                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ELIZABETH AIDA HASKELL;                   No. 10-15152
REGINALD ENTO; JEFFREY PATRICK
LYONS, JR.; AAKASH DESAI, on                 D.C. No.
behalf of themselves and others           3:09-cv-04779-
similarly situated,                            CRB
                 Plaintiffs-Appellants,

                  v.                        OPINION

KAMALA D. HARRIS, Attorney
General; EVA STEINBERGER,
Assistant Bureau Chief for DNA
Programs, California Department of
Justice,
              Defendants-Appellees.


     Appeal from the United States District Court
         for the Northern District of California
   Charles R. Breyer, Senior District Judge, Presiding

           Argued and Submitted En Banc
      December 9, 2013—San Francisco, California

                  Filed March 20, 2014

Before: Alex Kozinski, Chief Judge, Harry Pregerson, M.
  Margaret McKeown, Raymond C. Fisher, Ronald M.
Gould, Richard A. Paez, Richard C. Tallman, Johnnie B.
2                      HASKELL V. HARRIS

 Rawlinson, Milan D. Smith, Jr., N. Randy Smith and Paul
               J. Watford, Circuit Judges.

                   Per Curiam Opinion;
          Concurrence by Judge Milan D. Smith, Jr.


                           SUMMARY*


                            Civil Rights

    The en banc court affirmed the district court’s denial of a
preliminary injunction in a class action brought under
42 U.S.C. § 1983 in which plaintiffs challenged a California
law that requires all persons arrested for or charged with any
felony or attempted felony to submit DNA samples for
inclusion in law enforcement databases.

    The en banc court determined that plaintiffs’ facial and
as-applied challenges to the law turned on essentially the
same question: Whether California’s DNA collection scheme
was constitutional as applied to anyone “arrested for, or
charged with, a felony offense by California state or local
officials.” The en banc court held that after Maryland v.
King, 133 S. Ct. 1958 (2013), the answer to that question was
clearly yes. The en banc court held that the district court
therefore did not abuse its discretion by denying a
preliminary injunction that would apply to the entire class.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     HASKELL V. HARRIS                        3

    The en banc court declined plaintiffs’ request to enter a
preliminary injunction applicable only to a smaller class
consisting of individuals arrested for certain felonies that
were not, in plaintiffs’ view, covered by King. The en banc
court stated that if plaintiffs believed they were entitled to a
preliminary injunction as to a smaller class, they were free to
seek it from the district court and then seek review on appeal.

    Concurring in the judgment, Judge M. Smith stated that
he agreed that the district court properly denied the motion
for a preliminary injunction, but wrote separately to
emphasize that California’s DNA collection law is materially
indistinguishable from the Maryland law upheld in King.
Judge M. Smith stated that because the last paragraph of the
per curiam opinion vaguely implied that something of
plaintiffs’ lawsuit may survive King, he respectfully
concurred only in the judgment.


                         COUNSEL

Peter C. Meier, Paul Hastings LLP, San Francisco, California,
Michael T. Risher, American Civil Liberties Union
Foundation of Northern California, Inc., San Francisco,
California (argued), for Plaintiffs-Appellants.

Kamala D. Harris, Attorney General, Douglas J. Woods,
Senior Assistant Attorney General, Tamar Pachter,
Supervising Deputy Attorney General, Enid A. Camps,
Deputy Attorney General (argued), Daniel J. Powell, Deputy
Attorney General, San Francisco, California, for Defendants-
Appellees.
4                    HASKELL V. HARRIS

                          OPINION

PER CURIAM:

    California law requires that all persons arrested for or
charged with any felony or attempted felony submit DNA
samples for inclusion in law enforcement databases. Cal.
Penal Code § 296(a)(2), (4). Plaintiffs brought a class action
under 42 U.S.C. § 1983, alleging that the law is
unconstitutional on its face and as applied to the certified
class, which includes “[a]ll persons who are, or will be,
compelled to submit to the search and seizure of their body
tissue and DNA under California Penal Code § 296(a)(2)(C)
solely by reason of the fact that they have been arrested for,
or charged with, a felony offense by California state or local
officials.” The district court denied a motion for a
preliminary injunction, Haskell v. Brown, 677 F. Supp. 2d
1187, 1189–90 (N.D. Cal. 2009), and plaintiffs appealed,
28 U.S.C. § 1292(a)(1).

    A plaintiff seeking a preliminary injunction must
demonstrate (1) a likelihood of success on the merits, (2) that
he is likely to suffer irreparable harm in the absence of an
injunction, (3) that the balance of equities favors his position
and (4) that the injunction is in the public interest. Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
Winter “requires the plaintiff to make a showing on all four
prongs.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1135 (9th Cir. 2011). Here, the plaintiffs cannot show
that they will likely succeed on the merits.

    Plaintiffs’ facial and as-applied challenges turn on
essentially the same question: Is California’s DNA collection
scheme constitutional as applied to anyone “arrested for, or
                     HASKELL V. HARRIS                        5

charged with, a felony offense by California state or local
officials?” After Maryland v. King, 133 S. Ct. 1958 (2013),
the answer is clearly yes. Plaintiffs’ counsel conceded as
much at oral argument. Given that concession, plaintiffs
cannot show that the district court abused its discretion in
denying a preliminary injunction that would apply to the
entire class. See Winter, 555 U.S. at 20; Alliance for the Wild
Rockies, 632 F.3d at 1131.

     Plaintiffs ask us to enter a preliminary injunction
applicable only to a smaller class consisting of individuals
arrested for certain felonies that are not, in plaintiffs’ view,
covered by Maryland v. King. But we are a court of review,
not first view: We are limited to deciding whether the district
court abused its discretion in denying the injunction plaintiffs
sought. See Bull v. City & Cnty. of S.F., 595 F.3d 964,
967–68 (9th Cir. 2010) (en banc). If plaintiffs believe they’re
entitled to a preliminary injunction as to a smaller class, they
are free to seek it from the district court and we will review
it if and when it is presented to us.

   AFFIRMED.



M. SMITH, Circuit Judge, concurring in the judgment:

    I agree with the per curiam opinion that California’s DNA
collection law is clearly “constitutional as applied to anyone
arrested for, or charged with, a felony offense by California
state or local officials.” Accordingly, I also agree that the
district court properly denied Plaintiffs-Appellants’
(Plaintiffs) motion for a preliminary injunction. See Winter
v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). I
6                    HASKELL V. HARRIS

write separately, however, to make clear what the per curiam
opinion regrettably leaves unsaid. California’s DNA
collection law is materially indistinguishable from the
Maryland law upheld in Maryland v. King, 133 S. Ct. 1958
(2013), and Plaintiffs’ facial and as-applied challenges to
California’s law therefore fail. Because the last paragraph of
the per curiam opinion vaguely implies that something of
Plaintiffs’ lawsuit may survive King, I respectfully concur
only in the judgment.

                               I.

    Because the per curiam opinion does not describe the
relevant factual and procedural background of this case, I do
so here.

                              A.

    In 2004, California voters approved Proposition 69, which
requires law enforcement to collect DNA samples from “any
adult person arrested or charged with any felony offense . . .
immediately following arrest, or during the booking . . .
process or as soon as administratively practicable after arrest,
but, in any case, prior to release on bail or pending trial or
any physical release from confinement or custody.” Cal.
Penal Code §§ 296(a)(2)(C), 296.1(a)(1)(A). The law took
effect on January 1, 2009. Officers typically collect the DNA
sample from a buccal swab that is swept along an arrestee’s
inner cheek. An arrestee’s failure to comply with the DNA
collection is a misdemeanor. Id. § 298.1(a).

    Once officers collect the DNA sample, it is sent to a state
laboratory, which creates a DNA profile of the arrestee. The
laboratory then uploads the DNA profile into the Combined
                    HASKELL V. HARRIS                        7

DNA Index System (CODIS), a nationwide collection of
federal, state, and local DNA profiles.

    Only law enforcement officials may access a DNA
profile, and they may only use the DNA for identification
purposes. Id. §§ 295.1(a), 299.5(f). Unauthorized access or
disclosure is punishable under state law by imprisonment and
a criminal fine. Id. § 299.5(i). Federal law imposes similar
penalties for unauthorized use of, or access to, CODIS. See
42 U.S.C. §§ 14133(c), 14135e(c). An arrestee who is not
ultimately convicted may ask the trial court to order the
sample destroyed and the DNA profile expunged. Cal. Penal
Code § 299(b).

                              B.

    Plaintiffs in this case provided DNA samples in
connection with their felony arrests, but they were never
convicted of the crimes for which they were arrested. On
October 7, 2009, Plaintiffs filed a complaint, on behalf of a
putative class, asserting that California’s DNA collection law
is unconstitutional, both facially and as applied. On October
30, 2009, Plaintiffs moved for a preliminary injunction
barring the application of the law to persons arrested for, but
not convicted of, a felony offense. The district court denied
Plaintiffs’ motion for a preliminary injunction on December
23, 2009. Plaintiffs timely appealed.

                              II.

    The Supreme Court’s decision in King is fatal to
Plaintiffs’ claims. In King, the Court held that “[w]hen
officers make an arrest supported by probable cause to hold
for a serious offense and they bring the suspect to the station
8                   HASKELL V. HARRIS

to be detained in custody, taking and analyzing a cheek swab
of the arrestee’s DNA is, like fingerprinting and
photographing, a legitimate police booking procedure that is
reasonable under the Fourth Amendment.” 133 S. Ct. at
1980. The Court recognized that although other DNA-
collection statutes “vary in their particulars, such as what
charges require a DNA sample, their similarity means that
this case implicates more than the specific Maryland law. At
issue is a standard, expanding technology already in
widespread use throughout the Nation.” Id. at 1968.

    Despite the clarity of the Supreme Court’s holding,
Plaintiffs argue that King does not apply to California’s DNA
collection law. But the purported distinctions that Plaintiffs
identify are illusory.

                              A.

    Plaintiffs first argue that King is distinguishable because
Maryland’s law applies only to burglaries, crimes of violence,
and attempts at either, which the Supreme Court
characterized as “serious crimes.” Id. at 1967. By contrast,
California’s law applies to all felonies. See Cal. Penal Code
§ 296(a)(2)(C). Plaintiffs contend that this difference is
significant, as the California law applies to more minor
crimes in which DNA evidence will rarely be relevant,
including “wobblers” that can be charged as either a
misdemeanor or a felony.

    This argument has no traction. The Maryland law’s list
of “serious crimes,” King, 133 S. Ct. at 1967, does not differ
significantly from the California law’s limitation to adult
felony arrestees. A felony is, of course, a serious crime. See
Black’s Law Dictionary 694 (9th ed. 2009) (defining felony
                    HASKELL V. HARRIS                        9

as “[a] serious crime usu[ally] punishable by imprisonment
for more than one year or by death”). Indeed, in outlining the
scope of its decision, the Supreme Court explained that
“[b]oth federal and state courts have reached differing
conclusions as to whether the Fourth Amendment prohibits
the collection and analysis of a DNA sample from persons
arrested, but not yet convicted, on felony charges.” King,
133 S. Ct. at 1966 (emphasis added). The Court then stated
that it “granted certiorari . . . to address the question.” Id.
When viewed against this broad language, Plaintiffs’ attempt
to limit King in this way is baseless.

    More fundamentally, the Court’s reasoning in King is not
dependent on the seriousness of the crimes involved. In
upholding Maryland’s law, the Supreme Court defined the
state’s interest in obtaining DNA as “identifying [the
arrestee] not only so that the proper name can be attached to
his charges but also so that the criminal justice system can
make informed decisions concerning pretrial custody.” King,
133 S. Ct. at 1980. Under the Court’s rationale, the
magnitude of the state’s interest does not necessarily depend
on the seriousness of the crime of arrest. As the majority
observed, “people detained for minor offenses can turn out to
be the most devious and dangerous criminals.” Id. at 1971
(quoting Florence v. Bd. of Chosen Freeholders, 132 S. Ct.
1510, 1520 (2012)) (internal alteration omitted).

    The four dissenting Justices in King similarly recognized
that there is no basis for limiting the Court’s holding to
certain enumerated crimes. Describing the breadth of the
majority’s reasoning, Justice Scalia explained in dissent that
“[i]f one believes that DNA will ‘identify’ someone arrested
for assault, he must believe that it will ‘identify’ someone
arrested for a traffic offense.” King, 133 S. Ct. at 1989
10                   HASKELL V. HARRIS

(Scalia, J., dissenting). Justice Scalia thus reasoned that “[a]s
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.” Id. He predicted that “[w]hen there comes before us
the taking of DNA from an arrestee for a traffic violation, the
Court will predictably (and quite rightly) say, ‘We can find
no significant difference between this case and King.’” Id.

     Thus, the California law’s limitation to felony arrests is
not meaningfully different from the Maryland law’s
restriction to certain “serious crimes.” In upholding the
Maryland law, the Supreme Court identified the state’s
interest as identifying the arrestee as part of the booking
process. This state interest does not vary with the
“seriousness” of the felony at issue. Accordingly, Plaintiffs’
first attempt to distinguish King fails.

                               B.

    Plaintiffs next argue that California’s law is
distinguishable from the Maryland law approved in King
because (1) it authorizes the collection of DNA from arrestees
never charged with a crime; and (2) it allows police to
analyze DNA samples without a judicial finding of probable
cause.     But, under King, these differences are not
constitutionally relevant.

    Unlike California, Maryland does not process DNA
samples until after suspects are arraigned. See King, 133 S.
Ct. at 1967. Nevertheless, the Supreme Court in King
repeatedly emphasized the permissibility of DNA collection
from arrestees at booking, holding that “DNA is, like
fingerprinting and photographing, a legitimate police booking
                     HASKELL V. HARRIS                       11

procedure that is reasonable under the Fourth Amendment.”
Id. at 1980. Indeed, the Court expressly held that “[i]n light
of the context of a valid arrest supported by probable cause
[the arrestee’s] expectations of privacy were not offended by
the minor intrusion of a brief swab of his cheeks.” Id.
(emphasis added).

    In light of the Supreme Court’s focus on the collection of
DNA samples in connection with arrest and booking,
Plaintiffs’ argument that the filing of charges and a judicial
probable-cause determination are conditions precedent to
permissible DNA collection is unsupportable. Refusing to
draw such a line makes good sense. The government’s
interest in identifying arrestees attaches “when an individual
is brought into custody,” id. at 1971, irrespective of whether
the suspect is ultimately charged. For this reason, the Court
explained that “[w]hen probable cause exists to remove an
individual from the normal channels of society and hold him
in legal custody, DNA identification plays a critical role in
serving those interests.” Id. The dissent likewise recognized
that the majority’s reasoning applies to all arrests, regardless
of subsequent charging decisions. See id. at 1989 (Scalia, J.,
dissenting) (“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.” (emphasis added)).
Plaintiffs’ arguments to the contrary are unavailing.

                              C.

    Finally, Plaintiffs assert that California’s law is
distinguishable from Maryland’s because California retains
and uses DNA samples indefinitely even if a suspect is never
charged or convicted. By contrast, Maryland automatically
12                  HASKELL V. HARRIS

expunges the DNA samples of every person it fails to convict.
See Md. Pub. Safe Code Ann. § 2-504(d)(2). While Plaintiffs
are correct that expungement of DNA samples is not
automatic under California law, this distinction is not
constitutionally relevant.

    Even though California does not automatically expunge
DNA samples, California law enables an arrestee to request
expungement if no charges are filed, his case is dismissed, or
he is found not guilty. Cal. Penal Code § 299(b). Plaintiffs
counter that California will not, in practice, expunge DNA
samples and profiles until after the relevant statute of
limitations has expired. But Defendants-Appellees represent
that the California Department of Justice interprets § 299 “to
allow expungement as soon as the prosecuting attorney
declines to press charges.” Appellees’ Supplemental Br. at 8
n.2. In view of this representation, there is strong reason to
believe that the differences in expungement procedures
between Maryland and California are not as great as Plaintiffs
suggest.

    In any event, the King Court did not view Maryland’s
expungement procedures as important to the constitutionality
of Maryland’s law. The Fourth Amendment search at issue
is a buccal swab, and the “minor intrusion” that this “brief”
procedure represents is not affected at all by the availability
of expungement procedures. King, 133 S. Ct. at 1980. While
the Supreme Court also analyzed whether the processing of
the arrestee’s DNA sample intruded on his privacy interests,
it did not suggest that post-collection expungement
procedures would affect the constitutional inquiry. See id. at
1979–80. And the dissent did not view the majority’s holding
as so limited. See id. at 1989 (Scalia, J., dissenting)
                    HASKELL V. HARRIS                      13

(“Perhaps the construction of such a genetic panopticon is
wise.”).

                             III.

    The majority in King expressly recognized that its
decision “implicates more than the specific Maryland law,”
id. at 1968, and the four dissenting Justices emphatically
agreed. See id. at 1989 (Scalia, J., dissenting). After King,
Plaintiffs’ facial and as-applied challenges to California’s
DNA collection law are clearly without merit, and any
amendment to Plaintiffs’ complaint would be futile. This
case is over, and the district court has no obligation to give
the Plaintiffs an opportunity to amend their complaint. For
the foregoing reasons, I respectfully concur only in the
judgment.
