On Wednesday, September 19, in the circuit headquarters courthouse in San Francisco, the Ninth Circuit will hold a reargument en banc of Haskell v. Harris. In that case, people arrested challenged California’s statute requiring them to provide DNA samples for inclusion in the state’s DNA profile database. The plaintiffs, represented by Michael Risher of the ACLU (a Stanford Law grad), lost at the district court and lost again at the panel stage on a divided 2-1 vote. (See the CLB blog’s coverage of the district court and 9th Circuit panel cases here and here, as well as a more general discussion of the issue here.) Now they get another chance with 11 judges.
The issue remains hot. The U.S. Supreme Court recently denied cert in an en banc 3rd Circuit decision upholding the federal law in U.S. v. Mitchell; Chief Justice Roberts has stayed, pending a decision on cert, the application of a Maryland Court of Appeal decision, Maryland v.King, that held Maryland’s similar law violated the Fourth Amendment. How the en banc Ninth Circuit decides this case – and whether it does get a decision out before the Supreme Court acts – will be very interesting to watch.