(CN) - Opponents of California's mandatory DNA collection statute told an en banc panel of the 9th Circuit that the law violates the constitutional rights of people who are arrested but never charged.
The 9th Circuit, which has reviewed the law twice already, was prompted to take a third look by a US Supreme Court ruling in June that upheld the constitutionality of a similar law passed by Maryland voters.
Elizabeth Haskell, who was arrested at a 2009 peace rally for allegedly obstructing a police officer, challenged the law, which requires anyone arrested or charged with a felony to submit to DNA sampling.
Her class action lawsuit claims that the sampling constitutes an illegal seizure of genetic information and violates her due process rights. She says that police told her she would be charged with a separate misdemeanor when she refused to let authorities swab the inside of her cheek, the typical method officers use to collect DNA.
Voter-approved Proposition 69 casts the net too broadly, she alleges, by mandating DNA collection from people arrested for "many offenses for which their DNA has no conceivable relevance," from writing bad checks to cocaine possession."
A three-judge panel of the 9th Circuit initially upheld the law in February 2012, and an 11-judge en banc panel of the 9th Circuit reheard the case in September 2012.
But before larger panel could issue a new opinion, the US Supreme Court ruled there was nothing unconstitutional about a similar law in Maryland.
That ruling, Maryland v. King, prompted the 9th Circuit to schedule a third hearing of Haskell's case.
During this week's hearing, Circuit Judge Milan Smith, who wrote the original 9th Circuit ruling in support of the law, said that his reading of Supreme Court Justice Antonin Scalia's dissent in the King decision was that the Supreme Court had endorsed the collection and entry of DNA into a national database.
He quoted Justice Scalia: "As an entirely predictable consequence of [the King decision] your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason."
ACLU attorney Michael Risher responded that, "The fundamental distinction between this case and King goes not to the seriousness of the offense, the fundamental distinction here is that California is taking DNA from people who are never charged with a crime or who are discharged for want of probable cause."
"I believe that under King, DNA should only be taken from those people who are actually charged with an offense," Risher said, adding that he appreciated that the state may want to collect DNA in case someone fails to appear at court, but that the state's interest in tracking down bail-jumpers was "not weighty enough to justify taking it at booking."
"Here's the rule I'm asking for," he said, "California can take DNA from people it arrests for a serious offense. It cannot do anything with that DNA unless there is a prosecution and a judicial finding of probable cause. Absent one of those or charges are dismissed, it should destroy the evidence and expunge the profile."
But Circuit Judge Smith said fingerprints, which are kept in a state database, are no different than DNA. Risher countered that DNA collection is far more invasive, invoking stronger 4th Amendment protections, and it can be used to create maps of family relations.
Chief Judge Alex Kozinski said that whether DNA data taken from people who have been later acquitted should be expunged was "another case for another day."
He said that the expungement issue made Risher's class of plaintiffs "too broad," as some class members have not been acquitted and they would not be entitled to have their records expunged.
"How can we have relief that's afforded to a class when you yourself admit that some in your class won't get the relief?" Kozinski asked.
Risher said the 9th Circuit could tell the district court to issue an injunction to limit the state's implementation of the statute.
California Deputy Attorney General Enid Camps said the Supreme Court's ruling on the Maryland law was "broad and unequivocal."
Circuit Judge Richard Paez quickly pointed out to Camps that the Maryland law calls for DNA sampling to occur after a judicial determination of probable cause, while police in California could take a swab sample from an arrestee during booking and then decide to release that person from detention.
Kozinski then told Camps that the Supreme Court had not dealt with situations where a sample was taken before judicial probable cause had been determined.
When someone is arrested and booked, the state is still in the process of collecting information used in charging, Camps said, and "DNA at booking is the functional equivalent of fingerprints and that's what the [Supreme Court] recognized."
Circuit Judge N. Randy Smith said California's law is "quite opposite" from Maryland's since it does not call for the automatic destruction of DNA records when criminal charges are unsupported.
"In fact, even if someone wants to have his DNA sample destroyed, he must send a request to the court, the DNA laboratory and the prosecuting attorney," he said, adding that the court has the discretion to expunge and its decision cannot be appealed.
Camps said California's law is not unconstitutional since it provides an avenue for expungement, which she said takes two to four weeks.
Camps downplayed the differences between the DNA collection laws in Maryland and California, insisting that Justice Kennedy wrote "an intentionally broad opinion" that would be applied to "set a national standard."
Circuit Judge Harry Pregersen disagreed, calling California's DNA law "very extreme" in comparison to Maryland's, which he said protects privacy, insists on probable cause and requires that a DNA sample be destroyed should the person not be prosecuted.
In California, he said your DNA and all the information it contains could be collected more easily. "You can arrest people who are joyriding and book them as a felon and it may turn out they are convicted of a misdemeanor," he said.
Maryland, like any state, can enact laws that go beyond the 4th Amendment protections against search and seizure, Camps responded, but such laws do not obligate California to enact similarly enhanced protections.
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