By Eric Levenson, CNN
The Legal Aid Society filed a class action lawsuit Monday challenging the legality of the New York Police Department’s practice of secretly taking DNA from suspects without a warrant or court order and creating what the legal services provider calls a “rogue DNA database.”
The suit, filed in US District Court in the Southern District of New York, was brought on behalf of clients Shakira Leslie and Shamill Burgos and all people who have similarly had their DNA taken without consent and put into a database called the “Suspect Index.” Neither Leslie nor Burgos has been convicted of a crime, according to the lawsuit.
This index has grown to nearly 32,000 suspect profiles, which are then compared to at least 29,492 DNA samples from crime scenes, the lawsuit states. The Legal Aid Society, a nonprofit law firm dedicated to social justice, argues that this DNA database violates state law and the Fourth Amendment protections against unreasonable search and seizure.
“Through the Suspect Index, the NYPD and (Office of Chief Medical Examiner) partner to put people’s DNA profiles through a genetic lineup that compares the profiles against all past and future crime scene DNA evidence — all without obtaining a warrant or court order to conduct these DNA searches,” the lawsuit states.
The lawsuit names as defendants the City of New York, several NYPD leaders and the acting head of the Office of Chief Medical Examiner (OCME) for NYC, which maintains the database.
The database is primarily made up of Black and Hispanic populations, and can include children as young as 11, Legal Aid said.
“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, which treats people as suspects in every crime involving DNA,” said Phil Desgranges, Supervising Attorney in the Special Litigation Unit of the Criminal Defense Practice at The Legal Aid Society.
NYPD Sgt. Edward Riley issued a statement saying the department will review the lawsuit.
“The NYPD’s investigations and tactics, including the collection of DNA, are guided by what is authorized by the law, the wealth of case law from the courts, and the best practices of the law enforcement community,” he said. “Behind every time the NYPD collects DNA from a suspect in a criminal investigation, there is a crime victim who is suffering and seeking 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 prosecutor’s offices, and bring closure to victims and their families.”
The legal challenge comes as police departments have adopted new technologies, including the use of DNA databases and facial recognition software, that some civil rights advocates say violate constitutional privacy rules.
This is also just the latest challenge to the NYPD’s local DNA database. In February 2020, the NYPD said it planned to expunge DNA profiles of some people who’ve never been convicted of a crime after facing criticism from the Legal Aid Society. The OCME website indicates that about 4,000 suspect profiles have been removed from the database.
“This database operates virtually unchecked, and despite promises from the City to reduce its size, the database has continued to grow at the expense of communities of color,” Desgranges said. “We simply cannot trust the NYPD to police itself, and we look forward to judicial review of these destructive practices to bring our clients the justice they deserve.”
The OCME defended its maintenance of the DNA database in a statement.
“The local DNA database complies with all applicable laws and is managed and used in accordance with the highest scientific standards set by independent accrediting bodies that have regularly reapproved the existence of the database,” the agency said.
A spokesperson for New York City’s Law department said, “We’ll review the case and respond in the litigation.”
NYPD used cigarettes and water cups to get suspect DNA
In particular, the lawsuit explains how NYPD officers gave cigarettes and cups of water to suspects to secretly get their DNA in the case of Legal Aid clients Burgos and Leslie.
Burgos, a 22-year-old Latino man and former NYC resident, was sitting in a friend’s car in September 2019 when NYPD officers pulled up and reportedly found a gun inside the trunk, the lawsuit states.
He was arrested and taken to a precinct interrogation room, where officers handed him a cup of water to drink and a cigarette to smoke. The officers then escorted Burgos out of the room and, without his knowledge or consent and without a warrant or court order, took his used cigarette and sent a sample to the OCME, the suit states.
He was arraigned in court, but he was not indicted and the charges were dismissed. Even so, the OCME generated a suspect profile with his DNA and entered it into a DNA database of suspects. Burgos is now enrolled in the infantry division of the US Military and is stationed in Louisiana, yet his DNA remained in the Suspect Index as recently as this January, the lawsuit states.
“Mr. Burgos is worried and scared by the City treating him as a permanent suspect in all crimes, especially when he no longer lives in New York,” the lawsuit states.
In addition, the lawsuit highlights the story of Shakira Leslie, a 26-year-old Black New Yorker who in July 2019 was a passenger in a friend’s car that was pulled over for a traffic infraction. A different passenger in the car possessed a firearm, according to police, yet Leslie was arrested and charged with possessing the weapon, the lawsuit states.
She was taken to a precinct for questioning and deprived of food and water for over 12 hours, the suit states. When the NYPD brought her into an interrogation room, they offered her a cup of water, and she immediately drank it, the suit states.
The cup was a “ruse” to get her DNA, the suit says. Without her knowledge or consent, the NYPD collected the cup, took a sample of her DNA and sent it to the OCME, which created a suspect profile in its DNA database, the suit states. The OCME determined her profile did not match any DNA evidence in the case, the suit says.
Leslie, like Burgos, was never indicted and the charges were dismissed. She works as a hairstylist and makeup artist and has never been convicted of a crime, yet her DNA profile remained in the Suspect Index as of January, the suit states.
“Ms. Leslie is troubled by the City treating her as a permanent suspect in all crimes,” the lawsuit says.
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CNN’s Lauren del Valle contributed to this report.