DNA Sample Collection Does Not Violate Religious Freedom Rights Of Prisoners

E. Barrett Prettyman courthouse

D.C. Circuit concludes prisoner failed to state a claim alleging violation of the Religious Freedom Restoration Act, and the First, Fourth, and Fifth Amendments under the Constitution, in Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. Dec. 30, 2008) (No. 07-5065)

The D.C. Circuit recently considered a constitutional and statutory challenge by a federal prisoner to the collection of DNA samples. Under the DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. §§ 14135–14135e, the Bureau of Prisons was directed to collect “deoxyribonucleic acid (DNA) identification information” from federal prisoners who committed a felony, sexual abuse offense or crime of violence.

The failure to provide the requested DNA sample may be prosecuted as a misdemeanor. The DNA sample is provided to the FBI for processing and addition to the Combined DNA Index System (“CODIS”), which is a national database used by law enforcement to match DNA profiles. The circuit found no legal claim was stated for relief.

In the case, federal prisoner Kaemmerling, who had been convicted of wire fraud, filed a declaratory judgment and injunctive relief action claiming violation of his rights under the Religious Freedom Restoration Act, and the First, Fourth, and Fifth Amendments of the Constitution. As an “Evangelical Christian,” he contended that “submitting to DNA ‘sampling, collection and storage with no clear limitations of use’ is repugnant to his strongly held religious beliefs about the proper use of “the building blocks of life,” and objected “to any collection of his DNA profile at all, even collecting DNA information from hair and skin that he naturally shed onto his clothes then turned over to prison officials for washing.” Kaemmerling, 553 F.3d at 674, 678. Four other prisoners moved for class certification. The district court denied the request for a preliminary injunction and then dismissed the action for failure to exhaust administrative remedies under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e.

The D.C. Circuit affirmed on other grounds, and considered the statutory and constitutional claims, ultimately concluding the prisoner failed to state a claim, as summarized below:

  • Free Exercise Clause: The DNA collection did not violate the Free Exercise Clause since the First Amendment “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Kaemmerling, 553 F.3d at 677 (quoting Employment Div. v. Smith, 494 U.S. 872, 879 (1990) (quotation omitted)).
  • Religious Freedom Restoration Act (RFRA): The RFRA was not violated because the prisoner failed to show a “substantial burden” on his religious exercise. Even if he could make this showing, the circuit noted that the statute “serves the compelling governmental interest in accurately and expeditiously solving past and future crimes in order to protect the public and ensure conviction of the guilty and exoneration of the innocent.” Kaemmerling, 553 F.3d at 680. The circuit concluded the collection of the DNA was the “least restrictive means” to advance the government interest, as required under the statute.
  • Fifth Amendment – Equal Protection: The circuit found unpersuasive the prisoner’s argument “that the DNA Act violates the equal protection component of the Due Process Clause because it requires collection of DNA from felons who are incarcerated or on supervised release but does not mandate collection of DNA from ‘free’ felons, who are no longer under the supervision of the BOP.” As the circuit noted, ““The DNA Act certainly passes the rational basis test. The BOP exerts a measure of control over incarcerated felons and felons on supervised release that it does not exert over felons who are now out of the prison system, making it significantly easier for the BOP to collect DNA samples from incarcerated and supervised felons than from free felons.” Kaemmerling, 553 F.3d at 685.
  • Fifth Amendment –Against Self-Incrimination: The Privilege Against Self-Incrimination applies to testimonial communications and did not bar the collection of DNA samples. Kaemmerling, 553 F.3d at 685 (citing other cases).
  • Fourth Amendment – Unreasonable Searches and Seizures: Controlling precedent resolved the Fourth Amendment claim. The D.C. Circuit had previously considered a claim that the Fourth Amendment was violated by the statute as applied to a convicted felon. The circuit noted that several other circuits considering the issue had also rejected a Fourth Amendment claim. See Kaemmerling, 553 F.3d at 673 (citing Johnson v. Quander, 440 F.3d 489, 496-98 (D.C. Cir. 2006) (listing decisions from the Second, Third, Fourth, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits); United States v. Weikert, 504 F.3d 1, 14 (1st Cir. 2007); United States v. Conley, 453 F.3d 674, 680-81 (6th Cir. 2006); United States v. Kraklio, 451 F.3d 922, 924-25 (8th Cir. 2006)).
  • No Exhaustion Requirement: The prisoner was not required to exhaust administrative remedies because the Bureau of Prisons lacked authority to provide relief. There was no discretion in the collection of the DNA samples. As the D.C. Circuit noted, “Requiring an inmate to exhaust an administrative grievance process that cannot address the subject of his or her complaint would serve none of the purposes of exhaustion of administrative remedies. When the BOP cannot take any action at all in response to a complaint, it has nothing to offer that could possibly satisfy the prisoner and obviate the need for litigation.” Kaemmerling, 553 F.3d at 676.

As recently posted, new federal regulations were recently issued allowing for the collection of DNA samples from persons arrested under federal authority and from illegal immigrants in federal detention.



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