the fundamental distinction here is california is taking d.n.a. from people who are never charged with a crime or discharged for lack of probable cause. >> he says it doesn't matter if they are ever arrested. he says if you are arrested rightly or wrongly and for whatever reason. so i would respectfully suggest i don't see how you can justify your point. i get your point about what is done with it afterwards, but i don't about the seriousness of the offense or anything of that nature because justice scalia makes it very clear about what the majority meant and it's not what you mean. >> could you clarify one thing? >> yes. >> in king, i understood the situation to be that they could only collect the sample after the individual had been charged as opposed to simply just rrested, is that right? that's an ambiguity in king. king repeatedly says that. that's the question presented, people arrested and charged. >> but if you go to the regulations that the state's

attorney general issued in king, filing a charge, like a ticket or complaint, you seem to draw a distinction, as i understand in california your d.n.a. can be taken if no crime was committed. >> that's absolutely how it happens in california. king is ambiguous because it did talk about people formally charged but it also talked about d.n.a. taken at booking. i think under king d.n.a. should be taken only from those charged with an obvious but i do appreciate that the government does have some interest in taking d.n.a. before then even if they can't use it in case the

person fails to appear. i don't think those interests are weighty enough to justify taking it at booking and then using it. >> i thought the distinction was that you're being correct that it's part of the booking process, but i thought maryland wouldn't process it -- >> correct. >> until charged. so there's the taking of the sample then there's the profiling that comes by going after the limited identifiers, the junk d.n.a. aspect. that would be a distinction from california because california processes right away. >> not right away. >> in other words they don't wait for a charge. >> correct. that is the fundamental distinction. >> may i ask you about that distinction, though? and this may be because the supreme court wasn't clairvoyant in looking at the situation in front of us but as you go to the

enof the opinion of the court, actually the court on page 23, that slip opinion, it keeps talking about in sum, there's little reason to question the legitimate interest of the government when it's talking about, quote, the identity of the person in question, and it gos on to talk about identify case of arrestees. what do we make of that language as you fold it into the california statute? >> the first time the court talks about identification of arrestees, from floshes i believe or maybe from hibble, it says in every criminal case it's imperative to know who is being arrested and who is being tried. it's talking about arrestees who are being prosecuted because everyone in maryland who is giving a d.n.a. sample was necessarily being prosecuted. and in california, it's important to remember, that for the population that i'm most concerned with, those who will not be prosecuted at all, that

decision may have been unconditionally released from the criminal justice system within 48 hours, within 7 hours, usually, two working days. that's long before, under california system, the samples would get to the lab. they're mailed to the laboratory. >> but what they're talking about when they're talking about arrestees is they're saying, as i read the supreme court, you have an interest in knowing, for example, if they're want -- wanted elsewhere. if you have an arrestee who ultimately is not charged, but isn't there an intervening interest of knowing if that individual is wanted elsewhere, having been arrested? >> no, i think once the person who -- once the decision is made not to prosecute, once that person is unconditionally released, as well as the case with respect to three of our plaintiffs that interest is no longer there. >> but even before being

released, the court seems to acknowledge there's a government interest in knowing if that person is wanted elsewhere. isn't that inconsistent with your argument? >> i don't think so. first of all, fingerprints are how that determination is made. how someone is wanted is not done with d.n.a. if someone might be implicated in a different crime is something that can be done with d.n.a. not just with current technology but with california's current infrastructure and perhaps most importantly, with the current codis protections for privacy that identification can't be made in time to be meaningful for people who are arrested and released before arraignment or at arraignment. >> that was in king too, wasn't it? >> well, -- was in hing you say ng and as justice scalia

pointed out, didn't carry the day. you say this case is different and all the interests, many of the interests in king don't pply here. the justices list them by number in the opinion. go down the list and tell us which ones apply there that don't apply here. 69 u.s. on page 11 of reports, page 11 says, first, and then goes on and lists them. can we just go down queckly one by one and see which ones don't apply? first one says, there is a need to know that this is the right guy. this is the right person. all right. that applies just as well here as it did in maryland, right? >> i don't think so. because it starts out in every criminal case if there is no

prosecution, there's no criminal case. if you have someone who was arrested once but has now been unconditionally released, the government doesn't have the same interest. >> but that was true in king too. that was true and nevertheless hey said they could take it. page 12, an individual's identity is more than just a name and social security number and the government's interest goes beyond assuring the indictment. true here, right? then we've got second, on page 13. law enforcement officials bear responsibility for ensuring that does not y of one create risks and so on. equally true here as in king. >> not with respect to the people i'm talking about specifically because by the time mr. king was in custody, long after his d.n.a. had connected him to this rape.

by the time d.n.a. results could help law enforcement in california know what someone has done in the past, whether this person might be dangerous, the people eem talking about here, they're not in custody, there's no need to make bail determinations for them. they've been unconditionally released. they are free people. lily haskell was within six days of being arrested issued a certificate that said no charges are being filed. her tennessee is being tested 31 days later, did not help the jail deal with security issues. >> you brought a challenge and narrowing it down to an applied challenge as to members of the class. >> in light of king, yes. >> and so what is -- define for us what is the class or what is the -- how do you define the

people to whom this lawsuit applies? >> the class -- >> hasn't been certified right? >> it was serltfied on january 29, 2010. >> so that class is gone, right? that class emcompasses everyone who is arrested. >> everyone who is arrested and is required to give a d.n.a. sample purely because of the law. >> you have to talk about everybody. that brings us, this is just like king. you can no longer talk about your people, your particular individual named plaintiffs, you have to talk about the class. the class applies to everyone to whom the statute applies. in that respect, the second thing here, the second interest is just like in king, right? here's the rule on that. california can take d.n.a. from

people it arrests for serious offense. it cannot do anything with that d.n.a. unless there is a prosecution and a judicial finding of proximate cause. absent one of those or charges are dismissed it should destroy the sample and expunge the profile. >> you made that point in your brief. this case is really unusual in this respect -- you and your co-counsel filed a brief with the supreme court in which you actually argued haskell to the supreme court, 12 different points, including the ones you make to us today. what impact, if any, does that have on our analysis of whether the supreme court heard your argument and what they said and how that applies. for example, in the fingerprint analogy. everything you said about your plaintiffs would likewise be true of fingerprints. they'd get fingerprinted, those fingerprints stay in the data beas.

whether or not they're charged with that, they're released, justice scalia pinted out, a traffic accident, whether or not people were charged. i'm having difficulty understanding how you can carve out from what the supreme court said your particular people, particularly when you have literally argued haskell v. harris to the supreme court in maryland vs. king. you made those arguments. >> the supreme court never mentioned haskell. >> they never -- we never -- we never mention our cases unless we're reversing it. >> they didn't mention other cases where they were talking about arrestees. i don't think article 3 courts retry other cases. >> i'm simply saying that they heard your argument, ve very ones you're making to us today, despite your desire that they would go in a different

direction, scrussties kennedy's opinion, which was mentioned, started going down those points and scalia's interpretation of that, it seems to me that that -- that this distinction you're making on an as applied basis can't possibly hold water. this is like fingerprinting. your people don't get removed from the fingerprint beas. they don't get removed from the d.n.a. base. >> i don't know that the supreme court addressed the issue you're presenting here because in this case, california does in the automatically destroy samples once no charges are filed. at least that part of the process is different. could you address that? you mentioned that that was what your concern was. >> it is very different. in maryland, as soon as charges were dismissed or if there was no judicial finding of proximate

cause, the sample would be destroyed, it would not even be analyzed. in california it's very different. even if a judge says there is no proximate cause to think that this person committed -- >> that's another case for another day. if somebody says, i've been acquitted. my d.n.a. is still in the database, i would like to bring an action on behalf of myself and all similarly situated to have that information ex-pungsed, we'll take that up. -- expunged. we'll take that up. that would be an interesting case. but why is that something you decide now in a preconviction case with a class that you've practically admitted is too broad? why isn't the right thing to do the if not affirm, but at very least, don't we need to send it back for you to reformulate your class.

>> because there's no need to reformulate the class. >> you do concede that there are some people in your class, perhaps quite a great many people, who are just like king in every way. >> yes. >> and they lose. >> yes. >> how can we have a relief afforded to a class when you yourself admit that some people in your class don't get the relief. we can't reshape classes. >> what this court can do is announce the correct rule of law and the district court can apply that. the entire class is important because it's with respect to the entire class. the people who lose under the rule this court announces lose, because they're bound by that, because they're class members. the proper remedy isn't to redefine the class, that would be unfair to the government. the proper remedy is for the district court to enter an

injunction to implement the rule of law that this court announces. >> how would you articulate that group of people? how would you say -- who are these people? we know the ones that lose, ones just like king, right. whr the ones who win? >> i would ask that the district court issue an injunction prohibiting with respect to all class members the state of california from analyzing or otherwise using d.n.a. taken under these provisions until formal charges have been filed and there's a judicial finding of proximate cause to believe that the person whose d.n.a. is at issue has committed a serious offense. >> you want to rewrite the statute. >> not at all. i want an injunction that simply says that in implementing this statute, the state cannot violate the fourth amendment and injunctionsing of course, have to spell out what is prohibited. >> is there evidence in this

record that ms. haskell has petitioned to remove her d.n.a. sample from the system? >> no. >> there is a statutory remedy to permit her to do that, but she's not availed herself of that. >> there's a statutory remedy but -- >> but she hasn't pursued it if the state said yes, we'll take your d.n.a. sample out of the codis system and destroy the sample itself, she'd get all the relief she was entitled to, would she not? >> if that happened. but that would be imposing an exhaustion requirement. there's only an exhaustion requirement only under certain circumstances. >> would your argument also apply to fingerprinting? could you bring a lawsuit claiming that fingerprints that were taken from the same people

that you just described are likewise unconstitutional. people were released, they were never charged, we've got this record that remains there after this occurs. the supreme court said fingerprints and d.n.a. are constitutionally the same for purposes of this setting. how can you distinguish between those two? >> i don't read the case saying that they're the same. they share many common characteristics but they're different. they're different technologies -- >> i understand that but -- >> we have to analyze them differently. we could brick that suit and the analysis would then be whether fingerprinting -- what are the interests there? and the interest in fingerprinting are substantially different. fingerprinting is supported by history. it's not at all -- it doesn't tell -- you can't do familial searching with fingerprinting. >> you're talking about abuses of the statute and you have no evidence that it's been abused.

justice kennedy started with the bodily examinations and then went to photographs and then went to fingerprints and now they duo to d.n.a. there's a different technology but constitutionally the sameage cease apply. dethe same analysis apply. i'm puzzled how you can say, there's no ed of d.n.a. abuse in this case, you can distinguish between an ability on your part to strike down a statute that allows the collection of d.n.a. from people who have not been charged and are released within 48 hours new york bail and so on, and not apply the same to fingerprinting. >> because d.n.a. and fingerprinting differ in the ways i just mentioned and let me put it this way. there are three additional reasons. first of all, i believe the retention of the d.n.a. sample in the profile is a continuing infringement on fourth amendment liberty, different from fingerprints. >> always true of

fingerprinting. they keep them. they're in a co-disif you will, not called that. and they periodically run them against the automated fingerprint identification to see if it matches latent prints. >> i don't think the ridges on anyone's fingertips raise the constitutional issues as retention of the sample and the profile that can be useding admittedly it's not being used in california right now with respect@arrestee database but n be used for familial searches. >> let me ask you in a more concrete sense. you're drawing the line at the judicial issuance of proximate cause. is that correct? >> that's one of the lines, yes. that and the charge. >> charging or judicial determination. >> yes. >> so if somebody is arrested and the witness flakes or something happens than person is released. there's no immediate charge. but then there's a hiatus.

under your line drawing, although the d.n.a. was collected at the time of arrest, the law enforcement could not utilize that d.n.a. in any way, is that correct? >> not until there was a charge -- some sort of judicial finding of proximate cause. >> even though arrested, let's say, they may have been arrested on a rape and then there's a hiatus and needs to be more investigation, they're not ready to charge. and they're not detained so they don't need to be taken before the court, you're saying that even though the d.n.a. is now in the hands of law enforcement and you potentially have a complaining witness on a rape that the government is precluded from making that match, correct? >> i'm not saying that. because in that situation -- >> they haven't been in front of

a judicial officer. >> in that situation the government has options. if there's semen left at the crime scene there would necessarily be proximate cause to get a warrant to test the sample. or under california law, section 17 of the penal code, they could get a warrant, an arrest warrant precharging -- >> there could be alternatives but having alternatives doesn't make, necessarily, a third alternative unreasonable or unconstitutional. o the question i'm asking is kind of a yes or no one if you have this rape situation i laid out, does this mean the officers are precluded from using that d.n.a. sample for further investigation? >> they're precluding from using this law to test that sample. they are not precluded from using other alternatives that they have that are less intrusive. >> what's the difference between this law and the other? again, what's your response to

what seems a logical question, that is simply because there might be other alternatives doesn't make this one necessarily unconstitutional. why couldn't they use the d.n.a. under this law. >> it's not reasonable. and the availability of less intrusive factors. >> let's say we don't have a rape situation but we have the d.n.a., the arrestee is let go for whatever reason, they now run the d.n.a. through the database and they say, voila, this actually, this individual is wanted in maryland for rape, murder, and three other serious crimes. could they -- are they also precluded from making that match because the person has not yet had a judicial proximate cause determination? >> just to be clear, they're not going to find out this person is wanted in maryland. they might find out this person

is implicated in an unsolved case in maryland. if he's wanted, then this won't help them do that, fingerprints -- >> but that's the point is that -- in other words if they ran through co-disthey might tonight out there's a warrant in maryland or they might find something else but since fingerprints, according to the court, supreme court, are really the same as the d.n.a., you're simply saying well, they are stuck to the fingerprint alternative, they can't use this alternative. i just want to understand whether you're drawing the line. >> codis won't help them find an outstanding warrant. it will only help them find an unsolved crime and connect it to that. after the confirmation process. >> ok. >> so if there's no standing warrant, they can find that. but that interest in simply connecting someone who has been released without charges, connecting him to an unsolved crime in maryland, that's the government interest in solving

cold cases that the supreme court refused to accept in king, the majority opinion never lists that as a legitimate reason to take d.n.a. from someone without a warrant. that's remarkable. >> thank you, you're out of time. the apellees.m >> good afternoon. may it please the court. d.n.a. of arrestees is a reasonable search that can be considered part of a booking procedure. s the holding in maryland vs. king and this holding is broad and unequivocal. the court does set parameters in the next sentence of its

opinion. when officers make an arrest supported by proximate 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 d.n.a. is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the fourth amendment. >> a proximate cause was made by the court. >> yes. >> is that the case here in california? under the statute we're dealing with? >> no. >> for an arrest? >> no, maryland take this is sample, after booking and analyzes it only if there's a finding of proximate cause. >> under our statute somebody could be arrested by a police officers for a felony in the field. because they're arrested for a

felony, they have to be taken to the station and booked. correct? >> correct. >> for whatever reason the arrested officer may ultimately decide there's not enough there and just release the person, correct? >> correct. he could also release the defendant prior to any booking. >> takes him down to the station. as i understand the california statute, at that point, they could be questioned and demand d.n.a. sample. >> at booking. >> yes. >> and that's exactly what maryland vs. king permits. >> but there's been no judicial determination of proximate cause at that point. >> no. pun of -- none of the factors that the appellant identifies are part of the holding in king. >> the court says based on proximate cause system of that's he premise of the ruling and

it's pointed out in that case it wasn't subject to challenge because there'd been judicial examination. now we're delling with our case, cases in our state, there is no such determination. so the very basis of the court's opinion, the starting point, is in doubt. so i'm interested in the answer to this question. since the -- when somebody is arrested, just from all the movies i've seen, they take them to the station, fingerprint them and take a picture before anything else happen. >> and now they take a d.n.a. sample. >> so it would be at that point. at that point they haven't even been -- there haven't been charges filed. >> no. because taking -- acting -- i'm just asking factually how it happens. it's entirely possible and i'm sure it does happen that somebody is taken to the

station, booked, fingerprinted, the matter is -- the police officer consults with the d.a. and the d.a. says no, you know, here's the reasons, we're not going to charge this guy. we're not enforcing these, whatever, and they decide to let him go. must happen. >> that's one of many options available. but not the only option. >> i'm sr.ry, it's not an option, it's a factual scenario. >> it's possible, but there are a variety of things that could happen. >> they could say they're fwoning to book him, slam the door, of course. but it is possible that nothing will happen. there will be no charge. it's possible that on consulting with the d.a. the d.a. will say, no, we're not going to treat this as a felony but a misdemeanor. that's also possible, right? >> possible. >> it's also possible the d.a. will say, tell me more about the

arrest. sounds like the arrest was illegal. we're going to let him go because we don't want to get into a dispute about the legality of the arrest. i take it under california law, at that point, the cheek swab will have been taken and the state is entitled to analyze the sample, right? >> that's correct. >> but the supreme court said -- >> none of those cases were dealt with by the supreme court because they assume proximate as a and a valid arrest premise for their opinion. that's a fact. >> i don't think that's the case. i mean, the holding is very broad. when there's an ears on proximate cause and you've wrought the individual to the station. just as a factual basis, as

premise, the court is dealing with a situation where all the cases i've discussed are not included. the cases where the d.a. decides the arrest is bad, they didn't have a warrant, whatever, all hose cases were not presented. >> but the court sets the time for collection at booking because the information that is available after booking can inform the charging decision. and so in that scenario, the charging decision is -- isn't fin herbed. the charging decision is still under review and subject to the information that is returned from the identification information obtained at booking. >> but take the example the chief just gave and substitute fingerprinting for d.n.a. let's assume that someone is arrested in a traffic matter, they're brought to the station,

they're fingerprinted, they're booked and the d.n.a. is taken but as the chief suggests, the d.a. says, this is kind of week, i'm not sure we have proximate cause. are fingerprints removed from the database because that occurred? >> no. they remain in the database and they're not expunged. >> do you know of any state or the federal government that has an expungement statute or -- for fingerprints? >> california does not have that process. even on an invalid arrest the fingerprints remain in the fingerprint file. >> this is part of what justice kennedy referred to, that it was reasonable under the fourth amendment, sit not? >> yes. >> as part of the booking process. >> yes. is d.n.a. at booking is the functional equivalent of fingerprints and that's what the court recognized. >> that may be so but that is

not in fact covered by the opinion. it may follow logically from what the opinion said but is the case talking about expungement of the fingerprints? the very question judge smith asked you about, is there a case saying that has litigated the question of whether or not fingerprints need to be expunged? i don't think there is. >> there are california state cases. >> yes, but who cares. >> i'm not saying we don't care but federal law, who cares about -- >> federal law has a retention olicy. >> the case is litigated as a federal constitutional matter.

are there cases dealing with the federal, constitutional question of whether or not there's retention of -- the practice of retaining fingerprints, there's no doubt about that, enge most of us gave our fingerprints when we became members of the bar. >> and the bench. >> that was voluntary, we could have said no. >> i gave up 10 fingerprint sets, they couldn't get it right. >> so that's right, we all give up fingerprints. is there any case dealing with whether or not the state is entitled to keep fingerprints if they find somebody totally innocent or the arrest was illegal? >> i think that there are processes pursuant to probably federal law and state law where an individual can apply to have their arrest records expunged,

if they're found factually innocent. i'm not sure whether or not that would encompass the same kind of expungement. i think, as far as i understand it, fingerprints are retained indefinitely and remain in the state and federal database. >> if we deal with another issue sides just when one can keep he particular d.n.a. sample, dealing with when one can get rid of it. maryland, all samples and profiles are immediately destroyed, all qualifying criminal charges are determined to be unsupported. in california, quite opposite occurs. in fact, even if someone wants to have his d.n.a. sample destroyed, he must send a request to the court, to the d.n.a. laboratory and to the

prosecuting attorney, correct? and the court has the discretion to expunge and if the court doesn't expunge, the denial sun appealable, isn't that correct? >> the process that -- that's not a full description of the -- >> i didn't expect it to be full as i haven't got all day to give it to you if i had to read the statute but the bottom lean is, this is expunged only when the court has discretion and if the prosecutor says no, often it doesn't happen. >> that's very limited reading of that procedure. what the statute actually -- >> tell me then, it seems to me there's quite a bit of different between automatics -- automatic expungement on one side and going through the process and maybe get it done on the other side. and therefore is that not a different we ought to take into

account? that's my question. >> it's not a difference of constitutional significance. >> why? >> because there's a valid procedure for an individual to have his d.n.a. sample expunged from the state's database. in fact there's an expedited procedure for doing it in california -- and california has done it within two to four weeks. that's its average time. and so california modeled its expungement process on the process for expunging arrest records. >> but that is different than maryland. >> it's different. >> and it is so the court that is the discretion in california whereas in maryland there's no discretion whatsoever and in california if the court says no expungement, there's no appeal and in maryland it's automatic expungement. >> there's criteria for the judge to follow in the expungement and we assume the judge will follow those. there's a process for the

department of justice to say if it hasn't expunged the sample already, to say, this individual qualified otherwise to have his sample remain in the database because he's a registered sex offender or registered arson offender. it gives, in the that event o.j. doesn't expeditiously expunge the sample pursuant to its own procedures, there's another forum for the individual to say, no, i meet this criteria. and so it is -- >> and the judge could just say no and that would be it, right? >> that's hard to imagine that the judge wouldn't apply statutory criteria listed in the statute to decide whether or not to expunge. >> is that a yes? i didn't hear you answer my question. the judge could say no and that would be the end of it, true or false. >> correct. that's an unappealable decision.

>> there wouldn't have to be an explanation, wouldn't have to know bhy. >> we would assume the court would follow -- >> you can assume the -- assume anything you wish but you wouldn't know. >> is there anything in justice kennedy's opinion that talks about the reasonableness of the use of d.n.a. in the booking statute to an ability to expunge the d.n.a. if the person were found innocent? >> no. >> didn't even enter into his thinking, did it? >> it didn't. it's not that different -- >> are you going to speculate on what jus tess kennedy was thinking when he wrote an opinion? that there was automatic expungement and no cause to address the issue, are you going to speculate what he was thinking? >>ic the opinion is have -- is a very broad opinion. the court was well acare of the difference in expungement procedures. it was aware of the difference

between california's law and maryland's law. s your honor pointed out, we told the court of the differences in california law and the aclu told the court of the differences in the california law and the court was aware of the particulars of california law more than any other -- >> they did the case based on maryland law. they can't say, our rule is broad enough to cover anything other states may do. it's a typical justice kennedy opinion, he's very careful, common law kind of guy who takes a case in front of him and decides that case. that's how he does. that's how he writes his opinions. >> this was an intentionally broad opinion. >> but counsel, he kept putting into his broader statements the foundational aspects, one of which included that there was

automatic expungement. >> that appears nowhere in the opinion except in the recitation of maryland's law which was dropped at that point. what is clear is that the court intended to set a national standard. it was aware that 28 states and the federal government have laws similar to maryland's. it acknowledged that the state laws vary in their particulars and that's their word and it recognized that its holding goes beyond those particulars and quote implicates more than specific maryland law. >> could i also reference you some other language which i grappled with this problem all the way through this but it seemed to me that justice kennedy said, statutory safeguards on use. that a statutory and i quote,

regulatory duty to avoid unwarranted disclosures generally allays private -- privacy concerns, avoiding unwarranted disclosures is more important. seemed to me that was his approach. would you agree? >> his approach, he recognized the statutory and regulatory safe guards but those safeguard individual privacy and that is the linchpin of the decision is the codis regulations that standardize these procedures. that was the reference that the court in other parts of the opinion explained, that these use and confidentiality restrictions in the law make the invasion of privacy minimal. so it's those factors, coe disdoes require -- codis does require expungement. >> so the fact that these would be weighed differently, some of

those weren't in place. let's say for example maryland took all this information and put it online where everybody could read it, like the sex offender registry. and the balance would have been different, right? >> no. just because -- >> no. >> no. >> just no? >> no, because the court weighed the constitutionally significant issues in this case. the government interests -- >> and one of the interests was, i mean, on the one hand a government interest, on the other hand, an intrusion on the individual. you don't think it would weigh differently if the intuition on an individual had been much more serious? if for example, the coding had been done on nonjunk zphn on d.n.a. that -- you don't think the weighing would have been different? >> yes, it recognized that as

one of the significant factors, that the intrusion is minimal. >> why aren't the privacy safeguards part of the balance in keng. >> those set a national standard and all the samples are processed pursuant to those standards. there isn't leeway to process these samples. >> how does he set a national standard when the emphasize -- when he emphasizes the restwrixes that maryland law imposes. >> he didn't relegate it to maryland law. >> but he was dealing with maryland law. he's probably -- when you think about maryland law and how it applies and how it protecting -- protects privacy and how it insists on proximate cause and how it requires that the sample

be destroyed should the person not be prosecuted or should the person be found not guilty, all of those to my mind fit into the balance, the balance here, of dealing with a very, very interest in privacy. year getting there, we're a new being able to of not only identify people but to identify who their relatives were, all their problems, their mental problems, their physical problems, the whole picture is there. that's a very serious intrusion. i think when he talks about these limitations, he's trying

to strike a balance. and he was dealing with maryland. california just pretty extreme the other way. you can arrest people who are joyriding and you can book them it may turn out that they're convicted of a misdemeanor. you know. they have a different system of law here. that's the way i read it. trying to strike a balance. >> the court struck a different balance and just because maryland law includes elements that go beyond what's required -- >> why does he emphasize them. >> maryland's law? he didn't emphasize maryland law. in fact, he used california

examples throughout the opinion. and just because maryland law includes elements that go beyond the fourth amendment does not mean that the constitutional bar is set at maryland's law. the u.s. supreme court has repeatedly recognized and made clear that the fourth amendment outcome does not vary with the laws of particular states. so a state can provide more protection and a state can enact limitations but each of these rights and limitations does not go into the balancing test and affect the further to -- the fourth amendment calculus. otherwise the fourth amendment would vary from state to state and that's a proposition that the supreme court has rejected. happens to tate law be in what blabs it strikes, how it protects the privacy.

we have a difference of opinion on that. >> if we uphold judge breyer's decision to deny a prelim nation injunction, is there anything left of the case? would the case go back to the district for reformulation of the class and perhaps some kind of trial on the merits? >> we think that this case begins and ends with maryland vs. king. there would be nothing left of this -- >> they could narrow it down. >> you think -- your position is that the supreme court's decision in king forecloses any claim that simple arrests, that in rrest that results , that the cop says, we made a mistake, let him go. it's your view that king forecloses any claim by these

guys that they don't have a possible claim? >> right now, there's a mismatch between the class, the certified ass and -- >> the class now in light of king is overly broad but they could narrow it down or set an a precedent on an individual basis. >> it would be inconsistent with the holing in king to draw the line at charges. >> so long as you're arrested, taken ott station and booked, that's it. >> because your identification information -- >> but never a determination of proximate cause by a judicial officer. >> there are a lot of situations where an individual can be arrested, booked, bailed out according to the county bail schedule, and then given a notice to appear at a later date so there is no finding of judicial finding of proximate cause or charging decision and

yet they are on -- >> as i understand the maryland statute they could collect it but not test it. >> so the court looked at that as a delay, not as a good thing but a delay. it's not that california is premature it's that maryland is delayed in its analysis and the issent was making that observation as well. and the court said it's the timing of the analysis goes to the efficacy. >> so where does the proximate cause determination take place under the california scheme, if at all? >> it can happen at a lot of different junctures. >> where? walk me through the process. where does -- where is the proximate cause determination made, walk me through the process. >> it could be made -- >> when and where is it made? somebody is earsed out on the street, let's say for drug -- for dealing drug. taken to the station.

where is the proximate cause determination made? >> after he's booked, it might go to the, within 48 hours it needs to go to a magistrate for a judicial finding of proximate cause. >> that's whether they can continue to keep the defendant. that's the process to determine whether or not they can keep the defendant in custody for longer than 48 hers when the charge hasn't been filed. >> but they can be released prior to that time and the case can be recharged. if your case is dismissed it doesn't mean it's dismissed forever. if the district attorney doesn't charge you it could be for a whole number of reasons. >> the bottom line on what you're saying is that there's no class of arrestees who could be picked up on technically it would be called a felony, everybody would agree, it wasn't a serious offense. they are booked but never really held in detedges other than going through the booking

process and then they're kicked loose. once they've had the swab taken, then the state is free to go ahead and analyze it and process it as occurred in maryland. and all the rationale in justice kennedy's opinion about the criminal history and the protecting of the jailers and the imposition of conditions of release or revocation of bail, where do those come into play in that category of people? > it comes into play, at the outset, a felony is a serious offense. s the class exdefinition of a serious offense. but in the opinion it is also clear that there is no threshold level of seriousness in particular -- >> again, you're sort of reading out some of what justice kennedy elaborated on. that is one thing he kept

repeating. serious offense. >> yes, he did. >> and gave examples. >> and some of those examples came from california. >> that may be but i'm talking about one that wasn't one of those. there's no burglary, there's no rape, there's no assault and battery. it's just somebody who got picked up on what is a wobbler for example and there's no assault or anything like that and the system itself recognizes it wasn't serious so they kick it out. and that person's d.n.a. is now captured, fingerprints we give up fingerprints in lots of contexts. the big difference about d.n.a., they're em, one of is, building the fingerprint database. when you send a fingerprint in you match it gevpbs a database.

now you're creating a database. and the fingerprint doesn't carry all the biological information associated with the full d.n.a. you're saying california can take that full d.n.a., hold it in its custody, and for now, d.n.a. at the junk that they've -- but they've got it in their custody, all the d.n.a. in their custody and there's no remedy because of maryland vs. king. only aw, california can look at discrete portions of identification d.n.a. that's it. nothing else. >> what's wrong then with the proposal by ms. haskell recognizing what king does restrict to simply say, go to the supreme court decision, it talks about a valid arrest supported by proximate cause. i think ms. haskell's counsel says, ok we can draw the line at

charges or a judicial derges of proximate cause. and therefore free reign under the -- free rein under the california statute. what's wrong with using that line of how -- interpreting how king applies to this case. >> that interpretation would not be consistent with king which recognizes that the identification information whether it's fingerprints, photographs or d.n.a., inform the charging decision. >> what role does justice scalia's dissent, again, he was in the conference, he made the dissent, how would this respond o judge mcewen's point, he said, make no mistake about it that today's decision, your d.n.a. can be taken and entered into a national d.n.a. database if you're arrested rightly or wrongly and for whatever reason. didn't aying, if they

have proximate cause, they got it wrong, something, they didn't charge, you can be put in there under the rationale of king. how to we interpret that? >> the decision, justice scalia made a number of factual errors in that analysis. and there are criteria, the court announced what the criteria is for taking, analyzing and keeping a sample. it would cross the line to take a sample from an ordinary citizen. there are valid procedures for analyzing the sample, taking the sample and expunging the sample. at every step the supreme court focused on the national import of king. chief justice roberts stayed the maryland decision in recognition of the fact that it implicates important features of approximately half the states, the federal government, recognizing the important implications of king, justice

alito said in oral argument it was perhaps the most important case the court was deciding in decades. in the case itself, it says, holding implicates more than specific maryland law and because the court's holdings and legal determinations were not deathered to the four corns of the maryland law, there no basis for appellants' claim that maryland' law is constitutional but california law is not. >> thank you. >> thank you. >> your out of time. would you like to take a minute for rebuttal? >> yes, please. >> tell me in part of that one minute you have, i need to see a minute on the clock, why isn't the best thing we can do here is simply affirm denial of the injunction and the case would then be back in the dwrict court where you can reshape the class and make whatever claim you make

, why isn't anything beyond that that we say too close. >> because my compliants weren't charged with offenses. they are entitled -- >> unfortunately, you brought it as a class. and they are now tied at the ankle with a class, which is too big. too big. if you had brought it on behalf of them you might have a claim but how can we say, how can we say in light of maryland vs. king, that this court abused its discretion by denying interrogatory relief. >> the factual record in this case is more than sufficient, bigger than it was in king, it's a question of pure law. the court can say what the law is, the district court can implement that law. otherwise rewe may be here again in a year or two. i don't think that serves anyone's interest. >> but we'd be up here on a fuller record that hopefully

you'd be able to make at trial before the district court. >> the record we already have is vastly bigger than was the record in keng. i think the rule i propose is a reasonable wufpble it flows directly from king's holding an reasoning and i don't see that diational facts are necessary to establish that. so i'm asking that the court decide the issue now. one way or the other, to be honest. >> thank you. >> all right, thank you cases are submitted, we are adjourned. >> all rise. [captioning performed by national captioning institute] >> all this week, book tv's in primetime on c-span2.

continuing tonight with books on world affairs. starting at 8:00 eastern, jonathan katz on his book, "the big truck that went by" how the world came to save haiti and left behind a disaster. at :50, nina monk talks about her book "the idealist: jeffrey sachs and the quest to end poverty." at 9:40, "why growth matters: how economic growth in india reduced poverty and the lesson for other developing countries." and on c-span3, american history tv with programs on the 1920's. starting at 8:00 eastern, a look at 1920's culture and society. after that, a discussion on the rise of gangsters in the prohibition era. then a look at the role of the ku klux klan. later a professor examines race relations in the 1920's. american history tv, tonight on c-span3. also tonight, c-span's series on

first ladies continues with a look at the life of betty ford. during her time in the white house she raised breast cancer awareness after surviving the disease and voiced support for after her husband left office, she shared her experience with alcohol and prescription drug addiction which led to the creation of the betty ford center. the life and career of betty ford tonight at 9:00 eastern here on c-span. you can also listen on c-span radio. >> on the next washington journal, former mitt romney speechwriter peter winner talks about the strengths and weaknesses of american conservatism. lawless of jennifer american university discusses the impact of women in politics. plus, your e-mails, phone calls and tweets. washington journal live at 7:00 a.m. eastern daily on c-span.