Friedman

dissenting:

I respectfully dissent from the reversal of the district court’s grant of qualified immunity. The majority’s determination that Kenneth Friedman (“Friedman”) had a clearly established right of privacy under the Fourth Amendment to prevent state authorities from using a buccal swab to take a DNA sample, fails to appreciate three lines of precedents that undermine its conclusion. First, both the Supreme Court and this court have held that incarcerated individuals have little, if any, expectation of privacy under the Fourth Amendment. Second, we have also held that a person legitimately in state custody has almost no right against disclosing his or her identity. Third, we have held that governments have compelling interests in establishing the identity of incarcerated repeat sex offenders. Here, Friedman, a convicted sex offender, was a pre-trial detainee facing charges of indecent exposure and open and gross lewd conduct when the state officials took a buccal swap from the inside of his mouth. In the parlance of the majority’s opinion, I would hold that this minimally invasive search was “reasonable.”

Furthermore, even if these lines of precedent did not compel the…

ORDER

The opinion filed on June 23, 2009, is hereby amended by (1) deleting the first full paragraph found in the slip opinion at page 7613 (lines 7 through 24); (2) inserting “Kennedy v. Los Angeles Police Dep’t, 901 F.2d 702 (9th Cir.1990) (impliedly overruled on other grounds by Hunter v. Bryant, 502 U.S. 224 , 112 S.Ct. 534 , 116 L.Ed.2d 589 (1991) (per curiam))” in the slip opinion on page 7613 after the word “Kennedy ” on line 27, (3) deleting the material “901 F.2d” on page 7613 on line 29, and inserting “Id.” in lieu thereof; and (4) deleting “Ward, 791 F.2d at 1333; Giles, 746 F.2d at 615” on page 7617, line 22.

With the amendment, Judges Thomas and Roth have voted to deny the petition for panel rehearing. Judge Thomas has voted to deny the petition for rehearing en banc and Judge Roth so recommends. Judge Callahan has voted to grant the petition for panel rehearing and petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on the petition for rehearing en banc. Fed. R.App. P. 35(b).

The petition for rehearing and the petition for rehearing en banc are rejected.

No further…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH A. FRIEDMAN,  No. 05-15675 Plaintiff-Appellant, v.  D.C. No.

CV-04-00286-JCM

DOLPHUS BOUCHER; ELISSA LUZAICH,

OPINION

Defendants-Appellees.  Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Argued and Submitted October 19, 2007—San Francisco, California

Filed June 23, 2009

Before: Jane R. Roth,* Sidney R. Thomas, and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Thomas; Dissent by Judge Callahan

*The Honorable Jane R. Roth, Senior United States Circuit Judge for the Third Circuit, sitting by designation. COUNSEL

Tyler A. Baker, Saundra Riley, Kimberly I. Culp, and Julie A. Nokleberg; Fenwick & West LLP; Mountain View, Califor- nia; for the appellant.

Robert J. Gower; Deputy District Attorney; Las Vegas, Nevada; for the appellees.

OPINION

THOMAS, Circuit Judge:

Las Vegas Metropolitan Police Detective Dolphus Bou- cher, with the approval of Clark County Deputy District Attorney Elissa Luzaich, forcefully extracted a DNA sample from…