Last week, Los Angeles Police Department (LAPD) officers arrested a suspect they believe is the elusive "Grim Sleeper" serial killer responsible for 11 murders across South Los Angeles, dating as far back as 1985. The arrest made national news, in part because the LAPD broke the case by using a controversial new technique known as "familial DNA" searching. Prosecutors are now using this success to argue that familial DNA should be used more widely.
There's no question that the arrest in the "Grim Sleeper" case was an enormous relief for both the victims' families and for the South Los Angeles community that has lived under the shadow of these serial murders. But whether we should expand familial searching isn't just about the success in this case: it's about whether familial DNA searching is really the silver bullet prosecutors suggest, and whether privacy and civil rights concerns have been adequately addressed. The answer to both questions, for the moment, is no.
With traditional DNA forensic analysis, police take a DNA sample recovered from the crime scene, analyze various portions of it, and try to find an exact match in a database of DNA taken, for the most part, from people convicted of felonies. There is enough variation in human DNA that an exact match provides a very high likelihood that the crime-scene sample came from the same person as the match in the database, which usually provides potent evidence of guilt (or innocence, if the samples do not match). Familial DNA searching, on the other hand, goes a step further and works off the principle that if the DNA is a partial but not exact match, then the sample may be taken from somebody who is related to the database match. So all the police have to do is look at all that person's relatives and see if one of them might be the perpetrator, right? Not so simple.
First, there are serious privacy concerns. Currently, there are inadequate regulations about the storage of DNA in databases and their potential uses. DNA is much more than just a record of where we've been dropping stray hairs. It's our genetic information. It contains information about diseases and medical conditions we have, as well as those we might one day get. Genetic information has been linked not just to physical traits like hair and eye color, but aggression, susceptibility to addiction, and sexual orientation. And while the portions of DNA that are analyzed for inclusion in the database probably don't code for any traits (though that's still being debated by scientists), most jurisdictions retain the original biological samples and so have access to the full genetic information of people in the database.
Second, expanding the use of DNA investigations to familial searches widens the net of innocent individuals who could fall under suspicion and be investigated by police. The allure of DNA databases used in traditional forensic analyses has been that they can identify people who are guilty of a crime. But familial searching identifies only people who police know are not guilty of the crime, and potentially encourages police to go knocking on doors asking about family members, their histories, and their likelihood to commit a crime. While proponents of traditional DNA investigations justify their use by arguing that the people included in them have been convicted of crimes (usually felonies) so their civil liberties should weigh differently against public safety, such arguments do not hold water with familial searching, where people who have never even had a speeding ticket can be reached through the database if one of their relatives has committed a crime. This is all the more problematic as the familial searches aren't very accurate. And they usually don't result in arrests — California has run familial searches of their DNA databases in eight other cases since 2008, and once before in the Grim Sleeper case. None of those nine searches ever led to an arrest.
Compounding this problem, because our criminal justice system disproportionately arrests and convicts people of color, those populations (particularly African-Americans) are vastly overrepresented in the DNA databases. Because familial searches extend the reach of databases beyond the offender to the offenders' family, the result is a genetic map of communities of color, and a law enforcement tool that is much more likely to solve crimes committed by black offenders than white offenders. That raises serious concerns of racial equity.
In the "Grim Sleeper" investigation, the LAPD took great care to consider privacy and civil rights in its investigation, but there are no assurances or guidelines to make sure that such practices are widespread. If the police are going to widen the use familial DNA searching, then the "Grim Sleeper" case is a good example of the kind of case that it should be used in, and the way it should be used.
California Attorney General Jerry Brown has issued guidelines limiting familial searching to the most serious, violent cases, only when all other investigative leads have been exhausted and there's an ongoing threat to public safety. And the authorities in the "Grim Sleeper" case didn't go knocking on doors of every partial match — they winnowed the list based on additional DNA tests, gathered circumstantial evidence that showed the suspect lived in the area where the killings occurred and was the right age to have committed the crimes over the course of more than two decades, and they obtained an identical DNA match before going public. But in California, as in other states, the standards that led to this kind of caution are voluntary — there's no statutory scheme governing the use of familial searches, and no oversight mechanism to ensure the rules are followed. We need both.
Finally, the success in the "Grim Sleeper" case doesn't justify expanding the reach of DNA databases — for example, to include people who have been merely arrested for a felony, but not convicted or even charged with a crime. The Grim Sleeper arrest was made using DNA taken from a person convicted of a felony, not a mere arrestee. Even familial DNA searching shouldn't have been necessary, because the Grim Sleeper suspect has at least two prior felony convictions. California and 14 other states currently take DNA samples from people merely arrested — not convicted — for a felony, making residents' civil liberties and genetic privacy turn on the discretion of one police officer as he or she writes his or her report. Fully one-third of Californians arrested for a felony are never convicted of a crime. That's not just bad policy, it raises serious constitutional concerns. The ACLU of Northern California is currently challenging the DNA profiling of arrestees under the Fourth Amendment.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.