Court of Appeals weighs in on use of DNA database

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In a split decision, New York state’s highest court has rejected a challenge to a state policy that allows law enforcement officials to search the state’s DNA database to find relatives of potential criminal suspects.

In 1994, the state Legislature passed the DNA Databank Act, which created the New York State Commission on Forensic Science and the DNA Subcommittee.

The databank contains DNA collected from individuals who are required to provide DNA samples after being convicted of certain crimes.

In 2017, the Commission adopted a recommendation from the Subcommittee to allow familial DNA searches (FDS) with stringent restrictions.

Under the policy, law enforcement can request a familial search only for specific crimes, or if the crime poses “a significant public safety threat.”

If a partial match to DNA found at a crime scene is found in the database, it could mean that the crime scene DNA belonged to a person related to the person in the database who was the partial match.

Terrence Stevens and Benjamin Joseph, two Black men living New York, who have never been convicted of a crime, each have a brother whose genetic information has been collected and stored in the DNA database as the result of a felony conviction.

They filed an Article 78 petition claiming that the Commission lacked statutory authority to promulgate the FDS regulations. They argued that, even if the Commission was authorized to promulgate the regulation, their decision would be arbitrary and capricious because they did not consider the disproportionate effect the regulation has on people of color because the database contains DNA from a disproportionate number of African Americans.

The state argued that Stevens and Joseph lacked standing to challenge the regulations.

State Supreme Court Justice Shlomo S. Hagler ruled that the petitioners had standing, but dismissed the case on the merits, determining that it was a proper exercise of the Commission’s statutory authority to promulgate the FDS regulations.

In a 3-2 vote, the Appellate Division of state Supreme Court, First Department, reversed the lower court, granted the petition, and annulled the regulations.

The state Division of Criminal Justice Services appealed, and, in a 4-3 vote, the Court of Appeals reversed the Appellate Division, holding that the Commission had the statutory authority to promulgate the FDS regulations.

“The Court unanimously agrees that the legislature has that power; the disagreement is whether the Databank Act granted the Commission the authority to promulgate the FDS Regulations. We hold that it did so,” Chief Judge Rowan Wilson wrote.

In 2010 the Commission promulgated a “partial match rule,” which authorized the release of partial match information to law enforcement.

But the partial match regulations did not allow familial DNA searches — essentially an intentional search for partial matches, as opposed to an unintentional partial match.

Wilson, along with judges Michael Garcia, Madeline Singas and Anthony Cannataro concurred. Judge Stephen K. Lindley dissented and wrote an opinion in which Judges Shirley Troutman and Michael C. Lynch concur.

“In my view, the legislature did not authorize either the Commission or the DNA Subcommittee to make important policy-laden decisions of this nature, and respondent agencies, in adopting the familial search regulations, crossed the hazy ‘line between administrative rule-making and legislative policy-making,” Lindley wrote.

Lindley noted that numerous bills to permit familial searches of the databank have been considered by the Legislature, but none have been passed.

Only 11 other states allow familial searching. The FBI does not use familial searching of its DNA database because it would require authorization from Congress, “which has not been forthcoming,” according to the dissent.

“The fact that the legislature authorized the Commission to establish and operate the Databank does not mean that the legislature intended for the Databank to be used for any purpose deemed appropriate by the Commission,” Lindley wrote.

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