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Thursday, August 19, 2004

Law - 9th Circuit overturns 3-judge panel in Kincade DNA case

There are a number of reports today on this ruling yesterday. Here is the Boston Globe story, headlined "Ruling OK's mandatory DNA tests for parolees: Federal court reverses panel's earlier opinion." Some quotes:

SAN FRANCISCO -- Federal parolees may be required to provide blood samples for a national DNA database used to solve crimes, the US Court of Appeals for the Ninth Circuit ruled yesterday.

The 6-to-5 decision, which overturned a three-judge panel's ruling last October, brings the Ninth Circuit in line with other appellate courts around the country that have examined the four-year-old federal DNA law.

The law requires federal prisoners, parolees, and probationers convicted of a variety of crimes, including murder, sexual abuse, and burglary, to provide blood samples for a national DNA bank monitored by law enforcement. * * *

The ruling last October concluded that the federal DNA program violated a parolee's right to privacy. Generally, law enforcement officers must have probable cause or some suspicion of criminal behavior before conducting a search, which includes taking a blood sample.

But yesterday's decision held that parolees' privacy rights are limited and they can be forced to give blood samples even if there is no specific reason to suspect they were involved in additional crimes.

Thomas Cameron Kincade, a decorated Navy seaman and convicted bank robber, challenged the law after his probation officer sought a blood sample from him.

Judge Alex Kozinski, who also dissented yesterday, said Kincade's Fourth Amendment right to be free of unreasonable searches would be violated by the placement of his DNA in a databank that law enforcement will monitor long after Kincade has completed parole.

Monica Knox, a public defender who represented Kincade, said the ruling establishes the legal groundwork for the government to take DNA samples of the general population in the future.

The 7th Circuit ruled on this question in January. This 1/9/04 Indiana Law Blog entry reports on the 7th circuit opinion that day in Green v. Berge, upholding the Wisconsin law compelling felons in Wisconsin prisons to submit a DNA sample for analysis and storage in a data bank. Particularly interesting is Judge Easterbrook's concurring opinion, where he posits that there are at least four major categories: prisoners, persons on conditional release; felons whose terms have expired; and those who have never been convicted of a felony. Judge Easterbrook references the 3-judge panel's decision in Kincaide. He concludes:
This appeal does not present the question whether DNA could be collected forcibly from the general population, and I understand the court’s reference to [Indianapolis v. Edmond] and [Ferguson v. City of Charleston] to mean no more than that these decisions are compatible with collecting and preserving DNA from persons in the first two categories, and likely from those in the third. There will be time enough to address the fourth if and when a more general statute about the collection and use of medical information should be enacted.
Here is the 40-page 3-judge panel's ruling in USA v. Kincade (10/2/03). Here is the 108-page opinion filed 8/18/04.

For more stories, the San Franscisco Chronicle has a report here, with this lead:

A federal appeals court reversed itself Wednesday and ruled that the government can draw blood from federal parolees for a DNA databank used to investigate crimes -- a decision that dissenters called an invitation to repression. * * *

Wednesday's ruling contained strong language on both sides of the case.

Under the court's rationale, "all Americans will be at risk, sooner rather than later, of having our DNA samples permanently placed on file in federal cyberspace,'' where it could someday be used "to repress dissent, or, quite literally, to eliminate political opposition,'' said dissenting Judge Stephen Reinhardt, author of the panel's October ruling.

Judge Diarmuid O'Scannlain, who wrote the lead opinion Wednesday, said Reinhardt was invoking "dramatic Hollywood fantasies'' and using an "alarmist tone'' to greatly exaggerate the scope of the ruling. O'Scannlain noted that the federal law applies only to convicted criminals and said courts were capable of protecting the privacy of law-abiding citizens.

Posted by Marcia Oddi on August 19, 2004 04:21 PM
Posted to General Law Related