"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." -- Justice Antonin Scalia, dissenting
in Maryland v. King
As I document in my new book, A Government of Wolves: The Emerging American Police State , our freedoms--especially the Fourth Amendment--are being choked out by a prevailing view among government bureaucrats that they have the right to search, seize, strip, scan, spy on, probe, pat down, taser, and arrest any individual at any time and for the slightest provocation.
Now,
thanks to the U.S. Supreme Court's devastating decision in Maryland v. King --in which a divided Court determined that a person
arrested for a crime who is supposed to be presumed innocent until proven
guilty must submit to forcible extraction of their DNA--you can add invasive DNA
sampling to the list of abuses being "legally" meted out on the long-suffering
American populace.
Once
again the Court has sided with the guardians of the police state over the defenders
of individual liberty in determining that DNA samples may be extracted from
people arrested for "serious offenses." While the Court claims to have made its
decision based upon concerns of properly identifying criminal suspects upon
arrest, what they have actually done is opened the door for a nationwide
dragnet of suspects targeted via DNA sampling.
The
case revolves around Alonzo King, who was arrested on April 10, 2009, and
charged with assault. Relying on a state law which authorizes DNA collection
from people arrested but not yet convicted of a crime, while processing King's
arrest, police obtained his DNA via a forcible cheek swab without first
procuring a warrant. This information was not used to identify him, but rather
sat in a police file, and then a crime lab, before finally being tested some
months later. In the meantime, King was positively identified via
fingerprinting and other methods. Once his DNA was finally tested, over three
months later, the results were entered into Maryland's DNA database, alongside other
personally identifying information. This information was then forwarded to the
FBI's national DNA database, where it was found to be a match to evidence taken
from the scene of an unsolved rape that occurred in 2003. King was then tried
and convicted of the 2003 rape.
On
appeal, the Maryland Court of Appeals ruled in April 2012 that the state law
used to forcibly extract King's DNA violated the Fourth Amendment. In an
unusual move, in July 2012, Supreme Court Chief Justice John Roberts issued a
stay of the lower court's ruling, prior to the Court's even agreeing to hear
the case, using the rationale that collecting DNA from people accused of
serious crimes is "an important feature of day-to-day law enforcement practice
in approximately half the states and the federal government."
Interesting
side note on Roberts: During his stint on the U.S. Court of Appeals, Roberts
issued a ruling in a case involving a 12-year-old girl who was "arrested,
searched, and handcuffed. Her shoelaces were removed, and she was transported
in the windowless rear compartment of a police vehicle to a juvenile processing
center, where she was booked, fingerprinted, and detained until released to her
mother some three hours later--all for eating a single french fry in a Metrorail
station. The child was frightened, embarrassed, and crying throughout the
ordeal." Nevertheless, Roberts ruled that her constitutional rights had not
been violated in any way. As one Washington
Post reporter noted at the time, you can tell a whole lot about Roberts "by
looking at how he handled a single french fry."
Considering
that Roberts, despite his stated reservations, saw little need to restrain the
police in searching a 12-year-old for a french fry, it should come as no
surprise that he sees nothing wrong with forcible DNA extractions by police of individuals
presumed innocent until proven guilty.
Thus,
when King's lawyers mounted their appeal to the Supreme Court, insisting that the
police had not obtained a warrant in order to extract King's DNA and had no
particular reason for obtaining his DNA during his arrest, Roberts sided with the
police, justifying the practice as being a legitimate means of identifying
individuals suspected of having committed "serious offenses." With Justices
Anthony Kennedy, Clarence Thomas, Stephen Breyer and Samuel Alito joining
Roberts in affirming the practice of warrantless DNA grabs by the police, the
Court's 5-4 ruling further guts an already severely disemboweled Fourth
Amendment and goes so far as to equate forcefully obtaining a DNA sample to
"fingerprinting and photographing, a legitimate police booking procedure that
is reasonable under the Fourth Amendment."
The
only glimmer of reason came from Justice Antonin Scalia, who wasted no time
dispatching the Court's dubious claim that DNA is necessary for suspect
identification. Scalia was joined in his biting dissent by the three female justices
on the Court (Ginsburg, Sotomayor, and Kagan). As the minority opinion pointed
out, Maryland actually took a full three months to test King's DNA before
handing the DNA over to the FBI to be matched against a database of unsolved
crimes (that is, crimes in which the suspect has not been identified). Clearly,
the state's intention was not to identify
King, but to potentially implicate
him in a crime other than the one for which he was accused.
While
the Court majority attempted to delineate a difference between collecting DNA
in general versus cases in which the suspect is accused of a "serious offense,"
Scalia rightly pointed out how meaningless this distinction really is, given
that the Court's ruling succeeds only in burdening "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." For example, if such a questionable
practice were to prevail simply for the sake of "solving more crimes," as
Scalia suggests, it would not take much to justify the "taking of DNA samples
from anyone who flies on an airplane (surely the Transportation Security
Administration needs to know the "identity" of the flying public), applies for
a driver's license, or attends a public school."
As
disheartening as this ruling is, it is simply one more volley in a long line of
attacks on our right to be free from unreasonable searches and seizures by
government agents. In the past few years, the Supreme Court has determined that
freedom from unreasonable government intrusion, a core component of the United
States Constitution, is of little importance in an age of surveillance and
security at any cost.
Just
consider the ramifications of some of the muddle-headed rulings handed down in
recent years:
It's okay for police officers to use
excessive force as long as they don't know that the Constitution prohibits them
from doing so. In 2012 the Supreme Court let stand a Ninth
Circuit Court of Appeals decision in Brooks
v. City of Seattle, in which police officers who clearly used excessive
force when they repeatedly tasered a pregnant woman during a routine traffic
stop were granted immunity from prosecution. The Ninth Circuit actually
rationalized its ruling by claiming that the officers couldn't have known
beyond a reasonable doubt that their actions--tasering a pregnant woman who was
not a threat in any way until she was unconscious--violated the Fourth
Amendment.
In an effort to make life easier for overworked
jail officials, they can strip search anyone brought in, under any pretext. In Florence v. Burlington, a divided
Supreme Court actually prioritized making life easier for overworked jail
officials over the basic right of Americans to be free from debasing strip
searches. In its 5-4 ruling, the Court declared that any person who is arrested
and processed at a jail house, regardless of the severity of his or her offense
(i.e., they can be guilty of nothing more than a minor traffic offense), can be
subjected to a virtual strip search by police or jail officials, which involves
exposing the genitals and the buttocks.
Police officers can break into homes,
without a warrant, even if it's the wrong home as long as they think they have a reason to do so. In an 8-1
ruling in Kentucky v. King, the
Supreme Court placed their trust in the discretion of police officers, rather
than in the dictates of the Constitution, when they gave police greater leeway
to break into homes or apartments without a warrant. Despite the fact that the
police in question ended up pursuing the wrong suspect, invaded the wrong
apartment and violated just about every tenet that stands between us and a
police state, the Court sanctioned the warrantless raid, leaving Americans with
little real protection in the face of all manner of abuses by law enforcement
officials.
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