Bay Area United Against War Newsletter, March 22, 2022

 Three years ago, Shakira Leslie was returning home from a cousin’s birthday party in the Bronx when officers pulled over her friend’s car for a traffic infraction. After she got out of the back seat, the police searched her and found nothing illegal.


But when a gun was found in another passenger’s bag, everyone in the car was arrested, charged with weapon possession and taken to a precinct. There, Ms. Leslie waited for more than 12 hours without getting anything to eat or drink, she said — until officers brought her into an interrogation room and gave her a cup of water.


Eventually, she was released, and the charge against her was dropped.


But weeks later, Ms. Leslie learned new details about the night of her arrest that rattled her: The police had taken the cup and collected her DNA from it without asking. Officials later tested it and used it to determine that she had not handled the gun. “I was shocked, upset. I just felt violated,” said Ms. Leslie, 26, a hair stylist. “I completely lost trust for N.Y.P.D.”


Her DNA was entered into a city database that contains tens of thousands of profiles, and her lawyers say it remained there, even though that night three years ago is the only time she has ever been arrested.


Ms. Leslie is a plaintiff in a federal class-action lawsuit filed late Monday by the Legal Aid Society, which accuses the city of operating an illegal and unregulated DNA database in violation of state law and constitutional protections against unreasonable searches.


The suit calls for DNA profiles that lawyers argue were gathered unlawfully to be expunged and for the database to be shut down entirely.


“Thousands of New Yorkers, most of whom are Black and brown, and many of whom have never been convicted of any crime, are illegally in the city’s rogue DNA database,” Phil Desgranges, a lawyer in the Special Litigation Unit at Legal Aid, said in a statement.


“We simply cannot trust the N.Y.P.D. to police itself, and we look forward to judicial review of these destructive practices to bring our clients the justice they deserve,” he said.


Sgt. Edward Riley, a spokesman for the New York Police Department, said in a statement that officials would review the suit, adding that they believe the use of DNA helps bring justice.


“The driving motivation for the NYPD to collect DNA is to legally identify the correct perpetrator, build the strongest case possible for investigators and our partners in the various prosecutors’ offices and bring closure to victims and their families,” he said.


The city medical examiner’s office, which maintains the database, said that it complies with applicable laws and is operated “with the highest scientific standards,” set by independent accrediting bodies.


The dispute underscores tensions that have erupted in cities across the country over efforts to increase the use of technology and surveillance tactics in policing and comes amid a highly charged local debate over elevated gun violence. In New York, Mayor Eric Adams has called for expanding the use of facial recognition and software to identify gun carriers, which he argues could aid in crime fighting.


But civil liberties advocates and privacy groups have contended that the advancements come at the expense of communities of color, infringe on the rights of people who have not been convicted of crimes and place them at risk of wrongful conviction if errors are made.


“You can change your Social Security number if you’re a victim of identity theft. You can’t change your DNA,” said Albert Fox Cahn, the executive director of the Surveillance Technology Oversight Project. “You’re creating this constant threat not for months, not for years, but the rest of your life, that you can be targeted by this information.”


The genetic database has come under fire in recent years for the tactics the police use to collect DNA samples, often without a person’s consent, lawyers say. The department’s Detective Guide instructs detectives to offer a water bottle, soda, cigarette, gum or food to someone being questioned in connection with a crime whose DNA is sought — and to collect the item once they leave.


Those practices have invited scrutiny in high-profile cases, like when detectives offered a McDonald’s soda to a 12-year-old boy who was facing a felony charge in 2018, took the straw and tested it for DNA. The boy’s profile did not match crime-scene evidence but remained in the system for over a year.


New York State law requires a conviction or a court order before someone’s DNA can be stored in the state-run databank. But the city’s database, which contains more than 31,800 profiles and is known as the Local DNA Index System, includes DNA from people like Ms. Leslie, who have been arrested or questioned but not convicted.


The specific demographics of those in the database are unclear, but they most likely reflect arrest patterns in the city, where about 75 percent of people arrested over the past decade were Black or Latino.


The suit in New York mirrors one filed last year in Orange County, Calif., in which lawyers argued that a database of DNA samples maintained by the district attorney’s office ran afoul of state law and violated residents’ right to due process. (That county’s database, which contains 200,000 DNA profiles, is significantly larger than New York City’s, even though its population is much smaller.)


While state and federal DNA databases are subject to legislative oversight, New York City’s lacks independent supervision, which civil liberties groups argue often leads to a failure to address questions over legality, privacy, effectiveness and data security.


Facing criticism, the Police Department overhauled rules for the database in 2020. It conducted an initial audit and flagged for removal samples that were more than two years old and had not been linked to an ongoing investigation. Officials pledged to routinely repeat the process for new profiles, and about 4,000 have been removed since then.


State legislators have also weighed a bill that would ban New York City and other local governments from operating their own DNA databases.


Howard Baum, a former assistant director at the city medical examiner’s office who helped build the system, has said it has grown far beyond its intended purpose, size and scope.


“I know that the N.Y.P.D. has worked hard to reform its policies, but as I’ve said before, the new policy is half-baked,” he wrote in testimony for a City Council hearing on the database in 2020. “No arrest, no conviction, but the government is keeping your DNA. What possible justification is there for that?”


The police and prosecutors say that the database is a crucial tool and removing it would be damaging.


Rodney Harrison, the Police Department’s former chief of department, said two years ago that the database had led to 5,000 matches since 2015. He argued that expansive changes to it could lower the number of leads in investigations and create “unintended consequences for the innocent.”


“To drop this valuable science would be a grave mistake to anyone invested in transforming our criminal justice system by better ensuring citizens’ rights while continuing to keep New Yorkers safe,” wrote Mr. Harrison, who is now the police commissioner in Suffolk County.


The database has come under particularly heavy scrutiny for including minors, from whom the Police Department said in 2020 they would no longer collect DNA in connection with misdemeanors. City Council members this year are expected to reintroduce a bill that would prohibit the collection of DNA from minors in all cases without a parent’s consent.


But Oleg Chernyavsky, a top lawyer for the Police Department, argued at a Council hearing on Friday that the bill would make police work more difficult and said that people under 18 made up less than 2 percent of the current database.


Many experts on DNA evidence say that vast databases that include large numbers of people who have only been questioned or arrested on minor charges can be less effective because of the increased likelihood that a crime scene sample will produce a partial match with an innocent person.


“There’s this perception that the bigger the database, the better for public safety — and that hasn’t been borne out,” said Brandon L. Garrett, a law professor at Duke University who has extensively studied the use of DNA evidence. “The more innocent people’s stuff you have in these databases, the more its crime-fighting ability is harmed.”