This past March, Jamie Wilson received a letter from the San Diego Police Department, notifying her that her 17-year-old son had been added to CalGang, the state’s gang database. It didn’t give reasons — Wilson would have to appeal the decision to find out why he’d been added — but the timing seemed suspect. Only a few weeks earlier, on Feb. 14, the ACLU of San Diego and Imperial Counties had filed a lawsuit on behalf of Wilson and her son, challenging when San Diego police can collect DNA from minors.
“I feel like they are punishing my son for filing this lawsuit,” Wilson said.
The lawsuit stems from a March 30, 2016, incident involving Wilson’s son, a minor referred to as “P.D.” in court documents, and four friends who were leaving the Memorial Park rec center after a basketball game. According to court records, detectives with the Police Department’s gang unit stopped the teens because the day was considered a gang holiday and some of the boys were wearing blue (P.D. was wearing red and blue). The boys, all of whom are black, were detained, handcuffed, questioned and patted down. In a duffel bag P.D. had been carrying, officers found an unloaded gun. According to court records, the gun was registered to one of the boys’ fathers.
The teens were photographed and told to sign a form to allow officers to collect a DNA sample via a cheek swab. P.D. was arrested, taken in for questioning and charged with carrying a concealed weapon. In a video of the interrogation, conducted prior to police notifying Wilson that they’d arrested her son, two detectives tell P.D. he’s an “underperforming person” who came from a “broken home” and attended a school for kids “who fuck up.” He was then taken to juvenile hall where he spent eight days before being placed on house arrest.
In June 2016, a juvenile court judge dismissed the charges against P.D., finding that police based their decision to stop the teens on race and lacked probable cause to search P.D.’s bag.
The ACLU’s lawsuit, filed in federal court, makes a similar argument: that police targeted P.D. because he was black, and violated his Fourth Amendment rights when they detained and searched him. The lawsuit also asks a judge to find the department’s DNA policy unconstitutional. Under state law, only minors who’ve been found guilty of a felony or convicted of a sexual offense are required to provide a DNA sample. The San Diego Police Department gets around this rule by maintaining its own database — one that’s not linked to state or federal DNA databases. Department policy requires officers to get a signed consent from the minor, but doesn’t require them to notify the minor’s parent or guardian.
The policy “contains no protections to ensure a child’s consent is given knowingly and voluntarily,” the ACLU’s lawsuit argues, and “permits officers to obtain a minor’s consent in the same manner that they obtain an adult’s consent.”
Experts I spoke to earlier this year said they were unaware of any other law enforcement agencies in California that collect DNA from juveniles in the field. They questioned why police can’t wait and get a warrant if a minor’s DNA sample is critical to a case.
The lawsuit isn’t the first time the department’s been sued over improper DNA collection. In 2013, the city agreed to pay a $35,000 settlement and destroy DNA samples police had collected without cause from the family of a parolee.
In July, the lawsuit involving P.D. was close to being settled. Both parties were scheduled to finalize things in mid-August, court records show. But then the city withdrew from settlement talks.
“We thought we had reached an agreement on how to resolve many of the issues in the case,” Vakili said, “but the Police Department reconsidered its position.”
A spokesman for the city attorney’s office, which is representing the Police Department in the lawsuit, said he couldn’t comment on the case.
A Police Department spokesman said he couldn’t comment on the case, or confirm or deny that P.D.’s name was entered into CalGang.
Prior to his arrest, Wilson said, P.D. had no criminal record and had never been involved with a gang — same with the boys P.D. was with at the rec center: None had a criminal record or gang affiliation.
Wilson said she’d spoken to a detective shortly after P.D.’s case was dismissed, and he assured her that police didn’t consider P.D. to be a gang member. The detective told her that P.D. was “just someone who’s kind of on our radar.”
In a follow-up letter, after Wilson filed an appeal, the Police Department cited P.D.’s arrest as a reason he’d been added to CalGang. The letter included a checklist with marked boxes saying that he’d been seen hanging out with gang members, frequenting gang areas and wearing gang colors.
To be entered into the database, a person must meet at least two criteria from a list that includes the reasons police checked off for P.D., as well as having gang tattoos, being seen flashing gang symbols, being identified as a gang member by an informant or admitting to belonging in a gang.
Her son doesn’t go out much, Wilson said. Their southeastern San Diego neighborhood is heavily policed and he’s afraid he’ll be stopped. If he wants to play basketball with friends, she’ll drop him off and pick him up. She takes a photo of him each time, so, if necessary, she can prove he’s not wearing gang colors.
“He missed out on the past couple years of being a kid,” she said. “He missed being 16 and 17 years old. He can get in trouble for hanging out with his friends.”
After his arrest in March 2016, P.D. was on house arrest until his case was dismissed. Now his life is pretty much limited to school — where he’s maintained a 3.0 GPA, Wilson said — work and martial arts training and coaching.
“Nine months of not getting in any trouble — he hasn’t done anything wrong — and then weeks after we filed the lawsuit and did the press conference, they feel like he needs to be documented as a gang member?” Wilson said.
She submitted a final appeal two weeks ago to get P.D.’s name removed from CalGang. The Police Department has 30 days to respond. If it refuses, Wilson can appeal the decision to an administrative law judge and, if necessary, Superior Court.
It’s a new process, the result of legislation passed by Assemblywoman Shirley Weber — whose district includes southeastern San Diego — after a state audit found CalGang lacked transparency and people were being entered in the database without proper substantiation.