Leslie v. City of New York

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SHAKIRA LESLIE and SHAMILL BURGOS on behalf of themselves and all others similarly situated, Plaintiffs, v. CITY OF NEW YORK; KEECHANT SEWELL, Police Commissioner for the City of New York, in her official capacity; KENNETH COREY, Chief of Department for the New York City Police Department, in his official capacity; JAMES ESSIG, Chief of Detectives for the New York City Police Department, in his official capacity; EMANUEL KATRANAKIS, Deputy Chief in the Forensic Investigations Division of the New York City Police Department, in his official capacity; and DR. JASON GRAHAM, Acting Chief Medical Examiner for the City of New York, in his official capacity, Defendants.

No. 22 Civ. 2305 (NRB)

United States District Court, S.D. New York

March 24, 2023

CORRECTED MEMORANDUM AND ORDER

NAOMI REICE BUCHWALD, UNITED STATES DISTRICT JUDGE

Two named plaintiffs, Shakira Leslie (“Leslie”) and Shamil Burgos (“Burgos” and together “plaintiffs”), initiated this lawsuit pursuant to 42 U.S.C. § 1983 on behalf of themselves and all others similarly situated against defendants City of New York (the “City”), New York Police Department (“NYPD”) Commissioner Keechant Sewell (“Sewell”), NYPD Chief of Department Kenneth Corey (“Corey”), NYPD Chief of Detectives James Essig (“Essig”), NYPD Deputy Chief of the Detectives Bureau and commanding officer of NYPD's Forensic Investigations Division Emanuel Katranakis (“Katranakis”), and Acting Medical Examiner for NYPD's Office of Chief Medical Examiner (“OCME”) Jason Graham (“Graham,” and collectively “defendants”). See ECF No 1 (the “Complaint” or “Compl.”). Plaintiffs seek injunctive and declaratory relief stemming from defendants' alleged violations of the Fourth Amendment to the United States Constitution and New York Executive Law Article 49-B. See id. Before the Court is defendants' motion to dismiss the Complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See ECF No. 45. For the following reasons, defendants' motion is denied.

I. BACKGROUND^[1]

A. New York State's DNA Indexing Framework

Since the 1990s, federal and state governments have maintained a national system to facilitate DNA crime scene comparisons -- known collectively as the Combined DNA Index System (“CODIS”) -- which was created by, and is regulated through, federal and state law. Compl. ¶ 28. CODIS is an umbrella system of DNA indexes: the National DNA Index System (“NDIS”), State DNA Index Systems (“SDIS”), and Local DNA Index Systems (“LDIS”). Id. ¶ 29. Each index system categorizes DNA samples into smaller, discrete indexes. Id. Relevant here are “Known” indexes, which store DNA profiles of known persons, and “Forensic Unknown” indexes, which store DNA profiles collected from crime scene evidence. Id.

Initially enacted in 1994, Article 49-B of the Executive Law established New York's SDIS, authorized a regulatory structure for its operation, and provided certain restrictions on the establishment of DNA laboratories and the collection of New Yorkers' DNA. Id. ¶ 30, 32; N.Y. Executive Law Article 49-B.

B. NYPD DNA Collection and the Suspect Index

According to the allegations in the Complaint, NYPD officers are instructed to surreptitiously collect items used by suspects that are partially consumed and contain DNA, such as cigarettes, chewing gum, and beverage containers. Compl. ¶¶ 15-17. Detectives maintain discretion to obtain DNA, without a warrant or court order, from any adult whom they suspect of committing a crime and from any minor they suspect of committing a felony or certain specified misdemeanors. Id. ¶ 21.^[2]

After DNA samples are collected from suspects, they are sent to OCME, which analyzes them, creates a DNA profile of each suspect, and places those profiles in its own “Known” index (the “Suspect Index”). Id. ¶ 23. Once in the Suspect Index, the NYPD continuously compares each DNA profile to crime scene DNA samples. Id. An individual's DNA can remain in the Suspect Index for years, even if charges are dismissed. Id. ¶¶ 23, 50.

Plaintiffs allege that, unlike the state and federal DNA index systems described supra, the Suspect Index violates the Fourth Amendment and New York Executive Law Article 49-B. Id. ¶¶ 28-54. Specifically, according to plaintiffs: (1) the City's practices of taking individuals' DNA, maintaining their DNA in its Suspect Index, and analyzing their DNA against crime scene evidence violate the Fourth Amendment; and (2) Article 49-B precludes localities like the City from maintaining a DNA index comprised of arrestees and mere suspects, as opposed to those convicted of felonies and criminal misdemeanors. Id. at ¶¶ 30-33, 74-75, Requested Relief.

C. The Named Plaintiffs

On July 3, 2019, plaintiff Shakira Leslie was sitting in the back seat of a friend's car when the NYPD pulled the vehicle over for a purported traffic violation. Id. ¶ 55. Officers searched the car and found a firearm in a fanny pack, which belonged to the front seat passenger. Id. Leslie was searched, and although the NYPD did not find contraband on her, she was arrested, brought to the precinct for questioning, and charged with possessing the weapon. Id. ¶ 56. Because Leslie was not given food or water during the 12 hours before officers brought her into an interrogation room, she immediately drank when officers offered her a cup of water. Id. ¶ 57. The NYPD later collected the cup, took her DNA without her knowledge, and generated a DNA profile, which it placed in the Suspect Index. Id. ¶ 58-59. Ultimately, Leslie was not indicted and all charges against her were dismissed. Id. ¶ 60. However, her DNA profile remained in the Suspect Index when the instant suit was filed, nearly three years after her arrest. Id. ¶¶ 60, 62.

On September 7, 2019, plaintiff Shamil Burgos was sitting in the front passenger seat of a friend's car when officers approached in an unmarked NYPD car, ordered everyone out of the vehicle, and found a gun in the trunk. Id. ¶ 63. Burgos was arrested and brought to the precinct for questioning, where he took a cigarette and water offered by officers. Id. ¶ 64. Like Leslie, although Burgos was never indicted and all charges were dismissed, the NYPD collected his DNA without his knowledge and placed his DNA profile in the Suspect Index. Id. ¶ 65. Burgos's DNA also remained in the Suspect Index through the filing of the instant suit. Id. ¶¶ 65-68.

D. NYPD's 2020 Reforms

In February 2020, the NYPD announced reforms to its DNA retention policies, specifically committing to: (1) an initial full audit and review of every profile that had been in the Suspect Index for at least two full years; (2) further NYPD audits every four years; and (3) a review process in which any new DNA profiles added to the Suspect Index would be eligible for review after reaching their second full year index. Id. ¶ 50. The NYPD also announced that individuals who were acquitted in the case for which their DNA was taken could submit a certificate of disposition to OCME to seek removal of their DNA profile from the Suspect Index. Id. ¶ 52. Although the NYPD and the local District Attorney's office retain full discretion over DNA removal under these reforms, the NYPD will generally recommend removal of an individual's profile from the Suspect Index upon review, unless: (1) the profile is eligible for inclusion in SDIS because of a criminal conviction; (2) the individual is a suspect in an ongoing police investigation or prosecution; or (3) “no judicial conclusion was reached on the person's innocence.” Id. ¶¶ 51-52.

E. The Instant Action and Removal of Plaintiffs' DNA from the Suspect Index

Plaintiffs filed suit on March 21, 2022, seeking: (1) permanent injunctive relief preventing defendants from “subjecting plaintiffs and the putative class to the unconstitutional and unlawful practices” described in the Complaint, and ordering defendants to expunge all DNA profiles in the Suspect Index; and (2) a declaration “that the City's practice of secretly taking, analyzing and maintaining peoples' DNA in its Suspect Index for comparison against crime scene evidence constitutes an unreasonable search in violation of the Fourth Amendment absent a warrant or court order permitting the search.” See Compl. Relief Requested.^[3]

After plaintiffs filed the Complaint, the NYPD conducted an “expedited” review of plaintiffs' DNA profiles “on the direction of counsel.” See Declaration of Emanuel Katranakis (“Katranakis Decl.”) ¶ 18, ECF No. 46-6. Leslie's attorneys had not requested removal of her DNA from the Suspect Index prior to this review. However, Burgos's attorney had in 2019, and his request had been denied without explanation. See Memorandum of Law in Support of Defendants' Motion to Dismiss (“Def. Br.”) at 6, ECF No. 47; Declaration of Kyla Wells in Opposition to Defendants' Motion to Dismiss (“Wells Decl.”) ¶¶ 8-9, ECF No. 56. On May 19, 2022, the NYPD removed plaintiffs' DNA profiles from the Suspect Index as a result of its “expedited review.” Declaration of Melanie L. Rios (“Rios Decl.”) ¶¶ 25-26, ECF No. 46-1; Katranakis Decl. ¶¶ 18-19. Defendants assert that, had review of plaintiffs' profiles not been expedited, the NYPD would have reviewed Leslie's profile in June 2022 and Burgos's profile in January 2023, and both profiles would have been recommended for removal. Def. Br. at 7; Katranakis Decl. ¶ 19.

Defendants filed the instant motion to dismiss the Complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) on July 15, 2022, along with a memorandum in support and associated declarations and exhibits, ECF No 45-47. According to defendants, plaintiffs lacked standing when the Complaint was filed, and even assuming plaintiffs had standing...