SAN DIEGO (CN) – The ACLU says the San Diego Police Department's policy of collecting the DNA of minors violates the Constitution, citing a recent case that simultaneously raises concerns about racial discrimination.
In its federal lawsuit filed Wednesday, the American Civil Liberties Union says the police department's collection of a 16-year-old's DNA violated his constitutional rights and that the policy of collecting kids’ DNA without a warrant is illegal.
"SDPD policy permits the police to obtain a child’s DNA without a warrant for investigative purposes – regardless of whether he or she is even under arrest – through his or her supposed consent," the ACLU says in its complaint.
The department’s policy does an end-around state law, which says that DNA cannot be collected from a minor unless he or she is convicted of a felony. But because the state law applies only to storing DNA collections in a state-maintained database, San Diego skirts the law by keeping its own local database.
The ACLU says this practice is a violation of the Fourth Amendment, which guards against illegal search and seizure.
"DNA analysis can reveal a vast array of highly private information, including familial relationships and other physical characteristics, as well as propensity to certain diseases, such as sickle-cell anemia, Huntington’s disease, and certain types of cancers," the civil rights organization says in the complaint.
It further asserts there are several cases – including the 2012 arrest and subsequent near conviction of Lukis Anderson – where DNA evidence has been used improperly in high-stakes capital cases. In Anderson's case, his DNA was found at a murder scene and he was subsequently charged, but it was later revealed his DNA was at the scene because the EMTs who responded had treated him for a medical emergency the day before.
In the present instance, a minor referred in the complaint as P.D. had a DNA cheek swab after he was arrested on a charge of possession of a hand gun at Memorial Park in March 2016. The charge was later thrown out of court because the gun, which was in P.D.'s gym bag, was found during an illegal search.
P.D. and his three friends, none of whom were ever charged or convicted of a crime, were swabbed for DNA – P.D. before he was booked, and the friends before they were released.
"P.D. signed the form under compulsion of official authority without the understanding the consequences of allowing SDPD to seize and indefinitely store his DNA," the ACLU says in the complaint.
The organization says the case hinges on the fact that SDPD's policy "permits officers to obtain a minor’s consent in the same manner that they obtain an adult’s consent, and it does not require notification to the parent prior to consent being given."
This is against the law, which consistently treats consent of minors and adults differently, the ACLU says in the complaint.
Apart from constitutionality concerns of the SDPD's juvenile DNA policy, the ACLU says P.D.'s arrest is a part of a troubling pattern of the department's racial profiling and discrimination against people of color.
P.D., who is black, was walking in a park with three other young black men, when they were stopped and asked pointed questions by officers despite no evidence of a crime.
The officers later said they were on the lookout for gang activity at the time because the day in question was a "West Coast Crip" holiday. Since the four boys were wearing blue, the officers suspected them of participating in the gang event, according to the complaint.
Although the police department's gang specialists did not recognize the boys, they did they have any tattoos, and their names did not appear in a gang database maintained by the police, they were stopped, handcuffed and searched, the ACLU says.
"As defendants Stewart and Brou later stated during juvenile court proceedings, they seized the youths because they were young black males in Memorial Park on March 30," the complaint states.
P.D. was carrying a duffel bag with an unloaded hand gun, which was found during a warrantless search that a judge later determined was illegal, according to the complaint. The ACLU contends P.D. was arrested, had his DNA taken, was subsequently questioned without counsel and verbally berated by a homicide detective, who called him an "underperforming person" from a "broken home."
P.D. spent over a week in juvenile detention before being released.
After finding the search illegal and tossing the case against P.D., the court said it had “a problem with the actual detention right off the bat of five people just walking in the park," according to the ACLU’s complaint.
Norma Chavez-Peterson, executive director of the ACLU-SDIC, said the episode is indicative of a San Diego Police Department trend of targeting young men of color.
"I wish I could say incidents like this are uncommon, but sadly, we know otherwise,” Chavez-Peterson said in a statement. “The concerns raised in this case are representative of what too many San Diegans of color contend with far too often: racial bias in our policing, violations of basic principles of privacy, and law enforcement’s practice of documenting black and brown youth in secret databases without parental involvement."
Jamie Wilson, mother of P.D., also released a statement expressing outrage at what she characterized as SDPD's pattern of racial bias.
"Let what happened to us be a lesson to the powers-that-be and all of San Diego about what our children deal with on a daily basis," she said. "The quality of policing in communities of color is inadequate and unjust."
San Diego spokesman Gerry Braun said the city had not been served and will review the allegations when it receives the complaint.
The ACLU seeks a permanent injunction to return P.D.'s DNA samples to him, and an order to return the DNA samples of other juveniles that have been collected. The organization also asks the court to declare the San Diego Police Department's juvenile DNA policy unconstitutional, and to bar officers from collecting DNA from juveniles without a warrant.
The ACLU is represented by attorney Bardis Vakili.
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