Opinion
No. 2:02-CR-0349-DFL.
February 20, 2007
MEMORANDUM OF OPINION AND ORDER
The United States alleges that defendant Elden Leroy Holmes violated the terms of supervised release by refusing to provide a blood sample for the purpose of DNA testing. Holmes states that he is prepared to provide a DNA sample by other means, in particular by buccal swab, which requires the light scraping of the inside of the cheek. Holmes filed a motion to dismiss the government's petition, requesting an exemption from the requirement or an alternative means of providing DNA due to his religious objection to giving blood. The court finds that Holmes' religious exercise would be substantially burdened by forcing him to provide a blood sample and that the government has failed to demonstrate a compelling interest in collecting DNA through a blood sample rather than by an equally reliable buccal swab DNA sample to be obtained by the State of California at no cost or burden to the federal government. The court GRANTS the motion to dismiss, contingent upon the successful entry of Holmes' DNA profile into the Combined Offender DNA Index System (CODIS), via the California DNA databank.
I.
Under the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. §§ 13701, et seq., the FBI established CODIS, an index of DNA samples from convicted offenders, crime scenes, and unidentified human remains. Section 14135a(d)(1) requires probation officers to collect a DNA sample from individuals on federal supervised release. Failure to cooperate with probation officers exposes individuals on release to misdemeanor charges and the revocation of release. Id. § 14135a(a)(5). Section 14135a(a)(4)(B) allows "[t]he Attorney General, the Director of the Bureau of Prisons, or the probation office, as appropriate, [to] enter into agreements with units of State or local government or with private entities to provide for the collection of the samples." Section 14153a(b), however, requires that "the probation office responsible (as applicable) shall furnish each DNA sample collected under subsection (a) of this section to the Director of the Federal Bureau of Investigation, who shall carry out a DNA analysis on each such DNA sample and include the results in CODIS." For individuals already included in CODIS, "the probation office responsible (as applicable) may (but need not) collect a DNA sample from that individual." Id. § 14135a(a)(3). The FBI laboratory is capable of processing only blood samples to obtain DNA profiles. All laboratories participating in CODIS, whether using blood or buccal samples to obtain DNA, must comply with the FBI's quality assurance standards. Id. § 14132(b)(1).
The analysis of different DNA samples, such as blood cells or cheek cells, from the same individual will produce identical DNA profiles. The profiles, not the samples, are uploaded into CODIS.
Holmes does not dispute that he must provide a DNA sample to comply with the conditions of his supervised release. Rather, he argues that under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb, et seq., the government's requirement that he submit his DNA through a blood sample imposes a substantial burden upon his free exercise of religion. Holmes does not consider himself a member of an organized religion. In his individual belief system, however, Holmes describes blood as "the most evocative symbol of life we have" and giving blood as a matter "between me and God, period." He states that his blood "contains my soul" and that giving blood "would result in a sacrifice of my soul." According to Holmes, his blood contains his "contract" with God; the removal of blood from his body breaches this contract. See Holmes Declaration. Thus, if he were to give a blood sample, it would create "a deep spiritual wound." Holmes analogizes the injury to disrespectful acts targeted at central symbols of organized religions. He states that his beliefs are long-held as a matter of conscience. Other than having blood drawn during service in the Navy and giving blood to help a particular person, the government presents no specific instances in which Holmes has violated his professed beliefs.
Holmes states that taking his blood would inflict an injury similar to "jackhammer[ing] [the Kaaba] into a bunch of sand" or "open[ing] up the Ark of the Covenant, pull[ing] out my contract with God, and us[ing] it for whatever you want."
II.
"Under RFRA, the Federal Government may not, as a statutory matter, substantially burden a person's exercise of religion, `even if the burden results from a rule of general applicability.'" Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, et al., 126 S.Ct. 1211, 1217 (2006) (quoting 42 U.S.C. § 2000bb-1(a)). RFRA recognizes an exception, however, if "that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1(b). The parties do not dispute that the applicable DNA testing requirements are laws of general applicability. Therefore, the court first considers whether requiring a blood-based DNA sample substantially burdens Holmes' exercise of religion, then considers whether the government's conduct is exempted from RFRA in this instance.
A. Substantial Burden Upon Free Exercise
Legal protection for free exercise of religion is not limited only to those practicing an organized religion. Rather, it extends to an individual's personal relationship with a creator or higher power. See Davis v. Beacon, 133 U.S. 333, 342 (1890) (overruled on other grounds); Callahan v. Woods, 658 F.2d 679, 685 (9th Cir. 1981) (extending free exercise protection to "nontraditional beliefs"). The court does not enquire into the objective truth of such beliefs. See United States v. Ballard, 322 U.S. 78, 87 (1944). Under RFRA, "[t]he term `religious exercise' includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000bb-2(4). A substantial burden is placed upon religious exercise when the government places "pressure on an adherent to modify his behavior and to violate his beliefs." May v. Baldwin, 109 F.3d 557, 563 (9th Cir. 1997) (quoting Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981)). A burden may still exist even if, on occasion, the plaintiff has acted against a stated religious belief. May, 109 F.3d at 563.
Pre-RFRA free exercise authority is instructive in defining "substantial burden" following RFRA's adoption. Guru Nanak Sikh Soc. of Yuba City v. County of Sutter, 456 F.3d 978, 988 (9th Cir. 2006) (applying authority to RLUIPA).
For this reason, the court does not delve into the accuracy of Holmes' belief that blood cells are alive while cheek cells captured by buccal swabs are dead.
It is true that Holmes' testimony was sometimes rambling and grandiose. He rather enjoys the sound of his own voice. Nonetheless, based upon Holmes' declaration and testimony, the court finds his professed beliefs to be sincere. Blood is significant in Holmes' belief system as both a symbolic and actual connection with God. To Holmes, the extraction of blood imposes a substantial burden by violating what he believes to be a sacred relationship with God. Although Holmes' description of the potential injury invokes both religious and political beliefs, "a coincidence of religious and secular claims in no way extinguishes the weight appropriately accorded the religious one." Callahan, 658 F.2d at 684. Moreover, although Holmes has given blood on limited occasions, the court finds the government's present request to be "more than an inconvenience," forcing him to "either abandon his religious principle or fac[e] criminal prosecution." Guam v. Guerrero, 290 F.3d 1210, 1222 (9th Cir. 2002); see May, 109 F.3d at 563. Having found that the government's blood-based DNA test would impose a substantial burden upon Holmes' free exercise of religion, the court must determine whether the government has demonstrated that "it serves a compelling government interest in the least restrictive manner possible." Guerrero, 290 F.3d at 1222.
Although Holmes had some difficulty during the hearing explaining the precise significance of blood in his belief system, the court finds that his inarticulateness on the subject was consistent with the relatively difficult task of justifying and explaining a specific component of one's religious life. See Callahan, 658 F.2d at 686 ("[A] person's free exercise should not be curtailed simply because his beliefs are not articulated with the clarity and precision that a more sophisticated person might enjoy." (internal quotation marks and citation omitted)).
The government argues that Holmes' prior intravenous drug use is inconsistent with his proffered religious beliefs. Perhaps there is some inconsistency, but it is not of a sort that would suggest that Holmes' description of his religious beliefs is false.
B. Compelling Interest
"RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law `to the person' — the particular claimant whose sincere exercise of religion is being substantially burdened." O Centro Espirita Beneficente, 126 S.Ct. at 1220. The government fails to address the alleged burden with sufficient particularity. According to the government, the FBI laboratory is not set up to take buccal swabs. If Holmes were seeking an order requiring the FBI to change its procedures, the government's position could well be persuasive. Unfortunately for the government's legal position, however, Holmes is not asking the FBI to do anything that it does not already do. In fact, he is offering to reduce any burden on the FBI. He seeks an order requiring the FBI to accept a valid DNA profile taken by the State at no burden or cost to the FBI.
Holmes does not dispute that the government has a compelling interest in entering his DNA profile into CODIS. He frames his argument more narrowly, arguing that the government has failed to demonstrate a compelling interest in obtaining his DNA profile through a blood sample as opposed to a buccal-swab sample collected by an authorized State laboratory. Although the FBI laboratory is not equipped to handle a buccal swab sample, California laboratories authorized under the FBI's quality assurance standards are capable of processing the sample and uploading the resulting DNA profile into CODIS. As stated by Dr. Brian Harmon at the hearing, the DNA profile uploaded into CODIS does not differ depending upon whether it was drawn from a blood cell or a cheek cell. By making the court's waiver of Holmes' supervised release condition contingent upon the successful uploading of his DNA profile into CODIS, the court addresses the government's concerns regarding the reliability of buccal swabs. The court, therefore, holds that the government has failed to demonstrate a compelling interest in forcing Holmes to submit to FBI-administered blood-based DNA testing rather than the California buccal swab test.
C. Least Restrictive Means
Even if the court found the government's interest compelling, the government has not demonstrated that it is employing the least restrictive means to achieve that interest. In evaluating whether the government is employing the least restrictive means, comparison with alternative means is "analytically useful."Warsoldier v. Woodford, 418 F.3d 989, 1000 (9th Cir. 2005). Holmes stipulated at the hearing that California law requires him to submit a DNA sample for inclusion in CODIS. Furthermore, he stated that he has made arrangements with a state parole officer to submit DNA by buccal swap, to be processed by a California laboratory and uploaded into CODIS at no cost to the federal government. The government raises two objections to this alternative means of obtaining Holmes' DNA profile. They are unpersuasive.
First, the government argues that Holmes has failed to obtain the FBI Director's approval to collect DNA samples from federal prisoners, as required by California Penal Code § 296.1(a)(6). Section 296.1(a)(6), however, applies only to individuals "in federal institutions," not those such as Holmes on supervised release. Second, after the evidentiary hearing, the government presented a declaration from a California Department of Justice DNA Laboratory employee stating that, to date, California "has not received or processed DNA samples of federal convicted offenders." The court finds that this declaration is insufficient to cast doubt upon Holmes' specific representation, at the hearing, that he has made arrangements with a California parole officer to submit to a buccal swab test and have his DNA profile uploaded into CODIS through the California system. Moreover, the declaration was untimely and is not properly considered.
Since the court's order is contingent upon the successful uploading of Holmes' California sample, the court retains the ability to revise its findings if Holmes' California test alternative does not work out. The court, therefore, holds that forcing Holmes to submit to a blood-based DNA test is not the least restrictive means of achieving the government's compelling interest in obtaining his DNA profile.
III.
For these reasons, the court ORDERS Holmes to submit to a buccal swab DNA test, as discussed at the hearing, and GRANTS the motion to dismiss the government's violation petition, contingent upon the successful uploading of Holmes' DNA profile into CODIS.Holmes is ordered to submit to a buccal swab by an authorized California laboratory within 14 days of the date of this order. The probation officer is directed to report to the court whether the results of the DNA buccal swab have been successfully included within the CODIS system.
IT IS SO ORDERED.