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California DNA Testing Case Fizzles

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1998:  The California Legislature provides for DNA testing of everyone convicted of certain felonies.

2004:  The voters expand the sampling and testing to everyone arrested for any felony, effective in 2009.

2009:  U.S. District Judge Charles Breyer denies a preliminary injunction against the law.

2012:  A three-judge panel of the Ninth Circuit affirms, finding the program valid.  Five months later the court grants rehearing en banc.

2013:  The Supreme Court decides in Maryland v. King that DNA testing of all persons arrested for violent crimes is valid.  The Ninth orders supplemental briefing and reargument.

Today: The en banc Ninth Circuit affirms the denial of the preliminary injunction on the ground that plaintiffs asked for an injunction against DNA testing of anyone arrested for a felony, and that they are obviously not entitled to.  After King, the law is clearly valid as applied to the arrestees for violent crimes, and the court of appeals will not consider an injunction limited to the arrestees for nonviolent crimes until such a motion has been made and heard in the district court.

Well that was a long trek for not much.  If you read a news story that says California's program was upheld today by the Ninth, don't believe it.

The upside, though, is that there is no injunction in place against the program, and the ACLU has wasted years of litigation effort as a result of overreaching and asking for too much.  We will take a little satisfaction in that.

To be continued ....

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