Maura Dolan | San Diego Union Tribune
For years civil libertarians hoped to end California’s practice of taking DNA from people arrested on suspicion of a felony and storing that genetic information in an offender database — regardless of whether the suspects were later acquitted or had their charges dropped.
That fight for more protective rules in the government’s DNA collection suffered a major setback Monday when the California Supreme Court let stand a provision of a 2004 voter initiative that said any adult arrested or charged with a felony must give up his or her DNA.
On a 4-3 vote, the state’s highest court refused to throw out that part of the Proposition 69, which has led to the storing of DNA profiles of tens of thousands of people arrested but never charged or convicted.
A majority of states collects DNA from arrestees, and the U.S. Supreme Court has approved the practice. Privacy advocates, though, argued that California’s law was more invasive than rules in other places.
Justice Leondra R. Kruger, an appointee of Gov. Jerry Brown, wrote Monday’s ruling, a victory for prosecutors. The court’s three more conservative justices joined her.
Brown’s two other judges on the state high court and a Democratic appointee on an appeals court dissented.
Kruger stressed the majority ruling was narrow and applied only to the facts of the case before the court. She said the DNA program for arrestees could still be challenged by someone else at a later date.
“We recognize that the DNA Act may raise additional constitutional questions that will require resolution in other cases,” she wrote.
The more liberal justices wanted the court to use the opportunity to strike down a DNA program they said affects thousands of innocent people each year, and disproportionately African Americans.
Of the 200,000 to 300,000 people arrested in California annually on suspicion of a felony, about a third are either acquitted or never formally charged.
Yet the genetic profiles of the vast majority of them remain in a DNA offender database and can be combed by law enforcement to search for suspects in crimes.
“The fact that felony arrests of African Americans disproportionately result in no charges or dropped charges means that African Americans are disproportionately represented among the thousands of DNA profiles that the state has no legal basis for retaining,” Justice Goodwin Liu wrote in one of Monday’s dissents.
By allowing for the retention of DNA profiles of people not even charged with a crime, “it is not that far a step for the state to collect and retain DNA from law-abiding people in general,” Liu wrote.
The case was brought by Mark Buza, who refused to have his DNA taken after San Francisco authorities arrested him on suspicion of arson and related felonies in 2009 and took him to jail.
A jury later convicted Buza of the arson-related felonies and of refusing to provide his DNA, a misdemeanor. Buza challenged the DNA-arrestee law in an appeal.
But the court majority, pointing out that Buza was convicted, eventually had his DNA taken and never tried to have his genetic profile expunged, decided his case was not the right forum for tackling constitutional questions affecting the innocent.
Justice Mariano-Florentino Cuéllar, Brown’s other appointee on the seven-member court, agreed with Liu and Court of Appeal Justice Dennis M. Perluss that the arrestee provisions violated California’s Constitution.
(Perluss, appointed by Gov. Gray Davis, helped decide the case because the state’s highest court has a vacancy.)
Cuéllar wrote that the majority decision overlooked the importance of California’s Constitution with its “heightened privacy protections.”
“The DNA Act unlawfully invades people’s reasonable expectation of privacy in their personal genetic information,” he said. “Any diminished expectation of privacy arrestees may or may not have in their genetic code does not justify an intrusion of this magnitude.”
Monday’s majority decision overturned a 2014 ruling by a San Francisco appeals court that found the DNA collection program for arrestees violated California’s Constitution.
That ruling prompted state lawmakers to pass a bill, signed by Brown, to limit the arrestee DNA provisions in the event that the state Supreme Court also agreed they were unconstitutional.
Because Monday’s ruling did not upend Proposition 69’s requirements, the protections for innocent arrestees added in the new law will not now take effect.
Michael T. Risher, senior staff attorney for the American Civil Liberties Union Foundation of Northern California, called the decision disappointing.
“This maintains the status quo, at least for the time being,” he said.
Risher said he was unaware of any pending legal challenge in a state court that could force the California Supreme Court to deal more directly with civil libertarian concerns.
J. Bradley O’Connell, who represented Buza, said he was heartened that the majority ruling was narrow but also disappointed.
California, unlike most other states, takes DNA from people before they are even arraigned and has no automatic process for expunging DNA profiles when charges are dropped or people acquitted, he said.
Although people can seek to have their DNA profiles removed, he said, the process is cumbersome.
“The most intrusive law is the California model,” O’Connell said.
A spokesperson for Atty. Gen. Xavier Becerra said the office was still reviewing the decision.
Becerra’s office “remains committed to upholding Californians’ important privacy interests while doing everything we can to ensure our law enforcement officials are equipped with the tools they need to keep Californians safe,” the spokesperson said.
California’s arrestee DNA collection also has been challenged in federal court.
In 2014, before the state appeals court decision, the U.S. 9th Circuit Court of Appeals upheld the arrestee DNA program under the U.S. Constitution.
The state appeals court, ruling later that year, struck down the program under the state Constitution, which specifically gives residents privacy rights.