Rise

dissenting:

The majority fails to find a Fourth Amendment violation arising from the nonconsensual DNA genetic pattern analysis of persons convicted for murder or various sexual offenses (including such non-violent crimes as public indecency or pimping, or attempts at any of the included sexual offenses). Ostensibly applying a traditional balancing test that weighs the severity of the intrusion on personal privacy interests against the importance of the public interest served, the majority upholds extraction and analysis of blood samples, without any showing of probable cause or even individualized suspicion, solely for the ordinary law enforcement purpose of facilitating investigation of crimes that may be committed in the future. In reaching this conclusion, the majority brushes aside Supreme Court and Ninth Circuit precedent that recognizes invasion of the body as an intrusion of a scope fundamentally different from the capture of visual images or fingerprints, in which there is a minimal expectation of privacy because that information ordinarily is held out to the public. Because there is no justification for this unprecedented departure from settled Fourth Amendment…

Opinion by Judge FLETCHER; Dissent by Judge D.W. NELSON.

The plaintiffs in this 42 U.S.C. § 1983 suit appeal the district court’s summary judgment dismissing their claims. We have jurisdiction and affirm.

I

Chapter 669, Oregon Laws 1991, O.R.S. §§ 137.076, 161.325(4), 181.085, 419.507(11), and 419.800(4)(k), requires persons convicted of murder, a sexual offense, 1 or conspiracy or attempt to commit a sexual offense to submit a blood sample to the Oregon Department of Corrections (“DOC”). O.R.S. § 137.076. DOC uses the blood that is submitted to create a deoxyribonucleic acid (DNA) data bank. Plaintiffs Erik Rise, David Durham, and Jeffery Rhodes were convicted before the enactment of Chapter 669 of one or more of the offenses to which the Chapter applies. Plaintiff Michael Milligan was convicted of attempted murder, which is not a predicate offense under Chapter 669.

The plaintiffs allege that Chapter 669 violates the Fourth Amendment’s prohibition against unreasonable searches and seizures and constitutes an ex post facto punishment as applied to them because they were convicted prior to the law’s enactment. They also maintain that the Due Process Clause requires the…