High Court Upholds Ban on AIDS Test for Cop Biter

The state Supreme Court has let stand an appellate ruling that barred an involuntary AIDS test for a man accused of biting two police officers in a scuffle during a “gay pride” parade in San Diego.

Prosecutors had sought an analysis of blood samples taken from the man after he had told San Diego police that he was a homosexual and that “you had better take it that I do have AIDS, for the officers’ sake.”

But a state Court of Appeal panel held last month that an involuntary test would violate state law prohibiting the disclosure of AIDS test results without the consent of the person tested.

The state Supreme Court, in an order filed late Tuesday, refused without dissent to grant a review of the appellate ruling that had been sought by San Diego authorities.

Case Not a Precedent

However, over the objection of Justice Stanley Mosk, the court also said that the appellate decision could not be used as a precedent in other cases, thus limiting its effect to the case at issue.

Deputy Dist. Atty. Thomas F. McArdle of San Diego expressed disappointment that the appeal court ruling was allowed to stand, noting that legally mandated tests are common in other kinds of cases, such as those involving drunk driving.

“The Court of Appeal in effect has placed people with AIDS in a separate class, granting them protections others don’t have under the law,” McArdle said.

The case before the court began last June when Brian Barlow of San Francisco was marching at the head of the Gay Freedom Day Marching Band and Twirling Corps during the San Diego parade.

Bites Two Officers

Police said Barlow, 40, engaged in a scuffle with officers monitoring the event, biting one on the shoulder and the other on the knuckle, breaking the skin and drawing blood in both instances.

Barlow was arrested and taken to a hospital to be treated for injuries he suffered during the altercation. There, in response to questions, he allegedly told police to assume that he had AIDS.

Authorities charged Barlow with battery and resisting arrest and later sought analysis of a blood sample from the defendant, saying that if he was infected with the AIDS virus the test results could be used as evidence of assault with a deadly weapon or attempted murder.

Under a Municipal Court order, a blood sample was drawn from Barlow in July, about five weeks after the parade. Later, a Superior Court judge ordered the test of the sample but the Court of Appeal overturned that order in its ruling in April.

Allows No Exception

The appeal court, in an opinion by Justice Edward Butler, said there could be no exception to the law barring the involuntary disclosure of AIDS tests, even for a criminal prosecution.

The confidentiality law, Butler said, does not characterize AIDS victims as “threats to the public health and safety.”

The court held that blood drawn from Barlow five weeks after the incident could not provide reliable evidence of whether he was an AIDS carrier at the time he allegedly bit the officers. It noted that blood samples also were taken from the officers for AIDS analysis but that those results had not been revealed.

Barlow is free on $8,500 bail and is scheduled to appear in court Sept. 14 for a preliminary hearing in San Diego.