Nijeer Parks was arrested due to a false facial recognition match

Detained by the Woodbridge police, Parks, whose arrest was first reported by NJ.com, said he spent 11 days in jail. Only upon his release was he able to learn what the evidence against him was.

According to a police report obtained by CNN, the evidence presented by the police officers that led to Parks' arrest was a "high profile comparison" from a facial recognition scan of a photo from what was determined to be a fake ID left at the crime scene that witnesses connected to the suspect. The facial recognition match was enough for prosecutors and a judge to sign off on his arrest.

What followed was a year-long legal nightmare for Parks, who faced years in prison and the potential of additional time due to his prior convictions.

Nijeer Parks was arrested for crimes he did not commit based on a faulty facial recognition match. (John General/CNN)

While facial recognition technology has become increasingly accurate, research has shown it is drastically more prone to error when trying to match the faces of darker skinned people. And because no federal guidelines exist to limit or standardize the use of facial recognition by law enforcement, states -- and, more often, municipalities -- are left to decide for themselves what, if anything, to do to control its use. Virginia recently became the fifth state to curtail the use of the facial recognition by police, while Portland, San Francisco, Oakland and Boston are among the cities outlawing it.

You can have people who are being sent to jail wrongly who never know that facial recognition played a role in their arrest."

Albert Fox Cahn, Surveillance Technology Oversight Project Exec. Director

There are only a handful of known cases in which facial recognition has been used as the sole evidence in an arrest, and many police departments claim to use facial recognition for investigative leads only. However, according to some privacy advocates, the restrictions on facial recognition being presented as evidence are lax, and there is little transparency about how those matches are being used in criminal cases.

"When we talk about the number of facial recognition scans unfolding in the United States every day, we don't even know the full number," said Albert Fox Cahn, executive director of Surveillance Technology Oversight Project, a nonprofit that opposes the use of facial recognition by law enforcement. "You can have people who are being sent to jail wrongly who never know that facial recognition played a role in their arrest."

A fleeing suspect

The crimes Parks had allegedly committed occurred at a Hampton Inn in Woodbridge, New Jersey on January 26, 2019. Local police responded to an alleged shoplifting incident and spoke with a suspect who gave them a Tennessee driver's license. When the officers ran the license through with dispatch, they came back with no results. It was a fake ID.

After being confronted by the police, the suspect ran out of the hotel, got into a car and sped off, according to the police report. While fleeing, he hit a concrete pillar and a police car, and almost struck an officer.

The Hampton Inn in Woodbridge, NJ where police said a suspect fled the scene, hitting a police car and almost running over an officer. (John General/CNN)

Two eyewitnesses to the crime told police that the photo on the fake Tennessee driver's license matched the person they'd seen. With that, police sent the photo off for facial recognition scanning. The scan compared the Tennessee ID photo to a police database of faces and, police said, returned a "high profile comparison" to a picture of Nijeer Parks. To this day, Parks and his lawyer don't know what photo of him the system scanned or where it came from.

With seemingly no other evidence, according to the police report, officers in the Woodbridge Police Department, Middlesex County Assistant Prosecutor Peter Nastasi and Woodbridge Municipal Court Judge David Stahl signed off on a warrant for Parks' arrest.

"Looks nothing like him"

Two years after her son was arrested, Patricia Parks stood in the kitchen of his apartment staring at an enlarged print out of the suspect's fake ID.

"He looks nothing like him ... nothing like him," she said. "People have a saying 'all Black people look the same.' That's the first thing came to my mind when I'd seen this photo because it looks nothing like my son."

Nijeer noted that the suspect appears to be wearing earrings. "All you had to do was look at my ears and notice I don't even have ear piercings," he said.

Police used an image of the suspect taken from a fake driver's license left at the scene (left) to run a facial recognition scan. It returned a "high profile comparison" to Nijeer Parks (right), police said. (Woodbridge Police Department)

People have a saying 'all Black people look the same.' That's the first thing came to my mind when I'd seen this photo..."

Patricia Parks, Mother of Nijeer Parks

At the time the crimes were being committed, Parks was at a Western Union 30 miles away from the Hampton Inn sending money to his fiancée. He happened to take a picture of the receipt's tracking number that corroborated his story. Still, it took nearly a year for the charges against him to be dropped.

The person who actually committed the crimes is still at large.

Parks told CNN that after the charges were dropped, he never received an apology.

"I've never heard anything from anybody else... no, 'We're sorry. We could have went about it a different way." said Parks. "Nothing."

Police use in question

Nijeer Parks isn't the only person who's been arrested thanks to a supposed facial recognition match that wasn't. There's also Robert Williams and Michael Oliver, two Black men arrested in Detroit based in part on bad facial recognition results. Their cases were later dropped, too. Williams, joined by the ACLU, recently filed a federal suit against the City of Detroit.

Experts say examples of facial recognition being presented as evidence to make arrests are rare. What's more common is police not mentioning to the defense that facial recognition was used at all, according to a report by the National Association of Criminal Defense Lawyers.

What we know

• Police departments across the US are using facial recognition
• The majority of facial recognition algorithms misidentify people of color at a higher rate
• A small but growing group of jurisdictions have banned or restricted its use by law enforcement

What we don't know

• How many police departments use facial recognition
• What photos are used to train facial recognition algorithms
• How often police use facial recognition matches as the only evidence for arrest

The Woodbridge Police Department and the Middlesex Prosecutors Office did not respond to questions on whether it was still their practice to use facial recognition matches as probable cause in arrests. There do not appear to be any local, state-wide or federal regulations in place that would prevent them from doing so.

Some police departments, government agencies and facial recognition vendors have cautioned that purported facial recognition matches should be used only as investigative tools, not as evidence.

Facial recognition "remains an investigative lead only," FBI Deputy Assistant Director Kimberly Del Greco testified to Congress in 2017. "The candidates must be further reviewed by specialized face examiners and/or the relevant investigators."

Detroit's police manual stipulates that a facial recognition match is meant to be used only "as an investigative lead" and "is not to be considered a positive identification of a subject."

However, according to Clare Garvie, a senior associate with the Center on Privacy & Technology at Georgetown Law, even in jurisdictions that claim to use facial recognition matches only to launch investigations, the distinction between "investigative tool" and "evidence" can be a blurry one for police to follow. The police "are in no way informed ... on what constitutes sufficient additional investigative steps," Garvie said.

Although we don't know for sure what the Woodbridge Police Department's policies around facial recognition are, the New York City Police Department has an explicit policy stipulating that there must be "other corroborating evidence" along with facial recognition matches to allow for an arrest.

In practice, that additional investigative step could be as simple as getting a witness to say that a photo obtained from a facial recognition match looks like the suspect.

For example, according to court filings, one NYPD officer texted a witness a photo of a single face obtained in a facial recognition search, along with the message "Is this the guy...?" When the witness said yes, police made the arrest.

"You can lock me up for anything"

Parks is now suing those involved in his arrest for violating his civil rights and "intentional infliction of emotional distress." None of the defendants listed on Parks' lawsuit responded to a request for comment. In March, the defendants filed a motion to dismiss the case, which is still ongoing. Judge Stahl, who is not listed as a defendant, also did not respond to a request for comment.

Parks said he's still tormented by what happened to him.

"You took being comfortable away from me. I see police, I'm automatically shaken up," Parks told CNN. "You proved to me that you can lock me up for anything, and there's nothing I can do about it."