ALBANY, N.Y. (CN) — New York’s high court heard arguments Thursday as to whether it should reinstate a regulation from 2017 that allowed law enforcement to search for family members using convicts’ DNA.
The crux of the case is due to complaints by Terrence Stevens and Benjamin Joseph, two men whose brothers are incarcerated in New York. Stevens’ brother is serving time on weapons charges, while Joseph's brother was convicted of third-degree assault.
In 2017, the New York’s Division of Criminal Justice Services adopted new regulations that broadened the state’s DNA databank to allow law enforcement to better search to see if DNA left at a crime scene matched the genetic profile of somebody in the database.
The two men, both of whom are Black and whose genetic profiles are not currently in the state’s database, have not been approached by police to provide their own DNA sample but worry about the prospect. They also claimed in their original petition that familial DNA searching is a largely ineffective tool since even parents and siblings’ DNA can contain a remarkable amount of genetic difference.
A trial judge found the men had standing to sue, writing that they “should not need to wait until they are approached by the police … in order to have standing.” However, the judge also dismissed the complaint, finding the agency acted within its statutory authority.
In 2022, the state’s appeals court reversed the dismissal in a 3-2 ruling, writing that the men had standing “because the regulation subjects them to the peculiar risk that they will be targets of criminal investigations for no other reason than that they have close biological relative who are criminals.”
In suspending the familial search amendment, the appellate court also said the kinship search regulations exceeded the agency’s authority and that authorizing such searches should fall to the Legislature.
In response to the appeals court ruling, state lawmakers have reintroduced legislation to create a state policy on how police and prosecutors can use familial DNA.
New York’s database, which was originally set up in 1994, now requires those with felony convictions after July 2012 to provide a DNA sample, as do other offenders in certain situations. It does not apply to juvenile offenders, and disclosing or using a DNA record without authorization is a felony.
During oral arguments Thursday, nearly all the time was spent on whether the two men had standing to sue over the new regulations.
According to attorney Doran Satanove of Gibson Dunn, who represents the two men, the standing occurred the moment the regulation was passed in 2017. “It is being subjected to the peculiar risk of being the target of a law enforcement investigation, and the stigma and anxiety and fear that flow from that,” he told the seven-judge panel.
“Where else in our jurisprudence is fear and anxiety an injury in fact?” asked Judge Madaline Singas, who was joined by several other judges wondering what was “peculiar” about being fearful of interactions with police. “There’s lots of people who are anxious or fearful about having a police encounter.”
Representing the state, attorney Matthew Grieco said there is no standing in the current case since the two men were never investigated and that such a remote risk of police investigation for them does not confer standing.
However, Judge Steven Lidley, who joined the court from the appellate division in place of Judge Caitlin Halligan, seemed to disagree that no risk existed for the two men. “The chances that Mr. Stevens and Mr. Joseph are investigated by the police as a result of this familial search policy is exceedingly low,” he said. “[But] nobody else in the world has a higher risk than these two petitioners of being investigated by the police. They are at the top floor of risk, even though the risk for them is quite low.”
Another line of questioning that may trip up the petitioners was whether the familial changes are not much different than the current allowance for partial DNA matches. Chief Judge Rowan Wilson repeatedly asked Satanove whether the current statute allows the disclosure of partial, rather than familial matches, but Satanove was hesitant to give an answer.
“Does it allow partial matches?” Wilson asked.
“Again, we haven’t taken a position on that in this appeal,” Satanove responded.
Wilson pressed. “Yes, I know, but it seems to me that that may be determinative of the question that is before us. If you don’t want to take a position on it, that’s okay, we’ll have to find our way without you taking a position. But I would encourage you to take a position.”
So Satanove did. “I don’t think it should be determinative."Follow @NickRummell
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