(CN) - California's voter-approved DNA collection law likely passes constitutional scrutiny, the 9th Circuit ruled Thursday, looking at the case en banc for the second time.
The law allows police to collect a DNA sample from any adult arrested for or charged with a felony, and to keep the sample in a database indefinitely.
Elizabeth Haskell, who was arrested in 2009 at a peace rally for allegedly obstructing law enforcement, hoped to represent a class in a constitutional challenge.
Despite Haskell's help from the ACLU of Northern California, U.S. District Judge Charles Breyer in San Francisco refused to enjoin the law.
The court finally affirmed denial of the injunction in a terse, unsigned ruling published Thursday.
"Plaintiffs' facial and as-applied challenges turn on essentially the same question: Is California's DNA collection scheme constitutional as applied to anyone 'arrested for, or charged with, a felony offense by California state or local officials?'" the ruling states. "Plaintiffs' counsel conceded as much at oral argument. Given that concession, plaintiffs cannot show that the district court abused its discretion in denying a preliminary injunction that would apply to the entire class."
Suggesting that the plaintiffs have options going forward, the panel said they could possibly seek an injunction for a smaller class - one "consisting of individuals arrested for certain felonies that are not, in plaintiffs' view, covered by Maryland v. King."
During oral arguments in December, ACLU attorney Michael Risher argued that the "fundamental distinction" between the California and Maryland laws was 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.
A class composed only of plaintiffs who had their DNA collected even though they were not charged with an offense would likely be smaller than the current class, which includes "[a]ll persons who are, or will be, compelled to submit to the search and seizure of their body tissue and DNA under California Penal Code § 296(a)(2)(C) solely by reason of the fact that they have been arrested for, or charged with, a felony offense by California state or local officials."
But Judge Milan Smith, writing in a concurrence, argued that there was really nothing the plaintiffs could do at this point to overcome King.
"The Supreme Court's decision in King is fatal to plaintiffs' claims," Smith wrote, explaining that the high court's ruling had essentially made DNA collection "a legitimate police booking procedure that is reasonable under the Fourth Amendment" - similar to "fingerprinting and photographing."
"Despite the clarity of the Supreme Court's holding, plaintiffs argue that King does not apply to California's DNA collection law," he wrote. "But the purported distinctions that plaintiffs identify are illusory."
"This case is over," Smith added, "and the District Court has no obligation to give the plaintiffs an opportunity to amend their complaint."
"In light of the U.S. Supreme Court's decision in Maryland v. King, the 9th Circuit said the District Court should be the first court to review whether California's DNA collection at arrest law is unconstitutional," the ACLU attorney said in an email. "The ACLU lawsuit will continue, and we are determining what those steps will be."
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