Tag Archives: Haskell

Get Serious: The US Department of Justice’s Amicus Brief in Haskell v. Harris

As the U.S. Court of Appeals for the Ninth Circuit returns to the question of the constitutionality of California’s DNA database law, the United States has weighed in with an amicus brief. It is worried (or should be) that the en banc panel will take too seriously the Supreme Court’s references to “serious offenses” in Maryland v. King, the DNA-on-arrest case decided last June. The Maryland law that the Supreme Court narrowly upheld authorizes DNA collection for violent felonies, burglaries, and attempts to commit those crimes. The California law under attack in Haskell is broader, applying to all felony arrests including those that would seem rather petty to the casual observer. (The federal law is broader still, encompassing every offense, no matter how trivial, for which a person is dragged into custody.)

Consequently, it comes as no surprise that the federal government wants the Ninth Circuit to read King expansively, whereas the ACLU, which represents the plaintiffs in Haskell, is pressing for the narrowest possible reading. … [read more on FSSL]

Dear Judges: A Letter from the Electronic Frontier Foundation to the Ninth Circuit

On the eve of the en banc oral argument in Haskell v. Harris, The Electronic Frontier Foundation (EFF) filed a letter asking “the Court to consider the ENCODE project findings in determining the outcome of this case.” It seems hard to oppose the idea that the court should consider relevant scientific research, but without input from the scientific community, will the judges do better than they have in the past as “amateur scientists” (to use the skeptical phrase of Chief Justice Rehnquist in Daubert v. Merrell Dow Pharmaceuticals, Inc.)?

Deciphering the ENCODE papers’ descriptions of the data is no easy task, and EFF’s lawyers do not seem to be up to it. Their letter asserts that the project “has determined that more than 80% of DNA once thought to be no more than ‘junk’ has at least one biochemical function, controlling how our cells, tissue and organs behave.” This is not a fair characterization of the findings. Which geneticist ever claimed that all noncoding DNA plays no role in how cells behave? The issue always has been how much junk, how much func — and what “functions”?

What does EFF mean by “controlling”? Making organs function? Stimulating tissue growth? Turning normal cells into cancerous ones? Making us tall or short, fat or skinny, gay or straight? None of those things are mentioned in the Nature cover story cited in the letter. Instead, the EFF relies on New York Times reporter Gina Kolata’s misleading news article for the letter’s claim that “The ENCODE project has determined that ‘junk’ DNA plays a critical role in determining a person’s susceptibility to disease and physical traits like height.”

My earlier postings described the limited meaning of the phrase “biochemical function” in the cited paper. I’d love to see a citation to a page of an ENCODE paper that asserts that fully 80% of the noncoding DNA is determining “susceptibility to disease and physical traits like height.” And if I were a judge, I would demand an explanation of why “physical traits like height” are, in the words of the EFF letter, “sensitive and private.”

After the judges consider the ENCODE papers (by having their law clerks read them?), will they be better informed about the actual privacy implications of the CODIS loci than they were before this excursion into this realm of the bioinformatics? I would not bet on it, but maybe I am growing cynical.

On the “Clear” Outcome Under “Established” Law

Today’s New York Times included an editorial (California and the Fourth Amendment) on Haskell v. Harris, the challenge to the California Proposition requiring DNA sampling on arrest. En banc oral argument takes place today. The following is a letter I sent to the Times editor. I expect somewhere between 0 and 50 percent of it to be published there (point estimate = 0):

Dear Editor,

Your editorial (September 19) asserts that the constitutionality of taking DNA on arrest “should be clear” given “established rights against unreasonable search and seizure.” Yet, over vigorous dissents, federal courts of appeals have ruled otherwise–twice in panels of the Ninth Circuit and once (en banc) in the Third Circuit.

Whether acquiring purely biometric data from arrestees necessitates a warrant is doubtful, and whether acquiring DNA data is “unreasonable” is a close question. The physical invasion of personal security is minor when the individual is already in custody and the sampling is only marginally more intrusive than fingerprinting. The medical information content of the identification profile is (given current knowledge) only slightly more significant than that of a fingerprint. Very few false convictions arising from DNA database searches have been documented. (One in Australia has been reported.)

Contrary to the suggestion in the editorial, what divided the judges in the Ninth Circuit was not whether “the law’s real purpose was investigation.” No one doubted that. The dissenting judge believed that the Supreme Court already had decided that “fingerprints may not be taken from an arrestee solely for an investigative purpose, absent a warrant or reasonable suspicion that the fingerprints would help solve the crime for which he was taken into custody.” What the Court actually held was “that transportation to and investigative detention at the station house without probable cause or judicial authorization together violate the Fourth Amendment.” The dissenting judge also worried, among other things, that “it is possible that … at some future time,” an identification profile might permit strong inferences about the diseases an arrestee has or might develop.

I do not claim that arrestee DNA sampling clearly is constitutional. There are a number of valid concerns about indefinite sample retention and other matters. Neither do I maintain that its benefits (which are not well quantified) plainly outweigh its costs and its impact on legitimate interests in personal privacy and security. But assertions that the balance is “clear” and that the “established” law dictates the result oversimplify a delicate constitutional question.

The Newest from the Ninth Circuit on Arrestee DNA Databases

As of today, the Ninth Circuit Court of Appeals has twice upheld the constitutionality of DNA collection before conviction (DNA-BC). The first opinion came in United States v. Pool, 621 F.3d 1213 (9th Cir. 2010). There, the panel applied a totality-of-the-circumstances balancing test to uphold the federal arrestee law. However, the full court promptly agreed to rehear the case en banc (thus vacating the opinion in Pool).

At that point, another challenge to DNA-BC was pending. Haskell v. Brown, 677 F.Supp.2d 1187 (N.D. Cal. 2009), was a class action brought to enjoin enforcement of the California Proposition that initiated DNA arrestee sampling in that state. Determining that this law was, on balance, constitutionally reasonable, District Judge Charles Breyer, denied the request for a preliminary injunction. Plaintiffs appealed this ruling.

With eleven Ninth Circuit judges stirring the pot in Pool, Haskell moved to the back burner. But then Pool pled guilty, and the en banc court dropped his case as moot. Pool, 659 F.3d 761 (9th Cir. 2011) (en banc). Hence, the Haskell panel returned to work.

Today the case boiled over with the release of the panel’s opinion. As in Pool, the court split 2-1 in favor of DNA-BC. The two judges in Haskell to side with the state were Milan D. Smith, Jr., and James Dale Todd, a senior district judge for the Western District of Kentucky. Judge William A. Fletcher wrote a sharp dissent. Judge Smith devoted much of his majority opinion to refuting Judge Fletcher’s dissent. As a preliminary matter, they disagreed over whether Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009), a previous Ninth Circuit case not even involving a DNA database forced the court’s hand here. Judge Smith correctly wrote that “very broad dicta” in the case did not compel any particular result in Haskell.

With the path cleared, Judge Smith asked whether the “totality of the circumstances” were such that DNA-DB under California law was “reasonable” within the meaning of the Fourth Amendment. Judge Fletcher disputed the use of this amorphous standard. On this issue, neither opinion is convincing. Time after time, in case after case, the Supreme Court has repeated an important mantra–full fledged searches and seizures intended to produce evidence of criminal conduct are per se unreasonable, regardless of the other circumstances, when they are undertaken without a warrant and when they do not fall within a categorical exception to this warrant requirement. E.g., Kentucky v. King, 131 S.Ct. 1849 (2011); City of Ontario v. Quon, 130 S.Ct. 2619 (2010); Katz v. United States, 389 U.S. 347, 357 (1967). Therefore, it will not do to state, as Judge Smith blandly did, that totality-of-the-circumstances balancing is the norm in Fourth Amendment cases. To the contrary, it is an anomaly that has been used only in two Supreme Court cases (involving probationers). Upholding DNA-BC therefore requires showing that the program falls within an established exception–or recognizing a new exception to accommodate the acquisition of fingerprints, photographs, and now, DNA profiles for use in databases. The former move is possible but takes considerable effort. The latter would be the more candid and convincing mode of analysis.

But just as the Haskell majority’s leap to totality balancing is largely unjustified, the dissent’s theory of why DNA-BC is unconstitutional is groundless. According to dissenting Judge Fletcher, the Supreme Court held in Hayes v. Florida, 470 U.S. 811 (1985), and Davis v. Mississippi, 394 U.S. 721 (1969), that identifying information (fingerprints, in those cases) “may not be taken from an arrestee solely for an investigative purpose, absent a warrant or reasonable suspicion that the [information] would help solve the crime for which he was taken into custody.” This characterization overlooks the most critical facts in the cases and the explicit reasoning of the opinions. Justice White’s majority opinion in Hayes could not have been clearer in explaining that the cases simply hold “that transportation to and investigative detention at the station house without probable cause or judicial authorization together violate the Fourth Amendment.” 470 U.S. at 815. That the fingerprints were used for investigative purposes and not just to establish the true identities of the arrested suspects had nothing to do with the constitutional infirmity. “[T]he fingerprints … were the inadmissible fruits of an illegal detention” (id. at 813) because “the police at that time were without probable cause for an arrest, there was no warrant, and [the suspects] had not consented to being taken to the station house.” Id. at 313-14. Not a single Justice dissented from this understanding of the issue. Yet, Judge Fletcher transformed the simple and unremarkable result in Hayes and Davis into a condemnation of all forms of DNA-BC. Judge Smith was kind to call this aggressive reading of the cases a “novel interpretation.”

The Haskell court also split on the outcome of the balancing test. The majority was quick to accept the state’s litany of interests in DNA-BC as weighty, whereas the dissent demanded more rigorous proof. Conversely, the dissent was quick to accept nonscientific speculations about the dangers of DNA profiles and the risks of misuse of retained DNA samples, whereas the majority was loath to invalidate today’s laws on the grounds that they might be misused or changed.

Further developments are likely in the Ninth Circuit. Of the six judges to vote in Haskell and Pool (three per case), two of them came from outside the circuit and sat by designation. Counting only the Ninth Circuit noses, the vote to uphold DNA-DB has been 2-2 — not exactly a stable alignment. Obviously, there is considerable turmoil among the Ninth Circuit judges, and an en banc order in Haskell seems probable.

Acknowledgments: Thanks to Jen Wagner for sending me a copy of today’s slip opinion in Haskell.

Cross-posted to Forensic Science, Statistics, and the Law.