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San Diego police unlawfully took DNA swabs from black youth, says lawsuit

Illustration by James Bareham / The Verge

The ACLU has filed a lawsuit alleging that the San Diego police skirted California privacy law by taking DNA samples from five teenage boys without a warrant or meaningful consent. Police allegedly stopped and frisked the teens without cause, and then told them to agree to cheek swabs before being let go. The ACLU contends that in doing so, police used a loophole to avoid following state rules that limit collecting DNA from minors. The lawsuit requests that the San Diego Police Department return any such samples, and that courts strike down the city policy allowing their collection.

According to the ACLU complaint, police stopped and frisked 16-year-old P.D. (who, as a juvenile, is identified by his initials) and four friends of similar ages, supposedly because police thought they were dressed in gang colors. A search of P.D.’s duffel bag turned up an unloaded revolver licensed to the boy’s father, but nothing suspicious about his friends. Despite this, the four of them were allegedly let go only after providing DNA samples. P.D., who had his cheek swabbed as well, later had charges against him thrown out — a court determined that the entire search had been unlawful.

This complaint, however, also covers something more specific. While protections across states vary, California law only permits taking cheek swabs or other biological samples from minors if they’ve been convicted of a felony or required to register as sex offenders. San Diego’s own city law, though, is more permissive: police can collect DNA as long as the subject signs a consent form. As long as police put the DNA in a local databank rather than the statewide one, they can follow these broader rules.

But the ACLU argues that this consent is meaningless if it’s collected from teenagers who haven’t been provided with information about how DNA samples can be used, and who are being asked to sign in exchange for their freedom. And police only have to notify a parent or guardian once the swab has been collected, making parental approval moot.

As Voice of San Diego notes, the ACLU previously sued the San Diego Police Department for collecting DNA without cause; that case ended in a $35,000 settlement. This complaint, as well as an EFF post on the subject, argues that this kind of collection isn’t simply equivalent to being fingerprinted. It’s a uniquely intrusive form of evidence collection that can reveal a great deal of information about a person, and could put them at risk for being targeted by police if a relative (who would provide a close, but not identical, match) is suspected of a crime.

This is especially troublesome if certain groups of people are entered into databanks at higher rates — effectively making them easier targets of surveillance, even if they haven’t committed a crime. “The concerns raised in this case are representative of what too many San Diegans of color contend with far too often,” said ACLU-SDIC executive director Norma Chavez-Peterson. “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. We can and must do better.”