ACLU Lawsuit Challenges California’s Mandatory DNA Collection at Arrest

SAN FRANCISCO—A lawsuit filed today by the ACLU of Northern California seeks to stop California’s policy of mandating that DNA is collected from anyone arrested for a felony, whether or not they are ever charged or convicted. The ACLU opposes this law because it violates constitutional guarantees of privacy and freedom from unreasonable search and seizure, and because of the harmful impact on communities of color.

Under the statute, which went into effect on the first of the year, people who are arrested for a felony must provide DNA samples that will be stored in a criminal database accessible to local, state, national, and international law enforcement agencies. Instead of being limited to serious, violent offenses, the new requirement even applies to victims of domestic violence who are arrested after defending themselves, people wrongfully arrested due to police misconduct, someone who has written a bad check, and people arrested during political demonstrations.

In March 2009, Lily Haskell attended a peace rally in San Francisco and was arrested. She was not charged with a crime and was quickly released, but not before being required to provide a DNA sample.

“When your DNA is taken after an arrest at a political demonstration, it can have a silencing effect on political action,” said Haskell. “Now my genetic information is stored indefinitely in a government database, simply because I was exercising my right to speak out.”

People like Haskell who are innocent and were never even charged with a crime may seek to have their DNA sample expunged from the state database, but the process is cumbersome and requires a long wait until the statute of limitations to bring charges has run out—at least three years and, in some cases, much longer.

“Forcing a person to provide a DNA sample without any judicial oversight violates the Constitution,” said Michael Risher, staff attorney at the ACLU of Northern California (ACLU-NC). “The result of this new program is that thousands of innocent Californians will be subject to a lifetime of genetic surveillance because a single police officer suspected them of a crime.”

The ACLU-NC also points to the huge racial impact of this law. People of color are already disproportionately represented in California’s criminal justice system. The realities of racial profiling and heavy police presence in neighborhoods that are predominantly inhabited by people of color will likely exacerbate the situation.

“Automatically collecting DNA from people who are merely arrested ignores the presumption of innocence. It blurs the line between being suspected of a crime and being convicted,” said Peter C. Meier, attorney with Paul, Hastings, Janofsky & Walker LLP, which is litigating the case with ACLU-NC on a pro bono basis.

California’s huge forensic DNA database— the third largest in the world—already faces tremendous backlogs. The resources spent collecting thousands upon thousands of DNA samples from arrestees detract from the resources that could instead be devoted to processing crime-scene samples to help solve violent and serious crimes like rape, assault, and murder.

The case (No. 09-04779) is filed in the United States District Court for the Northern District of California in San Francisco.