Judge Milan Smith may not have the final word on California's controversial DNA collection law.
The Ninth Circuit on Wednesday announced that Haskell v. Harris — the challenge to Prop 69's felony DNA swab law — will go en banc. Earlier this year, a split panel led by Smith found the measure that requires swabbing all felony arrestees comported with the Fourth Amendment. That conflicted with a state court of appeal opinion from 2011, and drew a lengthy dissent from his liberal colleague, Judge William Fletcher.
"We have never allowed the compulsory taking of DNA samples from mere arrestees," Fletcher's dissent said. "We should not begin now." A visiting senior judge from Tennessee, James Dale Todd, was the swing vote.
The Ninth Circuit has posted key filings in the case here.