Top court says police can again use controversial family DNA searches
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Chief Judge Rowan Wilson said in a majority opinion this week that law enforcement will again be legally allowed to use familial DNA searches while investigating a criminal suspect. AP photo by Hans Pennink
By Jacob Kaye
The state’s top court said in a ruling this week that law enforcement in New York State will again be allowed to legally look for familial matches in the state’s DNA databank while investigating certain crimes, a controversial policy that, though infrequently used, has been on pause for the past year.
The ruling from the Court of Appeals issued on Tuesday, overturns a previous decision made in the Appellate Division, First Department, that found that the state’s Commission on Forensic Science had overstepped its authority by allowing for law enforcement to request DNA searches for familial matches, a practice that has raised concerns over privacy and the continuation of over-policing of Black and brown New Yorkers.
The rule allowing familial DNA searches was originally put into place at the height of the search for the person behind the killing of a Queens jogger whose death shocked both the borough and the city seven years ago.
The Court of Appeals’ decision, written by Chief Judge Rowan Wilson, found that the commission, which was created in 1994, had acted well within its rights when it expanded its own rules to allow for familial DNA searches six years ago.
Terrence Stevens and Benjamin Joseph, the men who brought the lawsuit against the state ruled on by the court this week, are two Black men whose brothers had both been convicted of a felony, and whose DNA had been stored in the state’s database. The pair claimed that the commission didn’t have the authority to allow for the searches, and that by allowing them, the commission was putting the two men at risk for being unfairly wrapped up in a future police investigation.
Though Wilson, who was appointed to serve as chief judge in April, said that Stevens and Joseph faced the potential of being “targeted for police scrutiny” because their siblings’ DNA is stored in the DNA databank, he found that the legislation creating the databank had not been violated.
When considering whether the legislature had the power to delegate rulemaking authority over familial DNA searches to the commission, Wilson said the Court of Appeals “unanimously agrees that the legislature has that power.” And when it came to the question of whether or not the legislature actually did delegate that authority over to the commission, Wilson said: “We hold that it did so.”
Beth Haroules, a senior staff attorney with the New York Civil Liberties Union, which served as an advisor to the petitioners in the case, said in a statement that she was worried that the ruling would only result in fewer privacy rights and increase the potential for Black and brown New Yorkers to get wrapped up in police investigations.
“This decision could sweep entire families into law enforcement investigations, infringing on their privacy rights and allowing police to seize innocent people’s DNA samples for their databases,” Haroules said.
“Given our state’s legacy of biased policing, Black and brown families may be even more at risk of unreasonable investigation by law enforcement,” Haroules added. “With this decision, the Court has curtailed rigorous public deliberation by the Legislature – and put the integrity of New York’s criminal justice system at risk.”
The DNA Databank and the Commission on Forensic Science – which oversees the databank – was first created by the state legislature in 1994. The legislation, known as the DNA Databank Act, was created at a time when DNA evidence was first coming into the fold as a tool for law enforcement. The databank’s original purpose was to store DNA collected from “designated offenders,” or those who are required to provide DNA samples after being convicted of certain crimes.
The first time the commission expanded the scope of the bank came in 2010, when it put into place a “partial match” rule, which allowed the release of partial match information – found unintentionally – to law enforcement. However, the rule change did not allow for familial DNA searches, which are intentional searches for partial matches.
Familial match searches were not authorized until 2017, following the search for Katrina Vetrano’s killer. Vetrano, a Queens woman, was strangled to death while out for a jog in Howard Beach in 2016, and after several failed attempts to match DNA evidence found under her fingernails, her father began to lobby the commission to allow for familial match searches.
Around a month later, the commission’s DNA Subcommittee recommended the full commission authorize familial DNA searches, which would be “subject to stringent restrictions regarding when such searches were to be permitted and practices on how law enforcement may request them.” The rule was adopted soon after – however, familial DNA searching was not used in the arrest and prosecution of Chanel Lewis, the man convicted of Vetrano’s murder and whose DNA collection raised a separate set of legal questions.
The lawsuit ruled on by the Court of Appeals this week was first brought by Stevens and Joseph – who were represented by the Legal Aid Society and private law firm Gibson Dunn – in 2018.
They argued that the commission lacked the statutory authority to make regulations surrounding familial DNA searches, as it had done in 2017, and that they had therefore violated the separation of powers doctrine under the state’s constitution.
Last year, an appellate court ruled in favor of the duo, and put a halt on all familial DNA searches, which up until that point had only been used 30 times in New York State – the disclosure of matches had only been given to police in 10 of those cases, and only two resulted in arrests.
But in his ruling, Wilson found that the commission had acted within its rights in making the 2017 change.
“Given the clarity and specificity of the guidelines provided in the Databank Act, respondents acted within their delegated authority,” Wilson wrote. “The [Familial DNA Search] Regulations are a result of ‘administrative rule-making,’ not ‘legislative policy-making.’”
Wilson was joined in his majority opinion by Court of Appeals Judges Madeline Singas, Anthony Cannataro and Michael Garcia, the court’s three conservative-leaning justices. Two of the court’s liberal-leaning judges, Jenny Rivera and Caitlin Halligan recused themselves from the case. Their replacements on the top court, Judges Stephen Lindley and Michael Lynch, dissented alongside Judge Shirley Troutman, who is considered one of the court’s more liberal-leaning judges.
At the time of his nomination – which came after the rejection Hector LaSalle, the first-ever chief judge nominee to be rejected – Wilson was supported by progressive lawmakers and criminal justice advocates who said the former chair of the Neighborhood Defender Services of Harlem would serve as a sharp contrast to former Chief Judge Janet DiFiore, who led the court’s conservative majority for several years.
Despite issuing the ruling alongside the court’s conservative judges, Sam Feldman, a senior staff attorney with Appellate Advocates, said Wilson’s ruling is decidedly a liberal one.
“On the one hand, the decision does favor police and prosecutors, in that it allows them to use this tool,” Feldman told the Eagle. “But the actual legal issue here is really about the scope of a legislative delegation to an agency and whether that was permissible.”
“It has broader implications for the administrative state, which is something liberal judges tend to be in favor of – allowing a lot of delegation of rulemaking authority from legislatures to agencies and those agencies being able to exercise that authority,” Feldman added. “Whereas conservatives are much more, in general, skeptical of unelected agencies that are exercising an authority that looks kind of legislative.”
However, the reasons for Singas, Cannataro and Garcia’s inclusion on the majority opinion may still differ from Wilson’s, Feldman said.
“I think familial DNA testing is a tool that many conservative judges would not like the idea of taking away from law enforcement,” Feldman said. “That outcome would be unpalatable to some judges, enough that they might be willing to sign onto an opinion that upholds that grant of authority, even if, in other contexts, they might be suspicious of those kinds of grants of legislative authority.”
While the ruling allows for law enforcement to continue using familial DNA searches, Feldman said he believes the larger implications of the ruling will apply to cases that may not have anything to do with DNA or criminal law.
In Wilson’s ruling, the chief judge said that Boreali v Axelrod, the leading case used to assess whether an agency is exercising too much power, did not apply to the commission’s rule change.
“That is probably going to be significant in future cases that are challenging agency actions as having gone too far,” Feldman said. “Now, it seems like Boreali is not necessarily the test to apply, which means that it could be much easier for government agencies in New York to regulate.”
