Haskell v. Harris (10-15152) Involving California’s DNA Collection of Arrestees Will Be Re-Heard En Banc the Week of December 19, 2013

August 23, 2013

Haskell v. Harris, case number 10-15152 has been ordered to be re-argued before the en banc court the week of December 19, 2013 in San Francisco.

The case involves a challenge to California’s Proposition 69, which was passed by voters in 2004 to “expand and modify state law regarding collection and use of criminal offender DNA samples and palm print impressions.” The “DNA Fingerprint, Unresolved Crime and Innocence Protection Act” text is available here.

What’s Changed: Earlier this summer, the United States Supreme Court issued its decision in Maryland v. King, 569 U.S. ___ , No. 12-207 (June 3, 2013). In upholding a Maryland law, the Court said that “when officers make an arrest supported by probable cause to hold for a serious offense and 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.” (Id. at 28.)


Background: On July 13, 2010, the case was argued and submitted before the three-judge panel: William A. Fletcher, Milan D. Smith, Jr. (Circuit Judges), and James Dale Todd, Senior District Judge (U.S. District Court for Western Tennessee, sitting by designation.) On February 23, 2013 the opinion as filed by Judge Milan D. Smith, Jr. with a dissent by Judge William A. Fletcher.

The February 23, 2010 opinion upheld the 2004 Amendment finding that it does not violate the Fourth Amendment. It is “undisputed that a compelled DNA extraction is a ‘search’ for Fourth Amendment purposes” so the court considered the totality of the circumstances and balanced an arrestee’s privacy interests against that of the Government’s need for DNA samples.


Following the decision, both parties have filed supplemental briefs discussing the implications of Maryland v. King.

(1) Plaintiffs/Appellants’ Supplemental Brief regarding Maryland v. King

(2) Defendants/Appellees’ (Attorney General of California/Assistant Bureau Chief for DNA Programs, California DOJ) Supplemental Brief

Pursuant to Federal Rule of Appellate Procedure, Rule 29(a), the Ninth Circuit also granted leave for the filing of amicus briefs.  Briefs are due by October 28, 2013 and must not exceed 2,500 words.

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