THE COPS DID NOT CALL MOMMY FIRST

ACLU sues San Diego police over how it collects DNA from juveniles

By Dana Littlefield

The San Diego Union-Tribune
February 20, 2017

A black teenager who was stopped by police last year while walking through a San Diego park is challenging the Police Department’s policies and practices for obtaining DNA from minors without first notifying a parent.

Lawyers from the American Civil Liberties Union of San Diego & Imperial Counties filed a federal lawsuit last week on behalf of the boy and his mother, Jamie Wilson. They contend police officers violated the boy’s civil rights in March when they detained, handcuffed and searched him at Memorial Community Park in Logan Heights, and then took a sample of his DNA without a warrant or his mother’s consent.

According to the complaint, San Diego Police Department policy allows officers to obtain consent from a minor for DNA collection the same way they would for an adult.

California law restricts the collection of DNA from a juvenile for inclusion in California’s DNA database, but the lawsuit says San Diego has “sidestepped” that by maintaining its own local database. Officers are required to notify a juvenile’s parents only after a DNA sample has been taken.

San Diego’s policy “systematically works to circumvent parents’ right to advise their kids,” said Jonathan Markovitz, one of the attorneys representing Wilson and her son.

A Police Department spokesman declined to comment about the lawsuit but provided a copy of the agency’s procedures for dealing with juveniles. The document states that a minor’s DNA can be taken and stored in the department’s own data bank if obtained legally and for investigative purposes.

“We have just been made aware of the lawsuit filed by the ACLU. This case is pending litigation we therefore cannot comment further,” police Lt. Scott Wahl said in an email.

The plaintiffs are seeking a permanent injunction from the court that would forbid the San Diego Police Department from enforcing the city’s policy on DNA collection from juveniles without a warrant or parental consent. They are also asking for an order compelling the Police Department to return any DNA samples from the teen identified in the lawsuit.

They also are seeking unspecified monetary damages.

According to the lawsuit, police officers chose to conduct a pat-down search of the 16-year-old boy — identified in the document by the initials P.D. — and four of his friends not because there was a reasonable suspicion they had been involved in a crime, but because “they were black juveniles, some of whom were wearing blue, walking through a park in southeast San Diego on a particular day.”

The officers expected gang activity in the park that day, March 30, a supposed gang “holiday,” the lawsuit said. Blue is a color associated with a particular street gang.

P.D. and the other minors told the officers they had been playing basketball in the area.

After the pat-down search, the officers searched a duffel bag P.D. had with him that afternoon and found an unloaded handgun. They collected DNA samples from him and his four companions after obtaining their signed consent.

The friends were released and P.D. was booked into Juvenile Hall.

“The difficulty with kids giving consent is that they are particularly vulnerable to authority,” Markovitz said, noting that children and teens are less likely to think through the consequences of their actions — a concept state and federal laws have acknowledged.

He said the search of the teen’s duffel bag was unlawful and any consent the teen had given for the taking of his DNA sample was essentially coerced, given that the officers let his friends go after they each signed a form agreeing to let the officers swab the inside of their mouths to collect DNA.

“There wasn’t anything approaching knowing and voluntary consent. ... He wasn’t given the opportunity to talk to his mother,” Markovitz said.

Per department procedure, a San Diego police officer has to notify a supervisor or contact a field lieutenant for approval before collecting a mouth swab DNA sample from a juvenile. The office must also fill out a “Consent to Collect Saliva” form and obtain the minor’s signature.

An officer who takes a mouth swab sample from a juvenile “will notify the parent or legal guardian that a sample was taken” and document that information on a report, according to the department.

According to the lawsuit, the District Attorney’s Office filed charges in Juvenile Court against P.D. on April 4, stemming from the discovery of the gun in the duffel bag. He remained in Juvenile Hall until April 8, when he was released and placed on home supervision.

On June 27, a judge threw out the evidence related to the gun because it was “fruit of an unlawful search that violated P.D.’s Fourth Amendment rights,” under the U.S. Constitution. A month later, the court dismissed the charges but no order was made to destroy the teen’s DNA sample.

“It’s caused tremendous emotional and financial suffering,” Markovitz said, referring to the effects of the arrest and subsequent court proceedings on the teen and his family.

His mother is expected to appear at a news conference Wednesday, when ACLU representatives will discuss the lawsuit and issues related to local policing.