Just released, the Ninth Circuit en banc, has affirmed the ND Ca decision (by Judge Charles Breyer) upholding California’s statute requiring people arrested for [corrected – thanks, Paul!] any felony to provide DNA samples for inclusion in the state (and ultimately federal) database.
Ten of the 11 judges on the en banc panel said the plaintiffs challenged this on its face, but it is clear after the US Supreme Court’s June 2013 decision in Maryland v. King that this statute is not unconstitutional with regard to all people arrested for felonies in California. But here’s the crucial (and final) paragraph of the four paragaph per curiam opinion:
Plaintiffs ask us to enter a preliminary injunction applicable only to a smaller class consisting of individuals arrested for certain felonies that are not, in plaintiffs’ view, covered by Maryland v. King. But we are a court of review, not first view: We are limited to deciding whether the district court abused its discretion in denying the injunction plaintiffs sought. See Bull v. City & Cnty. of S.F., 595 F.3d 964, 967–68 (9th Cir. 2010) (en banc). If plaintiffs believe they’re entitled to a preliminary injunction as to a smaller class, they are free to seek it from the district court and we will review it if and when it is presented to us.
What does that mean? The plaintiffs, on the en banc re-argument after the Supreme Court decision, urged three ways in which the California statute was differnt from what the Supreme Court had upheld in Maryland v.
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