Elizаbeth Aida HASKELL; Reginald Ento; Jeffrey Patrick Lyons, Jr.; Aakash Desai, on behalf of themselves and others similarly situated, Plaintiffs-Appellants, v. Kamala D. HARRIS, Attorney General; Eva Steinberger, Assistant Bureau Chief for DNA Programs, California Department of Justice, Defendants-Appellees.
No. 10-15152.
United States Court of Appeals, Ninth Circuit.
March 20, 2014.
1269
Argued and Submitted En Banc Dec. 9, 2013.
In sum, we conclude that this case is closer to Roadway Express than to Marek. In light of those decisions, the decisions of other circuits, our understanding of Rule 39 in Azizian and the practical problems posed by the state‘s proposed rule, we hold that the term “costs” under
CONCLUSION
For the reasons stated here and in a contemporaneously filed memorandum disposition, the order of the district court awarding attorney‘s fees and costs to Family PAC is affirmed in part and reversed in part. Costs of this appeal are awarded to Family PAC.
AFFIRMED IN PART; REVERSED IN PART.
Peter C. Meier, Paul Hastings LLP, Michael T. Risher, American Civil Liberties Union Foundation of Northеrn California, Inc., San Francisco, CA (argued), for Plaintiffs-Appellants.
Kamala D. Harris, Attorney General, Douglas J. Woods, Senior Assistant Attorney General, Tamar Pachter, Supervising Deputy Attorney General, Enid A. Camps, Deputy Attorney General (argued), Daniel J. Powell, Deputy Attorney General, San Francisco, CA, for Defendants-Appеllees.
Before: ALEX KOZINSKI, Chief Judge, HARRY PREGERSON, M. MARGARET McKEOWN, RAYMOND C. FISHER, RONALD M. GOULD, RICHARD A. PAEZ, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, MILAN D. SMITH, JR., N. RANDY SMITH and PAUL J. WATFORD, Circuit Judges.
PER CURIAM:
California law requires that all persons arrested for or charged with any felony or attempted felony submit DNA samples for inclusion in law enforcement databases.
A рlaintiff seeking a preliminary injunction must demonstrate (1) a likelihood of success on the merits, (2) that he
Plaintiffs’ facial and as-applied challenges turn on essentially the same question: Is California‘s DNA collection scheme constitutional as applied to anyone “arrested for, or charged with, a felony offense by California state or local officials?” After Maryland v. King, — U.S. —, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013), the answer is clearly yes. Plaintiffs’ counsel conceded as much at oral argument. Given that concession, plaintiffs cannot show that the district court abused its discretion in denying a preliminary injunction that would apply to the entire class. See Winter, 555 U.S. at 20; Alliance for the Wild Rockies, 632 F.3d at 1131.
Plaintiffs ask us to enter a preliminary injunction applicable only to a smaller class consisting of individuals arrested for certain felonies that are not, in plaintiffs’ view, covered by Maryland v. King. But we are a court of review, not first view: We are limited to deciding whether the district court abused its discretion in denying the injunction plaintiffs sought. See Bull v. City & Cnty. of S.F., 595 F.3d 964, 967-68 (9th Cir.2010) (en banc). If plaintiffs believe they‘re entitled to a рreliminary injunction as to a smaller class, they are free to seek it from the district court and we will review it if and when it is presented to us.
AFFIRMED.
M. SMITH, Circuit Judge, concurring in the judgment:
I agree with the per curiam opinion that California‘s DNA collection law is clearly “constitutional as applied to anyone arrested for, or charged with, a felony offense by California state or local officials.” Accordingly, I also agree that the district court properly denied Plaintiffs-Appellants’ (Plaintiffs) motion for a preliminary injunction. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). I write separately, however, to make clear what the per curiam opinion regrettably leaves unsaid. California‘s DNA colleсtion law is materially indistinguishable from the Maryland law upheld in Maryland v. King, — U.S. —, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013), and Plaintiffs’ facial and as-applied challenges to California‘s law therefore fail. Because the last paragraph of the per curiam opinion vaguely implies that something of Plaintiffs’ lawsuit may survive King, I respectfully concur only in the judgment.
I.
Because the per curiam opinion does nоt describe the relevant factual and procedural background of this case, I do so here.
A.
In 2004, California voters approved Proposition 69, which requires law enforcement to collect DNA samples from “any adult person arrested or charged with any felony offense ... immediately following arrest, or during the booking ... process or as soon as administratively practicable after arrest, but, in any case, prior to release on bail or pending trial or any physical release from confinement or custody.”
Once officers collect the DNA sample, it is sent to a state laboratory, which creates a DNA profile of the arrestee. The laboratory then uploads the DNA profilе into the Combined DNA Index System (CODIS), a nationwide collection of federal, state, and local DNA profiles.
Only law enforcement officials may access a DNA profile, and they may only use the DNA for identification purposes.
B.
Plaintiffs in this case provided DNA samples in connection with their felony arrests, but they were never convicted of the crimes for which they were arrested. On October 7, 2009, Plaintiffs filed a complaint, on behalf of a putative class, asserting that California‘s DNA collection law is unconstitutional, both facially and as applied. On October 30, 2009, Plaintiffs moved for a preliminary injunction barring the application of the law to persons arrested for, but not convicted of, a felony offense. The district court denied Plaintiffs’ motion for a preliminary injunction on December 23, 2009. Plaintiffs timely appealed.
II.
The Supreme Court‘s decision in King is fatal to Plaintiffs’ claims. In King, the Court held that “[w]hen officers make an arrest supported by probable cause to hold for a serious offense and thеy bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee‘s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” 133 S.Ct. at 1980. The Court recognized that although other DNA-collection statutes “vary in their particulars, such as what charges require a DNA sample, their similarity means that this case implicates more than the specific Maryland law. At issue is a standard, expanding technology already in widespread use throughout the Nation.” Id. at 1968.
Despite the clarity of the Supreme Court‘s holding, Plaintiffs argue that King does not apply tо California‘s DNA collection law. But the purported distinctions that Plaintiffs identify are illusory.
A.
Plaintiffs first argue that King is distinguishable because Maryland‘s law applies only to burglaries, crimes of violence, and attempts at either, which the Supreme Court characterized as “serious crimes.” Id. at 1967. By contrast, California‘s law applies to all feloniеs. See
This argument has no traction. The Maryland law‘s list of “serious crimes,” King, 133 S.Ct. at 1967, does not differ
More fundamentally, the Court‘s reasoning in King is not dependent on the seriousness of the crimes involved. In upholding Maryland‘s law, the Supreme Court defined the state‘s interest in obtaining DNA as “identifying [the arrestee] not only so that the proper name can be attached to his charges but also so that the criminal justice system can makе informed decisions concerning pretrial custody.” King, 133 S.Ct. at 1980. Under the Court‘s rationale, the magnitude of the state‘s interest does not necessarily depend on the seriousness of the crime of arrest. As the majority observed, “people detained for minor offenses can turn out to be the most devious and dangerous criminаls.” Id. at 1971 (quoting Florence v. Bd. of Chosen Freeholders, — U.S. —, 132 S.Ct. 1510, 1520, 182 L.Ed.2d 566 (2012)) (internal alteration omitted).
The four dissenting Justices in King similarly recognized that there is no basis for limiting the Court‘s holding to certain enumerated crimes. Describing the breadth of the majority‘s reasoning, Justice Scalia explained in dissent that “[i]f one believes that DNA will ‘identify’ someone arrested for assault, he must believe that it will ‘identify’ someone arrested for a traffic offense.” King, 133 S.Ct. at 1989 (Scаlia, J., dissenting). Justice Scalia thus reasoned that “[a]s an entirely predictable consequence of today‘s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.” Id. He predicted that “[w]hen there comes before us thе taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, ‘We can find no significant difference between this case and King.‘” Id.
Thus, the California law‘s limitation to felony arrests is not meaningfully different from the Maryland law‘s restriction to certain “serious crimes.” In upholding the Maryland law, the Supreme Court identified the state‘s interest as identifying the arrestee as part of the booking process. This state interest does not vary with the “seriousness” of the felony at issue. Accordingly, Plaintiffs’ first attempt to distinguish King fails.
B.
Plaintiffs next argue that California‘s law is distinguishable from the Maryland law approved in King because (1) it authorizes the collection of DNA frоm arrestees never charged with a crime; and (2) it allows police to analyze DNA samples without a judicial finding of probable cause. But, under King, these differences are not constitutionally relevant.
Unlike California, Maryland does not process DNA samples until after suspects are arraigned. See King, 133 S.Ct. at 1967. Nevertheless, the Supreme Court in King repeatedly emphasized the permissibility of DNA collection frоm arrestees at booking, holding that “DNA is, like finger-
In light of the Supreme Court‘s focus on the collection of DNA samples in connection with arrest and booking, Plaintiffs’ argument that the filing of charges and a judicial probable-cause determination are conditions precedent to рermissible DNA collection is unsupportable. Refusing to draw such a line makes good sense. The government‘s interest in identifying arrestees attaches “when an individual is brought into custody,” id. at 1971, irrespective of whether the suspect is ultimately charged. For this reason, the Court explained that “[w]hen probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving those interests.” Id. The dissent likewise recognized that the majority‘s reasoning applies to all arrests, regardless of subsequent charging decisions. See id. at 1989 (Scalia, J., dissenting) (“As an entirely predictable сonsequence of today‘s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.” (emphasis added)). Plaintiffs’ arguments to the contrary are unavailing.
C.
Finally, Plaintiffs assert that California‘s law is distinguishable from Maryland‘s because California retains and uses DNA samples indefinitely even if a suspect is never charged or convicted. By contrast, Maryland automatically expunges the DNA samples of every person it fails to convict. See
Even though California does not automatically expunge DNA samples, California law enables an arrestee to request expungement if no charges are filed, his case is dismissed, or he is found not guilty.
In any event, the King Court did not view Maryland‘s expungement procedures as important to the constitutionality of Maryland‘s law. The Fourth Amendment search at issue is a buccal swab, and the “minor intrusion” that this “brief” procedure represents is not affected at all by the availability of expungement procedures. King, 133 S.Ct. at 1980. While the Supreme Court also analyzed whether the processing of the arrestee‘s DNA sample intruded on his privacy interests, it did not suggest that post-collection expungement proсedures would affect the constitutional inquiry. See id. at 1979-80. And the dissent did not view the majority‘s holding as so limited. See id. at 1989 (Scalia, J., dissenting) (“Perhaps the construction of such a genetic panopticon is wise.“).
The majority in King expressly recognized that its decision “implicates more than the specific Maryland law,” id. at 1968, and the four dissenting Justices emphatically agreed. See id. at 1989 (Scalia, J., dissenting). After King, Plaintiffs’ facial and as-apрlied challenges to California‘s DNA collection law are clearly without merit, and any amendment to Plaintiffs’ complaint would be futile. This case is over, and the district court has no obligation to give the Plaintiffs an opportunity to amend their complaint. For the foregoing reasons, I respectfully concur only in the judgment.