Two citizens sued the state in federal court in San Francisco today in a bid to block California’s new policy of collecting DNA samples from people who are arrested but not convicted of any crime.
Elizabeth Haskell of Oakland and Reginald Ento of Sacramento say the DNA collection violates their constitutional rights to be free of unreasonable searches and to be given due process of law.
Haskell and Ento, who are represented by the American Civil Liberties Union, were both arrested in separate incidents this year and had DNA samples taken with cheek swabs by sheriff’s deputies, but were never charged with a crime.
The lawsuit claims the DNA samples give government officials “direct access to the most fundamentally private personal information that any person possesses.”
It alleges the program “not only permits, but requires, broad and ongoing violations of the fundamental protections afforded all persons by the United States Constitution.”
The collection of the samples was mandated by a voter initiative, Proposition 69, enacted in 2004.
The measure required that beginning on Jan. 1, 2009, authorities must take a sample from any adult who is arrested for a felony, regardless of whether that person is ever charged or convicted of a crime.
The samples are kept at the state’s DNA laboratory in Richmond. Before this year, DNA was generally taken only from people convicted of crimes.
The lawsuit, which was assigned to U.S. District Judge Charles Breyer, asks for an injunction blocking the DNA collection unless a person is convicted or unless a search warrant is obtained.
The defendants in the case are California Attorney General Jerry Brown, state DNA laboratory director Eva Steinberger and San Francisco Sheriff Michael Hennessey.
Scott Gerber, a spokesman for Brown, said the state’s DNA databank program is used “for limited criminal identification purposes” and “has proven to be an effective law enforcement technology that has enhanced public safety and meets applicable constitutional standards.”
Gerber said the state Department of Justice “will carefully review this lawsuit and will respond in a timely way.”
Haskell was arrested during a peace rally in the San Francisco Civic Center on March 21 on suspicion of trying to free another protester from police custody. Ento was arrested in Sacramento on Jan. 1 on suspicion of receiving allegedly stolen U.S. Forest Service cameras.
Haskell said in a statement, “When your DNA is taken after an arrest at a political demonstration, it can have a silencing effect on political action.
“Now my genetic information is stored indefinitely in a government database, simply because I was exercising the right to speak out,” Haskell said.
The lawsuit contends that DNA collection is far more intrusive than fingerprint collection, because DNA reveals a person’s entire genetic blueprint, including information about family relationships, genetic defects and propensity to certain diseases.
Moreover, “the amount of information about a person that can be revealed by DNA is expanding every year,” the lawsuit says.
The law provides that a person who is not charged or convicted can apply to have the sample destroyed and DNA profile expunged from the state database after the statute of limitations has run.
But the lawsuit says that process takes at least three and a half years, during which the person’s profile may have been searched repeatedly, as well as sent to a federal database from which removal of the information may not be possible. In addition, either a prosecutor or a judge can block the deletion of the information from the state database, with no further court review.
The lawsuit claims the lack of judicial oversight is also unconstitutional.
ACLU attorney Michael Risher said, “The result of this new program is that thousands of innocent Californians will be subject to a lifetime of genetic surveillance because a single police officer suspected them of a crime.”
California’s DNA databank is described on the state Department of Justice’s Web site as the third largest in the world, following those of the U.S. government and the United Kingdom.
The lawsuit does not challenge the collection of DNA from people who have been convicted of crimes or for whom prosecutors have obtained a search warrant authorizing the taking of a sample.
