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Tarsia v. Joint Base Lewis McChord Provost Marshal Office

United States District Court, W.D. Washington, Tacoma

May 20, 2019



          Ronald B. Leighton United States District Judge.


         THIS MATTER is before the Court on Defendant Christopher Koch's Motion for Summary Judgment. Dkt. #45. Koch arrested Plaintiff Christian Tarsia for bringing a firearm onto Joint Base Lewis McChord (JBLM). During the arrest, Koch collected a DNA sample from Tarsia.[1] Tarsia sued Koch, two other officers involved, and JBLM for unconstitutionally collecting his DNA and for threatening him with physical force. Dkt. #1. Koch seeks summary judgment on Tarsia's claims against him, arguing that he acted pursuant to federal statutes and Department of Defense (DOD) policy. Koch does not, however, cite or discuss any authority directly addressing the constitutionality of these laws, or of his actions. By focusing on statutes and policies instead of directly addressing the constitutionality of the DNA collection, Koch has failed to establish that he is entitled to judgment as a matter of law. Furthermore, there remains a factual issue as to whether Koch threatened Tarsia or not. For these reasons, Koch's motion for summary judgment is denied.


         On December 2, 2013, Tarsia drove onto JBLM from the DuPont Gate to drop his wife off at work. His car was selected for a random search, which was conducted by Charles Sikes. During the search, Sikes found a 9mm pistol in a pocket behind the passenger seat and learned that it had a round in the chamber. A desk sergeant told Tarsia that he would be charged with violating 18 U.S.C. § 930. Christopher Koch then drove Tarsia to the Provost Marshal Office and gave him a form stating, “It is mandatory that U.S. Persons who are arrested . . . cooperate in the collection of a sample of his or her DNA. Failure to do so may result in samples taken by the minimum force necessary and (additional legal punishment).” Tarsia did not consent to a collection of his DNA, but allowed a sample to be taken.


         A. Legal Standard

         Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In determining whether an issue of fact exists, the Court must view all evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505 (1986) (emphasis added); Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). A genuine issue of material fact exists where there is sufficient evidence for a reasonable factfinder to find for the nonmoving party. Anderson, 477 U.S. at 248. The inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52.

         The moving party bears the initial burden of showing that there is no evidence which supports an element essential to the nonmovant's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548 (1986). Once the movant has met this burden, the nonmoving party must show that there is a genuine issue for trial. Anderson, 477 U.S. at 250. If the nonmoving party fails to establish the existence of a genuine issue of material fact, “the moving party is entitled to judgment as a matter of law.” Celotex, 477 U.S. at 323-24.

         There is no requirement that the moving party negate elements of the non-movant's case. Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). Once the moving party has met its burden, the non-movant must then produce concrete evidence, without merely relying on allegations in the pleadings, that there remain genuine factual issues. Anderson, 477 U.S. at 248. “When the nonmoving party relies only on its own affidavits to oppose summary judgment, it cannot rely on conclusory allegations unsupported by factual data to create an issue of material fact.” Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993). A mere “scintilla of evidence” is also not enough; the nonmoving party must present “evidence on which the jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.

         B. DNA collection

          Tarsia contends that Koch violated his constitutional rights by taking a sample of his DNA. Koch argues that the DNA collection was lawful because federal law and DOD instructions permitted it. Indeed, Congress allows for the collection of DNA from pre-trial arrestees, no matter the extent of the federal crime. 34 U.S.C. § 40702(a)(1)(A). Post-conviction felons, on the other hand, receive more protections. 34 U.S.C. § 40702(a)(1)(B), (b), (d) (requiring conviction of a “qualifying” federal offense for legitimate DNA collection and retention in the Combined DNA Index System (CODIS)).

         While this may seem counterintuitive, the Supreme Court upheld the constitutionality of a similarly structured Maryland statute[2] authorizing DNA collection from arrestees of serious crimes:

[T]he Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and ...

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