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The 9th U.S. Circuit 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 9th 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 9th 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 9th 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 9th 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 9th 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.”

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