Wilson v. Collins

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0088p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellant, -

ANTOINE D. WILSON,

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No. 07-3428

v.

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TERRY J. COLLINS, et al., -

Defendants-Appellees. -

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Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 04-00918—Norah McCann King, Magistrate Judge.

Argued: January 31, 2008

Decided and Filed: February 22, 2008

Before: DAUGHTREY and McKEAGUE, Circuit Judges; GWIN, District Judge.*

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COUNSEL

ARGUED: Gina R. Russo, VORYS, SATER, SEYMOUR & PEASE, Columbus, Ohio, for

Appellant. Richard Thomas Cholar, Jr., OHIO ATTORNEY GENERAL OFFICE, Columbus, Ohio,

for Appellees. ON BRIEF: Gina R. Russo, William J. Pohlman, Thomas H. Fusonie, Elizabeth

Hanning Smith, VORYS, SATER, SEYMOUR & PEASE, Columbus, Ohio, David A. Singleton,

OHIO JUSTICE & POLICY CENTER, Cincinnati, Ohio, for Appellant. Richard Thomas Cholar,

Jr., OHIO ATTORNEY GENERAL OFFICE, Columbus, Ohio, for Appellees.

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OPINION

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McKEAGUE, Circuit Judge. Plaintiff-appellant, a prisoner in the custody of the Ohio

Department of Rehabilitation and Correction, challenges the constitutionality of Ohio’s DNA Act,

which requires the collection of DNA specimens from convicted felons. Below, plaintiff sought

declaratory and injunctive relief, contending that the Act is violative of his Fourth Amendment, Fifth

Amendment, due process and equal protection rights. The district court awarded summary judgment

to the defendants on all claims. Finding the district court’s opinion to be well-reasoned and

consistent with the growing body of case law on such challenges to DNA statutes, we affirm.

*

The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by

designation.

1

No. 07-3428 Wilson v. Collins, et al. Page 2

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff-appellant Antoine D. Wilson is an African-American from Columbus, Ohio. After

being found guilty of felonious assault in June 1998, he was sentenced to seven years’

imprisonment, to run concurrently with a three-year term imposed on a firearm specification.

Section 2901.07 of the Ohio Revised Code (“DNA statute” or “the Act”), in its present form,

requires that a person convicted of a felony who is sentenced to a prison term “shall submit to a

DNA [deoxyribonucleic acid] specimen collection procedure.” In October 2003, Wilson submitted,

over his objection, to the collection of a DNA specimen by allowing officials at the Southern Ohio

Correctional Facility to swab buccal cells from the inside of his cheek. Pursuant to the Act, the

resultant sample was forwarded to the Ohio Bureau of Criminal Identification and Investigation

(“BCI&I”) for analysis and for entry of the resultant DNA profile into the state and national DNA

index systems. The DNA profile remains indefinitely in the index systems and is available for use

by law enforcement agencies in seeking matches with DNA evidence obtained in pending and future

criminal investigations. In addition, the DNA samples collected by the Ohio Department of

Rehabilitation and Correction are also stored indefinitely.

Wilson commenced this action in September 2004 by filing a five-count complaint, naming

as defendants the Director of the Ohio Department of Rehabilitation and Correction, the

Superintendent of the BCI&I, the Ohio Attorney General, and the wardens of correctional facilities

where Wilson has been incarcerated. Wilson proceeds under 42 U.S.C. § 1983, alleging that the

collection and maintenance of his DNA sample and the recording of his DNA profile violate his

constitutional rights. By consent of the parties, the case was referred to Magistrate Judge Norah

McCann King for all purposes and, ultimately, for entry of judgment on the parties’ cross-motions

for summary judgment.

The district court granted defendants’ motion for summary judgment in March 2007. On

Count I, the court ruled that the Fourth Amendment protection against unreasonable searches and

seizures is not violated because a prisoner’s diminished privacy rights are outweighed by the state’s

interest in preventing, deterring and solving crimes. On Count II, the court ruled that substantive

due process rights are not violated because the swabbing or extraction of saliva from a prisoner’s

mouth is such a minimal intrusion as to not implicate any fundamental right to bodily integrity. On

Count III, the court held that procedural due process rights are not violated because the DNA sample

collection process is attended by adequate procedural safeguards to minimize the risk of erroneous

deprivation. On Count IV, the court ruled that the Fifth Amendment protection against compulsory

self-incrimination is not violated because DNA samples are not testimonial in nature. Finally, on

Count V, the court held that any disparate adverse impact on African-Americans, who are

disproportionately over-represented in Ohio prison populations, is not actionable because there1 is

no evidence of intentional discrimination. On appeal, Wilson challenges all of these holdings.

II. ANALYSIS

The parties agree that this case poses no questions of fact and that the district court’s legal

rulings in denying Wilson’s motion for summary judgment and granting defendants’ motion for

summary judgment are subject to de novo review. See Cutter v. Wilkinson, 423 F.3d 5879, 584 (6th

Cir. 2005) (“Questions concerning the constitutionality of a statute are reviewed de novo.” (quoting

United States v. Sawyers, 409 F.3d 732, 735 (6th Cir. 2005))).

1

During the pendency of this appeal, on June 17, 2007, Wilson was released from prison, subject to a three-year

period of parole. As explained below, this change in status has no material impact on the merits of his claims.

No. 07-3428 Wilson v. Collins, et al. Page 3

A. Fourth Amendment Unreasonable Search and Seizure

During the last several years, the federal appellate courts have addressed a plethora of claims

by prisoners, parolees, supervised releasees and probationers, challenging the constitutionality of

federal and state laws that require them to submit to collection of DNA specimens for purposes of

DNA profiling. Most of these challenges have been brought as claims for violations of the Fourth

Amendment protection against unreasonable search and seizure. Such Fourth Amendment

challenges have been uniformly rejected by the courts, as the government’s compelling interests in

crime control have consistently been deemed to outweigh the plaintiffs’ diminished privacy interests.

Most recently, the Ninth Circuit rejected such a challenge to the federal DNA Analysis

Backlog Elimination Act, as amended by the Justice for All Act. United States v. Kriesel, 508 F.3d

941 (9th Cir. 2007). The Kriesel court noted that every circuit to consider a Fourth Amendment

challenge to the federal DNA Act has upheld the Act. Id. at 946 (citing United States v. Weikert,

504 F.3d 1, 9 (1st Cir. 2007); Banks v. United States, 490 F.3d 1178, 1183 (10th Cir. 2007); United

States v. Amerson, 483 F.3d 73, 78 (2d Cir. 2007); United States v. Hook, 471 F.3d 766, 772-74 (7th

Cir. 2006); United States v. Conley, 453 F.3d 674, 677-81 (6th Cir. 2006); United States v. Kraklio,

451 F.3d 922, 924 (8th Cir. 2006); United States v. Castillo-Lagos, 147 F. App’x 71 (11th Cir.

2005)). In each of these cases, whether the court saw fit to apply the “special needs” test or, instead,

the “totality of the circumstances” test, the result was the same. Because the government’s

compelling interests in crime control were deemed to outweigh the challenger’s diminished privacy

rights, the challenged “search” was held not to be unreasonable.2 In Conley, the Sixth Circuit

upheld the federal DNA Act under both tests.

Moreover, Fourth Amendment challenges to parallel state DNA-indexing statutes have met

with similar results. See e.g., Padgett v. Donald, 401 F.3d 1273 (11th Cir. 2005) (Georgia statute);

Green v. Berge, 354 F.3d 675 (7th Cir. 2004) (Wisconsin statute); Shaffer v. Saffle, 148 F.3d 1180

(10th Cir. 1998) (Oklahoma statute); Schlicher v. Peters, 103 F.3d 940 (10th Cir. 1996) (Kansas

statute); Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996) (Colorado statute); Jones v. Murray, 962

F.2d 302 (4th Cir. 1992) (Virginia statute).

Nonetheless, appellant Wilson maintains the district court erred in awarding judgment to the

state defendants on his Count I Fourth Amendment claim.

1. “Totality of the Circumstances” Test or “Special Needs” Test?

Although the federal courts have reached uniform results, they have been divided regarding

the most appropriate test to apply in scrutinizing a Fourth Amendment challenge to a DNA-indexing

statute. Under the “totality of the circumstances” test, determining whether a search is reasonable

requires “assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy

and, on the other, the degree to which it is needed for the promotion of legitimate governmental

interests.” Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 2197 (2006) (quoting United States

v. Knights, 534 U.S. 112, 118-19 (2001)); see also Conley, 453 F.3d at 679-80. In Samson, the

Supreme Court applied the totality-of-the-circumstances test in evaluating and upholding a

2

The cases recognize a “privacy continuum,” in which an offender’s diminished privacy interests wax or wane,

depending on his status in the criminal justice system. See Banks, 490 F.3d at 1186-87. For instance, the privacy

interests of a convicted felon who is a prisoner are, for purposes of DNA profiling, practically extinguished, see id.;

whereas the privacy interests of a parolee or supervised releasee, which status represents “an established variation on

imprisonment,” see Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 2199 (2006), are slightly less diminished; and

the privacy interests of a probationer, depending on the conditions of his probation, are somewhat more substantial,

“because parole is more akin to imprisonment than probation is,” id. at 2198; and the privacy interests of a felon whose

term of imprisonment or supervision has expired are greater still, approaching those of one who has never been

convicted, Banks, 490 F.3d at 1186-87.

No. 07-3428 Wilson v. Collins, et al. Page 4

suspicionless search of a parolee. The Court expressly observed that application of the totality-of-

the-circumstances test rendered examination of the search under the “special needs” test

unnecessary. 126 S.Ct. at 2199.

Under the “special needs” doctrine, the Supreme Court has recognized that a warrantless,

suspicionless search may be justified “when special needs, beyond the normal need for law

enforcement, make the warrant and probable-cause requirement impracticable.” Griffin v.

Wisconsin, 483 U.S. 868, 873 (1987). While a “general interest in crime control” does not suffice,

“some special law enforcement concerns” may justify a minimal intrusion during information-

seeking efforts where “the concept of individualized suspicion has little role to play.” Illinois v.

Lidster, 540 U.S. 419, 424-25 (2004). If a “special need” for the suspicionless search is identified,

then the “reasonableness” of the search must be evaluated, balancing the gravity of the public

interests, the degree to which the intrusion advances the public interests, and the severity of the

interference with individual liberty. Id. at 426-27. The special-needs test is thus a more stringent

test, adding a threshold step to the totality-of-the-circumstances test and requiring the court to first

identify some “special need beyond the normal need for law enforcement” before undertaking a

balancing of interests. Amerson, 483 F.3d at 79 n.6.

In the wake of the Samson ruling, in which the Supreme Court upheld a suspicionless search

of a parolee without bothering to identify any special need, courts have viewed Samson as

affirmatively signaling that the totality-of-the-circumstances test is the appropriate test for assessing

the reasonableness of suspicionless DNA collection requirements as applied to parolees and

supervised releasees. Kriesel, 508 F.3d at 946-47; Weikert, 504 F.3d at 9; Banks, 490 F.3d at 1185.

But see Amerson, 483 F.3d at 78-79 (holding the special-needs test remains the proper framework

for analyzing the constitutionality of a DNA-indexing statute when applied to probationers, whose

privacy interests are not as diminished as those of parolees); Hook, 471 F.3d at 772-73 (applying

special-needs test to the claim of a supervised releasee without mentioning Samson).

Wilson urges the court to apply the special-needs test, as the district court did below, but

contends that the district court misapplied the test.3 Wilson contends Samson should be narrowly

construed as applying the totality-of-the-circumstances test in lieu of the special-needs test only

under circumstances where a suspicionless search of a parolee is expressly authorized by parole

agreement and by state law. The argument is expressly refuted by Samson itself. It is true that

Samson’s parole agreement included a search condition that the Supreme Court viewed as

demonstrating that Samson had a significantly diminished expectation of privacy as a parolee. Yet,

the Court expressly declined to rest its holding on a consent rationale, expressly declined to address

whether the search condition was justified as a special need, and expressly anchored its holding in

general Fourth Amendment reasonableness principles. Samson, 126 S.Ct. at 2199.

Accordingly, we conclude—consistent with the conclusion reached by the Ninth Circuit in

Kriesel, the First Circuit in Weikert, and the Tenth Circuit in Banks—that the Ohio DNA statute, as

applied to Wilson, is properly evaluated under the totality-of-the-circumstances test. If, per Samson,

the totality of the circumstances test affords sufficient assurance of the reasonableness of a

suspicionless search of a parolee, who has less diminished privacy rights than a prisoner, then it

clearly affords adequate protection to the rights of a prisoner. Wilson was a prisoner when

corrections officials collected his DNA sample and when the district court evaluated the merits of

his claim. Now, to the extent Wilson’s Fourth Amendment claim may be considered to be premised

on his slightly greater privacy interests as a parolee (challenging not the collection of the DNA

3

The district court, following Conley’s lead, evaluated the Ohio DNA statute under both tests.

No. 07-3428 Wilson v. Collins, et al. Page 5

sample, but the state’s continued retention and potential abuse of both his4DNA information and

sample), Wilson’s claim still falls squarely within the teaching of Samson.

2. Reasonableness Balancing

The totality-of-the-circumstances test requires the court to determine the reasonableness of

the subject search based on a balancing of the state’s interests against Wilson’s privacy interests.

In Conley, the Sixth Circuit undertook this interest-balancing exercise in connection with a Fourth

Amendment challenge to the federal DNA Act by a supervised releasee. The court characterized

the government’s interests in establishing a nationwide DNA database as “compelling.” Conley, 453

F.3d at 680 (quoting with approval United States v. Sczubelek, 401 F.3d 175, 185 (3d Cir. 2005)).

The court identified several purposes served by the federal Act’s DNA collection and indexing

requirements: obtaining reliable proof of convicted felons’ identities; promoting increased accuracy

in the investigation and prosecution of crimes; deterring convicted felons from committing

additional crimes, thereby protecting communities in which they are eventually released; and aiding

in the solving of crimes by serving to exculpate the innocent and inculpate the guilty. Id. at 678-80.

Considering the minimal intrusion implicated by the drawing of a blood sample, the court

concluded that the government interests outweighed Conley’s greatly diminished privacy interests

as a convicted felon. Id. at 680-81.

Wilson attempts to distinguish Conley by arguing that Ohio’s interests in enacting the Ohio

DNA statute should be judged by its legislative history, not by the purposes served by the federal

DNA Act. He argues the legislative history demonstrates that the collection of DNA samples from

convicted felons in Ohio was authorized to promote the administration of criminal justice and aid

in deterring, preventing and solving crimes. Obviously, these purposes are substantially similar to

those identified in Conley. Wilson does not argue that these interests are not compelling, but

maintains they are ordinary law enforcement objectives that do not qualify as “special needs.”

The argument is unavailing for two reasons. First, the governmental interests need not

qualify as “special needs” under the totality-of-the-circumstances test, which, as indicated above,

is properly applied in this case. Second, even courts that have applied the special-needs test have

found that the very purposes identified both in Conley and in the cited legislative history are not

“ordinary,” but “special” law enforcement concerns that do qualify as special needs. See e.g.,

Amerson, 483 F.3d at 81-83; Hook, 471 F.3d at 772-73.

Further, Conley is not materially distinguishable on the basis of the extent of intrusion, as

the swabbing of saliva to obtain a DNA sample is even less invasive than the drawing of a blood

sample. Amerson, 483 F.3d at 84. Finally, Wilson’s privacy interests, first as a prisoner and now

as a parolee, are less substantial or certainly no greater than those asserted by Conley, a supervised

releasee.

Unable to distinguish Conley, Wilson argues that it is wrongly decided. Yet, his arguments

are the same arguments that have been consistently and conclusively rejected by the overwhelming

weight of authority. Hence, even if we were free to depart from the precedent established in Conley,

we have been presented no persuasive reason to do so. Because the Ohio DNA statute appears to

be materially indistinguishable from the federal DNA Act and other similar state statutes that have

been uniformly upheld by the federal courts against Fourth Amendment challenge, we find no error

in the district court’s judgment in favor of the state defendants on Wilson’s Count I claim.

4

Even if we were to apply the more stringent special-needs test, there is no reason to believe the ultimate result

would be different. It appears that every circuit that has applied the special-needs test has found the government’s

interest in DNA indexing to be a special need and has upheld the challenged statute. See e.g., Conley, 453 F.3d at 677-

79; Amerson, 483 F.3d 81-89; Hook, 471 F.3d at 772-73.

No. 07-3428 Wilson v. Collins, et al. Page 6

B. Substantive Due Process

In Count II, plaintiff alleges that the involuntary collection and retention of his DNA

specimen and DNA information constitute a deprivation of property and liberty without due process.

The district court awarded judgment to the state defendants on this claim in part based on Graham

v. Connor, 490 U.S. 386, 395 (1989), concluding that, to the extent the claim is based on the

involuntary extraction of a DNA sample, plaintiff complains of an “unreasonable search and

seizure,” a wrong for which a “more explicit textual source of constitutional protection” is found in

the Fourth Amendment. Given the protection afforded by the Fourth Amendment, the court

correctly concluded, per Graham, that plaintiff could not also proceed with a claim under the “more

generalized notion of substantive due process.” Graham, 490 U.S. at 395.

Yet, the analysis of the substantive due process claim does not stop here. Wilson’s

substantive due process claim is not based solely on the taking of his saliva, but also on the

indefinite retention of his DNA sample and DNA information, as well as the sharing of his DNA

profile through the state and national DNA-indexing systems. These actions, he alleges, constitute

a deprivation of his liberty interest in nondisclosure of private information and are separately

actionable as a substantive due process violation. Indeed, to the extent the claim is premised on the

retention and disclosure of personal DNA information, it does not implicate the Fourth Amendment,

see Johnson v. Quander, 440 F.3d 489, 498 (D.C. Cir. 2006), and may arguably be pursued as a

substantive due process violation without transgressing Graham.

The district court also addressed this dimension of Wilson’s substantive due process claim,

but only perfunctorily. It relied on Padgett v. Donald, 401 F.3d 1273, 1280-81 (11th Cir. 2005), in

concluding that Wilson’s liberty interest in his personal DNA information is not such a

“fundamental right” “implicit in the concept of ordered liberty” as to receive protection under the

rubric of substantive due process. Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). Yet,

as Wilson points out on appeal, the Padgett court did not actually address whether a prisoner’s

privacy interest in nondisclosure of personal DNA information is unconstitutionally infringed by the

state’s disclosure thereof in the DNA-indexing systems because the claim had not been asserted.

Wilson insists that this privacy interest is a fundamental right, but acknowledges that the

Sixth Circuit has rejected the notion. Whereas some other circuits have recognized the existence

of a constitutional right of privacy in various types of confidential information, see Denius v.

Dunlap, 209 F.3d 944, 957-58 (7th Cir. 2000) (collecting cases), the Sixth Circuit has held “that the

Constitution does not encompass a general right to nondisclosure of private information.” Cutshall

v. Sundquist, 193 F.3d 466, 480 (6th Cir. 1999). Instead, the Sixth Circuit has continued to restrict

the right of privacy to those rights that can be deemed “fundamental” or “implicit in the concept of

ordered liberty.” Id.; see also Overstreet v. Lexington-Fayette Urban County Gov’t, 305 F.3d 566,

574 (6th Cir. 2002). These “‘fundamental’ interests include the privacy interest one has in matters

relating to marriage, procreation, contraception, family relationships, child rearing, and education.”

Overstreet, 305 F.3d at 575.

Wilson asks the court to expand the list of fundamental interests to include the confidentiality

of his DNA profile, which he says contains a host of personal and medical information. He has

failed to cite a single case, however, in which the disclosure of DNA profiles in DNA indexes has

been held to abridge any right to privacy, much less a fundamental right entitled to the protection

of substantive due process. Moreover, the state defendants maintain that the DNA profile disclosed

in the Combined DNA Index System (“CODIS”) does not contain sensitive personal information,

but is useful for human identity testing only. According to Dr. Julie A. Heinig, Assistant Laboratory

Director of Forensic Services at the DNA Diagnostics Center in Fairfield, Ohio, no “personal

information,” such as “race, criminal history or case-related information” is contained in CODIS.

No. 07-3428 Wilson v. Collins, et al. Page 7

On this record, it is clear that Wilson, a convicted felon, does not have a fundamental privacy

interest in the information contained in his DNA profile that is protected by substantive due process.

Where the state’s collection of the DNA specimen that produced the profile has been shown to be

justified for Fourth Amendment purposes (considering (a) the compelling governmental interests

in crime control, (b) the diminished privacy interest of a convicted felon, and (c) the minimal

intrusion necessitated by collection of the specimen), the notion that principles of substantive due

process would apply to frustrate the compelling governmental interests by prohibiting the disclosure

of the DNA profile in CODIS is simply untenable.

Still, Wilson protests, contending that the state’s indefinite retention of his DNA sample,

which, given advancements in scientific technology, may be “mined” in the future for a host of

personal and medical information beyond that contained in his present DNA profile, cannot be

justified. Indeed, Dr. Heinig recognized that blood or buccal samples contain genetic information

that could conceivably be subject to misuse. She also observed, however, that the Act prescribes

strict penalties for misuse of the samples or unauthorized disclosure of such information. These

safeguards adequately ensure that any risk to Wilson’s legitimate privacy interests is minimized.

See Amerson, 483 F.3d at 85.

Further, Wilson’s concerns are purely speculative. The hypothetical possibility of some

future abuse does not substantiate a justiciable controversy. See Banks, 490 F.3d at 1191-92

(recognizing potential for abuse of DNA information despite statutory safeguards, but, in the

absence of evidence of abuse, refusing to adjudicate based on speculation); Amerson, 483 F.3d at

86-87 (same); Johnson, 440 F.3d at 499 (same); Boling v. Romer, 101 F.3d 1336, 1341 (10th Cir.

1996) (“[P]laintiff’s assertion that the state might misuse the information derived from his DNA

samples, when he makes no allegations of any specific misuse, fails to state a justiciable

controversy.”). Accordingly, we find no error in the district court’s judgment in favor of defendants

on the substantive due process claim, as Wilson has failed to identify and substantiate infringement

of any protected fundamental privacy interest.

C. Procedural Due Process

In Count III, Wilson alleges that he was deprived of property and liberty without procedural

due process when his DNA specimen was collected and his DNA profile disclosed in CODIS

without a pre-deprivation hearing. The district court rejected the claim, observing that due process

is a flexible concept and concluding that, since Wilson had diminished privacy interests as a

prisoner, the degree of intrusion was minimal, and the risk of erroneous deprivation was slight, no

pre-deprivation hearing was required. In support, the district court observed that the Sixth Circuit

has already upheld the Ohio DNA statute against procedural due process challenge in an

unpublished opinion, Williams v. Dep’t of Rehabilitation and Correction, 3 F. App’x 415, 417 (6th

Cir. 2001) (holding that collection of a DNA blood sample was a de minimis taking not entitled to

extensive due process protections).5 In addition, the district court cited similar rulings by other

circuits: Boling, 101 F.3d at 1340-41 (rejecting due process challenge to Colorado’s DNA statute);

Rise v. Oregon, 59 F.3d 1556, 1562-63 (9th Cir. 1995) (observing that little purpose would be served

by requiring a pre-deprivation hearing before extraction of a DNA blood sample, since the only

criterion is conviction of a predicate offense); Johnson v. Quander, 370 F. Supp. 2d 79, 90-93

(D.D.C. 2005) (noting that statutory limits on use of DNA samples render any risk of erroneous

deprivation remote), aff’d, 440 F.3d 489 (D.C. Cir. 2006).

5

The Williams holding has been recently confirmed in United States v. Bean, 214 F. App’x 568, 571-72 (6th

Cir. 2007), addressing a procedural due process challenge to the federal DNA Act.

No. 07-3428 Wilson v. Collins, et al. Page 8

Wilson quarrels in vain with the well-established notion that, as a prisoner, he had only

extremely limited privacy interests.6 He has also failed to identify what purpose would be served

by a pre-deprivation hearing or other process. Further, while Wilson takes issue with the case law

authorities relied on by the district court, he fails to demonstrate that they are wrongly decided and

fails to identify a single decision by any court that recognizes a prisoner’s procedural due process

right to a hearing before collection of a DNA sample or disclosure of a DNA profile in CODIS.

Hence, Wilson’s objection to the district court’s judgment in favor of the state defendants on

Wilson’s Count III procedural due process claim is overruled.

D. Fifth Amendment Self-Incrimination

In Count IV of his complaint, Wilson alleges the state’s collection and retention of his DNA

sample constitutes a violation of this Fifth Amendment privilege against self-incrimination. He

maintains that DNA is testimonial because it could reveal personal information and therefore come

within the ambit of the Fifth Amendment. The district court rejected the claim, citing numerous

federal court decisions holding that DNA samples are not testimonial in nature. On appeal, Wilson

has failed to identify a single contrary authority.

Most recently, the Ninth Circuit confirmed the unanimous view: “The extraction of DNA

doesn’t implicate the privilege against self-incrimination because DNA samples are ‘physical’

evidence, not ‘testimonial’ evidence.” United States v. Zimmerman, — F.3d —, 2007 WL 4394421

at *3 (9th Cir. Dec. 18, 2007) (citing Schmerber v. California, 384 U.S. 757, 765 (1966) (holding

that “blood test evidence, although an incriminating product of compulsion, [is] neither [ ] testimony

nor evidence relating to some communicative act or writing” and is therefore not protected by the

Fifth Amendment)). See also Bean, 214 F. App’x at 571 (same); Hook, 471 F.3d at 773 (same);

Boling, 101 F.3d at 1340 (same). These rulings recognize that a DNA sample is analogous to a

photograph or fingerprint, another form of physical evidence identifying an individual that falls

outside the scope of Fifth Amendment protection. Again, Wilson gives us no reason to depart from

these precedents, which we find to be persuasive. We therefore uphold the district court’s judgment

as to Count IV.

E. Disparate Impact

In Count V, Wilson alleges that the Ohio DNA statute has a disproportionate adverse impact

on African-Americans because African-Americans make up a disproportionately large percentage

of Ohio prison populations as compared to their representation in the general population. He argues

that this disparate impact is actionable under 42 U.S.C. § 1983 in two ways: (1) as violative of

Department of Justice regulations implementing § 602 of Title VI of the Civil Rights Act of 1964;

and (2) as violative of Wilson’s constitutional right to equal protection of the laws.

1. DOJ Regulations Implementing Title VI

The district court correctly rejected the first theory, citing Johnson v. City of Detroit, 446

F.3d 614, 629 (6th Cir. 2006). In Johnson, the court held that a federal regulation alone cannot

create a right enforceable through § 1983. Wilson acknowledges that the Supreme Court has held

that Congress did not intend to create a private right of action to enforce § 602 of Title VI

(forbidding disparate impact practices). Alexander v. Sandoval, 532 U.S. 275, 289-90 (2001). He

6

At the time Wilson’s DNA sample was collected, the time before which he claims he ought to have been

afforded a hearing, he was a prisoner, i.e., a person with very limited privacy rights. To the extent he now argues that

his privacy rights are enhanced (i.e., now that he is a parolee) and soon may be fully restored (i.e., when he completes

his term of parole supervision), he relies on circumstances that can hardly justify a retrospective requirement that he

ought to have been afforded a pre-deprivation hearing.

No. 07-3428 Wilson v. Collins, et al. Page 9

argues, however, that the Court left open the possibility that disparate impact claims enforcing

§ 602 could be brought through § 1983, citing the dissenting opinion of Justice Stevens. Id. at 299-

301.

Yet, while the dissenting opinion appears to have left open the possibility, the Court’s

majority opinion did not: “[W]e have found no evidence anywhere in the text to suggest that

Congress intended to create a private right to enforce regulations promulgated under § 602.” Id. at

291. Subsequently, two circuits have interpreted Sandoval as meaning that regulations promulgated

pursuant to § 602 of Title VI cannot be enforced through a private cause of action under 42 U.S.C.

§ 1983. Save Our Valley v. Sound Transit, 335 F.3d 932, 939-40 (9th Cir. 2003); South Camden

Citizens in Action v. New Jersey Dep’t of Env. Protection, 274 F.3d 771, 789 (3d Cir. 2001). The

reasoning employed in Johnson is consistent with these decisions. Wilson has not identified any

case specifically holding that § 602 regulations are enforceable through a § 1983 action. We

therefore reject his contention that Johnson is not controlling and that he can maintain a § 1983

action to enforce regulations promulgated pursuant to § 602 of Title VI.

2. Equal Protection

Wilson correctly argues that the district court’s ruling neglected to address his equal

protection theory. This may be because Count V of his complaint does not expressly allege a

violation of his equal protection rights; it relies exclusively on Title VI of the Civil Rights Act. Yet,

even if we assumed Wilson properly stated a claim for denial of equal protection, it is apparent that

the state defendants would have been entitled to summary judgment.

Wilson acknowledges that the Ohio DNA Act is facially neutral. He also acknowledges that

to prevail on his claim that the Act nonetheless violates equal protection, he must prove the

existence of a racially discriminatory purpose behind the statute. Washington v. Davis, 426 U.S.

229, 239-40 (1976). He admits that he lacks any direct evidence that the Ohio legislature enacted

the statute with racially discriminatory intent, but asks the court to draw an inference of invidious

racially discriminatory purpose based on the totality of the relevant facts. Yet, he has failed to

identify any relevant facts supporting the urged inference other than disparate impact.

Washington recognizes that evidence of disparate impact alone, though not irrelevant, is

insufficient to justify an inference of invidious discriminatory purpose. Id. at 242. “‘Discriminatory

purpose’ . . . implies more than intent as volition or intent as awareness of consequences. It implies

that the decisionmaker . . . selected . . . a particular course of action at least in part ‘because of,’ not

merely ‘in spite of,’ its adverse effects on an identifiable group.” Hernandez v. New York, 500 U.S.

352, 360 (1991) (quoting Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279 (1979)).

The record is devoid of evidence of such a discriminatory purpose.

Accordingly, Wilson having presented no evidence other than disparate impact to support

his equal protection claim, summary judgment was properly awarded to the state defendants on this

claim as well.

III. CONCLUSION

For the foregoing reasons, the district court’s judgment, awarding summary judgment in

favor of the state defendants on all five of plaintiff Wilson’s challenges to the Ohio DNA statute,

is AFFIRMED.