F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

E L I Z A B E T H A I D A H A S K E L L ; R E G I N A L D E N T O ; J E F F R

E Y P A T R

I C K L Y O N S , J R .; A A K

A S H D E S A I , on behalf of themselves and others similarly situated,

Plaintiffs-Appellants
,

v

.

K A M A L A D. H A R

R I S , Attorney General; E V

A S T E I N B E R G E R , Assistant B ureau Chief for DNA Prog rams, California Department of J ustice, Defendants-Appellees

. N o. 10-15152

D.C. No. 3:09-cv-04779- CRB

OPI NI ON

A ppeal from the United States District Court for the Northern District of California Charles R. B rey er, Senior District J udg e, Presiding

Arg ued and Submitted En B anc December 9, 2013—San F r ancisco, California

F iled March 20, 2014

B efore: Alex Koz inski, Chief J udg e, Harry Preg erson, M. Marg aret McKeown, Ray mond C. F isher, Ronald M. Gould, Richard A. Paez , Richard C. Tallman, J ohnnie B

.H A S K E L L V

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Rawlinson, Milan D. Smith, J r., N. Randy Smith and Paul J . W atford, Circuit J udg es.

Per Curiam Opinion; Concurrence by

J udg e Milan D. Smith, J r.

SUMMARY *

Civil Rights

The en b anc court a ffirmed the district court’s denial of a preliminary injunction in a class action broug ht under 42 U.S.C. § 1983 in which plaintiffs challeng ed a California law that requires all persons arrested for or charg ed with any felo n y o r attempted felony to submit DNA samples for inclusion in law enforcement databases.

T h e e n banc court determined that plaintiffs’ facial a nd as-applied challeng es to the law turned on essential l y the

same question: W hether California’s DNA collection scheme

w a s c onstitutional as applied to a n yone “arrested f

or, or charg ed with, a felony o ffense by Californ i a s t a t e or local officials.” The en banc court held that after M a r yl and v

. King
, 133 S. Ct. 1958 (2013), the answer to that question was clearly y es. The en b a

n c court held that the d istrict court th e refore did not abuse its discretion by deny ing a preliminary

injunction that would apply to the entire class.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.H A S K E L L V

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The en banc court d e c l i n e d plaintiffs’ request to enter a preliminary injunction applicable only to a smaller class consist i n g of individuals arrested f or certain f

elonies that

we r e n o t , in plaintiffs’ view, covered by King

. The e n banc
court stated t h a t i f plaintiffs believed they were entitled to a preliminary injunction as to a smaller class, they were free to seek it from the district court and then seek review on appeal.

Concurring in the judg ment, J u dg e M. Smith stated that he ag reed that the district cour t properly denied the motion for a preliminary injunction, b ut w rote separately to emphasiz e that California’s DNA c ollection law is materially indisting uis hable f

rom the Maryland law upheld in King

. J udg e M. Smith stated that because the last parag raph of the
per curiam opinion v a g uely implied that something o f plaintiffs’ lawsuit may sur v i v e King
, he respectfully concurred only

in the judg ment.

COUNSEL

Peter C. Meier, Paul Hasting s L L P, San F rancisco, California, Michael T. Risher, American Civil L iberties Union F oundation of North er n California, I nc., San F rancisco, California (arg

ued), for Plaintiffs-Appellants.

Kamala D. Harris, Attorney G e n e ral, Doug las J

. W oods, Senior Assistant Attorney G eneral, Tamar Pachter, Supervi s i ng Deputy Attorney General, Enid A. Camps, Deputy Attorney General (arg u ed), Daniel J

. Powell, Deputy Attorney General, San F rancisco, California, for DefendantsAppellees.H A S K E L L V

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OP INION

PER CURI AM:

C a l i fornia law requires that all persons arrested for o r charg ed wi th any felony o r attempted felony submit DNA samples for inclusion in law enforcement databases. Cal. Penal Code § 296(a)(2), ( 4). Plaintiffs broug ht a class action under 42 U.S.C. § 1983, a l l e ging that the law is unconstitutional on its face and a s applied to the c ertified class, w hich includes “[ a] ll p e r s o n s who are, o r will be,
comp el l ed t o submit to the search and seiz ure of their body tissue and D NA under California Penal Code § 296(a)(2)(C) solely b y reason of the fact that they h ave be e n a rrested for, or charg ed with, a felony

offense by California state or local officials.” The district court denied a motion for a preliminary injunction, Haskell v. B rown , 677 F

. Supp. 2d 1187, 1189–90 (N.D. Cal. 2009), and p l a i ntiffs appealed, 28 U.S.C. § 1292(a)(1).

A plaintiff seeking a preliminary injunction must demonstrate (1) a likelihood of success o n the merits, (2) that he is likely to suffer irre p arable harm in the absence of an injunction, (3) that the b alance of e quities favors his position and (4) that the injunction is in the public interest. W inter v. Natural Res. Def. Coun c i l

, I nc. , 5 55 U.S. 7, 20 (2008). W inter “r e q u i r e s the plaintiff to make a showing o n all four
prong s.” Alliance for the W ild Rockies v. Cottrell , 632 F .3d 1127, 1135 ( 9th Cir. 2011). Here, the plaintiffs cannot show that they will likely

succeed on the merits.

P l aintiffs’ facial a

nd as-applied challeng es turn o n essentially the same question: I s California’s DNA collection scheme constitutional as applied t o a nyone “arrested for, o rH A S K E L L V

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charg ed with, a felony o ffense by Cal i f o r n i a state or local officials? ” After Maryland v. King
, 133 S. Ct. 1958 (2013), the answer is clearly y es. Plaintiffs’ counsel conceded a s much a t oral arg ument. G i ven that concession, plaintiffs
cannot show that the district court abused its d iscretion in d e n y i ng a preliminary injunction that would apply to the entire class. See W

inter
, 555 U.S. at 20; A lliance for the W ild Rockies , 632 F .3d at 1131.

Plaintif f s ask us to enter a preliminary injunction applicable only to a smaller class consisting of individuals arrested for c ertain felonies that are not, in pla i n t i ffs’ v iew, covered b y Maryland

v. King

. B ut we are a c ourt of review,
not first view: W e are limited to deciding whether the district
court a bused its discretion in deny ing the injunction plaintiffs
soug h t. See Bull v. City & Cn ty. of S .F.
, 595 F .3d 964, 967–68 (9th Cir. 2010) (en banc). I f plaintiffs believe they ’re entitled to a p reliminary injunction a s to a smaller c lass, they

a r e free to seek it from the district court and we will r eview it if and when it is presented to us.

AF F IRMED.

M. SMI TH, Circuit J udg e , concurring in the judg ment:

I ag r ee with the per curiam o pinion that California’s DNA collection law is clearly “constitutional as applied to anyone arrested for, or charg ed with, a felony offense by Ca lifornia
state o r local officials.” Acco r d i n g ly
, I also ag ree that the d i s t r i c t c o u r t p r o p e r l y den i e d P l a i n t i f f s

- A p p e l l a n t s ’ (Plaintiffs) motion for a prelim i n ar y injunction. See W inter

v. Natural Res. D ef. Coun cil, Inc.
, 5 55 U.S. 7, 20 (2008). IH A S K E L L V

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write separately
, however, to make clear what the per curiam opinion r eg rettably leaves unsaid. California’s DNA collection law is m a terially indisting uishable from the M ary land law upheld in Maryland v

. King
, 133 S. Ct

. 1 9 5 8 (2013), a nd Plaintiffs’ f

a c i a l and as-applied challeng es to California’s law therefore f ail. B ecause the last parag raph o f the per curiam opinion vag uely implies that something o f Plaintiffs’ laws u i t m ay survive King
, I respectfully c oncur only in the judg ment.

I.

B e cause the per curiam opinion does not d escribe t he relevant f actual a nd p rocedural backg round of this case, I do so here.

A.

I n 2004, California voters a pproved Pr o p o s i t i o n 6 9
, which requires law enforcement to collect DNA samples from “any adult person arrested or charg ed with any felony offense

. . . immediately following arrest, or d u ring t h e b o o king

. . . process or a s soon as administratively practicable after arrest, but, in any case, p rior to r elease on bail or pending trial o r any phy sical release from c onfinement or custody .” Cal. Penal Code §§ 296(a)(2)(C), 296.1(a)(1)(A). T he law took effect o n J anuary 1, 2009. Officers ty pically collect the DNA sample from a b u c c a l s wab that is swept along an arrestee’s inner cheek. An arrestee’s f a i l ure to c omply with the DNA collection is a misdemeanor. Id. § 298.1(a).

Once officers collect the DNA sample, it is sent to a state laboratory
, which creates a DNA p rofile of the arrestee. The laboratory then uploads the DNA p rofile into the Comb i n edH A S K E L L V

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DNA I n dex Sy stem (COD I S )
, a nationwide collection o f federal, state, and local DNA profiles.

Only law en f

o rcement officials may access a DNA profile, and they may on l y u s e the DNA for identification
purposes. Id. §§ 295.1(a), 299.5(f). Unauthoriz ed access or disclosure is punishable u nder state law by imprisonment a nd

a criminal fine. Id. § 299.5(i). F ed e r al l aw imposes similar penalties for u nauthoriz ed use of, or a c c ess to, CODI S. See 42 U.S.C. §§ 1 4133(c), 14135e ( c ). An arrestee who is not ultimately c onvicted may ask t h e trial court to order the sample destroy ed a

n d the DNA profile ex pung ed. Cal. Penal Code § 299(b).

B.

Plaintiffs in this case provided DNA samples in connection w ith their felony arrests, b ut they were never convicted of the crimes for which they w e r e a rrested. On October 7, 2009, Plaintiffs filed a complaint, o n behalf of a putative class, asserting that California’s DNA collection law is unconstitutional, both facially and as applied. On October 30, 200 9
, Plaintiffs moved for a p reliminary injunction barring the application of the law to persons arrested for, but
not c onvicted of, a felony offense. The district court denied Plaintiffs’ motion for a preliminary injunction on December 23, 2009. Plaintiffs timely appealed.

II.

The Supreme Court’s decision in King is fatal to P l aintiffs’ c laims. I n King
, the Court held that “ [ w ] h e n

o f f i cers make an arrest supported by probable c ause to hold for a serious offense and they bring the suspect to the stationH A S K E L L V

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to be d etained in custody
, taking and analy z ing a cheek swab of the ar restee’s DNA is, like fing erprinting a nd photog raphing
, a leg itimate p olice booking procedure that is reasonable under the F ourth Amendment.” 133 S. Ct

. at 1980. The Co u rt recog niz ed that althoug h other DNAcollection statutes “vary in their particulars, such as what charg es require a DNA samp l e , t heir similarity means that this case implicates more than the specific Maryland law. At issue i s a standard, ex p anding technolog y already in widespread use throug

hout the Nation.” Id. at 1968.

Despite the clarity of the Supreme C ourt’s holding
, Plaintiffs arg ue that King does not apply to California’s DNA collection law. B ut the purported distinctions that Plaintiffs identify are illusory

.

A.

Plaintiffs first arg ue that King is disting uishable because Maryland’s law applies only to burg laries, crimes of violence, and attempts at either, which the Supreme Court characteriz ed a s “serious crimes.” Id

. at 1967. B y contrast, California’s law applies to all felonies. See Cal. Penal Code § 296(a)(2)(C). Plaintiffs contend that this difference is

s i gnificant, as the California law applies to more minor crimes in which DNA evidence w ill rarely be r elevant, i n cluding “wobblers” that can be charg ed as eit h e r a misdemeanor or a felony

.

This arg u ment has no traction. The Mary la n d law’s list of “serious crimes,” King
, 133 S. Ct. at 1967, does not differ sign i f i cantly from the California law’s limitation to adult felony arrestees. A felony is, o f c o urse, a serious crime. See B lack’s L aw Dictionary 6 94 (9th ed. 2 009) ( defining felonyH A S K E L L V

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as “[ a] serious crime usu[ ally ] punishable by imprisonmen t for more than one y ear or by death”). I ndeed, in outlining the
scope of its deci sion, the Supreme Court ex plained that “[ b] oth federal and st a t e courts have reached differing

c o nclusions as to whether the F o urth Amendment p rohib i t s t h e c o l lection and analy sis o f a DNA sample f rom persons arrested, but not y e t c o n v icted, on felony charges

. ” King
, 133 S. Ct. at 19 6 6 (emphasis added). The Court then stated that it “g ranted certiora r i

. . . to address the question.” Id. W h en viewed ag a inst this broad lang uag e, Plaintiffs’ attempt to limit King

in this way

is baseless.

More fundamentally
, the Court’s reasoning in King is not dependent on the serious n e s s o f the c rimes involved. I n upholding Maryland’s l aw , the Supreme Court defined the state’s interest in obtaining DNA as “identify ing [ the arrestee] not only

so that the proper name can be attached to his charg es but also so that the criminal justice sy s t em can make informed decisions concerning pretrial custody .” King
, 133 S. Ct. a t 1980. Under the Court’s rationale, the
mag nitude of the state’s interest does not necessarily depend

on the seriousness of the crime o f ar r e s t. As the majority observed, “people detained for minor offenses can turn out to be the most devious and dang erous c ri minals.” Id. at 1971 (quoting F

lorence v. Bd. o

f Chose n Freeholders
, 1 32 S. Ct. 1510, 1520 (2012)) (internal alteration omitted).

The four dissenting J ustices in King similarly recog niz ed that there is no basis for li m i t i n g the Court’s holding to certain enumerated crimes. Describing the breadt h o f the majority ’s reasoning
, J u stice Scalia e x plained in dissent that “[ i] f one believes that DNA will ‘identify ’ someone arrested for assault, he must believe that it w i l l ‘identify ’ someone arrested for a traffic o f

f e nse.” King
, 133 S. Ct. at 1989H A S K E L L V

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(Scalia, J
., dissenting )

. J ustice Scalia thus reasoned that “ [ a] s

an entirely predictable consequence o f today ’s decision, y our DNA can be taken and entered into a national DNA database if y ou are ever arrested, rig htly or wrong ly
, and for whatever reason.” I d. He p redicted that “ [ w] hen there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rig htly ) say , ‘W e can find no sig nificant difference between this case and King .’” I d.

Thus, the California law’s limitation to felony a r rests is
not meaning f

ully d i fferent from the Mary land law’s restriction to certain “serious c rimes.” I n upholding the Maryl a n d law, the Supreme Court identified the state’s interest as identify ing the arrestee as part of the booking
process. This stat e i n t erest does not vary w ith the “seriousness” of the felony at issue. According ly
, Plaintiffs’ first attempt to disting uish King fails.

B.

Plaintiffs nex t arg u e t h at California’s law is disting uishabl e f

r om the Maryland law approved in King because (1) it authoriz es the collection of DNA from arrestees

never charg ed wi t h a crime; and (2) it allows p olice to analy z e DNA samples without a judicial finding of probable

cause. B ut, under King
, these differences are not constitutionally

relevant.

Unlike California, Ma ry land does not p rocess DNA samples until after suspects are arrai gn e d

. S ee King
, 1 33 S. Ct. a t 1 967. Nevertheless, the Supreme Court in King repeatedly emphasiz ed the permissibility of DNA collection from arrestees at boo k i n g, holding that “DNA is, like fing erprin t i n g a n d photog raphing
, a leg itimate police bookingH A S K E L L V

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procedure that is reasonable under the F ourth Amendment.” Id. at 1980. I ndeed, the Court ex pressly held that “[ i] n lig ht of the c ontex t of a v a lid arrest supported by probable cause [ the arrestee’s] ex pectations of privacy were not offended b y t h e m i nor intrusion of a brief swab of his cheeks.” I d

. (emphasis added).

I n lig ht of the Supreme Court’s focus on the collection o f DNA samples in connection with a rrest a nd booking
, Plaintiffs’ arg ument that the f iling of charg e s and a judicial probable-cause d e t ermination are conditions precedent to permissible DNA collection is u n supportable. Refusing to draw such a line makes g ood sense. The g overnmen t ’s interest in identify

ing arrestees attaches “when an individual is broug ht into custody ,” id. at 1971, irrespective of whether the suspect is ultimately charg ed. F or this reason, the Court

ex p lained that “[ w] hen probable c aus e e x i s ts to remove an individual from the normal channels of society and hold him in leg al custody
, DNA identification p lay s a critical r o l e in serving those interests.” Id. The dissent likewise recog niz ed that the majority ’s reasoning applies to all arrests, reg ardless of subsequent charg ing decisions. See id. at 1989 (Scalia, J
., dissent ing ) (“As an entirely predictable consequence o f today ’s decision, y our DNA can be taken and entered into a national DNA database if you are ev e r arrested
, rig h tly o r wrong ly
, a

n d f o r whatever reason.” (emphasis added)). Plaintiffs’ arg u ments to the contrary are unavailing

.

C.

F inally
, Plaintiffs assert t hat California’s law is disting uishable from Maryl a n d’s because California retains and uses DNA samples indefinitely e ven if a suspect is never charg ed or convicted. B y contrast, Maryland automaticallyH A S K E L L V

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ex p ung es the DNA samples of every person it fails to convict. See Md. Pub. Safe Code Ann. § 2-504(d)(2). W hile Plaintiffs

are correct that ex p ung e ment of DNA samples is n o t automatic under Califo rnia law, this distinction is not constitutionally

relevant.

E v en thoug h California does not automatically ex punge DNA samples, California law enables an arrestee to r e quest

ex p ung ement if no charg es are filed, his case is dismissed, o r he is found not g uil t y

. Cal. Penal Code § 299(b). Plaintiffs
counter that California will not, in practice, ex pung e DNA samples and profil es u ntil after the relevant statute o f limitations has ex pired. B ut Defendants-Appellees represent that the California Department of J ustice interprets § 2 99 “to allow ex pung ement a s soon as the prosecuting attorney declines to p ress charg es.” Appellees’ Supplemental B r. at 8 n.2. I n view of this representat i o n , t here is strong reason to believe that the differences in e x pung em e n t procedures between Maryland and California are not as g reat as Plaintiffs
sug g est.

I n any event, the King Court did not view Ma r y land’s

ex p ung ement procedures as important to the constitutionality

o f M a ry land’s law. The F ourth Amendment search at iss u e is a buccal s w a b
, a n d the “minor intrusion” that this “brief” procedure represents is not affected at all by the availabil i ty of ex pung ement p r ocedures. King
, 133 S. Ct. at 1 980. W hile the Supreme Court also a naly z ed w hether the pro c e s s i ng o f the arrestee’s D NA sample intruded on his privacy interests, it did not su gge st that p ost-collection ex pung ement procedures would affect the constitutional inquiry

. See id. at 1979–80. And the dissent did not view the majority ’s holding

as so limited. S

ee id. a t 1 9 8 9 (Scalia, J
., dissenting )H A S K E L L V

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( “ Perhaps the construction of such a g enetic panopticon i s wise.”).

III.

The majority in King ex pressly recog niz ed t hat its decision “implicates more than the specific Mary lan d law,” id. at 1968, and the four dissenting J u stices emph a tically
ag reed. S e e id. at 1989 (Scalia, J
., dissenting ). After K i n g , Plaintiffs’ f

acial and as-applie d c halleng es to California’s DNA collection law are clearly with o u t m erit, and any amendment to Plaintiffs’ compla i nt w ould be futile. This

case is over, and the district court has no oblig ation t o g ive the Plaintif

fs an opportunity to amend their complaint. F o r the foreg oing reasons, I re s p ec t f ully concur only in the judg ment.