ACLU Responds to Minneapolis Police Officers’ Failure to Activate Body Cameras in the Justine Damond Killing

NEW YORK – Today, the American Civil Liberties Union (ACLU), the New York Civil Liberties Union (NYCLU), and the Cato Institute filed an amicus brief with the Second Circuit in Leslie v. City of New York, in support of The Legal Aid Society’s class action challenge to New York City’s “Suspect DNA Index.” The brief argues that the Suspect Index is a massive and unlawful DNA database. It also emphasizes that DNA contains an individual’s highly sensitive and private information, and that DNA that people inevitably leave on items they discard—from a used cup to a cigarette butt to a tissue—cannot be seized, searched, and stored without a warrant. The Suspect Index contains DNA samples from more than 34,000 people, including kids and people who have never been charged with a crime. Many of the samples are gathered through the NYPD’s practice of collecting DNA by arresting individuals for purported crimes, holding them for many hours, bringing them into an interrogation room specifically cleaned and set up to collect their DNA, pressuring them to drink or touch something, and concluding the interview as soon as that’s done. The NYPD then leads the individuals out in handcuffs (such that they cannot take whatever they touched or consumed even if they wanted to) and then goes back in to obtain the item specifically to extract the unavoidably shed DNA. “For more than a decade, the NYPD has been operating a rogue DNA database not authorized by law,” said Beth Haroules, director of disability justice litigation at the NYCLU. “No New Yorker should have their DNA taken illegally and stored in a secret database. This destructive practice disproportionately targets Black and brown New Yorkers and violates our Fourth Amendment rights. No court should allow this intrusion on our privacy.” “The government cannot treat our DNA like it treats our garbage, and seize, search, and store it without a warrant,” said Vera Eidelman, senior staff attorney at the ACLU’s Speech, Privacy, and Technology Project. “Usually we rely on hypotheticals to highlight the dystopian possibilities of this kind of privacy invasion, but no hypothetical could be more troubling than New York City’s actual practice: amassing thousands of people’s DNA without their knowledge, their consent, or any court-ordered or legislative guardrails. If the Second Circuit does not intervene, all I can say is: New Yorkers, hold on to your trash.” The brief argues that the Suspect Index violates state law, which establishes a separate state databank as the only DNA index that can exist in New York and sets strict limits on whose DNA can be collected, when, for what purpose, and when it has to be deleted—all of which the Suspect Index ignores. The Index also includes samples from people who have been expressly excluded as suspects in a crime, arrestees who have never been convicted of a crime, and exonerated or acquitted individuals. “The secret, dragnet collection of DNA for inclusion on a 'Suspect Index' sounds dystopian. Yet it's an affront to privacy and the presumption of innocence tens of thousands of New Yorkers have already suffered. The Fourth Amendment protects against this—and hopefully, so will the Second Circuit,” said Matthew Cavedon, Director of the Project on Criminal Justice at the Cato Institute. A copy of the brief can be found here.

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