ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs seek to enjoin the enforcement of California Penal Code § 296(a)(2)(C), which provides for the mandatory DNA sampling of felony arrestees in the State of California. Plaintiffs allege that this section violates both the Fourth and Fourteenth Amendments. Although Plaintiffs argue convincingly that arrestees have greater privacy interests than convicted felons, from whom the Ninth Circuit has already condoned the taking of DNA samples, Plaintiffs have not established that they are likely to succeed, or that the balance of the equities tips in their favor. *1190 Accordingly, the Court DENIES the motion.
I. BACKGROUND
1. DNA Seizure, Analysis and Ex-pungement in California
California has collected biological samples for its law enforcement database since 1984. Opp. at 2 (citing 1983 Cal. Stat. Ch. 700, § 1 (repealed 1998)). In 1998, California’s Legislature enacted the DNA Act, which authorized the seizure of DNA from individuals convicted of certain serious and violent crimes. Opp. at 2 (citing 1998 Cal. Stat. Ch. 696, § 2). Then, in November 2004, California voters рassed Proposition 69, which enacted Penal Code section 296(a)(2)(C). MPI at 2. That new section greatly expanded the scope of individuals in California who are subject to warrant-less DNA seizures by law enforcement. Id. Proposition 69 required warrantless seizure of DNA from all individuals convicted of any felony. Id. (citing § 296(a)(1)). It also provided that, beginning January 1, 2009, warrantless seizure of DNA would be required of any adult arrested for any felony. MPI at 2 (citing § 296(a)(2)(C)).
By law, collection of DNA takes place “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.” MPI at 2 (citing § 296.1(a)(1)(A); Meier Decl. Ex. A at 2 (Cal DOJ DNA Information Bulletin 08-BFS-02)). DNA samples are taken using a buccal swab, which consists of gently scraping the inner cheek repeatedly with a small stick. Opp. at 3 (citing §§ 296; 296.1). DNA samples are not taken from individuals who have already had their DNA samples taken.
See
Konzak Decl. at ¶ 28; Meier Decl. Ex. A at 3 (noting that agents are to determine if an individual’s DNA sample has already been taken, to avoid “duplicate collections”). Law enforcement has no discretion in collecting these samples. Opp. at 3 (citing
People v. King,
After the DNA sample is taken, it is sent to the Department of Justice’s lab for analysis. MPI at 3. The sample may only be tested to reveal an individual’s identity. Opp. at 3 (citing § 295.1 (“The Department of Justice shall perform DNA analysis ... pursuant to this chapter only for identification purposes”)). From the sample, a genetic profile is created based on thirteen (13) “junk” genetic markers (“loci”) on the DNA, so titled because they are thought not to reveal anything about trait coding. Opp. at 3; Konzak Deck 1
The profile is then uрloaded into California’s DNA data bank, which is part of the nationwide Combined DNA Index System (“CODIS”), accessible to local, state and federal law enforcement. MPI at 3. “Beyond the STR-generated DNA profile, CO-DIS records contain only an identifier for the agency that provided the DNA sample, a specimen identification number, and the name of the personnel associated with the analysis.”
See United States v. Kincade,
*1191
The DNA Act limits disclosure of samples and results of testing to law enforcement personnel. Opp. at 3 (citing § 299.5(f)). Any individual who uses a sample or DNA profile for any purpose other than identification, or who discloses the sample or DNA profile, faces up to a year in prison. Opp. at 3 (citing § 299.5(i)(l)(A)). 2 Any DOJ employee who misuses or improperly discloses a sample or DNA profile is also subject to a fine of up to $50,000. Opp. at 3 (citing § 299.5(i)(2)(A)). To date, there has not been one instance in which charges were brought against an employee of the DOJ for violating the DNA Act. Opp. at 4 (citing Hares Decl. ¶¶ 14, 16-18). In addition, no audit has ever cited a California CODIS lab for any violation of confidentiality or use restrictions. See Konzak Decl. at ¶ 7.
Searching of the CODIS database takes place frequently. As soon as a profile is uploaded, it is immediately compared to the crime-scene samples already in that CODIS index. MPI at 3. Any new crime-scene samples arе searched against it.
Id.
In addition, a search of the entire system is performed once a week.
Id.
(citing
Birotte v. Superior Court,
Under the statute, the process for expunging an individual’s sample and profile is rather lengthy. Where no charges are filed, the case is dismissed, or the arrestee is found not guilty or factually innocent, the arrestee must still wait until the statute of limitations has run before applying for expungement. MPI at 4 (citing § 299(b)). Depending on the felony for which he or she was arrested, this is a minimum of three years. Id. After requesting relief and notifying the DOJ, former arrestees must then wait an additional 180 days before a court can authorize ex-pungement. Id. (citing § 299(c)(2)(D)). Then, the court’s order, either granting or *1192 denying expungement, is nonappealable. Id. (citing § 299(c)(1)). Moreover, ex-pungement can be prevented if there is “an objection by the Department of Justice or the prosecuting attorney.” Id. (citing § 299(c)(2)(D)). According to the government, “[ajlthough the law allows prosecutors to wait the еntire period of the statute of limitations to file charges,” California District Attorneys do not wait for the statutory period to run in order to certify a dismissal for a defendant who wants his or her record expunged. Von Beroldingen Decl. at ¶ 6. Further, Defendants have offered to expunge the named Plaintiffs’ samples on an expedited basis. Id. at ¶ 8. The government reports that it has expunged 904 convicted felon samples, and denied 8 requests for expungement. Id. at ¶ 7. It has apparently not expunged any arrestee samples.
2. Plaintiffs in this Case
Plaintiff Lily Haskell was arrested in March 2009 for allegedly trying to free another prisoner at a peace rally. MPI at 5. At jail, she was ordered to provide a DNA sample and was told that if she refused to comply immediately or if she waited for a lawyer, she would be charged with a misdemeanor. Id. She gave a sample, and was never charged with any crime. Id.
Plaintiff Reginald Ento was arrested in early 2009 for possession of stolen рroperty. MPI at 5. The sheriffs deputy collected a DNA sample from him using a buccal swab. Id. Plaintiff Ento was released, and the allegations against him were dropped. Id.
The ACLU, counsel for Plaintiffs, first filed suit when Proposition 69 passed; however, that case was dismissed as unripe.
See Weber v. Lockyer,
II. DISCUSSION
To prevail on a motion for preliminary injunction, Plaintiffs must establish that (1) they are likely to succeed on the merits; (2) they face irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest.
See Winter v. N.R.D.C.,
— U.S.-,
1. Likelihood of Success
As a preliminary matter, Plaintiffs assert that § 296(a)(2)(C) violates both the Fourth and Fourteenth Amendments. They argue that under the Fourteenth Amendment, the DNA sampling violates arrestees’ right to informational privacy. MPI at 2-3. They further argue that the government has shown neither a legitimate interest in those individuals’ DNA, nor that its actions are narrowly tailored to meet that interest.
Id.
at 9. But Plaintiffs merge their Fourteenth Amendment and Fourth Amendment arguments in their papers; and indeed, courts generally treat this issue as a Fourth Amendment issue.
See Norman-Bloodsaw v. Lawrence Berkeley Laboratory,
Plaintiffs argue that the taking of arrestees’ DNA samples constitutes an unreasonable search under the Fourth Amendment. MPI at 6. Invasions of the body are searches, and are entitled to Fourth Amendment protection.
See Skinner v. Railway Labor Executives’ Ass’n,
Section 296(a)(2)(C) does not require a warrant for buccal swab testing. A search’s reasonableness usually depends on whether it was made pursuant to a warrant issued under probable cause.
See Rise v. Oregon,
Instead, the Ninth Circuit analyzes cases such as this by assessing whether the search is reasonable, “gauged by the totality of the circumstances.”
See Kincade,
*1194 A. Landmark Cases in the Ninth Circuit
Three recent cases illustrate how the Ninth Circuit has weighed the individual’s interest against the government’s interest in the context of DNA sampling.
In
Kincade,
decided in 2004, the Ninth Circuit found that the balance tipped in favor of the government. That case involved the compulsory DNA profiling of certain convicted but conditionally released federal offenders pursuant to the federal DNA Act.
The court first took stock of Kincade’s expectation of privacy, and found that “parolees and other conditional releasees are not entitled to the full panoply of rights and protections possessed by the general public,” but that “those who have suffered a lawful conviction are properly subject to a broad range оf [restrictions] that might infringe constitutional rights in free society.” Id. at 833 (internal quotations omitted). It added that conditional releasees are “clearly informed of the condition requiring them to submit to compulsory DNA profiling, thus further reducing any expectation of privacy they otherwise may enjoy.” Id. at 838 n. 36. The court concluded that this population had a “substantially diminished expectation[ ] of privacy.” Id. at 839.
The court then assessed the invasiveness of the search. While the court recognized that “compulsory blood tests implicate the individual’s interest in bodily integrity — a ‘cherished value of our society,’ ” it added that “the intrusion occasioned by a blood test is not significant” because such tests are commonplace, the quantity of blood extracted is minimal, and the procedure usually involves no risk, trauma or pain.
Id.
at 836 (citing
Schmerber,
Finally, the court evaluated the government’s interests in Kineade’s DNA. The court echoed the holding in
Rise
that “[o]nce a person is convicted ... his identity has become a matter of state interest.”
Id.
at 837 (citing
Rise,
The court then concluded that in light of the individual’s minimal interest, the minimal intrusion, and the “overwhelming societal interests” served, the taking of Kincade’s DNA was reasonable under the totality of the circumstances. Id. The court emphasized “the limited nature of [its] holding,” explaining that it pertained to “lawfully adjudicated criminals whose proven conduct substantially heightens the government’s interest in mоnitoring them and quite properly carries lasting consequences.” Id. at 835-36. However, Judge Reinhardt cautioned in a powerful dissent that “countless groups of individuals ... have reduced expectations of privacy” — including arrestees — and that “in the face of ‘monumental’ government law enforcement interests, I find it difficult to understand when suspicionless searches would be found to violate the Fourth Amendment.” Id. at 864-65 (Reinhardt, J., dissenting). He warned that “[t]he ‘balancing of interests’ does not provide much of a balance — to the contrary, any reasonable reading of the plurality’s decision reveals that the ‘balance’ will always tilt in favor of the government.” Id. at 866. 5
In
Kriesel,
a 2007 case, the Ninth Circuit again found that the balance tipped in favor of the government, this time as to the expansion of the federal DNA Act to include all felonies.
See
First, the court held that parolees have severely diminished expectations of privacy.
Id.
at 947 (citing
Samson,
Next, the court looked at the invasiveness of the search, and found that “tracking ... identity is the primary consequence of DNA collection.” Id. While the court stated that it was “mindful of the caution that DNA often reveals more than identity, and that with advances in technology, junk DNA may reveal far more extensive genetic information,” it noted that the Act contained privacy protections that created criminal penalties fоr unauthorized use of the DNA. Id. at 947-48. In addition, the court held again that the intrusion caused by a blood test is “not significant.” Id. at 948.
Finally, the court held that the government’s interests as articulated in Kincade “applie[d] with equal force.” Id. at 949. It found that the government has an interest in identification, and that “[a]lthough fingerprint evidence might often be sufficient to identify a past offender, DNA collection provides another means” to meet this “significant need.” Id. It found that “the deterrent effect of such profiling fosters society’s interest in reducing recidivism,” and that non-violent offenders’ recidivism rates, though not as high as vio *1196 lent offenders’, are “significant.” Id. at 949-50, n. 11. And it found that the government has an interest in solving past crimes, even nonviolent crimes. Id.
In light of this balancing test, the court found the taking of Kriesel’s DNA to be reasonable. Id. at 950.
In
Friedman,
decided in September 2009, the Ninth Circuit found that the balance tipped in favor of the individual. In that case, Friedman had committed a crime in Montana, completed his sentence, and upon his release was neither a parolee or a probationer.
Rather than apply a full totality of the circumstances test, the court addressed each of the three justifications the government offered for why the search was constitutional. Id. at 853. It rejected the first two, finding that the special needs exception did not apply, and that “adherence to a state statute does not guarantee compliance with the Fourth Amendment” — even if the Minnesota lаw the government pointed to had applied. Id. at 853-54.
Then the court addressed the government’s final argument — that the search was “reasonable.” Id. at 856. It held that “[njeither the Supreme Court nor our court has permitted general suspicionless, warrantless searches of pre-trial detainees for grounds other than institutional seeurity or other legitimate penological interests.” Id. at 857. While it acknowledged various appellate cases upholding state DNA laws, it held that none involved a pretrial detainee “or a state law that mandated searches of pretrial detainees.” Id. at 857. 6 The court then distinguished Kincade and Kriesel, noting that “both of those cases concerned extracting DNA from convicted felons still under state supervision.” Id. The court held that the bases for those cases did not apply, because Friedman was no longer being supervised by any authority; the Nevada authorities’ “purpose was simрly to gather human tissue for a law enforcement databank, an objective that does not cleanse an otherwise unconstitutional search.” Id. at 858. The court did not address the other government interests identified in Kincade and Kriesel.
In light of this analysis, the court in Friedman held that the taking of Friedman’s DNA was not reasonable and violated the Fourth Amendment. Id.
Given the foregoing background, this Order will now address and weigh the individual’s interest and the government’s interest in the present case.
B. The Individual’s Interest in this Case
Plaintiffs argue that “individuals who have merely been arrested or charged with a crime enjoy a much higher expectation of privacy” than convicted felons, who have a “severely diminished expectation[ ] of privacy.” MPI at 10 (internal citation omitted). Undoubtedly this is true. Convicted felons “have suffered a lawful conviction [and so] are properly subject to a broad range of [restrictions]” to which free people are not.
See Kincade,
379 F.3d at
*1197
833 (internal citations omitted). The Ninth Circuit in
United States v. Scott,
While arrestees certainly have a greater privacy interest than prisoners, it is this Court’s view that they also have a lesser privacy interest than the general population.
See, e.g.,
Robert Berlet, “A Step Too Far: Due Process and DNA Collection in California After Proposition 69,” 40 U.C. Davis L. Rev. 1481, 1503 (2007) (“Arrestees have a greater expectation of privacy than convicts, but less than free people”).
7
Though
Kincade
and
Kriesel
both limited their holdings to convicted felons,
see Kincade,
Plaintiffs have not argued that arrestees’ privacy interest is such that they cannot reasonably be forced to identify themselves upon arrest through photographs or fingerprints.
Kincade
stated, in dicta, that once an individual is “lawfully arrested and booked into state custody,” he can claim no right of privacy in his identity.
Understandably, much of what drives Plaintiffs’ focus on DNA and its ability to “reveal a host of private information about a person” is the “potential for misuse” — a threat that does not apply to fingerprints.
See
MPI at 9. Thus, what is unsettling about the analogy Plaintiffs raised at the motion hearing — that the government taking someone’s DNA is like taking from him a letter he has written to his partner, even if it assures him it will not read the letter — is the fear that the government may one day betray that promise, and peek. Or worse, that it will use the contents of that letter in a harmful way. However, as the court held in
Kincade,
“beyond the fact that the [statute] itself provides protections against such misuse, our job is limited to resolving the constitutionality of the program before us.”
C. The Government’s Interest in this Case
However, the government’s interests in this case are also not as great as those identified in
Kincade
and
Kriesel.
In
Kincade,
the court characterized as “a state interest” the confirmation of a defendant’s identity.
Two of those interests are essentially absent here. As the court reasoned in
Friedman,
i. Identification
On the other hand, the government’s interest in accurately identifying the indi
*1199
viduals from whom it is taking the DNA, discussed in
Kincade,
is present here. The government has a strong interеst in identifying arrestees.
See Pool,
Plaintiffs urge, however, that what the government is doing “is not identification; it is investigation for the purposes of inculpation.” Reply at 4. Similarly, the district court in
United States v. Mitchell,
While this argument has some initial logical appeal, the Ninth Circuit has unequivocally held that what DNA evidence does is identify.
See Rise,
Put simply: identification means both who that рerson is (the person’s name, date of birth, etc.) and what that person has done (whether the individual has a criminal record, whether he is the same person who committed an as-yet unsolved crime across town, etc.). Who the person is can often be checked using fingerprints, but that does not preclude the government from also checking that individual’s identity in other ways. An individual might wear gloves at some point, thwarting fingerprint identification, or wear a mask, thwarting the use of photographs. The more ways the government has to identify who someone is, the better chance it has of doing so accurately.
See
Proposition 69, Dec. of Purpose, § 11(e) (“The state has a compelling interest in the accurate identification of criminal offenders, and DNA testing at the earliest stages of criminal proceedings for felony offenses will help thwart criminal perpetrators from concealing their identities”);
see also Amerson,
ii. Solution of Past Crimes
Thus, an additional government interest, contributing to the solution of past crimes, is served by taking the DNA of arrestees. Plaintiffs argue that expansion of the United Kingdom’s DNA database to include arrestee information “failed to increase the databank’s efficacy in solving crime.” MPI at 11 (citing Wallace Deck at ¶¶ 13-26). The government responds that “maintaining arrestee samples resulted in a 74% increase in overall DNA matches.” Opp. at 8 (citing Konzak Deck at ¶ 15 11 ). Plaintiffs object to this interpretation, Reply at 10-11, but in any case the Court need not rely on UK data.
The government has asserted that as of October 31, 2009, California’s DNA Data Bank Program has had 10,664 hits, and that of those hits, 291 have involved arrestee submissions. Konzak Deck at ¶ 12. The government further asserts that through September 2009, there have been over 71,400 offender hits within states and over 10,400 hits between states at the Na *1201 tional level, about 1,038 of which are to arrestee submissions. Id. at ¶ 13. These statistics suggest, unsurprisingly, that arrestee submissions contribute to the solution of crimes, but not to the same degree as convicted offender submissions.
Plaintiffs argue that the government’s interest in the solving of past crimes is undermined, because thе arrestee samples create significant backlogs, delaying the analysis of other samples. Reply at 11. But the government maintains that “the average processing time for arrestee samples is currently about 31 calendar days,” and that “the increase in submissions from all adult arrestee collections has not increased our backlog 223%” but that “it has essentially stayed the same.” Konzak Decl. at ¶ 40. Though Plaintiffs might be able to come forward at a later point in the litigation and establish that arrestee testing has created such a backlog that it has wholly undermined the government’s interest in solving past crimes, it has not done so at this stage.
iii. Prevention of Future Crimes
In addition, the government has articulated an interest in arrestee testing not present in Kincade: the prevention of future crimes. Opp. at 8. The government points to small studies done in Denver, Chicago, and Maryland, each of which focused on a hаndful of violent repeat offenders, and purported to show that had arrestee testing been done on those criminals early on, their subsequent violent crimes could have been prevented. See Morrissey Deck, Speich Deck, and Powell Deck Plaintiffs object to this evidence as unreliable, and ask the Court to give it little weight. See Objections. The Court will give these studies little weight. Plaintiffs have taken a closer look at several of the examples in these studies, noting that mandatory testing at these offenders’ first convictions “would have generated the same result.” Reply at 8-9. Though the government might be able to introduce more reliable evidence about the efficacy of arrestee DNA in preventing future crimes, it has not done so convincingly at this stage of the litigation. Accordingly this interest is not strong. 12
D. Conclusion as to Likelihood of Success
Arrestees undoubtedly have a greater privacy interest than convicted felons, but Plaintiffs have not shown that that interest outweighs the government’s compelling interest in identifying arrestees, and its interest in using arrestees’ DNA to solve past crimes. Accordingly, based on the evidence presently before the Court, California’s DNA searching of arrestees appears reasonable. Plaintiffs will argue that so holding conflicts with the Ninth Circuit’s decision in
Friedman.
However,
Friedman
did not engage in a thorough totality of the circumstances test: it did not consider government interests beyond supervision, nor did it examine the extent of Friedman’s privacy interest.
See
2. Irreparable Harm
Plaintiffs argue that the inclusion of their DNA profiles in a searchable database constitutes an ongoing violation of their rights. MPI at 13. The government responds that because Plaintiffs have not been convicted of any crime, they could bring a suit under 42 U.S.C. § 1983 for damages, which would provide adequate compensation. Opp. at 13 (citing
Heck v. Humphrey,
3. Balance of Equities
Plaintiffs assert that the balance of the equities tips in their favor, because “[ujnless they are enjoined, Defendants will invade the privacy of a huge class of persons who enjoy a presumption of innocence and an expectation of privacy in [their DNA profiles],” whereas “[the government] will not suffer any comparable harm.” MPI at 13-14. Plaintiffs further argue that if an injunction is granted, the government “will still continue to identify arrested persons by taking their fingerprints and will continue to be able to collect DNA Samples immediately upon conviction.” Id. at 14.
This argument assumes that the DNA sampling of arrestees is an unconstitutional invasion of privacy — a position this Order has not adopted. In addition, Plaintiffs’ argument assumes that fingerprints and DNA are equally effective means of identification.
But see Amerson,
Most problematic, Plaintiffs’ argument that the government would not suffer comparable harm overlooks the tremendous expense that appears likely if an injunction is granted. The government points to the over $4.9 million it has spent on implementing the statute, Opp. at 15, but that money was apparently spent on increased laboratory space that could be used for other DNA testing even if the injunction was granted, see Konzak Decl. at ¶ 17. 13 More troubling, although Plaintiffs claim that “Defendants can simply exclude arrestee profiles from their searches,” Reply at 14, they have asked the Court to enjoin Defendants from “seizing, searching, analyzing, or making any use of DNA samples or analysis of [arrestee] DNA samples.” MPI at 1. This would — it would seem— require the government to retrain law en *1203 forcement officers across the state, 14 research which individuals in the arrestee index have subsequently been convicted of a crime, and remove all other arrestee profiles from CODIS. See Konzak Decl. at ¶¶ 31-34. This cost appears to be significant.
In light of these various factors, the balance of the equities tips in the government’s favor.
4. Public Interest
Plaintiffs argue that “preventing wholesale violations of the Constitution serves the public interest.” MPI at 14. In
American Federation of
Teachers—
West Virginia, AFL-CIO v. Kanawha County Board of Education,
CONCLUSION
Plaintiffs have not demonstrated that they are likely to succeed on the merits, or that the balance of the equities tips in their favor. The Court therefore DENIES the motion for a preliminary injunction.
IT IS SO ORDERED.
Notes
. The Court is aware that so-called "junk” DNA might someday be found to contain genetic programming material.
See United States v. Kincade,
. However, Plaintiffs assert that “[ajlthough both federal and California law only allow disclosure for 'law enforcement identification purposes,’ nothing about 'identification purposes’ limits on its face to information regarding non-coding regions of the genome.” Murphy Decl. at ¶41. If the government were to begin analyzing the coding regions of individuals’ DNA, that would be a different case; those facts are not currently before the Court.
. Plaintiffs point to
Friedman
and argue that the Ninth Circuit does not apply the totality of the circumstances test, instead following Schmerber’s requirement of either a warrant or both probable cause and exigent circumstances. MPI at 7. Although
Friedman
arguably did not apply the totality of the circumstances test, it did not reject that test, either— it simply found that the search at issue was unjustified under either the "special needs” exception, the state's reliance on a statute, or "on general Fourth Amendment principles.”
See
. Judge O’Scannlain's opinion (joined by four other judges) applied the totality of the circumstances test, but Judge Gould, concurring, advocated applying the special needs exception. See id. at 840 (Gould, J., concurring). Five judges dissented. See id. at 842, 871, 875.
. In a separate dissent, Judge Kozinski also noted that "[ajpplying the plurality's balancing analysis, I'm hard pressed to see how this would violate anyone’s Fourth Amendment rights.” Id. at 872 (Kozinski, J., dissenting).
. It is unclear what weight the court would have given to these cases if any had involved a state law mandating searches of pretrial detainees, particularly in light of the court’s holding that adherence to a state law does not guarantee compliance with the Fourth Amendment.
. Plaintiffs essentially acknowledged this point at the motion hearing, by answering the Court’s question of whether it had the right to object to the taking of its DNA for identification purposes with "You and I do. We haven’t been arrested."
. This opinion was adopted by District Judge Garcia,
see United States v. Pool,
No. CR S-09-0015,
.
But see United States v. Purdy,
No. 8:05CR204,
. Plaintiffs argued instead that even if the initial search is valid (to establish who the person is), running an individual’s DNA profile against other DNA profiles in order to inculpate that individual in a crime (to establish what that person has done) is a second, unreasonable search. In support of this argument they cite to
Ferguson v. City of Charleston,
. Konzak’s declaration actually stаtes that there was a 74% increase overall in DNA matches over the course of the program, "as a result of the increase in offender sampling and crime scene DNA activity.” Konzak Deck at ¶ 15.
. The government also claims an interest in exonerating the innocent. Opp. at 9, 14. At this stage of the litigation, this interest is not very strong. Though convicting the right person can theoretically serve to exonerate (or obviate the risk of investigating and prosecuting) the wrong person, the government has not yet introduced any evidence that the taking of arrestees’ DNA has led to either an increase in exonerations or a decrease in false accusations/convictions.
. The government has also apparently spent over $3.1 million to upgrade the number and types of instruments used at the labs, id. at ¶ 25, though again, that investment would presumably not be in vain.
. The government has reportedly spent $252,000 training law enforcement as to how to conduct DNA testing (and presumably, on whom to conduct such testing). See Willie Decl. at ¶ 6.