A federal appeals court has agreed to hear a challenge to California’s practice of collecting DNA samples from anyone arrested for a felony. That practice started three years ago, after the approval of Proposition 69.
The measure requires police to collect DNA swabs from any adult arrested for a felony — whether or not they end up being convicted. Prosecutors and police say it helps them identify suspects and link them to other crimes, comparing the practice to taking fingerprints.
Opponents, including the American Civil Liberties Union (ACLU), argue that taking DNA samples from people not convicted of a crime violates the U.S. Constitution’s prohibition on unreasonable search and seizure.
"California has the most draconian DNA database system in the country,” ACLU attorney Julia Harumi said in a statement when the group filed its challenge.
"DNA is much more than a fingerprint," said Maya Harris, director of the ACLU's Racial Justice Project. "It opens a genetic window that reveals intimate information about you and your family, including predispositions to Alzheimer's disease, depression, multiple sclerosis and cancer."
"Law enforcement should not be allowed to seize that personal, private information when you haven't even been charged with a crime," she said.
In arguing to uphold Proposition 69, a court filing by the office of California Attorney General Kamala Harris pointed to rulings by other federal appeals courts:
"In addition to establishing identity, the Third Circuit noted that 'DNA profiling assists the government in accurate criminal investigations and prosecutions' as well as in solving past crimes," the filing reads. "These interests, the Court concluded, outweigh the arrestee’s interest in the privacy of his identity."
People not ultimately convicted can ask the California Department of Justice or a judge to order their DNA sample removed from the state criminal database — but the ACLU says this is a difficult and lengthy process.
A three-judge panel of the Ninth U.S. Circuit Court of Appeals voted two to one to uphold Prop 69, but an 11-member panel has agreed to review the decision.