Northern California Record

Wednesday, February 19, 2020

Social activist organization says California DNA collection from innocent people is unconstitutional


By John Sammon | Dec 19, 2018


SAN FRANCISCO — A representative for one of three social activist organizations suing the California Department of Justice said its collections procedure for DNA samples taken from people arrested and later cleared of wrongdoing is unconstitutional.

“While DNA techniques have appropriate uses in criminal justice work, they are also being widely and flagrantly misused,” Marci Darnovsky, executive director for the Berkeley-based Center for Genetics and Society (CGS) told the Northern California Record. “Here in California, the government is retaining hundreds of thousands of DNA samples and profiles collected from people who were never convicted of a crime.”

The CGS is a nonprofit involved in advocating for the responsible use and effective governance of human genetic and assisted reproductive technology.

The organization is a plaintiff in the case filed against the Justice Department on Dec. 10 along with the nonprofit Bay Area activist groups the Electronic Frontier Foundation and Equal Justice Society. 

The complaint filed in San Francisco Superior Court maintains the collection of DNA samples from arrested persons who are found to be innocent and not convicted of a crime violates the state’s privacy laws.

A DNA sample, a swab from the cheek, is customarily taken during booking for California residents arrested for a felony. The samples are stored in a data bank called a CODIS. 

A procedure is in place to remove a DNA sample from a person’s file, but involves a paperwork application and most people don’t bother.

A spokesperson for the Justice Department Press Office declined to comment on the case only to say officials are looking at the complaint.

Darnovsky called the retention of DNA samples from people never convicted of a crime a disturbing violation of civil liberties and privacy. The suit follows a decision in April by the California Supreme Court rejecting an allegation that DNA collection violated Fourth Amendment (search and seizure) rules.

“Inclusion in the database has already resulted in documented wrongful arrests,” Darnovsky said. “The risks are particularly great for people of color and poor communities that already experience disproportionate abuses of criminal justice.”

The CGS website says the state in 2009 adopted its current policy of taking DNA from every felony arrestee including those later determined to be innocent.

“The number of intimate details that can be revealed by a person’s DNA only increases as technology develops, exposing plaintiffs to ever heightening degrees of intrusiveness,” the website says.

The website also claims that including a person’s DNA in a continuing file even though they are innocent increases the risk they could wrongly become a suspect in a future criminal case. 

Pete Shanks, an individual plaintiff in the case, says on the CGS website that if a person is arrested by mistake it should not be up to that person to get their DNA sample removed from the record.

“It should be automatic,” Shanks is quoted as saying.

The Law Office of Michael T. Risher in Berkeley is representing the plaintiffs in the case.

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Organizations in this Story

California Department of JusticeSan Francisco Superior Court

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