SAN FRANCISCO - A federal judge dismissed claims by former arrestees challenging mandatory DNA testing provisions under Proposition 69 on April 22, 2005. In doing so, Judge Fern Smith of the U.S. District Court agreed with Attorney General Bill Lockyer's position that Proposition 69 will not be applied retroactively to persons arrested before the November 2, 2004 election.

"This decision clarifies and significantly limits the scope of Proposition 69," explained Covington & Burling partner Sonya Winner. "With limited exceptions for only the most serious crimes, DNA testing is not to take place based on a mere arrest until 2009."

"Thousands of people are now shielded from the far reach of this law," said Ricardo D. Garcia, Criminal Justice Director of the ACLU of Southern California. "This is a great victory."

The California affiliates of the ACLU, together with the law firm of Covington & Burling, brought a class action lawsuit on behalf of a number of individuals against the Attorney General in December 2004, challenging Proposition 69's mandatory testing of people merely arrested for felonies and people formerly convicted of felonies who are no longer under the supervision of the criminal justice system.

In January 2005, the Attorney General issued an information bulletin to local law enforcement agencies, asserting that Proposition 69 is not to be enforced retroactively against people arrested before the election, or against people convicted of felonies before the election who are not currently incarcerated or on probation or parole and are not later convicted of a new offense. The Attorney General has assured the court, and the public, that both state and local law enforcement officials are being instructed that the initiative is to be applied only prospectively.

"We will still challenge the constitutionality of mandatory DNA testing of people who are merely arrested once such testing begins," Garcia said. "The Attorney General's current policy may only postpone the issue."

LOS ANGELES - In a case dubbed Air Marshal X, the ACLU of Southern California is challenging the overly restrictive policies of the Federal Air Marshal Service that may decrease public safety.

In the lawsuit filed today against Department of Homeland Security Secretary Michael Chertoff and other security officials, Air Marshal Frank Terreri is seeking to enjoin Federal Air Marshal Service rules that prohibit him from speaking publicly about his job or saying anything to do with the Air Marshal Service, a clear violation of his First Amendment rights.

"The Department of Homeland Security is not only infringing on Frank Terreri's right to free expression, they are actually jeopardizing the public's safety by limiting the speech of whistleblowers," said Eliasberg, managing attorney of the ACLU of Southern California. "Terreri is prohibited from participating in informative debate about the safety of our airline industry, which makes all of us less secure."

The lawsuit was filed in U.S. District Court in the Central District of California. It seeks to declare portions of the Federal Air Marshal Service rules that say marshals may not "release or divulge investigative information or any other matters pertaining to the FAMS" unconstitutional and seeks a permanent injunction forbidding the defendants from enforcing those provisions.

Terreri, who has 15 years of law enforcement experience including three years as a federal air marshal and is also a president of a professional membership organization that represents more than 23,000 federal agents including 1,400 air marshals, is restricted from discussing details related to his job that could enhance the security marshals provide.

"Currently there is no protection for agents in the Federal Air Marshal Service who see ways to improve their service," said Paul Hoffman, co-counsel in the case. "The federal government cannot decide who has a right to free expression and who doesn't, especially not when the public's safety is at risk."

Terreri has tried to work within the system to address his concerns about aviation security, detailing security lapses within the agency in two letters to the director. After he sent a private e-mail to another air marshal raising concerns about an air marshal profile in People magazine, Terreri was taken off active flight duty and placed on administrative duty.

"Everyone's heard that you can pick out a federal air marshal from a mile away because they look like a 1950s FBI agent. Frank stuck his neck out to try to improve the way his agency works and those in charge found any excuse to punish him. This lawsuit will shed light on Homeland Security policies that don't contribute to safety, but rather violate constitutional rights," Eliasberg said.

Coleen Rowley, an FBI whistleblower who was named one of Time magazine's persons of the year in 2002, said in a taped statement that it's unfortunate Terreri is forced to file a lawsuit because the Federal Air Marshal's policies leave him no other choice.

"Federal employees who want to expose the truth should not have to risk their careers," Rowley said. "Employees who need to report fraud, abuse or mismanagement to uphold their constitutional oaths and to try to improve our safety and security should be encouraged and not prevented from doing so. Mr. Terreri is a defender of both the public's safety and our civil liberties."

The ACLU of Southern California, Professor Allan Ides of Loyola Law School and Paul Hoffman of Schonbrun, DeSimone, Seplow, Harris and Hoffman are representing Terreri.

Michael Chertoff, the Secretary of the Department of Homeland Security; Randy Beardsworth, the acting under secretary for Border Transportation and Security; Michael J. Garcia, the assistant secretary of the Department of Homeland Security for Immigration and Customs Enforcement; and Thomas Quinn, the director of the Federal Air Marshal Service, are named as defendants.

LOS ANGELES - A judge certified a class action lawsuit affecting more than 100 Ontario police officers after they discovered a hidden camera in the police department's men's locker room two years ago.

U. S. District Judge Virginia A. Phillips Thursday granted Ontario officers their motion for class certification writing: "A class action will permit proposed class members who remain OPD employees to prosecute claims they might otherwise hesitate to bring because they fear retaliation by the OPD (Ontario Police Department)."

Sgt. Steven Trujillo, said he sees a better future for the police department and was pleased with the decision.

"It's great the judge allowed all Ontario officers to pursue their rights collectively," said Trujillo, an officer with the Ontario Police Department. "All of our rights were infringed upon years ago and now we will have the chance to fix that. This is a good step forward."

The American Civil Liberties Union of Southern California, along with the law firms of Lackie & Dammeier LLP, and Bahan & Associates, filed the lawsuit last fall.

"It's just as important for the officers affected as it is for the safety of the community," said Peter Eliasberg, managing attorney with the ACLU of Southern California. "Class certification will allow police officers to seek accountability and answers about the illegal videotaping without fear of retaliation."

Around 1996 a police sergeant arranged for the installation of a hidden surveillance camera in locker room at the direction of the Chief of Police. The camera was concealed in the ceiling and provided a view of the door and the adjacent lockers and dressing area. The surveillance camera was connected to a video tape recorder located in a nearby office. The camera's installation was arranged by a sergeant within the Ontario Police Department and was discovered when the Police Department began the process of moving to a new headquarters.

Approximately 125 persons have been identified on the one videotape that the plaintiffs have seen. The suit names the City of Ontario, the former Chief of Police, and others as defendants.