A woman who gave police a DNA sample as the victim in a sexual assault investigation is suing the city and county of San Francisco in California federal court after the police used the sample to arrest her for an unrelated retail theft, alleging an unconstitutional invasion of privacy.

In a 15-page complaint filed Monday alleging civil rights violations, the woman, identified only as Jane Doe, said she was the victim of a sexual assault in 2016 and provided her DNA sample to San Francisco Police officers to help them investigate the incident. Doe alleged that officers led her to believe her sample would not be used for any purpose other than investigating the crime. 

However, San Francisco Police and its crime lab kept Doe's DNA sample in a "quality assurance" database from 2016 until at least February of this year, which was likely tested for a match against DNA taken from every other subsequent and unrelated crime scene and investigation in which genetic material was found, Doe alleged. 

"In that time, plaintiff's DNA was tested against crime scene DNA in hundreds, if not thousands, of cases," Monday's filing states. "Plaintiff Doe never consented to her DNA being used in this context or any other context other than the investigation into the sexual assault she reported."

Doe said police arrested her in December 2021 for an unrelated commercial property crime, five years after she submitted her DNA sample to police. Chesa Boudin, who was then the district attorney for San Francisco, refused to bring charges against Doe in connection with the commercial property crime and lambasted the department's practice during a press conference in February. 

On Feb. 16, San Francisco Chief of Police William Scott issued a press release pledging that the agency "must never create disincentives for crime victims to cooperate with police." Scott added that if it is revealed that police use a crime victim's DNA to identify and arrest them in an unrelated incident, he is "committed to ending the practice."

Doe has named the city and county of San Francisco, its police department and police chief Scott, crime lab director Mark Powell, criminalist Kelly Fracchia and San Francisco Police sergeant Sylvia Lange as defendants in her suit alleging violations of the Bane Act, the Fourth Amendment, and supervisory and municipal liability for unconstitutional custom or policy under the Monell Act.

Doe's attorney, Ty Clarke of Pointer & Buelna LLP, told Law360 on Tuesday that his client did everything law enforcement officers require crime victims to do to assist with an investigation, but they "turned around and used that against her."

"Ms. Doe gave them her DNA sample with the understanding that it'll be used to investigate the sexual assault crime that she was a victim to," Clarke said. "But police used her cooperation to punish her."

Adante Pointer of Pointer & Buelna, Doe's lead counsel, contended that the San Francisco Police Department's unethical use of DNA samples violates crime victims' Fourth Amendment rights against unlawful search and seizure.

"This is a clear example of government overreach," Pointer said in a statement. "This practice creates distrust in the public and heightens the harm done to sexual assault victims, who in many instances already fear going to the police."

According to the complaint, Doe provided her DNA sample to police on Nov. 8, 2016, when she reported that she was the victim of a sexual assault crime. Long after the investigation into the crime, San Francisco Police maintained Doe's DNA in its database, which the agency said was a standard procedure, according to the suit. 

On Dec. 6, Fracchia ran a DNA sample that was purportedly taken from the scene of a burglary through the agency's database, Doe alleged. Four days later, Fracchia notified Lange that the DNA taken from the crime scene matched the sample Doe had provided five years earlier, the suit states. Law enforcement then arrested Doe on suspicion of burglary.

"In December 2021, defendant city and county of San Francisco used an alleged match between crime scene evidence and plaintiff Doe's unconstitutionally-maintained DNA sample to arrest her on allegations of burglary," the complaint states. "While all charges stemming from this incident against plaintiff Doe were eventually dropped, the appalling, exploitative and unconstitutional nature of defendants' practice cannot be ignored."

Doe maintained that San Francisco Police's probable cause for obtaining the arrest warrant was largely premised on the DNA match Fracchia obtained from the agency's database.

Doe seeks punitive damages and injunctive relief from the court, ordering the removal of her DNA from the police department's database, prohibiting the department from keeping victims' DNA in a permanent database and from providing access to the database to other law enforcement personnel without the victims' permission. 

Robert Rueca, spokesperson for the San Francisco Police Department, said the agency is precluded from commenting on pending lawsuits and directed media inquiries to be forwarded to the San Francisco city attorney.

Jen Kwart, spokesperson for the City Attorney's Office, told Law360 in an email that the city of San Francisco is ensuring that all victims of crime feel comfortable reporting issues to law enforcement and that it has taken steps to protect victim information.

"Once we are served with the lawsuit, we will review the complaint and respond appropriately," Kwart said. She added that the San Francisco County Board of Supervisors passed legislation earlier this year to prohibit the police department or any other city department from uploading or storing DNA profiles from crime victims' reference samples and from storing DNA profiles obtained from crime scene evidence. 

Doe is represented by Adante D. Pointer, Patrick M. Buelna and Ty Clarke of Pointer & Buelna LLP. 

Attorney information for the city and county of San Francisco and its police department were not immediately available. 

The case is Jane Doe v. City and County of San Francisco, et al., case number 3:22-cv-05179, in the U.S. District Court for the Northern District of California.

--Editing by Vaqas Asghar.