Wednesday, June 5, 2013
Barry Friedman (NYU Law) has this post at Slate.com. In part:
The rule should be that the government must have a really, really good reason to subject a particular group to a regulatory search—for example to collect DNA from arrestees rather than from everyone. The DNA test of King couldn’t survive as an investigative search because there was no reason to believe, at the time his cheek was swabbed, that he’d committed the rape for which he ultimately was convicted. Could the DNA collection be justified on a regulatory basis? The right question is this: Did the fact that Alonzo King was accused (not convicted) of pulling a shotgun on some folks provide a better reason to believe he’d committed an unrelated rape than that anyone else walking the streets had done so? Hardly. And that is why the justices got Maryland v. King wrong.
Hat tip: How Appealing.