X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The Ninth Circuit U.S. Court of Appeals on Thursday nullified a 3-year-old law that requires federal prisoners and parolees to supply blood samples for the FBI’s DNA database. The 2-1 decision, declaring unconstitutional the federal DNA Analysis Backlog Elimination Act, also raises serious questions about the constitutionality of similar state laws throughout the circuit. “We have taken blood, sometimes forcibly, from millions of people and put it in a databank,” said Monica Knox, the Los Angeles-based deputy federal public defender who handled the case. “[The ruling] would throw out all the laws in the Ninth Circuit if it stands.” In U.S. v. Kincade, 02-50380, Thomas Kincade, on parole for a 1993 armed robbery in Los Angeles, refused a probation officer’s 2002 demand that he provide blood for the DNA databank. He claimed it violated his Fourth Amendment rights against unlawful search and seizure. A trial judge disagreed and sentenced him to four months in jail for violating probation. The Ninth Circuit reversed, saying the case involved the “most fundamental and traditional preserves of individual privacy, the human body.” Forced blood extractions, Judge Stephen Reinhardt wrote for the majority, violate the Fourth Amendment “because they constitute suspicionless searches with the objective of furthering law enforcement purposes. “Compulsory searches of the bodies of parolees such as Kincade,” he continued, “require, at a minimum, reasonable suspicion.” Judge Richard Paez agreed, but Judge Diarmuid O’Scannlain dissented, arguing that his companions should not have “blithely” dismissed a 1995 Ninth Circuit ruling that upheld a similar Oregon DNA collection law. He said that ruling — Rise v. Oregon, 59 F.3d 1556 — concluded that blood extraction to solve crimes was reasonable and constitutional. Thom Mrozek, a spokesman for the U.S. attorney in Los Angeles, which opposed Kincade, said the decision is being examined by his office and the Department of Justice. “We’ll review our options,” he said, “which may include asking the Ninth Circuit to consider [the case] en banc.” The conservative, Sacramento-based Criminal Justice Legal Foundation reacted swiftly and critically, calling the ruling “yet another example of a liberal court substituting its personal views for the rule of law.” “The panel’s opinion in Kincade contradicts both its own precedent and that of the U.S. Supreme Court,” foundation attorney Charles Hobson said. “This case is a reversal waiting to happen.” Deputy Federal Public Defender Knox, noting that there are similar cases pending before other federal appeals courts, predicted the controversial nature of the DNA tests would eventually cause a split in the circuits and send the issue to the U.S. Supreme Court. She also said that while the Ninth Circuit’s ruling was directed at only parolees, a footnote — which mentions that Fourth Amendment protections also apply to prisoners — indicates that DNA extractions would also violate prisoners’ rights. Moreover, Knox said, by declaring the blood extractions unconstitutional, the court opened the door so that people whose blood is in a databank could sue for its destruction or its return. Others could move to suppress evidence obtained through their siphoned blood. “Unfortunately,” she said, “I think the way most people will look at [the ruling] is that it is hampering the ability of law enforcement to solve crimes. I’m not sure the reality is that at all.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.