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Home  >  Topics  >  Legal

February 24, 2010
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Terrence P. Dwyer, Esq. Police Liability and Litigation
with Terrence P. Dwyer, Esq.

Should cops be required to submit DNA samples?

Providing DNA samples as a condition of employment is not yet an issue in law enforcement, but we should contemplate the ramifications should that day arrive

The New York State Police and the union (representing some 1,100 Investigators in the Bureau of Criminal Investigation) have apparently entered into a Memorandum of Understanding (MOU) with the Governor’s Office of Employee Relations (GOER) regarding a voluntary, employee-participation plan for submission of DNA samples. The premise for this program, I am told, is to rule out police employees as the source of DNA from crime scenes. I’m assuming this is in the event of potential scene contamination, or defense issues raised because of unidentified DNA.

While the rationale for such use of a DNA sample would seem innocent enough, the thought that the government is now seeking DNA samples from employees for a database is of great concern. In fact, I consider it a very disturbing piece of career-related news for the law enforcement profession.

For those of you who remember reading George Orwell’s 1984, you now know you’ve lived to see the futuristic tale come to life in many respects. I have nothing but lingering suspicion and numerous questions as to the propriety of such a program and the initiation of it as part of contractual negotiations.

There are so many issues which jump out here: including privacy rights, employment considerations, constitutional safeguards, disciplinary concerns, and informational security. My concern for my police brethren — not just friends and former colleagues, but for younger officers and aspiring officers — prompted me two write a letter to the union president, who is wisely against the policy and instructs his members to not participate. It also was a catalyst to further research into the situation to see if a similar policy was in effect anywhere else.

DNA not simply a ‘more sophisticated fingerprint’
While researching, I found a recent news piece from CBS regarding a policy instituted by the University of Akron. The university claimed that DNA was merely a “sophisticated fingerprint” and wanted to obtain DNA samples from all faculty, staff, and contractors seeking employment to conduct background checks.

The policy stated that a “DNA sample for purpose of a federal criminal background check” may be required; this allowed employers to compare DNA samples to federal CODDIS databases. What the University of Akron and its legal counsel failed to consider was the potential backlash this policy would have and the revolt from the university faculty. Akron failed to obtain Faculty Senate approval and didn’t clear the policy with their union, the American Association of University Professors (AAUP). Seeds of dissent were not only sown but quickly blossomed into fully born fruit: an adjunct faculty member resigned in protest, and the ACLU of Ohio questioned the legality of the policy in light of various federal employment laws.

Laurie Massie, spokesperson for the University of Akron, said the reasoning behind the policy was the potential demise of the fingerprint as a criminal identification tool and its replacement with DNA. But this only begs the question as to whether a fingerprint and DNA sample are really the same. Doesn’t DNA require more concern for individual privacy than a fingerprint? DNA is a different identifier and the technology and its potential use is far more invasive than a federal database of fingerprints. Fingerprints are a simple external means of identification no more intrusive than a physical description of a person’s eye and hair color, height, and weight. DNA provides a Pandora’s Box of information which the government can store and potentially use.

What privacy rights do we surrender when we provide a set of fingerprints for employment? The one response usually heard in support of employee DNA sampling is: “If you have nothing to hide, you have nothing to worry about.” However, this intellectually-weak argument misses the point of the issue. Any group representing public safety employees must defend the sanctity and protection of individual rights.

Using DNA Samples: The Good, the Bad, the Ugly
In order to fully consider the adverse effects of such an employment policy, the evolving uses of DNA must be explored. The suggestion that DNA sampling should be employment criteria raises questions about the use of such genetic information. Genetic testing and the information sought from it have grown exponentially since the introduction of DNA into forensic science in 1984 by British geneticist Sir Alec Jeffreys. Genetic screening for pre-disposition to diseases and occupational illnesses is no longer the stuff of science fiction. To what end may a stored sample of DNA be put to use?

Despite the articulated policy, the storage, retention, and availability of the DNA to outside sources (such as litigants in paternity or divorce cases) are still debatable issues. Is a pre-deposited and stored sample of DNA really an effective means of eliminating police officers as the source of unidentified DNA at a crime scene? Can we be led to believe, as public employees, that the DNA sample will not be used by an employer in a disability claim against an employee?

In litigation against public employers, I have witnessed the length to which an employer will go to discredit employees seeking workplace rights. I simply do not trust government officials to do the right thing. It seems that employment purposes may be covertly used for law enforcement purposes. An officer’s submission to a voluntary DNA sample is a waiver of a protected constitutional right against unlawful search and seizure. The Fourth Amendment requirement of probable cause is the standard for search, and its companion “reasonableness standard” keeps the activities of the government in check. Individualized suspicion is still a cornerstone of our criminal justice process, not blanket DNA sweeps and genetic profiling. I am troubled at the extent to which such a policy may develop if it’s not muted from the start.

The Genetic Information Non-Discrimination Act of 2008
The uproar over the University of Akron policy and my own alarm at the proposed New York State Police policy comes at a relevant moment in this discussion. On May 21, 2008 the Genetic Information Non-Discrimination Act of 2008 (GINA) went into effect after being signed into law by former-President George W. Bush.

The act, in part, provides: “[I]t shall be an unlawful employment practice for an employer to fail or refuse to hire, or discharge, any employee...because of genetic information with respect to the employee.”

The MOU in place between the New York State Governor’s Office of Employee Relations and the New York State Police Investigators Association would appear to not violate GINA based on the “voluntary” nature of the policy. However, the University of Akron policy is likely a violation of the act. So where does all of this leave law enforcement officers in the United States regarding the future of DNA sampling policies?

DNA Sampling Abroad
I could not find similar policies at other police departments, but I did discover that the Scottish Police Services has been requiring DNA samples from recruits since 2003. When first proposed, the union representing Scottish officers was vocal and vehement in its opposition to the program. Concerns about privacy were voiced along with the union’s statements regarding the potential for officers to be framed by criminals looking to get even. The union said it was not beyond imagination for an enterprising criminal to obtain an officer’s DNA from a discarded cigarette and use that evidence to frame the officer at a crime scene.

Not surprisingly, the Association of Chiefs of Police Officers in Scotland responded and said the officers’ fears were farfetched. A case involving a female officer — who was wrongly accused for contaminating a homicide scene, fired and then charged for perjury based on her denials of contaminating the scene — was presented by the union. Despite the fact that the officer was eventually acquitted and restored to her job, the union indicated that their fears were very real and future outcomes might not be so favorable.

Whatever the merits of the union’s claim regarding the frame-up issue, the relevant argument still goes to individual privacy, especially in the realm of genetic information.

This is the exact issue the European Court of Human Rights ruled on when it required the United Kingdom to delete 857,000 names of innocent individuals from its massive DNA database (for details, see: S. and Marper v. The United Kingdom, App. No. 30562/04 and 30566/04, 4 Dec. 2008, E.Ct.H.R.).

A person stopped in the UK for an arrestable offense used to have a DNA sample taken, and even if that person was not convicted of a criminal offense, the DNA was retained. The European Court was unanimous among its 17 judges in its ruling, and was especially critical of the retention without time limits and without regard to the alleged offense or the age of the alleged offender. The judges were concerned that the samples could be used to identify familial relationships, which interfered with a citizen’s right to privacy and the government’s respect for private lives under the European Convention for the Protection of Human Rights. The judges found that “[a]ny interference with privacy has to be for solving crime.”

Decisions from the U.S. Supreme Court have found that same respect for privacy inferred from the provisions of select amendments to the Constitution (such as the Fourth and Ninth Amendments). It is a dangerous step for a police employer to seek DNA samples as a condition of employment. As police officers — and as those in our military can also attest — our jobs are to stand up and protect the important rights of individuals, including the right to privacy that we all demand.


About the author

Terrence P. Dwyer retired in 2007 from the New York State Police after a 22-year career. He is now an Associate Professor in the Justice and Law Administration Department at Western Connecticut State University and an attorney in private practice representing law enforcement officers in discipline cases, critical incidents, and employment matters.

Contact Terry Dwyer





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