ACLU's Lawsuit Challenges DNA Law Approved By Voters
JOSH RICHMAN
Oakland Tribune, 12/08/2004
SAN FRANCISCO -- California's new, voter-approved law requiring DNA samples from all felony arrestees violates innocent people's constitutional rights, civil liberties advocates claim in a federal lawsuit filed Tuesday.
The American Civil Liberties Union of Northern California, representing nine people and two groups, claims the law enacted by Proposition 69 violates people's Fourth Amendment rights to be free of unreasonable search and seizure without probable cause, their 14th Amendment rights to due process of law and fundamental privacy rights.
The law is "an extraordinary assault on the privacy and security of all Californians" and turns the presumption of innocence -- the American justice system's cornerstone --"on its head," ACLU Racial Justice Project director Maya Harris said at a news conference.
Existing law required people convicted of certain serious felonies to give DNA samples to a state database against which police can compare evidence to solve other crimes. Proposition 69, approved Nov. 2 by 62.1 percent of voters, requires DNA collection at arrest and expands the net to all felonies.
It's retroactive, so all felony convicts in prison, on parole, on probation or done with their sentences are immediately eligible for inclusion; felony arrestees will be added in 2009. Some non- felonies -- certain sex or arson crimes, even if only attempted -- also merit inclusion under the new law.
Three other states take DNA from arrestees, but fewer felonies are eligible in Virginia and Texas, and Virginia allows a court hearing before collection. Only Louisiana collects from all felony arrestees as California does, but Louisianians can appeal if a judge refuses a request for removal from the
database; Californians can't appeal, and their removal requests are denied if a prosecutor objects.
"California now has the most draconian criminal DNA database in the country," Harris said.
Many thousands of people are arrested for felonies each year in California but aren't convicted for a variety of reasons. Taking DNA from them -- essentially treating them like potential criminal suspects and letting the government keep "direct access to the most fundamentally private personal information that any person possesses" -- is unconstitutional, the lawsuit says.
Among this case's plaintiffs is Michael Weber, a San Francisco State University freshman arrested for a felony at an anti-war protest last month; the charge was dismissed. Under the new law, he must submit a DNA sample in 2009.
Another plaintiff is Air Force and Border Patrol veteran Rodney Ware of Sacramento, an identity theft victim mistakenly arrested several times in recent years.
"The next time I am arrested in California for someone else's crime, the police will take my DNA," he said.
A third plaintiff is Emeryville's James Blair, arrested on marijuana charges that later were dismissed when his doctor testified his use was medical and so protected by state law.