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Taking a DNA sample from a criminal suspect, after arrest or as part of an investigation, is pretty standard (and legal) stuff by now. But what about forcing someone who isn't a suspect to submit to a DNA swab in order to be released from police custody? And forcing minors to consent without parental notice?
As it turns out, state and city law can conflict on the matter, and the ACLU is suing San Diego to bring its city policy in line with state statutes.
As the ACLU describes:
The suit stems from a March 2016 incident during which a group of teenage boys walking in the Logan Heights neighborhood's Memorial Community Park were unlawfully stopped and frisked by police officers. Without a warrant and without seeking their parents' permission, the officers unlawfully detained the juveniles, including Jamie Wilson's 16-year-old son, telling them they would be released only after they gave consent to collection of their DNA.
The boys were stopped for allegedly wearing gang colors, and a court later determined that the entire stop and search had been unlawful. But not before the boys were asked to sign consent forms, absent parental notification, to have their cheeks swabbed for DNA. Officers never obtained a warrant for such a search, and the lawsuit describes the boys' detention as "inherently coercive" involving "numerous police officers," during which Wilson's son "did not give free and voluntary consent to the taking of tissue samples for purposes of DNA collection or analysis or any other purpose."
One of the exceptions to the warrant requirement is consent, and if the boy signed a consent form, isn't that enough? Well that depends on who you ask. Under California law, officers may only take cheek swabs or other biological samples from minors who've been convicted of a felony or required to register as sex offenders. But under San Diego statutes, police can collect DNA as long as the subject signs a consent form and as long as police enter the DNA in a local databank rather than the statewide one. The ACLU is arguing that these state protections are meaningless if cities can legislate around them, and that teenagers are unable to provide meaningful consent to such searches, especially when their signature on a consent form is a prerequisite to their freedom.
"I wish I could say incidents like this are uncommon, but sadly, we know otherwise," said the ACLU's Norma Chavez-Peterson. "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. We can and must do better."
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