Legal Aid, Gibson Dunn File Lawsuit Challenging NYS Approval Of Familial Search Genetic “Stop And Frisk”

The Legal Aid Society and Gibson Dunn filed litigation today against the New York Commission on Forensic Science and the Department of Criminal Justice Services (DCJS) for exceeding their authority and abusing their discretion by adopting regulations allowing for the use of “familial searching” by law enforcement agencies in New York State.

Familial searching is where law enforcement scans DNA databases for genetic information about a relative of someone whose genetic information is in the database. When a search for an exact match to a DNA sample comes up without a match, a familial DNA search may bring up information that could pertain to a sibling, child, parent or other blood relative.

“The Commission on Forensic Science and the Department of Criminal Justice Services acted well outside their purview and authority by unilaterally promulgating far reaching policy that should instead be left to the Legislature to debate,” said David Loftis, Attorney-in-Charge of the Post-Conviction and Forensic Litigation Unit at The Legal Aid Society. “Moreover, we have serious constitutional, privacy and civil rights concerns with familial searching and how the technique will disproportionately impact our clients and communities of color.”

“We are pleased to join with The Legal Aid Society in challenging these invasive and discriminatory policies,” said Joseph Evall, a Partner at Gibson Dunn. “No New Yorkers should be subject to increased scrutiny by law enforcement, or even a “stop and swab,” simply because they may have similar genes to an individual in the DNA database,” said Christian Hudson, an Associate at Gibson Dunn.

On October 18, 2017, DCJS formally adopted regulations for this technique, causing a de facto expansion of the state DNA database which would ensnare unknown numbers of innocent individuals who will form a suspect group based solely on their genetic kinship with convicted individuals.

Expansion of the DNA database has been the subject of heated debate in the State Legislature in the past, where legislators have been cautious to limit genetic searches to those convicted of crimes.

The New York Commission on Forensic Science is charged with overseeing the proper functioning of state laboratories. It has no authority to make policy that will affect the lives of a great many New Yorkers.

These new regulations give DCJS unprecedented discretion over the scope of law enforcement investigations. At the same time, the regulations contain no mechanisms to restrain police overreach or to give recourse to individuals who will become the subject of suspicion-less searches.

There is also immense concern over how these new regulations will impact communities of color. Because of biased policing methods such as “stop and frisk,” the DNA database contains an overrepresentation of people of color. Familial searching magnifies and enhances that bias by making family members who have no criminal records subject to police investigations.

The litigation was filed in New York County Supreme Court.

“The reforms to the criminal justice system must aim to create a fair and equitable system that upholds our principle: people are innocent till proven guilty. The Commission on Forensic Science’s expansion of New York State’s DNA testing regulation to those who have no involvement in an alleged crime is unacceptable. The legislature is the sole branch with the power to expand a tool that will have such a wide-reaching and disparate impact on New Yorkers. I stand in strong opposition to this regulation,” said Assemblyman Joseph R. Lentol.