Case 3:04-cv-05161-FMS Document 1 Filed 12/07/2004 Page 1 of 3

JS 44 • No. CALIF .(Rev. 4197)

CIVIL COVER SHEET

The JS-44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON PAGE TWO)

J.(a) PLAINTIFFS

DEFENDANTS

Michael Weber, et al.
See attached list for additional Plaintiffs
(b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF
(EXCEPT IN U.S. PLAINTIFF CASES)
San Francisco
Ie) ATTORNEYS tFIRM NAME. ADDRESS. AND TELEPHONE NUMBERI
See Attached List

California Department of Justice, Bill Lockyer, Attorney General of California, et al. See attached list for additional Defendants
COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT
(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES. USE THE LOCATION OF THE TRACT OF LAND INVOLVED.
ATTORNEYS (IF KNOWN)

II. BASIS OF JURISDICTION (PLACEAW- 'INONEBOXONLY)

Cl1 U.S. Government Plaintiff
Cl2 U.S. Government Defendant

!ZI 3 Federal Question (U.S. Government Not a Party)
Cl 4 Diversity (Indicate Citizenship of Parties in Item III)

III. CITIZENSHIP OF PRINCIPAL PARTIES (PLACEAW--INONEBOXFOR

PLAINTIFF

(For diversity cases only)

AND ONE BOX FOR DEFENDANT)

PlF DEF

PlF DEF

Citizen of This State

Cl1 Cl1

Incorporated or Principal Place

Cl4 Cl4

of Business In This State

Citizen of Another State Cl2 Cl2

Incorporated and Principal Place Cl S Cls

of Business In Another State

Citizen or Subject of a

Cl3 Cl3

Foreign Nation

Cl6 Cl6

Foreign Country

IV. ORIGIN
!ZII Original Proceeding

Cl2 Removed from State Court

(PLACE AN '\0 " IN ONE BOX ONLy)

Cl3 Remanded Irom Appellate Court

Cl4 Reinstated or Reopened

Cl5 Translared from Another district (specify)

Cl6 Multidistrict Litigation

Cl7 Appeal to District Judge from Magistrate Judgment

V. NATURE OF SUIT (PLACE AN" "IN ONE BOX ONLY)

CONTRACT

TORTS

FORFEITUREIPENALTY

BANKRUPTCY

OTHER STATUTES

Cll10 Insurance ClI20Marine ClI30 Miller Act Cl140 Negotiable Instrument
ClI50 Recovety ri C>veqxl}'Tlerll & Enforcement of JUDgment
Cl151 Medicare Act ClI52 Recovery of Defauhed
Sludentloans (ExCI Veterons) ClI53 Recovety ri C>veqxl}'Tlerll
of Veteran's Banefits ClI60 StockhOlderS SUits ClI90 Other Contract ClI95 Contract Product liability

PERSONAL INJURY Cl310 Airplane Cl315 Airplane Product
Liability Cl320 AssauH Ubel &
Slander Cl330 Federal Employers
Liability Cl340Marine Cl345 Marine Product
Liability Cl350 Motor Vehicle
Cll55 Motor Vehicle Product liabiltiy
Cl360 Other Personal InjUl)'

REAL PROPERTY
Cl210 Land Conoemnalion Cl220 Foreclosure Cl230 Rent Lease & Ejectment Cl240 Tor1S to Land Cl245 Tort Product liability CJ290 All Other Real Property

CIVIL RIGHTS
Cl441 Voting Cl442 ErnP<Jyment Cl443 HOUSing Cl444 Welfare Cl440 Other Civil Rights,

PERSONAL INJURY Cl362 Personal Injury
Med Malpractice Cl36S Personal Injury
Product Liability Cl368 Asbestos Personal
Injury Product liability
PERSONAL PROPERTY Cl370 Other Fraud Cl3711 ruth In Lending Cl380 Other Personal
Property Damage Cl36S Property Damage
Product Liability
PRISONER PETITIONS
Cl510 Motion 10 Vacate Sentence
Hab.a. Corpus:
Cl530 Gener.ll Cl535 Death Penalty Cl540 Mandamus & Other Cl550 Civil Rights Cl555 Prison Condition

Cl610 Agricuhure Cl620 Other Food & Drug Cl625 Drug Related Seizure of
Property 21 USC 881 Cl630 Uquor Laws Cl640 RR & True!< Cl650 Airline Regs Cl660 Occupational
ir:::I Safely/Heallh 690ClIh<!r
LABOR
Cl710 Fair Labor SianDan:Js Act
CJ720 LaborlMgmt Relations
CJ730 LaborlMgmt Repcrting & Disclosure Act
CJ7 40 Railway Labor fV;;t
CJ790 Other Labor Litiganon DDI Ernpt ReI. Inc. Security
Act

Cl42.2 Appeal 28 USC 158 Cl423 Wittmlwal
28 USC 157
PROPERTY RIGHTS
Cl620 Copyrights Cl630 Patent Cl640 1rademark
SOCIAL SECURITY
Cl861 HIA (139511) Cl862 BJacl<. lung (923) Cl863 DIWCID1WW (405(g)) Cl 804 SSID Title XVI Cl 865 RSI (405(g))
FEDERAL TAX SUITS Cl870 1axes (US Plaintiff or
Defendant Cl 871 IRS· Third Party
26 USC 7609

Cl 400 Slale Reappa:tionment Cl410 Antitrust Cl 430 Banks and Banking Cl 450 CommercellCC Ratesletc.
Cl 460 Depcnation Cl 470 Racl<.eteer Influenced and
Corrupt Organizations Cl810 Selective Service Cl 650 SecuritiesICommoditiesi
Exchange Cl 875 Customer Challenge
12 USC 3410 Cl 891 Agricultural Acts Cl 892 Economic SlabilizatiOn
Act Cl 893 Environmenlal Matters Cl894 Energy Allocation Act Cl 895 Freedom of Information
Act Cl 900 Appeal of Fee
Determination Under Equal Access to Justice !ZI 950 Constitutionality of State Slatutes Cl 890 Other SiatUiory Actions

VI. CAUSE OF ACTION (CITE THE US CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE BRIEF STATEMENT OF CAUSE. DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY) 42 U.S.c. s. 1983. Proposition 69 violates the Fourth and Fourteenth Amendments to the
United States Constitution.

VII. REQUESTED IN COMPLAINT:

tzlCHECK IF THIS IS ACLASS ACTION UNDER F.R.C.P. 23

DEMAND $ Preliminary

DCHECK YES only if demanded in complaint:

and permanent injunction. JURY DEMAND: Cl YES Cl NO

VIII. RELATED CASE(S} IF ANY PLEASE REFER TO CIVIL L.R. 3·12 CONCERNING REQUIREMENT TO FILE "NOTICE OF RELATED CASE".

IX. DIVISIONAL ASSIGNMENT (CIVIL L.R. 3,2) (PLACE A ". "IN ONE BOX 0

DATE ]I)~. 7/ Zt»(

SIGNATURE OF ATIORNEY OF RECO

IOAKLAND Cl SAN JOSE

, •

Case 3:04-cv-05161-FMS Document 1 Filed 12/07/2004 Page 2 of 3

• •
PLAINTIFFS LIST

MICHAEL WEBER RODNEY WARE JAMES BLAIR RUBEN RIVAS LINDA WALKER AMERICANS FOR SAFE ACCESS

MARY PRUITT RACHEL DELUCCI-YOUNGBERG THINHT.LAM JASONCRAlG ALL OF US OR NONE

DEFENDANTS LIST

BILL LOCKYER, Attorney General of California

EVA STEINBERGER, Assistant Bureau Chief for DNA Programs, California Department of Justice

LANCE GIMA, Chief of the Bureau of Forensic Services, California Department of Justice Laboratory

CHARLES C. PLUMMER, Sheriff, Alameda County

WARREN E. RUPF, Sheriff, Contra Costa County

LOU BLANAS, Sheriff, Sacramento County

JIM POPE, Sheriff, Shasta County

MICHAEL HENNESSEY, Sheriff, San Francisco County

ALBERT NAJERA, Chief of Police, City of Sacramento

KEN JAMES, Chief of Police, City of Emeryville

HEATHER J. FONG, Chief of Police, City of San Francisco

SF: 66133-1

• •

Case 3:04-cv-05161-FMS Document 1 Filed 12/07/2004 Page 3 of 3

I'
PLAINTIFFS' ATTORNEY LIST

SONYA D. WINNER, SBN 200348 DONALD W. BROWN, SBN 83347 KATE S. STElNHEIMER, SBN 226220 COVINGTON & BURLING One Front Street San Francisco, California 94111 Telephone: (415) 591-6000 Facsimile: (415) 591-6091
PETER ELIASBERG, SBN 189110 RICARDO D. GARCIA, SBN 178111 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1616 Beverly Boulevard Los Angeles, CA 90026 Telephone: (213) 977-9500 Facsimile: (213) 250-3919
JEFFREY D. SCHWARTZ, SBN 80643 360 Ritch Street, #201 San Francisco, CA 94107 Telephone: (415) 777-3170 Facsimile: (415) 681-8643
Attorney for Plaintiff Rachel Delucci-Youngberg

JULIA HARUMI MASS, SBN 189649 MARGARET C. CROSBY, SBN 56812 MAYA L. HARRIS, SBN 172115 AMERICAN CNIL LIBERTIES UNION FOUNDATION OF
NORTHERN CALIFORNIA, INC NORTHERN CALIFORNIA, INC. 1663 Mission Street, Suite 460 San Francisco, CA 94103 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
JORDAN BUDD, SBN 144288 AMERICAN CNIL LIBERTIES UNION FOUNDATION OF SAN DIEGO AND IMPERIAL COUNTIES P.O. Box 87131 San Diego, California 92138 Telephone: (619) 232-2121 Facsimile: (619) 232-0036

SF: 66135-1

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 1 of 38

1 SONYA D. WINNER, SBN 200348 DONALD W. BROWN, SBN 83347

.,.
"'..;~ ./~
.AI'
~~

2 KATE S. STEINHEIMER, SBN 226220

COVINGTON & BURLING

3 One Front Street

San Francisco, California 94111

4 Telephone: (415) 591-6000

Facsimile: (415) 591-6091

5
JULIA HARUMI MASS, SBN 189649

6 MARGARET C. CROSBY, SBN 56812 MAYA L HARRIS, SBN 172115

7 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC.

8

1663 Mission Street, Suite 460 San Francisco, CA 94103

9 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
10 Attorneys for Plaintiffs

E-fiHng

11 .[additional counsel on signature page]

12

13

UNITED STATES DISTRICT COURT

14

FOR TIlE NORTIlTRNCTRIC~~LIFORN

15

\r

\1:1

MICHAEL WEBER, MARY PRUITT, RODNEY

ase No.:

16

WARE RACHEL DELUCCI-YOUNGBERG JAMES BLAIR, THINH T. LAM, RUBEN'

CLASS ACTION COMPLAINT FOR DECLARATORY AND

17 RlVAS, JASON CRAIG, LINDA WALKER, ALL

INJUNCTIVE RELIEF

OF US OR NONE, and AMERICANS FOR SAFE

CLASS ACTION

18 ACCESS,

Plaintiffs, 19
v.
20 BILL LOCKYER, Attorney General of California; 21 EVA STEINBERGER, Assistant Bureau Chief for
DNA Programs, California Department of Justice;
22 LANCE GlMA, Chief of the Bureau of Forensic
Services, California Department of Justice 23 Laboratory; CHARLES C. PLUMMER, Sheriff,
Alameda County; WARREN E. RUPF, Sheriff, 24 Contra Costa County; LOU BLANAS, Sheriff,
Sacramento County; JIM POPE, Sheriff, Shasta 25 County; MICHAEL HENNESSEY, Sheriff, San
Francisco County; ALBERT NAJERA, Chief of 26 Police, City of Sacramento; KEN JAMES, Chief of
Police, City of Emeryville, and HEATHER J. 27 FONG, Chief of Police, City of San Francisco,

Defendants. 28

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 2 of 38

1

Plaintiffs, for their Complaint in this action, allege and aver as follows:

2

Introduction

3

1. This is an action for declaratory and injunctive relief arising out of plaintiffs'

4 challenge, on behalf of themselves and classes of others who are similarly situated, to the

5 California DNA Fingerprint, Unsolved Crime and Innocence Protection Act (referred to herein

6 as "Proposition 69"). Proposition 69 mandates compulsory extraction, collection, analysis,

7 storage, and dissemination for law enforcement purposes of the DNA of hundreds ofthousands

8 of California residents who have not been, and in many cases never will be, convicted of any

9 crime. Compulsory testing is also required of persons who, although previously convicted of

10 felony offenses, have long since served their debt to society and are no longer subject to the

11 supervision of the criminal justice system. Such compulsory sampling and testing, which is to

12 take place without any showing of probable cause or reasonable individualized suspicion,

13 violates plaintiffs' rights under the Fourth and Fourteenth Amendments to the United States

14 Constitution.

15

2. In the general election of November 2, 2004, a majority of California voters

16 approved a ballot measure enacting Proposition 69. Proposition 69 has amended the California

17 Penal Code, Sections 295 et seq., to expand dramatically the scope of mandatory, suspicionless,

18 and warrantless sampling and testing of the DNA of persons in the State of California, and to

19 provide for broad sharing of data about those persons' DNA with law enforcement personnel

20 throughout the United States and internationally. As a result of Proposition 69, California now

21 has the most draconian program for the collection, retention, and sharing of DNA data in

22 existence anywhere in the United States.

23

3. Proposition 69 mandates DNA testing of all persons who are (or have ever

24 been) arrested for or charged with any felony. The arrest need not even be a lawful one, and

25 there is no requirement of a probable cause hearing or other steps toward prosecution, much less

26 any actual conviction, before the DNA sample iscol1ected. Nor is there any requirement of

27 reasonable individualized suspicion implicating the DNA of a particular arrestee or other

28

CLASS ACTION COMPLAINT FOR DECLARATORY AND

2

INJUNCTIVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 3 of 38

1 specific justification for the testing of that individual; instead, the testing is across-the-board and

2 automatic for all felony arrestees.

3

4. Thus, Proposition 69 mandates the seizure and broad publication to local,

4 state, and national law enforcement agencies of DNA profiles from large numbers of persons as

5 to whom the state has no more legitimate interest in such information than it has for any other

6 law-abiding member of the pUblic. The compulsory testing requirement applies to persons

7 arrested - but not even convicted - of many offenses for which their DNA has no conceivable

8 relevance, such as (to offer but a few examples) the use of unauthorized signatures in a

9 campaign advertisement, writing checks with insufficient funds, accepting a bribe to throw a

10 sporting event, racing a horse under a fictitious name, or counterfeiting railroad tickets. See

11 Cal. Penal Code §§ 115.1, 337c, 337f, 476(c), 481. Others caught in the DNA dragnet

12 established by the initiative include:

13

• persons who are arrested for a felony but against whom charges are quickly

14

dropped in the recognition that they are innocent and that no probable cause

15

existed for the arrest in the first place;

16

• persons for whom arrest warrants are issued as a result of mistaken identity,

17

including victims of identity theft;

18

• persons, such as victims of domestic violence, who are arrested for violence

19

committed in self-defense and who either have the charges against them

20

dropped or are subsequently acquitted;

21

• participants in political demonstrations and other activities who have

22

committed no crime but are nonetheless arrested in connection with broad

23

sweeps of participants by the police;

24

• persons who are wrongfully arrested due to police misconduct;

25

• persons who are arrested for felony possession of marijuana but against

26

whom charges are dropped or dismissed upon a showing that they were in

27

lawful possession of the marijuana for medical purposes;

28

CLASS ACTION COMPLAINT FOR DECLARATORY AND

3

INJUNCTIVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 4 of 38

1

• persons who are subject to overcharging upon their initial arrest for minor

2

offenses and are hence charged with felonies but are ultimately convicted of

3

nothing more than misdemeanors;

4

• persons who have been arrested for felony drug offenses and who, following

5

successful completion of treatment programs, have had their convictions

6

expunged in compliance with Proposition 36 or other state laws; and

7

• persons who were convicted of nonviolent felony offenses many years ago,

8

who served their sentences, and who have since then lived law-abiding lives

9

as ordinary members of the community.

. 10 Overall, approximately a third of all persons arrested for felony offenses in California in any .

11 given year are ultimately never convicted of any crime whatever. Many others are convicted of

12 nothing more than a misdemeanor.

13

5. Under Proposition 69, a person whose DNA is taken but is subsequently not

14 charged (or is acquitted) may later petition for expungement of his or her DNA profile from the

15 state's database, but the ruling on any such petition is automatically delayed until after the data

16 will likely already have been made broadly available to other state, national, and international·

17 databases over a substantial period of time. Even then, any expungement petition is subject to

18 cumbersome and onerous procedural barriers, including what is effectively a right of veto by the

19 prosecuting attorney and the unfettered and unreviewable discretion of the trial court to whom

20 the petition is directed.

21

6. The expansive mandatory DNA testing program established by Proposition

22 69 violates the Fourth and Fourteenth Amendments of the United States Constitution. The

23 statute not only permits, but requires broad and ongoing violations of the fundamental

24 protections afforded all persons by the Constitution to be secure in their persons from

25 unreasonable. searches and seizures and to due process oflaw. Ignoring the clear limitations

26 recognized by the courts in upholding carefully circumscribed DNA testing programs for

27 persons who have been actually convicted of felony offenses, and as to whom there are

28 specifically articulated justifications for this invasion of fundamental privacy interests, the new

CLASS ACTION COMPLAINT FOR DECLARATORY AND

4

INJUNCTIVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 5 of 38

1 California law reaches broadly to mandate testing of hundreds of thousands of people who are

2 legally presumed to be (and in a large proportion of cases actually are) innocent of any crime at

3 alL No justification has been identified for this program beyond the generalized law

4 enforcement interest in solving unrelated crimes. But the Constitution permits this kind of law

5 enforcement interest to be pursued only in the presence of reasonable individualized suspicion

6 and (absent unusual circumstances) issuance of a warrant on probable cause. The new statutory

7 provisions adopted through Proposition 69 are accordingly unconstitutional.

8

7. This action is brought on behalf of persons who are subject to compulsory

9 DNA testing solely as a result of Proposition 69 and who either have not been convicted of any

10 felony or, if they have been convicted in the past, have completed their sentences and/or

11 probation and are no longer subject to the supervision of the criminal justice system. Plaintiffs

12 do not in this action challenge Proposition 69 insofar as it merely expands the extent to which

13 compulsory DNA testing is applied to persons who are actually convicted of a felony offense

14 and remain (or, as a result ofa future conviction, become) subject to the supervision of the

15 criminal justice system. Nor do plaintiffs challenge the lawful collection and analysis of DNA

16 samples pursuant to a valid warrant or other court order requiring DNA testing in connection

17 with a specific criminal investigation or proceeding as to which the requisite probable cause is

18 shown connecting the person to be tested with a particular criminal offense. Rather, this action

19 addresses the mass, programmatic DNA testing of hundreds of thousands of persons - persons

20 not yet convicted and persons no longer under the supervision ofthe criminal justice system - as

21 to whom the long~recognized Constitutional prerequisites to such searches and seizures have not

22 been established.

23

JURISDICTION AND VENUE

24

8. This action arises under 42 U.S.C. § 1983 and the United States Constitution.

25 This Court has subject-matter jurisdiction under 28 U.S.c. §§ 1331 and 1343.

26

9. The defendants are all public officials of the State of California or its

27 constituent counties and municipalities and are sued here in their official capacities. Each of the

28

CLASS ACTION COMPLAINT FOR DECLARATORY AND

5

INJUNCTIVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 6 of 38

1 defendants resides within this District and/or performs official duties within the State of

2 California. This Court accordingly has personal jurisdiction over each of the defendants.

3

10. Venue properly lies within this District pursuant to 28 U.S.c. § 1391(b). The

4 named defendants perform their official duties in whole or in part in this District, and a

5 substantial part of the events or omissions giving rise to plaintiffs' claims have occurred or will

6 occur in this District.

7

INTRADISTRlCT ASSIGNMENT

8

11. Pursuant to Local Rule 3-2, this action may properly be assigned to the San

9 Frapcisco or Oakland divisions of this Court.

10

THE PARTIES

11

Plaintiffs

12

12. Plaintiff Michael Weber is a resident of San Francisco,California. On

13 November 3, 2004, he attended an anti-war demonstration in San Francisco. Some time after a

14 bottle was thrown from the crowd of protestors in which Weber was standing, the police began

15 arresting everyone in the crowd. Weber was arrested for felony assault with a deadly weapon

16 other than a firearm on a police officer. Weber had not himself thrown the bottle or otherwise

17 assaulted or attempted to assault any officers at the demonstration. A few dayslater, the felony

18 charge was reduced to two misdemeanor charges, which were thereafter dismissed entirely.

19 Although Proposition 69 does not require Weber's DNA sample to be physically collected until

20 2009, the requirement for such sampling is now firmly established by statute and is subject to no

21 future contingencies or factual developments. His objection to such sampling is accordingly

22 ripe for resolution by this Court.

23

13. Plaintiff Mary Pruitt is a resident of Sacramento County, California. On

24 October 15,2001, she was arrested in Sacramento, California, for possession of

25 methamphetamine and drug paraphernalia and subsequently pleaded guilty to those charges in

26 order to obtain a diversion to drug treatment in accordance with the California Substance Abuse

27 and Crime Prevention Act of2000. Pruitt thereafter completed the required drug treatment

28 program, and the charges against her were dismissed pursuant to Cal. Penal Code

CLASS ACTION COMPLAINT FOR DECLARATORY AND

6

INJUNCTIVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 7 of 38

1 § 1210.1 (d)(l). Pruitt is no longer under any supervision by the criminal justice system;

2 Proposition 69 nonetheless requires that Pruitt's DNA be collected and that the data concerning

3 her DNA be included in the California DNA database. Although Proposition 69 may not

4 require Pruitt's DNA sample to be collected until·2009, the requirement for such sampling is

5 now firmly established by statute and is subject to no future contingencies or factual

6 developments. Her objection to such sampling is hence ripe for adjudication by this Court.

7

14. Plaintiff Rodney Ware is a resident of Sacramento County, California, who

8 has been a victim of a crime commonly referred to as "identity theft." In April 2004, he was

9 arrested in Los Angeles on a felony warrant. Because the person for whom the warrant was

10 issued had used Ware's name under false pretences, the warrant was ultimately found not to

11 pertain to Ware; accordingly, the charges were not pursued. Nonetheless, because he has been

12 arrested for a felony, Proposition 69 requires that Ware's DNA be sampled and analyzed and

13 that data concerning his DNA be included in the California DNA Database. Although

14 Proposition 69 does not require Ware's DNA sample to be physically collected until 2009, the

15 requirement for such sampling is now firmly established by statute and is subject to no future

16 contingencies or factual developments. His objection to such sampling is accordingly ripe for

17 resolution by this Court.

18

15. Plaintiff Rachel Delucci-Youngberg is a resident of Shasta County,

19 California. In July 2001, she was arrested for and charged with murder in Shasta County,

20 California, after she shot her abusive husband in self-defense. At trial, after hearing all evidence

21 from both the prosecution and defense, the trial judge granted a motion for acquittal under Cal.

22 Penal Code § 1118.1, ruling that the prosecution had not presented substantial evidence to

23 disprove the defense theory of self-defense. Nonetheless, because she was arrested for a

24 felony, Proposition 69 requires that Delucci-Youngberg's DNA be collected and analyzed and

25 that data concerning her DNA be included in the California DNA Database.

26

16. Plaintiff James Blair is a resident of Alameda County, California. In

27 December 2003 and January 2004, he was arrested in Emeryville and Berkeley, California for

28 offenses related to his possession and cultivation of marijuana and charged with felony

CLASS ACTION COMPLAINT FOR DECLARATORY AND

7

INJUNCTIVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 8 of 38

1 violations of California Health and Safety Code §§ 11359 and 11358. The charges were

2 dismissed after Blair's physician appeared in court and confirmed that Blair's possession,

3 cultivation, and use of marijuana were pursuant to the physician's recommendation to treat pain

4 and muscle spasms related to a spinal cord injury and that therefore Blair had a valid defense

5 under the California Compassionate Use Act, Cal. Health and Safety Code § 11392.5.

6 Nonetheless, because he was arrested for a felony, Proposition 69 requires that Blair's DNA be

7 collected and analyzed and that data concerning his DNA be included in the California DNA

8 Database. Although Proposition 69 does not require Blair's DNA sample to be physically

9 collected until 2009, the requirement for such sampling is now firmly established by statute and

10 is subject to no future contingencies or factual developments. His objection to such sampling is

11 accordingly ripe for resolution by this Court. Blair is a member of plaintiff Americans for Safe

12 Access.

13

17. PlaintiffThinh T. Lam is a resident of Orange County, California. He was

14 arrested on April 29, 2003, for murder. Those charges are currently pending, and he.is currently

15 incarcerated in San Francisco awaiting trial. Lam has never been convicted of a felony or any

16 other criminal offense. Nonetheless, because he has been arrested for murder, Proposition 69

17 requires that Lam's DNA be sampled and analyzed and that data concerning his DNA be

18 included in the California DNA Database.

19

18. Plaintiff Ruben Rivas is a resident of Orange County, California. In 2000,

20 while serving as a volunteer legal observer for the National Lawyers Guild during the

21 Democratic National Convention in Los Angeles, he followed and videotaped a demonstration

22 by animal rights activists. After some of the activists began pounding on the gate of a store,

23 police officers arrived and arrested everyone who was present, including Rivas, charging them

24 with felony conspiracy to commit burglary. The charges against Rivas were dropped the next

25 day. Nonetheless, because he was arrested for a felony, Proposition 69 requires that Rivas's

26 DNA be collected and analyzed and that data concerning his DNA be included in the California

27 DNA Database. Although Proposition 69 does not require Rivas's DNA sample to be

28 physically collected until 2009, the requirement for such sampling is now firmly established by

CLASS ACT10N COMPLAINT FOR DECLARATORY AND

8

INJUNCTIVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 9 of 38

1 statute and is subject to no future contingencies or factual developments. His objection to such

2 . sampling is accordingly ripe for resolution by this Court.

3

19. Plaintiff Jason Craig is a resident of San Diego, California, and a student in

4 his senior year at San Diego State University. In February 2004, following a fraternity party at

5 which he became intoxicated, Craig was out with two friends and accompanied one of them into

6 an unlocked residence that the friend claimed was the home of an acquaintance who had

7 borrowed some video game equipment and magazines from him. The friend took the

8 equipment, which he claimed to own. Once outside, Craig agreed to carry the wires from the

9 game system. As they were walking down the street, a police officer stopped the group and then

10 arrested them. Craig was charged with the felony offense of burglary. He was subsequently

11 convicted only of a misdemeanor offense of receiving stolen property. Craig has no other

12 criminal record. Nonetheless, because he was arrested for a felony, Proposition 69 requires that

13 Craig's DNA be collected and analyzed and that data concerning his DNA be included in the

14 California DNA Database. Although Proposition 69 does not require Craig's DNA sample to be

15 physically collected until 2009, the requirement for such sampling is now firmly established by

16 statute and is subject to no future contingencies or factual developments. His objection to such

17 sampling is accordingly ripe for resolution by this Court.

18

20. Plaintiff Linda Walker is a resident of Contra Costa County, California.

19 Between about 1983 and 1993, Walker was arrested for and convicted ofa number of felony

20 offenses, primarily related to petty theft and drug possession. Following those convictions,

21 Walker completed her sentences and was released and completed periods of probation and

22 parole. Walker is no longer subject to any kind of probation or other supervised release relating

23 to her arrest and conviction; nor has she been arrested for any other criminal offense since that

24 time. Nonetheless, Proposition 69 requires that Walker's DNA be sampled and that data

25 concerning her DNA be included in the California DNA Database. Walker is a member of

26 plaintiff All of Us or None.

27

21. As of the date of this Complaint, none of the individual plaintiffs in this

28 action has provided a DNA sample pursuant to Proposition 69; nor, with the exception of

CLASS ACTION COMPLAINT FOR DECLARATORY AND

9

INJUNCTIVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 10 of 38

1 plaintiff Lam, is any plaintiff s DNA profile in the possession of state or federal law

2 enforcement authorities or in any database to which such authorities have access. Lam has been

3 required to provide a biological sample for testing, but the court order requiring that sample

4 expressly provides that it may not be used in association with any other case and may not be

5 included in any city, state, or national database or databank.

6

22. Except for Plaintiffs Pruitt and Walker, none of the individual plaintiffs in

7 this action has ever been convicted ofany felony, either in California or elsewhere. Except for

8 plaintiff Lam, who is incarcerated pending trial, none of the plaintiffs is currently incarcerated

9 or subject to any form of supervised release following incarceration. Upon information and

10 belief, none of the plaintiffs, other than Lam, is currently the subject of a valid warrant or court

11 order for the sampling of his or her DNA based upon a finding of probable cause or any

12 reasonable suspicion linking him or her to any crime for which such DNA would be relevant

13 evidence. Nor does any other ground currently exist (apart from Proposition 69) on which any

14 plaintiff may be compelled to submit a sample of his or her DNA fortesting and use for law

15 enforcement purposes.

16

23. Plaintiff All of Us or None is an unincorporated association whose primary

17 purpose is to eliminate stigma, shame, and barriers to full participation in society resulting from

18 felony convictions and former incarceration. All of Us or None's membership includes many

19 individuals within California who have served criminal sentences for felonies and are no longer

20 under the supervision of the criminal justice system but are nevertheless subject to the new

21 mandatory testing provisions of Proposition 69. Implementation of Proposition 69 will have an

22 immediate and severe impact on the constitutional rights of its members.

23

24. Plaintiff Americans for Safe Access is a non-profit corporation that has as its

24 primary purpose working to protect the rights of patients and d<?ctors legally to use marijuana

25 for medical purposes, including providing legal advocacy and training for patients and doctors

26 who are criminally charged for offenses related to medical marijuana. Americans for Safe

27 Access's members and constituents include individuals within California who are subject to the

28 new mandatory testing provisions of Proposition 69 due to arrests for offenses to which they

CLASS ACTION COMPLAINT FOR DECLARATORY AND

10

INJUNCTIVE RELJEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 11 of 38

1 have an affirmative defense under California law in the legal use of marijuana for medical

2 purposes. Implementation of Proposition 69 will hav~ a severe impact on the constitutional

3 rights of the members and constituents of Americans for Safe Access.

4

Defendants

5

25. Defendant Bill Lockyer is the Attorney General of the State of California.

6 Under Article 5, Section 13 of the California State Constitution, he is the "chieflaw officer of

7 the State" and has the duty "to see that the laws of the state are uniformly and adequately

8 enforced." The California Constitution further grants him "direct supervision over every district

9 attorney and sheriff and over such other law enforcement officers as may be designated by

10 law..." As Attorney General, defendant Lockyer also supervises the operations of the

11 California Department of Justice, which is directly responsible for implementing key provisions

12 of Proposition 69. He is sued in his official capacity.

13

26. Defendant Eva Steinberger is the Assistant Bureau Chief for DNA Programs,

14 California Department of Justice. In that capacity, she has responsibility for supervising

15 functions of the Department of Justice and the California Department of Justice Laboratory in

16 implementing Proposition 69, including, inter alia, providing procedural guidance, equipment,

17 and materials to local law enforcement agencies for the collection of samples; receiving,

18 maintaining, storing, and analyzing samples; contracting with third parties to assist with DNA

19 analysis; and maintaining databases and databanks of analysis results and other information.

20 She is sued in her official capacity.

21

27. Defendant Lance Gima is the Chief of the Bureau of Forensic Services,

22 California Department of Justice Laboratory. In that capacity, he has responsibility for

23 supervising functions of the Department of Justice Laboratory in implementing Proposition 69,

24 including, inter alia, providing guidance, equipment, and materials to local law enforcement

25 agencies for the collection of samples; receiving, maintaining, storing, and analyzing samples;

26 contracting with third parties to assist with DNA analysis; and maintaining databases and

27 databanks of analysis results and other information. He is sued in his official capacity.

28

CLASS ACTION COMPLAINT FOR DECLARATORY AND

11

INJUNCTIVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 12 of 38

1

28. Defendant Charles C. Plummer is the Sheriff of Alameda County.

2 Proposition 69 vests in this defendant, and the other law enforcement officers of Alameda

3 County whom he supervises, the responsibility for collection of DNA samples from arrestees.

4 He is sued in his official capacity.

5

29. Defendant Warren E. Rupf is the Sheriff of Contra Costa County.

6 Proposition 69 vests in this defendant, and the other law enforcement officers of Contra Costa

7 County whom he supervises, the responsibility for collection of DNA samples from arrestees.

8 He is sued in his official capacity.

9

30. Defendant Lou Blanas is the Sheriff of Sacramento County. Proposition 69

10 vests in this defendant, and the other law enforcement officers of Sacramento County whom he

11 supervises, the responsibility for collection of DNA samples from arrestees. He is sued in his

12 official capacity.

13

31. Defendant Jim Pope is the Sheriff of Shasta County. Proposition 69 vests in

14 this defendant, and the other law enforcement officers of Shasta County whom he supervises,

15 the responsibility for collection of DNA samples from arrestees. He is sued in his official

16 capacity.

17

32. Defendant Michael Hennessey is the Sheriff of San Francisco County.

18 Proposition 69 vests in this defendant, and the other law enforcement officers of San Francisco

19 County whom he supervises, the responsibility for collection of DNA samples from arrestees.

20 He is sued in his official capacity.

21

33. Defendant Albert Najera is the Chief of Police for the City of Sacramento.

22 Proposition 69 vests in this defendant, and the other law enforcement officers of Sacramento

23 whom he supervises, the responsibility for collection of DNA samples from arrestees. He is

24 sued in his official capacity.

25

34. Defendant Ken James is the Chief of Police for the City of Emeryville.

26 Proposition 69 vests in this defendant, and the other law enforcement officers of Emeryville

27 whom he supervises, the responsibility for collection of DNA samples from arrestees. He is

28 sued in his official capacity

CLASS ACTION COMPLAJNTFOR DECLARATORY AND

12

JNJUNCTlVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 13 of 38

35. Defendant Heather J. Fong is the Chief of Police of the City of San

2 Francisco. Proposition 69 vests in this defendant, and the other law enforcement officers of San

3 Francisco whom she supervises, the responsibility for collection of DNA samples from

4 arrestees. She is sued in her official capacity.

5

CLASS ACTION ALLEGATIONS

6

36. Plaintiffs bring this action as a class action pursuant to Fed. R. Civ. P. 23(b)

7 on their own behalf and on behalf of all other persons similarly situated. This action is brought

8 on behalf oftwo classes, which may be defined as follows:

9

a. Plaintiffs Weber, Blair, Rivas, Ware, Craig, and Lam bring this action on

10 their own behalf and as representatives of an "Arrestee Class," which is defined as:

11

All persons who are, or will be, compelled to submit to the

involuntary collection of their DNA under Sections 295 et seq. of

12

the California Penal Code solely by reason of the fact that they

have been arrested for, or charged with, a felony offense. 13
b. Plaintiff Walker brings this action on her own behalf and on behalf of a
14
"Formerly Convicted Persons Class," which may be defined as:

15

All persons who have previously been convicted of a felony

16

offense in California and are no longer subject to any supervision

of the criminal justice system, but who are nonetheless, by reason

17

of that prior conviction, required to submit to the involuntary

collection of their DNA under Sections 295 et seq. of the

18

California Penal Code.

19

37. Both ofthe. classes defined in the foregoing paragraph are so numerous that

20 joinder is impracticable.

21

38. Questions oflaw and fact common to the members ofthe plaintiff classes

22 predominate in this case. These common questions include:

23

a. Do the compulsory sampling and analysis of the DNA of members of the

24 plaintiff classes pursuant to the requirements of Proposition 69 constitute an unreasonable

25 search and seizure in violation ofthe Fourth and Fourteenth Amendments to the United States

26 Constitution?

27

b. Do the compulsory sampling and analysis of the DNA of members' of the

28 plaintiff classes, and the dissemination of DNA profiles and other information derived from

CLASS ACTION COMPLAINT FOR DECLARATORY AND

13

INJUNCTIVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 14 of 38

1 those samples, pursuant to Proposition 69 constitute an excessive government intrusion into

2 their private and personal genetic information in that it is neither supported by a legitimate state

3 purpose outweighing plaintiffs' privacy interests nor narrowly tailored to meet any legitimate

4 state purpose, thus violating plaintiffs' right to privacy under the Fourteenth Amendment of the

5 United States Constitution?

6

c. Do the compulsory sampling and analysis of the DNA of members of the

7 plaintiff classes pursuant to the requirements of Proposition 69, without a requirement of any

8 pre·testing due process protections or the mandatory expungement of data and samples from

9 persons against whom charges are dropped, who are acquitted, whose convictions are reversed,

10 or who are otherwise adjudicated to be innocent, violate the Due Process Clause of the

11 Fourteenth Amendment to the United States Constitution?

12

39. The claims of the named plaintiffs are typical of the claims of members of the

13 classes whom they represent.

14

AO. The named plaintiffs will fairly and adequately protect the interests ofthe

15 plaintiff classes. The named plaintiffs have no interest that is now or may be potentially

16 antagonisticto the interests of the class. The attorneys representing the plaintiffs include

17 experienced civil rights attorneys and are considered able practitioners in federal constitutional

18 and statutory adjudications.

19

41. Defendants have threatened to act and will continue to act on grounds

20 generally applicable to the plaintiff classes, thereby making final injunctive and declaratory

21 relief appropriate to the classes as a whole.

22

THE MATTERS IN CONTROVERSY

23

Tbe Development and Sbaring of DNA Databases

24

42. Before the passage of Proposition 69, California law provided for mandatory

25 DNA testing of persons who had been convicted of certain serious felony offenses and the

26 inclusion of data derived from those tests in a state·wide database. Only persons who had

27 actually been convicted of one of the enumerated felonies were subject to this compulsory

28 testing program, and even in those cases the law provided important due process protections to

CLASS ACTION COMPLAINT FOR DECLARATORY AND

14

INJUNCTIVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 15 of 38

1 those whose DNA was taken. For example, the pre-Proposition 69 California statute provided

2 for the automatic expungement of the physical DNA sample and associated database entries for

3 any person whose conviction was reversed.

4

43. California routinely shares DNA profiles and other infonnation gathered

5 through its DNA testing programs with law enforcement agencies elsewhere. For example,

6 California participates in a nationwide program, supervised by the Federal Bureau of

7 Investigation, to share automatically the contents of the California DNA Database through the

8 nationwide Combined DNA Index System ("CODIS") database. The CODIS database currently

9 contains DNA infonnation on more than 1.8 million individuals, including data derived from

10 state and federal DNA sampling programs. This data is widely available to law enforcement

11 agencies throughout the United States and is also made available to international law

12 enforcement agencies, such as Interpol, and the national law enforcement agencies of other

13 countries. Until recently, the federal authorizing legislation for the CODIS system pennitted

14 only DNA data taken from persons actually convicted of a felony to be included in the system;

15 however, that legislation was recently amended to pennit the inclusion of many arrestees as

16 well.

17

44. The sharing of DNA profiles and other information gathered through DNA

18 testing is not limited to the CODIS system. Law enforcement agencies in California are also

19 authorized to share DNA profiles and other information with one another, and with law

20 enforcement agencies in other states, through cross-references of individual state and local

21 databases.

22

45. The purpose of the collection and sharing of data in CODIS and other DNA

23 databases is to provide DNA profiles that can be used to match against DNA found in crime-

24 scene samples, in order to identify suspects in those crimes. The mandatory collection of DNA

25 from arrestees in California is intended to provide law enforcement with broad access to

26 otherwise unavailable infonnation about those individuals that might link them to offenses other

27 than thosefor which they have been arrested.

28

CLASS ACTION COMPLAINT FOR DECLARATORY AND

15

INJUNCTIVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 16 of 38

1

46. The title and preamble of Proposition 69 imply that the collection and sharing

2 of data through DNA databases assists in clearing criminal suspects and proving innocence.

3 This is untrue. In fact, while DNA has proven to be an invaluable tool in exonerating persons

4 accused of crime, such exoneration nearly always results from a comparison of the accused

5 person's own DNA with samples from the crime scene. Persons seeking exoneration through

6 this method are generally eager to volunteer their DNA for purposes of such a comparison.

7 DNA databases, in contrast, represent sources of evidence used by law enforcement to identify

8 new suspects from among the general popUlation.

9

Proposition 69

10

47. Proposition 69, a copy of which is attached as Exhibit A hereto, was

11 approved by the California electorate in the November 2, 2004 general election, in accordance

12 with Article II, Section 8 of the California Constitution.

13

48. Proposition 69 amended Sections 295 et seq. of the California Penal Code.

14 The amended statute includes several important new provisions that dramatically expand the

15 reach of the state's mandatory testing regime, while at the same time eliminating key due

16 process protections that had previously existed.

17

49. The declared purpose of the searches and seizures required by Proposition 69

18 is to further law enforcement goals. Thus, the initiative states that

19

"Law enforcement should be able to use the DNA Database and
Data Bank Program to substantially reduce the number of

20

unsolved crimes; to help stop serial crime by quickly comparing

DNA profiles of qualifying persons and evidence samples with as

21

many investigations and cases as necessary to solve crime and

apprehend perpetrators; to exonerate persons wrongly suspected

22

or accused of crime; and to identify human remains."

23 Proposition 69 § lI(c). Proposition 69 further asserts that expanded DNA testing is "[t]he most

24 reasonable and certain means" of enhancing the law enforcement interests in identifying and

25 apprehending criminal offenders. Id. §§ II(d)(l)-(4).

26

50. As amended by Proposition 69, California's DNA testing statute mandates

27 the compulsory collection of DNA samples from all persons who are convicted or adjudicated

28 guilty of any felony offense; such post-conviction sampling is no longer limited to persons who

CLASS ACTION COMPLAINT FOR DECLARATORY AND

16

INJUNCTIVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 17 of 38

1 are convicted of sex offenses and other serious and violent felonies. Further, a new provision of c

2 the statute now requires DNA testing of "any adult person who is arrested for or charged with"

3 any felony offense of any kind. Persons arrested for (or charged with) murder, voluntary

4 manslaughter, or any offense under Section 290 of the Penal Code - or attempt to commit any

5 of those felonies - are immediately subject to compulsory DNA testing. For persons arrested

6 for all other felony offenses, compulsory testing is to take place beginning on January 1, 2009.

7

51. The initiative is expressly retroactive, requiring collection "regardless of

8 when the crime charged or committed became a qualifying offense pursuant to this chapter ...."

9 Proposition 69 § III(4)(b)(1). Thus, all persons who have ever been arrested for, or charged

10 with, murder, voluntary manslaughter, or Section 290 offenses (or attempts to commit those

11 felonies) are now required to have their DNA sampled and analyzed. All persons who have ever

12 been arrested for, or charged with, any other felonies will be required to submit to DNA testing

13 in 2009. For arrests occurring after enactment, sampling is to occur "immediately following

14 arrest, or during the booking or intake or reception center process or as soon as administratively

15 practicable after arrest, but, in any case, prior to release on bail or pending trial or any physical

16 release from confinement or custody." ld. § III(4)(a)(l)(A). For anyone else whose DNA has

17 not yet been obtained, "the court shall order the person to report within five calendar days to a

18 county jail facility ... or other designated facility to provide the required specimens ...." ld.

19 § III(4)(a)(1)(B). The initiative affords the courts no discretion in issuing such orders; nor are

20 there any stated exceptions (e.g., adjudicated innocence) from this mandate.

21

52. Proposition 69 establishes a presumption that samples will be taken through

22 the "buccal swab" method, through which inner cheek cells are taken from scraping the inside

23 of the mouth. However, samples may be taken through other methods instead (e.g., blood

24 sampling) at the direction of the California Department of Justice. ld. § III(I)(e). The

25 Department ofJustice is directed to provide appropriate equipment, materials, and instructions

26 to each facility at which samples are to be taken. Once taken, the samples are to be forwarded

27 to the DNA Laboratory ofthe Department of Justice, which is to arrange for the DNA analysis

28 to be performed, either by its own personnel or through third-party contractors. After the

CLASS ACTION COMPLAINT FOR DECLARATORY AND

17

INJUNCTIVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 18 of 38

1 analysis is completed, the results are entered into the state's DNA Database and will be shared

2 freely with other law enforcement agencies nationally and internationally, including (but not

3 limited to) through the CODIS system.

4

53. Proposition 69 does not effectively limit the types of genetic information to

5 be collected and maintained from the biological sample and does not require destruction of the

6 underlying sample after the DNA analysis has taken place. Instead, the physical sample is

7 retained indefinitely for potential further analysis. Thus, Proposition 69 allows the state to

8 maintain all genetic information that can be derived from a person's DNA.

9

54. As amended by Proposition 69, California law no longer provides for the

10 automatic expungement of data and samples taken from persons whose convictions are

11 overturned; nor is there any provision for automatic expungement of samples taken from

12 persons against whom charges are dropped or who are acquitted or otherwise found to be

13 innocent of the offense for which they were arrested. Instead, such a person may file a petition

14 for such expungement in the court of the county where the arrest occurred. However, no such

15 petition may be granted unless the court is able to certify that neither the prosecuting attorney

16 nor the Department of Justice has objected to it; thus, the initiative allows the prosecuting

17 attorney and Department of Justice, or either of them, to block expungement merely by filing an

18 objection. Further, the initiative expressly provides that "[t]he court has the discretion to grant

19 or deny the request for expungement," and that "denial of a request for expungement is a

20 nonappealable order and shall not be reviewed by petition for writ." Thus, the court's ability to

21 deny such a petition is completely unfettered and unreviewable. Moreover, no expungement

22 petition may be granted until at least] 80 days following the filing of the petition, and no limits

23 are imposed on the use of the petitioner's DNA data or dissemination of that data to other law

24 enforcement agencies during that 180-day period. And even if the petition for expungement is

25 granted, no mechanism is provided for the return ofthe petitioner's DNA sample, profile, or

26 other information from other law enforcement agencies with whom it has been shared.

27

55. Proposition 69 allows for the sharing of DNA profiles and/or the underlying

28 biological samples with a broad array of international, federal, state and local law enforcement

CLASS ACTION COMPLAINT FOR DECLARATORY AND

] 8

INJUNCTIVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 19 of 38

1 officers, including private crime laboratories and other third parties that have been approved by .

2 the Department of Justice.

3

The Nature Of DNA Testing And The Impact On Plaintiffs

4

56. Under Proposition 69, the specimens that are taken from plaintiffs and others

5 will be processed to extract samples of their DNA, which are then analyzed to generate DNA

6 profiles. DNA (an abbreviation for "deoxyribonucleic acid") is the cellular material that

7 contains each person's unique genetic code.

8

57. The DNA profiles that are currently stored in law enforcement databases are

9 sometimes referred to as "DNA fingerprints." This is a misnomer, for although fingerprints and

10 DNA resemble each other in that each is unique for each individual person, the seizure and

11 analysis of DNA samples differs fundamentally from the mere taking of a fingerprint.

·12 Fingerprinting involves the creation of an image or impression of the external physical

13 conformation of the fingertips, and a fingerprint reveals nothing more about the person than the

14 unique patterns on the skin of his or her fingers. Thus, while fingerprints can be used

15 effectively to provide evidence of the identity of a person, they reveal no other information

16 about that person.

17

58. DNA, in contrast, is not directly displayed on the surface of the body; it is,

18 rather, a microscopic arrangement of chemical constituents within the nucleus of a human cell.

19 Once those chemical constituents are analyzed, they can reveal a vast array of highly private

20 information about that person, including, his or her relationship to other persons, ethnic traits

21 and other physical characteristics, genetic defects, and propensity to certain diseases, such as

22 certain types of cancers. The amount of information about a person that can be revealed by

23 DNA is expanding every year. Some scientists have suggested that DNA analysis can be used

24 to predict personality traits, propensity to antisocial behavior, and sexual orientation, as well as

25 an ever-expanding variety of existing and future health conditions and other physical traits.

26

59. Due to the expansive nature ofthe information available from DNA samples,

27 the compulsory seizure of such samples from plaintiffs provides law enforcement personnel and

28 other government officials with direct access to the most fundamentally private personal

CLASS ACTION COMPLAINT FOR DECLARATORY AND

19

INJUNCTIVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 20 of 38

information that any person possesses. Such sampling invades a location - the genetic code

2 locked within each person's cells - in which, absent unusual circumstances, the average person

3 has the very highest possible expectation of privacy.

4

Declaratory and Injunctive Renef Allegations

5

60. An actual and substantial controversy exists between plaintiffs and

6 defendants as to their respective legal rights and duties. Plaintiffs contend that, as applied to

7 them and to others in the plaintiff classes, Proposition 69 is unlawful and unconstitutionaL

8 Defendants contend the opposite.

9

61. If not enjoined by the Court, defendants will implement Proposition 69 in

10 derogation of the rights of plaintiffs and others in the plaintiff classes. Such implementation

11 will impose irreparable injury on the plaintiffs and other class members. Plaintiffs have no

12 plain, speedy, and adequate remedy at law.

13

COUNT I: VIOLATION OF THE FOURTH AMENDMENT TO THE UNITED

STATES CONSTITUTION (42 U.S.C. § 1983)
14

62. Plaintiffs hereby reallege and incorporate by reference the allegations

15

contained in Paragraphs 1 through 61 as though fully set forth herein.

16

63. The Fourth Amendment to the United States Constitution protects the right of

17

people to be free from unreasonable searches and seizures and prohibits searches or seizures for

18

law enforcement purposes absent reasonable individualized suspicion.

19

64. Proposition 69 mandates the compulsory extraction of biological samples

20

from plaintiffs and other members of the plaintiff classes, and the analysis of those samples for

21

generalized law enforcement purposes, without requiring any showing of probable cause or

22

individualized suspicion linking the person at issue to any specific crime for which his or her

23

DNA is relevant.

24

65. The compulsory and warrantless extraction of biological samples from

25

plaintiffs and members ofthe plaintiff classes is inherently "unreasonable" within the meaning

26

of the Fourth Amendment and is not supported by any recognized exception to the Fourth

27

Amendment's warrant and probable cause requirements. The subsequent DNA analysis of those

28

samples also constitutes an unreasonable search within the meaning of the Fourth Amendment

CLASS ACTION COMPLAINT FOR DECLARATORY AND

20

INJUNCTIVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 21 of 38

1 and is also not justified by any recognized exception to the warrant and probable cause

2 requirements. As applied to the plaintiff classes, Proposition 69 is accordingly unconstitutional.

3

COUNT II: VIOLATION OF SUBSTANTIVE DUE PROCESS UNDER THE

FOURTEENTH AMENDMENT TO THE CONSTITUTION (42 U.S.C. § 1983) 4

66. Plaintiffs hereby reallege and incorporate by reference the allegations

5

contained in Paragraphs 1 through 65 as though fully set forth herein.

6

67. The Due Process Clause of the Fourteenth Amendment to the United States

7

Constitution provides a substantive right to privacy with respect to personal matters such as

8

medical and genetic information.

9

68. Because Proposition 69 requires government intrusion into private and

10

personal genetic information of plaintiffs by procuring, analyzing, indefinitely retaining and

11

disseminating their biological samples and DNA information, the Fourteenth Amendment to the

12

United States Constitution requires that the intrusion be supported by a legitimate governmental

13

purpose that outweighs plaintiffs' privacy interests and that the intrusion be narrowly tailored to

14

meet that legitimate purpose.

15

69. California's interest in maintaining biological samples and DNA profiles

16

from arrestees and persons no longer under supervision of the criminal justice system does not

17

outweigh plaintiffs' privacy interests with respect to their genetic material; nor is Proposition 69

18

narrowly tailored to further the state's interest. Application of Proposition 69 to plaintiffs and

19

other members of the plaintiff classes accordingly violates their rights to privacy and substantive
20

due process under the Fourteenth Amendment to the United States Constitution.

21

COUNT III: VIOLATION OF PROCEDURAL DUE PROCESS UNDER THE

22

FOURTEENTH AMENDMENT TO THE CONSTITUTION (42 U.S.C. § 1983}

23

70. Plaintiffs hereby reallege and incorporate by reference the allegations

24 contained in Paragraphs 1 through 69 as though fully set forth herein.

25

71. The Due Process Clause of the Fourteenth Amendment to the United States

26 Constitution prohibits the deprivation of life, liberty or property without due process of law.

27

72. Proposition 69 violates procedural process in numerous respects, including

28 the following:

CLASS ACTION COMPLAINT FOR DECLARATORY AND

21

INJUNCTIVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 22 of 38

1

a. Proposition 69 requires the deprivation of the arrestee plaintiffs' property

2 and liberty interests in their own genetic material without notice or any opportunity to be heard

3 as to whether the arrest giving rise to the compulsory collection of their biological samples was

4 lawful.

5

b. Proposition 69 denies plaintiffs any opportunity to be heard as to

6 whether any legitimate reason exists for the compulsory sampling and analysis of their DNA for

7 law enforcement purposes;

8

c. Proposition 69 denies plaintiffs meaningful remedies to assure complete,

9 certain, and immediate expungement of their samples, DNA profiles, and other data should their

10 arrests not lead to a felony conviction or if any conviction is overturned;

11

73. Because it fails to afford such basic procedural protections to plaintiffs and

12 other members of the plaintiff classes who are subject to its mandatory testing provisions,

13 Proposition 69 violates the Due Process Clause of the Fourteenth Amendment to the United

14 States Constitution.

15

RELIEF SOUGHT

16

WHEREFORE, Plaintiffs, on behalf ofthemselves and the plaintiff class, seek

17 the following relief:

18

1. A declaration that Proposition 69 is unconstitutional as applied to persons

19 who are subject to its compulsory sampling and testing provisions solely as a result of their

20 status as persons who have been arrested for or charged with a felony.

21

2. A declaration that Proposition 69 is unconstitutional as applied to persons

22 who are subject to its compulsory sampling and testing provisions solely by reason of their

23 status as persons who have been convicted of a felony, in those instances in which the formerly

24 convicted person is no longer incarcerated or otherwise subject to the continued supervision of

25 the criminal justice system.

26

3. A preliminary and permanent injunction:

27

a) enjoining defendants from the compUlsory collection, DNA

28

analysis, and/or retention of biological samples from any member

CLASS ACTION COMPLAINT FOR DECLARATORY AND

22

INJUNCTIVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 23 of 38

1

of the Arrestee Class until and unless he or she is actually

2

convicted of a felony offense, unless such sampling is supported

3

by a warrant issued on probable cause;

4

b) enjoining defendants from the compulsory collection, DNA

5

analysis, and/or retention of biological samples from any member

6

ofthe Formerly Convicted Persons Class absent a warrant issued

7

on probable cause;

8

c) enjoining defendants from assisting any other state or local law

9

enforcement official or third party in collecting, analyzing, or

10

retaining biological samples, or DNA data obtained from such

11

samples, from any member ofthe Arrestee Class until and unless

12

he or she is actually convicted of a felony offense, unless such

13

sampling, analysis, and/or retention is supported by a warrant

14

issued on probable cause;

15

d) enjoining defendants from assisting any other state or local law

16

enforcement official in collecting, analyzing, or retaining

17

biological ,samples, or DNA data obtained from such samples,

18

from any member of the Formerly Convicted Persons Class,

19

unless such sampling, analysis, and/or retention is supported by a

20

warrant issued on probable cause;

21

e) ordering defendant Lockyer to inform and instruct all law

22

enforcement officials in the State of California that any

23

application of Proposition 69 to member ofthe plaintiff classes,

24

absent a new felony conviction or a warrant issued on probable

25

cause, is unconstitutional and unlawful and may not proceed; and

26

f) instructing defendants to promptly destroy any biological samples

27

from members of the plaintiff class that are in their possession or

28

that have been, or in future are, forwarded to the Department of

CLASS ACT10N COMPLAlNTFOR DECLARATORY AND

23

lNJUNCTIVE RELlEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 24 of 38

1

Justice (or any entity with which it has contracted), and to

2

expunge all associated DNA profiles and other data from all state

3

and local databases and other files, unless the submitting law

4

enforcement agency has certified that the sample was taken either

5

(a) following conviction for a felony offense or (b) pursuant to a

6

warrant issued upon probable cause or other court order issued

7

under authority other than Proposition 69.

8

g) Costs and attorneys fees incurred in this action pursuant to 42

9

U.S.C. § 1988 or other applicable authority.

10

h) Such other and further relief as may be just and proper..

11

12

"13

COVINGTON & BURLING

14

15

16

Attorneys

17

18

SONYA D. WINNER, SBN 200348

19

DONALD W. BROWN, SBN 83347 KATE S. STEINHEIMER, SBN 226220

20

COVINGTON & BURLING One Front Street

21

San Francisco, California 94111 Telephone: (415) 591-6000

22

Facsimile: (415) 591-6091

23

JULIA HARUMI MASS, SBN 189649

24

MARGARET C. CROSBY, SBN 56812

MAYA L. HARRIS, SBN 172115

25

AMERICAN CIVIL LIBERTIES UNION

FOUNDAnON OF NORTHERN

26

CALIFORNIA, INC.

1663 Mission Street, Suite 460

27

San Francisco, CA 94103

Telephone: (415) 621-2493

28

Facsimile: (415) 255-8437

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

24

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 25 of 38

1

2

PETER ELIASBERG, SBN 189110

3

MARK ROSENBAUM, SBN 59940

RICARDO D. GARCIA, SBN 178111

4.

ACLU FOUNDATION OF SOUTHERN

CALIFORNIA

5

1616 Beverly Boulevard

Los Angeles, CA 90026

6

Telephone: (213) 977-9500

7

Facsimile: (213) 250-3919

8

JORDAN BUDD, SBN 144288

AMERlCAN CIVIL LIBERTIES UNION

9

FOUNDATION OF SAN DIEGO AND

IMPERlAL COUNTIES

10

P.O. Box 87131

11

San Diego, California 92138 Telephone: (619) 232-2121

12

Facsimile: (619) 232-0036

13

Attorneys for Plaintiffs

14

JEFFREY D. SCHWARTZ, SBN 80643

15

360 Ritch Street, #201

16

San Francisco, CA 94107

Telephone: (415) 777-3170

17

Facsimile: (415) 681-8643

18

Attorney for Plaintiff

Rachel Delucci-Youngberg 19

20

21

22

23

24

25

26

27

28

CLASS ACTION COMPLAINT FOR DECLARATORY AND

25

INJUNCTIVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 26 of 38

1

CERTIFICATION OF INTERESTED ENTITIES OR PERSONS

2

Pursuant to Civil L.R. 3-16, the undersigned cer,tifies that as of this date, other

3 than the named parties, there is no such interest to report.

4
DATED: J)~ ~ ZCO'f
5

COVINGTON & BURLING

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CLASS ACTION COMPLAINT FOR DECLARATORY AND 26
INJUNCTIVE RELIEF

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 27 of 38

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 28 of 38

TEXT OF PROPOSED LAWS

Proposition 68 (cont.)

SEC. 8.3. (a) Funds appropriated pursuant 10 the Gaming Revenue Act of2004 shall not be deemed to be part of "total allocations to school distdcts and communiry college districts from General Fund proceeds ofta:xes appropriated pursuant to Article XU! B" as that term is used in paragraphs (2) and (3) ofsubdivision (b) of Section 8.
(b) Revenues derived from payments made pursuant to the Gaming Revenue Act of2004 shall not be deemed to be "General Fund revenues, which may be appropriaied pursuant to Article XU! B" as that term is used in paragraph (1) ofsubdivision (b) of Section 8 nor shall they be considered in the determination of "per capita General Fund revenues" as that term is used in paragraph (3) ofsubdivision (b) and in subdivision (e) ofSection 8.
SEC. 14. Section 14 is added to Article XJI1 B of the California Constitution, to read:
SEC. 14. (a) For purposes of this article. "proceeds of taxes" shall not include the revenues created by the Gaming Revenue Act of 2004.
(b) For purposes of this article, "appropriations subject to limitation" of each emiry of government shall not include appropriations of revenues from the Gaming Revenue Trust Fund created by the Gaming Revenue Act of 2004.
SEC. 15. Amendment
The statutory provisions of this act may be amended only by a vote of two-thirds of the membership of both houses of the Legislature. All statutory amendments to this act shall be to further the act and must be consistent with its purposes.
SEC. 16. Consistency With Other Ballot Measures
The provisions of this act are not in conflict with any initiative measure that appears on the same ballot that amends the California Constitution to authorize gaming of any kind. In the event that this act and another measure that amends the California Constitution to permit gaming of any kind are adopted at the same election, the courts are

hereby directed to reconcile their respective statutory provisions to the greatest extent possible and to give effect to every provision of both measures.
SEC. 17. Additional Funding
No moneys in the Gaming Revenue Trust Fund shall be used to supplant federal, state, or local funds used for child protectiVe and foster care services, neighborhood sheriffs and police officers, and firefighters but shall be used exclusively to supplement the total amount of federal, state, and local funds allocated for child protective services and foster care which improve the educational outcomes of abused and neglected children and children in foster care and for additional sheriffs, police officers, and firefighters.
SEC. 18. Judicial Proceedings
In any action for declaratory or injunctive relief, or for relief by way of any extraordinary writ, wherein the construction, application, or validity of Section 3 of this act or any part thereof is called into question, a court shall not grant any temporary restraining order, preliminary or permanent injunction, or any peremptory writ of mandate. certiorari, or prohibition, or other provisional or permanent order to restrain, stay, or otherwise interfere with the operation of the act except upon a finding by the court, based on clear and convincing evidence, that the public interest will not be prejudiced thereby, and no such order shall be effective for more than 15 calendar days. A court shall not restrain any part of this act except the specific provisions that are challenged.
SEC. 19. Severability
If any provision of this act or the application thereof to any person or circumstances is held invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of . this act that can be given effect without the invalid or unconstitutional provision Or application, and to this end the provisions of this act are severable.

Proposition 69

This initiative measure is submitted to the people in accordance with the provisions of Section 8 of Article 11 of the California Constitution.
This initiative measure amends a section of the Govemment Code, and amends, repeals, and adds sections to the Penal Code; therefore, existing provisions proposed to be deleted are printed in 8ll'il!ee~ll!)'fle and new provisions proposed to be added are printed in italic rype to indicate that they are new.
PROPOSED LAW SECTION l. Title
(8) This measure shall be known and referred to as the DNA Fingerprint, Unsolved Crime and Innocence Protection Act.
SEC. II. Findings and Declarations of Purpose
The people ofthe State of California do hereby find and declare that:
(8) Our communities have a compelling interest in protecting themselves from crime.
(b) There is critical and urgent need to provide law enforcement officers and agencies with the latest scientific technology available for accurately and expeditiously identifying, apprehending, arresting, and convicting criminal offenders and exonerating persons wrongly suspected or accused of crime.
(c) Law enforcement should be able to use the DNA Database and Data Bank Program to substantially reduce the number of unsolved crimes; to help stop serial crime by quickly comparing DNA profiles of qualifying persons and evidence samples with as many investigations and cases as necessary to solve crime and apprehend perpetrators; to exonerate persons wrongly suspected or accused of crime; and to identify human remains.
(d) Expanding the statewide DNA Database and Data Bank Program is:
(I) The most reasonable and certain means to accomplish effective crime solving in California, to aid in the identification of missing and unidentified persons, and to exonerate persons wrongly suspected or

accused of crime;
(2) The most reasonable and certain means to solve crime as effectively as other states which have found that the majority of violent criminals have nonviolent criminal prior convictions, and that the majority of cold hits and criminal investigation links are missed if a DNA database or data bank is limited only to violent crimes;
(3) The most reasonable and certain means to rapidly and substantially increase the number of cold hits and criminal investigation links so that serial crime offenders may be identified, apprehended and convicted for crimes they committed in the past and prevented from committing future crimes that would jeopardize public safety and devastate lives; and
(4) The most reasonable and certain means to ensure' that California's Database and Data Bank Program is fully compatible with, and a meaningful part of, the nationwide Combined DNA Index System (CODlS).
(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 and thus prevent time-consuming and expensive investigations of innocent persons.
(f) The state has a compelling interest in the accurste identification of criminal offenders, and it is reasonable to expect qualifying offenders to provide forensic DNA samples for the limited identification purposes set forth in this chapter.
(g) Expanding the statewide DNA Database and Data Bank Program is the most reasonable and certain means to ensure that persons wrongly suspected or accused of crime are quickly exonerated so that they may reestablish their standing in the community. Moreover, 8 person whose sample has been collected for Database and Data Bank purposes must be able to seek expungement of his or her profile from the Database and Data Bank.
SEC. Ill. DNA and Forensic Identification Database and Data Bank Act

Text of Proposed Laws I 135

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TEXT OF PROPOSED LAWS

Proposition 69 (cont.)

SEC. L Section 295 of the Penal Code is amended to read:
295. (a) This chapter shall be known and may be cited as the DNA and Forensic Identification Dsis Bass Database and Data Bank Act of 1998, as amended.
(b) The Legislsh<Fe fifHls tffie ileeltusa people of the State af
Califarnia set forth all of the following:
(I) Deoxyribonucleic acid (DNA) and forensic identification analysis is a useful law enforcement tool for identifying and prosecuting sem!sl 111"':\ .ielelll effeflsefB criminal offenders and exonerating the innocent.
(2) It is the intent of the LegislsRlFB people ofthe State ofCalifornia , in order to further the purposes of this chapter, to require DNA and forensic identification ~ data bank samples from all persons. includingjuveniles. for the felony and misdemeanor offenses described in subdivision (a) of Section 296.
(3) It is necessary to enact this act defining and governing the state's DNA and forensic identification database and ~ data bank in order to clarify existing law and to enable the state's DNA and ~ ieefl,ifieeliell esteeses ella e!aterllllllit Jlfeg_ Forensic 1dentification Database and Data Bank Program to become a more effective law enforcement tool.
(c) The pUrpose of the DNA and ffiullsie iaBlltifieatislI ealellanlt Forensic 1dentification Database an4 Data Bank Program is to assist federal, state, and local criminal justice and law enforcement agencies within and outside California in the expeditious and accurate detection and prosecution of individuals responsible for sex offenses and other ~ crimes, the exclusion of suspects who are being investigated for these crimes, and the identification of missing and unidentified persons, particu larly abducted children..
(d) Like the collection offingerprints. the collection of DNA samples pursuant to this chapter is an administrative requirement to assist in the accurate identification ofcriminal offenders.
(e) Unless otherwise requested by the Department ofJustice. collection of biological samples for DNA analysis from qualifYing persons under this chapter is limited to collection of inner cheek cells of the mouth (buccal swab samples).
(f) The Department ofJustice DNA Laboratory may obtain through federal. state, or local law enforcement agencies blood specimens from qualifYing persons as defined in subdivision (a) of Section 296. and according to procedures set forth in Section 298. when it is determined in the discretion of the Department ofJustice that such specimens are necessary in a particular case or would aid the department in obtaining an accurate forensic DNA profile for identification purposes.
~ (g) The Department of Justice, through its DNA Laboratory, shall be responsible for the management and administration of the state's DNA titt*t!ellss 1mB Belaellll!, iBelllilleelitl" pret;1'IlIft DNA and Forensic Identification Database and Data Bank Program and for liaison with the Federal Bureau oflnvestigation (FBI) regarding the state's participation in a national or international DNA database and data bank program such as the FBI's Combined DNA Index System (CODIS) that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories nationwide.
W (h) The Department of Justice shall be responsible for imple-
menting this chapter.
(1) The Department of Justice DNA Laboratory, the Department of Corrections, the Board of Corrections, and the Department of the Youth Authority ~ may adopt policies and enact regulations for the implementation of this chapter, as necessary, to give effect to the intent and purpose of this chapter, and to ensure that ~ data bank blood specimens, ~ buccal swab samples, and thumb and palm print impressions as required by this chapter are collected from qualifying ~ persons in a timely manner, as soon as possible after arrest. conviction, or a plea or finding of guilty, no contest, or not guilty by reason of insanity, or upon ~ any disposition rendered in the case of a juvenile who is etljuages e afs ef the ee~fI adjudicated under Section 602 of the Welfare and Institutions Code for commission of any of this chapter's enumerated qualifying offenses, including attempts. or when it is determined that a qualifying ~ person has not given the required specimens, samples or print impressions. ~ Before adopting any policy or regulation implementing this chapter. the Department of Corrections, the Board of Corrections. and the Department of the Youth Authority shall seep! ilia fleJieies eftEi regula tislI" ter ifllllJernelltifig !lIia eliBJller "ill; seek advice from and tit-eeft~ consult with the Department of Justice DNA Laboratory Director.
I 136 Te.xt of Proposed Laws

(2) Given the specificity of this chapter. and except as provided in subdivision (c) of Section 298.1. any administrative bulletins. notices. regulations. policies, procedures. or guidelines adopted by the Department of Justice and its DNA Laboratory, the Department of Corrections. the Department of the Youth Autharity. or the Board of Corrections for the purpose of the implementing this chapter are exempt from the provisions of the Administrative Procedure Act. Chapter 3.S (commencing with Section JJ340), Chapter 4 (commencing with Section JJ 370). Chapter 4.S (commencing with Section 11400). and Chapter S (commencing with Sec/ion 11SOO) ofPart 1 of Division 3 of Title 2 of the Government Code.
(3) The Department of Corrections , the Board of Corrections, and the Department of the Youth Authority shall submit copies of any of their policies and regulations with respect to this chapter to the Department of Justice DNA Laboratory Director, and pst'iBElieally quarterly shall submit to the director written reports updating the director as to the status of their compliance with this chapter.
(4) On or before April 1 in the year follOWing adoption of the act that added this paragraph, and quarterly thereafter. the Department af Justice DNA Laboratory shall submit a quarterly report to be published electronically on a Department af Justice website and made available for public review. The quarterly report shall state the total number af samples received, the number afsamples receivedfrom the Department of Corrections. the number of samples folly analyzed for inclusion in the CaDIS database. and the number of profiles uploaded into the CaDIS database for the reporting period. Each quarterly report shall state the /Otal. annual. and quarterly number of qualifYing profiles in the Deparrment ofJustice DNA Laboratory data bank both from persons and case evidence, and the number of hits and investigations aided. as reported to the National DNA Index System. The quarterly report shall also confirm the laboratorys accreditation status and participation in CaDIS and shall include an accounting of the funds collected. expended. and disbursed pursuant to subdivision (le).
(S) On or before April 1 in the year following adoption of the act that added this paragraph. and quarterly thereafter, the Department of Corrections shall submit a quarterly report to be published electronically on a Department of Corrections website and made avaUable for public review. The quarterly report shall state the total number of inmates housed in State correctional facilities. including a breakdown ofthose housed in State prisons, camps, community correctionalfacUities, and otherfacilities such as prisoner matherfacilities. Each quarterly report shall also state the total. annual. and quarterly number of inmates who have yetta provide specimens. samples and print impressions pursuant to this chapter and the number of specimens, samples and print impressions that have yet to beforwarded to the Department ofJustice DNA Laboratory within 30 days of collection.
t41 (i) (I) When the specimens, samples, and print impressions
required by this chapter are collected at a county jail or other county ~ facility, including a private community correctional facility, the county sheriff or chief admini strative officer of the county jailor other ~ facility shall be responsible for ensuring all of the following:
(A) The requisite specimens, samples, and print impressions are collected from qualifying ~ persons immediately following arrest. conviction. or adjudication. or during the booking or intake or reception center process at that facility, or reasonably promptly thereafter.
(B) The requisite specimens, samples, and print impressions are collected as soon as administratively practicable after a qualifying ~ person reports to the facility for the purpose of providing specimens, samples, and print impressions.
(C) The specimens, samples, and print impressions collected pursuant to this chapter are forwarded immediately to the Department of Justice, and in compliance with department policies.
(2) The specimens, samples, and print impressions required by this chapter shall be collected by a person using a collection kit approved by the Department of Justice and in accordance with the requirements and procedures set forth in subdivision (b) of Section 298.
(3) The counties shall be reimbursed for the costs of obtaining specimens, samples, and print impressions subject to the conditions and limitations set forth by the Department of Justice policies governing reimbursement for collecting specimens, samples, and print impressions pursuant to this chapter,
(j) The trial court may order that a portion of the costs assessed pursuant to Section 1203.1c, 1203,1e, or 1203.1m include a reason-

Case 3:04-cv-05161-FMS Document 1-2 Filed 12/07/2004 Page 30 of 38

TEXT OF PROPOSED LAWS

Proposition 69 (cant.)

able portion of the cost of obtaining specimens, samples, and print impressions infurtherance of this chapter and thefunds collected pursuant to this subdivision shall be deposited in the Department of Justice DNA Testing Fund as created by paragraph (2) ofsubdivision (b) of Section 290.3.
fIl1 (k) Any funds appropriated by the Legislature to implement this
chapler, including funds or costs ordered pursuant to subdivision (j) to reimburse counties, shall be deposited into the Department of Justice DNA Testing Fund as created by paragraph (2) of subdivision (b) of Section 290.3.
fft1 (1) The Department of Justice DNA Laboratory shall be known
as the Jan Bashinski DNA Laboratory.
SEC. 2. Section 295.1 of the Penal Code is amended to read:
295.1. (a) The Department of Justice shall perform DNA analysis and other forensic identification analysis pursuant to this chapter only for identification purposes.
(b) The Department ofJustice Bureau ofCriminal Identification and Information shall perform examinations of palm prints pursuant to this chapter only for identification purposes,
(c) The DNA Laboratory of the Departinent of Justice shall serve as a repository for blood specimens and t!!Hi¥e buccal swab and other biological samples collected, and shall analyze specimens and samples, and store, compile, correlate, compare, maintain, and use DNA and forensic identification profiles and records related to the following:
(I) Forensic casework andforensic unknowns.
(2) Known and evidentiary specimens and samples from crime scenes or criminal investigations.
(3) Missing or unidentified persons.
(4) ~ Persons required to provide specimens, samples, and print impressions under this chapter.
(5) Legally obtained samples.
~ (6) Anonymous DNA records used for training, research, statistical analysis of populations, quality assurance, or quality control.
(d) The computerized data bank and database of the DNA Laboratory of the Department of Justice shall include files as necessary to implement this chapter.
(e) Nothing in this section shall be construed as requiring the Department of Justice to provide specimens or samples for quality control or other purposes to those who request specimens or samples.
(j) Submission ofsamples, specimehs, or profiles for the state DNA Database and Data Bank Program shall include i'!formation as required by the Department ofJustice for ensuring search capabilities and compliance with National DNA Index System (NDIS) standards.
SEC. 3. Section 296 of the Penal Code is amended to read:
296. (a) The following persons shall provide buccal swab samples, rightthumbprinlS, and a full palm print impression of each hand, and ally blood specimens or other biological samples requiredpursuant to this chapter for law enforcement identification analysis:
fa1 (1) Any person, including any juvenile, who is convicted of or
pleads guilty or no contest 10 any felony offense el!) sf!flc felle ,.lit!: efflMs, or is found not guilty by reason ofinsanity ohny ef!flc fellew 1ft!; Brimss, felony offense, or any juvenile who is adjudicated under Section 602 of the Welfare and institutions Code for committing any felony offense. SHall, rC!;8fillcss sf SCI!*cl!ce il!!pcseil af iliBjlssitiell rCIl scree; Be rCIl:l:!ireil'El poe .iae t ,6 BpceimCIlB sf131eee; B salloe SBfflple, ri!;HI lflilffiep.il!lS, !llIelS ffill pall!! I"filll iffiprSBBlel! ahaSH HMd fef la .. Bftfencfflcllt iecftliflcelillll IIl'IaJ)si8!
(,6,) Aft) eWeflec er aUcffiplle cBmlftilllft) feleft) eWel!se eleseriess ill 8eetiefl 299, af aft)· felsft) eWel!se !flat iffi,,8ses U,,81! s perssl! !flc elill')' la fe!;iBtcf il! Califel'ftia 8S 6 sell elfeHeer ~liaef !leetill!! 299.
(13) MlifSeo II! ,ie!sti8f! 6f !lesliel! 187, 19(:), 19(:).93, af tift) segree af Iflureler as set fel'!!l il! GhBjller 1 (esll'd"€lIeing ,,jIll 8eelill8 187) ef Tjlle 8 6fPsI'I I ef!fle Peflfil Geele, erlffi) 8!1ffhpl ttl eel!ll!lit Ifl~!tle,.
(€j Valllfllftf) IflBftslailglller il! oielelislI sf Seeliaft 192 tiP III! t!ltetnflt ttl e_lftit ,ehml8f) I!!tI!1Blel:l!;flter.
(D) FeJ6ft) B"etlsal anilse il! oielBliefl aHise!i,,!! g73.S,
EE) Ag!;fa, etee SfllU!!J eSS8t1lt ere ehilEl ill \ ieleliel! afSeellefl 269.
(F) ,., kJeft) elfeftse 6f ftSS8t11i er eellEr) ift ,ieleti!!1! ef Seelieft
217.1, 229,241.1, 243, 243.1, 243,3, 243.4, 243.7, 244, :m, 245.2,
245.3, er 24s.§.

EG) Kiel!6P!lil!g ift oielatiefl sf Bl:lluji;'iaillflB (8) Ie (e), il!eJil6i. e, sf 8eetiefl 297, af SeetieH iHl8, 299,299,5, Elf 219, af 8f1 elleffi1'l Ie eeHi !'flit M) ef tHese elteflsee.

Ell) MlI)lleffl ifl dals!iell sf Seelien 293 ef agg!'lli6teil 1fl6)lIclft ill ,ieJeliel! af 8eetisIl 295, 6f MI· ellIlUl1'* Ie eernmi. ei1:ller flf !fleell
~

(I) 'Fel'ftl¥!l if! ,islft'ieft Ilf8eelieft 296 af MI tlllelftpt te IlBffifflit ttll'ftll'e.

(J) Bl:Il1:lsf) lIB tleflfl!le il! Btlneio;s;ell (a) Ilf 8eetiell 469 af Bft 1l1l1l1flJ'l! te !lefllffi;! 1:IIi. eltel!se.
(K) Renee" as tleflfle!l 1ft BI!~t!idsiel! (a) flf Ee) efSeelillfl 212.S Elf
81'1 ellell'l1'l Ie eBl'IIfIlit ei1:llef eftl'llsf eWenses.
eL) ArSIlII if! .iel!lliell efstlMLisiel! fti) e. Eel ef8eelillll 451 III !!II
sltelflJ'lt te ee!'flHlit eit}"er eftllese elteflsee.

(M) Gafjaeltillg ifl ,ieleliell ef Seeliell 21 S ef !!Ill 811elflJ'lt 16 efilmnit tHis eifeflsll.

(l>!) "Ferrerisl eel; d" il! , ieletien ef Seeliefl 1141 8 6' II 419, tiP II klllft)· ,ieJalien ef 8eeliafl J 1418.S, er all Sltern1'l .a eelft!'flil tift) ef
IHese emftB6e.

(2) Any adult person who Is arrestedfor or charged with any of the following felony offenses:

(A) Anyfelony offense specified in Section 290 or al/emptto commit any felony offense described in Section 290, or any felony offense that imposes upon a person the duty to register in California as a sex offender under Section 290.

(B) Murder or voluntary manslaughter or any attempt to commit murder or voluntary manslaughter.

(C) Commencing 071 January i ofthe fifth year following enactment of the act that added this subparagraph, as amended, any adult persall arrested or charged with any felony offense.
t21 (3) Any person, including any juvenile, who is required to reg-
ister under Section 290 or 457.i because of the commission of, or the attempt to commit, a felony or misdemeanor offense Bjleeifletl ill Seelien i!9G, or any person, including any juvenile, who is housed in a mental health facility or sex offender treatment program after referral to such facility or program by a court after being charged with anyfelony offense slIe .. He is eell'll!'lilleS Ie el!) ift8ti*Htiefl ufleler 1:IIe juriseietiell ef 1:IIe Bep"l'tfIlsfll ef Ille 'hiltH AtiIHeHt} .. Here He e. ells "tiS eetmneEl; ar is grsRlea prsilsliell, af is af "as eaffiffllt4eel te e Slate HeBjli1B1 aB e ffl61!181 lj Eliserelere!l sell a!felldsr \lReer A1'Iiele 1 (e6I'flf11Sflsilt!: .. illl Seet;ell 6399) efCft"l'ter;; afPerl;! afBi ,iSlel! 6 efthe WelfMe el!slflBtialtisII9 Ceee, SHell ee rStj'Uirsa Ie pf8',ia8 I\,S BjlSCilllSllS efeleea, fI Bslhe e_
pie, fi!;Ht tHl:llfle}lHfttS, tll!d Bfull "sllft 1'Hl!t ilf!1'!6Ssieft ef eeeH halll! Ie tHBI iRslilt!lieR af, il! 1:IIe ease efe persell gfilTtteEi 1'raeeliell, ttl 8 Jl8'91l8 8H!! 81 a Ie estiell dithif! !fle sel:l!!t} essil$ftBleel fef teslillg .

(4) The term 'Jelony" as used in this subdivision includes all attempt to commit the offense.

(5) Nothing in this chapter shall be constroed as prohibiting collection and analysis ofspecimens, samples, or print impressions as a condition ofa plea for a non-qualifying offense.

(b) The provisions of this chapter and its requirements for submission of specimens, samples and print impressions as soon as adminisiratively practicable shall apply 10 all qualifying persons regardless of sentence imposed, including any sentence ofdeath, Ilfe without the possibility ofparole, or any life or indeterminate term, or any other disposition rendered in the case ofan adult or juvenile tried as an adult, or wheth'er the person is diverted, fined, or referred for evaluation, alld
regardless of disposition rendered or placement made in the case of juvenile who is found 10 have committed anyfelony offellse or is adjudicated under Section 602 of the Welfare. and Institutiolls Code.
tht (c) The provisions of this chapter and its requirements for sub-
mission ~ ofspecimens, samples, and print impressions as soon as administratively practicable ttl 1"." iele spseiflI6f1s, stll'fl}lles, sl!e 1'!iftt ilftpfessiellB by qualified persons as described in subdivision (a) shall apply regardless of placement or confinement in any mental hospital or other public or private treatment facility, and shall include, but not be limited to, the following persons, including juveniles:

(I) Any person committed to a state hospital or other treatment facility as a mentally disordered sex offender under Article I (commencing with Section 6300) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code.

(2) Any person who has a severe mental disorder as set forth within

the provisions of Article 4 (commencing with Section 2960) of Chap-

ter 7 of Title 1 of Part 3 of the Penal Code,

.

Text of Proposed laws I 137

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TEXT OF PROPOSED LAWS

Proposition 69 (cont.)

(3) Any person found to be a sexually violent predator pursuant to Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code.
(tl1 (d) The provisions of this chapter are mandatory and apply whether or not the court advises a person, including any juvenile, that he or she must provide the ~ data bank and database specimens, samples, and print impressions as a condition of probation, parole, or any plea of guilty, no contest, or not guilty by reason of insanity, or any admission to any of the offenses described in subdivision (a).
(Q) At sfHtsHeillg aT S,iS!,,6sitieft, lIle jlreeeslltiHg BI<Bmf; BlIall ,Sf if;, ift "riling IIlsl Ills rS'lliisits eSfIIl'lies Bre rS'IliiTee 6; Ie;"~ SHe tllllt Ills)' btl' e heH lehell, aT !lrf sehesl:llee Ie 6f 'shaft 'eefeTe Ille e!+.;ftser is relesseE! eft f'fslleliefl, eT !lllls, SCflt'lih!Jee releses. He" e, er, e feiltll't! ll; lila f'reeesl:!'iRg Bl'ltlme; aT ell; "!flaT 18 sllferesfIIflllegS!!fi la ,ef jf) semple re~llireflleft! er eelleelie!! BlIsH Hst reliSH It )leis!!!! sf Ille re'lllinflle!!t Ie p,twiile stlfll)llee.
(e) if at any stage of court proceedings the prosecuting attorney
determines that specimens. samples, and print impreSSions required by this chapter have not already been taken from any person, as defined under subdivision (a) of Section 296, the prosecuting at/orney shall notify the court orally on the record, or in writing, and request that the court order collection ofthe specimens, samples, and prinlimpressions required by law. However, a failure by the prosecuting attorney or any other law enforcement agency to notify the caurt shall not relieve a person of the obligation to provide specimens, samples, and print impressionspursuant to this chapter.
(tl1 (f) Prior to final disposition or sentencing in the case the court shall inquire and verify that the specimens, samples, and print impressions required by this chapter have been obtained and that this fact is included in the abstract ofjudgment or dispositional order in the case ofa juvenile. The abstract ofjudgment issued by the court shall indicate that the court has ordered the person to comply with the requirements of this chapter and that the person shall be included in the state's DNA and Forensic Identification Data Base and Data Bank program and be subject to this chapter.
However, failure by the court to verify specimen, sample, and print impression collection or enter these facts in the abstract ofjudgment or dispositional order in the case of a juvenile shall not invalidate e an arrest, plea, conviction, or disposition, or otherwise relieve a person from the requirements of this chapter.
SEC. 4. Section 296.1 of the Penal Code is amended to read:
296.1. (a) The specimens, samples, and print impressions required by this chapter shall be collected from persons described in subdivision (a) ofSection 296 for present and past qualifying offenses ofrecord asfollows;
(1) Collection from any adult person following arrest for a felony offinse as specified in subparagraphs (A), (B), and (C) ofparagraph (2) ofsubdivision (a) ofSection 296:
(A) Each adult person arrestedfor a felony offinse as specified in subparagraphs (A), (B). and (C) ofparagraph (2) ofsubdivision (a) of Section 296 shall provide the buccal swab samples and thumb and palm print impressions and any blood or other specimens required pursuant to this chapter immediately following arrest, or during the booking or intake or reception center 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.
(B) if the person subject to this chapter did not have specimens,
samples, and print impressions taken immediately follOWing arrest or during booking or intake procedures or is released on bail or pending trial or is not confined or incarcerated at the time ofsentencing or otherwise bypasses a prison inmate reception center maintained by the Department of Corrections, the court shall order the person to report within five calendar days to a county jail facility or to a city, state, local, private, or other deSignated facility to provide the required specimens, samples, and print impressions in accordance with subdivision
(0 of Section 295.
(2) Collection from persons confined or in custody after conviction or adjudication:
(A) Any person, including any juvenile who is imprisoned or confined or placed in a state correctional institution, a county jail, a facility within the jurisdiction of the Department of the Youth Authority, the Board of Corrections, a residential treatment program, or any state, local, city, private, or other facility after a conviction ofany felony or

misdemeanor offense, or any adjudication or disposition rendered in the case of a juvenile. whether or not that crime or offense is one set forth in subdivision (a) ofSection 296, shall provide buccal swab samples and thumb and palm print impressions and any blood or other specimens required pursuant to this chapter. immediately at intake, or during the prison reception center process, or as soon as administratively practicable at the appropriate custodial or receiving institution or placed in program if;
(i) The person has a record of any past or present conviction or adjudication as a ward ofthe court in California ofa qualifying offense described in subdivision (a) ofSection 296 or has a record ofany past or present conviction or adJudication in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this state, would have been punishable as an offinse described in subdivision (a) ofSection 296; and
s (ii) The person blood specimens, buccal swab samples, and thumb
and palm print impressions authorized by thi's chapter are not in the
s possession of the Department ofJustice DNA Laboratory or have not
been recorded as part of the department DNA data bank program.
(3) Collection from persons on probation, parole. or other release:
(A) Any person, including any juvenile, who has a record of any past or present conviction or adjudication for an offinse set forth in subdivision (a) of Section 296, and who is on probation or parole for anyfelony or misdemeanor offinse, whether or not that crime or offense is one set forth in subdivision (a) of Section 296, shall provide buccal swab samples and thumb and palm print impressions and any blood
specimens required pursuant to this chapter. if:
(I) The person has a record of any past or present conviction or adjudication as a ward ofthe court in California ofa qualifying offense described in subdivision (a) ofSection 296 or has a record ofany past or present conviction or adjudication in any other cOUr/, including any state, federal, or military court, of any offense thai, if committed or attempted in this state, would have been punishable as an offense described in subdivision (a) ofSection 296; and
s (ii) The person blood specimens, buccal swab samples, and
thumb and palm print impressions authorized by this chapter are not in the possession of the Department of Justice DNA Laboratory or have not been recorded as part of the departments DNA data bank program.
(B) The person shall have any required specimens, samples, and print impressions collected within five calendar days of being notified by the court, or a law enforcement agency or other agency authorized by the Department of Justice. The specimens, samples, and print impressions shall be collected in accordance with subdivision (i) of Section 295 at a county jail facility or a city, state, local, private, or other facility designated for this collection.
(4) Collection from parole violators and others returned to custody;
(A) if a person, including any juvenile. who has been released on
parole, furlough, or other release for any offense or crime, whether or not setforth in subdivision (a) ofSection 296, is returned to a state correctional or other institution for a violation ofa condition ofhis or her parole, furlough, or other release, or for any other reason, that person shall provide buccal swab samples and thumb and palm print impressions and any blood or other specimens required pursuanlto this chap-
ter; at a state correctional Or other receiving institution, if:
(i) The person has a record of any past or present conviction or adjudication as a ward ofthe court in California ofa qualifying offense described in subdivision (a) ofSection 296 or has a record of any past or present conviction or adjudication in any other court, including any state, federal, or military court, of any offense that, if committed or attempted in this state, would have been punishable as an offinse described in subdivision (a) ofSection 296; and
s (ii) The person blaod specimens, buccal swab samples, and thumb
and palm print impressions authorized by this chapter are not in the possession of the Department of Justice DNA Laboratory or have nOI been recorded as part of the department's DNA data bank program.
(5) Collection from persons accepted into California from other jurisdictions:
(A) When an offender from another stale is accepted into this state under any of the interstate compacts described in Article 3 (commencing with Section 11175) or Article 4 (commencing With Section 11189) of Chapter 2 of Title 1 ofPart 4 of this code, or Chapter 4 (commencing with Section J300) of Part J of Division 2 of the Weifare and

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TEXT OF PROPOSED LAWS

Proposition 69 (cont.)

Institutions Code, or under any other reciprocal agreement with any county, state, or federal agency, or any other provision of law, whether or not the offender is confined or released, the acceplance is condition01 on the offenderproviding blood specimens, buccal swab samples, and palm and thumb print impressions pursuant to this chapter, if the offender has a record of any past or present conviction or adjudication in California ofa qualifying offense described in subdivision (a) ofSection 296 or has a record ofany past or present coreviction or adjudication or had a disposition rendered in any other court, including any state,federal, or military court, ofany offense that, if commilled or attempted in this state, would have been punishable as an offense described in subdivision (a) ofSection 296.
(B) If the person;s not confined, the specimens, samples, and print
impressions reqUired by this chapter must be provided within five calendar days after the person reports to the supervising agent or within five calendar days of notice to the person, whichever occurs first. The person shall report to a county jail facility in the county where he or she resides or temporarily is located to have the specimens, samples, and print impressions collected pursuant to this chapter. The specimens, samples, and print impressions shall be collected in accordance with subdivision (i) ofSection 295,
(C) Ifthe person is confined, he or she shall provide the blood spec-
imens, buccal swab samples, and thumb and palm print impressions required by this chapter as soon as practicable after his or her receipt in a state, county, city. local, private, or other designated facility,
(6) Collection from persons in federal institutions:
(A) Subject to the approval of the Director of the FBI, persons confined or incarcerated in a federal prison or federal institution who have a record ofany past or present conviction orjuvenile adjudication for a qualifying offense described in subdivision (a) of Section 296, or of a similar crime under the laws of the United States or any other state that would constitute an offense described in subdivision (a) ofSection 296, are subject to this chapter and shall provide blood specimens, buccal swab samples, and thumb and palm print impressions pursuant to this chapter ifany ofthe following apply:
(i) The person committed a qualifying offense in California.
(ii) The person was resident ofCalifornia at the time ofthe qualifying offense,
(iii) The person has any record of a California conviction for an offense described in subdivision (a) ofSection 296, regardless of when the crime was committed,
(iv) The person will be released in California.
(B) The Department of Justice DNA Laboratory shall, upon the request of the United States Department ofJustice, forward portions of the specimens or samples, taken pursuant to this chapter, to the United States Department ofJustice DNA data bank laboratory. The specimens and samples required by this chapter shall be taken in accordance with Ihe procedures set forth in subdivision (i) of Section 295, The Department ofJustice DNA Laboratory is authorized to analyze and upload specimens and samples collected pursuant to this section upon approval of the Director ofthe FBI.
(b) Retroactive application ofparagraphs (1), (2), (3), (4), (5), and (6) ofsubdivision (a).
(1) Subdivision (a) and all ofils paragraphs shall have retroactive application, Collection shall occur pursuant to paragraphs (1), (2), (3), (4), (5), and (6) ofsubdivision (a) regardless ofwhen the crime charged or commilled became a qualifying offense pursuant to this chapter, and regardless of when the person was convicted of the qualifying offense described in subdivision (a) ofSection 296 or a similar crime under Ihe laws of the United States or any olher slate, or pursuant to the United States Code ofMilitary Justice, 10 U.S.c., Sections 801 and following, or when disposition was rendered in the case of a juvenile who is adjudged a ward of the court for commission of a qualifying offense described in subdivision (a) ofSection 296 or a similar crime under the laws ofthe United States or any other state.
(a) "'fI) pel Bell, illel"diflg 11ft) jl! .eflile, "he e6f1les "ilhill the pre ,iBiellB er Iki. ehsp'.r for BII eir.IIB. Bel fol'll; ill stI!!eh'isiell (e) !If Seeliefl 296, SflS wl;e is grMlleiilI'Tei!sliell, tiT seT Be his eT lief elltire lefl'fl er eellHllefllellt ifl e Bellll'; jail, er is !leI eeftlelleee Ie II lefl'fl ef eSRHllefllffll ifl 6 sl91e I'fiS81l :teeml'), 6r elkep,>,iae 1l)pr±5SeS e jlriaeR iRfIlBtS fseepliefl eeRier ffl8illlftifletli!, the. Depftrllflel!1 sf CsrreelisllB, sllell, as seell as a6f1liflisll'lllioel) jlTeelieai!le, i!~1 iH 8fl) ease, I'fi!!r Ie ph) sieal release frel'fl 8Msle_l), lle f81jlliFed Ie pre, itle Ii, e speeil'flSfl8 sf eleeEl; II seli ,8 SlIfIll'l!!, 9118 lk~fIll:! BHa pall'll I'riFlI ifllPfsssislIs liS 8el

fol'tll ifl s"5di, ;siell (e) ef Seetiell 296, al B ee"RI) jail :teejJi!') Sf ether slate, lesel, Sf PR' ate :teeiIi!') eseiglltltetl fer !fie eelleelisll sr Ikess speeifllBRs, sSlIlples, '''lIi p,illl ifflpfessiefls, if! aeeerelH!ee .. ilk sllhdhi siefl (I) ef SeeliBfl 29S,
Iftfte !leI'S!!" stffijeel18 Ikis ehllJller ie lIet illeereel'fttee ellke lill'le ef
::I;;:e;:= selll'fleiR" Ike e6~1'1 shllH epeer llIe Jl.reefl H, !'epeft I. ithil'l Ii; e eeJel'!
:::i::~:e: ~:::~6i:!:I~f :;e::=~~:~;::
s;efls Ie !l'S, iae !fiese !!Jleeifflel'lB, BSl'IlJlles, aile I',ifll Ill'IpfessieM ill aeeerSs""... ilh stli!ei oisiell (I) ef Seet;ell 29S.
(b) Irs persefl .. lie .ell'le. '''' ilkilltlle JlfedsiefiB ef Ikis ehsJl!"r fM all aKellse eel fol'll; ill stl!!eL isiafl (a) ef Sfetiell 296 is selllefleee Ie se,. e a tel'fll sf ill'lJlfisellfllellt ifl s s~e eeppeetief!81 iIlS';Il!li6f1, IlIe Dire.l"? ef Cerreeliefls ehell .elleet lbe elEletl !!JleeiflleI'lB, sftli~'ft SIIIlI 1'18S, 6"e Ik\oifllil 61'1e Jl61fll 1";111 iflll'ressiellG fel)'IIi.ee i!, Ik,s ellsJl!er (reM Ihe perse.! s~fiflg Ike ifllalie I'feeess &1 Ike reeefltiell eellter seaig 1181ee !!, tile <lire.ler, er 88 a66ft e5 eeffl;Rislifsti.el, I'feelieei!le there efter 81 e feeei. illg Jl"flal illstiRiliBlI.
MI, (e) ""ll) !lemm, ifleillsifl" !!1l1 lIel Iill'litee te, jll' allila IIfle tIfl;'
I'arse" eSI" isles liftS seflt.lleee Ie eeatfl" life ',', itllall! lbe I'essii!ili,; af parele, er aR) life af ;lIaslefl'fliflllle tefl'fl, ,.ile is ill'll'Rsellea er eellHRae
ilia slete eefIeetiefl!!l ifiSliRilien, II .ell"" jail;e :teeili,; .. ilkilllkejtlRe eietieR sr Ike Del'al'tl'fl"1l1 sf tile Yelilk ;',Illkeri." ar lin; ether state, leeel, aT I'Ti, ale foaili!) aftef 8 eell .ieliell er lin; .rillle, ef ei!!Jlllsitiell ,elleeree ill tile ease ef Ii jll\ eRile, wllelke. er Ilel tllllt eRIlI" af emflllll
is elle sel fol'll; ill stledi, iBiell (a) efSeetiefl 29t;, slllllll're, iee t ,e sJlee
;lI].flB .rlJlaeEl; e Bali.8 sall'lJlle, Mlellk~ll'Ie aile Jlalllll'rift! ill'lJlressiefl8 Pllf01l!lfl1 Ie Illis ehal'"@!, 118 Beef! eB a8Minislifa!i, al) I'raat;eehle Bfl"" it hl!1s !!eafl selefl'fliflee !fiat Ila!fi .fthe folledifllJ; 8JlI'I,.
(1) The l'efsBflll8si!eeft eall, ieles ar aeljll!lieetee a \\ lire Bfthe eellft ill Celifofflis sf e Ijllsl;!) illg e§'ellse eeserii!eiil·ill stille;' isiell Ea) ef S eetiall 296 af ileB eeell a8". ialee Elf IIl1e II iiliBtlBSilieli r8fl!!8rea ifl Btl) allier ee~"', Iflellle;fl! ell, slale, foaerlll, er llIililfit'} eellr!, ersll) eJfellse Iket, ifeell'lflliMea 81 eMefl11'Iee Ifl tllis Blete, "ellie lillie eeell p~flisl!ai!le liS Bfl e§'ellse ees8rii!eil ifl BIli!S;. isieR Ee) Elf SeetieB 298.
(2) The l'a.s.Il'e !!ieEls Bpeeill'l.Ra, sell.a sBHlJl!eB, !Ifle Ih'llfll!! fil1e
I'slill prilll ifllflfeBSi8flS 8'11tllaH;zs!! !!) tHia eh8Jllftr lire Ilel ift tll81'86888 Si811 ef!fie Del'81't1'flellt efJllsliee D~lA bei!8ftltel') liB pm erika ~M
d81ft elllllt p'8g_.
Tille sMile;, iBiell 81'1'Iie8 regardless efwheflille l'ef88f1 .. 118 8eft.;el 8e 6f Ike !j~ali!)illg eJfefl8e El8serii!.e ill stille;. iaiell (e) ef Seeliefl 119fi er II silllilsf eRll'Ie IoIfteef the 111'1'0'8 anile lJflitee SlftteB Elf BIl) etller alfttl!,
ef '.hefl eispBsiliBIl "liS .ellaered ill Ike eaae ef a jll ,ellil•. ,ha is
liej~egeEi Ii "life efthe Be'llft fer eelllftliBBiell ef a ~ftlif)'ifl' eKeflse aeeeri!!.!! ;., B~eej, iBiBll \8) sf SeetieR 29fi ef II SiffliliH eriffle ~fleer the 18\,B Bftlle 'JAiled St81es!lr all) elker state,
,.j8~~B:rl:::;:!=;;:~:;:=' =:V":1;~=:(6r:f
Seetiefl 296, ell6 "lie is 611 pfei!atiell ef J!llrele, allalli!e f8ljlline te Jlfe ,iile 1,,8 Bjleeil'flellB efllleeEl; a Bali.8 slIfIljlle, lIIla !fillllll! af!eJlelll'll'rifit iffll'reeoiefls 6S .efj~ifee PIi'S~lIIlt Ie tllis ellsJlter, ifit is iiletefl'flillea !fi81 tile pusell flBB lIet pte ';e~BI) I'r8,jeee Ikeas !!Jleeill'lellB, BBHlf!leB, !Ilia Jlfillt ifllpfeBsiefls Ie !s" e"fe.eefllefll:; !If if it is selerHlillee Iket tlJllBe BjleeiffleflB, sBfIlJlles, IIfte pfifll ill'lJlressiellB are lIllt illlbe I'IlBStlasiell Ilf
Ihe IilepBftfllfll1 ef JIoIBliee, The l'efS!lR Mtall HII. e tlle Bfleeilllens, sall'l pIes, line prillt ifllJl.essieRs eelleelee h i!fiifl H' e 61l1efl8ar Eltl,8 sf eeiflg
e) fleliHe!l B III" ellfc.eelllfflt lit;el1e) 6r Biker lJolJ;efle) !u!therillee Il) !be
IileJlftllfflffll ef Jllstiee. The Sl'eeiHlefill, a_Jlles, line fllillt ill'l!l.tlSBiellB sllallile eeJleelee illaeesriilsl!ef "ith BlllleLisiefl EI) erSeeti!lll298 al II MIlR" jeil fueili!) e. ether SIoe!e, 16esl, 6' JlPi. ete :teeili~ eesigflfttee fer this eelleeliell,
Tllis stli!e;. ;sisfl sl!ellllM'lj ret;ftrsless ef ..I!elllke crillle tlsllIfflitlee eeesl"e a !j~alif) ing emflse Jl!lrBIl8f11 ttl Ikis ehllJlier.
fe) WIleR 6fl em"BCr fllnn ftIl6!fie, Btate is aeeeploee illIs Ikis stele tlfleer 8f1) eftlle ;fllerS's!. 6efllpsetB eBetlrii!ee ill Artiele i3 (Bel'llflltllle iflg "ill! Seetiell 11175) !I, ".ttiele 4 (eell'll'lleReillg \', illl Sutiell I Hl9) efChspler;2 efTille I efPer! 4 efthie eaee, er Ch8Jller 4 (eeflllfttllle iflg .. ilk Scaliaf! 13(9) af Perl J sf Di, isief! ;2 ef tfte Welfet-e aile iflstitl!liells Geee, eT Illleer M, eiller reeil'feeel e,reeflltlllt ~ illl en; as!!fll), S,81e Ilr feBersl stelie), 8f &,;; !llker I're.isiell efle;;, "lIalka. af Ilel the e§'efliler is eSllfilled er rele8se!!; !fie eEleBtlloeflee is Belldi
liellsl 8fl the aK.lleer I'r6" iaiflg Bleee BflefifllellS, Bali'll! sllflll'les, 8fld 1'81111 8lla lllllll'lil prilll iflll'feSsislls p~rBlllilll Ie this ehfiJltef, if tile emflaer "as fe",ieles efall e§'eIlBe "lIieh \',6\1ld 1j~8lif)' fiB II eriftle aes.rilles ill s'tlllei ';sieH fa) ef S8e11611296, eT ifllle flerBell ,\!lS eeft

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TEXT OF PROPOSED LAWS

Proposition 69 (cont.)

•iSles Elf a siHlilaf €riffle I!!Hle. tl!e 1a" 5 sf ,l!e Ulliles SIele:; 8f 8ft) ell!e. alell!.
If tl!e I'ffSBft is ftsl eellHfte!l; tl!e s!,eeiHlfIlB, sBIH!,les, !lIIB rfilll iIHJlressiells .eEjlliusll) tl!is she!,lel HIllS! 'ee !,.eoiees "itl!ill H"S elll fllaa. SS) BIIHe. tl!e smiles. HlJlS'ts Ie lfIe stlJler. isillg agelll 8f ., idlil'! fi. e ealefu;\8f sa, s sf lIaljes te the el'!@lIilef, "l!iel!e. Sf effllfB Iirs!. TIle Jlffsell MlsH FeI'eR Ie 8 sellll" jail feeili!; itl lfIe eellll!; "l!e.e he ef sl!e .eailles a. le"",arftJ'ii) is leeetell te l!s,'e Il!e BI'eeiIH8115, B8IHrles, 811S !,rillt i"",ressieftB Bellee.ea '!l1l.Sllelll 18 this eh8'!ltef. TIle S'!leeifflflls, B8ffiJllss, ails r,illl i"",ressislIs sl!aJ1 1;8 faBense ill aeeSre8ftee ,.idl slleE!i;·isieft (I) sf Seeti!!!; 1193.
If !l!e !,eres!; is ee!;filleli; he sr sl!e !!flllll flfS. iee tl!e 'eleEls 8Jleei f118I1B, salLe SfllH'!llss, 811e IfIllfll'e 1lIf!6 '!lslHl Ilfi!;t illlJlressisft5 rSEjlli.sS e) this she'!l!sr fie 8SS11 !IS !,reetieall]e after l!i5 er hel reeei!,! il! e stete, sellA", lesel, JlY; ,ele, Sf elller taeilil;'.
(I) S!:!fljeel te lfIe 6'!lllre.eiefll!e DilaNsr sf!fle "Feeeral Bllfell~ sf III' estigalisn, Ilers811B eeftfilles Sf illeenefalee ill e retiel'lll '!lfiSSIl Sf feseTal illslillllie!;leealea ill Celifel'llia "l!e ere 8sft.ielee efa Ej~alif) IlIg "Hense eesefieetl ill slleai, isiell i;e) sf ScalislI 2% Sf sf BsiHlilaf Bfime !:!ftSef lfIe lane efthe Uftilee Stale. Sf 811) ell!e, e!ale!flat "e~le 88ftsliRi!e eft eH8ftse seserie.E! ill slleal, isisft (a) sf Seftiell 2ge, _ sllfljesl te tl!IS eh8Jlter ellS shllll '!lfe. ide IlleeE! s'!leeimsIIB, Bali, a S8m '!lIes, 8ftl! 11>.~IHI; efts '!lllim !,fiftt illlJlfeSsislIs llllfS~8fll Ie l1>.i8 she'!l!s. if 8fl)' eft1>. e fells •iftg 8flJlI, .
(I) The Ilersefl eSHlHliltesll EjIlBlif) in~ e:li=ellsE ill Celifsmie.
(2) Tl!e IleTs811 liS Bfssieeftl efCalifeffiia el ifill time !lflhe EjllSJi
r, i!;g e:!+sflea.
(3) TIle !,srSSH l!IIS 8ft) reBsre ef BCalitamia 881l. ietiell fer 8 sell sr ,ieJeft\ e:li=ellse eeseTiBeE! ift suBei, LislI (8) ef SestislI t\96, ugalE! less sf "l!sn !he efiHle ~ liS sefllHliHeE!.
(4) TIle flares!; "ilIlle relalls,d ;ft Cslifel'lli&.
O!;Be e waara] !Iatll eal'll, is estaelishes ilful eeeessiBle Ie Ute De'!lBrtHl8BI ef Jllsliee, 11>.e DSI'SI'IrIIEIII sf Jllstis. DnA Lallersls.)' allllll, ll'!lil!; lfIe {BEjlles! ilf !fle Ullitea SIel6s De'!laflme!;1 sf ]IIBtiee, fef;\srelllE Bafll!,les 1811611 '!lllfB8ftllt Ie this 8ftll!'tsr, "it1>.!fla ElleeIlli6fl ef Il!sse 18hsII ffsm slls'!leets '!lllfBllBftl IS Bl:!llei; isis" f:J:l) sf 8setlefl 29'7, Ie tl!e Uftllea States De'!lllrlHleftt efJllsli@@ D~IA eale eank laee rBIer). The 8efflplee ent! iffl'!lfeSBie!'l" refjllir.e e, lfIis el!afl's? shell ee tall eft ill eeeelf18nee "iUt tl!eIlreeeeofes Bel felll! in "!lln!i ';Bleft (I) sf Se.lieft 295.
(~ Ire ll.r5811 ,,1>.e is relellsee ell flarel., fl:trlellgh, 8f e!fl., releese, is reelleE! Ie e slele eerreeliellel il!sliRi!lell fer e •ielelitm ef e esruli li811 efhls ef her !,erele, fllrlellgll., 81 ethelleJeese, e!'lB is ser.il'lg 6f at 1111) Ilffle 1>.85 Ber, eEl II te")} ef ifllp,is81xmeftl tar eemmiltiftg !HI e:!+sflse eesel iees in sllM;, isie", ~e) ef 8eet;611 296, 6fte lu 6r she tlitlllet PPIl •ia. 8Jleeil!1entl, Sel!lflles, IIfte '!lriftl ifflp,essi6f1s '!lonnH!;! ta Ifte state'!! D~IA Bale 'b!H'dt JlfsgrMfl, tl!e I'ersell shell 8llln'!,;! Ie eellee!ieft efeless BJleeifflentl, saliva .emIlle", IIIIIl !fl!:!flle 61'ld '!leJm flriftt ifflflresBiefts alII etet. sen.elisflaI iIISliftiliell.
TIlis BuBai. isieft 8Jl'!lliaB fagersle"" sf Ifte efiflle sr Pellal Ceee •ill
latia" ta, "hiel! fl JlefBen is reflifuee te II stete ee''feetieftlll iIl6Ii,..li8l\
efta regere]ese ef!fle sete lfIe EjIla]i~ ing effllllBe ,'&5 eemmiftee.
SEC. 5. Section 297 of the Penal Code is amended to read:
297. (a) (1) The laboratories of the Department of Justice that are accredited by the American Society of Crime Laboratory Directors Laboratory Accreditation Board (ASCLD/LAB) or any certifying body approved by the ASCLDILAB, and any law enforcement crime laboratory designated by the Department of Justice that is accredited by the ASCLDILAB or any certifying body approved by the ASCLDILAB, are authorized to analyze crime scene samples and other samples of known and unknown origin and to compare and check the forensic identification profiles, inclUding DNA profiles, of these samples against available DNA and forensic identification data banks and E!ele Ilases databases in order to establish identity and origin of samples for identification purposes.
(2) Laboratories, including law enforcement laboratories, thaI are accredited by ASCLDILAB or any certifying body approved by the ASCLDlLAB'that contract with Ihe Department of Justice pursuant to Section 298.3 are authorized to perform anonymous analysis of specimens and samples for forensic identlficalion as provided in this chapler.

f:J:l) (I) ElIee'!lt liB I'fa. ieee ill !,6ragl'llfll! (2), 8 eielegieal BSH'll'le

lahell illll!e eel<rB8 ef 8 eriHlillaJ ift,esligalieB, either ,siMI_iI;' ef e,

selln ereer, freHl a '!lefBen "he l!aB lIel eeel'! (leI'!' ielea, ffI!I~' ellly ee

€emIlsrea te BBffiJlJes I!litell ffefll lfIat BJleei§s eriffli!lal ift, esligalieft 8BS

ma, ftet 'be eem'!lll.eil til 1111)' 8!fler BIHfIIlJeB nSHI Ilif!') ether efifllillal

ill esligal;eft "itft811! a llellR ereer,

'

(2) A llieleg;eBI B6ffiJlle eelai"ea {rem a Sll8Jleet, fiB aeH".a ill '!lllfll
l;fB!,l! (3), ill !l efiH'lillftl ill, es!igelisft Hla,' ea BIIIII) l'!eE! fer taTellsie iE!ell lifieetien '!lfe§les, illfl~eillg 0:I'1t'. flre§leB BS 11>.81 Ute llre§le eall ee '!lleeea ift II BllBJlee! eata 'bass lila afte eearel!ee sgeillsl lfIe D~V. ;lele
"Bill! rrefileB ef eaBe e\ ieeftee. Fer Ihe Ill:lf'!lsses ef!flis B!:!ll6i'l'isieB, tl!e
0:1'1,.. eale Balll. eeHlJl!ll'isBft sf Bll8Jlset MIa e ,iE!ef!ee Ilfe§leB fila,' 'lie fflBile, ll~ the o:I'lA LeeerMsr) ilf!fle D.fllll'lrllefll ef 41:1sliee, ar ~ efiffi6 IseefalSF;\ E!esigftsteel;) !fl. DSJlerHfielllefJllBtiee !flat i8 eeeres iles e~ the ASCLD,n.,AB ef 11ft) eeRif)iftg eeS) 8Jl'!lrs.eE! 8) tl!e ASCLD/,bA8.

(3) Fer the '!lll"l'ssee efthis Bl!ll!lh isie!;, "·a slls'!lellt" mSlIlIS II Jlefssfl
agaillBI "l!smllll ;Bfel'ffl8tisll er illE!ielmeftl flllBella!; fileE!fsr slIe eftkB
tRffles lislee ill BI:Il!eh·isislI Ell) sf Seelie!; 29(;. Fer the '!l1l"l'eS8e ef tl!ill B"lleli ;3;ell, 8IleTSSII BhaH relftaift a tllls!'eet fer I.... e, ellftl f'Bm!fle aate sf Il!e filiftl; ef lfIe illtaFlflaliBII ar i"sielmelll aT ll"til !fle D~IA leeel'll
tSF;\ TeBei es lIe!ifiealis!; thaI lfIe I'8rSaft l!es tieell eBEjIlilteel ef Ute el!srgeB Elf the eh!ll'f;ea ~ ere sismieseE!.

(b) (1) A biological sample obtained from a suspect in a criminal investigation for Ihe commission of any crime may be analyzed for forensic identification profiles. including DNA profiles, by the DNA Laboratory ofthe Department ofJustice or any law enforcement crime laboratory accredited by the ASCLDlLAB or any certifying body approved by the ASCLDILAB and then compared by the Department of Justice in and between as many cases and investigalions as necessary. and searched against the forensiC identification profiles, including DNA profiles, stored in the files ofthe Department ofJustice DNA data bank or database or any available data banks Or databases as part of the Department ofJustice DNA Database and Data Bank Program.

(2) The law enforcement investigating agency submilling a specimen, sample. or print impression to the DNA Laboratory of the Department ofJustice or law enforcement crime laboratory pursuant to this section shall inform Ihe Department of Justice DNA Laboratory
within two years whether the person remains a suspect in a criminal investigation, Upon written notification from a law enforcement agency that a person is no longer a suspect in a criminal irrvestigation, the Department ofJustice DNA Laboratory shall remove the suspect sample from its data bankfiles, However. any identification, warrant, arrest, or prosecution based upon a data bank or database match shall not be invalidated or dismissed due to a failure to purge or delay in purging records.

(c) All laboratories, including the Department of Justice DNA lab· oratories, contributing DNA profiles for inclusion in California's DNA Data Bank shall be accredited by the ASCLDILAB or any certifying body approved by the ASCLDILAB. Additionally, each laboratory shall submit to the Department of Justice for review the annual report required by the ASCLDILAB or any certifying body approved by the ASCLD/LAB which documents the laboratory's adherence to ASCLDILAB standards or the standards of any certifying body approved by the ASCLDILAB. The requirements of this subdivision B'!l'!ll; Ie Califel'llia lel!srslefills 8"1;' 811i1 do not preclude DNA profiles developed in California from being searched in the National DNA PMa
:a- Database or Dala Bank (COOlS).

(d) Nothing in this section precludes local law enforcement DNA laboratories ffleelilll; 'Thfhftieel 'A'erltiflg GrellI' 6fI DWA Allal, Bie Melftsss (TWGD,;'M) sr Seielltilie V.'eFlrillg GTe!:!'!l eft DJ>M Allal,sis Melflsde (SWGD,;'M) gttiaelilles 8f BIeIlE!srde IlfsHllllgatea ti, tl!e
D}IA Aedes!) BeBfe liS 8SleelisheE! '!lllfBllllftt til Seeliefl 14131 sf Title 42 sf the UI!;lee Stetas Geee, from maintaining local forensic databases and data banks or perfonning forensic identification analyses, including DNA profiling, insaI'en!lelll ef independently from the Department of Justice DNA and Forensic Identification Data Base and Data Bank ~fI!fft Program.

(e) The limitation on the types of offenses set forth in subdivision (a) of Section 296 as subject to the collection and testing procedures of
this chapter is for the purpose of facilitating the administration of this chapter by the Departm ent of Justice, and shall not be considered cause for dismissing an investigation or prosecution or reversing a verdict Or disposition.

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(t) The detention, arrest, wardship, adjudication, or conviction of a person based upon a data bank match or ~ database information is not invalidated if it is tMe. determined that the specimens, samples, or print impressions were obtained or placed or retained in a data bank or ~ database by mistake.
SEC. 6. Section 298 of the Penal Code is amended to read:
298. (a) The Director of Corrections, or the Chief Administrative Officer of the detention facility,jail, or other facility at which the blood specimens, !!&1M buccal swab samples, and thumb and palm print impressions were collected shall cause these specimens, samples, and print impressions to be forwarded promptly to the Department of Justice. The specimens, samples, and print impressions shall be collected by a person using a Department of Justice approved collection kit and in accordance with the requirements and procedures set forth in subdivision (b).
(b) (I) The Department of Justice shall provide all blood specimen vials, buccal swab collectors, mailing tubes, labels, and instructions for the collection of the blood specimens, !!&1M buccal swab samples, and thumbprints. The specimens, samples, and thumbprints shall thereafter be forwarded to the DNA Laboratory of the Department of Justice for analysis of DNA and other forensic identification markers.
Additionally, the Department of Justice shall provide all full palm print cards, mailing envelopes, and instructions for the collection of full palm prints. The full palm prints, on a form prescribed by the Department of Justice, shall thereafter be forwarded to the Department of Justice for maintenance in a file for identification purposes.
(2) The withdrawal of blood shall be performed in a medically approved manner. Only health care providers trained and certified to draw blood may withdraw the blood specimens for purposes of this section.
(3) Buccal swab samples may be procured by law enforcement or corrections personnel or other individuals trained to assist in buccal swab collection.
~ (4) Right thumbprints and a full palm print impression of each hand shall be taken on forms prescribed by the Department of Justice. The palm print forms shall be forwarded to and maintained by the Bureau of Criminal Identification and Information of the Department of Justice. Right thumbprints also shall be taken at the time of the "itkaf&.. aJ collection of ~ samples and specimens and shall be placed on the sample and specimen containers and forms as directed by the Department ofJustice Ilfletke elees •ielleeel . The eJsee •illl samples. specimens, and forms ft'H! tfluHlejlriflt fefflla shall be forwarded to and maintained by the DNA Laboratory of the Department of Justice.
(5) The law enforcement or custodial agency collecting specimens, samples, or print impressions is responsible for confirming that the person qualifies for entry into the Department of Justice DNA Database and Data Bank Program prior to collectl'ng the specimens, samples. or print impressions pursuant to this chapter.
f41 (6) The DNA Laboratory of the Department of Justice is
responsible for establishing procedures for entering data bank and 6!IftI~ database information, The DnA JtN!efeI8r, jlreeeeufea shell e8ft liffll HIli! Hie eliefleef 'IusJiliea fe. efla; ifl!e Hie D~I/.. eel!! lltlftl. Ilrier Ie aelUel elffi') efHle infellhfttie!'l 11'1 la tke D?IA eel!! lIeftll.
(c) 0) Persons authorized to draw blood or obtain samples or print impressions under this chapter for the data bank or ~ database shall not be civilly or criminally liable either for withdrawing blood when done in accordance with medically accepted procedures, or for obtaining ~ buccal swab samples by scraping inner cheek cells of the mouth. or thumb or palm print impressions when performed in accordance with standard professional practices.
(2) There is no civil or criminal cause of action against any law enforcement agency or the Department of Justice, or any employee
thereof, for a mistake in confirming a person s or sample s qualifying
status for inclusion within the database or data bank or in placing an entry in a data bank or a ~ database.
(3) The failure of the Department of Justice or local law enforcement to comply with Artie/e 4 or any other pravision ofthis chapter shall not invalidate an arrest, plea, conviction. or disposition.
SEC. 7. Section 298.2 is added to the Penal Code, to read:
298.2. (a) Any person who is required to submit a specimen sample or print impression pursuant to this chapter who engages or attempts to engage in any ofthe following acts is guilty ofafelony punishable by imprisonment in the state prisonjor rwo. three, orfour years:

(1) Knowingly facilitates the col/ection of a wrongfully allributed blood specimen. buccal swab sample. or thumb or palm print impression, with the intent that a government agent or employee be deceived as to the origin ofa DNA profile or as to any identification information associated with a specimen, sample. or print impression required for submission pursuant to this chapter.

(2) Knowingly tampers with any specimen. sample. print. or the collection container for any specimen or sample. with the intent that any government agent or emplayee be deceived as to the identity ofthe person to whom the specimen, sample. or print relates.

SEC. 8. Section 298.3 is added to the Penal Code, to read:

298.3. (a) To ensure expeditious and economical processing of offender specimens and samples for inclusion in the FBi's CODIS System and the states DNA Database and Data Bank Program. the Department ofJustice DNA Laboratory is authori;;ed to contract with other laboratories, whether public or private. including law enforcement laboratories, that have the capability offully analy;;ing offinder specimens or samples within 60 days of receipt. for the anonymous analysis ofspecimens and samples for forensic identification testing as provided in this chapter and in accordance with the quality assurance requirement established by CODIS and ASCLDILAB.

(b) Contingent upon the availability ofsufficientfonds in the state's DNA Identification Fund established pursuant to Section 76104.6, the Department ofJustice DNA Laboratory shall immediately contract with other laboratories, whether public or private. including law enforcement laboratories. for the anonymous analysis of offinder reference specimens or samples and any arrestee reference specimens ar samples collected pursuant to subdivision (a) ofSection 296for forensic identification testing as provided in subdivision (a) of this section and in accordance with the quality assurance requirements established by CODIS and ASCLDILABfor any specimens or samples that are notfolly analyzed and uploaded into the CODIS database within six months of the receipt ofthe reference specimens or samples by the Department of Justice DNA Laboratory.

SEC. 9. Section 299 of the Penal Code is amended to read:

299. Ea) It jlers~1'I .. hese ];)}>I,', jlfefile flee lIeefl '!'Ialuses ill Ifle eela eSI'Il< 1l~'B'tIa!'lt Ie tflis efl8jller akall he. e flia Elf her iflfel'f!l8tiefl IIflS
I!lsteriela 1!)llll:lflgee ire!!! the ea*tl Bft!'ll! "hefl the tlfleerl, i!lg ee!!. letie!! e. eiSjl6sitieft seT. ;ftg liB Hie essis fer illeh!flillg tl!e ];);-1.<', Ilrelile Ius i;eeH fe, aose!! !lHa Ike ease eiuHlisoeli; tke !!efe!'leafll hilS eeell felilld t8el~811; illfleee!'li ef Ike ~lIaerl) i!'lg e!tefloe 1"11081181'11 te Seelie.!'1 8$ 1.8, Ike eerfIlElS!!! k"a ge6!'1 feUII!! Het guill?, e. fhe aetBllee!'lt k&s ge8ft e€fjUitlea eflke l!!'Iseri; i!'lg efli;;lIse, Tile aeu,1 ioo'tlifl:@ tl!e re. e.oal, dis
misssl, er ee'll!itlel ollllH artier tke ellJlllflgemeflt e!!s Bhell seflll e eell)
ef Ihel 61'Se. te tke ];)eIl8rlH!efl! ef Itlstiee D:rlA Leeere!el')' ];)ireelep.
bl'tlfl reeeillt ef Ike estll'! erser, Ike ];)ejl8Rf!1eflt ef Jtlutiee shall
elllluflge ell ieefltififtele i!!fe'ffl:8tiell ifl Hie !leI!! ea!lit B!!e 81'1) efi!!!iftal
ieefltilieatiell reee.ee 1l€l't8ifti!'lg te Ike pSfSeft.

(a) A person whose DNA profile has been included in the data bank pursuant 10 Ihis chapter shall have his or her DNA specimen and sample destroyed and searchable database profile expunged from the data bank program pursuant to the procedures selforth in subdivision
s (b) if the person has no past or present offense or pending charge
which qualifies that person for inclusion within the state DNA and Forensic Identification Database and Data Bank Program and there otherwise is no legal basis for retaining the specimen or sample or searchable profile.

(b) (1) It !,ersal'! "keBe ];)l>/-A ",etilt lifts lIeef! illeltleeil if! a !Ie*tl lIe"l. jll:!fBBefll Ie Ikis eh8jller Pursuant to subdivision (a). a person who
has no past or present qualifying offense, andfor whom there otherwise
is no legal basis for retaining the specimen or sample or searchable profile, may make a written request to ~tI'~ jnf,mJltt/ilm ttllt/lllttle , 1"/8 fi~'" 'hE HItl 8ttllk. have his or her speCl"men and sample
destroyed and searchable database profile expunged from the data
bank program if:

(1) Following arrest. no accusatory pleading has been filed within the applicable period allowed by law charging the person with a qualifying offense as set forth in subdivision (a) of Section 296 or if the charges which served as the basis for including the DNA profile in the state's DNA Database and Data Bank Identification Program have been dismissed prior to adjudication by a trier offact;

(2) The underlying conviction or disposition serving as the basisfor including the DNA profile has been reversed and the case dismissed:

(3) The person has been found factually innocent ofthe underlying

offense pursuant to Section 851.8, or Sectian 781.5 of the Weifare and

Institutions Code; or

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(4) The defendant has been found nOl guilty or the defondant has been acquilled ofthe underlying offense.

(e) (1) The person requesting the data bank entry to be expunged must send a copy of his or her request to the trial court of the county where the arrest occurred, or that entered the conviction or rendered disposition in the case, to the DNA Laboratory of the Department of Justice, and to the prosecuting attorney of the county in which he or she was arrested Ot; convicted, or adjudicated, with proof of service on all parties. The court has the discretion to grant or deny the request for expungement. The denial of a request for expungement is a nonappealable order and shall not be reviewed by petition for writ.

(2) Except as provided below, the Department of Justice shall

destroy a specimen and sample and expunge the searchable DNA data-

base profile ell iael'!lifi..el. il'!fel'ffl.liell ill tke aale "anl. 8l'!B 8A; "rifft

iflel iael'!tiJiie.liell r.eerBs pertaining to the person who has no present

or past qualifying offense of record upon receipt of a court order that

verifies the applicant has made the' necessary showing at a noticed

hearing, and that includes all of the following:

.

(A) The written request for expungement pursuant to this section.

(B) A certified copy of the court order reversing and dismissing the conviction or case, or a letter from the district attorney certifYing that no accusatory pleading has been filed or the charges which served as the basis for collecting a DNA specimen and sample have been dismissed prior to adjudication by a trier offact, the defendant has been found factually innocent. the defendant has been found not guilty, the defendant has been acquitted of the underlying offense, or the underlying conviction has been reversed and the case dismissed.

(C) Proof of written notice to the prosecuting attorney and the Department of Justice that expungement has been requested.

(D) A coun order verifying that no retrial or appeal of the case is pending, that it has been at least 180 days since the defendant or minor has notified the prosecuting attorney and the Department of Justice of the expungement request, and that the coun has not received an objection from the Department of Justice or the prosecuting attorney.

~ (d) Upon order from the court, the Department of Justice shall destroy any specimen or sample collected from the person and any 6fifftil'!el ieentiJiieetieft Jeeerae searchable DNA database profile pertaining to the person, unless the department determines that the person is subject to the provisions ofthis chapter because ofa past qualifying offense of record or is or has otherwise become obligated to submit a blood specimen or buccal swab sample as a result of a separate arrest, conviction, juvenile adjudication, or finding of guilty or not guilty by
tlI.reason of insanity for an offense described in subdivision (a) of
Section 296, or as a condition of a plea.
The Department of Justice is not required to destroy !til lu,lef6ei analytical data or other ¥!eft! items obtained from a blood spec-
imen or saliva, or buccal swab sample. if evidence relating to another person subject to the provisions of this chapter would thereby be destroyed or otherwise compromised.

Any identification, warrant, probable cause to arrest, or arrest based upon a data bank or database match is not invalidated due to a failure to expunge or a delay in expunging records.

(a) The Dep&ftfftBl'!1 sf ll'lsliee D}j,~ b"8fsteJ') sllell JleriBtlie&l~ ,. ,jew ift! files Ie eet6FHlil'!e ,hether its liles eel'!taill D~lA refefSl'!Se 8&ffl'!lle pte files (tefft SI:IBjlsets !IS ~efilles ill sl:I.. eiyisi,," EB) ef SeetieB 297 .. he are Ile ISflt;er elit;iftle fer illeh:lBisl'! ill lila Elsle eanll. Ths D~lA preBle, SIHl B8ffliJlles 8le.atl ill lIle B~flJ!eel ;lete ..lise frel'B 8
pers!!" "he is 8 stlsJleet iB 8 eoifftilleJ il'!.eetit;etilll'! sllellile Jllugetl "itfl il'! t .. e )eaH! eflka aete eHhe lilieg efllle ;l'!fflffftstisl'! Sf il'!tlielffteel lit .. lIeft tlle D~IA 1..eer8Ie-., reee;. e• ..eliee IlIelllle saspeel 88 8e'1~ille8 8f tlle ellerlss Slaills! tlle sl'Ispeat "eYe eisfftiBSea, ..llish e, Sf SeBI:lf!!
eerlier. The fleliee allaH il'!ell'lee s esrlilie!! eep) erille ellaR sreer ai8
fftiasillg llIe il'!teffll8titlB !!l il'!sielfMl'Il, a ee.tiBeEl esp) sf tlle safei'! eel'!l's liBgel'flfil'!IB BIlt! the Elefell;!iiBt's GIl m:H'Il"er.

(e) Notwithstanding any other provision of law, the Deportment of
Justice DNA Laboratory is not required to expunge DNA profile or
forensic identification information or destroy or return specimens. sam-
ples. or print impressions taken pursuant to this section if the duty to
register under Section 290 or 457.1 is terminated.

(j) Notwithstanding any other provision of law, including Sections J7, J203.4. and 1203.4a, a judge is not authorized to relieve a person of the separate administrative duty to provide specimens, sam-
ples. or print impressions required by this chapter ifa person has been
found guilty or was adjudicated a ward ofthe court by a trier offact of

a qualifying offense as defined in subdivision (a) ofSection 296, or was found not guilty by reason of insanity or pleads no COlllest to a qualifying offense as defined in subdivision (a) ofSection 296.
SEC. 10. Section 299.5 of the Penal Code is amended to read:
299.5. (a) All DNA and forensic identification profiles and other identification information retained by the Department of Justice pursuant to this chapter are exempt from any law requiring disclosure of information to the public and shall be confidential except as otherwise provided in this chapter.
(b) All evidence and forensic samples containing biological material retained by the Department of Justice DNA Laboratory or other state law enforcement agency are exempt from any law requiring disclosure of information to the public or the return of biological specimens. samples. or print impressions .
(c) Non-DNA forensic identification information may be filed with the offender's file maintained by the Sex Registration Unit of the Department of Justice or in other computerized data bank or database systems maintained by the Department of Justice.
(d) The DNA and other forensic identification information retained by the Department of Justice pursuant to this chapter shall not be included in the state summary criminal history information. However, nothing in this chapter precludes law enforcement personnel from entering into a person's criminal history information or offender file maintained by the Department of Justice, the fact that the specimens, samples, and print impressions required by this chapter have or have not been collected from that person.
(e) The fact that the blood specimens, e&IM or buccal swab samples, and print impressions required by this chapter have been received by the DNA Laboratory of the Department of Justice shall be included in the state summary criminal history information as soon as administratively practicable.
The full palm prints of each hand shall be filed and maintained by the Automated Latent Print Section of the Bureau of Criminal Identification and Information of the Department of Justice, and may be included in the state summary criminal history information.
(I) DNA samples and DNA profiles and other forensic identification information shall be released only to law enforcement agencies, including, but not limited to, parole officers of the Department of Corrections, hearing officers of the parole authority, probation officers, the Attorney General's office, district attorneys' offices, and prosecuting city attorneys' offices, e. te II eel"! Elf ftftfflillietl'lIti.e tl'j el'MI, e!teept &e sJleeiftetl-ift unless otherwise specifically authorized by this chapter. Dissemination of tllie iftf.ellflstiefl DNA specimens, samples. and DNA profiles and other forensic. identification information to law enforcement agencies and district attorneys' offices outside this state shall be performed in conformity with the provisions of this chapter.
(g) A defendant's DNA and other forensic identification information developed pursuant to this chapter shall be available to his or her defense counsel upon court order made pursuant to Chapter 10 (commencing with Section 1054) ofTitle 6 of Part 2..
(h) Except as provided in subdivision (g) and in order to protect the confidentiality and privacy ofdatabase and data bank information. the Department ofJustice and local public DNA laboratories shall not otherwise be compelled in a criminal or civil proceeding to provide any DNA profile or forensiC identification database or data bonk information or its computer database program software or structures to any person or party seeking such records or information whether by subpoena or discovery, or other procedural device or inquiry.
~ (I) (I) (A) Any person who knowingly uses an offender specimen. sample, or DNA profile collected pursuant to this chapter for other than criminal identification or exclusion purposes, or for other than the identification ofmissing persons. or who knowingly discloses
DNA or other forensic identification information developed pursuant to this section to an unauthorized individual or agency, for other than criminal identification or exclusion purposes, or for the identification of missing persons, in violation of this chapter. shall be punished by imprisonment in a county jail not exceeding one year or by imprisonment in the state prison.
(B) Any person who, for the purpose of financial gain, knowingly uses &11 eFfel!aer a specimen, sample. or DNA profile collected pursuant to this chapter for other than criminal identification or exclusion purposes or for the identification of missing persons or who, for the purpose of financial gain, knowingly discloses DNA or other forensic iden-

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Proposition 69 (cont.)

tification infonnation developed pursuant to this section to an unauthorized individual or agency, for other than criminal identification or exclusion purposes or for other than the identification of missing persons, in violation of this chapter, shall, in addition to the penalty provided in subparagraph (A), be punished by a criminal fine in an amount three times that of any financial gain received or ten thousand dollars ($10,000), whichever is greater.
(2) (A) If any employee of the Department of Justice knowingly uses eft eftefuilef a specimen, sample, or DNA profile collected pursuant to this chapter for other than criminal identification or exclusion purposes, or knowingly discloses DNA or other forensic identification infonnation developed pursuant to this section to an unauthorized individual or agency, for other than criminal identification or exclusion purposes or for other than the identification of missing persons, in violation of this chapter, the department shall be liable in civil damages to the donor of the DNA identification infonnation in the amount of five thousand dollars ($5,000) for each violation, plus attorney's fees and costs. In the event of mUltiple disclosures, the total damages available to the donor of the DNA is limited to fifty thousand dollars ($50,000) plus attorney's fees and costs.
(B) (i) Notwithstanding any other law, this shall be the sole and exclusive remedy against the Department of Justice and its employees available to the donor of the DNA.
(ii) The Department ofJustice employee disclosing DNA identification infonnation in violation of this chapter shall be absolutely immune from civil liability under this or any other law.
(3) It is not a violation of this section for a law enforcement agency in its discretion to publicly disclose the fact of a DNA profile match, or the name of the person identified by the DNA match when this match is the basis of law enforcement's investigation. arrest, or prosecution of a particular person, or the identification of a missing or abducted person.
tIt1 0) It is not a violation of this chapter to furnish DNA or other
forensic identification information of the defendant to his or her defense counsel for criminal defense purposes in compliance with discovery.
ti1 (k) It is not a violation of this section for low enforcement to
release DNA and other forensic identification infonnation developed pursuant to this chapter to a jury or grand jury, or in a document filed with a court or administrative agency, or as part of a judicial or administrative proceeding, or for this infonnation to become part of the public transcript or record of proceedings when. in the discretion of law enforcement. disclosure is necessary because the DNA information pertains to the basis for law enforcement:r identification. arrest, investigation. prosecution. or exclusion ofa parricular person related to the case.
61 (1) It is not a violation of this section to include infonnation
obtained from a file in a transcript or record of a judicial proceeding, or in any other public record when the inclusion of the information in the public record is authorized by a court, statute, or decisional law.
(*t (m) It is not a violation of this section for the DNA Laboratory of the Department of Justice, or an organization retained as an agent of the Department ofJustice. or a local public laboratory to use anonymous ~ records or criminal history information obtained pursuant to this chapter for training, research, statistical analysis of populations, or quality assurance or quality control.
(I) It is fte! 1\ oiele!ien !If lI;iB seellell III EliBscfftiftllte statisticsl er resc!I!'eh ifttel'lflelieft eiltainee nelft lI;e eltefteer's lile, tfie eefftl'llierieee E1alallenlt B) Btehl, eft) ef tfie Df!,', Jells,s!II') '5 6a!eIl8Se5, !If lI;e Nil 1'811ft I'rintlile, Jj,sdtiee 1I;&I!h. stlejeet eftfie ale is ftlll ;eeftliaee ftllll e8ftltet lle ieeflliliee fl!lm tfie intel'fft8!iefl eisel!>••!!. All ,s'I"e"t/l fef sill tialieRI !If fesel'lFeh i"fallH8lien ellieinet! Hem tfie DflA ealell!l"lll! shill! lle fetalegea e) the DeJ!lIltlftEftt ef Jtlsliee. Cefflmefteiftll JSfttlRf) 1, 2lilili, the ;iel'tlrtomeftt shall "!lllmi! lin 8flfttlel lean Ie tfie Legisletllre iflSlll;iillll, "itfi 'BLlf!selle eeeh rBtjtleSI, !he refjllsstsr's IIBIftB af !lllefte), tfie I'tlfJ!e,. aftfie rS'l"est, "helhef tfie rstjl!lest is relatee Ie e eRmifiel ift' .'Iigaliell Il' eetiH J!feeeeaillll, ,hether Ike retjNeS! "8e gfSfttea Sf eeftie8; ell) rSRSSlle far 8sltial, seslS illeNrree 8f .Blifft81es ef Ike eS81 efth. fefjll!!B!, efle the ;jele sfth. fefjtleet.
fm) (n) The Department of Justice shall make public the methodology and procedures to be used in its DNA program prior to the commencement of DNA testing in its laboratories. The Department of Justice shall review and consider on an ongoing basis the findings and results of any peer review and validation studies submitted to the department by members of the relevant scientific community experienced in

the use of DNA technology. This material shall be available to criminal defense counsel upon court order made pursuant to Chapter 10 (commencing with Section 1054) of Title 6 of Part 2.
~ (0) In order to maintain the computer system security of the Department of Justice DNA and fareftsie ieefttifiestieft 6etellese efte E1e!sllanl. I'Hljffeffi Forensic Identification Database and Data Bank Program, the computer software and database structores used by the DNA Laboratory of the Department of Justice to implement this chapter are confidential.
(e) Nell;iftjf ift Ikis see/ieft Bllalll'peell'lEle e fell" freffi erEleriftg E1is ee. ef) l'afSllaftl Ie Challler 1Ii (eelftmefteil!ll "itll eeelieft JliS 4) ef Title 6 ef Peri 2.
SEC. 11. Section 299.6 of the Penal Code is amended to read:
299.6. (a) Nothing in this chapter shall prohibit the Department .ofJustice. in its sole discretion. from the sharing or disseminating of population ~ database or data bank information, DNA profile orforensiC identification database or data bank information. analytical data and resul/s generatedfor forensic identification database and data bank purposes, or protocol and forenSic DNA analysis methods and quality assurance or quality control procedures with any of the following:
(I) Federal, state, or local law enforcement agencies.
(2) Crime laboratories, whether public or private, that serve federal, state, and local law enforcement agencies that have been approved by the Department of Justice.
(3) The attorney general's office of any state.
(4) Any state or federally authorized auditing agent or board that inspects or reviews the work of the Department of Justice DNA Laboratory for the purpose of ensuring that the laboratory meets ASCLDlLAB and FBI standards for accreditation and quality assurance standards necessary under this chapter andfor the Slate ~ participation in CODIS and other national or international crime-solving networks.
t41 (5) Any third party that the Department of Justice deems neces-
sary to assist the deparnnent's crime laboratory with statistical analyses of tfie population ~ databases, or the analyses offorensic protocol. research methods. or quality control procedures. or to assist in the recovery or identification of human remains for humanitarian purposes, including identification of missing persons.
f6) }letfiillg ift tfiis sllerlSf .ke11I'rehil!it Ille sflllriftjf !If eiSS8fftill8t iAg ('If rfeleeel SfHi terensie D~IA ftnel,'sis lfIetfietle !lfte fjlislil) ea1'll;ffl) J!faeeBtlfSS '.itll!lft) aftfis falleuiftjl!
(I) Feeeral. Mete, er leellll!" sftfareelftent agefleies.
(1) Griffie leeer8lefies, ,¥hstfier J!llelie Elf J!Pi, lite, thet Bef, e feseFel,
elale, 8f1E1leeellew efltereefftelll 8gefteies thet kll!, e l!eeft 8l'1lf1h eEl e,'
the DeJ!sMlftefll eONs!iee.
(3) The 8*1efllS) gSftefei's elflee sf !1ft) slale.
(4) At;; lI;ir81'lIf" Ihlll tfie D"'fl8Rifftefil efJtlsliee s88mB flaseB8ll1') Ie 8ssist Ihe !leJ!8ftom8Ilt's 8riffte lel!efll;leF)' ',\ jll; 81l81) see ef farellsie J!feleeel, fese8feh lfIetfiesB, Elf 'l"slil) ee!llirel llreeeellM8.
~ (b) The population ~ databases and data ~ banks of the DNA Laboratory of the Department of Justice may be made available to and searched by the FBI and any other agency participating in the FBI's CODIS System or any other national or international law enforcement database or data bank system.
tEI1 (c) The Department of Justice may provide portions oftfie bio-
logical samples including blood specimens _ . saliva samples. and buccal swab samples collected pursuant to this chapter to local public low enforcement DNA laboratories for identification purposes provided that the privacy provisions of this section are followed by the local public law enforcement laboratory and if each of the following conditions is met:
(I) The procedures used by the local public DNA laboratory for the handling of specimens and samples and the disclosure of results are the same as those established by the Department of Justice pursuant to Sections 297, 298, and 299.5.
(2) The methodologies and procedures used by the local public DNA laboratory for DNA or forensic identification analysis are compatible with those eSlaeliske!l used by the Department of Justice I'llfS\:l8fti Ie sl:IllEli';sien til Elf Seelieft 299.5, or otherwise are determined by the Department of Justice to be valid and appropriate for identification purposes.

Text of Proposed Laws I 143

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TEXT OF PROPOSED LAWS

Proposition 69 (cont.)

(3) Only tests of value to law enforcement for identification purposes are perfonned and a copy of the results of the analysis are sent to the Department of Justice.
(4) All provisions of this section concerning privacy and security are followed.
(5) The local public law enforcement DNA laboratory assumes all costs of securing the specimens and samples and provides appropriate tubes, labels, and illMflletiellB materialsnecessary to secure the specimens and samples.
~ (d) Any local DNA laboratory that produces DNA profiles of known reference samples for inclusion within the pennanent files of the state's DNA Data Bank program eheH eel'll!!l) "ill. aile Be Bll'bjeet Ie all ef the ftlles, reg>llstislIB, ella reslrieti!lflS sf t\;i. el;sJ'ler 8118 shall follow the policies of the DNA Laboratory of the Department of Justice.
SEC. 12. Section 300 of the Penal Code is amended to read:
300. Nothing in this chapter shall limit or abrogate any existing authority of law enforcement officers to take, maintain, store, and utilize DNA or forensic identification markers, blood specimens, buccal swab samples. saliva samples, or thumb or palm print impressions for identification purposes.
SEC. 13. Section 300. I of the Penal Code is amended to read:
300. I. (a) Nothing in this chapter shall be construed to restrict the authority of local law enforcement to maintain their own DNA-related databases or data banks. or to restrict the Department of Justice with respect to data banks and !Ift~ eases databases created by other statutory authority, including, but not limited to, Elata eases databases related to fingerprints, firearms and other weapons, child abuse, domestic violence deaths, child deaths, driving offenses, missing persons, violent crime infonnation as described in Title 12 (commencing with Section 14200) of Part 4, and criminal justice statistics pennined by Section 13305.
(b) Nothing in this chapter shall be construed to limit the authority oflocal or county coroners or their agents. in the COurse oftheir scientific investigation, to utilize genetic and DNA technology to inquire into and determine the circumstances, manner, and cause of death. or to employ or use outside laboratories, hospitals. or research institutions that utilize genetic and DNA technology.
SEC. 14. Section 300.2 is added to the Penal Code, to read:
300.2. Any requirement to provide saliva samples pursuant to this chapter shall be construed as a requirement to prOvide buccal swab samples as of the effective date of the act that added this section. However, the Department ofJustice may retain and use previously collected saliva and other biological samples as part of its database and databank program and for quality control purposes in conformity with the provisions of this chapter.
SEC. IV, Supplemental Funding
SEC. 1. Section 76104.6 is added to the Government Code, to read:
76104.6. (a) For the purpose of implementing the DNA Fingerprint. Unsolved Crime and 1nnocence Protection Act, there shall be levied an additional penalty of one dollar for every ten dollars ($10) or fraction thereof in each county which shall be collected together with and in the same manner as the amounts established by Section 1464 ofthe Penal Code, upon every fine. penalty. or forfeiture imposed and collected by the courts for criminal offenses. including all offenses involving a violation ofthe Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. except parking offenses subject to Artide 3 (commencing with Section 40200) ofChapter 1 of Division 17 of the Vehicle Code. These moneys shall be taken from fines and forfeitures deposited with the county treasurer prior to any division pursuant to Section 1463 of the Penal Code. The board of supervisors shall establish in the county treasury a DNA Jdentificalion Fund into which shall be depOSited the collected moneys pursuant to this section. The moneys ofthe fund shall be allocated pursuant to subdivision (b).
(b) (1) The fund moneys described in subdivision (a). together with any Interest earned thereon, shall be held by the county treasurer separate from any funds subject to transfer or division pursuant to Section 1463 of the Penal Code. Deposits 10 lhe fund may continue, through and including the 20th year after the initial calendar year in
which the surcharge is collected. or longer if and as necessary to make
paymel'lls upon any lease or leaseback arrangement utilized to finance any of the projects specified herein.
144 I Text of Proposed Laws

(2) On the last day ofeach calendar quarter ofthe year specified in this subdivision. the county treasurer shall transfer fund moneys in the
s county DNA Identification Fund to the state Controller for credit to
the slate S DNA 1dentification Fund, which is hereby established in the State Treasury. as follows:
(A) in thefirst twa calendaryearsfollowing the ejJectivedate ofthis section. 70 percent of the amounts collected. including interest earned thereon;
(B) in the third calendar yearfollowing the ejJective date ofthis section, 50 percent of the amounts collected, including interest earned thereon;
(C) in the fourth calendar year following the effective date of this section and in each calendar year thereafter, 25 percent ofthe amounts collected. including interest earned thereon.
(3) Funds remaining in the county s DNA Identification Fund
shall be used only to reimburse local sheriffor other law enforcement agencies to collect DNA specimens. samples, and print impressions pursuant to this chapter; for expenditures and administrative costs made or incurred to comply with the requirements ofparagraph (5) of subdivision (b) of Section 298 including the procurement of equipment and software integral to confirming that a person qualifies for entry into the Department of Justice DNA Database and Data Bank Program; and to local sheriff, police. district attorney. and regional state crime laboratories for expenditures and administrative costs made or incurred in connection with the processing. analysis. tracking, and storage of DNA crime scene samples from cases In which DNA evidence would be useful in identifying or prosecuting suspects, including the procurement ofeqUipment and software for the processing. analysiS. tracking. and storage ofDNA crime scene samples from unsolved cases.
s (4) The state s DNA Identification Fund shall be administered by
the Department of Justice. Funds in the state DNA Identification Fund, upon appropriation by the Legislature. shall be used by the Attorney General only to support DNA testing in the state and to offset the impacts ofincreased testing and shall be allocated asfollows:
(A) Of the amount transferred pursuant to subparagraph (A) of paragraph (2) of subdivision (b), 90 percent to the Department of Justice DNA Laboratory, first, to comply with the requirements of Section 298.3 of the Penal Code and, second. for expenditures and administrative costs made or incurred in connection with the processing. analysis. tracking. and storage- of DNA specimens and samples including the procurement ofequipment and software for the processing. analysis. tracking. and storage of DNA samples and specimens obtained pursuant to the DNA and Forensic Identification Database and Databank Act. as amended, and 10 percent to the Department of Justice Information Bureau Criminal History .Unit for expenditures and administrative costs that have been approved by the Chief of the Department of Justice Bureau ofForensic Services made or incurred to update equipment and software to facilitate compliance with the requirements ofsubdivision (e) ofSection 299.5 ofthe Penal Code.
(B) Of the amount transferred pursuant to subparagraph (B) of paragraph (2) of subdivision (b). funds shall be allocated by the Department of Justice DNA Laboratory, first. to comply with the requirements ofSection 298.3 ofthe Penal Code and, second,for expenditures and administrative costs made or incurred in connection with the processing. analysis. tracking. and storage of DNA specimens and samples including the procurement of equipment and software for the processing. analysis, tracking, and storage ofDNA samples and specimenS obtained pursuant to the DNA and Forensic Identification Database and Databank Act. as amended.
(C) Of the amount transferred pursuant to subparagraph (C) of paragraph (2) of subdivision (b). funds shall be allocated by the Deparrment of Justice to the DNA Laboratory to comply with the requirements of Section 298.3 of the Penal Code and for expenditures and administrative costs made or incurred in connection with the processing. analysis. tracking. and storage ofDNA specimens and samples including the procurement ofequipment and software for the processing, analysis, tracking. and storage of DNA samples and specimens obtained pursuant to the DNA and Forensic Identification Database and Databank Act, as amended.
(c) On or before April 1 in the year follOWing adoption of this section. and annually thereafter, the board ofsupervisors of each county shall submit a report to the Legislature and the Department of Justice. The report shall include the total amount offines collected and allocated pursuant to this section. and the amounts expended by the

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TEXT OF PROPOSED LAWS

Proposition 69 (cont.)

county for each program authorized pursuant /0 paragraph (3) of subdivision (b) of this section. The Department of Justice shall make the
reports publicly available on the department s Web site.
(d) All requirements imposed on the Depar/ment ofJustice pursuant to the DNA Fingerprint, Unsolved Crime and innocence Protection Act are contingent upon the availability offunding and are limited by revenue, on a fiscal year basis, received by the Department ofJustice pursuant to this section and any additional appropriation approved by the Legislature for purposes related to implementing this measure.
(e) Upon approval of the DNA Fingerprint, Unsolved Crime and innocence Protection Act, the Legislature shall loan the Department of Justice General Fund in the amount of $7,000,000 for purposes of implementing that act. This loan shall be repaid with interest calculated at the rate earned by the Pooled Money Investment Account at the time the loan is made. Principal and interest on the loan shall be repaid in full no later than four years from the dare the loan was made and shall be repaid from revenue generated pursuant to this section.
SEC. V. General Provisions
(a) Conflicting Measures: If this measure is approved by the voters,

but superseded by any other conflicting ballot measure approved by more voters at the same election, and the conflicting ballot measure is later held invalid, it is the intent of the voters that this measure shall be self-executing and be given the full force of the law.
(b) Severability: The provisions of this measure are severable. If any provision of this measure or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
(c) Amendment: The provisions of this measure may be amended by a statute that is passed by each house of the Legislature and signed by the Governor. All amendments to this measure shall be to further the measure and shall be consistent with its purposes to enhance the use of DNA identification evidence for the purpose of accurate and expeditious crime-solving and exonerating the innocent.
(d) Supplantation: All funds distributed to state or local governmental entities pursuant to this measure shall not supplant any federal, state, or local funds that would, in the absence of this measure, be made available to support law enforcement and prosecutonal activities.

Proposition 70

This initiative measure is submitted to the people in accordance with the provisions of Section 8 of Article 11 of the California Constitution.
This initiative measure amends the California ConstiTUtion and adds a section to the Government Code; therefore, existing provisions proposed to be deleted are printed in slfilte6~t ':Ire and new provisions pro· posed to be added are printed in italic type to indicate that they are new.
PROPOSED LAW
THE INDIAN GAMING FAIR·SHARE REVENUE ACT OF 2004
SECTION J. Title
This act shall be known as the "Indian Gaming Fair-Share Revenue Act of 2004."
SEC. 2. Findings and Purpose
The people of the State of California hereby find and declare as . follows:
(a) The purpose oflhe people of the State of California in enacting this measure is to provide a means for California Indian tribes to contribute their fair share of gaming revenues to the State of California. Both the people of California and California Indian tribal governments desire for tribes to assist in restoring financial integrity to the state by contributing an amount that is equivalent to what any private California corporation pays to the state on the net income it earns from its lawful business activities.
(b) In March 2000, the people of the State of California adopted Proposition I A, which authorized the Governor to negotiate tribal-state gaming compacts with federally recognized Indian tribes for the operation of slot machines and certain casino games on tribal lands in California in accordance with federal law. Proposition I A was enacted by the people in recognition of the fact that, historically, Indian tribes within the state have long suffered from high rates of unemployment and inadequate educational, housing, elderly care, and health care opportunities, while typically being located on lands that are not conducive to economic development in order to meet those needs.
(c) Since the adoption of Propos ilion lA, over SO Indian tribes have entered into tribal gaming compacts with the State of California. These compacts and the gaming facilities they authorize have assisted Indian tribes throughout the state to move towards economic self-sufficiency by providing a much-needed revenue source for various tribal purposes, including tribal government services and programs such as those that address reservation housing, elderly care, education, health care, roads, sewers, water systems, and other tribal needs. Tribal gaming has also spurred new development, has created thousands ofjobs for Indians and non-Indians alike, and has had a substantial positive economic impact on the local communities in which these facilities are located.
(d) Under the existing tribal gaming compacts, Indian tribes also pay millions of dollars each year into two state special funds that are used to provide grants to local governments, to finance programs

addressing gambling addiction, to reimburse the state for the costs of regulating tribal gaming, and to share gaming revenues with other Indian tribes in the state that do not operate gaming facilities. However, because Indian tribes are sovereign governments and are exempt from most forms of taxation, they do not pay any corporate income taxes directly to the state on the profits derived from their gaming operations.
(e) Given California's current fiscal crisis, the state needs to find new ways to generate revenues for the General Fund in the State Treasury. Indian tribes want to and should do their part to assist California in meeting its budget needs by contributing to the state a fair share of the net income they receive from gaming activities in recognition of their continuing right to operate tribal gaming facilities in an economic environment free of competition from casino-styIe gaming on non-Indian lands. A fair share for the Indian tribes to contribute to the state is an amount that is equivalent to the amount of corporate taxes that a private California corporation pa~s to the state on the net income it earns from its lawful business activitIes .
(1) Accordingly, in order to provide additional revenues to the State of California in Ihis lime of fiscal crisis, this measure authorizes and requires the Governor to enter into new or amended tribal gaming compacts under which the Indian tribes agree to contribute to the state a fair share of the net income derived from their gaming activities in exchange for the continued exclusive right to operate casino-style gaming facilities in California. In addition, in order to maximize revenues for the state and to permit the free market to determine the number and type of casino games and devices that will exist on tribal lands, this measure requires these new or amended compacts to allow each tribal government to choose the number and size of the gaming facilities it operates, and the types of games offered, that it believes will maximize the tribe's income, as long as the facilities are restricted to and are located in those areas that have been designated by both the State of California and the United States government as tribal lands. Under the new or amended compacts authorized by this measure, Indian tribes must also prepare environmental impact reports analyzing the off-reservation impacts of any proposed new or expanded gaming facilities, and they must consult with the public and local government officials to develop a good-faith plan to mitigate any significant adverse environmental impacts.
SEC. 3. Section 19 of Article IV of the California Constitution is amended to read:
SEC. 19. (a) The Legislature has no power to authorize lotteries and shall prohibit the sale of lottery tickets in the State.
(b) The LegislaTUre may provide for the regulation of horse races and horse race meetings and wagering on the results.
(c) :Notwithstanding subdivision (a), the LegislaTUre by staTUte may authorize cities and counties to provide for bingo garnes, but only for charitable purposes.
(d) Notwithstanding subdivision (a), there is authorized the establishment of a California State Lottery.
I Text of Proposed Laws 145

 
 Case 3:04-cv-05161-FMS Document 21 Filed 12/28/2004 Page 1 of 14

1 DALE L. ALLEN, JR. # 145279
MARK F. HAZELWOOD # 136521
2 LOW, BALL & LYNCH 505 Montgomery Street, 7th Floor
3 San Francisco, California 94111-2584
Telephone (415) 981-6630 4 Facsimile (415) 982-1634

5 Attorneys for Defendant KEN JAMES
6

7

8

UNITED STATE DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 MICHAEL WEBER, MARY PRUITT, RODNEY )

WARE, RACHEL DELUCCI-YOUNGBERG,

)

12 JAMES BLAIR, THINH T. LAM, RUBEN RIVAS, )

JASON CRAIG, LINDA WALKER, ALL OF US OR)

13 NONE, and AMERICANS FOR SAFE ACCESS, )

)

14

Plaintiffs,

)

vs.

)

15

)

BILL LOCKYER, Attorney General of California; EVA)

16 STEINBERGER, Assistant Bureau Chief for DNA )

Programs, California Department of Justice; LANCE )

17 GIMA, Chief of the Bureau of Forensic Services,

)

California Department of Justice Laboratory;

)

18 CHARLES C. PLUMMER, Sheriff Alameda County; )

WARREN E. RUPF, Sheriff, Contra Costa County; )

19 LOU BLANAS, Sheriff, Sacramento County; JIM )

POPE, Sheriff, Shasta County; MICHAEL

)

20 HENNESSEY, Sheriff, San Francisco County;

)

ALBERT NAJERA, Chief of Police, City of

)

21 Sacramento; KEN JAMES, Chief of Police, City of )

Emeryville, and HEATHER J. FONG, Chief of Police, )

22 City of San Francisco,

)

)

23

Defendants.

)

)

24

)

NO. C 04 05161 FMS
DEFENDANT KEN JAMES’ ANSWER TO COMPLAINT
DEMAND FOR JURY TRIAL

25

Comes now defendant Ken James and in answer to the complaint on file herein admits, and alleges as

26 follows:

27

In answer to the allegations of paragraph 1 of the complaint, this defendant has no information or belief

28 to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies both

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DEFENDANT KEN JAMES’ ANSWER TO COMPLAINT DEMAND FOR JURY TRIAL

CASE NO.: C 04 05161 FMS

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1 generally and specifically, each and every, all and singular, the allegations contained therein.

2

In answer to the allegations of paragraph 2 of the complaint, this defendant admits that ballot measure

3 Proposition 69 was passed by California voters. Defendant denies both generally and specifically all other

4 allegations contained in paragraph 2.

5

In answer to the allegations of paragraph 3 of the complaint, this defendant has no information or belief

6 to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies both

7 generally and specifically, each and every, all and singular, the allegations contained therein.

8

In answer to the allegations of paragraph 4 of the complaint, this defendant has no information or belief

9 to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies both

10 generally and specifically, each and every, all and singular, the allegations contained therein.

11

In answer to the allegations of paragraph 5 of the complaint, defendant is without knowledge or

12 information sufficient to form a belief as to the truth of the allegations contained in said paragraph, and on that

13 basis denies each and every allegation contained therein.

14

In answer to the allegations of paragraph 6 of the complaint, defendant is without knowledge or

15 information sufficient to form a belief as to the truth of the allegations contained in said paragraph, and on that

16 basis denies each and every allegation contained therein.

17

In answer to the allegations of paragraph 7 of the complaint, defendant is without knowledge or

18 information sufficient to form a belief as to the truth of the allegations contained in said paragraph, and on that

19 basis denies each and every allegation contained therein.

20

In answer to the allegations of paragraph 8 of the complaint, defendant is without knowledge or

21 information sufficient to form a belief as to the truth of the allegations contained in said paragraph, and on that

22 basis denies each and every allegation contained therein.

23

In answer to the allegations of paragraph 9 of the complaint, defendant Ken James admits that he is an

24 employee of the City of Emeryville and performs official duties within the State of California. As to all of the

25 remaining allegations contained in this paragraph, except as so admitted, defendant is without sufficient

26 knowledge or information to form a belief as to the truth of the remaining allegations contained in paragraph 9,

27 and on that basis denies each and every allegation contained therein.

28

In answer to the allegations of paragraph 10 of the complaint, defendant is without sufficient knowledge

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DEFENDANT KEN JAMES’ ANSWER TO COMPLAINT DEMAND FOR JURY TRIAL

CASE NO.: C 04 05161 FMS

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1 or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis

2 denies each and every allegation contained therein.

3

In answer to the allegations of paragraph 11 of the complaint, defendant is without sufficient knowledge

4 or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis

5 denies each and every other allegation contained therein.

6

In answer to the allegations of paragraph 12 of the complaint, this defendant has no information or

7 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

8 both generally and specifically, each and every, all and singular, the allegations contained therein.

9

In answer to the allegations of paragraph 13 of the complaint, this defendant has no information or

10 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

11 both generally and specifically, each and every, all and singular, the allegations contained therein.

12

In answer to the allegations of paragraph 14 of the complaint, this defendant has no information or

13 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

14 both generally and specifically, each and every, all and singular, the allegations contained therein.

15

In answer to the allegations of paragraph 15 of the complaint, this defendant has no information or

16 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

17 both generally and specifically, each and every, all and singular, the allegations contained therein.

18

In answer to the allegations of paragraph 16 of the complaint, this defendant has no information or

19 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

20 both generally and specifically, each and every, all and singular, the allegations contained therein.

21

In answer to the allegations of paragraph 17 of the complaint, this defendant has no information or

22 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

23 both generally and specifically, each and every, all and singular, the allegations contained therein.

24

In answer to the allegations of paragraph 18 of the complaint, this defendant has no information or

25 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

26 both generally and specifically, each and every, all and singular, the allegations contained therein.

27

In answer to the allegations of paragraph 19 of the complaint, this defendant has no information or

28 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

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DEFENDANT KEN JAMES’ ANSWER TO COMPLAINT DEMAND FOR JURY TRIAL

CASE NO.: C 04 05161 FMS

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1 both generally and specifically, each and every, all and singular, the allegations contained therein.

2

In answer to the allegations of paragraph 20 of the complaint, this defendant has no information or

3 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

4 both generally and specifically, each and every, all and singular, the allegations contained therein.

5

In answer to the allegations of paragraph 21 of the complaint, this defendant has no information or

6 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

7 both generally and specifically, each and every, all and singular, the allegations contained therein.

8

In answer to the allegations of paragraph 22 of the complaint, this defendant has no information or

9 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

10 both generally and specifically, each and every, all and singular, the allegations contained therein.

11

In answer to the allegations of paragraph 23 of the complaint, this defendant has no information or

12 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

13 both generally and specifically, each and every, all and singular, the allegations contained therein.

14

In answer to the allegations of paragraph 24 of the complaint, this defendant has no information or

15 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

16 both generally and specifically, each and every, all and singular, the allegations contained therein.

17

In answer to the allegations of paragraph 25 of the complaint, defendant admits the allegations

18 contained therein.

19

In answer to the allegations of paragraph 26 of the complaint, this defendant has no information or

20 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

21 both generally and specifically, each and every, all and singular, the allegations contained therein.

22

In answer to the allegations of paragraph 27 of the complaint, this defendant has no information or

23 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

24 both generally and specifically, each and every, all and singular, the allegations contained therein.

25

In answer to the allegations of paragraph 28 of the complaint, this defendant has no information or

26 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

27 both generally and specifically, each and every, all and singular, the allegations contained therein.

28

In answer to the allegations of paragraph 29 of the complaint, this defendant has no information or

J:\1426\sf0050\P\ANSWER.wpd

-4-
DEFENDANT KEN JAMES’ ANSWER TO COMPLAINT DEMAND FOR JURY TRIAL

CASE NO.: C 04 05161 FMS

Case 3:04-cv-05161-FMS Document 21 Filed 12/28/2004 Page 5 of 14

1 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

2 both generally and specifically, each and every, all and singular, the allegations contained therein.

3

In answer to the allegations of paragraph 30 of the complaint, this defendant has no information or

4 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

5 both generally and specifically, each and every, all and singular, the allegations contained therein.

6

In answer to the allegations of paragraph 31 of the complaint, this defendant has no information or

7 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

8 both generally and specifically, each and every, all and singular, the allegations contained therein.

9

In answer to the allegations of paragraph 32 of the complaint, this defendant has no information or

10 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

11 both generally and specifically, each and every, all and singular, the allegations contained therein.

12

In answer to the allegations of paragraph 33 of the complaint, this defendant has no information or

13 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

14 both generally and specifically, each and every, all and singular, the allegations contained therein.

15

In answer to the allegations of paragraph 34 of the complaint, defendant admits the allegations

16 contained therein.

17

In answer to the allegations of paragraph 35 of the complaint, this defendant has no information or

18 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

19 both generally and specifically, each and every, all and singular, the allegations contained therein.

20

In answer to the allegations of paragraph 36 of the complaint, this defendant has no information or

21 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

22 both generally and specifically, each and every, all and singular, the allegations contained therein.

23

In answer to the allegations of paragraph 37 of the complaint, this defendant has no information or

24 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

25 both generally and specifically, each and every, all and singular, the allegations contained therein.

26

In answer to the allegations of paragraph 38 of the complaint, this defendant has no information or

27 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

28 both generally and specifically, each and every, all and singular, the allegations contained therein.

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-5-
DEFENDANT KEN JAMES’ ANSWER TO COMPLAINT DEMAND FOR JURY TRIAL

CASE NO.: C 04 05161 FMS

Case 3:04-cv-05161-FMS Document 21 Filed 12/28/2004 Page 6 of 14

1

In answer to the allegations of paragraph 39 of the complaint, this defendant has no information or

2 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

3 both generally and specifically, each and every, all and singular, the allegations contained therein.

4

In answer to the allegations of paragraph 40 of the complaint, this defendant has no information or

5 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

6 both generally and specifically, each and every, all and singular, the allegations contained therein.

7

In answer to the allegations of paragraph 41 of the complaint, this defendant has no information or

8 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

9 both generally and specifically, each and every, all and singular, the allegations contained therein.

10

In answer to the allegations of paragraph 42 of the complaint, this defendant has no information or

11 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

12 both generally and specifically, each and every, all and singular, the allegations contained therein.

13

In answer to the allegations of paragraph 43 of the complaint, this defendant has no information or

14 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

15 both generally and specifically, each and every, all and singular, the allegations contained therein.

16

In answer to the allegations of paragraph 44 of the complaint, this defendant has no information or

17 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

18 both generally and specifically, each and every, all and singular, the allegations contained therein.

19

In answer to the allegations of paragraph 45 of the complaint, this defendant has no information or

20 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

21 both generally and specifically, each and every, all and singular, the allegations contained therein.

22

In answer to the allegations of paragraph 46 of the complaint, this defendant has no information or

23 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

24 both generally and specifically, each and every, all and singular, the allegations contained therein.

25

In answer to the allegations of paragraph 47 of the complaint, defendant admits the allegations

26 contained therein.

27

In answer to the allegations of paragraph 48 of the complaint, defendant admits that Proposition 69

28 amended Sections 295 et seq. of the California Penal Code. Except as otherwise admitted, defendant is

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DEFENDANT KEN JAMES’ ANSWER TO COMPLAINT DEMAND FOR JURY TRIAL

CASE NO.: C 04 05161 FMS

Case 3:04-cv-05161-FMS Document 21 Filed 12/28/2004 Page 7 of 14

1 without sufficient knowledge or information to form a belief as to the truth of the remaining allegations contained

2 in paragraph 48, and on that basis denies each and every allegation contained therein.

3

In answer to the allegations of paragraph 49 of the complaint, defendant admits the allegations

4 contained therein.

5

In answer to the allegations of paragraph 50 of the complaint, this defendant has no information or

6 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

7 both generally and specifically, each and every, all and singular, the allegations contained therein.

8

In answer to the allegations of paragraph 51 of the complaint, this defendant has no information or

9 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

10 both generally and specifically, each and every, all and singular, the allegations contained therein.

11

In answer to the allegations of paragraph 52 of the complaint, this defendant has no information or

12 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

13 both generally and specifically, each and every, all and singular, the allegations contained therein.

14

In answer to the allegations of paragraph 53 of the complaint, this defendant has no information or

15 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

16 both generally and specifically, each and every, all and singular, the allegations contained therein.

17

In answer to the allegations of paragraph 54 of the complaint, this defendant has no information or

18 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

19 both generally and specifically, each and every, all and singular, the allegations contained therein.

20

In answer to the allegations of paragraph 55 of the complaint, this defendant has no information or

21 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

22 both generally and specifically, each and every, all and singular, the allegations contained therein.

23

In answer to the allegations of paragraph 56 of the complaint, this defendant has no information or

24 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

25 both generally and specifically, each and every, all and singular, the allegations contained therein.

26

In answer to the allegations of paragraph 57 of the complaint, this defendant has no information or

27 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

28 both generally and specifically, each and every, all and singular, the allegations contained therein.

J:\1426\sf0050\P\ANSWER.wpd

-7-
DEFENDANT KEN JAMES’ ANSWER TO COMPLAINT DEMAND FOR JURY TRIAL

CASE NO.: C 04 05161 FMS

Case 3:04-cv-05161-FMS Document 21 Filed 12/28/2004 Page 8 of 14

1

In answer to the allegations of paragraph 58 of the complaint, this defendant has no information or

2 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

3 both generally and specifically, each and every, all and singular, the allegations contained therein.

4

In answer to the allegations of paragraph 59 of the complaint, this defendant has no information or

5 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

6 both generally and specifically, each and every, all and singular, the allegations contained therein.

7

In answer to the allegations of paragraph 60 of the complaint, this defendant has no information or

8 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

9 both generally and specifically, each and every, all and singular, the allegations contained therein.

10

In answer to the allegations of paragraph 61 of the complaint, this defendant has no information or

11 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

12 both generally and specifically, each and every, all and singular, the allegations contained therein.

13

In answer to the allegations of paragraph 62 of the complaint, this defendant incorporates herein by

14 reference each and every admission, denial, and allegation of the answer to the allegations contained in

15 defendant’s answer to paragraphs 1 through 61 of the complaint.

16

In answer to the allegations of paragraph 63 of the complaint, defendant admits the allegations

17 contained therein.

18

In answer to the allegations of paragraph 64 of the complaint, this defendant has no information or

19 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

20 both generally and specifically, each and every, all and singular, the allegations contained therein.

21

In answer to the allegations of paragraph 65 of the complaint, this defendant has no information or

22 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

23 both generally and specifically, each and every, all and singular, the allegations contained therein.

24

In answer to the allegations of paragraph 66 of the complaint, this defendant incorporates herein by

25 reference each and every admission, denial, and allegation of the answer to the allegations contained in

26 defendant’s answer to paragraphs 1 through 65 of the complaint.

27

In answer to the allegations of paragraph 67 of the complaint, defendant admits the allegations

28 contained therein.

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-8-
DEFENDANT KEN JAMES’ ANSWER TO COMPLAINT DEMAND FOR JURY TRIAL

CASE NO.: C 04 05161 FMS

Case 3:04-cv-05161-FMS Document 21 Filed 12/28/2004 Page 9 of 14

1

In answer to the allegations of paragraph 68 of the complaint, this defendant has no information or

2 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

3 both generally and specifically, each and every, all and singular, the allegations contained therein.

4

In answer to the allegations of paragraph 69 of the complaint, this defendant has no information or

5 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

6 both generally and specifically, each and every, all and singular, the allegations contained therein.

7

In answer to the allegations of paragraph 70 of the complaint, this defendant incorporates herein by

8 reference each and every admission, denial, and allegation of the answer to the allegations contained in

9 defendant’s answer to paragraphs 1 through 69 of the complaint.

10

In answer to the allegations of paragraph 71 of the complaint, defendant admits the allegations

11 contained therein.

12

In answer to the allegations of paragraph 72 of the complaint, this defendant has no information or

13 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

14 both generally and specifically, each and every, all and singular, the allegations contained therein.

15

In answer to the allegations of paragraph 73 of the complaint, this defendant has no information or

16 belief to enable him to answer said allegations, and for that reason and basing his denial on that ground, denies

17 both generally and specifically, each and every, all and singular, the allegations contained therein.

18

WHEREFORE, defendant prays that plaintiffs take nothing by way of the complaint on file herein and

19 that defendant has judgment for its costs, attorneys’ fees and for such other and further relief as the court deems

20 proper.

21

FIRST AFFIRMATIVE DEFENSE

22

AS AND FOR A FIRST, SEPARATE AND DISTINCT DEFENSE, DEFENDANT ALLEGES:

23

That the complaint does not state facts sufficient to constitute a cause of action against this answering

24 defendant.

25

SECOND AFFIRMATIVE DEFENSE

26

AS AND FOR A SECOND, SEPARATE AND DISTINCT DEFENSE, DEFENDANT ALLEGES:

27

Plaintiffs were guilty of willful misconduct and wanton and reckless behavior in and about the matters

28 and events set forth in said complaint; and that said willful misconduct and wanton and reckless behavior

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DEFENDANT KEN JAMES’ ANSWER TO COMPLAINT DEMAND FOR JURY TRIAL

CASE NO.: C 04 05161 FMS

Case 3:04-cv-05161-FMS Document 21 Filed 12/28/2004 Page 10 of 14

1 contributed to the injuries and damages alleged, if any there were.

2 ///

3 ///

4

5

THIRD AFFIRMATIVE DEFENSE

6

AS AND FOR A THIRD, SEPARATE AND DISTINCT DEFENSE, DEFENDANT ALLEGES:

7

Defendant Ken James was, at all times, duly qualified, appointed and acting police officer of City of

8 Emeryville and peace officer of the State of California and in accordance with the Constitution of the United

9 States and the State of California and the laws of the United States and the laws of the State of California; and

10 at all times mentioned herein, said officer was engaged in the performance of his regularly assigned duties within

11 the scope of his duties as peace officer of the City of Emeryville.

12

FOURTH AFFIRMATIVE DEFENSE

13

AS AND FOR A FOURTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT ALLEGES:

14

This answering defendant acted in good faith and with a reasonable belief that the actions were lawful

15 and further did not directly or indirectly perform any acts whatsoever which would constitute a breach of any

16 duty owed to plaintiffs.

17

FIFTH AFFIRMATIVE DEFENSE

18

AS AND FOR A FIFTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT ALLEGES:

19

The acts of this answering defendant were lawful and proper and in all respects was reasonable and

20 legal.

21

SIXTH AFFIRMATIVE DEFENSE

22

AS AND FOR A SIXTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT ALLEGES:

23

The facts alleged in the Complaint do not involve any custom, practice, procedure or regulation of

24 defendant, which gives rise to a violation of a constitutional right pursuant to Monell v. New York City

25 Department of Social Services, 436 U.S. 658 (1978).

26

SEVENTH AFFIRMATIVE DEFENSE

27

AS AND FOR A SEVENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT

28 ALLEGES:

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DEFENDANT KEN JAMES’ ANSWER TO COMPLAINT DEMAND FOR JURY TRIAL

CASE NO.: C 04 05161 FMS

Case 3:04-cv-05161-FMS Document 21 Filed 12/28/2004 Page 11 of 14

1

Plaintiffs’ purported “class action” is barred pursuant to Emeryville Municipal Code §1-6.02(b).

2 ///

3 ///

4

EIGHTH AFFIRMATIVE DEFENSE

5

AS AND FOR A EIGHTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT ALLEGES:

6

Plaintiffs cannot establish necessary pre-requisites for class certification, pursuant to Cal. Civil Code

7 §§382; 1780-1784, or any other laws of the State of California.

8

NINTH AFFIRMATIVE DEFENSE

9

AS AND FOR A NINTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT ALLEGES:

10

Plaintiffs’ claim fails to state facts sufficient to establish a violation of equal protection under local, state

11 or federal law.

12

TENTH AFFIRMATIVE DEFENSE

13

AS AND FOR A TENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT ALLEGES:

14

Defendant is informed and believes that the complaint and each cause of action thereof is barred by the

15 doctrines of laches, unclean hands, waiver and estoppel.

16

ELEVENTH AFFIRMATIVE DEFENSE

17

AS AND FOR AN ELEVENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT

18 ALLEGES:

19

Plaintiffs’ complaint fails to establish facts sufficient to establish a community of interest in the elements

20 of the class claim.

21

TWELFTH AFFIRMATIVE DEFENSE

22

AS AND FOR A TWELFTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT

23 ALLEGES:

24

All of Ken James’ actions are privileged.

25

THIRTEENTH AFFIRMATIVE DEFENSE

26

AS AND FOR A THIRTEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT

27 ALLEGES:

28

Ken James has a qualified immunity against all of the claims contained in the complaint.

J:\1426\sf0050\P\ANSWER.wpd

-11-
DEFENDANT KEN JAMES’ ANSWER TO COMPLAINT DEMAND FOR JURY TRIAL

CASE NO.: C 04 05161 FMS

Case 3:04-cv-05161-FMS Document 21 Filed 12/28/2004 Page 12 of 14

1 ///

2

3

FOURTEENTH AFFIRMATIVE DEFENSE

4

AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT DEFENSE, DEFENDANT

5 ALLEGES:

6

Ken James has an absolute immunity against all claims contained in the complaint.

7

WHEREFORE, defendant prays that plaintiffs take nothing by way of the complaint on file herein and

8 that defendant has judgment for its costs, attorneys’ fees and for such other and further relief as the court deems

9 proper.

10

Dated: December _____, 2004.

11

LOW, BALL & LYNCH

12

By

13

DALE L. ALLEN, JR.

MARK F. HAZELWOOD

14

DEMAND FOR JURY TRIAL

15

Defendant Ken James hereby demands a jury trial as provided by Rule 38(a) of the Federal Rules of

16

Civil Procedure as to all issues or claims for which a jury trial is allowed.

17

Dated: December _____, 2004.

18

LOW, BALL & LYNCH

19

20

By

DALE L. ALLEN, JR.

21

MARK F. HAZELWOOD

Attorneys for Defendant

22

KEN JAMES

23

24

25

26

27

28

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DEFENDANT KEN JAMES’ ANSWER TO COMPLAINT DEMAND FOR JURY TRIAL

CASE NO.: C 04 05161 FMS

Case 3:04-cv-05161-FMS Document 21 Filed 12/28/2004 Page 13 of 14

1

PROOF OF SERVICE

2

I am over the age of eighteen (18) years and not a party to the within action. I am employed at

3 Low, Ball & Lynch, 505 Montgomery Street, 7th Floor, San Francisco, California 94111.

4

On the date indicated below, I served the following documents enclosed in a sealed envelope on

5 the listed addresses:

6 DOCUMENT: 7

DEFENDANT KEN JAMES’ VERIFIED ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL

8 ADDRESSES:

SEE ATTACHED SERVICE LIST

9

10 [X] 11

(BY MAIL) I placed a true copy, enclosed in a sealed, postage paid envelope, and deposited same for collection and mailing at San Francisco, California, following ordinary business practices, addressed
as set forth below.

12 [ ]
13 [ ]
14

(BY PERSONAL SERVICE) I caused each such envelope to be delivered by hand to the

addressees noted above or on the attachment herein by

Legal Services.

(BY FACSIMILE) I caused the said document to be transmitted by Facsimile transmission to the number indicated after the addresses noted above or on the attachment herein.

15 [ ] 16

(BY OVERNIGHT COURIER) I caused each such envelope addressed to the parties to be deposited in a box or other facility regularly maintained by the overnight courier or driver authorized by the overnight courier to receive documents.

17 [ ] 18

(BY CERTIFIED MAIL/RETURN RECEIPT REQUESTED) I placed a true copy, enclosed
in a sealed, postage-paid envelope, and deposited same for collection and mailing at San Francisco, California, following ordinary business practices, addressed as set forth below.

19

I am readily familiar with this law firm’s practice for the collection and processing of documents for

20 regular and certified mailing, overnight mail, and facsimile transaction, and said document(s) are deposited with

21 the United States Postal Service or overnight courier depository on the same day in the ordinary course of

22 business.

23

I declare under penalty of perjury that the foregoing is true and correct.

24

Executed at San Francisco, California on December 28, 2004.

25

26

/S/

Danielle Costes

27

28

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DEFENDANT KEN JAMES’ ANSWER TO COMPLAINT DEMAND FOR JURY TRIAL

CASE NO.: C 04 05161 FMS

Case 3:04-cv-05161-FMS Document 21 Filed 12/28/2004 Page 14 of 14

1

SERVICE LIST

2 Donald W. Brown

3

Kate S. Steinheimer Sonya D. Winner

4

Covington & Burling One Front Street

5

San Francisco, CA 94111 Telephone: 415/591-6000

6

Facsimile: 415/591-6091 Attys. for Plaintiffs

7

Margaret Campbell Crosby 8 Maya L. Harris
Julia Harumi Mass 9 American Civil Liberties Union Foundation of
Northern California, Inc. 10 1663 Mission Street, Suite 460
San Francisco, CA 94103 11 Telephone: 415/621-2493
Facsimile: 415/255-8437 12 Attys. for Plaintiffs

13
Jeffrey Dean Schwartz 14 Attorney at Law
360 Ritch Street, #201 15 San Francisco, CA 94107
Telephone: 415/777-3170
16 Facsimile: 415/681-8643
Attys. for Plaintiffs 17

Jordan Budd American Civil Liberties Union Foundation of San Diego and Imperial Counties P.O. Box 87131 San Diego, CA 92138 Telephone: 619/232-2121 Facsimile: 619/232-0036 Attys. for Plaintiffs
Peter Eliasberg Ricardo D. Garcia Mark Rosenbaum American Civil Liberties Union Foundation of Southern California 1616 Beverly Boulevard Los Angeles, CA 90026 Telephone: 213/977-9500 Facsimile: 213/250-3919 Attys. for Plaintiffs

18

19 20 21 22 23 24 25 26 27 28

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DEFENDANT KEN JAMES’ ANSWER TO COMPLAINT DEMAND FOR JURY TRIAL

CASE NO.: C 04 05161 FMS

 
 Case 3:04-cv-05161-FMS Document 26 Filed 02/04/2005 Page 1 of 15

1 BILL LOCKYER Attorney General of the State of California
2 PAUL D. GIFFORD Deputy Attorney General
3 State Bar No. 88440 1515 Clay Street, Suite 2000
4 P.O. Box 70550 Oakland, CA 94612-0550
5 Telephone: (510) 622-2253 Fax: (510) 622-2121
6 Attorneys for Defendants Lockyer, Steinberger, and Gima
7 IN THE UNITED STATES DISTRICT COURT
8 FOR THE NORTHERN DISTRICT OF CALIFORNIA
9

10 MICHAEL WEBER, ET AL.,

C 04-5161

11

Plaintiff,

12

v.

13 BILL LOCKYER, Attorney General of the State of California, et al.,
14 Defendants.
15

16

17

NOTICE OF MOTION AND MOTION OF DEFENDANTS LOCKYER,

STEINBERGER AND GIMA TO DISMISS THE COMPLAINT

18

19

Date: March 31, 2005

Time: 2:00 p.m.

20

Courtroom: 5, 17th Floor

21

22

23

24

25

26

27

28

Case 3:04-cv-05161-FMS Document 26 Filed 02/04/2005 Page 2 of 15

1

TABLE OF CONTENTS

2

Page

3 MEMORANDUM OF POINTS AND AUTHORITIES

2

4 ISSUES PRESENTED

2

5 INTRODUCTION

2

6 STATEMENT OF FACTS

4

7

I. THE NAMED PLAINTIFFS LACK STANDING TO CHALLENGE

THE SPECIFIC PROPOSITION 69 PROVISIONS CHALLENGED

8

IN THEIR COMPLAINT.

6

9

A. The challenged Proposition 69 provisions will not apply to any

individual plaintiff under the circumstances alleged in the

10

complaint.

6

11

B. The individual plaintiffs cannot sustain their burden of showing that

they have standing to challenge the targeted provisions of

12

Proposition 69.

8

13

C. The association plaintiffs also cannot satisfy their burden of

showing standing to attack the challenged provisions of Proposition

14

69.

9

15

II. PLAINTIFFS’ PREMATURE CHALLENGE TO SPECIFIC

PROVISIONS OF PROPOSITION 69 ARE NOT RIPE FOR

16

ADJUDICATION.

10

17

III. PLAINTIFFS’ INJUNCTIVE RELIEF CLAIMS DO NOT

PRESENT A JUSTICIABLE CASE OR CONTROVERSY.

11

18

CONCLUSION

11

19

20

21

22

23

24

25

26

27

28

State Defendants’ Motion to Dismiss - C 04-5161 - Weber v. Bill Lockyer - C 04-5161
i

Case 3:04-cv-05161-FMS Document 26 Filed 02/04/2005 Page 3 of 15

1

TABLE OF AUTHORITIES

2

3 Cases

4 Arizonans For Official English v. Arizona
5 520 U.S. 43, 64 (1997)

6 B.C. v. Plumas Unified School Dist. 192 F.3d 1260, 1264 (9th Cir. 1999)
7 Clinton v. Acequia, Inc.
8 94 F.3d 588, 572 (9th Cir. 1996)

9 Hunt v. Washington Apple Advertising Commission 432 U. S. 333, 343 (1977)
10 Lee v. State of Oregon
11 107 F.3d 1382, 1387 (9th Cir. 1997)

12 Los Angeles v. Lyons 461 U.S. 95, 101 (1983.)
13 Lujan v. Defenders of Wildlife
14 504 U.S. 555, 561 (1992)

15 National Public Hospitality Assn. v. Department of Interior 538 U.S. 803, 807 (2003)
16 San Diego County Gun Rights Committee v. Reno
17 98 F.3d 1121, 1126 (9th Cir. 1996)

18 Yee v. Escondido 503 U.S. 519, 533-534 (1992)
19

20 Statutes

21

California Penal Code

22

§ 295

§ 295, subds. (g) and (h)

23

§ 296, subd. (a)(2)(C)

§ 296, subd. (a)(2)

24

25 Court Rules

26

Federal Rules of Civil Procedure

27

rule 12(b)(1)

28

State Defendants’ Motion to Dismiss - C 04-5161 - Weber v. Bill Lockyer - C 04-5161
ii

Page
8, 9 8
10 9 10 11 8, 9 10 8, 9 11
5, 7 7
5, 6 7
1

Case 3:04-cv-05161-FMS Document 26 Filed 02/04/2005 Page 4 of 15

1 BILL LOCKYER Attorney General of the State of California
2 PAUL D. GIFFORD Deputy Attorney General
3 State Bar No. 88440 1515 Clay Street, Suite 2000
4 P.O. Box 70550 Oakland, CA 94612-0550
5 Telephone: (510) 622-2253 Fax: (510) 622-
6 Attorneys for Defendants

7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9 MICHAEL WEBER, ET AL.,
10 Plaintiff,
11 v.
12 BILL LOCKYER, Attorney General of the State of
13 California, et al.,

14

Defendants.

15

C 04-5161

NOTICE OF MOTION AND MOTION OF DEFENDANTS LOCKYER, STEINBERGER AND GIMA TO DISMISS THE COMPLAINT

Date:

March 31, 2005

Time:

2:00 p.m.

Courtroom: 5, 17th Floor

16

TO PLAINTIFFS AND THEIR COUNSEL OF RECORD:

17

PLEASE TAKE NOTICE that, on March 31, 2005, at 2:00 p.m., in Courtroom 5, presided

18 over by United States District Judge Fern M. Smith, at the United States District Court for the

19 Northern District of California, located at 450 Golden Gate Avenue in San Francisco, California,

20 defendants Bill Lockyer, Eva Steinberger, and Lance Gima (the State Defendants) will ask the Court

21 for an order dismissing the complaint in this case under Rule 12(b)(1) of the Federal Rules of Civil

22 Procedure.

23

By this motion, the State Defendants seek dismissal of the complaint for lack of subject

24 matter jurisdiction on the grounds that plaintiffs lack standing to pursue the claims in their

25 complaint, that there is not a case or controversy presented by these plaintiffs, and that plaintiffs’

26 proposed as-applied challenge to Proposition 69, California’s DNA Fingerprint, Unsolved Crime

27 and Innocence Protection Act, is not ripe. The State Defendants seek dismissal of plaintiffs’ entire

28 complaint for its failure to present a justiciable controversy.

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1

The State Defendants’ motion to dismiss is based on this notice of motion and motion, the

2 supporting memorandum of points and authorities, the declaration of Paul D. Gifford, and any other

3 matter that may be presented at the hearing on this motion.

4

Dated: February 4, 2005

5

Respectfully submitted,

6

BILL LOCKYER

Attorney General of the State of California

7

8

PAUL D. GIFFORD

9

Deputy Attorney General

10

Attorneys for Defendants

11

12

MEMORANDUM OF POINTS AND AUTHORITIES

13

ISSUES PRESENTED

14

As a result of an initiative overwhelmingly approved by California voters at the last general

15 election in November 2004, California’s DNA Database and Data Bank Program will ultimately

16 be expanded to include certain persons arrested for, or charged with, felonies, in addition to the

17 convicted felons already included in the program’s scope. But the nine individual named

18 plaintiffs in this proposed class action will not be subject to the expanded DNA Data Bank

19 Program on the basis of the past events alleged in their complaint, as a California Department of

20 Justice Information Bulletin distributed to law enforcement officials confirms. Do plaintiffs

21 have standing to maintain this action against the expanded DNA Data Bank Program? Is

22 plaintiffs’ as-applied challenge ripe in the absence of any application of the expanded program to

23 them? Does plaintiffs’ complaint present a current case or controversy in the absence of any

24 credible showing that they are or will be subject to the expanded program?

25

INTRODUCTION

26

On November 2, 2004, California voters passed Proposition 69, a measure known as the

27 DNA Fingerprint, Unsolved Crime and Innocence Protection Act. In relevant part, Proposition

28 69 amended California’s extant DNA Database and Date Bank Program immediately to include

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1 in mandatory DNA sample collection persons convicted of any felony offense and persons

2 arrested for or charged with murder, voluntary manslaughter or specified sex crimes. Their

3 DNA samples will be taken by buccal cheek swab. The pertinent portion of Proposition 69 also

4 amended the Data Bank Program to include in mandatory DNA sample collection, beginning in

5 January 2009, adults arrested for or charged with any felony offense. Plaintiffs’ challenge is

6 aimed at the future implementation of this 2009 arrestee provision of California’s DNA Data

7 Bank Program.

8

The named individual plaintiffs say they fall into two categories, which they propose as

9 plaintiff classes: (1) Plaintiffs Weber, Blair, Rivas, Ware, Craig, and Lam allegedly are persons

10 who will be compelled to submit DNA samples solely by reason of the fact that they have

11 previously been arrested for, or charged with, a felony; (2) plaintiff Walker allegedly is subject

12 to compelled DNA sample collection, because she was previously convicted of a felony,

13 although she is no longer subject to any criminal justice system supervision, having completed

14 all periods of probation or parole. Plaintiff Walker is a member of plaintiff All of Us or None,

15 an unincorporated association that allegedly works to eliminate the stigma and other residual

16 consequences of past felony convictions and incarceration. Americans for Safe Access, a non-

17 profit corporation involved in medical marijuana advocacy, is also a plaintiff. The complaint

18 does not allege that any individual plaintiff is a member of this organization.

19

Plaintiffs expressly and specifically make an as-applied challenge to Proposition 69.

20 (Complaint, p. 20, ¶60; p. 22, ¶¶ 1-2.) They allege that Proposition 69 is unconstitutional as

21 applied to persons who have only been arrested for, or charged with, a felony and to persons who

22 have been convicted of felonies, but who have completed their periods of incarceration or who

23 have are no longer subject to any criminal justice system supervision. Plaintiffs seek declaratory

24 and injunctive relief.

25

But plaintiffs lack standing to challenge Proposition 69 as allegedly applied to their

26 circumstances or to their proposed classes. Plaintiffs are not, and will not be, subject to

27 compulsory DNA sample collection under Proposition 69 under the circumstances alleged in

28 their complaint. And their claims are not justiciable; ripeness and a present case or controversy

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1 are lacking, particularly as to any injunctive relief claim. As even plaintiffs admit, the allegedly

2 offending Proposition 69 provisions could not be applied to them until January 2009. Thus,

3 there is no real and immediate threat of harm posed to these plaintiffs. For all these reasons, the

4 State Defendants ask that plaintiffs’ complaint be dismissed.

5

STATEMENT OF FACTS1/

6

With one exception, the named individual plaintiffs were arrested before November 2,

7 2004, the date California voters approved Proposition 69. Plaintiffs allege that Mary Pruitt was

8 arrested on October 15, 2001 (Complaint, p. 6, ¶13); that Rodney Ware was arrested in April

9 2004 (Complaint, p. 7, ¶14); that Rachel Delucci-Youngberg was arrested in July 2001

10 (Complaint, p. 7, ¶15); that James Blair was arrested in December 2003, and January 2004

11 (Complaint, pp. 7-8, ¶16); that Thinh Lam was arrested on April 29, 2003 (Complaint, p. 8, ¶17);

12 that Ruben Rivas was arrested in 2000 (Complaint, p. 8,, ¶18); that Jason Craig was arrested in

13 February 2004 (Complaint, p. 9, ¶19); that Linda Walker was arrested numerous times during the

14 years from 1983 to 1993 (Complaint, p. 8, ¶20). The exception is Michael Weber, who allegedly

15 was arrested on November 3, 2004. (Complaint, p. 6, ¶12.) According to the complaint, Weber

16 was arrested for felony assault on a peace officer. (Complaint, p. 6, ¶12.)

17

Plaintiffs allege that only Mary Pruitt and Linda Walker have been convicted of a felony.

18 The other seven individual plaintiffs have not been convicted of a felony. And Thinh Lam is the

19 lone plaintiff currently incarcerated, while awaiting trial for murder. (Complaint, p. 10, ¶22.)

20

The individual plaintiffs have not provided DNA samples under Proposition 69. Although

21 plaintiff Lam has been required to provide a DNA sample by previous court order, that order

22 precludes the inclusion of Lam’s sample in any state or national DNA database. (Complaint, pp.

23 9-10, ¶21.)

24

Plaintiffs say that All of Us or None is an unincorporated association promoting the

25 interests of former felons. Its membership includes many former California felons who have

26

27 1. This statement of facts reports or summarizes only those allegations relevant to plaintiffs’
28 standing, the absence of a case or controversy, or the lack of ripeness.

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1 completed service of their sentences and who are no longer subject to any criminal justice

2 system supervision. (Complaint, p. 10, ¶23.) Plaintiff Linda Walker is a member of this

3 organization. (Complaint, p. 9, ¶20.)

4

According to the complaint, Americans for Safe Access is a non-profit corporation trying to

5 protect the interests of patients and doctors using marijuana for medical purposes. Plaintiffs

6 allege that this organization’s members will be subject to Proposition 69's DNA sample

7 submission requirements solely on the basis of arrest for offenses that will be defensible under

8 California medical marijuana laws. (Complaint, pp. 10-11, ¶24.)

9

The California Department of Justice has widely distributed to California law enforcement

10 authorities an Information Bulletin describing as its subject “Proposition 69 – DNA Fingerprint,

11 Unsolved Crime and Innocence Protection Act, Effective November 23, 2004.” (Gifford Decl. p.

12 1, ¶2.) Although the bulletin has not yet issued in its final form, it has been distributed

13 throughout the California law enforcement community, and it is being used in Department of

14 Justice training sessions for California law enforcement agencies. (Gifford Decl., pp.2-3, ¶3.)

15 The bulletin “addresses central features of Proposition 69, including the responsibilities of law

16 enforcement, correctional agencies, and mental health and sex offender treatment facilities with

17 respect to the State’s DNA Data Bank Program (PC 295 et seq.).” (Gifford Decl., Exhibit A,

18 p.1.)

19

Under the heading “Limitations on Collection,” the DOJ bulletin explains: “Proposition 69

20 does not authorize DNA sample collection for any arrests that occurred before November 3,

21 2004, nor does it authorize DNA sample collection upon arrest based on prior felony convictions

22 or adjudications of record. Likewise, the broader collection of felony arrestee samples from

23 adults that will begin on January 1, 2009, is not retroactive to arrests that took place before

24 January 1, 2009. (PC 296(a)(2)(C).)” (Gifford Decl., Exhibit A, p. 4 [italics in original].)

25 Similarly, in a section specifying the persons who qualify for DNA sample collection under

26 Proposition 69, the DOJ bulletin says that the new law will require DNA samples from “all

27 adults arrested for any felony offense on or after January 1, 2009.” (Gifford Decl., Exhibit A, p.

28 3.) It makes clear that “[t]his expansion of the arrestee provision is not retroactive to arrests that

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1 took place before January 1, 2009.” (Gifford Decl., Exhibit A, p. 3.)

2

ARGUMENT

3

I.

4 THE NAMED PLAINTIFFS LACK STANDING TO CHALLENGE THE SPECIFIC PROPOSITION 69 PROVISIONS CHALLENGED IN THEIR COMPLAINT.
5

6

Plaintiffs make clear that they do not challenge Proposition 69 in its entirety. (Complaint,

7 p. 5, ¶7.) Rather, their as-applied challenge (Complaint, p.20, ¶60) attacks solely the new

8 California Penal Code provisions that allegedly subject all adult felony arrestees and former

9 convicted felons to DNA testing requirements. But plaintiffs do not have standing to bring their

10 premature action.

11

A. The challenged Proposition 69 provisions will not apply to any

individual plaintiff under the circumstances alleged in the complaint.

12

Plaintiffs’ complaint is based on the mistaken assumption that Proposition 69 is completely

13

retroactive. According to plaintiffs, Proposition 69 will require that any person who has ever

14

been arrested for, or charged with, any felony submit to DNA testing after January 1, 2009.

15

(Complaint, p. 17, ¶51.) Plaintiffs also mistakenly say that Proposition 69 compels the collection

16

of DNA samples from all former felons, regardless of their completion of sentences and releases

17

from criminal justice supervision.

18

As amended by Proposition 69, California Penal Code section 296, subdivision (a)(2)(C)

19

requires that “any adult person arrested or charged with any felony offense” provide a DNA

20

sample “commencing on January 1 of the fifth year following enactment of ...” Proposition 69.

21

Since Proposition 69 was enacted in 2004, compulsory DNA sample collection from all adult

22

felony arrestees will begin in January 2009.

23

Despite plaintiffs’ contrary allegations, the State defendants would and could argue that

24

Penal Code section 296, subdivision (a)(2)(C) is not retroactive. But extended debate on this

25

point is not necessary, because California’s chief law enforcement official, its Attorney General,

26

says that the expanded arrestee provisions of Proposition 69 are not retroactive to arrests that

27

occur before January 1, 2009. (Gifford Decl., Exhibit A, p. 4.)

28

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1

Under California’s DNA and Forensic Identification Database and DNA Data Bank Act,

2 California Penal Code section 295 et seq., the California Department of Justice is responsible for

3 implementing the state’s DNA Data Bank laws and for management and administration of the

4 DNA program. Cal. Penal Code § 295, subds. (g) and (h). Fulfilling its responsibility under the

5 Act, the Department of Justice has widely distributed an Information Bulletin directed to

6 “California Law Enforcement Agencies and Personnel.” (Gifford Decl., Exhibit A, p. 1.) That

7 bulletin, which is being used in training of law enforcement personnel statewide, excludes all the

8 individual plaintiffs from compulsory DNA sample collection based on the facts and

9 circumstances alleged in their complaint, because it explains that Proposition 69's expanded

10 arrestee provisions do not apply to persons arrested before January 1, 2009. (Gifford Decl.,

11 Exhibit A, pp. 3 and 4.)

12

According to the complaint, eight of the nine individual plaintiffs were arrested for, or

13 charged with, felonies before November 2, 2004. All those plaintiffs are not, and will not be,

14 subject to any compulsory DNA sample collection under Proposition 69 based on their earlier

15 arrests or convictions as alleged in the complaint. The one individual plaintiff arrested after

16 November 2, 2004, Michael Weber, also is not, and will not be, subject to Proposition 69's

17 mandatory DNA sample submission requirements.

18

Plaintiffs allege that Mr. Weber was arrested on November 3, 2004, for felony assault on a

19 police officer. (Complaint, p. 6, ¶12.) His charged offense, however, does not make him a

20 person who qualifies for compulsory sample collection. Until January 1, 2009, California’s

21 DNA law requires only certain felony arrestees to provide DNA samples. Penal Code section

22 296, subdivision (a)(2) currently authorizes DNA sample collection from persons arrested for

23 murder, voluntary manslaughter, a felony sex offense, or an attempt to commit one of those

24 enumerated crimes. Until January 1, 2009, an arrest for any other felony offense does not

25 qualify the arrested person for DNA sample submission. Thus, Mr. Weber is likewise not

26 subject to Proposition 69's sample submission requirements.

27 ///

28 ///

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1

B. The individual plaintiffs cannot sustain their burden of showing that

they have standing to challenge the targeted provisions of Proposition

2

69.

3

Plaintiffs bear the burden of establishing their standing to bring this action. Lujan v.

4 Defenders of Wildlife, 504 U.S. 555, 561 (1992). The required showing demands satisfaction of

5 the three minimum Article III standing elements. Plaintiffs must first show they have suffered

6 an injury in fact. Because they seek solely equitable relief, plaintiffs must establish a very

7 significant possibility of future harm. San Diego County Gun Rights Committee v. Reno, 98 F.3d

8 1121, 1126 (9th Cir. 1996). They then must establish a causal connection between their claimed

9 injury and the defendants’ conduct. Lujan v. Defenders of Wildlife, 504 U.S. at 561. Finally,

10 plaintiffs must show that their injury will likely be redressed by a favorable decision. Id. at 560-

11 561. Plaintiffs cannot sustain their burden, which is an indispensable part of their case, not a

12 mere pleading requirement. Id. at 561.2/

13

Plaintiffs have not suffered, and will not suffer, any injury caused by Proposition 69. To

14 satisfy the injury element, plaintiffs must show “an invasion of a legally protected interest.” The

15 injury must be “concrete and particularized” and “‘actual or imminent.’” Lujan v. Defenders of

16 Wildlife, 504 U.S. at 560 (quoting Whitmore v. Arkansas, 495, U.S. 149, 155 (1990)). “An

17 interest shared generally with the public at large in the proper application of the Constitution and

18 the laws will not do.” Arizonans For Official English v. Arizona, 520 U.S. 43, 64 (1997).

19

At best, plaintiffs allege conjectural or hypothetical harm – a threat of compelled DNA

20 sample collection in 2009 – based on their own, unofficial interpretation of Proposition 69's

21 expanded arrestee provisions. They have not suffered any injury in fact, even if they

22 unreasonably fear future DNA sample submission. Their unfounded fear is ethereal angst, not a

23 concrete and particularized injury.

24

Plaintiffs also cannot establish any causal connection between an alleged injury and the

25 State defendants’ conduct. They bear the burden of showing that Proposition 69 is or will be

26

27 2. As proposed class representatives, the individual plaintiffs must have standing for the
28 class to have standing. B.C. v. Plumas Unified School Dist., 192 F.3d 1260, 1264 (9th Cir. 1999).

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1 enforced in their feared fashion. San Diego County Gun Rights Committee v. Reno, 98 F.3d at

2 1127. But the Department of Justice’s Information Bulletin confirms that the State defendants do

3 not interpret or intend to apply Proposition 69 in the manner that plaintiffs fear. That bulletin

4 also confirms that the State defendants will not be taking any action to compel plaintiff’s

5 submission of DNA samples based on the facts alleged in their complaint. Thus, plaintiffs will

6 not be able to trace some claimed injury to the State defendants’ actions, failing another element

7 of the standing test. Lujan v. Defenders of Wildlife, 504 U.S. at 560.

8

C. The association plaintiffs also cannot satisfy their burden of showing

standing to attack the challenged provisions of Proposition 69.

9

The named plaintiffs include two associations, All of Us or None and Americans for Safe

10

Access. Plaintiff Linda Walker claims to be a member of All of Us or None, an unincorporated

11

association that works to protect or to advance of the interests of former felons or inmates.

12

(Complaint, p. 10, ¶23.) No individual plaintiff claims membership in Americans for Safe

13

Access, a non-profit corporation acting as a medical marijuana advocacy organization.

14

(Complaint, pp. 10-11, ¶24.) These two association plaintiffs also lack standing.

15

An association has standing to sue only if its members would have standing in their own

16

right. Arizonans For Official English v. Arizona, 520 U.S. at 65-66. The requisite concrete

17

injury to the association’s members must be apparent. Id. at 66. To establish standing, an

18

association suing in a representative capacity must also show that “the interests it seeks to

19

protect are germane to the organization’s purpose” and “neither the claim asserted nor the relief

20

requested requires the participation of individual members in the lawsuit.” Hunt v. Washington

21

Apple Advertising Commission, 432 U. S. 333, 343 (1977).

22

Besides baldly saying that Proposition 69's implementation will have “an immediate and

23

severe impact on the constitutional rights” of their members (Complaint, p. 10, ¶¶ 23-24), the

24

association plaintiffs make little effort to satisfy the three-part test for association standing.

25

Plaintiffs do not allege any apparent concrete injury to these associations’ members. They make

26

no attempt to show that the interests their lawsuit seeks to protect are germane to the

27

associations’ alleged purposes – protecting and advancing former felons’ rights or interests and

28

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1 medical marijuana advocacy and training. For these reasons, and because any association

2 members would lack standing on the basis of the allegations in the complaint, plaintiffs All of Us

3 or None and Americans for Safe Access lack standing to pursue plaintiffs’ claims.

4

II.

5

PLAINTIFFS’ PREMATURE CHALLENGE TO SPECIFIC PROVISIONS OF

PROPOSITION 69 ARE NOT RIPE FOR ADJUDICATION.

6

The State defendants’ standing argument contends that the named plaintiffs are not the

7

proper parties to litigate this matter. The State defendants also contend that plaintiffs’ claims are

8

premature; that is, their specific Proposition 69 challenges are not ripe for adjudication. The lack

9

of ripeness requires dismissal of the complaint.

10

Ripeness is a justiciability doctrine designed to prevent premature adjudication. National

11

Public Hospitality Assn. v. Department of Interior, 538 U.S. 803, 807 (2003). Ripeness is

12 essentially a question of timing. Clinton v. Acequia, Inc., 94 F.3d 588, 572 (9th Cir. 1996). The

13

ripeness doctrine seeks to avoid judicial entanglement in abstract disagreements. Lee v. State of

14

Oregon, 107 F.3d 1382, 1387 (9th Cir. 1997).

15

A ripeness determination requires evaluation of “(1) the fitness of the issues for judicial

16

decision and (2) the hardship to the parties of withholding court consideration.” National Public

17

Hospitality Assn. v. Department of Interior, 538 U.S. at 808. In this case, the required evaluation

18

leads inevitably to the conclusion that plaintiffs’ claims are not ripe.

19

Even assuming for the sake of argument that plaintiffs correctly interpret Proposition 69 as

20

retroactively applicable to them – subjecting them to possible DNA sample submission in 2009 –

21

the State defendants contend that plaintiffs’ issues are not presently fit for judicial decision. As

22

framed by plaintiffs, their dispute hinges on a future contingency that may never occur, the

23

compelled collection of their DNA samples in 2009, on the basis of arrests that allegedly

24

occurred long before that year. For that reason alone, plaintiffs’ case is not ripe. Clinton v.

25

Acequia, Inc., 94 F.3d at 572.

26

Plaintiffs also cannot show any immediate and certain injury. The absence of that showing

27

means that their dispute “has not ‘matured sufficiently to warrant judicial intervention’.” Clinton

28

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1 v. Acequia, Inc., 94 F.3d at 572, (quoting Warth v. Seldin, 427 U.S. 490, 499 n.10 (1975)). This

2 Court should not entertain plaintiffs’ premature action.

3

And plaintiffs will not suffer any hardship from the postponement of judicial action. Even

4 under plaintiffs’ interpretation of Proposition 69, they will not be at any risk of compelled DNA

5 sample collection until January 1, 2009. Because plaintiffs try to make an as-applied challenge

6 to limited portions of Proposition 69, their case should await any application of that law to them.

7 See Yee v. Escondido, 503 U.S. 519, 533-534 (1992).

8

Plaintiffs’ fail to present issues fit for judicial decision at this time. They are not able to

9 establish any hardship from postponement of judicial intervention in their claims. Accordingly,

10 their complaint should be dismissed for lack of ripeness.

11

III.

12 PLAINTIFFS’ INJUNCTIVE RELIEF CLAIMS DO NOT PRESENT A JUSTICIABLE CASE OR CONTROVERSY.
13 “It goes without saying that those who seek to invoke the jurisdiction of the federal courts
14 must satisfy the threshold requirement imposed by Art. III of the Constitution by alleging an
15 actual case or controversy.” Los Angeles v. Lyons, 461 U.S. 95, 101 (1983.) Plaintiffs’ claims
16 for injunctive relief do not satisfy this requirement.
17 Plaintiffs do not allege a likelihood of substantial and immediate injury. Because there is at
18 least serious doubt whether the named plaintiffs will ever be subject to compelled DNA sample
19 submission on the basis of the facts alleged in their complaint, their claim of future injury – in
20 2009 – is speculative. That conjectural claim is not an adequate basis for plaintiffs’ desired
21 injunctive relief. Los Angeles v. Lyons, 461 U.S. at 111. For this reason, too, their complaint
22 should be dismissed.
23 CONCLUSION
24

25

Plaintiffs are not the proper parties to litigate any claims about the validity of the

26 Proposition 69 provisions that may never, and should not ever, be applied to them on the basis of

27 the allegations in their complaint. Their claims are also premature, as, even under plaintiffs’

28 interpretation of Proposition 69, there should not be any risk of plaintiffs’ compelled DNA

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1 sample submission until 2009. In part for that same reason, plaintiffs’ injunctive relief claims do

2 not present a case or controversy. Accordingly, the State defendants’ motion to dismiss the

3 complaint for lack of subject matter jurisdiction should be granted.

4

Dated: February 4, 2005

5

Respectfully submitted,

6

BILL LOCKYER

Attorney General of the State of California

7

8

PAUL D. GIFFORD

9

Deputy Attorney General

10

Attorneys for Defendants

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1 BILL LOCKYER Attorney General of the State of California
2 PAUL D. GIFFORD, State Bar No. Deputy Attorney General
3 1515 Clay Street, 20th Floor P.O. Box 70550
4 Oakland, CA, CA 94612-0550 Telephone: (510) 622-2253
5 Fax: (510) 622-2270 Attorneys for Defendants Lockyer, Steinberger, and
6 Gima

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10 MICHAEL WEBER ET AL.,
11 Plaintiffs,
12 v.
13 BILL LOCKYER, Attorney General of the
14 State of California, et al.,

15

Defendants.

C 04 5161 FMS

DECLARATION OF PAUL D. GIFFORD IN SUPPORT OF STATE DEFENDANTS’ MOTION TO DISMISS

Date: Time: Courtroom:

March 31, 2005 2:00 p.m. 5, 17th Floor

16

17

I, Paul D. Gifford, state that:

18

1. I am a deputy attorney general in the Civil Division of the California Attorney

19 General’s Office. I am one of the attorneys assigned to represent the state defendants in this case,

20 Bill Lockyer, Eva Steinberger, and Lance Gima. I am working with two Criminal Division deputy

21 attorneys general, Enid Camps and Michael Chamberlain, on this case.

22

2. Attached to this declaration as Exhibit A is a true copy of a draft California

23 Department of Justice Division of Law Enforcement Information Bulletin, No. 04-BFS-03. The

24 subject of the bulletin is “Proposition 69 – DNA Fingerprint, Unsolved Crime and Innocence

25 Protection Act, Effective November 3, 2004.” The bulletin is addressed to “California Law

26 Enforcement Agencies and Personnel.”

27

3. I am informed and believe that my Criminal Division colleagues, Enid Camps and

28 Michael Chamberlain, and other Department of Justice personnel are currently using the attached

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1 bulletin in statewide training sessions on Proposition 69 being offered to law enforcement personnel

2 throughout California.

3

4. I make this declaration on the basis of personal knowledge and on the basis of

4 information provided to me in my official capacity.

5

I declare under penalty of perjury that the statements in this declaration are true and that

6 I executed this declaration in Oakland, California on February , 2005.

7

8

__________________________

Paul D. Gifford

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

2

3

4

5

6

7 IN THE UNITED STATES DISTRICT COURT
8 FOR THE NORTHERN DISTRICT OF CALIFORNIA
9

10 MICHAEL WEBER, ET AL.,

C 04-5161

11

Plaintiff,

12

v.

13 BILL LOCKYER, Attorney General of the State of California, et al.,
14 Defendants.
15

[PROPOSED] ORDER GRANTING MOTION OF DEFENDANTS LOCKYER, STEINBERGER AND GIMA TO DISMISS THE COMPLAINT

16

17

On March 31, 2005, the Court held the hearing on the motion of defendants Bill Lockyer,

18 Eva Steinberger, and Lance Gima (the state defendants) to dismiss plaintiffs’ complaint under Rule

19 12(b)(1) of the Federal Rules of Civil Procedure. The state defendants contend that the named

20 plaintiffs lack standing, that their claims are not ripe for adjudication, and that their injunctive relief

21 claims do not present a justiciable case or controversy. The state defendants argue that, as

22 interpreted by responsible state law enforcement officials, the challenged provisions of California’s

23 Proposition 69, have not been, and will not be, applied to the named plaintiffs under the

24 circumstances alleged in their complaint.

25

The Court has read and considered the state defendants’ motion and supporting papers,

26 plaintiffs’ opposition, and the state defendants’ reply. The Court heard and considered the

27 arguments of counsel. Good cause appearing therefor,

28 ///

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IT IS HEREBY ORDERED that the state defendants’ motion to dismiss for lack of subject

2 matter jurisdiction is granted and that plaintiffs’ complaint is dismissed under Rule 12(b)(1) of the

3 Federal Rules of Civil Procedure.

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Dated: _________________

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______________________________ FERN M. SMITH United States District Judge

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Order Granting State Defendants’ Motion to Dismiss - C 04-5161 - Weber v. Bill Lockyer
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 365 F.Supp.2d 1119 (2005)
Michael WEBER, et al., Plaintiffs, v.
Bill LOCKYER, et al., Defendants.
No. C04-5161 FMS.
United States District Court, N.D. California.
April 22, 2005.
11201 *1120 *1121 Sonya D. Winner, Donald W. Brown, Jeffrey Dean Schwartz, Jordan Budd, Julia Harumi Mass, Esq., Kate S. Steinheimer, Margaret Campbell Crosby, Maya L. Harris, San Francisco, CA, Mark Rosenbaum, Peter Eliasberg, Ricardo D. Garcia, Los Angeles, CA, for Plaintiffs.
Dale L. Allen, Jr., Mark F. Hazelwood, San Francisco, CA, for Defendant.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
FERN M. SMITH, District Judge.
I. INTRODUCTION
This action is a class action lawsuit challenging the constitutionality of Proposition 69, passed into law by California voters on November 2, 2004. Plaintiffs claim that the portions of the new law that require DNA testing of people who are arrested for but not convicted of a crime and people that were convicted of a felony in the past but are no longer subject to supervision by the criminal justice system violate the Fourth and Fourteenth Amendments. Defendants, including the Attorney General of California and other California law enforcement officials, move to dismiss the action on the basis that the plaintiffs lack standing and their challenge is not ripe for adjudication. The Court issued a Tentative Order granting defendants' Motion to Dismiss on April 12, 2005, and heard oral argument in April 14, 2005. For the following reasons, the Court now issues this final Order GRANTING defendants' Motion to Dismiss.
II. BACKGROUND
California voters passed Proposition 69, entitled the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, on November 2, 2004. Complaint, Ex. A. Proposition 69 amended the California Penal Code, Sections 295 et seq. to expand the group of people subject to mandatory DNA testing and inclusion in California's DNA Database and Data Bank Program. Previously, persons convicted of certain sex crimes and other violent crimes were subject to mandatory DNA testing. Effective November 3, 2004, persons convicted of any felony offense and persons arrested for or charged with murder, voluntary manslaughter and certain sex crimes became subject to mandatory DNA testing. Effective January 1, 2009, adults arrested for or charged with any felony offense become subject to mandatory DNA testing (the "2009 arrestee provision"). Under the new law, DNA samples are generally taken by buccal cheek swab.
Plaintiffs filed their complaint challenging the constitutionality of certain provisions of Proposition 69 on December 7, 2004. Plaintiffs attack the provisions of Proposition 69 that allegedly subject all adult felony arrestees and former convicted felons to compulsory DNA testing. Plaintiffs contend that subjecting people who have not been convicted of a crime and people who have been previously convicted but who are no longer subject to the criminal justice system to compulsory DNA testing violates their rights under the Fourth and Fourteenth Amendments.
1122

*1122 Plaintiffs include both individuals and organizations. The named individual plaintiffs fall into two categories. The first category, which includes plaintiffs Weber, Ware, Delucci-Youngberg, Blair, Rivas, and Craig, were arrested for or charged with a felony on or before November 3, 2004 but were not convicted of a felony (the "Arrestee Class").[1] The second category includes plaintiffs Walker and Pruitt, both of whom were convicted of or pled guilty to a felony before the new law took effect, completed their sentences, and are no longer subject to the criminal justice system (the "Formerly Convicted Persons Class"). The two organizational plaintiffs are Americans for Safe Access, of which plaintiff Blair is a member, and All of Us or None, of which individual plaintiff Walker is a member. Plaintiffs seek declaratory and injunctive relief providing that Proposition 69 is unconstitutional as applied to members of the Arrestee Class and the Formerly Convicted Persons Class, and enjoining defendants from testing or assisting others in testing DNA from any member of the Arrestee Class and the Formerly Convicted Persons Class.
Defendants include Bill Lockyer, Attorney General of the State of California; Eva Steinberger, Assistant Bureau Chief for DNA Programs of the California Department of Justice ("DOJ") and Lance Gima, Chief of the Bureau of Forensic Services of the DOJ (the "State Defendants"). Defendants also include the Sheriffs of the Counties of Alameda, Contra Costa, Sacramento, Shasta, and Sacramento, and the Chiefs of Police of the Cities of Sacramento, Emeryville and San Francisco. All defendants are sued in their official capacity. The State Defendants moved to dismiss plaintiff's action for lack of standing and ripeness on February 4, 2005. All other defendants have joined in the State Defendants' Motion to Dismiss.
In their moving papers, defendants bring to the Court's attention an Information Bulletin issued by the California Department of Justice on January 11, 2005 with the subject "Proposition 60-DNA Fingerprint, Unsolved Crime and Innocence protection Act, Effective November 23, 2004" (the "Bulletin"). Defendants state that although the Bulletin has not yet issued in its final form, it has been distributed to and is being used in training sessions for California law enforcement authorities. Motion to Dismiss at 5. The Bulletin states that "Proposition 69 does not authorize DNA sample collection for any arrests that occurred before November 3, 2004, nor does it authorize DNA sample collection upon arrest based on prior felony convictions or adjudications of record. Likewise, the broader collection of felony arrestee samples from adults that will begin on January 1, 2009, is not retroactive to arrests that took place before January 1, 2009."
III. DISCUSSION
Defendants state that plaintiffs are not, and will not be, subject to compulsory DNA testing under Proposition 69 under the circumstances alleged in their complaint. On this basis, defendants contend that plaintiffs lack standing in this as-applied challenge and that their case is unripe. They contend that plaintiffs' complaint is based on the "mistaken assumption that Proposition 69 is completely retroactive" and will require DNA testing of persons in the 1123 Arrestee Class and Formerly Convicted Persons Class. Defendants *1123 argue that Proposition 69 is not, in fact, retroactive in the manner alleged by plaintiffs based on both a common-sense interpretation of the statute and on the guidance to law enforcement officials contained in the Bulletin. The parties appear to agree that if the Bulletin were followed by law enforcement officials, members of the Arrestee Class and Formerly Convicted Persons Class would not be subject to compulsory DNA testing under Proposition 69.
Plaintiffs, however, argue that the Bulletin is not binding on the Attorney General and other law enforcement officials. Plaintiffs contend that Proposition 69 plainly states that any person who has been convicted of or pled guilty or no contest to a felony offense, as well as any person who has been arrested for certain specified offenses, is immediately subject to DNA testing, CPC § 296(a)(1), and commencing January 1, 2009, "any adult person arrested of charged with any felony offense" will be subject to DNA testing. CPC § 296(a)(2)(C). Plaintiffs emphasize that Proposition 69 includes a section on "retroactive application," stating that the new testing requirements "shall have retroactive application," and that testing shall occur "regardless of when the crime charged or committed became a qualifying offense, and regardless of when the person was convicted of the qualifying offense..." CPC § 296.1(b)(1). Based on what they view as the plain language of Proposition 69, plaintiffs argue that they are currently subject to DNA sampling or will be so subject on January 1, 2009. They argue that a draft non-binding guidance document issued by the Attorney General does not ensure that the statute will not be enforced against them or other similarly situated persons.

The "irreducible constitutional minimum" of Article III standing includes three elements: (1) a plaintiff must have suffered an "injury-in-fact" to a legally protected interest, and the injury must be both "concrete and particularized" and "actual or imminent," as opposed to "conjectural or hypothetical," (2) there must be a causal connection between the injury and the challenged statute, and (3) it must be likely that the injury will be "redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Ripeness is a justiciability doctrine designed "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Nat'l Park Hospitality Ass'n v. DOI, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003), citing Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).
As explained by the Ninth Circuit in Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134 (9th Cir.2000) (en banc), there is significant overlap between standing and ripeness such that "[s]orting out where standing ends and ripeness begins is not an easy task." Like this case, Thomas involved a pre-enforcement challenge to a statute. In Thomas, the plaintiff landlords mounted an as-applied First Amendment challenge to the Alaska housing laws that prohibited discrimination on the basis of marital status. The plaintiffs claimed that their free exercise of religion and free speech rights were abridged by the law's prohibitions against allowing landlords to refuse to rent on the basis of marital status, to ask prospective tenants about their marital status, or to advertise a 1124 preference based on marital status. The Thomas court held that the plaintiffs' pre-enforcement *1124 challenge was not ripe for adjudication.
In Thomas, as in the instant case, whether the question is viewed as one of standing or ripeness, the analysis is the same. Id. at 1139. For both, the Constitution mandates that prior to our exercise of jurisdiction there exist a constitutional "case or controversy," that the issues presented are "definite and concrete, not hypothetical or abstract." Thomas at 1139, citing Railway Mail Ass'n v. Corsi, 326 U.S. 88, 93, 65 S.Ct. 1483, 89 L.Ed. 2072 (1945). In assuring that this jurisdictional prerequisite is satisfied, a court considers whether the plaintiffs face "a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement," Thomas at 1139, citing Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979), or whether the alleged injury is too "imaginary" or "speculative" to support jurisdiction. Thomas at 1139. The Ninth Circuit has repeatedly held that neither the mere existence of a proscriptive statute nor a generalized threat of prosecution satisfies the "case or controversy" requirement. See, e.g., Thomas at 1139; San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126-27 (9th Cir.1996); Stoianoff v. Montana, 695 F.2d 1214, 1223 (9th Cir.1983).
The Thomas court set out a framework to analyze whether a constitutional challenge to a state statute before its enforcement was ripe for review. The Ninth Circuit explained that the ripeness inquiry focuses on two different components: a constitutional component and a prudential component. Id. at 1138. The constitutional component of the inquiry focuses on three factors: (1) whether the plaintiffs have articulated a "concrete plan" to violate the law in question, (2) whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings, and (3) the history of past prosecution or enforcement under the challenged statute. Id. at 1139. Analysis of the prudential component of ripeness is guided by two considerations: "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Thomas, 220 F.3d at 1141, citing Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).
The parties agree that plaintiffs may be considered to have met the first prong of the Thomas test because they have already engaged in the conduct that makes them subject to DNA testing under Proposition 69. The second and third prongs of the Thomas inquiry, however, show that the plaintiffs' claimed injury 0907 their fear that they will be subject to DNA testing 0907 fails the constitutional component of the ripeness inquiry.
With respect to the second prong, the Court observes that prosecuting authorities have not communicated any specific warnings or threats to initiate DNA testing against plaintiffs. Plaintiffs have not cited any examples in which law enforcement officials have applied or threatened to apply Proposition 69 to plaintiffs or similarly situated persons. Plaintiffs contend, however, that this case is different from cases such as Thomas in which law

enforcement officials have discretion to prosecute. Plaintiffs contend that DNA testing under Proposition 69 is a mandatory administrative duty, and thus that the "second Thomas prong is automatically satisfied." Opp'n at 14.
Plaintiffs' argument, however, is unavailing. First, it is significant that the Attorney General has articulated a formal policy in the form of an Information Bulletin that states that Proposition 69 does not subject people that are 1125 members of the plaintiffs' Arrestee Class and Formerly Convicted *1125 Persons Class to DNA testing. In contrast to suggesting an imminent warning or threat of the DNA testing of plaintiffs, the Attorney General's Bulletin officially disavows that Proposition 69 will be enforced against persons similarly situated to plaintiffs. The Bulletin is specifically directed to "California Law Enforcement Agencies and Personnel," and it has been widely distributed to California law enforcement authorities and published on the Attorney General's website. Issued by the "chief law officer of California," the Bulletin can be reasonably expected to establish uniform state policy for the implementation of Proposition 69. California Constitution, Article V, Section 13. It thus constitutes a formal policy that distinguishes this case from those that plaintiffs cite in their support. See Adult Video Association v. Barr, 960 F.2d 781, 785 (9th Cir.1992) (there was no "formal policy" that prohibited the enforcement activity feared by plaintiffs); Virginia v. American Booksellers Association, Inc., 484 U.S. 383, 393, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988) (stating that the "State has not suggested that the newly enacted law will not be enforced, and we see no reason to assume otherwise."); Virginia Society for Human Life v. FEC, 263 F.3d 379, 388 (4th Cir.2001) (the FEC's policy of nonenforcement was not sufficiently formal where it was adopted in a closed meeting and recorded in FEC minutes); United States v. Wunsch, 84 F.3d 1110 (9th Cir., 1996) (finding that an enforcement policy adopted by the California State Bar Association was a mere enforcement strategy which would not be binding on the courts.)
Second, the Court observes that even under plaintiffs' interpretation of Proposition 69, only one of the plaintiffs, Delucci-Youngberg, is presently subject to DNA testing. The others would not be tested under the new law until, at the earliest, January 1, 2009. While plaintiff contends that the factual record subjecting plaintiffs to DNA testing is complete, the Court observes that the state's interpretation and enforcement of Proposition 69 will become much clearer as January 2009 nears. With this information, a court will be better able to evaluate whether plaintiffs have a reasonable fear of DNA testing under Proposition 69. As stated by the Supreme Court, "there are situations where, even though an allegedly injurious event is certain to occur, the Court may delay resolution of constitutional questions until a time closer to the actual occurrence of a disputed event." Blanchette v. Connecticut General Insurance Corp. (Regional Rail Reorganization Act Cases), 419 U.S. 102, 143-44, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974). Here, the allegedly injurious event is not certain to occur, but even if it were, the case would not necessarily be ripe.
The claim of Delucci-Youngberg is different in that she was arrested for murder in the past and thus, under plaintiffs' interpretation of Proposition 69, could be presently subject to DNA testing. The Court observes, however, that even Delucci-Youngberg has not received a specific warning or threat of DNA testing. Such testing, moreover, would have no reasonable purpose given that she would be immediately eligible to have her DNA profile expunged under Section 299 of Proposition 69 because she was acquitted of the murder charge. Section 299(a) states that "[a] person whose DNA profile has been included in the data bank pursuant to this chapter shall have his or her DNA specimen destroyed and searchable database profile expunged from the data bank program ... if the person has no past or present offense or pending charge...." For these reasons, DelucciYoungberg fails to allege "a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement." Thomas at 1139.
1126 *1126 The third prong of the Thomas test looks to the history of enforcement under the challenged statute. In the instant case, there is no history of past enforcement of Proposition 69 against plaintiffs or other similarly situated persons. In Thomas, the Ninth Circuit found that this prong supported dismissal for lack of ripeness even though there was evidence of recent enforcement including two challenges to the statute's enforcement that had reached the Alaska Supreme Court. Here, the fact that Proposition 69 is newly enacted and that there is no history of past enforcement weighs heavily in favor of finding this case unripe for adjudication.
Plaintiffs contend that the enforcement policy of the state could change or that local officials might choose to disregard the Attorney General's Bulletin. When and if either of these possible events occur, the ripeness inquiry might lead to a different answer. At present, the lack of a history of enforcement and the lack of a specific warning

or threat that Proposition 69 will be enforced the manner feared by plaintiffs require dismissal of plaintiffs' challenge as constitutionally unripe. Because this action does not currently meet the Article III requirements for ripeness, the Court need not consider the prudential component of the ripeness doctrine.
IV. CONCLUSION
For the foregoing reasons, this action is not ripe for judicial review. Defendants' motion to dismiss is GRANTED. IT IS SO ORDERED.
[1] An additional plaintiff, Lam, could also be considered a member of this class at the time plaintiffs filed their complaint, but has since pled guilty to a felony and is thus subject to Proposition 69 under a provision not at issue in this litigation. Opp'n at 3.
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 Case: 3:04-cv-5161 As of: 09/29/2008 04:26 PM PDT 1 of 19
ADRMOP, CLOSED, E−Filing
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:04−cv−05161−FMS

Weber et al v. Lockyer et al Assigned to: Hon. Fern M Smith Demand: $0 Cause: 42:1983 Civil Rights Act
Plaintiff Michael Weber

Date Filed: 12/07/2004 Date Terminated: 04/26/2005 Jury Demand: Defendant Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question
represented by Sonya Diane Winner Covington &Burling LLP One Front Street, Suite 3500 San Francisco , CA 94111 (415) 591−6000 Email: winnersd@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald W. Brown , Covington &Burling One Front Street San Francisco , CA 94111
415−591−6000 Fax: 415−591−6091 Email: dwbrown@cov.com ATTORNEY TO BE NOTICED
Jeffrey Dean Schwartz Attorney at Law 360 Ritch Street, #201 San Francisco , CA 94107 415−777−3170 Fax: 415−681−8643 Email: jds@aboutcriminallaw.com ATTORNEY TO BE NOTICED
Jonathan Alan Patchen Covington &Burling 1 Front Street 35th Floor San Francisco , CA 94111 415−591−7006 Fax: 415−355−6506 Email: jpatchen@cov.com ATTORNEY TO BE NOTICED
Jordan Budd American Civil Liberties Union Foundation of San Diego And Imperial Counties P.O. Box 87131 San Diego , CA 92138 619−232−2121 Fax: 619−232−0036 ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. American Civil Liberties Union of

Case: 3:04-cv-5161 As of: 09/29/2008 04:26 PM PDT 2 of 19

Northern California, Inc. 39 Drumm Street San Francisco , CA 94111 415−621−2493 Fax: 415−255−8437 Email: jmass@aclunc.org ATTORNEY TO BE NOTICED

Kate S. Steinheimer Covington &Burling One Front Street San Francisco , CA 94111 415−591−6000 Fax: 415−591−6091 Email: ksteinheimer@cov.com ATTORNEY TO BE NOTICED

Margaret Campbell Crosby ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco , CA 94111 415−621−2493 Fax: 415−255−8437 Email: mcrosby@aclunc.org ATTORNEY TO BE NOTICED

Mark Dale Rosenbaum ACLU Foundation of Southern California 1616 Beverly Boulevard Los Angeles , CA 90026 213−977−9500 Fax: 213−250−3919 ATTORNEY TO BE NOTICED

Maya L. Harris ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco , CA 94111 415−621−2493 Fax: 415−255−8437 Email: mharris@aclunc.org ATTORNEY TO BE NOTICED

Peter Jay Eliasberg , 1313 W. 8th Street Los Angeles , CA 90017

213−977−9500 x228 Fax: Email: peliasberg@aclu−sc.org ATTORNEY TO BE NOTICED

Ricardo D. Garcia ACLU Foundation of Southern California 1616 Beverly Boulevard Los Angeles , CA 90026 213−977−9500 Fax: 213−250−3919 ATTORNEY TO BE NOTICED

Plaintiff Mary Pruitt

represented by

Case: 3:04-cv-5161 As of: 09/29/2008 04:26 PM PDT 3 of 19

Sonya Diane Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donald W. Brown , (See above for address) ATTORNEY TO BE NOTICED

Jeffrey Dean Schwartz (See above for address) ATTORNEY TO BE NOTICED

Jonathan Alan Patchen (See above for address) ATTORNEY TO BE NOTICED

Jordan Budd (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Kate S. Steinheimer (See above for address) ATTORNEY TO BE NOTICED

Margaret Campbell Crosby (See above for address) ATTORNEY TO BE NOTICED

Mark Dale Rosenbaum (See above for address) ATTORNEY TO BE NOTICED

Maya L. Harris (See above for address) ATTORNEY TO BE NOTICED

Peter Jay Eliasberg , (See above for address) ATTORNEY TO BE NOTICED

Ricardo D. Garcia (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Rodney Ware

represented by Sonya Diane Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donald W. Brown , (See above for address) ATTORNEY TO BE NOTICED

Jeffrey Dean Schwartz (See above for address) ATTORNEY TO BE NOTICED

Jonathan Alan Patchen

Case: 3:04-cv-5161 As of: 09/29/2008 04:26 PM PDT 4 of 19

(See above for address) ATTORNEY TO BE NOTICED

Jordan Budd (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Kate S. Steinheimer (See above for address) ATTORNEY TO BE NOTICED

Margaret Campbell Crosby (See above for address) ATTORNEY TO BE NOTICED

Mark Dale Rosenbaum (See above for address) ATTORNEY TO BE NOTICED

Maya L. Harris (See above for address) ATTORNEY TO BE NOTICED

Peter Jay Eliasberg , (See above for address) ATTORNEY TO BE NOTICED

Ricardo D. Garcia (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Rachel Delucci−Youngberg

represented by Sonya Diane Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donald W. Brown , (See above for address) ATTORNEY TO BE NOTICED

Jeffrey Dean Schwartz (See above for address) ATTORNEY TO BE NOTICED

Jonathan Alan Patchen (See above for address) ATTORNEY TO BE NOTICED

Jordan Budd (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Kate S. Steinheimer (See above for address) ATTORNEY TO BE NOTICED

Case: 3:04-cv-5161 As of: 09/29/2008 04:26 PM PDT 5 of 19

Plaintiff James Blair

Margaret Campbell Crosby (See above for address) ATTORNEY TO BE NOTICED
Mark Dale Rosenbaum (See above for address) ATTORNEY TO BE NOTICED
Maya L. Harris (See above for address) ATTORNEY TO BE NOTICED
Peter Jay Eliasberg , (See above for address) ATTORNEY TO BE NOTICED
Ricardo D. Garcia (See above for address) ATTORNEY TO BE NOTICED
represented by Sonya Diane Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald W. Brown , (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Dean Schwartz (See above for address) ATTORNEY TO BE NOTICED
Jonathan Alan Patchen (See above for address) ATTORNEY TO BE NOTICED
Jordan Budd (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Kate S. Steinheimer (See above for address) ATTORNEY TO BE NOTICED
Margaret Campbell Crosby (See above for address) ATTORNEY TO BE NOTICED
Mark Dale Rosenbaum (See above for address) ATTORNEY TO BE NOTICED
Maya L. Harris (See above for address) ATTORNEY TO BE NOTICED
Peter Jay Eliasberg ,

Case: 3:04-cv-5161 As of: 09/29/2008 04:26 PM PDT 6 of 19

(See above for address) ATTORNEY TO BE NOTICED

Ricardo D. Garcia (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Thinh T. Lam

represented by Sonya Diane Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donald W. Brown , (See above for address) ATTORNEY TO BE NOTICED

Jeffrey Dean Schwartz (See above for address) ATTORNEY TO BE NOTICED

Jonathan Alan Patchen (See above for address) ATTORNEY TO BE NOTICED

Jordan Budd (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Kate S. Steinheimer (See above for address) ATTORNEY TO BE NOTICED

Margaret Campbell Crosby (See above for address) ATTORNEY TO BE NOTICED

Mark Dale Rosenbaum (See above for address) ATTORNEY TO BE NOTICED

Maya L. Harris (See above for address) ATTORNEY TO BE NOTICED

Peter Jay Eliasberg , (See above for address) ATTORNEY TO BE NOTICED

Ricardo D. Garcia (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ruben Rivas

represented by Sonya Diane Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donald W. Brown ,

Case: 3:04-cv-5161 As of: 09/29/2008 04:26 PM PDT 7 of 19

(See above for address) ATTORNEY TO BE NOTICED

Jeffrey Dean Schwartz (See above for address) ATTORNEY TO BE NOTICED

Jonathan Alan Patchen (See above for address) ATTORNEY TO BE NOTICED

Jordan Budd (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Kate S. Steinheimer (See above for address) ATTORNEY TO BE NOTICED

Margaret Campbell Crosby (See above for address) ATTORNEY TO BE NOTICED

Mark Dale Rosenbaum (See above for address) ATTORNEY TO BE NOTICED

Maya L. Harris (See above for address) ATTORNEY TO BE NOTICED

Peter Jay Eliasberg , (See above for address) ATTORNEY TO BE NOTICED

Ricardo D. Garcia (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jason Craig

represented by Sonya Diane Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donald W. Brown , (See above for address) ATTORNEY TO BE NOTICED

Jeffrey Dean Schwartz (See above for address) ATTORNEY TO BE NOTICED

Jonathan Alan Patchen (See above for address) ATTORNEY TO BE NOTICED

Jordan Budd (See above for address) ATTORNEY TO BE NOTICED

Case: 3:04-cv-5161 As of: 09/29/2008 04:26 PM PDT 8 of 19

Plaintiff Linda Walker

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Kate S. Steinheimer (See above for address) ATTORNEY TO BE NOTICED
Margaret Campbell Crosby (See above for address) ATTORNEY TO BE NOTICED
Mark Dale Rosenbaum (See above for address) ATTORNEY TO BE NOTICED
Maya L. Harris (See above for address) ATTORNEY TO BE NOTICED
Peter Jay Eliasberg , (See above for address) ATTORNEY TO BE NOTICED
Ricardo D. Garcia (See above for address) ATTORNEY TO BE NOTICED
represented by Sonya Diane Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald W. Brown , (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Dean Schwartz (See above for address) ATTORNEY TO BE NOTICED
Jonathan Alan Patchen (See above for address) ATTORNEY TO BE NOTICED
Jordan Budd (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Kate S. Steinheimer (See above for address) ATTORNEY TO BE NOTICED
Margaret Campbell Crosby (See above for address) ATTORNEY TO BE NOTICED
Mark Dale Rosenbaum

Case: 3:04-cv-5161 As of: 09/29/2008 04:26 PM PDT 9 of 19

(See above for address) ATTORNEY TO BE NOTICED

Maya L. Harris (See above for address) ATTORNEY TO BE NOTICED

Peter Jay Eliasberg , (See above for address) ATTORNEY TO BE NOTICED

Ricardo D. Garcia (See above for address) ATTORNEY TO BE NOTICED

Plaintiff All Of Us Or None

represented by Sonya Diane Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donald W. Brown , (See above for address) ATTORNEY TO BE NOTICED

Jeffrey Dean Schwartz (See above for address) ATTORNEY TO BE NOTICED

Jonathan Alan Patchen (See above for address) ATTORNEY TO BE NOTICED

Jordan Budd (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Kate S. Steinheimer (See above for address) ATTORNEY TO BE NOTICED

Margaret Campbell Crosby (See above for address) ATTORNEY TO BE NOTICED

Mark Dale Rosenbaum (See above for address) ATTORNEY TO BE NOTICED

Maya L. Harris (See above for address) ATTORNEY TO BE NOTICED

Peter Jay Eliasberg , (See above for address) ATTORNEY TO BE NOTICED

Ricardo D. Garcia (See above for address) ATTORNEY TO BE NOTICED

Case: 3:04-cv-5161 As of: 09/29/2008 04:26 PM PDT 10 of 19

Plaintiff Americans for Safe Access

represented by Sonya Diane Winner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald W. Brown , (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Dean Schwartz (See above for address) ATTORNEY TO BE NOTICED
Jonathan Alan Patchen (See above for address) ATTORNEY TO BE NOTICED
Jordan Budd (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Kate S. Steinheimer (See above for address) ATTORNEY TO BE NOTICED
Margaret Campbell Crosby (See above for address) ATTORNEY TO BE NOTICED
Mark Dale Rosenbaum (See above for address) ATTORNEY TO BE NOTICED
Maya L. Harris (See above for address) ATTORNEY TO BE NOTICED
Peter Jay Eliasberg , (See above for address) ATTORNEY TO BE NOTICED
Ricardo D. Garcia (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Bill Lockyer Attorney General of California

represented by James Randall Wood Sacramento County Counsel 700 H Street, Suite 2650 Sacramento , CA 95814 916−874−1346 Fax: 916−874−8207 Email: woodj@saccounty.net ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq.

Case: 3:04-cv-5161 As of: 09/29/2008 04:26 PM PDT 11 of 19

(See above for address) ATTORNEY TO BE NOTICED

Paul D. Gifford CA State Attoreny General's Office 1515 Clay Street, 20th Floor P.O. Box 70550 Oakland , CA 94612 510−622−2253 Fax: 510−622−2121 Email: paul.gifford@doj.ca.gov ATTORNEY TO BE NOTICED

Defendant
Eva Steinberger Assistant Bureau Chief for DNA Programs, California Department of Justice

represented by James Randall Wood (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Paul D. Gifford (See above for address) ATTORNEY TO BE NOTICED

Defendant
Lance Gima Chief of the Bureau of Forensic Services, California Department of Justice Laboratory

represented by James Randall Wood (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Paul D. Gifford (See above for address) ATTORNEY TO BE NOTICED

Defendant
Charles C. Plummer Sheriff, Alameda County

represented by Nancy Elizabeth Fenton Office of the County Counsel, County of Alameda 1221 Oak Street, #450 Oakland , CA 94612 (510) 272−6720 Fax: (510) 272−5020 Email: nancy.fenton@acgov.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Edward Winnie Office of the County Counsel County of Alameda 1221 Oak Street, Suite 450 Oakland , CA 94612−4296 510 272−6700 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Randall Wood (See above for address) ATTORNEY TO BE NOTICED

Case: 3:04-cv-5161 As of: 09/29/2008 04:26 PM PDT 12 of 19

Defendant Sheriff Warren E. Rupf Sheriff, Contra Costa County
Defendant Lou Blanas Sheriff, Sacramento County

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
represented by James Randall Wood (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED
Kelly M. Flanagan Drath, Clifford, Murphy &Hagen, LLP 1999 Harrison Street, Suite 700 Oakland , CA 94612 510−287−4000 Fax: 510−287−4050 Email: kflanagan@drathlaw.com ATTORNEY TO BE NOTICED
represented by James R. Wood County of Sacramento 700 H Street Suite 2650 Sacramento , CA 95814 916−874−8261 Fax: 916−874−8207 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Krista C. Whitman County of Sacramento 700 H Street Suite 2650 Sacramento , CA 95814 916−874−8261 Fax: 916−874−8207 Email: whitmank@saccounty.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Arthur Ryan , Jr. County of Sacramento 700 H Street Suite 2650 Sacramento , CA 95814 916−874−8261 Fax: 916−874−8207 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Randall Wood (See above for address) ATTORNEY TO BE NOTICED
Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Case: 3:04-cv-5161 As of: 09/29/2008 04:26 PM PDT 13 of 19

Defendant
Jim Pope Sheriff, Shasta County

represented by James Randall Wood (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Defendant
Michael Hennessey Sheriff, San Francisco County

represented by Wayne Kessler Snodgrass Office of the City Attorney City Hall 1 Dr. Carlton B. Goodlett Place Room 234 San Francisco , CA 94102−4682 415−554−4675 Email: wayne.snodgrass@sfgov.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Randall Wood (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rafal Ofierski San Francisco City Attorney's Office Fox Plaza 1390 Market Street 5th Floor San Francisco , CA 94102−5408 415−554−4244 Fax: 415−554−4248 Email: rafal.ofierski@sfgov.org TERMINATED: 03/22/2005 ATTORNEY TO BE NOTICED

Defendant
Albert Najera Chief of Police, City of Sacramento

represented by Brett Morgan Witter Ofc City Attorney 915 I St #4010 Sacramento , CA 95814−2604 916−808−5346 Fax: (916) 808−7455 Email: bwitter@cityofsacramento.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Randall Wood (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Defendant

represented by

Case: 3:04-cv-5161 As of: 09/29/2008 04:26 PM PDT 14 of 19

Kens James Chief of Police, City of Emeryville

Dale L. Allen , Jr. Low Ball &Lynch 505 Montgomery Street 7th Floor San Francisco , CA 94111−2584 415−981−6630 Fax: 415−982−1634 Email: dallen@lowball.com ATTORNEY TO BE NOTICED

James Randall Wood (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Mark F. Hazelwood Low, Ball &Lynch 505 Montgomery Street, 7th Floor San Francisco , CA 94111−2584 415/981−6630 Email: mhazelwood@lowball.com ATTORNEY TO BE NOTICED

Defendant
Heather J. Fong Chief, of Police, City of San Francisco

represented by Wayne Kessler Snodgrass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Randall Wood (See above for address) ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. (See above for address) ATTORNEY TO BE NOTICED

Rafal Ofierski (See above for address) TERMINATED: 03/22/2005 ATTORNEY TO BE NOTICED

Date Filed 12/07/2004
12/07/2004 12/07/2004

# Docket Text
1 CLASS ACTION COMPLAINT For Declaratory &Injunctive Relief − [Summons Issued] against Bill Lockyer, Eva Steinberger, Lance Gima, Charles C. Plummer, Warren E. Rupf, Lou Blanas, Jim Pope, Michael Hennessey, Albert Najera, Kens James &Heather J. Fong, [Filing Fee: $150.00, Receipt Number 3366773]. Filed by PlaintiffsAll Of Us Or None, Americans for Safe Access, Mary Pruitt, Rodney Ware, Michael Weber, Rachel Delucci−Youngberg, James Blair, Thinh T. Lam, Ruben Rivas, Jason Craig &Linda Walker. (tn, COURT STAFF) (Filed on 12/7/2004) Additional attachment(s) added on 12/8/2004 (tn, COURT STAFF). Additional attachment(s) added on 12/22/2004 (tn, COURT STAFF). (Entered: 12/08/2004)
2 ADR SCHEDULING ORDER: Case Management Statement due by 4/4/2005 &Initial Case Management Conference set for 4:00 p.m. on 4/11/2005. (Attachments: # 1 Standing Order).(tn, COURT STAFF) (Filed on 12/7/2004) (Entered: 12/08/2004)
CASE DESIGNATED for Electronic Filing. (tn, COURT STAFF) (Filed on 12/7/2004) (Entered: 12/08/2004)

Case: 3:04-cv-5161 As of: 09/29/2008 04:26 PM PDT 15 of 19

12/07/2004 12/07/2004 12/07/2004 12/07/2004 12/07/2004 12/07/2004 12/07/2004 12/07/2004 12/07/2004 12/07/2004 12/07/2004 12/09/2004 12/10/2004
12/14/2004
12/17/2004 12/20/2004
12/20/2004
12/20/2004
12/20/2004

Summons Issued as to Heather J. Fong. (tn, COURT STAFF) (Filed on 12/7/2004) (Entered: 12/08/2004)
Summons Issued as to Kens James. (tn, COURT STAFF) (Filed on 12/7/2004) (Entered: 12/08/2004)
Summons Issued as to Albert Najera. (tn, COURT STAFF) (Filed on 12/7/2004) (Entered: 12/08/2004)
Summons Issued as to Michael Hennessey. (tn, COURT STAFF) (Filed on 12/7/2004) (Entered: 12/08/2004)
Summons Issued as to Jim Pope. (tn, COURT STAFF) (Filed on 12/7/2004) (Entered: 12/08/2004)
Summons Issued as to Lou Blanas. (tn, COURT STAFF) (Filed on 12/8/2004) (Entered: 12/08/2004)
Summons Issued as to Warren E. Rupf. (tn, COURT STAFF) (Filed on 12/7/2004) (Entered: 12/08/2004)
Summons Issued as to Charles C. Plummer. (tn, COURT STAFF) (Filed on 12/7/2004) (Entered: 12/08/2004)
Summons Issued as to Lance Gima. (tn, COURT STAFF) (Filed on 12/7/2004) (Entered: 12/08/2004)
Summons Issued as to Eva Steinberger. (tn, COURT STAFF) (Filed on 12/7/2004) (Entered: 12/08/2004)
Summons Issued as to Bill Lockyer. (tn, COURT STAFF) (Filed on 12/7/2004) (Entered: 12/08/2004)
3 NOTICE OF RECUSAL. Signed by Magistrate Judge Bernard Zimmerman on 12/9/2004. (bzsec, COURT STAFF) (Filed on 12/9/2004) (Entered: 12/09/2004)
4 ORDER REASSIGNING CASE. Case reassigned to Judge Fern M. Smith for all further proceedings. Judge Bernard Zimmerman no longer assigned to case. Signed by EXECUTIVE COMMITTEE on 12/10/04. (ha, COURT STAFF) (Filed on 12/10/2004) (Entered: 12/10/2004)
5 CLERK'S NOTICE Case Management Conference set for 4/21/2005 02:00 PM before Judge Fern M. Smith. Case Management Statement due by 4/14/2005. (Attachments: # 1 Judge Smith's CMC Order, # 2 Judge Smith's Standing Order) (kcw, COURT STAFF) (Filed on 12/14/2004) (Entered: 12/14/2004)
18 MOTION for leave to appear in Pro Hac Vice filed by plaintiffs, for attorney Jonathan A. Patchen of the New York &9th Circuit, fee paid. (db, COURT STAFF) (Filed on 12/17/2004) (Entered: 12/22/2004)
6 CERTIFICATE OF SERVICE by All Of Us Or None, Americans for Safe Access, Mary Pruitt, Rodney Ware, Michael Weber, Rachel Delucci−Youngberg, James Blair, Thinh T. Lam, Ruben Rivas, Jason Craig, Linda Walker re 1 Complaint,,, 2 ADR Scheduling Order on Defendant Lou Blanas (Jones, Richard) (Filed on 12/20/2004) (Entered: 12/20/2004)
7 CERTIFICATE OF SERVICE by All Of Us Or None, Americans for Safe Access, Mary Pruitt, Rodney Ware, Michael Weber, Rachel Delucci−Youngberg, James Blair, Thinh T. Lam, Ruben Rivas, Jason Craig, Linda Walker re 1 Complaint,,, 2 ADR Scheduling Order on Defendant Heather Fong (Jones, Richard) (Filed on 12/20/2004) (Entered: 12/20/2004)
8 CERTIFICATE OF SERVICE by All Of Us Or None, Americans for Safe Access, Mary Pruitt, Rodney Ware, Michael Weber, Rachel Delucci−Youngberg, James Blair, Thinh T. Lam, Ruben Rivas, Jason Craig, Linda Walker re 1 Complaint,,, 2 ADR Scheduling Order on Defendant Lance Gima (Jones, Richard) (Filed on 12/20/2004) (Entered: 12/20/2004)
9 CERTIFICATE OF SERVICE by All Of Us Or None, Americans for Safe Access, Mary Pruitt, Rodney Ware, Michael Weber, Rachel Delucci−Youngberg, James Blair,

Case: 3:04-cv-5161 As of: 09/29/2008 04:26 PM PDT 16 of 19

12/20/2004 12/20/2004 12/20/2004 12/20/2004 12/20/2004 12/20/2004 12/20/2004 12/20/2004 12/22/2004 12/23/2004 12/28/2004 12/28/2004

Thinh T. Lam, Ruben Rivas, Jason Craig, Linda Walker re 1 Complaint,,, 2 ADR Scheduling Order on Defendant Michael Hennessy (Jones, Richard) (Filed on 12/20/2004) (Entered: 12/20/2004)
10 CERTIFICATE OF SERVICE by All Of Us Or None, Americans for Safe Access, Mary Pruitt, Rodney Ware, Michael Weber, Rachel Delucci−Youngberg, James Blair, Thinh T. Lam, Ruben Rivas, Jason Craig, Linda Walker re 1 Complaint,,, 2 ADR Scheduling Order on Defendant Ken James (Jones, Richard) (Filed on 12/20/2004) (Entered: 12/20/2004)
11 CERTIFICATE OF SERVICE by All Of Us Or None, Americans for Safe Access, Mary Pruitt, Rodney Ware, Michael Weber, Rachel Delucci−Youngberg, James Blair, Thinh T. Lam, Ruben Rivas, Jason Craig, Linda Walker re 1 Complaint,,, 2 ADR Scheduling Order on Defendant Bill Lockyer (Jones, Richard) (Filed on 12/20/2004) (Entered: 12/20/2004)
12 CERTIFICATE OF SERVICE by All Of Us Or None, Americans for Safe Access, Mary Pruitt, Rodney Ware, Michael Weber, Rachel Delucci−Youngberg, James Blair, Thinh T. Lam, Ruben Rivas, Jason Craig, Linda Walker re 1 Complaint,,, 2 ADR Scheduling Order on Defendant Albert Najera (Jones, Richard) (Filed on 12/20/2004) (Entered: 12/20/2004)
13 CERTIFICATE OF SERVICE by All Of Us Or None, Americans for Safe Access, Mary Pruitt, Rodney Ware, Michael Weber, Rachel Delucci−Youngberg, James Blair, Thinh T. Lam, Ruben Rivas, Jason Craig, Linda Walker re 1 Complaint,,, 2 ADR Scheduling Order on Defendant Charles Plummer (Jones, Richard) (Filed on 12/20/2004) (Entered: 12/20/2004)
14 CERTIFICATE OF SERVICE by All Of Us Or None, Americans for Safe Access, Mary Pruitt, Rodney Ware, Michael Weber, Rachel Delucci−Youngberg, James Blair, Thinh T. Lam, Ruben Rivas, Jason Craig, Linda Walker re 1 Complaint,,, 2 ADR Scheduling Order on Defendant Jim Pope (Jones, Richard) (Filed on 12/20/2004) (Entered: 12/20/2004)
15 CERTIFICATE OF SERVICE by All Of Us Or None, Americans for Safe Access, Mary Pruitt, Rodney Ware, Michael Weber, Rachel Delucci−Youngberg, James Blair, Thinh T. Lam, Ruben Rivas, Jason Craig, Linda Walker re 1 Complaint,,, 2 ADR Scheduling Order on Defendant Warren Rupf (Jones, Richard) (Filed on 12/20/2004) (Entered: 12/20/2004)
16 CERTIFICATE OF SERVICE by All Of Us Or None, Americans for Safe Access, Mary Pruitt, Rodney Ware, Michael Weber, Rachel Delucci−Youngberg, James Blair, Thinh T. Lam, Ruben Rivas, Jason Craig, Linda Walker re 1 Complaint,,, 2 ADR Scheduling Order on Defendant Eva Steinberger (Jones, Richard) (Filed on 12/20/2004) (Entered: 12/20/2004)
17 CERTIFICATE OF SERVICE by All Of Us Or None, Americans for Safe Access, Mary Pruitt, Rodney Ware, Michael Weber, Rachel Delucci−Youngberg, James Blair, Thinh T. Lam, Ruben Rivas, Jason Craig, Linda Walker re 3 Order of Recusal, 4 Order Reassigning Case, 5 Clerks Notice, (Jones, Richard) (Filed on 12/20/2004) (Entered: 12/20/2004)
19 ORDER by Judge Fern M. Smith granting 18 Motion for Admission of attorney Jonathan Patchen Pro Hac Vice. (kcw, COURT STAFF) (Filed on 12/22/2004) (Entered: 12/22/2004)
20 STIPULATION To Extension Of Time To File Responsive Pleading(s) Pursuant To Civil L.R. 6−1(a) by Bill Lockyer. (Camps, Enid) (Filed on 12/23/2004) (Entered: 12/23/2004)
21 ANSWER to Complaint with Jury Demand byKens James. (Hazelwood, Mark) (Filed on 12/28/2004) (Entered: 12/28/2004)
22 APPROVAL OF STIPULATION TO EXTEND TIME. Signed by Judge Fern M. Smith on 12/28/04. (fmslc1, COURT STAFF) (Filed on 12/28/2004) Additional attachment(s) added on 12/29/2004 (kcw, COURT STAFF). (Entered: 12/28/2004)

Case: 3:04-cv-5161 As of: 09/29/2008 04:26 PM PDT 17 of 19

01/19/2005 01/26/2005 02/01/2005 02/04/2005
02/04/2005 02/07/2005
02/07/2005 02/07/2005 02/07/2005 02/07/2005 02/07/2005 02/11/2005
02/24/2005
02/25/2005

23 First Amended ANSWER to Complaint with Jury Demand byKens James. (Allen, Dale) (Filed on 1/19/2005) (Entered: 01/19/2005)
24 STIPULATION to Extension of Time to File Responsive Pleading (L.R. 6−1(a)) by All Of Us Or None, Americans for Safe Access, Mary Pruitt, Rodney Ware, Michael Weber, Rachel Delucci−Youngberg, James Blair, Thinh T. Lam, Ruben Rivas, Jason Craig, Linda Walker. (Jones, Richard) (Filed on 1/26/2005) (Entered: 01/26/2005)
25 ORDER approving 24 Stipulation for Extension of Time to File Responsive Pleading. Signed by Judge Fern M. Smith on 1/28/05. (kcw, COURT STAFF) (Filed on 2/1/2005) Additional attachment(s) added on 2/1/2005 (kcw, COURT STAFF). (Entered: 02/01/2005)
26 MOTION to Dismiss filed by Bill Lockyer, Eva Steinberger, Lance Gima. Motion Hearing set for 3/31/2005 02:00 PM. (Attachments: # 1 Affidavit Declaration of Paul D Gifford In Support of State Defendants' Motion to Dismiss# 2 Exhibit Exhibit A to Gifford Declaration# 3 Proposed Order Order Granting Motion of Defendants Lockyer, Steinberger and Gima To Dismiss The Complaint)(Gifford, Paul) (Filed on 2/4/2005) (Entered: 02/04/2005)
27 ANSWER to Complaint with Jury Demand by defendantLou Blanas. (db, COURT STAFF) (Filed on 2/4/2005) Additional attachment(s) added on 2/11/2005 (db, COURT STAFF). (Entered: 02/07/2005)
28 CLERK'S NOTICE re: Failure to E−File and/or Failure to Register as an E−Filer for counsel for defendant Lou Blanas regarding docket entry # 27 answer to complaint and demand for jury trial. Counsel has 10 days to electronically pdf file this document to the U.S. District Court, or an Order to Show Cause will issue forth. (db, COURT STAFF) (Filed on 2/7/2005) (Entered: 02/07/2005)
29 NOTICE by Michael Hennessey, Heather J. Fong re 26 MOTION to Dismiss Notice of Joinder of Defendants Michael Hennessey and Heather Fong in State Defendants' Motion to Dismiss Plaintiffs' Complaint (Ofierski, Rafal) (Filed on 2/7/2005) (Entered: 02/07/2005)
30 Joinder By Defendant Albert Najera In Motion To Dismiss By Defendants Lockyer, Steinberger and Gima filed by Albert Najera. Motion Hearing set for 3/31/2005 02:00 PM. (Witter, Brett) (Filed on 2/7/2005) Modified on 3/15/2005 (db, COURT STAFF). (Entered: 02/07/2005)
31 CERTIFICATE OF SERVICE by Albert Najera re 30 MOTION for Joinder By Defendant Albert Najera In Motion To Dismiss By Defendants Lockyer, Steinberger and Gima (Witter, Brett) (Filed on 2/7/2005) (Entered: 02/07/2005)
32 Joinder in State Defendants' Motion to Dismiss filed by Warren E. Rupf, Jim Pope. (Flanagan, Kelly) (Filed on 2/7/2005) Modified on 3/15/2005 (db, COURT STAFF). (Entered: 02/07/2005)
33 Joinder re 26 MOTION to Dismiss by defendant Charles C. Plummer, Charles C. Plummer. (db, COURT STAFF) (Filed on 2/7/2005) Additional attachment(s) added on 2/15/2005 (db, COURT STAFF). (Entered: 02/08/2005)
34 CLERK'S NOTICE re: Failure to E−File and/or Failure to Register as an E−Filer for counsel for defendant Charles C. Plummer, Sheriff, County of Alameda regarding docket entry #33. Counsel has 10 days to electronically pdf file this document to the US District Court or an Order To Show Cause will issue forth. (db, COURT STAFF) (Filed on 2/11/2005) (Entered: 02/11/2005)
35 Joinder to dismiss complaint filed by Bill Lockyer, Eva Steinberger, Lance Gima, Charles C. Plummer, Warren E. Rupf, Lou Blanas, Jim Pope, Michael Hennessey, Albert Najera, Kens James, Heather J. Fong. Motion Hearing set for 3/31/2005 02:00 PM. (Wood, James) (Filed on 2/24/2005) Modified on 3/15/2005 (db, COURT STAFF). (Entered: 02/24/2005)
36 CERTIFICATE OF SERVICE by Bill Lockyer, Eva Steinberger, Lance Gima, Charles C. Plummer, Warren E. Rupf, Lou Blanas, Jim Pope, Michael Hennessey, Albert Najera, Kens James, Heather J. Fong re 35 MOTION for Joinder to dismiss complaint (Wood, James) (Filed on 2/25/2005) (Entered: 02/25/2005)

Case: 3:04-cv-5161 As of: 09/29/2008 04:26 PM PDT 18 of 19

03/10/2005 03/17/2005 03/17/2005 03/18/2005 03/18/2005
03/21/2005 03/21/2005 03/21/2005
03/22/2005 03/22/2005 04/04/2005 04/07/2005 04/07/2005
04/12/2005 04/14/2005

37 Memorandum in Opposition re 26 MOTION to Dismiss filed byAll Of Us Or None, Americans for Safe Access, Mary Pruitt, Rodney Ware, Michael Weber, Rachel Delucci−Youngberg, James Blair, Thinh T. Lam, Ruben Rivas, Jason Craig, Linda Walker. (Patchen, Jonathan) (Filed on 3/10/2005) (Entered: 03/10/2005)
38 Joinder In Defendants Lockyer, Steinberger and Gimas' Motion To Dismiss the Complaint filed by Kens James. Motion Hearing set for 3/31/2005 02:00 PM. (Allen, Dale) (Filed on 3/17/2005) Modified on 3/18/2005 (db, COURT STAFF). (Entered: 03/17/2005)
39 Reply to Opposition Reply of Defendants Lockyer, Steinberger, and Gima to Plaintiffs' Oposition to Defendants' Motion to Dismiss filed byBill Lockyer. (Gifford, Paul) (Filed on 3/17/2005) (Entered: 03/17/2005)
40 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) and ADR Certification (Mass, Julia) (Filed on 3/18/2005) (Entered: 03/18/2005)
41 STIPULATION To Extension of Time to Complete Initial Disclosures and File/Serve Rule 26(f) Report by All Of Us Or None, Americans for Safe Access, Bill Lockyer, Eva Steinberger, Lance Gima, Charles C. Plummer, Warren E. Rupf, Lou Blanas, Jim Pope, Michael Hennessey, Albert Najera, Kens James, Heather J. Fong, Mary Pruitt, Rodney Ware, Michael Weber, Rachel Delucci−Youngberg, James Blair, Thinh T. Lam, Ruben Rivas, Jason Craig, Linda Walker. (Mass, Julia) (Filed on 3/18/2005) (Entered: 03/18/2005)
42 NOTICE of Substitution of Counsel by Wayne K. Snodgrass (Snodgrass, Wayne) (Filed on 3/21/2005) (Entered: 03/21/2005)
43 CLERK'S NOTICE Continuing Motion Hearing to 4/14/2005 at 2:00 p.m. and advancing Case Management Conference to 4/14/2005 02:00 PM. Case Management Statement due 4/7/05. (kcw, COURT STAFF) (Filed on 3/21/2005) (Entered: 03/21/2005)
44 CERTIFICATE OF SERVICE by All Of Us Or None, Americans for Safe Access, Mary Pruitt, Rodney Ware, Michael Weber, Rachel Delucci−Youngberg, James Blair, Thinh T. Lam, Ruben Rivas, Jason Craig, Linda Walker re 43 Clerks Notice, Clerks Notice Continuing Motion Hearing (Patchen, Jonathan) (Filed on 3/21/2005) (Entered: 03/21/2005)
45 Approval of 42 Notice of Substitution of Counsel. Signed by Judge Fern M. Smith on 03/22/05. (fmslc1, COURT STAFF) (Filed on 3/22/2005) (Entered: 03/22/2005)
46 ORDER re 41 Stipulation. Time to Complete Initial Disclosures and File Rule 26(f) Report extended to April 7, 2005. Signed by Judge Fern M. Smith on 3/21/05. (kcw, COURT STAFF) (Filed on 3/22/2005) (Entered: 03/22/2005)
47 ADR Clerks Notice Setting ADR Phone Conference on 4/18/05 at 2:00 p.m. Please take note that plaintiff's counsel initiates the call to all parties. (tjs, COURT STAFF) (Filed on 4/4/2005) (Entered: 04/04/2005)
48 JOINT CASE MANAGEMENT STATEMENT and Proposed Order filed by All Of Us Or None, Americans for Safe Access, Mary Pruitt, Rodney Ware, Michael Weber, Rachel Delucci−Youngberg, James Blair, Thinh T. Lam, Ruben Rivas, Jason Craig, Linda Walker. (Mass, Julia) (Filed on 4/7/2005) (Entered: 04/07/2005)
49 CERTIFICATE OF SERVICE by All Of Us Or None, Americans for Safe Access, Mary Pruitt, Rodney Ware, Michael Weber, Rachel Delucci−Youngberg, James Blair, Thinh T. Lam, Ruben Rivas, Jason Craig, Linda Walker re 48 Case Management Statement (Joint), Case Management Statement (Joint) and Proposed Order (Mass, Julia) (Filed on 4/7/2005) (Entered: 04/07/2005)
50 TENTATIVE ORDER by Judge Fern M. Smith granting 26 Motion to Dismiss (fmslc2, COURT STAFF) (Filed on 4/12/2005) Additional attachment(s) added on 4/13/2005 (kcw, COURT STAFF). (Entered: 04/12/2005)
51 Minute Entry: Hearing on Tentative Order re Motion to Dismiss held on 4/14/2005 before Fern M. Smith. (C/R: Peppina Thompson.) (kcw, COURT STAFF) (Date Filed: 4/14/2005) (Entered: 04/14/2005)

Case: 3:04-cv-5161 As of: 09/29/2008 04:26 PM PDT 19 of 19

04/15/2005 04/22/2005
05/08/2006

ADR Clerks Notice The ADR Phone Conference has been taken off calendar. (tjs, COURT STAFF) (Filed on 4/15/2005) (Entered: 04/15/2005)
52 ORDER GRANTING MOTION TO DISMISS re 26 MOTION to Dismiss filed by Bill Lockyer,, Eva Steinberger,, Lance Gima,. Signed by Judge Fern M. Smith on 4/22/05. (fmslc2, COURT STAFF) (Filed on 4/22/2005) Additional attachment(s) added on 4/26/2005 (kcw, COURT STAFF). (Entered: 04/22/2005)
53 NOTICE of Change of Address by Margaret Campbell Crosby (Crosby, Margaret) (Filed on 5/8/2006) (Entered: 05/08/2006)