Judge ponders lawsuit challenging DNA retention by law enforcement

SAN FRANCISCO -- A judge considered departing from precedent Wednesday in deciding whether to dismiss a lawsuit challenging the retention of DNA profiles by law enforcement agencies for people arrested but never convicted of a crime.

The court should not entertain hypothetical arguments advanced by plaintiffs but might need to because "the law often lags behind the development of technology," according to San Francisco County Superior Court Judge Ethan P. Schulman.

"Every once in a while, the courts abandon prior precedent to take account of the fact that the world changes a little bit," he said. "These devices have enormous privacy interest and in no way are analogous to when the doctrine was developed."

Schulman said he must weigh the government's interest in keeping and analyzing the genetic samples against the public's privacy interests, but does not know how to go about it.

"Would there be a trial on government interests?" he asked.

The judge also noted the most sensible way to balance the interests is to consider hypothetical arguments advanced by plaintiffs' attorney Michael T. Risher.

The lawsuit argues the analysis and retention of DNA from those who are never convicted of crimes violates the state Constitution's protection of privacy and prohibition against unreasonable searches and seizures. Shanks v. Becerra, 18-CPF-516440 (S.F. Super. Ct., led Dec. 10, 2018).

The practice was implemented in 2004 after voters passed Proposition 69, which requires the collection of DNA samples from felony arrestees as part of standard booking procedures, along with mug shots and fingerprints.

A state Supreme Court decision in April 2018 left the law intact after an appellant challenged the requirement to submit a sample if arrested on a felony charge. People v. Buza, 2018 DJDAR 3029 (April 2, 2018).

Risher, a Berkeley-based attorney, said the government keeping DNA profiles will lead to wrongful convictions and prosecutions.

In one example cited in the lawsuit, a person was jailed for four months on burglary and homicide charges after being identified in a cold case, only to be released after showing he was admitted to the hospital on the day the crime was committed.

At the rate technology is advancing, Risher continued, the data is likely to be misused in the future.

"There's no way to guarantee the laws won't change," he said. "The only way to prevent [future misuse] is to prevent the government from stockpiling this information in the first place."

State Deputy Attorney General Jose A. Zelidon-Zepeda advanced statutory arguments that the plaintiffs cannot offer hypothetical arguments in support of their claims because it is a direct challenge to Proposition 69 as opposed to a challenge to a particular application of the statute.

"The arguments went far off field talking about potential theoretical scenarios," he argued.

The state Department of Justice's attorney likened the retention of DNA profiles to keeping fingerprints and photos, which courts have already upheld.

Both sides will submit proposals as to what they would like to see in the judge's order by May 14.