A Brooklyn judge has ruled that family courts don’t have the power to intervene with the NYPD’s stealthy collection of DNA evidence from minors in its custody — a practice that police officials staunchly defend.
It comes as the state Legislature considers a bill that would ban collecting and storing DNA from youth charged in family court and centralize record-keeping statewide.
In a decision last Wednesday in the Matter of Logan C., Judge Alan Beckoff of Brooklyn Family Court found that he didn’t have the authority to order the city medical examiner to purge a DNA sample collected from a 15-year-old who had been offered a water bottle by a cop at Coney Island’s 60th Precinct.
Nor could Beckoff stop the record of the teen’s DNA from being uploaded to an NYPD databank used in investigations, the judge ruled.
The NYPD argued in the case that a state law requiring consent prior to the collection of a DNA sample did not apply because the teen had “abandoned” the water bottle — and with it his genetic material — inside the precinct house.
“This decision shows why urgent action is needed to stop the City’s rogue DNA collection and storage practices,” said Terri Rosenblatt, supervising attorney of the DNA Unit at The Legal Aid Society, which defended the boy in court on second-degree weapons possession charges.
After admitting to the charge, Logan was placed for a year in a Close to Home facility overseen by the Administration for Children’s Services. His DNA record will remain in the police files under the ruling.
As THE CITY has previously reported, young people detained at precincts often face long hours in custody. Even though police procedures require legal guardians to be notified, many say they aren’t — like the parents of teens held after a Halloween arrest in Carroll Gardens who said they had not been called.
And young people would sometimes wait at precincts for arraignment for over a day, cuffed to benches or pipes.
Beckoff ruled that “regardless of how the police gathered the DNA sample from Respondent,” a Family Court judge like himself could not stop the teen’s DNA from being included in the city’s databank.
“As the judge acknowledges, a 15-year-old boy’s DNA was taken by the NYPD through ’trickery,’ and sent to the City’s DNA laboratory for permanent inclusion in an unregulated databank,” said Rosenblatt. “But because of a perceived loophole in the law, a Family Court judge was barred from doing anything about it.”
Through a ‘Loophole’
The state law governing the state’s DNA databank does not mention Family Court proceedings, leaving the door open to collecting from teens — with little recourse for oversight, says the sponsor of a proposed change.
“It’s essentially a loophole that they’re exploiting,” said State Sen. Brad Hoylman (D-Manhattan), “because the original law was not comprehensive enough so New York City has been able to operate outside of it.”
New York’s ballooning city database is run by the Office of Chief Medical Examiner (OCME), and includes over 80,000 samples and 32,000 suspect profiles, according to City Council testimony from the NYPD Chief of Detectives Rodney Harrison.
Testifying to the Council’s public safety committee in February, Harrison defended the department’s DNA collection methods, referencing court decisions finding “reasonable expectation of privacy in an object that is either provided upon informed consent or purposefully abandoned. This doctrine has expanded to DNA samples left on abandonment items even when obtained by indirect means from the police,” he said.
State law doesn’t allow for youth charged in family court to be included into the state’s DNA database at all, due to the fact that they are not criminally charged as adults. But about 5% of the database consists of DNA records collected from minors, Harrison said at the hearing.
Shamari Ward of Legal Aid’s Juvenile Rights Division responded with a question during her hearing testimony: “Since children lawfully are unable to be in the state databank, how could the OCME have authority to keep an index of children’s DNA in its own databank? It does not have that authority and it must be stopped.”
Following pressure after reports surfaced that children as young as 12 had been added to the database, NYPD Commissioner Dermot Shea pledged to conduct an audit in conjunction with the medical examiner’s office in order to remove samples of individuals who were never convicted of a crime. He also said the force would limit the collection of juvenile samples to those facing felony charges.
Just last month, the Legal Aid Society said it had learned that the database had grown by at least 2,000 more samples since Shea’s statement.
When THE CITY asked the NYPD what steps, if any, had been taken towards an audit or whether any samples had been deleted from the databank, as well as under what authority were they holding minors’ DNA, the department spokesperson Sergeant Mary Frances O’Donnell simply said that they are “working with the OCME on a number of reforms.”
The OCME did not respond to THE CITY’s requests for comment.
O’Donnell noted that in the case of the Brooklyn teen, “the NYPD believes the judge’s ruling was the right decision and it is by the court’s authority that Logan C.’s DNA remains in the database.”
State Ban Bill
Meanwhile, advocates continue to push to close the gap between state and city practices.
A bill sponsored by Hoylman in the state Senate would erase all municipal DNA databases, require DNA to be stored in a single state repository, and forbid storing juvenile DNA.
“NYC cannot operate as a rogue municipality in this regard subject to the whims of precinct officers,” said Hoylman. “And they would all have to report to a single computerized identification index. Otherwise you’re going to have young people like this individual included in databases for the rest of their lives.”
Closer to home, Logan’s lawyers as well as some City Council members have brought up the possibility of a city-based solution. Council Public Safety Committee chair Donovan Richards has publicly pushed to end the database once and for all.
“The City Council can act now to give this child, and countless others, as young as 12 years old, freedom from unlawful genetic surveillance by abolishing the City DNA index,” said Legal Aid’s Rosenblatt. “Or at least requiring it to follow state law, which does not allow the government to warehouse children’s DNA.”