SAN FRANCISCO (AP) — The constitutionality of California's controversial law mandating the collection of DNA samples from all arrestees whether they're charged with a crime or not was at issue Monday at a specially convened hearing of 11 federal appeals court judges.
California Attorney General Kamala Harris and the Obama administration are urging the 9th U.S. Circuit Court of Appeals to reject the American Civil Liberties Union legal challenge to the law, arguing the collection of DNA samples during the booking process is a simple cheek swab and a powerful law enforcement tool used to solve thousands of "cold cases."
"DNA at booking is the functional equivalent of fingerprinting," argued state deputy Attorney General Enid Camps.
The ACLU argues that the collection from all arrestees is an unconstitutional invasion of the privacy of suspects who are never charged with a crime.
"DNA is the blueprint of ourselves," countered ACLU attorney Michael Risher.
The 11 judges assembled in San Francisco to consider the case ranged the entire political spectrum of presidential appointees and no consensus emerged after an hour of oral arguments.
Judges N. Randy Smith, Richard Paez, Harry Pregerson and Raymond Fisher appeared sympathetic to the ACLU's position.
"A fingerprint doesn't carry with it all the biological information contained in DNA," Fisher said.
Chief Judge Alex Kozinski and Judges Milan Smith and Johnnie Rawlinson had tough questions for the CLU.
The 9th Circuit appeared on the verge of striking down the law after a first round of oral arguments last year. But before the 9th Circuit could rule, the U.S. Supreme Court ruled 5-4 to uphold Maryland's similar — but narrower — law. The 9th Circuit ordered new legal arguments, demanding from the ACLU reasons why California's law differs enough from Maryland's to be struck down.
Maryland collects DNA from those arrested for serious offenses and automatically destroys samples of arrestees who aren't charged. California collects DNA from all suspects during the booking process and the samples are destroyed only after an arrestee applies to a court.
Pregerson, appointed to the appeals court in 1979 by President Jimmy Carter, called California's law "extreme" and the collection a "very serious intrusion" of privacy because, unlike fingerprints, DNA contains information about a suspect's mental and physical health, among other data.
Smith, appointed by President George W. Bush in 2006, said the swab of a suspect's cheek to obtain a DNA sample is as intrusive as taking an arrestee's fingerprints and he couldn't see how the appeals court could strike down California's law in light of the high court's decision to uphold Maryland's law.
Kozinski suggested sending the case back to the trial court so the ACLU could trim its class action lawsuit to include only those cleared of criminal charges instead of all arrestees.