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California Court Urged to Advance Case Against State Retention of DNA Profiles of Innocent People

NEW YORK (GenomeWeb) – The San Francisco County Superior Court today will hear arguments in a case challenging California law enforcement's practice of retaining DNA profiles of individuals arrested for a felony.

The lawsuit, brought by the Center for Genetics and Society, the Equal Justice Society, and Pete Shanks against California Attorney General Xavier Becerra and the California Department of Justice, alleges that law enforcement's practice of taking DNA samples from arrestees suspected of a felony and retaining the profiles in a database, even if they're never charged or convicted, violates privacy protections and restrictions on unreasonable searches and seizures in California's constitution.  

In a hearing today, plaintiffs represented by attorney Michael Risher and the Electronic Frontier Foundation will urge the court to allow the case to advance, arguing that privacy protections afforded by California's laws go beyond federal laws and require that while the state can take the physical sample from arrestees, they cannot analyze the sample and store it in the national database, Combined DNA Index System (CODIS), unless they are being prosecuted. And for individuals who are ultimately not convicted, the plaintiffs want the court to order the government to automatically expunge any stored samples and profiles, and take the burden off innocent individuals to navigate the process to have their information deleted.

"Once somebody has been released with no charges, they're not under criminal justice supervision, and the government has no reason to be testing their DNA to try to track them or make sure they're not a security risk in jail, or to make sure they show up at trial. None of that applies to people that weren't being prosecuted," Risher told GenomeWeb. Similarly, "Once somebody's charges are dismissed, they're acquitted, or the government decides not to charge somebody at all, there's no reason for them to retain that sample, and the retention of that sample violates some of the things that our privacy provision was intended to prevent."

The state wants the court to dismiss the case, and will argue that the complaint lacks legal basis. When asked for a statement, the attorney general's press office directed GenomeWeb to the briefs filed in the case. In one brief, the government cited Maryland v King, arguing that the Supreme Court decided in that case that taking a DNA sample and analyzing it was a routine part of booking an arrestee, like fingerprinting and photographing, which didn't infringe the Fourth Amendment's prohibition against unreasonable search and seizure.

The state pointed out that in King, the Supreme Court didn't distinguish between the taking of a sample and analyzing it. Similarly, the government noted that in People v Buza, the California Supreme Court also found that it's not unreasonable to analyze and upload an arrestee's DNA profile to a database before charges have been filed.

Currently, under California's statute, individuals without felony convictions can have their DNA samples and profiles destroyed, but the plaintiffs argue that few go through the trouble, because they don't know that their DNA has been collected, or that they can have the sample and profiles expunged, or they can't navigate the complicated process of doing so.

Between 2009, when California first began collecting DNA from individuals arrested for felonies, and 2017, the most recent year for which statistics are available, there were more than 750,000 individuals who were arrested but ultimately not convicted. Some unknown proportion in this group already have their DNA profiles in CODIS due to prior convictions, but the plaintiffs assert that a significant number have had their DNA collected, analyzed, and stored, and are eligible to have that expunged.

Yet, as of 2018, the department of justice had granted a little more than 1,200 expungements out of around 1,500 requests. Based on those figures, the plaintiffs roughly estimated that even if only half of the 750,000 arrestees who were never convicted were asked to give a DNA sample, less than 1 percent of those eligible to have their samples and profiles destroyed have done so.

California can automatically destroy these samples like Maryland and other states do, Risher said, but chooses not to in violation of residents' privacy rights. Moreover, the plaintiffs cite data showing that the police arrest more African Americans and Latinos, which means that the government's DNA retention policies will result in minority communities being disproportionately represented in the database.

In court, Risher will point out that California residents' right to privacy is enshrined in the state constitution, which was amended in 1972 to restrict the government from stockpiling "unnecessary" information about residents and using information taken for one purpose and using it for something else. In his view, this feature of the state law recognizes that if information is in somebody's hands, that person may, properly or not, look at it, or the person may change the rules so that suddenly looking at it is proper.

Even when the government is collecting DNA for the purpose that it is supposed to, there have been instances where people have been falsely accused. Risher cited the case of 26-year-old Lukis Anderson from Santa Clara County, who was arrested on capital murder charges after the police matched his CODIS profile to DNA recovered from the crime scene and he was put in jail for months. There was no other evidence that he committed the crime, and Anderson's public defender ultimatley proved that at the time of the robbery and murder, he was in the hospital suffering from alcohol posoning. After dismissing the charges, the government explained that the paramedics who had taken Anderson to the hospital then went to the crime scene and that's how his DNA had ended up there.

"Having these kinds of databases allows a police officer to get a DNA sample from somebody they arrest, put it in the database, and then let them go. There's no judicial oversight. ... Essentially nobody is reviewing that arrest." Risher said. "Well, okay, they've put a person's DNA in the database and that person is then potentially a suspect in any crime where DNA is recovered from a crime scene."

To the plaintiffs, there is also a real concern that law enforcement is amassing innocent residents' DNA profiles to sharpen the resolution within DNA databases, which have proven to be a useful resource for solving crimes. For example, a number of cold cases have been solved using the technique of familial searching, where law enforcement uploads a sample from a suspected criminal to a commercial database of customers interested in learning about their genetic ancestry to try to home in on relations who might help them locate the individual of interest. The practice has raised concerns among ethicists and customers of genetic ancestry testing firms, who didn't join these services expecting law enforcement to search their profiles.

While the DNA profiles in CODIS aren't used for familial searching, the plaintiffs don't think it is unreasonable that in the future the government will push for this capability.

"The history of DNA testing in the criminal justice system has been one of constant and exponential expansion," Risher said. He pointed out that law enforcement used to take DNA only from those who had been convicted of serious offenses; then they started collecting DNA from people with any felony convictions, and now, in California, DNA can be collected from anyone arrested for a felony or even certain types of misdemeanors.

"So, for the government to say, 'We're only using DNA for these purposes now,' is kind of disingenuous given the rapid expansion of the use of it in the criminal justice system," Risher said.