ACLU FILES CHALLENGE TO PROPOSITION 69

Lawsuit Challenges Government Seizure of DNA Samples from People Never Convicted of any Crime
For Immediate Release: December 7, 2004

SAN FRANCISCO - The California affiliates of the ACLU filed a class action lawsuit today claiming that Proposition 69 is unconstitutional. The case, filed in United States District Court in San Francisco, challenges those portions of the initiative that require DNA testing of people who are arrested for but never convicted of a crime. People arrested but who are never charged, who have their charges dropped or dismissed, or who are acquitted at trial, all nonetheless must submit their DNA to police for analysis and inclusion in a statewide database.

The lawsuit also challenges Proposition 69’s requirement that people who were convicted of a felony some time in the past, but have already fully served their debt to society and are no longer under any supervision by the criminal justice system, nonetheless must report to authorities and submit their DNA.

“California has the most draconian DNA database system in the country because of Proposition 69,” said ACLU attorney Julia Harumi Mass.

People who may be subject to DNA testing under the law, despite being innocent of any crime, include victims of identity theft, victims of police misconduct, political protestors, and lawful medical marijuana users. Others caught in the DNA dragnet include: victims of domestic violence, who are arrested for violence committed in self-defense and who either have the charges against them dropped or are subsequently acquitted; and people who were arrested for felony drug offenses and who upon successful completion of treatment programs, have had their convictions expunged under Proposition 36 or other state laws. Plaintiffs in the case include people who fall into those categories. Proposition 69 also mandates the sharing of DNA samples with law enforcement and private laboratories nationwide and globally.

"DNA is much more than a fingerprint," said ACLU attorney and Director of the Racial Justice Project, Maya Harris. "It opens a genetic window that reveals intimate information about you and your family, including predispositions to Alzheimer's disease, depression, multiple sclerosis and cancer. Law enforcement should not be allowed to seize that personal, private information when you haven't even been charged with a crime."

“We are seeking an injunction against the testing, analysis and indefinite storage of DNA from our clients and Californians like them,” added Mass. “We are asking the federal court to protect our fundamental rights to be secure from unconstitutional police searches and to privacy in our personal medical and genetic information.”

Under the law, individuals whose DNA is seized, but subsequently are not charged or acquitted, may petition the court for expungement of their DNA. But they face a delayed and cumbersome process. They must petition a judge who has unfettered discretion to deny their request and is not even permitted to grant the request if the prosecuting attorney objects. Once denied, individuals are left with no right to appeal.

“Proposition 69 goes too far by compelling the seizure of DNA from thousands of people who are presumed to be innocent and in many cases actually are innocent,” said ACLU cooperating attorney Sonya Winner, a partner at Covington & Burling. “Then, to add insult to injury, innocent people who are wrongly arrested have no meaningful way to make sure their DNA is removed from the criminal database.”

Michael Weber, a freshman at San Francisco State University, joined the lawsuit after attending an anti-war protest where he was arrested for a felony and the charges were later dropped. Under the law, Weber will be required to be tested for his DNA.

“I don’t understand why I have to provide my DNA to the government when I am innocent,” said Weber. “The only time I’ve been arrested the charges were dropped because the police had the wrong person. I don’t want the government to have sensitive, private medical information about me and my family.”

Rodney Ware, another plaintiff in the lawsuit, has been a victim of identity theft many times in the last 12 years. He was arrested in Los Angeles in April on a felony warrant for a crime committed by someone using his name.

“I understand first-hand how easy it is to get arrested by mistake,” said Ware. “Under Proposition 69, every time I get arrested for the crime of someone else, the police will take my DNA. As the victim of a crime, I don’t belong in the DNA database and neither do the thousands of other innocent people who are arrested each year.”

Proposition 69 was passed by California voters on November 2, 2004 and is known as the California DNA Fingerprint, Unsolved Crime and Innocence Protection Act. Before passage of Proposition 69, California law provided for mandatory DNA testing only of individuals who had been convicted of serious and violent felony offenses and the inclusion of their DNA in a statewide database.

The suit seeks a permanent injunction against DNA extraction and retention from Californians arrested but not convicted and those who have completed probation and parole.