Ignorance of the Law is No Excuse…..Unless You’re a Cop

There is a famous maxim “ignorantia juris non excusat,” Latin for “ignorance of the law does not excuse.”  Merely being unaware that something is against the law is normally not a way to escape being convicted of a crime.

However, the Supreme Court just held in Heien v. North Carolina that a police officer can justify a stop under the Fourth Amendment based on a mistake of law, so long as the mistake was made reasonably.

 

Requiring Suspects to Submit DNA samples Violates California Constitution

Even though the United States Supreme Court insanely held in Maryland v. King (2013) __ U.S. __ [133 S.Ct. 1958] that requiring people who have merely been arrested for a felony to submit their DNA to the government is constitutional, a California appellate court in People v. Buza, 231 Cal. App. 4th 1446 has correctly ruled that such a requirement violates the California Constitution.

Here’s the Opinion:

KLINE, P. J.—The sole issue in this case is the constitutionality of a provision of the DNA and Forensic Identification Database and Data Bank [1451] Act of 1998, as amended (Pen. Code, § 295 et seq.) (the DNA Act),1Link to the text of the note which requires that a DNA sample be taken from all adults arrested for or charged with any felony offense “immediately following arrest, or during the booking … process or as soon as administratively practicable after arrest … .” (§ 296.1, subd. (a)(1)(A); see § 296, subd. (a)(2)(C).) In a prior opinion, we held that the seizure of appellant’s DNA shortly after his arrest, at a time when he was entitled to the presumption of innocence and there had been no judicial determination of probable cause to believe he committed the offense for which he was arrested, violated his right under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures. (People v. Buza*Link to the text of the note (Cal.App.).) The case now returns to us with directions from the California Supreme Court to vacate our prior decision and reconsider the matter in light of Maryland v. King (2013) 569 U.S. ___ [186 L. Ed. 2d 1, 133 S.Ct. 1958] (King).

We have done so, and again reverse the judgment of conviction under the DNA Act. As we will explain, because of significant differences between the DNA Act and the Maryland law considered in King, we question whether King establishes the validity of the California act’s application to arrestees under the Fourth Amendment. We base our decision, however, solely upon article I, section 13, of the California Constitution, which in our view undoubtedly prohibits the search and seizure at issue.

FACTS AND PROCEEDINGS BELOW
Shortly after 3:00 o’clock on the morning of January 21, 2009, San Francisco Police Sergeant Jody Kato saw an orange glow emanating from a parked police car. When he realized the vehicle was on fire he saw a man, later identified as appellant, pop up from behind the vehicle and run into a nearby wooded area holding something in his hand. When another officer called out for him to surrender, appellant stepped out of the woods with his hands up. A search of the wooded area produced a road flare and a bottle containing a mixture of oil and gasoline. Matches were found in appellant’s pocket and a container of oil was found in his backpack. A fire department investigator concluded that all four tires of the patrol car had been damaged by fire, and traces of polystyrene, gasoline residue and/or medium weight oil were found on two of the tires.

Several hours after his arrest, while he was confined in county jail and prior to any appearance before a magistrate or judge, appellant was asked to [1452] provide a DNA sample, as required by section 296, and refused, even after being informed that refusal to provide a sample would constitute a misdemeanor with which he would be charged.

On February 17, 2009, appellant was charged by information with arson (§ 451, subd. (d)—count 1); possession of combustible material or incendiary device (§ 453, subd. (a)—count 2); vandalism (§ 594—count 3); and refusal or failure to provide a DNA specimen (§ 298.1, subd. (a)—count 4). Appellant pleaded not guilty to all four counts.

With respect to the first three counts, appellant admitted at trial that he set fire to the patrol car’s tires using a mixture of oil, gasoline, and Styrofoam as an accelerant. He did not commit his acts maliciously, he testified, but to protest what he considered a corrupt government and system and to call attention to a political group he had formed, whose Web sites had been “deleted from the Internet.”

As to the fourth count, shortly after appellant’s arrest and while he was in county jail, San Francisco Sheriff’s Deputy Kenneth Washington advised appellant that state law required him to provide a DNA sample, which would be obtained by swabbing the inside of his cheek with a cotton-tipped swab. When appellant stated he did not wish to provide a sample, Deputy Washington showed appellant a Penal Code section 296 collection form which stated “the law about 296 PC requirements.” After appellant read the form, Deputy Washington again asked him to provide a sample, and appellant again refused. Appellant continued to refuse after being advised that his refusal was a misdemeanor offense with which he would be charged under section 298.1. Deputy Washington stated that provision of a DNA sample was required of all persons arrested for a felony offense, appellant had not been singled out, his DNA was not sought to connect him to evidence found at the scene, and it was not used for that purpose. Washington testified that at the time San Francisco deputy sheriffs seek a DNA sample from arrestees they also obtain two thumbprints and a signature, and he apparently had no difficulty obtaining these items from appellant.

On April 22, 2009, appellant unsuccessfully moved for judgment of acquittal on count 4, contending that his arrest for a felony offense does not create a constitutionally adequate basis for requiring him to provide a biological sample.

On April 30, 2009, the jury returned a verdict finding appellant guilty of all counts. That same day, the court ordered appellant to provide a DNA sample prior to sentencing. On May 28, 2009, after learning of appellant’s refusal to comply with this order, the court issued an order permitting the San Francisco [1453] Sheriff’s Department or the Department of Corrections and Rehabilitation to use “reasonable force, as outlined in P.C. 298.1, and in conjunction with guidelines of the Department of Corrections,” to “bring defendant Buza into compliance” with section 296. Prior to the July 6, 2009 sentencing hearing, appellant provided a DNA sample.

Appellant was sentenced to the low term of 16 months in state prison on count 1, with an additional concurrent 16-month sentence on count 2, and a concurrent six-month county jail term on count 4, refusal to provide a DNA sample. A 16-month sentence on count 3 was stayed pursuant to section 654. The court granted appellant appropriate custody and conduct credits, imposed appropriate restitution fines, and ordered him to register as an arson offender under section 457.1. The court also informed appellant that he would be included in the state’s DNA and forensic identification database and databank program.

After this court reversed the conviction on count 4, the California Supreme Court granted respondent’s petition for review (People v. Buza*Link to the text of the note), held the case pending the United States Supreme Court’s decision in King, supra, 569 U.S. at p. ___ [133 S.Ct. 1958], then returned it to us for reconsideration. (People v. Buza, July 10, 2013, S196200.)

DISCUSSION

I.

The Statutory Scheme
California law enforcement officials have been authorized to collect forensic identification blood, saliva or buccal (cheek) swab samples from persons convicted of certain serious crimes since 1984. (See former § 290.2, added by Stats. 1983, ch. 700, § 1, p. 2680.) In 1998, the Legislature enacted the DNA Act (§§ 295–300.3; Stats. 1998, ch. 696, § 2, p. 4571), which required “DNA and forensic identification data bank samples” from all persons convicted of specified offenses. (§ 295, subd. (b)(2).)2Link to the text of the note The purpose of the DNA Act “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 [1454] exclusion of suspects who are being investigated for these crimes, and the identification of missing and unidentified persons, particularly abducted children.” (§ 295, subd. (c).)

At the November 2004 general election, California voters amended the DNA Act by enacting Proposition 69, the DNA Fingerprint, Unsolved Crime and Innocence Protection Act. That measure significantly enlarged the scope of persons subject to warrantless DNA searches by, among other things, providing that, beginning on January 1, 2009, warrantless seizure of DNA would be required of any adult arrested for or charged with any felony. (§ 296, subd. (a)(2)(C).)

Pursuant to the DNA Act, collection of DNA must take place “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.” (§ 296.1, subd. (a)(1)(A).) DNA samples are ordinarily limited to collection of inner cheek cells of the mouth (buccal swab samples) with a small stick. (§ 295, subd. (e).) The taking of a DNA sample is mandatory; law enforcement officials lack discretion to suspend the requirement. (§ 296, subd. (d); People v. King (2000) 82 Cal.App.4th 1363, 1373 [99 Cal. Rptr. 2d 220].)

After the sample is taken, it is sent to the DNA Laboratory of the California Department of Justice (DOJ), which is responsible for the management and administration of the state’s DNA and Forensic Identification Database and Data Bank Program and which stores, correlates and compares forensic identification samples for use in criminal investigations. (§§ 295, subds. (f), (g), (i)(1)(C), 295.1, subd. (c); People v. King, supra, 82 Cal.App.4th at p. 1370.) The act directs the DOJ to analyze the DNA “only for identification purposes.” (§ 295.1, subd. (a).) A genetic profile is created from the sample based on 13 genetic loci known as “noncoding” or “junk” DNA, because they are not known to be associated with any particular genetic trait, disease or predisposition. (King, supra, 569 U.S. at pp. ___–___, ___ [133 S.Ct. at pp. 1966–1967, 1968]; Cal. DOJ Bureau of Forensic Services DNA Frequently Asked Questions (FAQ), Searching the CAL-DNA Data Bank and CODIS, Question 3 <http://oag.ca.gov/bfs/prop69/faqs> [as of Dec. 3, 2014].) “[F]orensic analysis focuses on ‘repeated DNA sequences scattered throughout the human genome,’ known as ‘short tandem repeats’ (STRs). [(J. Butler, Fundamentals of Forensic DNA Typing 5 (2009) at pp. 147–148.)] The alternative possibilities for the size and frequency of these STRs at any given point along a strand of DNA are known as ‘alleles,’ [(id., at p. 25)]; and multiple alleles are analyzed in order to ensure that a DNA profile matches only one individual. Future refinements may improve present technology, but even now STR analysis makes it ‘possible to determine [1455] whether a biological tissue matches a suspect with near certainty.’” (King, 569 U.S. at p. ___ [133 S.Ct. at p. 1967], quoting District Attorney’s Office for Third Judicial Dist. v. Osborne (2009) 557 U.S. 52, 62 [174 L. Ed. 2d 38, 129 S. Ct. 2308].)

The profile derived from the DNA sample is uploaded into the state’s DNA databank, which is part of the national Combined DNA Index System (CODIS),3Link to the text of the note and can be accessed by local, state and federal law enforcement agencies and officials. (Brochure, supra, <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis_brochure> [as of Dec. 3, 2014]; FAQ, supra, Searching the CAL-DNA Data Bank and CODIS <http://oag.ca.gov/bfs/prop69/faqs> [as of Dec. 3, 2014].) When a DNA profile is uploaded, it is compared to profiles contained in the Convicted Offender and Arrestee Indices; if there is a “hit,” the laboratory conducts procedures to confirm the match and, if confirmed, obtains the identity of the suspect. (Fact Sheet, supra, <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet> [as of Dec. 3, 2014].) The uploaded profile is also compared to crime scene profiles contained in the Forensic Index; again, if there is a hit, the match is confirmed by the laboratory. (Ibid.) CODIS also performs weekly searches of the entire system. (The FBI and DNA, Part 1 [1456] <http://www.fbi.gov/news/stories/2011/november/dna_112311> [as of Dec. 3, 2014].) In CODIS, the profile does not include the name of the person from whom the DNA was collected or any case-related information, but only a specimen identification number, an identifier for the agency that provided the sample, and the name of the personnel associated with the analysis. (Fact Sheet, supra, <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet> [as of Dec. 3, 2014].)

The DNA Act specifies that samples and profiles may be released only to law enforcement personnel and contains penalties for unauthorized use or disclosure of DNA information. (§ 299.5, subds. (f), (i).) A person whose DNA profile has been included in the state databank may have his or her DNA specimen and sample destroyed, and database profile expunged from the databank program, if he or she “has no past or present offense or pending charge which qualifies that person for inclusion within the … Data Bank Program and there otherwise is no legal basis for retaining the specimen or sample or searchable profile.” (§ 299, subd. (a).)

The expungement process, however, is neither quick nor guaranteed. An arrestee may request expungement if the relevant charges are dropped before adjudication, after the statute of limitations for filing an accusatory pleading has run, or after being found factually innocent or not guilty of the offense. (§ 299, subd. (b)(1), (3), (4).) The arrestee must submit a request to the trial court and prosecutor of the county where the arrest occurred and to the DOJ’s DNA Laboratory; the court must then wait 180 days before it can grant the request; the court has discretion to grant or deny the request and its order is not reviewable by appeal or by writ. (§ 299, subd. (c)(1), (2)(D).)4Link to the text of the note The DNA [1457] Act appears to allow the prosecutor to prevent expungement merely by objecting to the request. (§299, subd. (c)(2)(D).)

II.

The Fourth Amendment and Maryland v. King
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures … .” (U.S. Const., 4th Amend.) Subject only to a few specifically established and well-delineated exceptions not applicable here, warrantless searches are per se unreasonable under the Fourth Amendment (Missouri v. McNeely (2013) 569 U.S. ___ [185 L. Ed. 2d 696, 133 S.Ct. 1552, 1558]; Ontario v. Quon (2010) 560 U.S. 746, 760 [177 L. Ed. 2d 216, 130 S. Ct. 2619]); the state thus bears the burden of showing that the search at issue is reasonable and therefore constitutional. (People v. Williams (1999) 20 Cal.4th 119, 127 [83 Cal.Rptr.2d 275, 973 P.2d 52].) “‘As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is “reasonableness.”’ (Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 652 [132 L. Ed. 2d 564, 115 S. Ct. 2386].) [¶] ‘Reasonableness … is measured in objective terms by examining the totality of the circumstances’ (Ohio v. Robinette (1996) 519 U.S. 33, 39 [136 L. Ed. 2d 347, 117 S. Ct. 417]), and ‘whether a particular search meets the reasonableness standard “‘is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.’”’ (Vernonia School Dist. 47J … at pp. 652–653; see also Samson v. California (2006) 547 U.S. 843, 848 [165 L. Ed. 2d 250, 126 S. Ct. 2193] (Samson).)” (People v. Robinson (2010) 47 Cal.4th 1104, 1120 [104 Cal. Rptr. 3d 727, 224 P.3d 55].)

[1458]
Nonconsensual extractions of substances that may be used for DNA profiling are “searches” entitled to the protection of the Fourth Amendment. (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1969] [buccal swab]; Schmerber v. California (1966) 384 U.S. 757, 767–771 [16 L. Ed. 2d 908, 86 S. Ct. 1826] (Schmerber) [blood]; People v. Robinson, supra, 47 Cal.4th at p. 1119 [blood]; Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602, 616–617 [103 L.Ed.2d 639, 109 S.Ct. 1402] [Breathalyzer and urine sample]; Cupp v. Murphy (1973) 412 U.S. 291, 295 [36 L. Ed. 2d 900, 93 S. Ct. 2000] [fingernail scrapings].) The physical intrusion involved in the buccal swab procedure used in the present case has been viewed as minimal. (King, 569 U.S. at p. ___ [133 S.Ct. at p. 1969].) The collection of the DNA sample, however, is only the first part of the search authorized by the DNA Act; the second occurs when the DNA sample is analyzed and a profile created for use in state and federal DNA databases. The latter search is the true focus of our analysis.

Federal and state statutes authorizing collection of DNA samples from persons convicted of qualifying offenses have been upheld universally by federal and state courts, albeit with significant debate and disagreement among the judges who decided these cases. (E.g., Banks v. U.S. (10th Cir. 2007) 490 F.3d 1178; U.S. v. Weikert (1st Cir. 2007) 504 F.3d 1; U.S. v. Amerson (2nd Cir. 2007) 483 F.3d 73; U.S. v. Hook (7th Cir. 2006) 471 F.3d 766; Johnson v. Quander (D.C. Cir. 2006) 370 U.S. App.D.C. 167 [440 F.3d 489]; U.S. v. Conley (6th Cir. 2006) 453 F.3d 674; U.S. v. Kraklio (8th Cir. 2006) 451 F.3d 922; U.S. v. Sczubelek (3rd Cir. 2005) 402 F.3d 175; Groceman v. U.S. Dept. of Justice (5th Cir. 2004) 354 F.3d 411; U.S. v. Kincade (9th Cir. 2004) 379 F.3d 813 (Kincade); Wilson v. Collins (6th Cir. 2008) 517 F.3d 421 [Ohio]; Nicholas v. Goord (2nd Cir. 2005) 430 F.3d 652 [New York]; Padgett v. Donald (11th Cir. 2005) 401 F.3d 1273 [Georgia]; Green v. Berge (7th Cir. 2004) 354 F.3d 675 [Wisconsin]; Rise v. Oregon (9th Cir. 1995) 59 F.3d 1556 (Rise) [Oregon]; Jones v. Murray (4th Cir. 1992) 962 F.2d 302 [Virginia]; People v. Robinson, supra, 47 Cal.4th at p. 1121; State v. Hutchinson (2009) 2009 ME 44 [969 A.2d 923, 932]; State v. Martin (2008) 184 Vt. 23, 46 [955 A.2d 1144]; State v. Bartylla (Minn. 2008) 755 N.W.2d 8, 18; State v. O’Hagen (2007) 189 N.J. 140 [914 A.2d 267, 280–281].)

These cases emphasize, on the one hand, that convicted offenders are subject to “a ‘broad range of [restrictions] that might infringe constitutional rights in free society’” and have “severely constricted expectations of privacy relative to the general citizenry” (Kincade, supra, 379 F.3d at pp. 833–834; see U.S. v. Kriesel (9th Cir. 2007) 508 F.3d 941, 947 (Kriesel)), including no reasonable expectation of privacy in their identity. (Kincade, at p. 837; Kriesel, at p. 947; Hamilton v. Brown (9th Cir. 2010) 630 F.3d 889, 895; Rise, supra, 59 F.3d at p. 1560; People v. Robinson, supra, 47 Cal.4th at [1459] p. 1121.) On the other hand, the government has a strong interest in identifying and prosecuting offenders and, in the case of those on supervised release, promoting rehabilitation and protecting the community. (Kincade, at pp. 833–835 [parolee]; Kriesel, at p. 947 [probationer]; Hamilton, at pp. 895–896 [inmate].) Accurate identification has been viewed as serving the governmental purposes of returning conditional releasees to prison if they reoffend, reducing recidivism through the deterrent effect of DNA profiling, and solving past crimes (Kincade, at pp. 838–839; Kriesel, at pp. 949–950), as well as avoiding erroneous convictions (People v. Robinson, at p. 1121).

In King, the United States Supreme Court moved beyond the realm of convicted offenders, rejecting a Fourth Amendment challenge to a Maryland statute requiring collection of DNA from arrestees charged with “serious crimes.” (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1970].) King described the “legitimate government interest” served by the Maryland DNA law as “the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.” (Ibid.) The court viewed a suspect’s “identity” as including not only “his name or Social Security number” but also his or her criminal history, the latter being “critical” for the police to know when processing a suspect for detention because “[i]t is a common occurrence that ‘[p]eople detained for minor offenses can turn out to be the most devious and dangerous criminals.’” (Id. at p. ___ [133 S.Ct. at p. 1971].) For this purpose, the court stated, “the only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides.” (Id. at p. ___ [133 S.Ct. at p. 1972].) “DNA is another metric of identification used to connect the arrestee with his or her public persona, as reflected in records of his or her actions that are available to the police,” producing “a more comprehensive record of the suspect’s complete identity.” (Ibid.)

Employing this definition of “identity,” the court saw DNA identification of arrestees as helping ensure safety in a custodial setting by allowing law enforcement officers to “know the type of person whom they are detaining” and “make critical choices about how to proceed.” (King, supra, 569 U.S. at p. ___ [133 S.Ct at p. 1972].) DNA information could help law enforcement assure an arrestee’s availability for trial by indicating arrestees who had committed more serious offenses in the past and might be more inclined to flee in order to avoid investigation that could expose the other offenses. (Id. at pp. ___–___ [133 S.Ct. at pp. 1972–1973].) The information could also inform bail decisions, because an arrestee’s “past conduct is essential to an assessment of the danger he poses to the public.” (Id. at p. ___ [133 S.Ct. at p. 1973].) Acknowledging that it may take some time to obtain the results of DNA testing, the court observed that actual release often does not occur for a considerable time after the decision to release is made, information about the arrestee’s “identity and background” could be relevant to conditions of [1460] release or reconsideration of the decision to release, and DNA results obtained after release on bail could lead to revocation. (Id. at pp. ___–___ [133 S.Ct. at pp. 1973–1974].) Finally, the court noted that identification of an arrestee as the perpetrator of another crime could result in freeing a different person wrongfully imprisoned for that other offense. (Id. at p. ___ [133 S.Ct. at p. 1974].)

On the other side of the balance, the court held that the privacy expectations of a person taken into police custody “‘necessarily [are] of a diminished scope.’” (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1978], quoting Bell v. Wolfish (1979) 441 U.S. 520, 557 [60 L. Ed. 2d 447, 99 S. Ct. 1861].) “Once an individual has been arrested on probable cause for a dangerous offense that may require detention before trial, … his or her expectations of privacy and freedom from police scrutiny are reduced.” (King, at p. ___ [133 S.Ct. at p. 1978].) After finding the physical intrusion imposed by buccal swab minimal (id. at p. ___ [133 S.Ct at p. 1979]), the court offered three reasons for concluding that the processing of the DNA sample did not intrude upon privacy rights in an unconstitutional manner: Only noncoding portions of the arrestee’s DNA, which would not reveal genetic traits, were analyzed; even if additional information could be gleaned from the DNA tested, the DNA was not in fact tested for such purposes; and testing for any purpose other than identification was prohibited. (Id. at pp. ___–___ [133 S.Ct. at pp. 1979–1980].)

In sum, the court held, “In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent 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. Upon these considerations the Court concludes DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station 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.” (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1980].)

In a piercing dissent, Justice Scalia explained for himself and the three other dissenting Justices that the King majority’s interpretation of the Fourth Amendment departed markedly from prior Fourth Amendment jurisprudence by allowing the search of a person for evidence of a crime for which he or she has not been arrested, in the absence of any reason to think the person is [1461] guilty of any such other crime, possesses any incriminating evidence or presents any safety risk. The historical prohibition of such a search “is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation … .” (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1980] (dis. opn. of Scalia, J.).)

Justice Scalia elaborated: “As ratified, the Fourth Amendment’s Warrant Clause forbids a warrant to ‘issue’ except ‘upon probable cause,’ and requires that it be ‘particula[r]’ (which is to say, individualized) to ‘the place to be searched, and the persons or things to be seized.’ And we have held that, even when a warrant is not constitutionally necessary, the Fourth Amendment’s general prohibition of ‘unreasonable’ searches imports the same requirement of individualized suspicion. See Chandler v. Miller [(1997)] 520 U.S. 305, 308 [137 L. Ed. 2d 513, 117 S. Ct. 1295].

“Although there is a ‘closely guarded category of constitutionally permissible suspicionless searches,’ id., at 309, that has never included searches designed to serve ‘the normal need for law enforcement,’ Skinner v. Railway Labor Executives’ [Assn., supra,] 489 U.S. [at p.] 619 … (internal quotation marks omitted). Even the common name for suspicionless searches—‘special needs’ searches—itself reflects that they must be justified, always, by concerns ‘other than crime detection.’ Chandler, supra, at 313–314 … . We have approved random drug tests of railroad employees, yes—but only because the Government’s need to ‘regulat[e] the conduct of railroad employees to ensure safety’ is distinct from ‘normal law enforcement.’ Skinner, supra, at 620 … . So too we have approved suspicionless searches in public schools—but only because there the government acts in furtherance of its ‘responsibilities … as guardian and tutor of children entrusted to its care.’ Vernonia School Dist. 47J v. Acton[, supra,] 515 U.S. [at p.] 665 … .

“So while the Court is correct to note (ante, at 1969–1970 …) that there are instances in which we have permitted searches without individualized suspicion, ‘[i]n none of these cases … did we indicate approval of a [search] whose primary purpose was to detect evidence of ordinary criminal wrongdoing.’ Indianapolis v. Edmond [(2000)] 531 U.S. 32, 38 … [148 L. Ed. 2d 333, 121 S. Ct. 447]. That limitation is crucial. It is only when a governmental purpose aside from crime-solving is at stake that we engage in the free-form ‘reasonableness’ inquiry that the Court indulges at length today. To put it another way, both the legitimacy of the Court’s method and the correctness of its outcome hinge entirely on the truth of a single proposition: that the primary purpose of these DNA searches is something other than simply discovering evidence of criminal wrongdoing. As I detail below, that proposition is wrong. [¶] … [¶]

[1462]
“The Court alludes at several points (see ante, at 1970–1971, 1978–1979 …) to the fact that King was an arrestee, and arrestees may be validly searched incident to their arrest. But the Court does not really rest on this principle, and for good reason: The objects of a search incident to arrest must be either (1) weapons or evidence that might easily be destroyed, or (2) evidence relevant to the crime of arrest. See Arizona v. Gant [(2009)] 556 U.S. 332, 343–344 [173 L. Ed. 2d 485, 129 S. Ct. 1710] … ; Thornton v. United States [(2004)] 541 U.S. 615, 632 [158 L. Ed. 2d 905, 124 S. Ct. 2127] … (Scalia, J., concurring in judgment). Neither is the object of the search at issue here. [¶] … [¶]

“At any rate, all this discussion is beside the point. No matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime-solving. A search incident to arrest either serves other ends (such as officer safety, in a search for weapons) or is not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime of arrest).” (King, supra, 569 U.S. at p. ___ [133 S.Ct. at pp. 1981–1982] (dis. opn. of Scalia, J.).)

The King dissenters highlighted critical issues we will return to later in this opinion, in particular the court’s novel view of identification and its acceptance of the analogy between DNA testing and fingerprinting. Even aside from criticism of the court’s underlying assumptions, however, we find it difficult to view King as controlling the outcome of the present case because of significant differences between the DNA Act and the Maryland law. These include that the DNA Act applies to persons arrested for any felony, requires immediate collection and analysis of arrestees’ DNA even before a judicial determination of probable cause, and does not provide for automatic expungement of DNA data if an arrestee is not in fact convicted of a qualifying crime. While judicial opinions do not ordinarily indicate their applicability to disputes arising under different statutes or presenting different facts, the King majority stated its intention to create a rule of national application despite acknowledging differences in the “particulars” of various states’ DNA testing statutes. (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1968].)5Link to the text of the note But it did so apparently without considering the ramifications of such differences, several of which render its reasons for upholding the Maryland law completely inapplicable to California’s.

[1463]
The difference between the statutes in the timing of DNA analysis has several implications. While the Maryland law does not permit a DNA sample to be processed until after a judicial officer makes a probable cause determination and the arrestee is charged with a qualifying crime (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1967]), California’s DNA Act requires that DNA be collected “as soon as administratively practicable after arrest” (§ 296.1, subd. (a)(1)(A)) and permits processing of the sample to begin immediately. This means that the arrestee’s DNA may be processed on the basis of an arresting officer’s designation of the alleged crime, even if he or she is never charged with a qualifying—or indeed any—crime, and despite the fact that, because of the length of time necessary for processing a DNA sample, the DNA information will not be available for any of the purposes discussed in King before the arrestee is either released or arraigned. For individuals who are formally charged with a qualifying offense, the information will rarely be available materially sooner as a result of collection immediately upon arrest than it would be if collected upon arraignment. Yet the privacy expectations of a prearraignment arrestee are higher than those of an individual who has been subjected to a judicial determination of probable cause, and permitting DNA collection on the basis of an arresting officer’s determination of the crime increases the potential for abuse. King considered none of these issues.

In addition, the difference in expungement provisions affects the weight of the arrestee’s privacy interests. Unlike the automatic expungement provisions of the Maryland law, California puts the burden on the arrestee to seek expungement, and outcome of the expungement process is not guaranteed. As the likelihood of expungement decreases, or the length of time necessary to obtain expungement increases, the privacy intrusion imposed by the government’s retention of the DNA profile and sample increases.

Another difference between the statutes is that Maryland expressly prohibits familial DNA searches—searches in which a partial match between an individual’s DNA profile and a profile in the DNA database is used to implicate a close biological relative of the DNA donor as a possible criminal suspect. (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1967]; Md. Pub. Safety Code Ann., § 2-506(d).) California does not. As we later discuss, this difference is significant because familial DNA searching has nothing to do with “identifying” the DNA donor and has no use other than criminal investigation. At present, as a matter of policy, California limits familial DNA searches to DNA from convicted offenders. But this restriction is not imposed by the DNA Act.

The DNA Act also differs from the Maryland law in that it applies to all felony arrestees rather than a subset limited by the serious nature of the crime [1464] of arrest. This difference further demonstrates that the purpose of the DNA Act is investigation of crime, not identification of arrestees. As Justice Scalia pointed out, the King majority describes its decision as applicable to persons arrested for serious offenses, but its logic would apply to any and every arrestee. “If one believes that DNA will ‘identify’ someone arrested for assault, he must believe that it will ‘identify’ someone arrested for a traffic offense. … When 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.’ Make no mistake about it: 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.” (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1989] (dis. opn. of Scalia, J.).) The more minor the crime of arrest, the more obvious it is that DNA is collected not to protect against some hidden risk to be discovered in “identifying” the arrestee, but to add to the database in furtherance of future crime solving.

In our view, the differences between the California and Maryland DNA laws significantly alter the weight of the governmental interests and privacy considerations to be balanced in determining constitutionality under the Fourth Amendment. We need not decide whether these differences require a different resolution of the issue from that of the King majority, however, as we focus our analysis instead upon the California Constitution.6Link to the text of the note Our conclusion that [1465] the DNA Act is invalid under article I, section 13, of the California Constitution renders it academic whether the Act is also invalid under the Fourth Amendment.

III.

The DNA Act’s Arrestee Provisions Violate the California Constitution
(1) Like the Fourth Amendment, article I, section 13 of the California Constitution, provides, “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.” Despite the all but identical language of the two constitutional provisions, the California Supreme Court has not always interpreted them as coextensive. Rather, the court has held that in this area, as in other constitutional analysis, the California Constitution is “a document of independent force.” (People v. Brisendine (1975) 13 Cal.3d 528, 549–550 [119 Cal. Rptr. 315, 531 P.2d 1099] (Brisendine); see People v. Fields (1996) 13 Cal.4th 289, 298 [52 Cal. Rptr. 2d 282, 914 P.2d 832] [double jeopardy]; American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 325–326 [66 Cal. Rptr. 2d 210, 940 P.2d 797] (American Academy) [privacy].) Further, the California Supreme Court has held that article I, section 13 of the California Constitution imposes a “‘more exacting standard for cases arising within this state’” than does the Fourth Amendment. (People v. Ruggles (1985) 39 Cal.3d 1, 11–12 [216 Cal. Rptr. 88, 702 P.2d 170] (Ruggles), quoting Brisendine, at p. 545.)

While our Supreme Court has recognized a “general principle or policy of deference to United States Supreme Court decisions” in interpreting provisions of the California Constitution that are textually parallel to those of the federal Constitution (Raven, supra, 52 Cal.3d at p. 353), “even when the terms of the California Constitution are textually identical to those of the federal Constitution, the proper interpretation of the state constitutional provision is not invariably identical to the federal courts’ interpretation of the corresponding provision contained in the federal Constitution. (See, e.g., Raven[, at pp.], 352–354; … Brisendine, supra, 13 Cal. 3d [at pp.] 548–551.)” (American Academy, supra, 16 Cal.4th at p. 326.) Deference is not required when “‘cogent reasons,’ ‘independent state interests,’ or ‘strong countervailing circumstances’ that might lead our courts to construe similar state constitutional language differently from the federal approach.” (Raven, at p. 353.) And where California authority establishes that the California Constitution provides greater protection, the United States Supreme Court’s [1466] interpretation of a textually parallel provision of the federal Constitution does not require our courts to weaken rights under the state Constitution. (American Academy, at p. 328.) The California Supreme Court “sits ‘as a court of last resort [in interpreting state constitutional guaranties], subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter.’” (Raven, at p. 354, quoting People v. Longwill (1975) 14 Cal.3d 943, 951, fn. 4 [123 Cal. Rptr. 297, 538 P.2d 753].)

This point is made explicit in our state Constitution: “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.” (Cal. Const., art. I, § 24.) Added to the Constitution by initiative in 1974, this provision did not create a new principle but, rather, “made explicit a preexisting fundamental principle of constitutional jurisprudence (see Ballot Pamp., Proposed Stats. and Amends. to Cal. Const. with arguments to voters, Gen. Elec. (Nov. 5, 1974), analysis by Legislative Analyst, p. 26).” (Raven, supra, 52 Cal.3d at p. 354; see Brisendine, supra, 13 Cal.3d at p. 551 & fn. 19.)

Indeed, as our Supreme Court has explained, the independence of state Constitutions is fundamental to principles of federalism and demonstrated by history. (Brisendine, supra, 13 Cal.3d at pp. 549–550.) “It is a fiction too long accepted that provisions in state constitutions textually identical to the Bill of Rights were intended to mirror their federal counterpart. The lesson of history is otherwise: the Bill of Rights was based upon the corresponding provisions of the first state constitutions, rather than the reverse.” (Id. at p. 550; see People v. Monge (1997) 16 Cal.4th 826, 872 [66 Cal. Rptr. 2d 853, 941 P.2d 1121] (dis. opn. of Werdegar, J.).) “The federal Constitution was designed to guard the states as sovereignties against potential abuses of centralized government; state charters, however, were conceived as the first and at one time the only line of protection of the individual against the excesses of local officials.” (Brisendine, at p. 550.) Thus the Brisendine court stated that “in determining that California citizens are entitled to greater protection under the California Constitution against unreasonable searches and seizures than that required by the United States Constitution,” it was “simply reaffirming a basic principle of federalism—that the nation as a whole is composed of distinct geographical and political entities bound together by a fundamental federal law but nonetheless independently responsible for safeguarding the rights of their citizens.” (Id., at pp. 550–551.)

(2) Our Supreme Court has enumerated several factors to consider in deciding whether a provision of the state Constitution should be construed differently from a parallel provision of the federal Constitution. In People v. Teresinski (1982) 30 Cal.3d 822 [180 Cal. Rptr. 617, 640 P.2d 753], the court [1467] set out four reasons for deciding not to depart from the United States Supreme Court’s construction of the federal free speech clause: “First, ‘nothing in the language or history of the California’ constitutional provision in question ‘suggest[ed] that the issue before us should be resolved differently than under’ the analogous federal constitutional ‘provision.’ ([Teresinski,] at p. 836.) Second, the decision in question ‘did not overrule past precedent or limit previously established rights under’ the United States Constitution. ([Teresinski,] at p. 836.) Third, the decision ‘was unanimous, and ha[d] not inspired extensive criticism.’ (Id. at pp. 836–837.) Fourth, the decision, ‘if followed by the courts of this state, would not overturn established California doctrine affording greater rights’ in the particular area. (Id. at p. 837.)” (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 510–511 [101 Cal. Rptr. 2d 470, 12 P.3d 720].)

These factors all militate against applying King’s analysis in the present case.

First, as we have said, the California Supreme Court has historically construed article I, section 13, of the California Constitution as imposing a “more exacting standard” than the Fourth Amendment in general, and specifically with respect to the scope of permissible searches of arrestees. (Brisendine, supra, 13 Cal.3d at p. 545; see People v. Norman (1975) 14 Cal.3d 929, 938–939 [123 Cal. Rptr. 109, 538 P.2d 237]; Ruggles, supra, 39 Cal.3d at pp. 11–12.) Second, while King—being a case of first impression—did not overrule past precedent or limit previously established rights, as Justice Scalia forcefully described, the majority opinion deviated sharply from prior Fourth Amendment jurisprudence on suspicionless searches and searches incident to arrest. Third, far from being unanimous, King was decided by a narrow majority of five justices, with four in dissent. Finally, although following King would not overturn established California doctrine affording greater rights—again, King being a case of first impression—it would run counter to our Supreme Court’s prior application of a “higher standard of reasonableness under article I, section 13” (Brisendine, at p. 552), especially in the area of arrestee searches, and to California’s express constitutional protection of informational privacy.7Link to the text of the note

[1468]
As we will explain, we find the King majority’s view of the purpose of DNA testing thoroughly inapplicable to the DNA Act, and the court’s view of the information exposed through DNA testing too dismissive of scientific knowledge and practical considerations. For these reasons, we decline to adopt these views in analyzing the DNA Act under the California Constitution. Further, as we will also explain, the differences we have identified between the California and Maryland DNA laws decrease the weight attributable to the governmental interest in DNA testing at this early stage and, correspondingly, increase the weight of the privacy interests at stake. Accordingly, we find that the arrestee provisions of the DNA Act do not pass muster under the California Constitution.

A.

The DNA/Fingerprint Analogy
The nature of the information at issue in DNA analysis is critical to assessment of the interests at stake in this case. Cases upholding DNA statutes invariably rely heavily on analogizing DNA testing to fingerprinting. (E.g., Rise, supra, 59 F.3d at p. 1559; U.S. v. Amerson, supra, 483 F.3d at p. 87.) King viewed DNA analysis simply as “an advanced technique superior to fingerprinting in many ways.” (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1976].) But “DNA contains an extensive amount of sensitive personal information beyond mere identifying information … .” (County of San Diego v. Mason (2012) 209 Cal.App.4th 376, 381 [147 Cal. Rptr. 3d 135]; see Simoncelli, Dangerous Excursions: The Case Against Expanding Forensic [1469] DNA Databases to Innocent Persons (2006) 34 J.L. Med. & Ethics 390, 392 [“Unlike fingerprints—two-dimensional representations of the physical attributes of our fingertips that can only be used for identification—DNA samples can provide insights into personal family relationships, disease predisposition, physical attributes, and ancestry.”) A DNA sample contains the entire human genome, “the total of all that person’s genetic information.” (Greeley et al., Family Ties: The Use of DNA Offender Database to Catch Offenders’ Kin (2006) 34 J.L. Med. & Ethics 248, 249.)8Link to the text of the note

In general, like King, the cases upholding mandatory collection and processing of DNA have unjustifiably dismissed concerns about the extent of the personal information contained in DNA samples by limiting their attention to the profile used in DNA databanks, as currently restricted by statutes and scientific capability. (See King, supra, 569 U.S. at p. ___ [133 S.Ct. at pp. 1979–1980].) We have already mentioned that California currently uses the information contained in DNA profiles for purposes other than identification in familial searches based on convicted offenders’ DNA, a point we will discuss in detail later. The fact that investigators in California are able to conduct familial DNA searches—using the CODIS loci to discover a new suspect—disproves the King majority’s assumption that “the CODIS loci come from noncoding parts of the DNA that do not reveal the genetic traits of the arrestee” and “alleles at the CODIS loci ‘are not at present revealing information beyond identification.’ [Citation.]” (Id. at p. ___ [133 S.Ct. at p. 1979].) Familial searches also disprove the King majority’s assumption that [1470] “even if non-coding alleles could provide some information,” they “‘are not at present revealing information beyond identification.’ [Citation.]” (Ibid.) While that may be true in Maryland, where familial searching is prohibited, it is demonstrably untrue in California. Notably, the King opinion added that if in the future police analyze samples to determine factors not relevant to identity, “that case would present additional privacy concerns not present here.” (Ibid.) Such is the case in California.

But even accepting that the amount of personal information contained in the profile developed from noncoding portions of DNA is limited,9Link to the text of the note the far greater danger to privacy lies in the DNA samples from which the CODIS profiles are developed, which, as we have said, contain the entire genome. DOJ’s laboratory is required to collect and store the blood specimens, buccal swab samples and other biological samples from which DNA profiles are derived. (§§ 295, subds. (h), (i)(1)(C), 295.1, subd. (c).) Like the DNA laws of almost every other state and federal law,10Link to the text of the note the DNA Act is silent as to how long these specimens and samples may be kept, and it is reasonable to expect they will be preserved long into the future, when it may be possible to extract even more personal and private information than is now the case. “[T]he advance of science promises to make stored DNA only more revealing … .” (Kincade, supra, 379 F.3d at p. 842, fn. 3 (conc. opn. of Gould, J.).)

Moreover, as we will explain, the act places few restrictions on the law enforcement uses to which such information may be put. (See discussion, post, at pp. 1476–1478.) This raises questions both about the kind of personal and private information that may be derived from the DNA samples in the DOJ’s possession, and the uses of that biometric data as scientific developments increase the type and amount of information that can be extracted from it. For example, commentators have discussed the potential for research to identify genetic causes of antisocial behavior that might be used to justify [1471] various crime control measures. (See Reclaiming “Abandoned” DNA: The Fourth Amendment and Generic Privacy, supra, 100 Nw. U. L.Rev. at p. 878.) One post-King commentator has stated, “Genetics already has the power to expose familial ties. Research into still more sensitive information is ongoing, as briefs to the Court [in King] highlighted. [(Citing Brief for Genetic Scientists Robert Nussbaum and Sara H. Katsanis as Amici Curiae in Support of Respondent at pp. 31–32 and Brief of 14 Scholars of Forensic Evidence as Amici Curiae Supporting Respondent at pp. 38–39).] Government health and science institutes fund innumerable studies of this kind, and the research arm of the [DOJ] itself is sponsoring research into the intersection of genetics and delinquency. [(Citing Beaver, Intersection of Genes, the Environment, and Crime and Delinquency: A Longitudinal Study of Offending (2010), available at <https://www.ncjrs.gov/app/publications/abstract.aspx?id=253671> (studying five genes for interactions).)] Academic and commercial sectors also actively pursue links between genetics and asocial behavior or addiction, and preliminary findings correlating one genetic variation with violence have recently been published. [(Citing Widom & Brzustowicz, MAOA and the ‘Cycle of Violence,’ 60 Biological Psychiatry 684 (2006) (citing studies of MAOA ‘violence’ gene) and Raine, The Anatomy of Violence: The Biological Roots of Crime (2013).)] If the ‘pedophile gene’ were found, or the ‘violence gene’ established, then surely law enforcement will seek to mine genetic information for that ‘identification purpose.’ After all, law enforcement needs to know just whom it is dealing with.” (Comment, License, Registration, Cheek Swab: DNA Testing and the Divided Court (2013) 127 Harv. L.Rev. 161, 180 (DNA Testing), fns. omitted.)

Further, as familial DNA searching demonstrates, DNA can be used to incriminate persons other than the suspect or offender from whom it is taken, while the information derived from fingerprints is limited to that one individual. In short, because the only information revealed by fingerprinting is a person’s identity, and DNA analysis has the potential to reveal every aspect of the person’s genetic makeup, fingerprinting presents no threat to privacy comparable to that posed by DNA analysis.11Link to the text of the note

[1472]

B.

Identification and Investigation
Like the four dissenting Justices in King, we are unwilling to accept the premises that analysis of arrestees’ DNA is intended or in fact used for identification rather than investigation, or that “identification” encompasses investigating criminal history. The King majority’s construction of a new governmental interest in “identity” that includes not only verification of who an arrestee is but also what that person has done in the past allowed the court to elevate the “governmental interest” side of the balance in weighing the law’s promotion of “legitimate governmental interests” against its intrusion on arrestee’s reasonable expectation of privacy. Because this definition of “identity” folds investigation into identity verification, and because DNA testing at the time of arrest does not further actual identity verification, the court’s analysis distorted the “totality of the circumstances” required to be examined in measuring the reasonableness of the search at issue.

The premises that arrestees’ DNA is used for identification and that identification includes criminal history permitted the King majority to view DNA testing of arrestees as falling within the established warrant exceptions for searches incident to arrest and booking. The result, as the dissenters explained, eviscerated protections against suspicionless searches long recognized under both the federal and state Constitutions. “The real expansion of warrantless search power in King is ‘its reimagination of the idea of “identity” to include criminal history and other information.’” (State v. Medina (2014) 2014 Vt. 69 [2014 Vt. Lexis 71, p. *42] (Medina) quoting DNA Testing, supra, 127 Harv. L.Rev. at p. 177.)

The King court relied upon the principle that “‘[t]he constitutionality of a search incident to an arrest does not depend on whether there is any indication that the person arrested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search.’” (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1971], quoting Michigan v. DeFillippo (1979) 443 U.S. 31, 35 [61 L. Ed. 2d 343, 99 S. Ct. 2627].) And “[b]ecause proper processing of arrestees is so important and has consequences for every stage of the criminal process, the Court has recognized that the ‘governmental interests underlying a station-house search of the arrestee’s person and possessions may in some circumstances be even greater than those supporting a search immediately following arrest.’” (King, at p. ___ [133 S.Ct. at p. 1974], quoting Illinois v. Lafayette (1983) 462 U.S. 640, 645 [77 L. Ed. 2d 65, 103 S. Ct. 2605].)

But, as Justice Scalia pointed out, the scope of a search incident to arrest is limited to weapons, easily destroyed evidence and evidence relevant to the [1473] crime of arrest. (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1982] (dis. opn. of Scalia, J.), citing Arizona v. Gant, supra, 556 U.S. at pp. 343–344 and Thornton v. United States, supra, 541 U.S. at p. 632 (conc. opn. of Scalia, J.).) A booking search may further extend to an inventory of the suspect’s personal effects. (Illinois v. Lafayette, supra, 462 U.S. at pp. 643–644.) An arrestee’s DNA falls in none of these categories.

As Justice Scalia explained, it has been an established principle that warrantless searches without individualized suspicion may not be upheld where the “‘primary purpose’” of the search was “‘to detect evidence of ordinary criminal wrongdoing.’” (King, supra, 569 U.S. at p. ___ [133 S.Ct. at pp. 1981–1982] (dis. opn. of Scalia, J.), quoting Indianapolis v. Edmond, supra, 531 U.S. at p. 38.) Justice Scalia noted that the DNA search in King served the purpose of “‘identifying’ King” only if “what one means by ‘identifying’ someone is ‘searching for evidence that he has committed crimes unrelated to the crime of arrest.’ … If identifying someone means finding out what unsolved crimes he has committed, then identification is indistinguishable from the ordinary law-enforcement aims that have never been thought to justify a suspicionless search.” (King, at p. ___ [133 S.Ct. at pp. 1982–1983] (dis. opn. of Scalia, J.).)

By common understanding, “identification” means verifying who a person is. The Oxford English Dictionary defines the term as the “action or process of determining what a thing is” or who a person is. (7 Oxford English Dict. (2d ed. 1989) p. 619, col. 1.) In the context of fingerprinting, courts have drawn a distinction between identification—fingerprints taken “to verify that the person who is fingerprinted is really who he says he is,” and investigation—fingerprints taken “to connect [the person fingerprinted] to a crime with which he was not already connected.” (U.S. v. Garcia-Beltran (9th Cir. 2004) 389 F.3d 864, 867.) Fingerprints that are validly obtained for purposes of identification can later be used as evidence or in an investigation. (Loder v. Municipal Court (1976) 17 Cal.3d 859, 865 [132 Cal. Rptr. 464, 553 P.2d 624].) Fingerprints obtained as a result of an illegal arrest are not subject to suppression if they were taken “solely to establish [the arrestee's] true identity.” (Garcia-Beltran, at p. 866.) But suppression is required if fingerprints were taken as a result of an illegal arrest for an “‘investigatory’ purpose, i.e.[,] to connect [the arrestee] to alleged criminal activity … .” (Id. at p. 865; see Hayes v. Florida (1985) 470 U.S. 811 [84 L. Ed. 2d 705, 105 S. Ct. 1643]; Davis v. Mississippi (1969) 394 U.S. 721 [22 L. Ed. 2d 676, 89 S. Ct. 1394].)

Identification in the sense of identity verification was from the outset the purpose of fingerprinting arrestees. The police began using fingerprinting as part of the booking process in the early 1900′s, as a reliable way to identify [1474] arrestees at a time when identifying documents were easily forged (Faulty Foundations, supra,19 Wm. & Mary Bill Rts. J. at pp. 484–485) and “notoriety of the individual in the community [was] no longer a ready means of identification.” (U.S. v. Kelly, supra, 55 F.2d at p. 69.)

The DNA collection and testing mandated by the DNA Act, however, does not serve this purpose, because DNA collected from an individual upon arrest cannot be used immediately to establish who that individual is. Before law enforcement can obtain information about an arrestee from DNA testing pursuant to the DNA Act, the DNA sample must be analyzed and a DNA profile created and run through a database. (Fact Sheet, supra, <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet> [as of Dec. 3, 2014].) The majority opinion in King noted the assertion in the amicus curiae brief of the State of California that “‘DNA identification database samples have been processed in as few as two days in California, although around 30 days has been average’ … .” (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1973].)12Link to the text of the note By contrast, fingerprints submitted electronically to the national fingerprint and criminal history system administered by the FBI yield a response in about 27 minutes. (Integrated Automated Fingerprint Identification System (IAFIS), Federal Bureau of Investigation <http://www.fbi.gov/about-us/cjis/fingerprints_biometrics/iafis/iafis> [as of Dec. 3, 2014].)13Link to the text of the note Additionally, DNA profiles in the databank are not identified by name or case information; after a hit is made, the law enforcement agency must contact the laboratory that submitted the DNA sample to obtain [1475] identifying information. (Fact Sheet, supra, <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet> [as of Dec. 3, 2014].)

California’s protocol for DNA collection and analysis confirms that DNA is not used to verify who a person is. Far from relieving law enforcement agencies of the need to take fingerprints, the act requires collection of a right thumb print and a full palm print of each hand, as well as a DNA sample. (§ 296, subd. (a)(2)(C).) Before collecting a DNA sample by means of the standard collection kit provided by the DOJ to local and state law enforcement agencies, the agency is required to “identify the subject” (FAQ, supra, Collection Mechanics, Ques. 1.1 <http://oag.ca.gov/bfs/prop69/faqs> [as of Dec. 3, 2014]), demonstrating that the immediate means of “identification” is not the subject’s DNA.

Moreover, DNA samples are not taken from arrestees who have already had samples taken (FAQ, supra, Qualifying Offender Verification Criminal History Flags/Samples Taken; Rap Sheet “Flags” and Offender Verification <http://oag.ca.gov/bfs/prop69/faqs> [as of Dec. 3, 2014]), which shows that an arrestee’s identity must be verified in some other fashion before a DNA sample can be collected. It also demonstrates that, as a practical matter, law enforcement agencies do not need or use the DNA taken at arrest for identification purposes.

That DNA testing is not needed to verify an arrestee’s identity is unsurprising. Fingerprints can be and are used for this purpose; the only time DNA would be better suited or more accurate would be the very rare situation in which an arrestee has gone to the trouble of physically altering his or her fingerprints. In the words of the Vermont Supreme Court, “The current system of photographs and fingerprints fully responds to the need for identification of the defendant. In the many cases now consolidated in this appeal, the State has identified none in which there is a need for more accurate identification.” (Medina, supra, 2014 Vt. Lexis 71 at p. *32.)

Not only are DNA profiles neither necessary nor helpful for verifying who a person is at the time of arrest, the fact that DNA testing cannot be used to immediately verify a person’s true identity confirms that collection of a DNA sample at arrest has another purpose.14Link to the text of the note Despite the language in the DNA Act [1476] limiting the use of DNA to “identification purposes” (§ 295.1, subd. (a)), it is apparent that Proposition 69—which was entitled the “DNA Fingerprint, Unsolved Crime and Innocence Protection Act” (italics added)—was designed to permit an arrestee’s DNA to be used for investigative purposes. The ballot arguments in favor of the measure relied heavily on crime-solving promises and concerns, emphasizing the utility of DNA in investigating and solving crime.15Link to the text of the note Proponents asserted that “ ‘[t]he chances of solving a rape or murder increase by 85% with an all-felon DNA database” (Voter Information Guide, supra, rebuttal to argument against Prop. 69, p. 63) and that taking a DNA sample at booking “is more efficient and helps police conduct accurate investigations. No wasting time chasing false leads … .” (Voter Information Guide, supra, argument in favor of Prop. 69, p. 62.) According to proponents, “[Proposition] 69 can prevent thousands of crimes by taking dangerous criminals off the streets,” and California’s existing DNA database was “too small, unable to deal with [the] thousands of unsolved rapes, murders, and child abductions.” (Ibid.)16Link to the text of the note

Although Proposition 69 twice declared the state’s compelling interest in “accurate identification of criminal offenders,” the findings section of the proposed law makes clear that its critical purpose was crime solving. (Voter Information Guide, supra, text of Prop. 69, p. 135.) The findings identified a “critical and urgent need” to furnish law enforcement “with the latest [1477] scientific technology available for accurately and expeditiously identifying, apprehending, arresting, and convicting criminal offenders and exonerating persons wrongfully suspected or accused of crime.” (Ibid.) It was declared that 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 … .” (Ibid.) The findings stated that expansion of the DNA Database and Data Bank Program was “[t]he most reasonable and certain means” to solve crime effectively and to increase rapidly the number of “cold hits.” (Ibid.)

Further, the text of the DNA Act does not restrict the investigatory uses to which DNA specimens, samples, and profiles may be put by law enforcement agencies. Despite the provision in the DNA Act that the DOJ “shall perform DNA analysis … only for identification purposes” (§ 295.1, subd. (a)), other provisions authorize release of DNA samples and profiles collected under the Act “to law enforcement agencies,” including “district attorneys’ offices, and prosecuting city attorneys’ offices” (§ 299.5, subd. (f)), and, “when, in the discretion of law enforcement, disclosure is necessary because the DNA information pertains to the basis for law enforcement’s identification, arrest, investigation, prosecution, or exclusion of a particular person related to the case,” DNA information may be released “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 may “become part of the public transcript or record of proceedings.” (§ 299.5, subd. (k), italics added.) The DNA Act thus expressly authorizes the use of government stored DNA, including samples containing the entire human genome, not just to “identify” a person in the sense of verifying who he or she is, or to ascertain an accused person’s innocence, but also to assist with the “arrest, investigation, prosecution, or exclusion” of a person. (§ 299.5, subd. (k).) And because the DNA Act authorizes retention of DNA samples as well as the profiles derived from them, those retained samples, can be used to criminally investigate persons whose DNA was obtained upon arrest many years earlier, even if they were never criminally charged or were acquitted.

Apparently, the only limitation imposed by the Act’s references to “identification” is a prohibition against analysis and use of DNA for non-law-enforcement purposes relating to matters such as an individual’s health, propensity for certain diseases or conduct, gender, or race. (See Kincade, supra, 379 F.3d at pp. 837–838; id. at p. 842, fn. 3 (conc. opn. of Gould, J.).) In other words, DNA is to be collected and analyzed for “identification” purposes in the sense that the only information that is supposed to be drawn from DNA samples is that which identifies the donor. But this identifying [1478] information is not used to “identify” the donor in relation to the arrest; it is used to investigate the donor’s connection to crime unrelated to the crime of arrest.

Indeed, California is already using DNA information collected from convicted offenders for investigatory purposes completely unrelated to any definition of “identification” of the person from whom the DNA was taken. California was the first state to permit deliberate familial DNA searches, intentionally using DNA profiles to investigate the donor’s close relatives as possible perpetrators.17Link to the text of the note Law enforcement agencies are able to identify likely family relationships through “partial matches” of DNA profiles because of the distinctively high number of alleles shared by family members. Since every person inherits one allele at each of the 13 CODIS loci from each of his or her biological parents, everyone shares at least 13 alleles with each parent, and more if both parents happen to possess the same allele at one or more loci. (See Greeley et al., Family Ties: The Use of DNA Offender Databases to Catch Offenders’ Kin, supra, 34 J.L. Med. & Ethics at pp. 249–252.) It has been estimated that on average, a Caucasian parent and child (a population for which good published data exists) share 15.7 alleles of the 26 profiled in CODIS, and full siblings share an average of 16.7 alleles. (Id. at pp. 252–253.) In contrast, unrelated persons share an average of 8.7 alleles. (Id. at p. 252.)18Link to the text of the note While a number of states and the federal government permit use of partial matches discovered fortuitously in the course of routine database searches, California is one of the few that allow deliberate searches for this purpose. (Fortuity, supra, 63 Stan. L.Rev. at pp. 753, 764, 767–769.)

California law enforcement agencies have engaged in such deliberate familial searching for many years, though so far only with DNA profiles of convicted offenders (FAQ, supra, <https://oag.ca.gov/bfs/prop69/faqs> [as of [1479] Dec. 3, 2014]), and the California DOJ has made it clear that this use of noncoding or “junk” DNA relates solely to criminal investigations. In 2008, the DOJ sent all California law enforcement agencies and district attorneys’ offices an “Information Bulletin” stating that it had developed a “DNA Partial Match Reporting and Modified CODIS (Combined DNA Index System) Search Policy that may result in investigative information provided to law enforcement officials in unsolved cases where all other investigative leads have been exhausted.” (Cal. DOJ, Div. of Law Enforcement, Information Bulletin 2008-BFS-01, DNA Partial Match (Crime Scene DNA Profile to Offender) Policy (Bulletin), p. 1, italics added <http://ag.ca.gov/cms_attachments/press/pdfs/n1548_08-bfs-01.pdf> [as of Dec. 3, 2014.) The Bulletin states that “[t]he name of an offender who is not the source of the biological material from an unsolved case may be released in an investigation …” when a partial match is discovered either fortuitously or as the result of a deliberate search, and sets forth a protocol to be followed and conditions which must be met in order to release the name “to the investigating agency” in either situation. (Id. at p. 1, italics added.)19Link to the text of the note The DOJ has also developed a software program to assist investigators in more effectively identifying familial relationships. (Fortuity, supra, 63 Stan. L.Rev. at pp. 753–754 [citing Spriggs, Familial Search Procedure (2008), in CAL-DNA Data Bank Technical Procedures Manual, 27, 29, and Steinberger & Sims Finding Criminals Through the DNA of Their Relatives—Familial Searching of the California Offender DNA Database (2008), 31 Prosecutor's Brief 28, 31].)20Link to the text of the note

[1480]
In sum, the California DNA Act cannot reasonably be characterized as aimed at identification of the donor of a DNA sample. DNA taken at the time of arrest is not intended to be used, and cannot usefully be employed, to verify the arrestee’s identity; it is intended to be used and is in fact employed to investigate the arrestees’ possible involvement in criminal conduct unrelated to the crime of arrest and to add to the DNA database for purposes of future crime solving. Once again, Justice Scalia’s words are apt: “The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous.” (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1980] (dis. opn. of Scalia, J.), italics omitted.) Analysis of DNA collected from arrestees does not serve the asserted governmental purpose—identification—and the apparent actual purpose for taking DNA samples at this early stage—investigation—cannot be squared with established constitutional principles protecting against suspicionless searches.

C.

Arrestee Searches Under Article I, Section 13, of the California Constitution
As we have said, the scope of permissible searches of arrestees is one of the specific areas in which article I, section 13, has been held to provide greater protection than the Fourth Amendment. (Brisendine, supra, 13 Cal.3d 528; Ruggles, supra, 39 Cal.3d 1.) In Brisendine, which was concerned with a search incident to an arrest for a minor offense that would not involve the defendant being taken into custody (Brisendine, at p. 533), the circumstances of the case justified a search of the defendant’s person and knapsack for weapons; at issue was a further search of closed containers within the [1481] knapsack (an opaque bottle and envelopes). (Id. at pp. 540–545.) Two then recent United States Supreme Court cases, United States v. Robinson (1973) 414 U.S. 218 [38 L. Ed. 2d 427, 94 S. Ct. 467] (Robinson)—which was relied upon heavily in King, supra, 569 U.S. at p. ___ [133 S.Ct. at pages 1971, 1974, 1978]—and Gustafson v. Florida (1973) 414 U.S. 260 [38 L. Ed. 2d 456, 94 S. Ct. 488], had upheld such searches, holding that “‘in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment.’” (Brisendine, at p. 547, quoting Robinson, at p. 235.) Prior California precedent was to the contrary, holding that where a defendant was arrested for an offense that did not have “‘instrumentalities’” or “‘fruits,’” and was to be released either upon citation or on bail rather than booked into jail, only a limited search for weapons was permissible. (Brisendine, at pp. 536–537; People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 201 [101 Cal. Rptr. 837, 496 P.2d 1205].)

(3) Adhering to its own precedent, the Brisendine court explained, “In choosing between these irreconcilable rules we cannot accept the Robinson implication that ‘an individual lawfully subjected to a custodial arrest retains no significant Fourth Amendment interest in the privacy of his person.’ ([People v. Robinson, supra,] 414 U.S. at p. 237 … ; Powell, J. concurring.) Whatever may be the merit of that view when an individual is ultimately to be booked and incarcerated—a question not presented here—we find it inappropriate in the context of an arrestee who will never be subjected to that process.” (Brisendine, supra, 13 Cal.3d at p. 547.) Accordingly, Brisendine reaffirmed and followed “the decisions, exemplified by Simon, which impose a higher standard of reasonableness under article I, section 13, of the California Constitution.” (Id. at p. 552.) This position was reiterated in People v. Norman, supra, 14 Cal.3d at pages 938–939, and People v. Longwill, supra, 14 Cal.3d at page 951. In People v. Laiwa (1983) 34 Cal.3d 711, 727 [195 Cal. Rptr. 503, 669 P.2d 1278] (Laiwa), the court reaffirmed that the scope of an arrestee search must be tailored to the particular justifications of the situation. Laiwa held that a search of the defendant’s tote bag could not be justified as an “ ‘accelerated booking search’ ” (on the theory that the search would inevitably occur at booking) because the search at the time of arrest could involve a greater intrusion into the arrestee’s privacy than a jailhouse search (for example, a search in a public place), and the justifications for a booking search—inventory of the arrestee’s property and jail safety—were not served by a search at the time of arrest. (Id. at pp. 725–726.)

These cases particularly emphasized the need to protect against warrantless exploratory searches for evidence unrelated to the crime of arrest. In Brisendine, the court observed that an ostensible search for weapons that was “merely a facade designed to provide justification for an exploratory search [1482] for narcotics … would have been illegal.” (Brisendine, supra, 13 Cal.3d at pp. 534–535.) Laiwa discussed the fact that if an “ ‘accelerated booking search’ ” exception to the warrant requirement were recognized, “police officers would have a license to conduct an immediate ‘thorough search of the booking type’ of the person and effects of any individual they arrest without a warrant for a minor but bookable offense, in the hope of discovering evidence of a more serious crime; if such evidence were found, the suspect would then be booked instead on the latter charge and the intrusion would be rationalized after the fact as an ‘accelerated booking search.’” (Laiwa, supra, 34 Cal.3d at p. 727–728.)21Link to the text of the note

Respondent argues that Brisendine does not support any limitation on searches conducted when an arrestee is booked for a felony arrest, viewing the case as invoking the California Constitution only to enforce a statutory scheme that restricted the procedures police could employ after minor offenses for which an individual could avoid the booking process. It is true that Brisendine did not involve a felony arrest, but the point of the court’s discussion of these restrictions was that whether and to what extent a search is justified depends upon the circumstances of the encounter. Classification based on whether the individual would be cited, transported to a magistrate, or booked into jail was “essential to analysis, since both the justification and the scope of a weapons search incident to an arrest are dependent on the relative danger to the officer presented by each type.” (Brisendine, supra, 13 Cal.3d at p. 536.)

(4) Brisendine did not address the scope of booking searches—as the opinion expressly stated. (Brisendine, supra, 13 Cal.3d at p. 547.) The only point we draw from Brisendine is that the substantive scope of article I, section 13 of the California Constitution, is not limited by the United States Supreme Court’s interpretation of the Fourth Amendment, and may in compelling circumstances afford greater protection of an arrestee’s privacy interests. There is no reason to restrict this principle to cases involving minor offenses, as respondent does in arguing that the scope of a felony arrest and booking search in California is governed by Robinson. Indeed, the California Supreme Court has recognized the “ ‘more exacting standard’ ” of article I, section 13 of the California Constitution, in a case involving a felony arrest. (Ruggles, supra, 39 Cal.3d at p. 11.) In holding that probable cause to search the defendant’s vehicle, including the trunk, did not justify the warrantless search of a briefcase and tote bags in the trunk, the Ruggles court relied in [1483] significant measure on the fact that “[e]ach day millions of Californians drive in automobiles, often taking with them, inside briefcases or other similar luggage, items of a highly personal or confidential nature. Permitting such containers to be searched on the basis of probable cause alone deprives the owner of the added protections of a warrant.” (Id. at p. 12.) The human genome—an expansive (and expanding) trove of the most personal and confidential information a person can possess—is in need of at least as much protection against governmental intrusion as those containers.

(5) Respondent’s assertion that the scope of a booking search in California is governed by Robinson, supra, 414 U.S. 218, also appears to be based on the assumption that Proposition 8, which was adopted in 1982, requires us to follow federal precedent. It is critical, however, to distinguish the substantive scope of constitutional protection against warrantless searches and seizures from the remedy for violations of that protection. Since the adoption of Proposition 8, evidence cannot be excluded as violative of state protections against unreasonable search and seizure unless it would also be inadmissible under the Fourth Amendment. (In re Lance W. (1985) 37 Cal.3d 873, 888 [210 Cal. Rptr. 631, 694 P.2d 744] (Lance W.).)22Link to the text of the note But Proposition 8 did not alter the “substantive scope” of California’s constitutional provision. (Lance W., at p. 886.) “What would have been an unlawful search or seizure in this state before the passage of [Proposition 8] would be unlawful today, and this is so even if it would pass muster under the federal Constitution.” (Lance W., at p. 886.)

Respondent’s reliance upon People v. Diaz (2011) 51 Cal.4th 84, 90–95 [119 Cal. Rptr. 3d 105, 244 P.3d 501] is misplaced. Diaz, affirming the denial of a suppression motion, upheld a search of text messages on a cell phone found on defendant’s person at the time of arrest on the basis of Robinson and other United States Supreme Court precedent concerning the extent of a permissible search incident to arrest. (Diaz, at pp. 90–95.) Because it presented a question concerning suppression of evidence, the case was required to be decided solely under the Fourth Amendment, in accordance with “the United States Supreme Court’s binding precedent.” (Diaz, at pp. 88, 101.) The Diaz court, therefore, had no basis for inquiring whether the substantive scope of a permissible search should be viewed differently under the California Constitution—as the court did when it rejected Robinson in Brisendine. And even as to the suppression issue, Diaz has now been effectively overruled by the United States Supreme Court’s conclusion that the search incident to arrest exception to the warrant requirement does not [1484] apply to digital data on a cell phone in an arrestee’s possession. (Riley v. California, supra, 573 U.S. ___ [134 S.Ct. at pp. 2493–2494].) The Riley court rested its decision on the absence of any connection between search of the digital data and officer safety or destruction of evidence, the concerns underlying the exception, and the far greater privacy interests implicated in this sort of search than in prior search incident to arrest cases. (Id. at pp. ___–___ [134 S.Ct. at pp. 2485–2491].)

(6) People v. Miranda (1987) 44 Cal.3d 57 [241 Cal. Rptr. 594, 744 P.2d 1127], the other case cited by respondent concerning booking searches, held that a letter in an envelope in the defendant’s pocket “during an inventory booking search” at the police station was admissible at trial. (Id. at pp. 81–82.) Citing Laiwa, supra, 34 Cal.3d at page 726, and Illinois v. Lafayette, supra, 462 U.S. at page 646, Miranda explained that “the purposes of and justifications for [a search of the personal effects of an arrested person at the time of booking] are essentially two—to safeguard and account for the arrestee’s belongings and to promote jail security.” (Miranda, at p. 81.) A search can be justified on this basis only if these purposes are met; neither a search before actual booking nor one conducted after the booking process has ended meet the test. (Laiwa, at p. 727; People v. Smith, supra, 103 Cal.App.3d at p. 845.) Respondent does not explain how the taking of a DNA sample at booking, before a judicial determination of probable cause, would be justified as an inventory search or promote jail security.

Contrary to respondent’s assertion, the California Supreme Court has never held that in the area of search and seizure, the rights guaranteed by the state and federal Constitutions are necessarily “coextensive.” As respondent points out, the court has held that “[t]he touchstone for all issues under the Fourth Amendment and article I, section 13 of the California Constitution is reasonableness” (Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1329 [241 Cal. Rptr. 42, 743 P.2d 1299]) and that the federal and state Constitutions “extend similar protection against ‘unreasonable searches and seizures.’” (Lance W., supra, 37 Cal.3d at p. 881.) But the fact that both provisions are analyzed through the prism of similar factors does not mandate the same outcome in all cases—as Brisendine and the other cases discussed above make clear. And, as we have said, Lance W. itself noted that the substantive scope of article I, section 13 of the California Constitution was not affected by Proposition 8′s requirement that California courts admit evidence that would not be excluded under the Fourth Amendment. (Lance W., at p. 886.)

People v. Crowson (1983) 33 Cal.3d 623, 629 [190 Cal. Rptr. 165, 660 P.2d 389] (Crowson), overruled on other grounds in People v. Myers (1993) 5 Cal.4th 1193, 1195 [22 Cal. Rptr. 2d 911, 858 P.2d 301], is not to the contrary. In that case, the police had secretly recorded a conversation between the [1485] defendant and an accomplice while the two were alone in the backseat of a police car. The defendant challenged admission of the recording on the ground that the secret recording violated his right to privacy under article I, section 1, of the California Constitution. (Crowson, at pp. 625, 628–629.) Rejecting this claim, Crowson stated, “In the search and seizure context, the article I, section 1 ‘privacy’ clause has never been held to establish a broader protection than that provided by the Fourth Amendment of the United States Constitution or article I, section 13 of the California Constitution. ‘[T]he search and seizure and privacy protections [are] coextensive when applied to police surveillance in the criminal context.’ (People v. Owens (1980) 112 Cal.App.3d 441, 448–449 [169 Cal. Rptr. 359].)” (Crowson, at p. 629.) Under all three provisions, Crowson stated, the question was whether the defendant had a reasonable expectation of privacy in the conversation with his accomplice in the backseat of the police car. (Id. at p. 629.)

Crowson engaged in no analysis of the substance of the state and federal search and seizure provisions as compared to each other; it simply compared those two provisions, on the one hand, with the state privacy provision, on the other. Its observation that the privacy provision does not afford greater protection in the search and seizure context than would the search and seizure provisions themselves says nothing about the respective reach of either search or seizure provision in a given situation. The same is true of the two cases respondent offers as having cited Crowson with approval, Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992 [89 Cal. Rptr. 3d 594, 201 P.3d 472] and Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 [26 Cal. Rptr. 2d 834, 865 P.2d 633] (Hill). Both Sheehan and Hill were civil cases in which the plaintiffs claimed violations of their constitutional right to privacy. Both noted the comparison of the two search and seizure provisions with the privacy provision; neither compared the federal and state search and seizure provisions with each other.

Indeed, it would be surprising to find California cases decided after Proposition 8 discussing differences in the substantive scope of the state and federal search and seizure provisions, as it is highly unusual for search and seizure issues to arise in any context other than a suppression motion, which Proposition 8 requires to be decided according to federal law. The unavailability of the exclusionary rule as a remedy for violations of the state Constitution that are not violations of the Fourth Amendment means that state courts considering suppression of evidence must engage in a Fourth Amendment analysis. (People v. Maikhio (2011) 51 Cal.4th 1074, 1089 [126 Cal. Rptr. 3d 74, 253 P.3d 247].) But the argument respondent draws from this fact—that although the substantive scope of article I, section 13 of the California Constitution, was unaffected by Proposition 8, arrestees’ rights are nevertheless “limited in a practical sense” by the absence of the exclusionary rule as a remedy—is too facile. The present case has nothing to do with the [1486] exclusionary rule: The question here is not whether an illegal search and seizure requires suppression of evidence at trial but whether the state can criminalize the refusal to comply with a search that would violate the state’s proscription against unreasonable searches. We are free to determine this issue on the basis of California precedent.

D.

Intrusiveness of the California DNA Act
California’s DNA Act intrudes too quickly and too deeply into the privacy interests of arrestees.

As we will explain, the fact that DNA is collected and analyzed immediately after arrest means that some of the arrestees subjected to collection will never be charged, much less convicted, of any crime—and, therefore, that the governmental interest in DNA collection is inapplicable while the privacy interest is effectively that of an ordinary citizen. The absence of automatic expungement procedures increases the privacy intrusion because DNA profiles and samples are likely to remain available to the government for some period of time after the justification for their collection has disappeared, potentially indefinitely. And the fact that familial DNA searches are not prohibited means that the act would permit intrusion into the privacy interests of arrestees’ biological relatives if the DOJ were to alter its current policy of not using arrestees’ DNA for such searches.

Because the constitutionality of collecting DNA from convicted offenders has been accepted, the governmental interest at stake in King was not in obtaining DNA at all but in obtaining DNA sooner than if it had to wait for conviction. The Vermont Supreme Court questioned the significance of this interest: As to the difference between obtaining DNA after arraignment and waiting for conviction, the court stated, “the State has not shown why quicker access to the DNA is a weighty interest, and we cannot find it to be so.” (Medina, supra, 2014 Vt. Lexis 71 at p. *49.)23Link to the text of the note

Justice Scalia pointed out in his King dissent that the majority’s decision had an “ironic result”: “The only arrestees to whom the outcome here will [1487] ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, [the Maryland law] manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations.” (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1989] (dis. opn. of Scalia, J.).)

In California, the burdened group includes not only those ultimately acquitted of criminal conduct but also those never even charged. The percentage of arrestees potentially affected in the latter way is not small: Statistics published by the DOJ indicate that in 2012 (the most recent year for which these numbers are available), 62 percent of felony arrestees who were not ultimately convicted—almost 20 percent of total felony arrestees—were never even charged with a crime.24Link to the text of the note (Crime in California 2012, supra, at p. 49 <http://oag.ca.gov/sites/all/files/agweb/pdfs/cjsc/publications/candd/cd12/cd12.pdf?> [as of Dec. 3, 2014].) The governmental interests found in King to justify DNA testing do not apply to this group of arrestees, who will neither be held for a prolonged period in pretrial custody nor released under court supervision. Absent exceptional circumstances, an arrestee who is in custody must be brought before a magistrate for a determination of probable cause to arrest within 48 hours. (County of Riverside v. McLaughlin (1991) 500 U.S. 44, 56–57 [114 L. Ed. 2d 49, 111 S. Ct. 1661]; § 825, subd. (a)(1).)25Link to the text of the note This defines the outer limit of the time an arrestee who is not ultimately charged may be held in custody. As we have seen, the processing of a DNA sample to develop a profile currently takes considerably longer than this. (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1973]; see pp. 1474–1475 & fn. 12, ante [Attorney General’s monthly statistics for DNA lab on processing time].) As a practical matter, DNA collected from individuals who are arrested but not charged cannot be used either to verify the identity of the arrestee or to serve the interests discussed in King. The only possible use law enforcement agencies can make of these arrestees’ DNA is in investigation of other crimes.

In the present case, respondent’s only articulation of its interest in immediate DNA testing—as opposed to testing after a judicial determination of [1488] probable cause—is that the sooner the testing is accomplished, the lower the risk of a dangerous individual remaining unidentified. The weight of this time-limited interest is extremely low. At the same time, the privacy interest of the arrestee is considerably higher. Arrestees, while suspected of having committed a crime, still enjoy the presumption of innocence and therefore occupy a different place in constitutional analysis than convicted offenders, who by virtue of their convictions suffer a loss of certain constitutional rights. (See Friedman v. Boucher (9th 2009) 580 F.3d 847, 856–858; Medina, supra, 2014 Vt. Lexis 71 at p. *51.) An arrestee whose arrest has not even been subjected to a judicial determination of probable cause falls closest on the spectrum of privacy rights to an ordinary citizen.26Link to the text of the note

Moreover, permitting DNA to be collected immediately after arrest effectively leaves the determination of who will be subjected to DNA testing entirely in the hands of arresting officers. In many situations, the conduct for which an individual is arrested might be viewed as fitting the definition of a number of different crimes; whether the offending behavior is charged as a misdemeanor or a felony is initially left to the judgment of the arresting officers, leaving room for variation between both jurisdictions and between individual officers. (See DNA Testing, supra, 127 Harv. L.Rev. at pp. 188–189.) As the Supreme Court has explained with respect to the federal Constitution, “‘The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.’” (Gerstein v. Pugh (1975) 420 U.S. 103, 112–113 [43 L. Ed. 2d 54, 95 S. Ct. 854], quoting Johnson v. United States (1948) 333 U.S. 10, 13–14 [92 L. Ed. 436, 68 S. Ct. 367].) [1489] Under the DNA Act, however, processing can begin when the legal basis for arrest is only the arresting officer’s determination of probable cause, and the sample and resulting profile will be retained unless and until the arrestee succeeds in the onerous and perhaps quixotic process of having them expunged—even if the arrest is subsequently determined by a judicial officer to have been without sufficient cause. This means there is no check on the discretion of the officers who make the arrests that create the opportunity for DNA sampling until after the sample may have been used for investigative purposes.

Further, aside from the undue discretion afforded to law enforcement officers to determine whether an arrestee will be subject to DNA testing, this aspect of the DNA Act opens an opportunity for actual abuse. Without questioning the integrity of most law enforcement officers, it is not difficult to think that the DNA Act might provide an incentive to pretextually arrest a person from whom the police desire a DNA sample, as the act would permit officers to collect the DNA and then release the uncharged arrestee, thereby obviating the need for any judicial inquiry into probable cause. (See Laiwa, supra, 34 Cal.3d at pp. 727–729 [accelerated booking search would give police license to conduct booking search on arrest for minor offense in hope of discovering evidence of more serious crime]; Brisendine, supra, 13 Cal.3d at p. 534 [ostensible weapons search as facade to justify exploratory search for narcotics would be illegal].)27Link to the text of the note

The fact that the DNA Act does not provide for automatic expungement increases the weight of the arrestee’s privacy interest. California places the burden on the arrestee to pursue an onerous judicial process which seemingly vests the prosecutor with power to prevent expungement merely by objecting to the request (§ 299, subd. (c)(2)(D)), gives the trial court discretion to deny expungement without specifying any parameters for the exercise of that discretion, and renders the trial order unreviewable by appeal or writ. The [1490] element of discretion—and, therefore, uncertainty—in these procedures raises a question whether they satisfy the requirement of federal law for states with access to CODIS to “promptly” expunge DNA information upon receipt of specified documentation that an arrestee’s charge did not result in conviction.28Link to the text of the note In any event, according to a study funded by the National Institute of Justice (NIJ), in states where the responsibility for initiating the expungement process is placed upon the arrestee, “[i]nterviews with crime lab officials show that very few people initiate the process, so their profiles remain in the databases.” (DNA Sample Collection from Arrestees, NIJ (Dec. 12, 2012) <http://www.nij.gov/topics/forensics/evidence/dna/pages/collection-from-arrestees.aspx> [as of Dec. 3, 2014].)29Link to the text of the note Thus, in California, the government may retain indefinitely the DNA of individuals who have not been convicted of or even charged with a qualifying offense.30Link to the text of the note

In addition, due to California’s policy of familial searching, the California DNA Act intrudes upon the privacy of individuals who have not themselves come into any contact with law enforcement. This intrusion is worthy of [1491] discussion despite California’s present policy of using only convicted offenders’ DNA for familial searches (FAQ, supra, California’s Familial Search Policy <http://oag.ca.gov/bfs/prop69/faqs> [as of Dec. 3, 2014]; Bulletin, supra <http://ag.ca.gov/cms_attachments/press/pdfs/n1548_08-bfs-01.pdf> [as of Dec. 3, 2014]) because the limitation to convicted offenders’ DNA is solely a matter of policy: Nothing in the DNA Act imposes this restriction. If collection of DNA from arrestees is upheld, it is difficult to imagine familial searches will continue to be limited to convicted offenders. The history of DNA testing in the criminal justice system has been one of steady expansion—from initial testing only of offenders convicted of specified serious crimes of violence, to testing of all felons, and now to testing of arrestees. In evaluating the degree to which the procedure intrudes upon Californians’ privacy rights, we cannot close our eyes to the obvious implications of upholding each further encroachment.

Aside from their targeting of individuals who have done nothing to bring themselves into contact with the criminal justice system,31Link to the text of the note familial DNA searches have a discriminatory effect: These searches condition criminal suspicion on nothing more than the fact of being a close relative of a person whose profile is in the DNA database, and racial and ethnic minorities comprise a much greater portion of that database than their proportion in the population at large. (Kaye & Smith, DNA Identification Databases: Legality, Legitimacy, and the Case for Population-Wide Coverage (2003) 2003 Wis. L.Rev. 413, 440–441 (DNA Databases); Relative Doubt, supra, 109 Mich. L.Rev. at p. 322; Duster, DNA Dragnets and Race: Larger Social Context, History, and Future (Nov.–Dec. 2008) 21 GeneWatch 3, 3–4.)32Link to the text of the note

[1492]
The combined effect of the foregoing features of the DNA Act, with respect to arrestees, is certain to infringe the privacy of thousands of persons who were never convicted or even charged with the offense for which they were arrested. And the DNA Act would permit the infringement of arrestees’ relatives’ privacy as well, if the DOJ saw fit to alter its current policy on familial DNA searches.33Link to the text of the note

E.

Reasonable Expectation of Privacy
Article I, section 1, of the California Constitution provides, “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” The words “and privacy” were added to this provision by an initiative adopted in 1972 (the Privacy Initiative). (Hill, supra, 7 Cal.4th at p. 15.) The United States Constitution contains no comparable express protection of privacy rights.

(7) Article I, section 1, of the California Constitution adds an additional factor that must be considered in balancing the governmental interest and private expectation of privacy regarding DNA testing. This case, as we have said, does not involve a claim of invasion of privacy in violation of article I, section 1, and, in any event, such a privacy claim in the search and seizure context would not offer more protection than a claim under article I, section 13. (Crowson, supra, 33 Cal.3d at p. 629.) But the “reasonable expectation of privacy” protected by the Fourth Amendment, article I, section 13, or article I, section 1, is measured by an objective standard: the expectation of privacy society would recognize as reasonable. In the context of a search and seizure claim, “‘a defendant must demonstrate that he [or she] personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has “a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to [1493] understandings that are recognized and permitted by society.”’” (People v. Ayala (2000) 23 Cal.4th 225, 255 [96 Cal. Rptr. 2d 682, 1 P.3d 3], quoting Minnesota v. Carter (1998) 525 U.S. 83, 88 [142 L. Ed. 2d 373, 119 S. Ct. 469].) For purposes of the privacy clause, “[a] ‘reasonable’ expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms. (See, e.g., Rest.2d Torts, supra, § 652D, com. c ['The protection afforded to the plaintiff's interest in his privacy must be relative to the customs of the time and place, to the occupation of the plaintiff and to the habits of his neighbors and fellow citizens.']” (Hill, supra, 7 Cal.4th at p. 37.)

It follows from these principles that the express protection for the right to privacy enshrined in the California Constitution cannot be ignored in considering what California society would consider a legitimate expectation of privacy. The values reflected in the state constitutional right to privacy necessarily inform and illuminate the scope of this aspect of a claim under article I, section 13—the reasonable expectation of privacy of a California arrestee.

(8) The Privacy Initiative protects both “interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’)” and “interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (‘autonomy privacy’).” (Hill, supra, 7 Cal.4th at p. 35.) But “[i]nformational privacy is the core value furthered by the Privacy Initiative. (White v. Davis [(1975)] 13 Cal.3d [757,] 774 [120 Cal. Rptr. 94, 533 P.2d 222].)” (Hill, at p. 35.) As the Hill court discussed, “[t]he principal focus of the Privacy Initiative is readily discernible. The Ballot Argument warns of unnecessary information gathering, use, and dissemination by public and private entities—images of ‘government snooping,’ computer stored and generated ‘dossiers’ and ‘“cradle-to-grave” profiles on every American’ dominate the framers’ appeal to the voters. ([Ballot Pamp., Gen. Elec., Proposed Stats. and Amends. to Cal. Const. with arguments to voters (Nov. 7, 1972) p. 26 (hereafter Ballot Argument)].) The evil addressed is government and business conduct in ‘collecting and stockpiling unnecessary information … and misusing information gathered for one purpose in order to serve other purposes or to embarrass … .’ (Id. at p. 27.) ‘The [Privacy Initiative's] primary purpose is to afford individuals some measure of protection against this most modern threat to personal privacy.’ (White[, at p.] 774.)” (Hill, supra, 7 Cal.4th at p. 21.)

“A particular class of information is private when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity. Such norms [1494] create a threshold reasonable expectation of privacy in the data at issue. As the ballot argument observes, the California constitutional right of privacy ‘prevents government and business interests from [1] collecting and stockpiling unnecessary information about us and from [2] misusing information gathered for one purpose in order to serve other purposes or to embarrass us.’ (Ballot Argument, supra, at p. 27.)” (Hill, supra, 7 Cal.4th at pp. 35–36.)

As we have seen, DNA samples contain an enormous amount of personal information—the entire human genome. DNA testing is neither necessary nor practical for the only noninvestigative purpose advanced to justify it—verifying the identity of arrestees. Moreover, DNA ostensibly gathered for the purpose of identification is misused to serve another purpose, criminal investigation. Considering also that the DNA Act permits the indefinite retention of this material—even that of arrestees who are never charged or never convicted of any offense—the collection and indefinite storage of DNA samples is the epitome of the kind of stockpiling of personal and private information the Privacy Initiative meant to protect from unnecessary governmental intrusion. While King paid little if any attention to the length of time a DNA sample could be retained and the extent of the uses to which it could be put, including risks of unauthorized leaks or research, as well as human error in the processing and analyzing of DNA (DNA Testing, supra, 127 Harv. L.Rev. at pp. 192, 195), such concerns cannot be ignored under article I, section 13 of the California Constitution, as informed by the values reflected in article I, section 1, of our state Constitution—especially when informational privacy, the “core value” the Privacy Initiative was intended to protect, is at stake.

The DNA Act attempts to address privacy concerns in two ways: First, by providing for expungement of DNA profiles from the database and destruction of DNA samples when the basis for including them has been proven unwarranted, and, second, by insisting upon confidentiality of “[a]ll DNA and forensic identification profiles and other identification information retained by the [DOJ] pursuant to this chapter” except as provided under the act (§ 299.5, subd. (a)) and providing for criminal fines and terms of imprisonment for knowing use, or disclosure to an unauthorized individual or agency, of a DNA sample or profile “for other than criminal identification or exclusion purposes” or “identification of missing persons” (§ 299.5, subd. (i)(1)(A)).

These provisions, of course, do little to protect the privacy interests implicated by the investigatory use of DNA information, as described above. It is questionable how much protection they afford against other misuse of the information. As we have already described, the expungement procedures in the DNA Act put the burden of seeking expungement upon the arrestee, the process is onerous, and the DNA Act appears to allow the prosecutor—whose [1495] office has an obvious interest in as many DNA profiles and samples as possible for investigatory use—to block expungement simply by objecting; and the court has unreviewable and therefore unfettered discretion whether to order expungement. The DNA Act does not require the destruction of DNA samples after a specified period of time. To the contrary, section 299, subdivision (e), part of the act, specifically declares that the DOJ “is not required to expunge DNA profile or forensic identification information or destroy or return specimens, samples, or print impressions taken pursuant to this section if the duty to register under Section 290 [(the Sex Offender Rights Act)] or 457.1 [(requiring registration of persons convicted of arson)] is terminated.” The DOJ is simply “authorized” to dispose of unused specimens and samples or unused portions thereof, “in the normal course of business and in a reasonable manner as long as the disposal method is designed to protect the identity and origin of specimens and samples from disclosure to third persons who are not a part of law enforcement.” (§ 299.7.)

As for the enforcement provisions, although the DNA Act criminalizes misuse of DNA information, it is difficult to imagine these provisions being enforced in any but the most exceptional cases. There is no civil remedy for misuse of DNA information (§ 299.5, subd. (i)(2)(B)); the DNA Act requires the government, whose interest is in collecting, analyzing, retaining and using DNA samples, to police itself. Most arrestees will never know if their DNA information has been misused, and even if they do, few are likely to be aware of the existence of criminal penalties and in a position to pursue them. And if an arrestee were able to get this far, the likelihood of a prosecutor pursuing criminal charges in the average case is not great, given the governmental interest in crime solving.

In light of the concerns underlying the Privacy Initiative, the nature and extent of personal information contained in DNA samples, and the likely indefinite retention of such samples for many individuals who are never found to have committed a crime, the privacy interest at stake in this case is extremely weighty.

IV.

Conclusion
The question this case presents, which is increasingly presented to the courts of this state and nation, is the extent to which technology can be permitted to “shrink the realm of guaranteed privacy.” (Kyllo v. United States (2001) 533 U.S. 27, 34 [150 L. Ed. 2d 94, 121 S. Ct. 2038].) The information contained in a DNA profile—and even more so that in a DNA sample—is deeply personal; “[o]ne can think of few subject areas more personal and [1496] more likely to implicate privacy interests than that of one’s health or genetic make-up.” (Norman-Bloodsaw v. Lawrence Berkeley Laboratory (9th Cir. 1998) 135 F.3d 1260, 1269.) The DNA Act permits the specimens seized by the police without a warrant to be retained by the DOJ indefinitely. The profiles derived from these DNA samples are passed on to the FBI for placement in CODIS and, like the samples themselves, may be disclosed to and used by criminal law enforcement officers and agencies to solve crimes other than those for which a person was arrested and to implicate biological relatives of the person from whom a sample is taken as criminal suspects.

(9) On the continuum of privacy rights ranging from ordinary citizens, with full expectation of privacy, to incarcerated prisoners, with a very limited expectation of privacy (see Samson v. California, supra, 547 U.S. at p. 850), the privacy rights of arrestees are greater than those of probationers, parolees or convicted prisoners. Within the category of arrestees, an individual such as appellant, who has not yet been the subject of a judicial determination of probable cause, falls closer to the ordinary citizen end of the continuum than one as to whom probable cause has been found by a judicial officer or grand jury. And a significant percentage of all felony arrestees—one-third to one-half in 2012—are not in fact convicted;34Link to the text of the note whatever the basis of the initial arrest, many of these arrestees are legally innocent of any crime. Yet their DNA profiles remain in the state and federal databanks, and their DNA specimens and samples in the DOJ Laboratory indefinitely, unless and until they are able to successfully negotiate a lengthy and burdensome expungement process that is far from guaranteed to succeed.

[1497]
(10) Against this intrusion into individual privacy rights, the governmental interest in DNA testing at this early juncture in the criminal process is problematic. The asserted interest in identification is undermined by the fact that, unlike fingerprints, DNA cannot be processed quickly and used to immediately verify who an arrestee is. The investigative use of DNA testing at this stage, however, strains constitutional limitations. And DNA testing as early as California permits—before arraignment—appears to be of incremental utility at best. The governmental interest advanced most vigorously by respondent is the effectiveness of DNA testing in solving crimes. But, the effectiveness of a crime-fighting technology does not render it constitutional. (See, e.g., City of Indianapolis v. Edmond, supra, 531 U.S. at p. 42; Ferguson v. Charleston (2001) 532 U.S. 67, 83–84 [149 L. Ed. 2d 205, 121 S. Ct. 1281].) As Chief Justice Traynor put it, “a search, whether incident to an arrest or not, cannot be justified by what it turns up.” (People v. Brown (1955) 45 Cal.2d 640, 643 [290 P.2d 528].) It has been stated, with respect to the federal Constitution, that because “[t]he interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained” (Schmerber, supra, 384 U.S. at pp. 769–770), “the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment” (Mincey v. Arizona (1978) 437 U.S. 385, 393 [57 L. Ed. 2d 290, 98 S. Ct. 2408]; Arizona v. Gant, supra, 556 U.S. at p. 349). This is all the more obvious under the California Constitution, which expressly recognizes a right to privacy, and even more so in the context of a search of such deeply personal and private information as is contained in a DNA sample.35Link to the text of the note

[1498]
(11) For the reasons we have set forth, we conclude that the DNA Act, to the extent it requires felony arrestees to submit a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant or even a judicial or grand jury determination of probable cause, unreasonably intrudes on such arrestees’ expectation of privacy and is invalid under article I, section 13, of the Constitution.

The judgment is reversed.

Richman, J., and Brick, J.,* concurred.

Footnotes
*Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
1 All statutory references are to the Penal Code unless otherwise indicated.
2 “DNA data base and data bank acts have been enacted in all 50 states as well as by the federal government. (See 42 U.S.C. §§ 14131–14134; and see Annot., Validity, Construction, and Operation of State DNA Database Statutes (2000) 76 A.L.R.5th 239, 252.)” (Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 505 [120 Cal. Rptr. 2d 197].)
3 CODIS is a massive computer system which connects federal, state, and local DNA databanks. (FBI CODIS Program and the National DNA Index System Fact Sheet (Fact Sheet) <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet> [as of Dec. 3, 2014].) CODIS is also the name of the related computer software program. (Ibid.) CODIS’s national component is the National DNA Index System (NDIS), the receptacle for all DNA profiles submitted by federal, state, and local forensic laboratories. (Ibid.) DNA profiles typically originate at the Local DNA Index System (LDIS), then migrate to the State DNA Index System (SDIS), containing forensic profiles analyzed by local and state laboratories, and then to NDIS. (CODIS Brochure (Brochure) <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis_brochure> [as of Dec. 3, 2014].) All three database levels work together to match DNA profiles.
DNA databanks are growing rapidly. As of October 2014, NDIS contained over 11,219,527 offender profiles, 2,065,806 arrestee profiles and 590,079 forensic profiles. (CODIS-NDIS Statistics (Statistics) <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/ndis-statistics> [as of Dec. 3, 2014].) The FBI states that “[t]hrough the combination of increased Federal funding and expanded database laws, the number of profiles in NDIS continues to increase dramatically.” (Brochure, supra, <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis_brochure>.) As of October 2014, CODIS had produced over 263,847 “hits” (identifying a potential suspect or linking multiple crime scenes), assisting in more than 252,272 investigations nationwide. (Statistics, supra, <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/ndis-statistics> [as of Dec. 3, 2014]; Fact Sheet, supra, <http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet> [as of Dec. 3, 2014].) As of September 30, 2014, the California DNA Data Bank Program (CAL-DNA) contained 2,327,610 DNA samples received and logged, and 2,327,610 subject profiles uploaded pursuant to section 296. (California Department of Justice Proposition 69 DNA Data Bank Program Report for Third Quarter 2014 <http://oag.ca.gov/sites/all/files/agweb/pdfs/bfs/quarterlyrpt_3q_2014.pdf?> [as of Dec. 3, 2014].) As of that date, the California DOJ reported 36,031 total hits, and 40,813 investigations aided. (Ibid.)
4 Section 299, subdivision (c)(2), provides: “Except as provided below, the Department of Justice shall destroy a specimen and sample and expunge the searchable DNA database profile 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 of fact, 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 court 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 court has not received an objection from the Department of Justice or the prosecuting attorney.”
An individual may initiate expedited expungement proceedings by filing a request form and “sufficient documentation of his/her identity, legal status, and criminal history” with the DOJ DNA Database Program. (<http://ag.ca.gov/bfs/pdf/ expungement_app_instruc.pdf> [as of Dec. 3, 2014].) Depending on the grounds for expungement, the required documentation may be a letter in support of expungement from a district attorney or prosecutor, or a certified or file-stamped copy of a court order, opinion, docket, or minute order. (Streamlined DNA Expungement Application Form 244 <http://ag.ca.gov/bfs/pdf/expungement_app.pdf> [as of Dec. 3, 2014].) If DOJ denies the request, the individual may initiate a court proceeding pursuant to the section 299 procedures. (<http://ag.ca.gov/bfs/pdf/expungement_app_instruc.pdf> [as of Dec. 3, 2014].)
The DOJ posts monthly statistics for the DNA Laboratory which indicate the number of samples removed from the backlog. As the number of samples removed includes “any samples Expunged, Removed or Failed twice, as well as where a New Sample has been requested,” it does not reveal how many samples were expunged or how many profiles eligible for expungement exist in the databank. (Jan Bashinski DNA Laboratory Monthly Statistics <http://ag.ca.gov/sites/all/files/agweb/pdfs/bfs/ monthly_october_2014.pdf?> [as of Dec. 3, 2014].)
5 Noting that “[t]wenty-eight States and the Federal Government have adopted laws similar to the Maryland Act authorizing the collection of DNA from some or all arrestees,” the court stated that “[a]lthough those 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.” (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1968].)
6 The DNA Act was challenged in federal court, in a class action on behalf of persons who had been or would be compelled to submit to DNA searches solely because they have been arrested for or charged with a felony offense. (Haskell v. Harris (9th Cir. 2014) 745 F.3d 1269, 1270.) Prior to King, the district court denied a motion for a preliminary injunction. (Haskell v. Brown (N.D.Cal. 2009) 677 F.Supp.2d 1187, 1189–1190.) After King was decided, in a four-paragraph per curiam opinion, the Ninth Circuit affirmed the district court, finding the plaintiffs could not show they would likely succeed on the merits. (Haskell v. Harris, at p. 1271.) The full explanation of this conclusion is as follows: “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 charged with, a felony offense by California state or local officials?’ After … King[, supra,] [186 L. Ed. 2d 1, 133 S. Ct. 1958] … , 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.” (Ibid.) The court declined the plaintiffs’ request for a preliminary injunction applying to a smaller class of individuals arrested for certain felonies that plaintiffs believed to be covered by King, directing that such a request would need to be made to the district court in the first instance. (Ibid.)
Haskell v. Harris, supra, 745 F.3d 1269 does not compel us to reach any particular resolution of the present case. First, Haskell did not adjudicate the constitutionality of the DNA Act; it only held that plaintiffs were not entitled to a preliminary injunction. Second, even with respect to a Fourth Amendment analysis, decisions of the Ninth Circuit are persuasive authority but not binding upon California state courts. (Raven v. Deukmejian (1990) 52 Cal.3d 336, 352 [276 Cal. Rptr. 326, 801 P.2d 1077] (Raven).)
7 Respondent argues that appellant cannot prevail on a facial challenge to the DNA Act because, since King upheld DNA collection from arrestees at booking, appellant cannot demonstrate that “no set of circumstances exists under which the Act would be valid.” (United States v. Salerno (1987) 481 U.S. 739, 745 [95 L. Ed. 2d 697, 107 S. Ct. 2095].) Appellant rejects the “facial challenge” characterization, noting that he does not challenge the DNA Act in all its applications—such as its requirement of postconviction DNA testing. Instead, appellant asserts, he is challenging only the specific search demanded of him, after his arrest and before he was formally charged, his refusal of which led to his criminal conviction under section 298.1. We need not resolve this point. Whatever the merits of a facial challenge to appellant’s Fourth Amendment claim, King would not foreclose appellant’s challenge under the California Constitution.
Respondent contests appellant’s right to pursue a claim under the California Constitution because it was not “developed” at trial or by his appointed counsel on appeal. Respondent urges that appellant’s briefing initially “raised, but did not develop a state constitutional law claim,” that respondent pointed out this failure to develop a state law claim and argued such a claim would not be decided differently from a Fourth Amendment claim, that appellant’s appointed amicus curiae then raised a state law claim, and that appellant’s “substantial” state law claim was made for the first time only after the case was remanded by the Supreme Court. This attempt to avoid the merits is surprising considering the procedural history of the appeal. This court, of its own initiative, invited the First District Appellate Project (FDAP) to file an amicus curiae brief on the initial appeal in order to have the issues more fully developed. FDAP’S brief addressed the California Constitution, as well as the Fourth Amendment, albeit focusing on article I, section 1 of the California Constitution. After FDAP’s amicus curiae brief was filed, FDAP was substituted as appellant’s counsel. Although we chose to resolve the case on federal constitutional grounds at that time, there is no basis for respondent’s attempt to prevent consideration of the issues under the California Constitution now. In any event, even if appellant had not earlier relied upon article I, section 13, we would not “ignore a constitutional provision directly applicable to an issue in a case before us simply because a party had neglected to cite it.” (People v. Runyan (2012) 54 Cal.4th 849, 859, fn. 3 [143 Cal. Rptr. 3d 674, 279 P.3d 1143].)
8 The King court’s minimizing of the nature and amount of information at issue in DNA analysis stands in stark contrast to its expansive view of the privacy interest involved in the recent case of Riley v. California (2014) 573 U.S. ___ [189 L. Ed. 2d 430, 134 S.Ct. 2473]. There, in refusing to condone a warrantless search of data on an arrestee’s cell phone, the court recognized that “the possible intrusion on privacy” required consideration of the amount and nature of information stored on a cell phone, which can include “photographs, picture messages, text messages, Internet browsing history, a calendar, a thousand-entry phone book, and so on.” (Id. at p. ___ [134 S.Ct. at p. 2489].) The court pointed out potential intrusions that could result from a data search with no indication they were involved in the particular case before the court: “An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD.” (Id. at p. ___ [134 S.Ct. at p. 2490].) And the court pointed out that future technological developments would increase the problem: “We expect that the gulf between physical practicability and digital capacity will only continue to widen in the future.” (Id. at p. ___ [134 S.Ct. at p. 2489].)
The court’s approach in King could not have been more different. The King court avoided any acknowledgement of the personal nature of DNA information, limited its consideration of privacy interests to the specific search involved, overlooked scientific developments in DNA analysis expanding its investigative use to persons who are neither offenders nor even arrestees, disregarded potential scientific developments increasing the information extracted from DNA, and then broadly extended its decision to DNA laws even more intrusive than the one before the court.
9 Questions about how much information may be derived from junk DNA now and in the future have been the subject of much debate in scientific and legal communities, and studies have begun to suggest links between the CODIS loci and susceptibility to certain diseases, as well as family relationships and ancestry. (Cole, Is the “Junk” DNA Designation Bunk? (2007) 102 Nw. U. L.Rev.: Colloquy 54; Rosen, Liberty, Privacy, and DNA Databases (2003) The New Atlantis <http://www.thenewatlantis.com/publications/liberty-privacy-and-dna-databases> [as of Dec. 3, 2014]; Note, Concerns Associated with Expanding DNA Databases (2010) 2 Hastings Sci. & Tech. L.J. 267, 291–292); Kaye, What the Supreme Court Hasn’t Told You About DNA Databases (2013) p. 5 <http://www.promega.com/resources/profiles-in-dna/2013/what-the-supreme-court-hasnt-told-you-about-dna-databases/> [as of Dec. 3, 2014].)
10 Wisconsin apparently has been the only state whose DNA law requires the destruction of all specimens and samples after analysis has been performed and the applicable court proceedings have concluded. (Joh, Reclaiming “Abandoned” DNA: The Fourth Amendment and Genetic Privacy (2006) 100 Nw. U. L.Rev. 857, 871, fn. 77, citing Wis. Stat. Ann. § 165.77(3) (West 2004).) The Wisconsin statute was amended in 2013, however, to remove this requirement effective April 1, 2015. (Wis. Stat. Ann. § 165.77(3), Note (Lexis 2014).)
11 Another distinction significant in considering the privacy interests at stake is that DNA testing is viewed by society as a process reserved exclusively for criminals. Because many professions and branches of civil service require fingerprinting, the practice is “not in itself a badge of crime.” (U.S. v. Kelly (1932) 55 F.2d 67, 70; see Thom v. New York Stock Exchange (S.D.N.Y. 1969) 306 F.Supp. 1002, 1007 [“The day is long past when fingerprinting carried with it a stigma or any implication of criminality.”].) In contrast, society views DNA sampling not just as a badge of crime, but as a badge of the most dangerous crimes: “DNA is used most commonly, both in the public perception and in reality, to detect more heinous crimes such as rape and murder … .” (Note, Faulty Foundations: How the False Analogy to Routine Fingerprinting Undermines the Argument for Arrestee DNA Sampling (2010) 19 Wm. & Mary Bill Rts. J. 475, 496 (Faulty Foundations).)
12 The Attorney General’s published monthly statistics for the state DNA laboratory suggest even longer processing times. In October 2014, the laboratory started with a backlog of 22,070 samples, added 12,204 samples and uploaded 9,815 profiles to CODIS. (Statistics, supra <http://oag.ca.gov/sites/all/files/agweb/pdfs/bfs/ monthly_october_2014.pdf?> [as of Dec. 3, 2014].) The numbers for prior months are similar. In September 2014, the starting backlog was 24,591 samples, 14,619 new samples were added and 16,987 profiles were uploaded. (Statistics, supra <http://oag.ca.gov/sites/all/files/agweb/ pdfs/bfs/monthly_september_2014.pdf?> [as of Dec. 3, 2014].) In June 2014, the starting backlog was 31,464 samples, 13,730 new samples were added, and 14,332 profiles were uploaded. (Statistics, supra <http://oag.ca.gov/sites/all/files/agweb/pdfs/bfs/monthly_june_2014.pdf?> [as of Dec. 3, 2014].) Based on these numbers, it would take the laboratory well over two months to work through the existing backlog and begin to analyze newly received samples.
13 Fingerprints and criminal history information from local, state and federal law enforcement agencies are compiled in the IAFIS, the “largest biometric database in the world,” administered by the FBI. IAFIS offers automatic fingerprint search capability, latent search capability, electronic image storage, and electronic exchange of fingerprints and responses.
California uses the California Identification System (Cal-ID), the automated system maintained by the DOJ for retaining fingerprint files and identifying latent fingerprints. (§ 11112.1.) At the local level, live scan devices are used to capture fingerprints taken when an individual is booked and transmit them electronically to the DOJ, which then transmits them to the federal database. (See Orange County Crime Lab <http://www.occl.ocgov.com/Sections/CalID.aspx> [as of Dec. 3, 2014].)
14 Justice Scalia made this point: “To know [the actual workings of the DNA search at issue here] is to be instantly disabused of the notion that what happened had anything to do with identifying King.” (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1983] (dis. opn. of Scalia, J.).) In addition to the lengthy period before the DNA sample is processed and the fact that no identifying information is stored in the DNA database, “the CODIS system works by checking to see whether any of the samples in the Unsolved Crimes Collection match any of the samples in the Convict and Arrestee Collection. [Citation.] That is sensible, if what one wants to do is solve those cold cases, but note what it requires: that the identity of the people whose DNA has been entered in the Convict and Arrestee Collection already be known. If one wanted to identify someone in custody using his DNA, the logical thing to do would be to compare that DNA against the Convict and Arrestee Collection: to search, in other words, the collection that could be used (by checking back with the submitting state agency) to identify people, rather than the collection of evidence from unsolved crimes, whose perpetrators are by definition unknown. But that is not what was done. And that is because this search had nothing to do with identification.” (Id. at pp. ___–___ [133 S.Ct. at pp. 1984–1985] (dis. opn. of Scalia, J.), italics & fn. omitted.) What the DNA search in King “identified” was the previously unidentified suspect in a prior unsolved crime, not the person from whom the sample was taken. (Id. at p. ___ [133 S.Ct. at p. 1985] (dis. opn. of Scalia, J.).)
15 The ballot argument opened dramatically: “‘In California, the remains of a boy missing for two decades are finally identified. Two cold murders are solved in Kansas. And in Texas, a serial sexual predator is captured. The cases are cracked thanks to technology police are calling the fingerprints of the 21st century.’ (Associated Press, March 2004) [¶] DNA IDENTIFIES CRIMINALS AND PROTECTS THE INNOCENT [¶] ‘Hunch leads to Rape Suspect’s Arrest; Detective obtains DNA Sample from a convicted burglar that links him to attacks on 11 women.’ (LA Times, April 2004)[.] [¶] ‘DNA tests clear man of slayings; man jailed since late 2002 on charges of killing his ex-girlfriend and her sister.’ (Bakersfield Californian, May 2004).” (Voter Information Guide, Gen. Elec. (Nov. 2, 2004) argument in favor of Prop. 69, p. 62.)
16 To demonstrate the ineffectiveness of California’s then existing DNA database, proponents compared California’s database to Virginia’s. “Virginia has a comprehensive DNA database including arrestees. Virginia’s population is less than Los Angeles County, but solves more crimes with DNA than California. In 2002, California solved 148 cases; Virginia 445.” (Voter Information Guide, supra, argument in favor of Prop. 69, p. 62.)
17 The FBI’s Web site identifies four states as having “taken the lead” in familial searching: California, Colorado, New York, and Florida. (DNA Forensics, Familial Searches <http://www.dnaforensics.com/StatesAndFamilialSearches.aspx> [as of Dec. 3, 2014].)
18 Unlike an “exact match” which indicates that the owner of the profiled DNA was involved in the crime under investigation, a “partial match” “refers to two genetic profiles—one derived from a crime scene sample and the other from CODIS—that share some, but not all, of the thirteen core DNA loci that comprise a CODIS profile. This kind of match generally excludes the offender whose CODIS profile provides the match, because that individual’s DNA is demonstrably different from the crime scene sample. A partial match may instead inculpate the offender’s close genetic relatives as possible perpetrators of a crime because they, like the crime scene sample, share some but not all of the examined loci with the individual whose CODIS profile provided the partial match. The information derived from a partial match where two nonmatching profiles share rare genetic markers will be particularly suggestive of a relative’s involvement in a crime.” (Ram, Fortuity and Forensic Familial Identification (2011) 63 Stan. L.Rev. 751, 763–764 (Fortuity), citing Sjerps & Kloosterman, On the Consequences of DNA Profile Mismatches for Close Relatives of an Excluded Suspect (1999) 112 Int’l J. Legal Med. 176.)
19 With respect to a deliberate search, the Bulletin declares that “[w]hen a law enforcement agency is investigating an unsolved case that has critical public safety implications, the agency may request that DOJ conduct a modified CODIS search with the objective of identifying any offender(s) in the database who are likely to be related to the unknown perpetrator. In these situations, the name of an offender may be released to the investigating agency …” provided that a specified protocol has been followed and its conditions all been met. (Bulletin, supra, at p. 2, italics added.)
For a fortuitous partial discovery, the Bulletin states that “[w]hen a partial match occurs that has at least 15 shared STR alleles with an offender, DOJ will contact the local laboratory’s CODIS administrator to confirm that the case is not yet solved. If the case is still active, the case investigator should be notified of the partial match by the local CODIS laboratory and the process defined in the policy will be followed upon request.” (Bulletin, supra, at p. 2, italics added.)
The Bulletin provides that “any costs associated with the special DNA testing of the crime scene evidence must be paid for by the investigative agency, unless the crime scene evidence testing was performed by DOJ.” (Bulletin, supra, at p. 3, italics added.)
20 Further reflecting the importance of the investigative purpose of the DNA Act, respondent emphasizes that DNA testing of arrestees “is an important and effective law enforcement tool,” asserting that adult felony arrestees are “more likely than not become tomorrow’s convicted offenders.” The Attorney General’s Web site states that “[c]ollecting forensic identification DNA database samples from offenders at felony arrest, rather than after conviction has more than doubled the crime-solving efficacy of California’s database program.” (FAQ, supra, Effects of the All Adult Arrestee Provision, Ques. 2 <http://oag.ca.gov/bfs/prop69/faqs> [as of Dec. 3, 2014].)
This conclusion may be an overstatement. Analyses of DNA profiling and databases, including California’s, indicate that “‘hits’ and ‘investigations aided’ metrics are poor indicators of whether DNA databases aided in resolving criminal investigations” because this data does not reveal whether hits resulted in arrests or convictions. (James, Congressional Research Service, DNA Testing in Criminal Justice: Background, Current Law, Grants, and Issues (Feb. 25, 2014) at p. 6; see RAND Corporation, Center on Quality Policing, Toward a Comparison of DNA Profiling and Databases in the United States and England (2010) (RAND study) at pp. 17, 20.) Further, “[d]atabase matches are more strongly related to the number of crime-scene samples than the number of offender profiles in the database” (RAND study at p. 20), and it has been suggested that, given the constraints of financial resources, the focus on increasing the database of offender profiles comes “at the cost of greater backlogs and fewer technicians for crime scene sample collection and analysis.” (DNA Testing, supra, 127 Harv. L.Rev. at p. 183.) It has also been suggested that the impact of collecting DNA from arrestees may be small because many have previously been convicted, so already have profiles in the database, and many of the others will have profiles added upon conviction. (Kaye, The Constitutionality of DNA Sampling on Arrest (2001) 10 Cornell J.L. & Pub. Pol’y 455, 502.)
21 In People v. Smith (1980) 103 Cal.App.3d 840, 845–846 [163 Cal. Rptr. 322], cited with approval in Laiwa, supra, 34 Cal.3d at page 727, the court noted that “[t]o declare that arrestees have no further privacy interest in their personal property once it is subjected to a booking search would mean that all accused persons, whether subsequently found innocent or guilty, would be subject to having their effects rummaged through at will during the entire period of their incarceration. This is a result we cannot condone.” (Smith, at pp. 845–846.)
22 Proposition 8 added article I, section 28, subdivision (d), to the California Constitution, stating that “‘[e]xcept as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding … .’” (Lance W., supra, 37 Cal.3d at p. 879.)
23 The Vermont court had previously established that the primary purpose of that state’s DNA law was to create a database to which DNA evidence from future crime scenes could be compared, not to investigate the donor for crimes already committed. (Medina, supra, 2014 Vt. Lexis 71 at pp. *19–*20.) Regarding the additional considerations of “accurate identification of persons who are subject to conditions of release, or those who are incarcerated pretrial”—the concerns at issue in King—the court said, “the need for more accurate identification [than that provided by photographs and fingerprints] is rare and apparently has not arisen among the large numbers of defendants joined in this case.” (Medina, at pp. *32, *48.)
24 For 2012, of the 93,052 arrestees who were not convicted, 57,601 were not charged. (Cal. DOJ, Division of Cal. Justice Information Services, Bureau of Criminal Information and Analysis, Criminal Justice Statistics Center, Crime in California 2012, at p. 49 (Crime in California 2012) <http://oag.ca.gov/sites/all/files/agweb/pdfs/cjsc/publications/candd/cd12/cd12.pdf?> [as of Dec. 3, 2014].)
25 Under County of Riverside v. McLaughlin, supra, 500 U.S. at page 57, where an arrestee does not receive a probable cause determination within 48 hours, the government must demonstrate “the existence of a bona fide emergency or other extraordinary circumstance.”
Section 825, subdivision (a)(1), requires that an arrestee “be taken before the magistrate without unnecessary delay, and, in any event, within 48 hours after his or her arrest, excluding Sundays and holidays.”
26 Respondent has attempted to downplay the absence of a judicial determination of probable cause, arguing that “loss of freedom of choice and privacy are ‘inherent incidents’ of felony arrest,” and the “‘presumption of innocence’ does not entitle arrestees to claim the full protection of Fourth Amendment privacy guarantees available to ordinary citizens.” Appellant, however, has explicitly acknowledged that arrestees’ privacy expectations are “less than members of the general public.” He argues only that his privacy rights are greater than those of prisoners, parolees and probationers.
Respondent also relies upon the statement in In re York (1995) 9 Cal.4th 1133 [40 Cal. Rptr. 2d 308, 892 P.2d 804], that the “‘presumption of innocence is a doctrine that allocates the burden of proof in criminal trials; … it has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun.’” (Id. at p. 1148, quoting Bell v. Wolfish, supra, 441 U.S. at p. 533.) The salient point in York was that a lawful arrest allows restrictions on the liberty to which a citizen is ordinarily entitled. But the mere fact of an arrest does not render it lawful, a judgment that can be made only after a judicial determination of probable cause. At the time appellant was asked for and refused to provide a DNA sample, no judicial officer had determined whether there was probable cause to believe he had committed a crime.
27 The King majority indicated that one of the reasons no warrant was needed for an arrestee DNA search was that the Maryland law made collection of DNA from specified arrestees mandatory: “The DNA collection is not subject to the judgment of officers whose perspective might be ‘colored by their primary involvement in “the often competitive enterprise of ferreting out crime.”’ Terry [v. Ohio (1968) 392 U.S. 1,] 12 [20 L. Ed. 2d 889, 88 S. Ct. 1868], quoting Johnson v. United States[, supra,] 333 U.S. [at p.] 14 … . As noted by this Court in a different but still instructive context involving blood testing, ‘[b]oth the circumstances justifying toxicological testing and the permissible limits of such intrusions are defined narrowly and specifically in the regulations that authorize them … . Indeed, in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate.’ Skinner, supra, [489 U.S. at p. 622] … .” (King, supra, 569 U.S. at p. ___ [133 S.Ct. at p. 1970].) Under the Maryland law, however, DNA is not analyzed until after a judicial determination of probable cause. The King majority’s point, that the absence of discretion protects against abuse, cannot be made about the DNA Act.
28 Under the federal DNA law, “the FBI expunges from the national DNA index the DNA information of a person included in the index on the basis of conviction for a qualifying federal offense if the FBI receives a certified copy of a final court order establishing that the conviction has been overturned” and “expunges the DNA information of a person included in the index on the basis of an arrest under federal authority if it receives a certified copy of a final court order establishing that the charge has been dismissed or has resulted in an acquittal or that no charge was filed within the applicable time period.” (73 Fed.Reg. 74932, 74940 (Dec. 10, 2008); see 42 U.S.C. § 14132(d)(1)(A).)
Federal law requires each state, “[a]s a condition of access to the [DNA] index,” to “promptly expunge from that index the DNA analysis of a person included in the index by that State if … [¶] … the responsible agency or official of that State receives” the above described documentation that the relevant conviction has been overturned, or the charge has been dismissed, resulted in acquittal, or was not filed within the applicable time period. (42 U.S.C. § 14132(d)(2)(A).) While California is required to adhere to the federal standards in order to maintain access to CODIS (42 U.S.C. § 14132(d)(2)(A)), it is unclear whether and how this requirement is enforced.
29 As described on its Web site, the NIJ, “the research, development and evaluation agency of the United States Department of Justice,” “funded the Urban Institute to examine how key provisions in arrestee DNA legislation influence the logistical activities associated with DNA collection and analysis. The study involves a review of state and federal laws along with interviews of state crime laboratory representatives in 26 of the 28 states that passed legislation authorizing collection of DNA from some subset of arrestees. Although the study is ongoing, the Urban Institute provided some preliminary findings that are current as of June 2012.” (<http://www.nij.gov/topics/forensics/evidence/dna/pages/collection-from-arrestees.aspx> [as of Dec. 3, 2014].)
30 Under the Maryland law, by contrast, because DNA samples are not analyzed until after arraignment and are automatically expunged if the donor is not convicted, the DNA information of an arrestee who is not charged with a qualifying crime will never be at the government’s disposal; the DNA of an arrestee who is charged but not convicted will at most be in the government’s hands only during the period between arraignment and conclusion of the case. (See Medina, supra, 2014 Vt. Lexis 71 at p. *49.)
31 As one commentator has noted, even if persons whose DNA profiles are in the California CODIS database have forfeited their privacy rights, “they surely cannot have relinquished the interests of their father, mother, brothers, sisters, and children. Familial searches exploit the government’s power to compel information from persons with diminished privacy (i.e., mandatory typing of the offender’s DNA profile) to then invade the privacy of their law-abiding relatives (by drawing inferences about the relatives’ profile). Familial searching effectively amounts to a law that says, ‘The identity and probable genetic markers of the close relatives of any convicted offender [or arrestee] shall be entered in the national database.’” (Murphy, Relative Doubt: Familial Searches of DNA Databases (2010) 109 Mich. L.Rev. 291, 317 (Relative Doubt).)
32 A study of the impact of California familial search policy concluded that “the reliance on racially disproportionate databases will on average impact the targeting of suspicion, drawing disproportionate attention toward Hispanics and African Americans and against Asian Americans, and weakly affecting Caucasians.” (Relative Doubt, supra, 109 Mich. L.Rev. at p. 323.) Moreover, “even if searches never generated any actual discrimination, the mere reliance on offender databases raises an appearance of bias that the criminal justice system can little tolerate. Criticism of the system and its inequities has already deeply divided communities and undermined trust in and cooperation with law enforcement actors. Using offender databases to find relatives sends a message that in cases in which there is no evidence of the perpetrator’s identity or ethnicity, it is fair to focus suspicion on not just the usual suspects, but also the innocent relatives of the usual suspects.” (Ibid., see Duster, Selective Arrests, an Ever-Expanding DNA Forensic Database, and the Specter of an Early-Twenty-First-Century Equivalent of Phrenology, in DNA and the Criminal Justice System: The Technology of Justice (Lazer edit., 2004).)
33 Such a change in policy would also exacerbate the discriminatory effect of familial searching since, in California, far more members of racial and ethnic minorities are arrested for felonies than are people who are not minorities. (Crime in California 2012, supra, at p. 33 <http://oag.ca.gov/sites/all/files/agweb/pdfs/cjsc/publications/candd/cd12/cd12.pdf?>.) In 2012, of the total 429,807 felony arrestees in California, 149,044 were Caucasian, while 280,763 were Hispanic, African-American or “other.” (Ibid.)
34 In 2012, 393,439 adult felony arrests were made in California. (Crime in California 2012, supra, at p. 19 <http://oag.ca.gov/sites/all/files/agweb/pdfs/cjsc/publications/candd/cd12/cd12.pdf?>.) Convictions resulted in 202,413 of these cases; the remainder resulted in dismissals or acquittals, denial of prosecutorial complaints, or law enforcement releases. (Id. at p. 49.) These convictions accounted for 68.5 percent of all final adult felony dispositions (ibid.), meaning that of all the adult felony arrests in 2012 that reached final disposition, slightly more than two-thirds were convicted. The final disposition data does not account for all the adult felony arrests made in a year, as it does not include intermediate dispositions, diversion programs, suspended proceedings, reopenings, retrials, and subsequent actions. (Id. at p. 64.) Comparing the number of convictions (202,413) to the total number of arrests (393,439), only 51 percent of those arrested were convicted—that is, almost half the adult felony arrestees in 2012 were not convicted.
Respondent points out that the category of arrestees who were not convicted may include some who did in fact commit a crime. One example is an arrestee whose offenses result in revocation of probation rather than a new criminal prosecution; in 2012, 47,670 adults had probation revoked for a felony offense. (Crime in California 2012, supra, at p. 55.) Many of these arrestees, however, would have been subject to DNA testing when they were originally convicted. Arrestees whose cases are not pursued by the prosecutor for reasons such as inadmissible evidence or witnesses declining to testify, as respondent suggests, may in fact have committed crimes, but they are legally innocent.
35 In fact, if crime solving is the primary goal of the DNA Act, as appears to be the case, it is questionable whether its application will continue to be limited, or should be limited to felony arrestees and offenders. We take no position on the issue but think it appropriate to point out that some who have thought deeply about these questions believe DNA should be collected from everyone and not just because it would make DNA databases as comprehensive as possible. (See, DNA Databases, supra, 2003 Wis. L.Rev. at pp. 451–452.) It is claimed universal DNA testing would:
(1) Eliminate the disproportionate representation of racial minorities in the database, making it fairer than sampling only offenders and arrestees (DNA Databases, supra, 2003 Wis. L.Rev. at pp. 439–440; Lynch et al., Truth Machine (2008) p. 153 [noting views regarding suggestions to expand United Kingdom's database]; Comment, The British Invasion (of Privacy): DNA Databases in the United Kingdom and United States in the Wake of the Marper Case (2009) 23 Emory Int’l L.Rev. 609, 640).
(2) Obviate or mitigate concerns regarding “pretextual arrests to acquire DNA” and “kinship trawling.” (Response, Maryland v. King: Per Se Unreasonableness, the Golden Rule, and the Future of DNA Databases (2013) 127 Harv. L.Rev. F. 39, 47 (Future of DNA Databases).)
(3) Heighten public attention to the use of DNA databases and the vigilance of regulators (DNA Databases, supra, 2003 Wis. L.Rev. at p. 422, fn. 29, quoting Cole, Fingerprint Identification and the Criminal Justice System: Historical Lessons for the DNA Debate, in The Technology of Justice: The Use of DNA in the Criminal Justice System (Lazer edit., 2004).) Subjecting everyone—not just those perceived as criminals—to the risk of accidental or intentional misuse of his or her DNA information and samples would undoubtedly improve administration of the program. As has been pointed out, “[i]t is too easy to approve of taking DNA from arrestees (or any group) when we presume that we will not be one of ‘them.’ But if ‘we’ truly conceive of ourselves as the recipients of this treatment, then we are more likely to arrive at a system with sufficient safeguards.” (Future of DNA Databases, supra, 127 Harv. L.Rev. F. at p. 48.)
We raise these issues only to show that serious students of DNA sampling—virtually all of whom acknowledge that the chief purpose of the practice is criminal investigation, not identification—recognize the significant dangers it presents and the need to address them more forthrightly and efficaciously than does the DNA Act.

Great Drawings From a Cartoonist Who Spent Time in L.A. County’s Jail System

Cartoonist Elana Pritchard has created a highly informative illustrated depiction of life in the Los Angeles County jails.  These conditions are unacceptable for anyone to have to endure.  And keep in mind, a great many people who suffer in jails have not been convicted of any crime, and are only there because they cannot afford bail.  Click here to see it.

Sell “Give a Hoot, Don’t Pollute” T-Shirt, Go to Jail

Pursuant to 18 U.S. Code § 711a,

Whoever, except as authorized under rules and regulations issued by the Secretary, knowingly and for profit manufactures, reproduces, or uses the character “Woodsy Owl”, the name “Woodsy Owl”, or the associated slogan, “Give a Hoot, Don’t Pollute” shall be fined under this title or imprisoned not more than six months, or both.

Congress didn’t give a hoot and polluted our laws with the above statute. 

OpposingViews.com covers the doggone federal dog-leash case

Read Michael Allen’s excellent article on the federal dog leash case we are currently appealing:

Man Convicted Of Violating Dog Leash Law, Can’t Leave Southern California

By Michael Allen, Thu, August 07, 2014

John Gladwin and his cattle dog Molly are not allowed to enter the Santa Monica Mountains National Recreation Area in Los Angeles, or he will go to jail.

Gladwin, 69, is not allowed to leave Southern California unless his probation officer allows it.

The federal government has cracked down on the retiree because he violated a leash law two times per the regulations of the National Park Services.

“I’ve never had someone, while a trial was pending, go and commit the same offense. He’s incorrigible,” Assistant U.S. Attorney Sharon McCaslin told the LA Weekly. “He thinks the park is his backyard.”

Actually, the park is Gladwin’s backyard. His home is only a few hundred feet from the Santa Monica Mountains.

“Molly and I have never been cited for anything causing any kind of problem,” Gladwin told the LA Weekly. “This is all so ridiculous, spending all this money to do this. The probation department doesn’t even take it seriously. They deal with gangbangers, drug dealers, murderers. And here I am, for a dog leash.”

Neither Molly or Gladwin’s other dog have ever bothered people or animals within the national park. However, even if Gladwin enters the national park without a dog he can still be arrested.

Gladwin has refused a plea bargain offered by McCaslin, but instead has gone to trial twice. During his last trial, Gladwin testified that he took his dog’s leash off to feed her a biscuit while they were outside the national park.

The judge didn’t believe him, Gladwin was found guilty, given a 12-month probation and a suspended jail sentence, but his lawyer Dan Kapelovitz of the Radical Law Center is appealing his conviction.

“I’ll take any case where the government is attempting to deprive people of their life, liberty or property, but this case was particularly worthwhile because my client was facing six months in jail and a $5,000 fine for merely having a dog off-leash,” Kapelovitz told Opposing Views. “No one was harmed or even in danger of being harmed.”

“Until I got involved, the government had not even provided my client with the evidence that was to be used against him as required by law,” added Kapelovitz. “Essentially, my client is being punished for exercising his constitutional right to go to trial.”

“In federal court, a person facing up to six months in jail is not entitled to a trial by jury even though the Constitution could not be clearer on the subject,” said Kapelovitz. “The Sixth Amendment guarantees, ‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.’ It contains no exceptions. So, instead of being tried to a jury of his peers, my client’s fate was determined by a magistrate judge who, like a great many federal judges, is a former federal prosecutor.”

Kapelovitz sees Gladwin’s case as “a growing trend in the over-criminalization of everyday activities.”

“Now, he’s on probation for a year, and has to obtain written permission just to travel out of the area,” said Kapelovitz. “In addition, a probation officer can enter and search his home anytime. In fact, a probation officer has already done so, going into every room of my client’s home and around his property. What could he possible be looking for? Unused dog leashes? It’s totally insane.”

Kapelovitz had a chilling reminder for Americans who may think the ever-growing police state can’t touch them.

“There are literally tens of thousands of federal crimes, some of which many Americans accidentally commit every day,” stated Kapelovitz. “For example, under the Computer Fraud and Abuse Act, if you violate the terms of service of a social networking site by, say, creating a Facebook account for your pet cat, you have just committed a federal offense.”

 

 

The Evils of Solitary Confinement

Filmmakers are raising funds to make their film “Dying for Sunlight” a documentary about hunger strikes in California prisons protesting solitary confinement.  You can donate here.

It is also worth reading this excellent article from Mother Jones by Shane Bauer about solitary confinement, which you can read by clicking here.

 

Why “the Radical Law Center”?

rad·i·cal  [rad-i-kuhl]

adjective:
1. of or going to the root or origin; fundamental: a radical difference.
2. thoroughgoing or extreme, especially as regards to change from accepted or traditional forms: a radical change in the policy of the government.
3. favoring drastic political, economic, or social reforms: radical ideasradical reform.
4. existing inherently in a thing or person: radical strengths of character.
5. slang: excellent, cool.
noun:     A person who advocates thorough or complete political or social reform.

“The word ‘radical’ derives from the Latin word for root.  Therefore, if you want to get to the root of anything you must be radical.” — Gore Vidal

 

“Exercising a Constitutional Right Will Get You 20: The Second Amendment and Firearm Sentence Enhancements”

“Exercising a Constitutional Right Will Get You 20: The Second Amendment and Firearm Sentence Enhancements”

by Daniel I. Kapelovitz

Disclaimer: Nothing written in the below article should be construed as being legal advice.  The law is always evolving and may have changed since this article was originally written.

Introduction: “Unjust, Cruel, and Even Irrational”[1]—The Weldon Angelos Case

In 2004, a 24-year-old first-time offender named Weldon Angelos was convicted and sentenced to 55 years in prison.[2] Unfortunately for Angelos, he was not a murderer, a rapist or an aircraft hijacker; if he was, he probably would have received a lighter sentence. [3] Instead, Angelos was a small-time marijuana dealer who, according to a government informant, was wearing a gun in an ankle holster during two of three $350 marijuana transactions. Angelos never brandished or discharged his firearm in furtherance of his crimes, but these two transactions earned Angelos a mandatory minimum sentence of 30 years. Police officers also found $18,040, a handgun, two opiate suckers, and bags containing approximately three pounds of marijuana, and two additional guns locked in Angelos’s apartment.[4] Angelos received an additional 25 years for these guns at his home.[5]

18 U.S.C. § 924(c) provides for a mandatory five-year minimum sentence for the first offense of possessing firearms “during and in relation to” any crime of violence or of drug trafficking, and 25 years for each additional offense.[6] The sentences must run consecutively, even for defendants who had never been previously convicted under § 924(c).[7] The government charged Angelos with five § 924(c) counts—potentially 105 years in prison.[8] The jury convicted Angelos of three § 924(c) counts, two for the gun seen at the controlled buys, and the third for the handguns found at Angelos’s home.[9]

Even the sentencing judge, Paul Cassell considered the sentence he imposed unfair. In his opinion, Cassell wrote, “The court believes that to sentence Mr. Angelos to prison for the rest of his life is unjust, cruel, and even irrational. Adding 55 years on top of a sentence for drug dealing is far beyond the roughly two-year sentence that the congressionally-created expert agency…believes is appropriate for possessing firearms under the same circumstances. The 55-year sentence substantially exceeds what the jury recommended to the court. It is also far in excess of the sentence imposed for such serious crimes as aircraft hijacking, second-degree murder, espionage, kidnapping, aggravated assault, and rape. It exceeds what recidivist criminals will likely serve under the federal ‘three strikes’ provision. At the same time, however, this 55-year additional sentence is decreed by § 924(c).”[10]

The judge hoped that the President of the United States and Congress would right this wrong: “To correct what appears to be an unjust sentence, the court also calls on the President…to commute Mr. Angelos’s sentence to something that is more in accord with just and rational punishment….[T]he court also calls on Congress to modify § 924(c) so that its harsh provisions for 25-year multiple sentences apply only to true recidivist drug offenders, those who have been sent to prison and failed to learn their lesson.”[11]

The President did not commute the sentence, and Congress did not modify § 924(c). However, soon after, the Supreme Court did decide District of Columbia v. Heller,[12] holding that the Second Amendment protected an individual right to keep and bear arms. During the same term, the Supreme Court also decided Kennedy v. Louisiana, giving further clarification of its Eighth Amendment jurisprudence. The Kennedy court held that due to the “evolving standards of decency that mark the progress of a maturing society,” the death penalty can not be imposed on a child rapist if no death resulted from the crime.[13]

Not surprisingly, Angelos is appealing his conviction in light of these two recent Supreme Court decisions. His case is a good one to explore the post-Heller effect on firearm sentence enhancements. First, his case involves two common nonstandard uses of firearms that can give rise to a § 924(c) violation: mere possession of a gun that is never brandished, discharged or even alluded to, and protecting a narcotics stash in the home. To be found guilty under § 924(c), the prosecution must prove some nexus between the firearm and the crime. However, this nexus can be extremely loose. Heller may alter the nexus analysis, especially for guns kept at home. Second, Angelos’s extremely harsh sentence makes his case a good one to explore Heller’s possible effect on challenges of firearm cases under the Eighth Amendment’s Cruel and Unusual Punishments Clause.

The Heller Court was clear that the Second Amendment, like other constitutional rights, is not unlimited. Most firearm sentence enhancements would likely be upheld. For example, a regulation that provided stiffer sentences for armed robbery than for unarmed robbery would even survive strict scrutiny. But § 924(c) also applies in at least three situations in ways which, I argue, should not always survive Second Amendment scrutiny: emboldening, passive protection of a drug stash, and trading guns for drugs. Because Angelos did not brandish nor discharge a firearm during the drug deals, the emboldening theory would have to apply. And the charge related to the firearms found at Angelos’s home could only be justified under what is called the “fortress theory.” And while the third unusual application of § 924(c)—trading guns for drugs—did not apply to Angelos, the Supreme Court’s decision in such a case (Smith v. United States) influences how courts apply § 924(c) in the other two nonstandard use situations.[14]

Because the Angelos case involves an extreme punishment for arguably exercising a constitutional right, the Supreme Court’s recent recognition of the individual right to bear arms should also affect the Eighth Amendment analysis in his case and others like his. The Kennedy Court held that life in prison is the harshest penalty a nonmurderer child rapist could be sentenced to. If Angelos is required to serve his entire sentence, the chances are great that he, like the child rapist in Kennedy, will spend the rest of his life in prison. Child rape is obviously a much more serious crime than mere possession of firearms while selling marijuana, and unlike firearm possession, child rape is in no way related to a constitutional right.

I. The Heller Decision

Heller recognized that the right to bear arms is an individual right and that “the inherent right of self-defense has been central to the Second Amendment right.”[15] Furthermore, the Court held that “the home [is] where the need for defense of self, family, and property is most acute.”[16] However, the Court did not provide much guidance as to exactly what regulations would violate the Second Amendment, except that laws like the District of Columbia’s that ban handgun possession in the home or prohibit “against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”[17]

The Heller Court explicitly refused to determine the exact level of scrutiny that should be applied to Second Amendment cases, except that it is something higher than rational basis review.[18] The Court held, “Obviously, the same test [rational basis] could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms.”[19] While many commentators think the level of scrutiny in Second Amendment cases will be the same as that used in state constitutional cases—reasonableness review[20]—the court’s comparison of the right to keep and bear arms with these other highly valued rights suggests that a relatively high level of scrutiny should apply.

In rejecting dissenting Justice Breyer’s proposed “interest-balancing inquiry,” the Court stated, “The very enumeration of the right takes out the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all….We would not apply an ‘interest-balancing’ test to the prohibition of a peaceful neo-Nazi march through Skokie. The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which Justice Breyer would now conduct for them.”[21]

In dicta, Justice Scalia wrote, without much reasoning to back it up, that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”[22] This list of “presumptively lawful regulatory measures….does not purport to be exhaustive.”[23] Even though the above passage is purely dicta, post-Heller courts quote it to justify its reasoning. The firearm regulation is almost always upheld by analogizing to the presumptively valid regulations mentioned in Heller.

If courts take Heller’s dicta seriously, which most post-Heller courts seem to be doing, a court is unlikely to invalidate a firearm sentence enhancement provision for violating the Second Amendment any time soon. If Heller’s dicta dictates that nonviolent felons like I. Lewis “Scooter” Libby and Martha Stewart no longer have a right to self-defense, even after they serve their sentences,[24] by analogy, people currently engaging in criminal activity may be deemed to have forfeited their right to self-defense.

But that should not be the end of the inquiry. First, just because a court decides a case a certain way does not mean the decision is correct. Second, I write, “any time soon” because enumerated rights change over time, and cases are often overturned. As the Heller Court itself notes, “For most of our history, the Bill of Rights was not thought applicable to the States….Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods. This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified.”[25]

Enumerated rights both broaden and narrow over time. The Fourth Amendment protections expanded greatly in the 1960s, only to be narrowed again by the Burger/Rehnquist courts.[26] The First Amendment has mostly expanded. At one point, one could be convicted for speaking in favor of overthrowing the government. Now, such advocacy can only be punished if it meets the strict Brandenberg test, which requires that the speaker intentionally incited others to commit imminent unlawful acts, and that the speech was likely to do so.[27] But even some First Amendment protections have seemingly narrowed. For example, in Tinker, the Court seemed to be giving a strong protection to student speech.[28] Since then, the Court—while never overturning Tinker outright—has systematically chipped away at students’ free-speech rights.[29]

The point is that the scope of enumerated rights is always in flux. Heller is likely just the dawning of a new age of Second Amendment jurisprudence. Even after Heller, the rights under the Second Amendment seem relatively weak. At this point, the right to keep and bear arms can only grow stronger. A trend towards a stronger right to bear arms might embolden more judges to find that criminals, in certain situations, do have a right to possess firearms. For example, in a Washington state sentence-enhancement case, where the defendant kept guns in his garage where he had a methamphetamine lab, the dissenting judge stated, “A citizen exercising his right to keep and bear arms has to keep the arms someplace.”[30] Such dissenters may soon be finding themselves in the majority.

The Heller court held, “[W]hatever else [the Second Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”[31] Criminals are by definition not law-abiding, and arguably not very responsible. But does this mean that criminals should completely forfeit their Second Amendment rights, even in regard to defending “hearth and home”? This paper hopes to clarify in which situations the Second Amendment forbids a firearm sentence enhancement.

II. 18 U.S.C. § 924(c)     

Below is an edited version of § 924(c):

18 U.S.C. § 924(c)(1)(A) …[A]ny person who, during and in relation to any crime of violence or drug trafficking crime…uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years….

(C) In the case of a second or subsequent conviction under this subsection, the person shall–

(i) be sentenced to a term of imprisonment of not less than 25 years; and

(ii) if the firearm involved is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, be sentenced to imprisonment for life.

(D) Notwithstanding any other provision of law–

(i) a court shall not place on probation any person convicted of a violation of this subsection; and

(ii) no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed….

A. Why Use § 924(c) to Analyze the Second Amendment’s Effect on Firearm Sentence Enhancements?

Section 924(c) is hardly the only firearm sentence enhancement statute. Other state and federal statutes increase penalties for gun-related offenses, but § 924(c) is a good starting place to analyze the Second Amendment’s effect on sentence enhancements for a number of reasons. Section 924(c), along with § 922(g),[32] “are the most common federal firearms prosecutions”[33] and, of course, § 924(c) mandated Angelos’s fifty-five year sentence. Section 924(c)’s provisions for mandatory minimums and mandatory consecutive sentences also make it the nation’s most extreme sentence enhancement provision.  While most crimes are prosecuted in state courts, firearm possession cases and drug cases are often prosecuted in federal courts. Richmond, Virginia even implemented a plan called Project Exile—which other jurisdictions have since copied—that shifts firearms cases to the federal system, where there are harsher penalties.[34] These harsh penalties are exacerbated because there is no parole and very little time off for good behavior available for federal prisoners.[35] Lastly, even if the Second Amendment is never incorporated to apply to the states, it would still apply to § 924(c) cases since § 924(c) is a federal law.

B. A Brief History of § 924(c)

“Title 18 U.S.C. § 924(c) was proposed and enacted in a single day as an amendment to the Gun Control Act of 1968 enacted following the assassinations of Martin Luther King, Jr. and Robert F. Kennedy….Because § 924(c) was offered as a floor amendment, there are no congressional hearings or committee reports regarding its original purpose, and the court is left only with a few statements made during floor debate.”[36] One of those few statements was made by the amendment’s sponsor, Representative Richard H. Poff, who said that § 924(c)’s purpose was “to persuade the man tempted to commit a Federal felony to leave his gun at home.”[37]

Since 1968, § 924(c) has been amended numerous times.[38] Originally, the provision only applied to firearms carried “unlawfully,” and “the sentencing judge could suspend the § 924(c) sentence or substitute probation on defendant’s first conviction under the sentence.”[39] The Comprehensive Crime Control Act did away with the judge’s discretion and mandated a five-year sentence for the first offense and ten for each additional offense.[40] Two years later, the Firearms Owners’ Protection Act greatly expanded the number of § 924(c) cases when it added drug trafficking as a predicate crime.[41] Since then, Congress has increased the penalties for additional offenses, eventually to its current 25-year mandatory minimum; allowed for multiple counts in same indictment, so additional sentences could apply to first-time offenders; and mandated that these multiple sentences be served consecutively with each other and with the sentence for the underlying crime.[42] When Congress dropped the requirement that the gun be possessed unlawfully, it was concerned that the law could apply to people who “lawfully, but inadvertently, possessed a gun…in unrelated criminal activity.”[43] Congress attempted to solve this problem by adding the “in relation to” language.[44]

Because § 924(c) was created piecemeal by multiple sessions of Congress, the courts have spent much time interpreting various terms of the statute.[45] In United States v. Stewart, the Ninth Circuit determined that Congress intended the “in relation to” language to limit “during.”[46] “To establish that a defendant ‘use[d]’ a firearm ‘during and in relation to’ a drug crime, courts have required the prosecution to establish two connections. The prosecution must show beyond a reasonable doubt (1) a nexus between the weapon and the defendant, and (2) some facilitative nexus between the firearm and the predicate offense.”[47] However, courts have interpreted “in relation to” extremely broadly so that § 924(c) applies even if the firearm had very little relation to the predicate crime. For example in United States v. Evans, the D.C. Circuit upheld a “conviction of a drug trafficker arrested across town from [an] apartment where drugs were stored and weapons [were] kept for protection of stash.”[48]

Courts have also struggled with the meaning of the word “uses.” Proving the necessary nexus between the firearm and the underlying crime of violence or drug trafficking is easy when the firearm is discharged, brandished, or used to threaten a victim during the predicate crime. However, § 924(c), however, also applies to “nonstandard” uses of firearms.[49] A victim of a violent felony might not even know he was also a “victim” of § 924(c). If the predicate crime is drug trafficking, there might not even be a true victim—except, of course, society. Most dealers don’t force customers to purchase drugs at gun point. Dealers who carry firms most likely do so for self-defense in case someone tries to steal the drugs by force. There is a legitimate concern that drug dealers may use firearms to evade arrest, but a criminal willing to shoot it out with police is unlikely to be deterred by § 924(c) from carrying a firearm while committing a crime.

The three most common nonstandard use theories are using a firearm to buy drugs, using the gun to protect a drug stash, and using the gun to become emboldened to commit a crime.[50] Applying § 924(c) to these nontraditional uses of firearms is often constitutionally suspect, given the Second Amendment right recognized in Heller.

In Smith v. United States, the Supreme Court ignored the rule of lenity (“where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant”[51]) and held that exchanging drugs for firearms constituted “use” under § 924(c).[52] Smith received a 30-year mandatory minimum sentence because he “used” a fully-automatic MAC-10 with a silencer to purchase cocaine.[53] Under Smith, a firearm can be used to further a crime even if it is not used as a weapon. Of course, the gun could be used by the buyer in the future, but this is true of legally purchased firearms as well.

The dissent hypothesized that now if a defendant “uses” a gun to scratch his head, he could be convicted under § 924(c).[54] The majority rebuts this example by saying that this would not be using a gun “during and in relation to” the underlying crime.[55] But if a person is trying to commit a crime and suddenly gets a nasty itch, he is going to have trouble executing the crime unless he scratches that itch. And if he decides to use a gun to scratch that itch, isn’t he using it, at least according to Smith’s reasoning, “during and in relation to” the predicate crime?[56]

Perhaps even more troubling than Smith’s definition of “use” is its expansive definition of “during and in relation to.” Citing Webster’s, the Court held that “in relation to” means “with reference to” or “as regards.”[57] The Court recognized, “The phrase ‘in relation to’ thus, at a minimum, clarifies that the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence.”[58]

This sounds reasonable, but then the Court’s disavows this limiting language and states that “the gun at least must ‘facilitat[e], or ha[ve] the potential of facilitating,’ the drug trafficking offense.”[59] It’s difficult to imagine a gun possession that did not have the “potential” of facilitating a crime. In the absurd itch-scratching example, the criminal would not even have to use the gun to scratch his itch, but merely possess a gun that had the potential of scratching a possible itch that occurred during the crime. The court reasoned, “Whether guns used as the medium for exchange for drugs sold illegally or as a means to protect the transaction or dealers, their introduction into the scene of drug transactions dramatically heightens the danger to society.”[60]

Smith, like most pre-Heller cases that address § 924(c), is a case about statutory interpretation. But its expansive definitions of “use” and “during and in relation to” have allowed the government to apply § 924(c) in unusual situations. Post-Heller, the question is no longer, “What did Congress intend?” but rather “When does the Second Amendment prohibit the application of what Congress intended?”

C. The Nexus Requirement and Nonstandard Uses of Firearms

To find someone guilty under § 924(c), there must be a nexus between the defendant, the firearm, and the predicate offense. In many cases, such as armed robbery, the nexus is easily established. But there are some not-so-obvious cases, where the nexus requirement is only met by loosening the definition of “nexus.” In these nonstandard use cases, the firearm activity would often not even be illegal but for the predicate crime. A person could use a firearm to purchase legal goods; a person could carry a firearm (if he has a license) in order to feel emboldened, so long as he is not being emboldened to commit a crime; and a person could keep a firearm in his house to protect his property, so long as his property is not contraband.

Oddly, the government does not have to charge the underlying crime. However, the underlying offense is an element of the crime that must be proved. Whether the jury really concluded beyond a reasonable doubt that the underlying crime was committed is often called into question. In cases where the underlying count is charged, juries have found the defendant not guilty of the underlying crime, yet still guilty of the using the gun in furtherance of that crime. Courts have upheld such inconsistent verdicts. For example, in U.S. v. Martin, the defendant was acquitted of all drug trafficking offenses, yet still found guilty under § 924(c) of using a gun in furtherance of committing those drug trafficking offenses.[61] The court held, “Inconsistent verdicts do not warrant reversal if the guilty verdict is supported by sufficient evidence.”[62] Possibly, such juries are reaching inconsistent verdicts as a form of compromise. But convicting a defendant of using a gun in furtherance of a crime for which he is found not guilty suggests that the gun possession itself is being criminalized. If so, this violates the Second Amendment.

i. Passive Protection of a Drug Stash

Prior to Smith, “[i]n cases where the government’s theory of ‘use’ is the passive protection of a narcotics stash, the courts have consistently reviewed § 924(c) convictions under either the ‘fortress theory’ or a ‘more than strategic proximity theory’ or both.”[63] In an attempt to justify the fortress theory, the United States v. Acosta-Cazares Court stated, “Just as weapons are kept at the ready to protect military installations against potential enemy attack, so too may weapons be kept at the ready to protect a drug house, thereby safeguarding and facilitating illegal transactions.”[64]

The “more than strategic proximity theory,” as its name suggests, supposedly requires that “something more than the strategic proximity of the firearms” is required to establish the necessary nexus between the firearm and the crime.[65] “In reality, however, the ‘more than strategic proximity theory’ is deceptively named; the ‘something more’ that supposedly separates possession from ‘use’ is often illusory….[A] majority of the circuit courts interpreted ‘during and in relation to’ requirement very broadly, accepting as sufficient almost any relationship between the firearm and the predicate.”[66]

The predicate crime in such situations is often possession with intent to distribute, an inherently nonviolent crime. But the majority of courts, especially after the Smith decision, look “beyond the instant possession offense to future distribution, contingencies, or escape. Following Smith, the majority of circuit courts have continued to apply § 924(c) expansively in passive protection cases.”[67] This means that even if the crime itself is inherently nonviolent, the courts take Smith’s “potential of facilitating” language very literally, and will apply § 924(c) in a wide variety of cases that may violate the Second Amendment.

In one of the more absurd applications of § 924(c), Cosme Torres-Medina, “a paraplegic confined to a wheelchair…[who] has difficulty feeding himself” and who “could not access the tunnel below his house where the police found the firearm and drugs” was nevertheless found guilty of using “a firearm in relation to the commission of a narcotics offense.”[68]

ii. Emboldening

In emboldening cases, the prosecution’s theory is that the defendant “derive[ed] criminal fortitude from [the gun’s] proximity….In many cases, especially where the presence of the firearm is unknown to others and not discovered until after arrest, ‘emboldening’ is the only available theory of use.”[69] By definition, no one is harmed by the firearm in such cases. There existed only the possibility of harm, which, of course, never transpired.

Emboldening is also used to justify § 924(c) convictions in passive stash protection cases. As the Torres-Medina court reasoned, “A firearm may play a role in the offense simply by emboldening the defendant to act; the defendant need not have drawn his weapon or fired rounds.”[70] The Ninth Circuit further held that “a firearm may be considered available for purposes of § 934(c) if its physical proximity to the defendant at any time during the commission of the crime, or during arrest, supports the inference that it emboldened him to commit the underlying offense or to resist arrest. Whether such an inference is legitimately raised will depend on the circumstances of the individual case. We therefore decline to quantify the test in terms of feet, yards or miles.”[71] Miles!?! The Torres-Medina court admitted, “While we agree that the firearm must be available, we reject the notion that it must be readily available.”[72] If the purpose behind § 924(c) is to protect the public safety, it’s difficult to see how adding a five-year sentence where the drug dealer is a paraplegic whose gun could conceivably be miles away from him, or as it was in the case, in a crawlspace under the house, is going to promote public safety.

iii. Bartering Guns for Drugs

Arguably this is not a Second Amendment issue at all because the firearms aren’t being used for self-defense but rather merely as items of commerce. It would be like saying that a law that made it illegal to buy drugs with microphones violated the First Amendment. Except there are many ways to exercise free speech without using a microphone, while exercising one’s Second Amendment right without a firearm is much more difficult (it is “the right to keep and bear arms” after all). But for the exact same reason that the Second Amendment might not be implicated, the law is irrational. If the gun is not used for violence, why base a sentence enhancement on its use?

Even as a matter of public policy, this application of § 924(c) does little work (except to add time to sentences of those convicted of drug crimes). A person could buy cocaine with money, and then that seller could use that money to buy a gun. Such a cocaine deal itself is, of course, illegal, but § 924(c) would not apply. Increasing penalties for those who purchase drugs with guns, at most, will motivate the buyer to either use money or some other item to purchase the drugs. He could even sell his gun for cash and then use that cash to buy the cocaine. So this application of § 924(c) merely accomplishes that a drug dealer may have to go out and buy a gun with cash instead of with the drugs. Section 924(c) does little or nothing towards protecting public safety, nor does it really infringe on the right to bear arms, since the arms aren’t being used as a weapon. It only makes it slightly more inconvenient for a drug dealer to purchase firearms or for a cash-strapped gun owner to purchase drugs.

III. State Constitutional Cases Analyzing the Nexus Requirement

As Professor Eugene Volokh notes, “[S]ome of these novel Second Amendment questions aren’t novel right-to-bear-arms questions, because state courts have dealt with them under many of the 40 state constitutional provisions that clearly secure an individual right to keep and bear arms in self-defense.”[73] A state court might actually hold that enhancing the sentence of a paraplegic drug dealer with guns in his crawlspace violates his constitutional right to bear arms.

A. State v. Rupe

In State v. Rupe, the Washington Supreme Court held that introducing evidence of the defendant’s gun collection during the penalty phase of a capital punishment case was “irrelevant, prejudicial and violative of his due process rights.”[74] The court recognized “the well established rule that constitutionally protected behavior cannot be the basis of criminal punishment.”[75] The Court further held, “The State can take no action which will unnecessarily ‘chill’ or penalize the assertion of a constitutional right and the State may not draw adverse inferences from the exercise of a constitutional right.”[76] Even though the court acknowledged that “the right to bear arms is ‘subject to reasonable regulation by the state under its police power,’ ”[77] it held that the “[d]efendant was thus entitled under our constitution to possess weapons, without incurring the risk that the State would subsequently use the mere fact of possession against him in a criminal trial unrelated to their use.”[78]

However, Rupe might not be controlling in typical sentence enhancement cases where there is at least some nexus between the gun possession and the crime. Part of the court’s reasoning was that, “[t]he guns in question had no connection with the crime….[and] many nonviolent individuals own and enjoy using a wide variety of guns.”[79] But it is this chilling and penalizing the assertion of a constitutional right that makes certain § 924(c) cases problematic. If the nexus between the predicate crime and the firearm is too loose, the government is punishing the assertion of the constitutional right to bear arms. Even where there exists a loose connection, the right is often being chilled unconstitutionally. An otherwise law-abiding drug dealer might choose to not own firearms due to § 924(c)’s extreme penalties, and his constitutional right to protect himself and his family is chilled.

B. State v. Neff

State v. Neff[80] provides a good example of how state courts deal with firearm sentence enhancements where there is a relatively strong state constitutional right to keep and bear arms.[81]In Washington, a sentence enhancement is only available if the defendant was “armed” with a deadly weapon during the commission of a crime.[82] A person is “armed” if he can “easily access” and “readily use” a firearm, and a nexus connects him, the weapon, and the crime.[83] The Washington Supreme Court recognized that the nexus requirement is “critical” because “the State may not punish a citizen merely for exercising this right [to bear arms].”[84] The State may punish citizens for using weapons while committing crimes because a weapon can make nonviolent crimes violent one, and a weapon can facilitate the crime’s commission, help the criminal escape, and protect contraband.[85]

The court provided examples where sentence enhancements had been upheld: In State v. O’Neal, the defendant kept “over 20 guns, body armor, night vision goggles, and a police scanner” in his methamphetamine laboratory.[86]   The court upheld the sentence because the guns were “easily accessible” and the police scanner suggested that the defendant used guns to protect the drug manufacturing operation.[87] In State v. Eckenrode, the court upheld the conviction where the police found two weapons, only one of which was loaded, and, again, a police scanner.[88] However, in State v. Valdobinos, the court reversed the enhancement.[89] After the defendant was arrested for selling cocaine to an undercover officer, the police found cocaine and an unloaded rifle under his bed. The court held that “the jury could not infer from an unloaded rifle near the cocaine that the defendant was armed….[N]o evidence indicated the gun was in the house to protect the drugs, as indicated by the presence of loaded weapons and police scanners in O’Neal and Eckenrode.”

The majority believed that the presence of loaded guns and police scanners are important factors. In Neff, there was no police scanner, but the police did find “two loaded pistols in a safe, which also contained four bags of marijuana….a third pistol hanging from a tool belt in the garage’s rafters….[and] two security cameras and a monitor in the garage on which to view live feeds.”[90] Neff was not in his garage, but the court held that the “defendant does not have to be armed at the moment of arrest to be armed for purposes of the firearms enhancement because his drug operation was a continuing crime.”[91] Finally, the court held, “The State may not punish Neff for owning guns, for keeping them loaded, or for keeping them easily accessible. However, it could enhance his drug manufacturing sentence where it proved beyond a reasonable doubt that Neff used them to defend his drug operation.”[92]

The dissent thought Neff was not “armed” because he was not near the guns, nor were they easily accessible.[93] The dissent further noted that “no Washington court has held a gun in a safe is ‘easily accessible’ to a defendant….However, as we had previously held, a gun contained in a backpack behind the driver’s seat is not readily accessible.”[94] The dissent reasoned, “A citizen exercising his right to keep and bear arms has to keep the arms someplace—and what better place than locked in a safe or out of reach on a high rafter?…. [N]eff simply exercised his constitutional right to keep and bear arms.”

The dissent notes that the statute is meant to protect against “the danger an individual would actively brandish a weapon to facilitate a crime, not the inchoate risk of future use stemming from mere possession”[95] and that “the majority’s analysis leads to absurd results. Under its view Neff was ‘armed’ at all times, even while running errands around the city without his weapon at his side. He would be ‘armed’ in the majority’s view even if he spent a couple nights in jail for an unrelated misdemeanor….While the majority gives the constitutional right to bear arms lip service, it seems to do in fact what it eschews in principle: enhance a sentence merely because a gun is present at the scene of a crime.”[96] The dissent criticizes the majority for relaxing the “nexus” requirement, “requiring little more than constructive possession of a weapon,”[97] and states that “[a]n individual does not waive his right to bear arms simply because he may commit a criminal act.”[98]

This deeply divided opinion suggests that a few more sympathetic judges on the court could drastically strengthen the right to bear arms. Furthermore, Valdobinos demonstrates that when a constitutional right is at stake, the scrutiny may be stricter than rational basis or even reasonableness review. In pre-Heller § 924(c) cases, whether the gun in question is loaded or even working does not matter. Perhaps, post-Heller such facts will be part of the analysis. Unlike in Washington cases, courts in § 924(c) cases have held that the firearm does not have to be readily accessible.

IV. The Second Amendment and Strict Scrutiny

Pre-Heller, courts analyzed the nexus requirement by engaging in statutory interpretation to divine Congressional intent. Post-Heller, courts need to determine whether certain applications of § 924(c) violate the Second Amendment. Increasing punishments for those who brandish, discharge, or even threaten to use a firearm in furtherance of a crime does not violate the Second Amendment. Such applications of § 924(c) would easily pass constitutional muster, even if strict scrutiny were applied. The compelling interest would be public safety, and the law would be narrowly tailored to further that interest. Criminals who brandish or discharge firearms are almost by definition putting the public at risk. In most situations, brandishing or discharging a firearm is illegal with no underlying crime; whereas merely possessing a gun, especially in the home, is often protected by the Second Amendment.[99]

The Heller Court explicitly “decline[d] to establish a level of scrutiny for evaluating Second Amendment restrictions.”[100] But should strict scrutiny apply in Second Amendment cases? And if so, what would be the result?

A. Should Strict Scrutiny Apply?

Professor Adam Winkler writes, “[T]he Second Amendment’s individual right to bear arms is appropriately governed by a deferential, reasonableness review under which nearly all gun control laws would survive judicial scrutiny”[101] Winkler points out that “[n]o state courts apply strict scrutiny or any other type of heightened review to gun laws.”[102] Even so, a different standard could apply under the Second Amendment. Furthermore, even if state courts apply reasonableness review and federal courts do the same, it does not necessarily follow that they should.

While Heller never announced a standard of review, the majority’s numerous comparisons to the First Amendment suggest a heightened standard.[103] If strict scrutiny is not applied to the Second Amendment, almost any application of § 924(c) would be upheld. Extreme penalty enhancements for firearm possession may be bad public policy and overly oppressive, but they would most likely survive even intermediate scrutiny. But there are strong arguments that strict scrutiny should apply to the Second Amendment.

Winkler argues, “For evaluating an appropriate standard for judicial review of legislation, the textual difference between the [First and the Second Amendments] could not be starker. The First Amendment states ‘Congress shall make no law” abridging the individual rights it guarantees, whereas the Second describes the ‘necessity’ of a ‘well regulated’ Militia.”[104] I disagree. Textually, the Second Amendment is closer to the First Amendment than it is to, say, the Fourth Amendment. The First Amendment’s “shall make no law”[105] language seems very similar to the Second Amendment’s “shall not be infringed”[106] language. “A well regulated Militia” does suggest that some regulation is constitutionally permissible, but the phrase modifies “Militia,” or the collective right, not the individual right recognized in Heller.

As Professor Winkler observes, “Reasonableness review is used in one of the most important provisions of the Bill of Rights: the Fourth Amendment. This provision, which is so central to the protection of privacy rights, does not require that invasive laws be strictly scrutinized but only that invasions be reasonable.”[107] But the right found in the Fourth Amendment is “against unreasonable search and seizures.”[108] Reasonableness is written directly into the Amendment.

The famous footnote four of Carolene Products also suggests a higher standard of review for Second Amendment cases. Footnote four requires that a “ ‘more searching judicial inquiry’ is appropriate when it is a law that interferes with individual rights…or a law that discriminates against a ‘discrete and insular minority.’ ”[109]   Heller recognized that the Second Amendment protects an individual right. Moreover, at least some gun regulations have discriminated against minorities.

During the Reconstruction era, gun regulations were specifically written to disenfranchise African-Americans.[110] Even today, while the discrimination may not be so explicit, minorities and the poor are disproportionately represented in the criminal justice system. Section 924(c) is used to put “undesirables” in prison for long periods of time, even for life. The law has a disparate impact on minorities, even though this is allegedly not its purpose. “One in every nine black males in age group 20-24 is in prison or jail on any given day, and if the current trends continue, one of every three black males born today can expect to go to prison in his lifetime.”[111] Furthermore, mandatory minimums are not really mandatory if the defendant accepts a plea to a lesser charge, and “African American defendants are more likely to receive a mandatory minimum sentence and less likely to benefit from a substantial assistance or safety valve departure. The unchallenged discretion of the prosecutor makes it increasingly difficult to combat these inequities in sentencing.”[112] Section 924(c) is beginning to sound pretty darn invidious. Moreover, even though Heller seemed mainly concerned with the personal Second Amendment’s self-defense rationale, there is also the prevention-of-tyranny rationale. Any law whose goal is to stop citizens from preventing tyranny is surely invidious.

True, not all enumerated rights trigger strict scrutiny, and even those that do—such as the freedom of speech—do not do so always.[113] But, again, just because a law that infringes free speech does not trigger strict scrutiny does not mean that it shouldn’t. The same holds true for the Second Amendment.

B. Applying Strict Scrutiny to § 924(c)

Winkler further argues that “[e]ven under heightened scrutiny, most gun control laws could survive Second Amendment challenge.”[114] Maybe most, but sentence enhancements for mere possession cases would, or at least should, be invalidated under strict scrutiny. “Under strict scrutiny, a law will be upheld if it is necessary to achieve a compelling government purpose….This requires proof that the law is the least restrictive…alternative,”[115] Furthermore, “[u]nder strict scrutiny, the government has the burden of pro[ving]” that the law is the least restrictive alternative.[116]

Section 924(c), even applied to nonstandard uses of firearms, would likely meet the ends prong of the strict scrutiny test. There is a compelling interest to protect the public from gun violence. The question is whether such applications meet the means prong. Are these applications necessary to achieve the compelling government purpose?

When § 924(c) is applied to criminals who brandish or discharge firearms, the law is narrowly tailored to achieve the compelling interest of public safety. Even with nonstandard uses, the law is narrowly tailored in that it only applies to criminals with guns. But criminals do not engage in criminal activity 24 hours a day. And where the gun is never even brandished, the public has not been harmed. In hindsight, we know the firearm caused no harmed, because if it did, the defendant would be charged with a more serious crime. True, the law is meant to look prospectively and deter criminals from carrying guns. Some might argue that the law is like punishing drunk drivers who never actually hit someone with their car. But the proper analogy is that of punishing people for exercising their Twenty-First Amendment[117] right to drink alcohol because of the possibility that those people might get drunk, then drive a car and harm others.

If the government proved that the defendant actually intended to use the gun, but was unable to for some reason, that would pass constitutional muster. But § 924(c) applies whether or not the criminal ever intended to actually use (as opposed to “use”) the gun. Not only does the government have to prove the defendant actually threatened public safety, but also that § 924(c) actually furthered its intended goal. To prove that the law furthered its compelling interest, the government would have to demonstrate that the law deterred criminals from possessing firearms or motivated them to keep their firearms at home. Deterrence is extremely difficult to prove. The death penalty is most extreme penalty our country allows and therefore it should be the most effective form of deterrence. Yet studies are mixed as to whether the death penalty actually deters crime.[118] Furthermore, “[r]esearch suggests that any deterrent effect is more a function of the certainty of punishment, not the severity.”[119]

Extreme sentences may actually be creating future criminals. At the very least, extreme sentences are harming society. “While prison has had only a limited impact on crime, it is increasingly resulting in negative consequences for individuals, families, and communities. As a result of mass incarceration there are now 1.5 million children with a parent in prison, including 1 in 14 African-American children.”[120]

Deterrence assumes a criminal who not only knows the law, but rationally considers the law’s consequences when planning a crime. But let us assume the hyper-rational criminal who really weighs the costs and benefits of criminal decision making, and further assume that this criminal has already been convicted under § 924(c), therefore any additional conviction would carry a minimum mandatory sentence of 25 years. This criminal may rationally conclude that he is better off killing a witness to his crime because if he is caught, he is still likely to serve most, if not all, of his life, in prison. The Kennedy Court used this rationale—if child rapists could be sentenced to death, they would be more likely to kill their victims to avoid being caught.[121]

Moreover, allowing drug dealers to merely possess firearms without fear of sentence enhancements may actually deter violence. A person is less likely to rob a drug dealer if he fears that the drug dealer is armed. Section 924(c), at least in theory, decreases the risk that such a dealer will be armed, and therefore increases the risk that someone else will rob them. (The robber, of course, would be eligible for a sentence enhancement if he uses a firearm.)

Another justification for § 924(c) is that it incapacitates dangerous criminals. Even assuming that incapacitating those who carry, but do not actually use, firearms promotes public safety, the extreme sentence is not narrowly tailored. Most crimes are committed by relatively young men. Very few people in their seventies commit violent felonies. There is no need to incapacitate someone for 30, 55, 80, or 105 years. The ease of which nonviolent criminals can be convicted under § 924(c) further demonstrates the weakness of the incapacitation rationale. In reality, nonviolent criminals are no more dangerous than people who legally exercise their right to bear arms. Applying § 924(c) to criminals who do not brandish or discharge guns is narrowly tailored; it’s narrowly tailored to those who do not threaten public safety. Therefore, the law applied such a way does not pass strict scrutiny. In Part VIII, I propose a revision to § 924(c) that would tighten the nexus requirement and allow § 924(c) to constitutionally apply even in nonstandard use cases.

i. Strict Scrutiny Applied to Protecting Drug Stash Cases

In terms of constitutional rights, the home is often the most protected area. This is especially true in Fourth Amendment cases. But even in First Amendment cases, the home is given more protection. For instance, while an individual cannot sell obscene material, he may possess it in the privacy of his home.[122] Privacy in the home can even trump the First Amendment in some case. For example, the Supreme Court upheld a law such that prohibits targeting protesting at a person’s home.[123] Giving the home special protection in the Second Amendment context makes sense. Some states have already expanded, under the “castle doctrine,” permissible uses of a gun to protect the home.

In his post-Heller appeal, Angelos argued, “Especially germane to this case…are the Supreme Court’s important and repeated pronouncements in Heller that (1) the home is an especially important locus for the exercise and protection of Second Amendment rights, and (2) unique constitutional difficulties are presented by even just the threat of severe criminal sanctions impeding the exercise of Second Amendment rights.”[124] The Heller Court held “that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense”[125] and recognized that “[t]he prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to “keep” and use for protection of one’s home and family,’ would fail constitutional muster.”[126]

Furthermore, if a criminal keeps his gun at his home, there is little risk to society at large. The only people who need to fear this gun are those who anger the drug dealer in his home (including police). Of course, protecting police is a valid concern, but a criminal who is willing to shoot it out with police will probably not be deterred by § 924(c) from keeping guns in his home. Furthermore, luring a criminal out of his house and away from his firearms is not difficult. In fact, in many of these cases, the criminal is arrested miles away from the guns. Moreover, a rational criminal who thought § 924(c) actually deterred drug dealers from keeping guns at their home would be tempted to commit a home-invasion robbery on the defenseless dealer. Guns at the home of a drug dealer may actually deter crime.

ii. Strict Scrutiny Applied to Emboldening Cases

To convict a defendant under the emboldening theory in a way that does not violate the Second Amendment the government should be required to prove that but for the possession of a gun or its nearby proximity, the defendant would not have committed the underlying crime. Or at the very least, the government should need to prove beyond a reasonable doubt that the criminal was more likely to engage in the underlying crime because he was emboldened to do so by the firearm. The government could accomplish this by proving that the defendant intended to use the gun to become emboldened. If the government cannot prove that, then the statute is not being narrowly tailored to the purpose of promoting public safety.

Some would argue that even if the criminal would commit the crime with or without the gun, adding the gun to the mix creates the potential of violence. When applied to cases that are only potentially, § 924(c) is not narrowly tailored. Guns always create the potential for violence; that is precisely why they are useful for self-defense. Criminals have the right not to be killed and to engage in self-defense. If a drug dealer fought off a would-be robber, he could claim self-defense. So why not allow the drug dealer to use a firearm, which in some situations, would be the only effective form of self-defense? By punishing mere possession, the government is penalizing and chilling the assertion of a constitutional right.

c. Strict Scrutiny Applied to Bartering Guns for Drugs Cases

As noted above, this is not really a Second Amendment issue because guns in bartering cases are not being used for self-defense, or even as weapons. Heller is not much help here since it states, “The Court’s opinion should not be taken to cast doubt on…laws imposing conditions and qualifications on the commercial sale of arms.”[127] Surely, a permissible condition and qualification is that the firearms are not paid for with drugs. Nevertheless, adding years on top the sentence for the underlying drug transaction is really just punishing the gun transfer in an arbitrary and irrational way.

VI. Comparing the First Amendment With Second Amendment

The Heller Court compares the First Amendment to the Second Amendment numerous times. It compared the use of the words “the people” in both Amendments.[128] It stated, “Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”[129] It held that both rights are not unlimited,[130] and that both Amendments (as well as the Fourth Amendment) “codified a pre-existing right.”[131] Those are just a few of the comparisons, which show that the Court views the Second Amendment as being very similar to the First Amendment.

Comparisons to the First Amendment may not be all that protective of the Second Amendment right. For example, obscenity has been held to be completely outside the scope of the First Amendment even though it causes little actual harm. Even an extremely attenuated use of a firearm in relation to a crime is more likely to result in harm than obscene books or films.

In terms of sentence-enhancing, one would likely look to the Supreme Court’s decision in Wisconsin v. Mitchell, which held that sentence enhancements based on hate speech do not violate the First Amendment. Part of the reasoning was that such a law would not chill free speech. “The sort of chill envisioned here is far more attenuated and unlikely than that contemplated in traditional ‘overbreadth’ cases. We must conjure up a vision of a Wisconsin citizen suppressing his unpopular bigoted opinions for fear that if he later commits an offense covered by the statute, these opinions will be offered at trial to establish that he selected his victim on account of the victim’s protected status, thus qualifying him for penalty enhancement.”[132] The vision that the Supreme Court says it must conjure up is not as unlikely or attenuated as the Court seems to believe. A racist who feared being accused of a hate crime may very likely decide not to engage in racist speech if he knew that such speech could be used against him in a future trial. This would be true even if the person never committed a hate crime, but merely feared being charged with one.

Similarly, someone who sold marijuana, even if he would never use a gun to further his crimes, might decide to never carry a gun or keep one in his house out of fear of being charged under § 924(c).   Because § 924(c) sentences are so harsh and must be served consecutively, innocent people will likely plead guilty to avoid the risk of decades in prison. The longer the sentence, the more likely an innocent person will plead guilty. The Angelos case is a good example. He claimed he wasn’t carrying a gun during the controlled buys, but after the government threatened to charge him with five § 924(c) counts mandating 105 years, he wanted to plead guilty. But the government wouldn’t let him.

As Ryan S. King, a Policy Analyst for the Sentencing Project testified, “Plea bargaining also reduces the likelihood that issues of innocence or misconduct by law enforcement during arrest will receive an airing before the court….However, in order to litigate any of the aforementioned issues, a defendant frequently must decide to forego an offer of a plea bargain and face a potentially more severe mandatory sentence in order to pursue his or her constitutional right to trial.”[133]

Not only are issues of innocence and misconduct not given their day in court, but so are constitutional issues. If a defendant pleads guilty out of fear of an extreme sentence, he may never have a chance to litigate whether the law as applied to him was even constitutional. It is in these nonstandard uses cases where the defendant is more likely to be actually innocent of the § 924(c) charge. Juries may find that the firearm was used in furtherance of a crime, even though it really wasn’t. All of this serves to chill the exercise of the Second Amendment.

Section 924(c) is specifically meant to chill a criminal’s Second Amendment right. The law’s purpose was “to persuade the man tempted to commit a Federal felony to leave his guns at home.” And, of course, even leaving his guns at home can trigger § 924(c), so the Second Amendment’s right to defend the home is also chilled. A drug dealer might not plan his deals in advance, but only sell drugs about town if the opportunity arises. Such a dealer, to be free from § 924(c), would have to never be armed. Drug dealers are probably more likely to be the victims of violent crimes both at home and on the street. The government would say that protecting drugs with a gun is exactly what § 924(c) is trying to prevent. But don’t criminals have a right to protect themselves? Taking away a criminal’s right to bear arms could result in an extrajudicial death sentence.

There is a better First Amendment case than Wisconsin v. Mitchell or the line of obscenity cases to use to understand the Second Amendment. That case is Brandenberg v. Ohio, which held that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”[134]

Under Brandenberg, the settled standard for speech that advocates unlawful activity, the Court created an extremely strict test for when such speech could be punished. The speaker must intentionally incite others to commit imminent unlawful acts, and the speech must be likely to do so. Some speech may actually incite lawful activity in the future and it would still be protected, even if it is likely to do so. And speech that could but is not likely to incite imminent illegal activity also cannot be punished. While the analogy is not perfect, in the Second Amendment context, the harm should be likely. Discharging a gun or even brandishing a gun is not only likely to cause harm but does cause some harm, even if no one is physically hurt. But is merely possessing a gun likely to cause harm? After the fact, the answer is obviously no. But like in Brandenberg situations, we have to look at the point at which the crime occurs.

In Part VIII, I propose a revision to § 924(c) to make it comport with the Second Amendment. I suggest the law should be rewritten to incorporate a Brandenburg-type standard, where the government must prove that the defendant intended to use the gun in a way that would cause imminent harm and that it be likely to do so. If the government cannot prove these elements of the crime, then the law is not narrowly tailored to those cases that would further the goal of public safety.

VII. Are Criminals Completely Outside the Scope of the Second Amendment?

Instead of apply strict scrutiny, a court may decide that people who engage in criminal activity have waived their Second Amendment rights altogether. Just as a court might hold that felons or mental defectives are categorically outside the scope of the Second Amendment, a court might hold that criminals, too, forfeit their Second Amendment rights. The Heller Court stated, “Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.”[135] This is disturbing language. This is not saying that certain uses of firearms are outside the scope of the Second Amendment, for example, using guns to rob a bank, but rather that certain citizens can be totally “disqualified” from exercising their Second Amendment rights. This differs greatly from First Amendment jurisprudence. A court would likely never say that a citizen is completely disqualified from the exercise of the First Amendment, but rather courts have held that certain categoriesof speech (not people) are not protected.

Disqualifying categories of citizens from exercising a fundamental right is nothing new. Felons are disqualified from exercising the fundamental right to vote, as were African-Americans and women at one time.[136] One justification for denying felons the right to vote is that the Fourteenth Amendment seems to allow for this.[137] But there is no textual equivalent found in the Second Amendment. The right is a “right of the people.” In U.S. Verdugo-Urquidez, Justice Rehnquist wrote, “ ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by ‘the People of the United States.’ The Second Amendment protects ‘the right of the people to keep and bear Arms,’ and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to ‘the people.’ See also U.S. Const., Amdt. 1 (‘Congress shall make no law … abridging … the right of the people peaceably to assemble’) (emphasis added); Art. I, § 2, cl. 1 (‘The House of Representatives shall be composed of Members chosen every second Year by the People of the several States’) (emphasis added). While this textual exegesis is by no means conclusive, it suggests that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”[138]

Rehnquist, not surprisingly, was using this reasoning to show that Mexican citizens who reside in Mexico are not “people” for Fourth Amendment purposes. Even so, Heller itself makes much of the Second Amendment’s “the people” language and even quotes the above passage from Verdugo-Urquidez.[139] Heller recognized, “In all six other provisions of the Constitution that mention ‘the people,’ the term unambiguously refers to all members of the political community, not an unspecified subset.”[140]

Criminals, of course, are people and “part of a national community.” Criminals do not forfeit their Fourth Amendment rights; in fact, they are usually the ones who have standing to assert them. Similarly, criminals maintain their First Amendment rights of free speech and free exercise of religion. Therefore, criminals should not automatically shed their Second Amendment rights either.

VIII. A Proposed Revision of § 924(c) to Cure Second Amendment Concerns

Assuming that strict scrutiny applies to laws that regulate the right to bear arms and that criminals are not completely outside the scope of the Second Amendment, the following is a proposed revision of § 924(c) to make it constitutional. The proposed additions are in bold, with the proposed deletions indicated by strikethrough.

18 U.S.C. § 924(c)(1)(A) …[A]ny person who, during and in relation to any crime of violence or drug trafficking crime…actually uses or carries a firearm, or who, with the specific intent of using that firearm as a weapon in furtherance of any such a crime, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime be sentenced to a term of imprisonment of not less than 5 years….

The proposed revision also has the language “as a weapon” to eliminate the absurd applications of § 924(c) such as bartering drugs for guns, using the gun to scratch an itch, or using the gun handle to break a window. But the most important change is, of course, the addition of the “specific intent” language. If a criminal discharges, brandishes or even threatens to use the firearm, his specific intent to use that gun in furtherance of a crime is easily proven. However, if the criminal merely possesses the firearm on his person or at his home, then the prosecution must prove beyond a reasonable doubt that he possessed the gun with the specific intent using it to further a crime. In emboldening scenarios, the prosecution must prove that the defendant actually intended for the firearm to embolden him to commit the crime. And in passive protection of narcotics cases, the prosecution carries the burden of demonstrating that the defendant actually kept his guns where he did with the specific intent of using them to protect his drug stash.

Without requiring proof of specific intent, the right to keep and bear arms would be unconstitutionally chilled. This change is similar to the Brandenburg standard in advocacy of illegal activity cases. There, the prosecution must prove that the defendant intended to incite unlawful activity. Here, too, the prosecution must prove intent. Brandenburg also requires that the advocacy is intended to incite imminent unlawful activity, and that it is likely to do so. While I did not explicitly include “imminence” or “likelihood” language, the imminence requirement is represented by the “during” language. So, for example, even if the prosecution could prove that the defendant kept a gun with the specific intent of using it as a weapon in furtherance of a crime, but only for some future crime, § 924(c) would not apply. And because the firearm is required to be “actually” used during and in relation to a crime in furtherance of that crime, the furtherance is not only likely, but actual. (The physical harm itself does not have to be actual, only likely due to the actual use.)

Even as a matter of public policy, this revision is an improvement in terms of deterrence. It is not so much that we want to deter the criminal from keeping or carrying firearms, but rather we want to deter the criminal from using the firearms in furtherance of his crime. If a drug dealer is in possession of a gun, and the police stop him, there’s not much to deter him from further using the gun to escape, especially if his mere possession is a second offense with a 25-year mandatory minimum. However, if the criminal is approached by police, and he has no fear of an enhancement unless he actually uses his firearm, then he will be more likely not to actually use it.

This standard admittedly provides even stronger rights to keep and bear arms than any state. For example, in Washington state, it is enough to show that the gun was easily accessible and readily available for defensive or offensive purposes to allow for a sentence enhancement. I would require that not only was the gun easily accessible and readily available, but also that the defendant actually intended to use the gun in furtherance of a crime.

IX. The Eighth Amendment Meets the Second Amendment

If convictions based on a weak nexus, like Angelos’s, are not reversed due to the Second Amendment, extreme sentences under § 924(c) could possibly be reduced due to the Second Amendment’s affect on the Eighth Amendment. The Eighth Amendment of the Constitution reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Courts have held that excessive sentences violate the Eighth Amendment’s Cruel and Unusual Punishments Clause.

Even Judge Cassell, the trial judge in the Angelos, believed that the sentence he imposed was excessive, yet he still imposed it. Mandatory minimum sentences tend to only lengthen because it’s always easier for politicians to increase sentences rather than decrease them, and § 924(c) is no exception. These sentences are therefore more and more likely to be excessive. As Judge Cassell observes, “There’s a kind of ratchet effect where the Republicans will say, ‘We want a five-year mandatory minimum sentence,’ and the Democrats will say, ‘We’ll up you, we want a 10-year mandatory minimum sentence,’ and you have people ratcheting up sentences to the point where any reasonable observer would think we’ve gone too high, but there’s no political incentive to undo the mischief.”[141] But is this “mischief” unconstitutional?

A. The Eighth Amendment Analysis in Angelos, Pre-Heller

In Lockyer v. Andrade,[142] the Supreme Court recognized that Justice Kennedy’s concurrence in Harmelin v. Michigan[143] provides the correct proportionality analysis when it comes to determining if a sentence violates the Eight Amendment. Justice Kennedy provided three factors: 1) the nature of the crime and its relation to the punishment imposed; 2) the punishment for other offenses in the same jurisdiction, and 3) the punishment for similar offenses in other jurisdictions.

Judge Cassell applied these three factors to Angelos’s sentence and held that they all favor an Eighth Amendment violation. Unfortunately, the analysis did not end there, especially given how “unjust, cruel, even irrational” Cassell considered the sentence he imposed. Cassell decided that Tenth Circuit and Supreme Court precedent requires him to rule that the 55-year sentence is not unconstitutional: “In Hutto v. Davis, the Supreme Court held that two consecutive twenty-year sentences—totaling forty years—for possession of nine ounces of marijuana said to be worth $200 did not violate the Eighth Amendment. If Davis remains good law, it is hard [to] see how the sentence in this case violates the Eighth Amendment….[I]f 40 years in prison for possessing nine ounces [of] marijuana does not violate the Eighth Amendment, it is hard to see how 61 years for distribution sixteen ounces (or more) would do so.”[144]

The obvious response is that 40 years in prison for possessing nine ounces of marijuana is not “good law.” If this is not excessive punishment, it is difficult to imagine what would be considered excessive punishment using Kennedy’s proportionality analysis.[145] Or as Angelos argues, “[A] jurisprudential line must be drawn beyond where some ‘extraordinary case’ exists in which an extreme prison sentence is found to be constitutionally excessive. If the case of Weldon Angelos does not cross such a line, then that line is illusory.”[146]

On appeal, the Tenth Circuit applied the Harmelin factors, but unlike Judge Casell, it held that “the first, and controlling, ‘factor’ in Harmelin, i.e., whether the sentence at issue is grossly disproportionate to the crime, has not been satisfied.”[147] The court reasoned that the Eighth Amendment contains a “narrow proportionality principle,” meaning that “the Eighth Amendment does not require strict proportionality between crime and sentence,” but rather “it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.”[148]

The Court noted that, “Although the Supreme Court has reviewed Eighth Amendment challenges to a number of state and federal sentences, it has struck down only two of them over the past century.”[149] In 1910, the Supreme Court invalidated a sentence of fifteen years in chains and at hard labor for the crime of falsifying a public document.[150] And in 1983, the Court held that a life sentence without the possibility of parole for a nonviolent recidivist who wrote a bad check violated the Eighth Amendment.[151] Actually the Court did strike down a sentence for being excessive under the Eighth Amendment in at least one other case: In Robinson v. California, a 1962 case that held that a 90-day jail sentence for being addicted to narcotics violated that Eighth Amendment, Justice Potter Stewart famously wrote, “Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.”[152]

The Tenth Circuit stated, “The Supreme Court has noted that the ‘basic purpose’ of § 924(c) is ‘to combat the “dangerous combination” of “drugs and guns.” ’ ”[153] The Court concluded that the sentence is therefore not “grossly disproportionate” because “the lengthy sentences mandated by § 924(c) were intended by Congress to (a) protect society by incapacitating those criminals who demonstrate a willingness to repeatedly engage in serious felonies while in possession of firearms, and (b) to deter criminals from possessing firearms during the course of certain felonies.”[154] But as argued above, the deterrence and incapacitation rationales in cases such as Angelos’s are extremely weak.

B. The Eighth Amendment Analysis in Angelos, Post-Heller

Even assuming Angelos’s sentence was not “grossly disproportionate” pre-Heller, such a sentence could be deemed unconstitutionally excessive post-Heller. Currently, Angelos’s lawyers are arguing that “because Eighth Amendment review is informed by society’s ‘evolving standards of decency’ as to what constitutes ‘cruel and unusual punishment,’ an evolved understanding of the Second Amendment’s broad protection of an individual’s right to possess firearms as developed in Heller directly impacts the 55-year sentence imposed on Angelos, which consists almost entirely of 18 U.S.C. § 924(c) counts for gun possession. Simply put, Angelos’s ultimate sentence was enhanced by many decades based on his efforts to ‘keep and bear arms.’ ”[155]

In reality, the Tenth Circuit judges would very likely rule that Heller would have no affect on their reasoning. According to them, the sentence would still not be grossly disproportionate, even though it now involves a constitutional right. However, the Heller decision might have made the difference for Judge Cassell, and it might make the difference for other judges in similar cases. Judge Cassell obviously thought Angelos’s case was a borderline one. He even held that the sentence failed Kennedy’s proportionality analysis. He only upheld the sentence due to precedent. If, however, he could have distinguished the precedential cases from Angelos because those cases did not involve a constitutional right, those cases would not have been precedential, and Angelos’s sentence might have been reduced to comport with the Eighth Amendment (as influenced by the Second Amendment).

The same year that Heller was decided, the Supreme Court decided Kennedy v. Louisiana, an Eighth Amendment case where the Court held that a death sentence for the aggravated rape and torture of a child would be excessive punishment unless the crime resulted in the victim’s death.[156] If Angelos serves out his 55 year sentence, he will likely serve life in prison. As the Judge Casell observed, Angelos won’t be released until he is 77 years old, and the average life expectancy for males in the United States (disregarding that prison conditions might hasten a person’s death) is only 74 years.[157] Therefore, in effect, Angelos will receive the same punishment as someone who rapes and tortures, but does not kill, a child.

In Justice Alito’s dissent in Kennedy, he observes that “a previously convicted child rapist [who] kidnaps, repeatedly rapes, and tortures multiple child victims” can now only receive life in prison, while a defendant who acts recklessly while robbing a convenience store and watches his accomplice kill the store owner can receive the death penalty.[158] But this argument also cuts the other way: A petty marijuana dealer who merely possessed a gun should not receive what, in essence, is the same sentence (life in prison) as that of “a previously convicted child rapist [who] kidnaps, repeatedly rapes, and tortures multiple child victims,” especially now that the activity Angelos was convicted of is arguably protected by the Constitution, unlike the crimes in Harmelin, Davis, and Kennedy.

Heller’s recognition of the right to self-defense alters the analysis of the first Harmelin factor—whether the sentence at issue is grossly disproportionate to the crime. The “crime” of keeping a gun in the home is arguably now less serious, even in relation to drug trafficking. Perhaps exercising a constitutional right is more like the catching a common cold than a serious crime worthy of a de facto life sentence. The sentence should be accordingly less severe.

In Trop v. Dulles, Chief Justice Earl Warren wrote the oft-quoted sentence, “The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”[159] The standards of decency regarding the Second Amendment are indeed evolving. The Kennedy Court noted, “In these cases the Court has been guided by ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice.”[160] The Court also cited Enmund v. Florida, where the court considered “historical developments of the punishment at issue, legislative judgments, international opinion, and the sentencing decisions of juries have made” as objective indicia of society’s evolving standards.[161] Unlike in death penalty cases, juries in § 924(c) cases don’t decide the actual sentence, but some ethical prosecutors have refused to charge the defendant under § 924(c) because the mandatory sentences would be excessive.

As for legislative judgments, most states do not have as harsh a penalty for using a gun in furtherance of a crime. This is one reason for Project Exile—to send the cases where Congress has made the punishments extremely harsh. In Atkins, where the Supreme Court held that executing the mentally retarded violated the Eighth Amendment, the Court made much of the direction of legislative change: “It is not so much the number of these States that is significant, but the consistency of the direction of change. Given the well-known fact that anticrime legislation is far more unpopular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal.”[162]

Unless Heller’s recognition of an individual right to keep and bear arms is purely symbolic, it will serve to decriminalize certain firearm-related conduct. The decision, of course, is not 100% symbolic because it suddenly made legal what was once illegal under the District of Columbia’s firearms laws. Therefore, this is an example of the Court itself being easier on crime. And so long as the recently enacted state constitutional rights are not purely symbolic, they too would be going in a less-tough-on-crime direction, and no state has recently repealed its right to bear arms provision.

Of the 44 states that have a state constitutional right to bear arms, many of them have been enacted or strengthened relatively recently.[163]   Since 1978, twelve state’s have amended “their constitutions to add protections for the individual right to bear arms.”[164] Each state amends its constitution differently, but presumably they are all done by the will of the people, often by a supermajority of either the people or the legislature. Although state constitutions are easier to amend than the U.S. Constitution, a change in a state constitution, especially if it is harder to enact than a statute, indicates how important the people consider the measure. Thus, while courts often look to legislative enactments as one of the best objective indicia of the evolving standards of decency, a court should look at a state constitutional amendment as even more powerful indicia of the evolving standards of decency.

In terms of some legislative enactments, divining the evolving standards of decency regarding firearms is difficult. For example, “[s]ince 1990, twenty-nine states have passed legislation permitting the concealed carrying of firearms and a total of thirty nine states now have such laws.”[165] This suggests an expansion of the right to bear arms. However, tough-on-crime statutes like the ever-harsher § 924(c) suggest that the right, at least for those who commit crimes, may be contracting.[166]

The direction and growing quantity of legal scholarship also suggests that standards of decency are evolving. “Among legal scholars, the Second Amendment…has received ever-increasing attention over the last decade [from 1985 to 1995].”[167] “Virtually all of the scholarship of the last 20 years [1975 to 1995] concurs that the Second Amendment was originally intended to guarantee an individual right.”[168] This scholarship may have even paved the way for Heller itself. Forty years ago most people assumed that the Second Amendment was a collective right for militias. Now, relatively suddenly, many scholars and five members of the Supreme Court have recognized an individual right to bear arms.

“The inquiry does not end there, however,” the Court notes, “Consensus is not dispositive. Whether the death penalty is disproportionate to the crime committed depends as well upon the standards elaborated by controlling precedents and by the Court’s own understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose.”[169] The Supreme Court looks to its own understanding and interpretation of the Eighth Amendment’s application to the crime in question. “[I]t is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty….We turn, then, to the resolution of the question before us, which is informed by our precedents and our own understanding of the Constitution and the rights it secures.”[170]

In Heller, the Supreme Court just created a precedent for at least one aspect of the crime in question—individuals possessing firearms—based on “its own understanding of the Constitution and the rights it secures.” And Kennedy itself created another precedent—one about excessive punishment, based on “its own understanding of the Constitution and the rights it secures.” Now is the time to use these precedents and decide that a de facto life sentence for passive gun possession related to petty drug dealing is excessive and violates the Eighth Amendment.

If Angelos’s sentence does violate the Eighth Amendment, how excessive a punishment is too excessive? A bright line rule such as no death penalty for rapists who do not kill their victims is easy to apply, but if we agree that some sentence enhancement is allowable so long as it is not excessive, where do we draw the line? Perhaps the enhancement should be tied to the punishment of the underlying crime. If selling marijuana can get you five years, then carrying a gun while dealing, at most, add another five years. Some might argue that while selling drugs is not dangerous, adding a gun to the equation suddenly makes a non-dangerous offence dangerous and the whole is greater than the sum of the two crimes. But enhancements for repeat offenders could be five or more times the punishment for the underlying crime. In nonstandard use cases, where the gun is not brandished or discharged, this seems unconstitutionally excessive. The punishment should be tied to the moral culpability of the defendant and the harm caused by his actions, not based on weak deterrence and incapacitation arguments. Currently, the government does not have to prove that the defendant actually intended to use the firearm in furtherance of a crime. And in nonstandard use cases, the harm is only potential harm that never transpired. As Judge Cassell suggests, Congress should change § 924(c) to allow for 25-year multiple sentences to apply only to true recidivists. Furthermore, judges should be given the discretion over whether the § 924(c) sentences run consecutively or concurrently to each other and to the underlying crime. The length of the sentences themselves should be discretionary, not mandatory.

Conclusion

Heller announced that the people have an individual right to keep and bear arms. Even criminals should have this right, so long as they don’t intend to actually use the firearm to further the predicate crime (with a narrow definition of “use”). Laws like § 924(c) that punish citizens for possessing firearms with only an attenuated relationship to a crime are not only bad public policy, but, because they chill and penalize the exercising of a constitutional right and are not narrowly tailored to further a compelling interest, they are also unconstitutional. Even assuming such laws are not invalidated by the Second Amendment, overly harsh penalties in firearm cases, like those found in Angelos, violate the Eighth Amendment’s prohibition against excessive sentences. Or, as Judge Cassell writes in his Angelos opinion, Angelos’s 55-year sentence under § 924(c) is “cruel, unjust, and even irrational.” Now that Heller has recognized an individual right to bear arms, perhaps courts will rightly reverse convictions like Angelos’s or, at the very least, greatly curtail such sentences. Not to do so is cruel, unjust, irrational, and unconstitutional.

[1] U.S. v. Angelos, 345 F.Supp.2d 1227, 1230 (D. Utah 2004).

[2] Id.

[3] Id. at 1246.

[4] Id. at 1231.

[5] Id. The police also searched Angelos’s girlfriend’s apartment and found cash, two more guns and duffle bags with marijuana residue. Id.

[6] 18 U.S.C. § 924(c)(1)(A)(i) & (C)(i).

[7] § 924(c)(1)(D)(ii).

[8] The five § 924(c) counts “consisted of two counts for the Glock seen at the two controlled buys, one count for three handguns found at [Angelos’s] home, and two more counts for the two guns found at the home of Mr. Angelos’ girlfriend.” Angelos, F.Supp.2d at 1231.

[9] Id.

[10] Id. at 1230.

[11] Id. at 1230-31.

[12] D.C. v. Heller, 128 S.Ct. 2783 (2008).

[13] Kennedy v. Louisiana, 128 S.Ct. 2641 (2008) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).

[14] Smith v. U.S., 508 U.S. 223 (1993).

[15] D.C. v. Heller, 128 S.Ct. 2783, 2817 (2008).

[16] Id. at 2787.

[17] Id. at 2821-22.

[18] Id. at 2818 n.27 (“[T]his law [which the Court invalidated], like almost all laws, would pass rational-basis scrutiny.”)

[19] Id.

[20] See, e.g., Adam Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683 (2007).

[21] Heller, 128 S.Ct. at 2821 (citing Nat’l Socialist Party of Am. v. Skokie, 432 U.S. 43 (1977) (per curium).

[22] Heller, 128 S.Ct. at 2816-17. Presumably, Scalia accepts these prohibitions because they are “longstanding.”

[23] Id. at 2817 n.26.

[24] Libby’s sentence was commuted so he never served any time, but he still has a felony conviction.

[25] Id. at 2816 (citing Near v. Minnesota, 283 U.S. 697 (1931)).

[26] E.g., compare Katz v. U.S., 389 U.S. 347 (1967) (holding that the Fourth Amendment protected privacy, not just property, and applied to conversations in a phone booth) with U.S. v. Leon, 468 U.S. 897 (1984) (creating a “good faith” exception to exclusionary rule).

[27] Brandenberg v. Ohio, 395 U.S. 444 (1969) (per curiam).

[28] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (students have the right to wear black armbands to school in protest of the Vietnam War).

[29] See, e.g., Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) (mildly lewd speech at school assemblies can be punished); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) (school officials can censor student newspapers); Morse v. Frederick, 127 S.Ct. 2618 (2007) (schools can suspend students who display banners at school-sponsored events that read, “BONG HiTS 4 JESUS”).

[30] State v. Neff, 181 P.3d 819, 830 (Wash. 2008).

[31] Heller, 128 S.Ct. at 2821 (emphasis added).

[32] Section 922(g) prohibits felons, fugitives, mental defectives, drug users, drug addicts, illegal aliens, dishonorable discharges, U.S. citizens who have renounced their citizenship, those subject to a restraining order, or those who have been found guilty of misdemeanor domestic violence to ship, transport, receive, or possess firearms and ammunition. 18 U.S.C. § 922(g)(1)-(9).

[33] John Reichmuth & Shawn Halbert, Defending Federal Firearm Cases, available at http://www.fd.org/pdf_lib/Halbert_Trial_gun_outline.pdf.

[34] Wikipedia, http://en.wikipedia.org/wiki/Project_Exile (last visited Dec. 12, 2008).

[35] 18 U.S.C. § 3624(b). Federal prisoners can only earn 54 days per year for good behavior. Id.

[36] U.S. v. Angelos, 345 F.Supp.2d 1227, 1233 (D.Utah 2004) (citing H.R.Rep. NO. 90-1577 at 1698, 90th Cong., 2d Sess., 7 (1968), 1968 U.S.C.C.A.N. 4410, 4412).

[37] 114 Cong. Rec. 22, 231-48 (1968) (Statement of Rep. Poff).

[38] Angela LaBuda Collins, Note, The Latest Amendment to 18 U.S.C. § 924(c): Congressional Reaction to the Supreme Court’s Interpretation of the Statute, 48 Cath. U. L. Rev. 1319 (1999).

[39] Thomas A. Clare, Note, Smith v. United States and the Modern Interpretation of 18 U.S.C. § 924(c): A Proposal to Amend the Federal Armed Offender Statute, 69 Notre Dame L. Rev. 815, 823 (1994).

[40] Clare, supra note 39, at 824.

[41] Id.

[42] 18 U.S.C. § 924(c)(1)(D)(ii).

[43] Clare, supra note 39, at 826.

[44] Id.

[45] Id. at 825-26.

[46] U.S. v. Stewart, 779 F.2d 538, 539 (9th Cir. 1985)).

[47] Clare, supra note 39, at 827 (citing Smith v. U.S., 508 U.S. 223 (1993); U.S. v. Garrett, 903 F.2d 1105, 1111 (7th Cir.), cert. denied, 498 U.S. 905 (1990) and others).

[48] U.S. v. Evans, 995 F.2d 891 (D.C.Cir. 1989), cert. denied, 494 U.S. 1019 (1990).

[49] Clare, supra note 39, at 828.

[50] Id.

[51] Smith v. U.S., 508 U.S. 223, 246-47 (1993) (Scalia, J., dissenting) (internal citations and quotes omitted).

[52] Smith v. U. S., 508 U.S. 223 (1993).

[53] Id. at 226-27. (quoting § 924(c)(1) “[I]f the firearm is a machinegun, or is equipped with a firearm silence,” the sentence is “thirty years.”)

[54] Id. at 242 (Scalia, J., dissenting).

[55] Id. at 232.

[56] Even the dissent does not take the example to this extreme and agrees that while scratching an itch would be “use,” it would not be “during and in relation to” the crime. But the dissent does think that if a robber used a gun handle to break a window, he now could be held to violate § 924(c) under the majority’s reasoning. Id. at 243 n.2 (Scalia, J., dissenting).

[57] Id. at 237.

[58] Id. at 238 (citing U.S. v. Stewart, 779 F.2d 538, 539 (9th Cir. 1985)).

[59] Id. at 238 (citing Stewart, 779 F.2d at 540) (emphasis added).

[60] Id. at 239 (quoting U.S. v. Harris, 959 F.2d. 246, 262 (per curiam)).

[61] 893 F.2d 1404 (D.C. 1990) (per curium), cert. denied, 498 U.S. 893 (1990).

[62] Id. at *2.

[63] Clare, supra note 39, at 838. (citing U.S. v. Pace, 10 F.3d 1106, 117 (5th Cir. 1993)).

[64] U.S. v. Acosta-Cazares, 878 F.2d 945, 951-52 (6th Cir. 1989), cert. denied, 493 U.S. 899 (1989).

[65] Michael J. Riordan, Using a Firearm During and in Relation to a Drug Trafficking Crime: Defining the Elements of the Mandatory Sentencing Provision of 18 U.S.C. § 924(c)(1), 30 Duq. L. Rev. 39 (1991) (citing U.S. v. Wilson, 884 F.2d 174, 177 (5th Cir. 1989)).

[66] Clare, supra note 39, at 838.

[67] Id. at 844.

[68] U.S. v. Torres-Medina, 935 F.2d 1047, 1048 (9th Cir. 1991).

[69] Clare, supra note 39, at 845.

[70] Torres-Medina, 935 F.2d at 1050 (citing U.S. v. Stewart, 779 F.2d 538, 540 (9th Cir. 1985)).

[71] Torres-Medina, 935 F.2d at 1050 (emphasis added).

[72] Id. at 1049 (emphasis added).

[73] Eugene Volokh, Volokh Conspiracy, available at http://volokh.com/posts/1215651727.shtml.

[74] 683 P.2d 571, 594 (Wash. 1984).

[75] Id. at 595.

[76] Id. The court cites numerous cases to support this proposition: “United States v. Jackson (capital punishment provision of Federal Kidnapping Act unconstitutionally chilled Fifth Amendment right not to plead guilty and Sixth Amendment right to demand jury trial); State v. Frampton (previous Washington death penalty statute needlessly chilled defendant’s right to plead not guilty and demand a jury trial); Griffin v. California (drawing adverse inference from defendant’s failure to testify unconstitutionally infringed on defendant’s Fifth Amendment rights)[; and]…State v. Mace (defendant’s post-arrest silence cannot be viewed as evidence of guilt).” Id. (internal citations omitted).

[77] Id. at 596 n.9. (citing State v. Krantz, 164 P.2d 453 (Wash. 1945), which upheld a statute that forbade violent convicts to possess pistols).

[78] Rupe, 683 P.2d at 596.

[79] Id. at 597.

[80] State v. Neff, 181 P.3d 819 (Wash. 2008) (en banc).

[81] Washington’s constitution provides, “The right of the individual citizen to beararms in defense of himself, or the state, shall not be impaired,but nothing in this section shall be construed as authorizingindividuals or corporations to organize, maintain or employ anarmed body of men.” Wash. Const. art. I, § 24.

[82] State v. Valdobinos, 122 Wash.2d 270, 282 (1993).

[83] Neff, 181 P.3d at 824 (citing State v. Schelin, 55 P.3d 632 (2002); State v. Valdobinos, 858 P.2d 199 (1993)).

[84] Neff, 181 P.3d at 824.

[85] Id.

[86] Id. (citing State v. O’Neal, 150 P.3d Wash.2d 1121 (2007)).

[87] Id.

[88] Id.

[89] State v. Valdobinos, 858 P.2d 199 (1993).

[90] Neff, 181 P.3d at 824

[91] Id. (internal quotations and citations omitted).

[92] Id. at 825.

[93] Id. at 829 (Sanders, J., concurring in part and dissenting in part)

[94] Id. at 830 n.2.

[95] Id. at 830 n.3.

[96] Id. at 830.

[97] Id. at 831.

[98] Id.

[99] Even Congress recognized the difference between brandishing, discharging, and merely possessing a firearm. While mere possession has a mandatory minimum of five years, brandishing carries a mandatory seven-year minimum, and discharging a gun carries a mandatory ten-year minimum. 18 U.S.C. § 924(c)(1)(A)(i)-(iii). Oddly, under § 924(c), a person faces 30 years for two counts of merely possessing a gun in furtherance of a crime, but face only 10 years if he actually discharged the gun.

[100] D.C. v. Heller, 128 S.Ct. 2783 (2008).

[101] Winkler, supra note 20, at 686.

[102] Id.

[103] Heller compares the Second Amendment with the First numerous times. See Part VI.

[104] Winkler, supra note 20, at 707 (quoting the First and Second Amendments).

[105] U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”)

[106] U.S. Const Const. amend. II (“A well regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”).

[107] Winkler, supra note 20, at 696.

[108] U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probably cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”) (emphasis added).

[109] Erwin Chemerinksy, Constitutional Law: Principles and Policies 540 (3d ed. 2006) (emphasis added).

[110] See generally Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L J. 309 (1991);

[111] The Sentencing Project, Do More Prisoners Equal Less Crime? A Response to George Will, available at http://www.sentencingproject.org/Admin/Documents/publications/will_overall%20response.pdf.

[112] Testimony of Ryan S. King before the Standing Committee on Justice and Human Rights, House of Commons, December 6, 2006, Ottawa, Ontario.

[113] For example, content-neutral restrictions on speech—such as time, place, and manner laws—trigger intermediate scrutiny as does commercial speech.

[114] Winkler, supra note 20, at 689.

[115] Chemerinsky, supra note 109, at 541-42.

[116] Id. at 542.

[117] U.S. Const. amend. 21 (repealing the 18th Amendment which prohibited the “manufacture, sale, or transportation of intoxicating liquors within…the United States”).

[118] See generally John J. Donohue & Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 Stan. L. Rev. 791 (2005).

[119] The Sentencing Project, supra note 111 (emphasis in the original).

[120] Id.

[121] Kennedy v. Louisiana, 128 S.Ct. 2641 (2008).

[122] Stanley v. Georgia, 394 U.S. 557 (1969).

[123] Frisby v. Schultz, 487 U.S. 474 (1988).

[124] Summary Judgment Motion of Petitioner-Appellant, Angelos v. U.S., page 8. (emphasis in the original).

[125] D.C. v. Heller, 128 S.Ct. 2783, 2821-22 (2008).

[126] Id. at 2817-18 (internal citation omitted).

[127] Id. at 2786.

[128] Id. at 2790-91.

[129] Id. at 2791-92 (internal citations omitted).

[130] Id. at 2799 (emphasis in original) (internal citations omitted).

[131] Id. at 2797 (emphasis in original).

[132] Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993).

[133] Testimony of Ryan S. King before the Standing Committee on Justice and Human Rights, House of Commons, Dec. 6, 2006, Ottawa, Ontario.

[134] Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam).

[135] Heller, 128 S.Ct. at 2822 (emphasis added).

[136] “An estimated 5.3 million individuals are unable to vote because of laws that deny this fundamental right to participate in the democratic process to those with felony convictions. These restrictions fall disproportionately on African Americans, with 13% of black males currently unable to vote.” The Sentencing Project, supra note 111.

[137] “[T]he right to vote…[shall not be] denied to any of the male inhabitants…except for participation in rebellion, or other crime.” U.S. Const. amend. XIV, § 2 (emphasis added). Felons arguably have a greater interest in the law than the average citizen and should therefore have a say in who makes these laws. This was the primary justification for giving 18-year-olds the right to vote when they were being drafted to fight and die in Vietnam. Similarly, a criminal may have a greater need to exercise his Second Amendment rights than the average citizen.

[138] U.S. v. Verdugo-Urquidez  494 U.S. 259, 265 (1990) (Of course, Rehnquist was using this logic to show that Mexicans in Mexico are not “people” for Fourth Amendment purposes).

[139] Heller, 128 S.Ct. at 2791.

[140] Id. at 2790-91.

[141] Geoffrey Fattah, Former Federal Judge is Striving for Balance, Deseret Morning News, Nov. 23, 2007.

[142] 538 U.S. 63, 64 (2003).

[143] 501 U.S. 957 (1991).

[144] U.S. v. Angelos, 345 F.Supp.2d 1227, 1230 (D. Utah 2004).

[145] In Harmelin itself, the Court held that the imposition of a life sentence without the possibility of parole for the possession of 650 grams of cocaine was constitutional as did Kennedy using his own proportionality analysis.

[146] Memorandum in Support of Motion for Partial Summary Judgment to Vacate Portion of Sentence Pursuant to 28 U.S.C. § 2255 of Petitioner-Appellant, U.S. v. Angelos. When Angelos originally appealed his sentence to the Tenth Circuit, an amicus brief was filed that included “former federal judges, United States Attorneys General, and high-ranking United States Department of Justice officials, contend[ing] the district court erred in concluding that the fifty-five year sentence mandated in his case by § 924(c) did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment.” U.S. v. Angelos, 433 F.3d 738, 750 (10th Cir. 2006).

[147] Id. at 753.

[148] Id. at 750 (citing Ewing v. California, 538 U.S. 11, 20 (2003), which in turn quoted Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991) (Kennedy, J., concurring in part and concurring in the judgment) (internal citations and quotation marks omitted).

[149] Id. at 750.

[150] Weems v. United States, 217 U.S. 349, 367 (1910).

[151] Solem v. Helm, 463 U.S. 277 (1983).

[152] 370 U.S. 660, 667 (1962).

[153] Angelos, 433 F.3d at 751 (quoting Smith v. U. S., 508 U.S. 223, 240 (1993) which in turn quoted Muscarello v. U.S., 524 U.S. 125, 126 (1911)).

[154] Angelos, 433 F.3d at 751 (citing Ewing v. California, 538 U.S. 11, 24-28 (2003); Harmelin v. Michigan, 501 U.S. 957, 998-99 (1991).

[155] Response in Opposition to Government’s Motion to Strike Angelos’s Motion for Partial Summary Judgment., Angelos v. U.S.

[156] Oddly, the Kennedy Court stated that some nonmurderer defendants may still be eligible for the death penalty, so long as the crimes are against the State, including “treason, espionage, terrorism,” and, oddly, “drug kingpin activity.” Kennedy v. Louisiana, 128 S.Ct. 2641, 2659 (2008). Even though Angelos’s underlying crime involved drugs, he was hardly a drug kingpin.

[157] U.S. v. Angelos, 345 F.Supp.2d 1227, 1239 (D. Utah 2004).

[158] Kennedy v. Louisiana, 128 S.Ct. 2641, 2676 (2008) (Alito, J., dissenting).

[159] Trop v. Dulles, 356 U.S. 86, 101 (1958) (holding that taking away an American’s citizenship violated the Eighth Amendment).

[160] Kennedy, 128 S.Ct. at 2650.

[161] Id. (citing and quoting Enmund v. Florida, 458 U.S. 782 (1982)).

[162] Atkins v. Virginia, 536 U.S. 304, 315-16 (2002).

[163] Eugene Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Pol. 191 (2006), available at http://www.trolp.org/main_pgs/issues/v11n1/Volokh.pdf.

[164] Winkler, supra note 20, at 702-03. However, a couple of the constitution revisions favor more firearm regulation. For example, in 1990, Florida added some very specific, non-constitution-sounding language to its provision, requiring “a mandatory period of three days, excluding weekends and holidays, between the purchase and delivery at retail of any handgun.” Fla. Const. art. I, § 8).

[165] Winkler, supra note 20, at 702-03.

[166] Determining the evolving standards regarding the right to bear arms depends on how generally that right is defined. If defined as the general right to bear arms in self-defense, the right is expanding; however, if the right is defined more narrowly as the right of those who engage in crimes to defend themselves, the standards may be evolving in the opposite direction.

[167] David B. Kopel, Clayton E. Cramer & Scott G. Hattrup, A Tale of Three Cities: The Right to Bear Arms in State Supreme Courts, 68 Temp. L. Rev. 1177, 1178 (1994).

[168] Id. at 1178 n.2. (citing numerous articles supporting this provision and considerably less rejecting the individual rights theory).

[169] Kennedy, 128 S.Ct. at 2650.

[170] Id. at 2658 (internal citations and quotes omitted).

Man sues for $2,000,000,000,000,000,000,000,000,000,000,000,000

For any attorneys or law students out there considering clerking for a district court judge, you may want to read this Complaint first to see what kind of cases can come your way.

Here, the pro se plaintiff is seeking $2,000,000,000,000,000,000,000,000,000,000,000,000 in damages.  This figure doesn’t even take into account his punitive damages or attorney fees and costs.

It would great for America if he wins.  He says in his Complaint that he will donate 45% of the money “to his country, the United States of America (U.S.A.), as a guarantee to protect the fundamental rights of all Americans, and in order to strengthen and equip the U.S. Armed Forces as well as for research expenses for U.S. military.”

If he is awarded what he seeks, the U.S. of A. would get a cool $900,000,000,000,000,000,000,000,000,000,000,000.