FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELIZABETH AIDA HASKELL;

REGINALD ENTO; JEFFREY PATRICK

LYONS, JR.; AAKASH DESAI, on

behalf of themselves and others

similarly situated,

Plaintiffs-Appellants,

v.

KAMALA D. HARRIS, Attorney

General; EVA STEINBERGER,

Assistant Bureau Chief for DNA

Programs, California Department of

Justice,

Defendants-Appellees.

No. 10-15152

D.C. No.

3:09-cv-04779-

CRB

OPINION

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, Senior District Judge, Presiding

Argued and Submitted En Banc

December 9, 2013—San Francisco, California

Filed March 20, 2014

Before: Alex Kozinski, Chief Judge, Harry Pregerson, M.

Margaret McKeown, Raymond C. Fisher, Ronald M.

Gould, Richard A. Paez, Richard C. Tallman, Johnnie B.
2 HASKELL V. HARRIS

Rawlinson, Milan D. Smith, Jr., N. Randy Smith and Paul

J. Watford, Circuit Judges.

Per Curiam Opinion;

Concurrence by Judge Milan D. Smith, Jr.

SUMMARY*

Civil Rights

The en banc court affirmed the district court’s denial of a

preliminary injunction in a class action brought under

42 U.S.C. § 1983 in which plaintiffs challenged a California

law that requires all persons arrested for or charged with any

felony or attempted felony to submit DNA samples for

inclusion in law enforcement databases.

The en banc court determined that plaintiffs’ facial and

as-applied challenges to the law turned on essentially the

same question: Whether California’s DNA collection scheme

was constitutional as applied to anyone “arrested for, or

charged with, a felony offense by California state or local

officials.” The en banc court held that after Maryland v.

King, 133 S. Ct. 1958 (2013), the answer to that question was

clearly yes. The en banc court held that the district court

therefore did not abuse its discretion by denying a

preliminary injunction that would apply to the entire class.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
HASKELL V. HARRIS 3

The en banc court declined plaintiffs’ request to enter a

preliminary injunction applicable only to a smaller class

consisting of individuals arrested for certain felonies that

were not, in plaintiffs’ view, covered by King. The en banc

court stated that if 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 judgment, Judge M. Smith stated that

he agreed that the district court properly denied the motion

for a preliminary injunction, but wrote separately to

emphasize that California’s DNA collection law is materially

indistinguishable from the Maryland law upheld in King. 

Judge M. Smith stated that because the last paragraph of the

per curiam opinion vaguely implied that something of

plaintiffs’ lawsuit may survive King, he respectfully

concurred only in the judgment.

COUNSEL

Peter C. Meier, Paul Hastings LLP, San Francisco, California,

Michael T. Risher, American Civil Liberties Union

Foundation of Northern California, Inc., San Francisco,

California (argued), for Plaintiffs-Appellants.

Kamala D. Harris, Attorney General, Douglas J. Woods,

Senior Assistant Attorney General, Tamar Pachter,

Supervising Deputy Attorney General, Enid A. Camps,

Deputy Attorney General (argued), Daniel J. Powell, Deputy

Attorney General, San Francisco, California, for DefendantsAppellees.
4 HASKELL V. HARRIS

OPINION

PER CURIAM:

California law requires that all persons arrested for or

charged with any felony or attempted felony submit DNA

samples for inclusion in law enforcement databases. Cal.

Penal Code § 296(a)(2), (4). Plaintiffs brought a class action

under 42 U.S.C. § 1983, alleging that the law is

unconstitutional on its face and as applied to the certified

class, which includes “[a]ll persons who are, or will be,

compelled to submit to the search and seizure of their body

tissue and DNA under California Penal Code § 296(a)(2)(C)

solely by reason of the fact that they have been arrested for,

or charged with, a felony offense by California state or local

officials.” The district court denied a motion for a

preliminary injunction, Haskell v. Brown, 677 F. Supp. 2d

1187, 1189–90 (N.D. Cal. 2009), and plaintiffs appealed,

28 U.S.C. § 1292(a)(1).

A plaintiff seeking a preliminary injunction must

demonstrate (1) a likelihood of success on the merits, (2) that

he is likely to suffer irreparable harm in the absence of an

injunction, (3) that the balance of equities favors his position

and (4) that the injunction is in the public interest. Winter v.

Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 

Winter “requires the plaintiff to make a showing on all four

prongs.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d

1127, 1135 (9th Cir. 2011). Here, the plaintiffs cannot show

that they will likely succeed on the merits.

Plaintiffs’ facial and as-applied challenges turn on

essentially the same question: Is California’s DNA collection

scheme constitutional as applied to anyone “arrested for, or
HASKELL V. HARRIS 5

charged with, a felony offense by California state or local

officials?” After Maryland v. King, 133 S. Ct. 1958 (2013),

the answer is clearly yes. Plaintiffs’ counsel conceded as

much at oral argument. Given that concession, plaintiffs

cannot show that the district court abused its discretion in

denying a preliminary injunction that would apply to the

entire class. See Winter, 555 U.S. at 20; Alliance for the Wild

Rockies, 632 F.3d at 1131.

Plaintiffs ask us to enter a preliminary injunction

applicable only to a smaller class consisting of individuals

arrested for certain felonies that are not, in plaintiffs’ view,

covered by Maryland v. King. But we are a court of review,

not first view: We are limited to deciding whether the district

court abused its discretion in denying the injunction plaintiffs

sought. See Bull v. City & Cnty. of S.F., 595 F.3d 964,

967–68 (9th Cir. 2010) (en banc). If plaintiffs believe they’re

entitled to a preliminary injunction as to a smaller class, they

are free to seek it from the district court and we will review

it if and when it is presented to us.

AFFIRMED.

M. SMITH, Circuit Judge, concurring in the judgment:

I agree with the per curiam opinion that California’s DNA

collection law is clearly “constitutional as applied to anyone

arrested for, or charged with, a felony offense by California

state or local officials.” Accordingly, I also agree that the

district court properly denied Plaintiffs-Appellants’

(Plaintiffs) motion for a preliminary injunction. See Winter

v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). I
6 HASKELL V. HARRIS

write separately, however, to make clear what the per curiam

opinion regrettably leaves unsaid. California’s DNA

collection law is materially indistinguishable from the

Maryland law upheld in Maryland v. King, 133 S. Ct. 1958

(2013), and Plaintiffs’ facial and as-applied challenges to

California’s law therefore fail. Because the last paragraph of

the per curiam opinion vaguely implies that something of

Plaintiffs’ lawsuit may survive King, I respectfully concur

only in the judgment.

I.

Because the per curiam opinion does not describe the

relevant factual and procedural background of this case, I do

so here.

A.

In 2004, California voters approved Proposition 69, which

requires law enforcement to collect DNA samples from “any

adult person arrested or charged with any felony offense . . .

immediately following arrest, or during the booking . . .

process or as soon as administratively practicable after arrest,

but, in any case, prior to release on bail or pending trial or

any physical release from confinement or custody.” Cal.

Penal Code §§ 296(a)(2)(C), 296.1(a)(1)(A). The law took

effect on January 1, 2009. Officers typically collect the DNA

sample from a buccal swab that is swept along an arrestee’s

inner cheek. An arrestee’s failure to comply 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 profile of the arrestee. The

laboratory then uploads the DNA profile into the Combined
HASKELL V. HARRIS 7

DNA Index System (CODIS), a nationwide collection of

federal, state, and local DNA profiles.

Only law enforcement officials may access a DNA

profile, and they may only use the DNA for identification

purposes. Id. §§ 295.1(a), 299.5(f). Unauthorized access or

disclosure is punishable under state law by imprisonment and

a criminal fine. Id. § 299.5(i). Federal law imposes similar

penalties for unauthorized use of, or access to, CODIS. See

42 U.S.C. §§ 14133(c), 14135e(c). An arrestee who is not

ultimately convicted may ask the trial court to order the

sample destroyed and the DNA profile expunged. Cal. Penal

Code § 299(b).

B.

Plaintiffs in this case provided DNA samples in

connection with their felony arrests, but they were never

convicted of the crimes for which they were arrested. On

October 7, 2009, Plaintiffs filed a complaint, on behalf of a

putative class, asserting that California’s DNA collection law

is unconstitutional, both facially and as applied. On October

30, 2009, Plaintiffs moved for a preliminary injunction

barring the application of the law to persons arrested for, but

not convicted 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

Plaintiffs’ claims. In King, the Court held that “[w]hen

officers make an arrest supported by probable cause to hold

for a serious offense and they bring the suspect to the station
8 HASKELL V. HARRIS

to be detained in custody, taking and analyzing a cheek swab

of the arrestee’s DNA is, like fingerprinting and

photographing, a legitimate police booking procedure that is

reasonable under the Fourth Amendment.” 133 S. Ct. at

1980. The Court recognized that although other DNAcollection statutes “vary in their particulars, such as what

charges require a DNA sample, their similarity means that

this case implicates more than the specific Maryland law. At

issue is a standard, expanding technology already in

widespread use throughout the Nation.” Id. at 1968.

Despite the clarity of the Supreme Court’s holding,

Plaintiffs argue that King does not apply to California’s DNA

collection law. But the purported distinctions that Plaintiffs

identify are illusory.

A.

Plaintiffs first argue that King is distinguishable because

Maryland’s law applies only to burglaries, crimes of violence,

and attempts at either, which the Supreme Court

characterized as “serious crimes.” Id. at 1967. By contrast,

California’s law applies to all felonies. See Cal. Penal Code

§ 296(a)(2)(C). Plaintiffs contend that this difference is

significant, as the California law applies to more minor

crimes in which DNA evidence will rarely be relevant,

including “wobblers” that can be charged as either a

misdemeanor or a felony.

This argument has no traction. The Maryland law’s list

of “serious crimes,” King, 133 S. Ct. at 1967, does not differ

significantly from the California law’s limitation to adult

felony arrestees. A felony is, of course, a serious crime. See

Black’s Law Dictionary 694 (9th ed. 2009) (defining felony
HASKELL V. HARRIS 9

as “[a] serious crime usu[ally] punishable by imprisonment

for more than one year or by death”). Indeed, in outlining the

scope of its decision, the Supreme Court explained that

“[b]oth federal and state courts have reached differing

conclusions as to whether the Fourth Amendment prohibits

the collection and analysis of a DNA sample from persons

arrested, but not yet convicted, on felony charges.” King,

133 S. Ct. at 1966 (emphasis added). The Court then stated

that it “granted certiorari . . . to address the question.” Id.

When viewed against this broad language, Plaintiffs’ attempt

to limit King in this way is baseless.

More fundamentally, the Court’s reasoning in King is not

dependent on the seriousness of the crimes involved. In

upholding Maryland’s law, the Supreme Court defined the

state’s interest in obtaining DNA as “identifying [the

arrestee] not only so that the proper name can be attached to

his charges but also so that the criminal justice system can

make informed decisions concerning pretrial custody.” King,

133 S. Ct. at 1980. Under the Court’s rationale, the

magnitude of the state’s interest does not necessarily depend

on the seriousness of the crime of arrest. As the majority

observed, “people detained for minor offenses can turn out to

be the most devious and dangerous criminals.” Id. at 1971

(quoting Florence v. Bd. of Chosen Freeholders, 132 S. Ct.

1510, 1520 (2012)) (internal alteration omitted).

The four dissenting Justices in King similarly recognized

that there is no basis for limiting the Court’s holding to

certain enumerated crimes. Describing the breadth of the

majority’s reasoning, Justice Scalia explained in dissent that

“[i]f one believes that DNA will ‘identify’ someone arrested

for assault, he must believe that it will ‘identify’ someone

arrested for a traffic offense.” King, 133 S. Ct. at 1989
10 HASKELL V. HARRIS

(Scalia, J., dissenting). Justice Scalia thus reasoned that “[a]s

an entirely predictable consequence of today’s decision, your

DNA can be taken and entered into a national DNA database

if you are ever arrested, rightly or wrongly, and for whatever

reason.” Id. He predicted that “[w]hen there comes before us

the taking of DNA from an arrestee for a traffic violation, the

Court will predictably (and quite rightly) say, ‘We can find

no significant difference between this case and King.’” Id.

Thus, the California law’s limitation to felony arrests is

not meaningfully different from the Maryland law’s

restriction to certain “serious crimes.” In upholding the

Maryland law, the Supreme Court identified the state’s

interest as identifying the arrestee as part of the booking

process. This state interest does not vary with the

“seriousness” of the felony at issue. Accordingly, Plaintiffs’

first attempt to distinguish King fails.

B.

Plaintiffs next argue that California’s law is

distinguishable from the Maryland law approved in King

because (1) it authorizes the collection of DNA from arrestees

never charged with a crime; and (2) it allows police to

analyze DNA samples without a judicial finding of probable

cause. But, under King, these differences are not

constitutionally relevant.

Unlike California, Maryland does not process DNA

samples until after suspects are arraigned. See King, 133 S.

Ct. at 1967. Nevertheless, the Supreme Court in King

repeatedly emphasized the permissibility of DNA collection

from arrestees at booking, holding that “DNA is, like

fingerprinting and photographing, a legitimate police booking
HASKELL V. HARRIS 11

procedure that is reasonable under the Fourth Amendment.” 

Id. at 1980. Indeed, the Court expressly held that “[i]n light

of the context of a valid arrest supported by probable cause

[the arrestee’s] expectations of privacy were not offended by

the minor intrusion of a brief swab of his cheeks.” Id.

(emphasis added).

In light of the Supreme Court’s focus on the collection of

DNA samples in connection with arrest and booking,

Plaintiffs’ argument that the filing of charges and a judicial

probable-cause determination are conditions precedent to

permissible DNA collection is unsupportable. Refusing to

draw such a line makes good sense. The government’s

interest in identifying arrestees attaches “when an individual

is brought into custody,” id. at 1971, irrespective of whether

the suspect is ultimately charged. For this reason, the Court

explained that “[w]hen probable cause exists to remove an

individual from the normal channels of society and hold him

in legal custody, DNA identification plays a critical role in

serving those interests.” Id. The dissent likewise recognized

that the majority’s reasoning applies to all arrests, regardless

of subsequent charging decisions. See id. at 1989 (Scalia, J.,

dissenting) (“As an entirely predictable consequence of

today’s decision, your DNA can be taken and entered into a

national DNA database if you are ever arrested, rightly or

wrongly, and for whatever reason.” (emphasis added)). 

Plaintiffs’ arguments to the contrary are unavailing.

C.

Finally, Plaintiffs assert that California’s law is

distinguishable from Maryland’s because California retains

and uses DNA samples indefinitely even if a suspect is never

charged or convicted. By contrast, Maryland automatically
12 HASKELL V. HARRIS

expunges the DNA samples of every person it fails to convict. 

See Md. Pub. Safe Code Ann. § 2-504(d)(2). While Plaintiffs

are correct that expungement of DNA samples is not

automatic under California law, this distinction is not

constitutionally relevant.

Even though California does not automatically expunge

DNA samples, California law enables an arrestee to request

expungement if no charges are filed, his case is dismissed, or

he is found not guilty. Cal. Penal Code § 299(b). Plaintiffs

counter that California will not, in practice, expunge DNA

samples and profiles until after the relevant statute of

limitations has expired. But Defendants-Appellees represent

that the California Department of Justice interprets § 299 “to

allow expungement as soon as the prosecuting attorney

declines to press charges.” Appellees’ Supplemental Br. at 8

n.2. In view of this representation, there is strong reason to

believe that the differences in expungement procedures

between Maryland and California are not as great as Plaintiffs

suggest.

In any event, the King Court did not view Maryland’s

expungement procedures as important to the constitutionality

of Maryland’s law. The Fourth Amendment search at issue

is a buccal swab, and the “minor intrusion” that this “brief”

procedure represents is not affected at all by the availability

of expungement procedures. King, 133 S. Ct. at 1980. While

the Supreme Court also analyzed whether the processing of

the arrestee’s DNA sample intruded on his privacy interests,

it did not suggest that post-collection expungement

procedures would affect the constitutional inquiry. See id. at

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

as so limited. See id. at 1989 (Scalia, J., dissenting)
HASKELL V. HARRIS 13

(“Perhaps the construction of such a genetic panopticon is

wise.”).

III.

The majority in King expressly recognized that its

decision “implicates more than the specific Maryland law,”

id. at 1968, and the four dissenting Justices emphatically

agreed. See id. at 1989 (Scalia, J., dissenting). After King,

Plaintiffs’ facial and as-applied challenges to California’s

DNA collection law are clearly without merit, and any

amendment to Plaintiffs’ complaint would be futile. This

case is over, and the district court has no obligation to give

the Plaintiffs an opportunity to amend their complaint. For

the foregoing reasons, I respectfully concur only in the

judgment.