes as no surprise that the federal government wants the Ninth Circuit to read King expansively, whereas the ACLU, which represents the plaintiffs in Haskell, is pressing for the narrowest possible reading. Interestingly, opponents of all forms of DNA-BC (routine arrestee DNA sampling before conviction) tend to read the majority opinion in King broadly. Professor Erin Murphy, for example, concludes in her recent review of the case that the majority did not even "attempt[] to limit its holding to serious crimes." (Murphy 2013, p. 171).

The U.S. Department of Justice (DOJ) could not agree more. Here, I want to look critically at the DOJ’s arguments and statements. The brief essentially argues that (1) the King Court intended its opinion to settle the Fourth Amendment status of all existing DNA-BC laws, (2) by definition, the reasons to uphold the narrower Maryland law apply with equal force to the broader California law, and (3) the King Court's use of the word "booking" and its analogy between DNA profiling and fingerprinting settle the issue as a matter of logic and substance. None of these arguments is conclusive.

I. What Were the Justices Thinking?

The DOJ lawyers seem to think that because the Court was aware that DNA-BC is a national issue, its opinion was meant to settle the issue for all DNA-BC statutes. Their brief quotes the majority's observation that:
Noting that “[t]wenty-eight States and the Federal Government have adopted laws similar to the Maryland Act,” the Court explained that “[a]lthough those statutes vary in their particulars, such as what charges require a DNA sample, their similarity means that this case implicates more than the specific Maryland law.” King, 133 S. Ct. at 1968 (emphasis added).
Brief for the United States, at 3.

The Court’s phrasing cannot bear the weight the government places on it.  Of course “the case” implicates other laws. That is one reason the Court decided to review the case. The Court could have effectively struck down a swath of federal and state laws in one fell swoop. It did not. Is the Court’s awareness of the fact that state laws vary in the offenses that trigger arrestee sampling an announcement that the Court thinks it is upholding the laws of 28 states and the federal government? The next sentence in the majority opinion summarizes the spread of DNA-BC across the country: “At issue is a standard, expanding technology already in widespread use throughout the Nation.” 133 S. Ct. at 1968. The“standard, expanding technology” is the “national project to standardize collection and storage of DNA profiles [known as] the Combined DNA Index System (CODIS) [that] connects DNA laboratories at the local, state, and national level [and that] collects DNA profiles provided by local laboratories taken from arrestees, convicted offenders, and forensic evidence found at crime scenes.” Id. Before the Court even agreed to hear Maryland v. King, the Chief Justice stayed the enforcement of the Maryland Court of Appeal decision partly on the ground that it affected the national system. Yes, the Court expected its opinion in King to affect what other states would do, but that expectation does not mean that its opinion addresses the constitutionality of matters not before it.

II. Is the Balance the Same in California?

The real issue in Haskell is not whether the Justices had the California law in mind when they wrote their opinions in King. It is whether their reasoning dictates the same outcome. Addressing that question, the government claims that “[e]ach of the interests that informed the Court’s holding that the Maryland law was reasonable under the Fourth Amendment similarly applies to California’s law. Consequently, it too is reasonable under the Fourth Amendment.” Amicus Brief of the United States, at 5.

Huh? I invest my money in the common stock of the ABC corporation in light of my assessment of the balance of risk and reward. Although my interests—financial security and possible gain—are the same in all my investments, it does not follow from the fact that my decision to purchase the ABC shares was reasonable that all my investment decisions are equally reasonable. Thus, the DOJ’s argument is incomplete. What matters is not whether the same interests nominally are at play, but whether there are differences that affect the balance of these interests in each situation.

Surely the case for DNA-BC is at least somewhat weaker when it comes to minor offenses. Although "[p]eople detained for minor offenses can turn out to be the most devious and dangerous criminals," Florence v. Bd. of Chosen Freeholders of County of Burlington, 132 S. Ct. 1510, 1520 (2012), on average, people arrested for minor traffic offenses are less likely to be hiding their true identities and to have incriminating DNA samples at crime-scenes than are people arrested for far more serious matters. Whether differences like these are significant enough to change the outcome is debatable of course, but the government’s theory in Haskell is superficial. That the list of generic interests is the same for the most serious and the least serious offenses is the beginning, not the end, of the analysis.

III. Are All Booking Procedures for Identification the Same?

A third argument of sorts emerges in the government brief. Its logical structure is this: (1) arrestee fingerprinting is a constitutionally reasonable booking procedure; (2) arrestee DNA profiling is an analogous booking procedure; therefore, (3) arrestee DNA profile is constitutionally reasonable. The brief puts it this way:
If the term “serious offense” did carry any meaning in King, [it] includes any crime for which an individual is arrested and booked in police custody. This meaning is logical, not only because the Court analyzed DNA fingerprinting as a “booking procedure,” but also because it analogized DNA fingerprinting to traditional “fingerprinting and photographing.”
Brief for the United States, at 7-8.

This “logic” is specious. That DNA sampling is a permissible part of the bookkeeping process for an individual placed in custody for offense A does not imply that it also is permissible for offense B unless B = A in all relevant respects. There is no a priori logical reason to assume that all offenses are so fungible. Similarly, that DNA is like friction-ridge skin in that both can be used to differentiate among individuals does not necessarily mean that the two identifiers are equivalent in other respects. The real issue, as explained above, is whether the government’s interests in acquiring DNA profiles are so much less with respect to some offenses that the government’s demand for the DNA becomes unreasonable. That is a question of practical reason, not of deductive logic or word games.

Recognizing that the King opinion does not foreclose a distinction between serious and nonserious felonies, however, does not imply that the case should be confined to the qualifying offenses in the Maryland law.  The limited information content of a DNA identification profile was a very important factor on one side of the balance sheet in King.  It may not take a particularly puissant set of state interests to overcome the individual interest in shielding this limited information from discovery.  Inasmuch as the repeated references to "serious offenses" in King seem more descriptive than prescriptive (Murphy 2013, p. 170), little in that opinion supports the limitation that the Haskell plaintiffs now propose.

  • Brief for the United States as Amicus Curiae in Support of Appellees and Affirmance, Haskell v. Harris, No. 10-15152, Oct. 28, 2013
  • Haskell v. Harris, 686 F.3d 1121 (9th Cir. 2012) (granting rehearing en banc)
  • Maryland v. King, 133 S. Ct. 1958 (2013)
  • David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, Journal of Criminal Law and Criminology, Vol. 104, May 2014 (in press)
  • Erin Murphy, License, Registration, Cheek Swab: DNA Testing and the Divided Court, 127 Harv. L. Rev. 161 (2013)

1 comment:

  1. The government's justification for collecting and analyzing DNA from an arrestee (i.e., to see if the arrestee is linked to an unsolved crime) is the same regardless of whether the arrest is for a "serious" or "nonserious" crime. But, viewed objectively, society would recognize that it is a greater invasion of privacy to collect and analyze DNA from a person arrested for jaywalking than it is to perform the same search on a suspected capital murderer, even if both are booked and detained in custody. Thus, the reasonableness balance is altered depending upon whether the arrest is for a serious or nonserious crime. And that leads the 9th Circuit back to the core, line-drawing, question: What crimes are "serious" within the meaning of King?

    If the en banc panel wants to restrict the reach of King they will simply hold that the scope of the King rule is limited by its underlying facts, i.e., persons arrested for violent felony crimes who are detained in custody, regardless of the purported breadth of its underlying legal theory. On the other hand, the King opinion contains a wealth of wording that permits the panel to place little, if any, weight on the limiting predicate of a "serious" crime. Regardless of what path the panel chooses, the Supreme Court will presumably have the last word on this issue.

    My opinion: The panel should draw the line at arrests for felonies and violent misdemeanors. Most "reasonable" people would conclude that that category of crimes is "serious" enough to justify the minimal intrusion of a DNA swab. It should also be noted that, by requiring custodial detention as a prerequisite to the collection and analysis, the King majority, for all practical purposes, limited such searches to felonies and violent misdemeanors, as the vast majority of persons arrested for crimes other than felonies and violent misdemeanors are "cite-released," i.e., not detained in custody in the general jail population.