Hard Light Productions Forums
Off-Topic Discussion => General Discussion => Topic started by: Kosh on June 29, 2009, 11:31:27 pm
-
NOT unconstitutional (http://www.niagara-gazette.com/breakingnews/local_story_154132251.html)
A decision by Falls Police to use a Taser to obtain a DNA sample from a suspect in an armed robbery, shooting and kidnapping is not unconstitutional.
Niagara County Court Judge Sara Sheldon Sperrazza reached that conclusion in a 16 page decision handed down Wednesday that refused to dismiss an indictment against Ryan Smith and denied his request to have DNA evidence that links him to two separate criminal cases thrown out.
The ruling left Smith’s attorney, Patrick Balkin, stunned and requesting additional time to prepare for a trial that had been scheduled to begin later this month.
“Your honor, I was not expecting this ruling,” Balkin said. “I have not begun to have the DNA evidence analyzed and will need time to do that.”
-
Nothing surprises me anymore but I wonder how long before they kill someone trying to obtain evidence this way and someone takes a harder look at the policy.
-
Prosecutors asked Sperrazza for an order to get a DNA sample from Smith in August 2008 and he voluntarily gave that sample to police.
In September 2008, prosecutors asked for another DNA sample because the first one had been sent to the wrong laboratory and could not be used. Sperrazza signed the second request and Falls Police went looking for Smith.
When they found Smith and took him to police headquarters, he refused to give another sample, telling the officers that he would have to “be tased” to give one. After detectives and officers tried to get Smith to comply with the court order, and he refused, they drive stunned him with a Taser and then took the DNA sample.
Balkin had argued that the use of the Taser to get Smith to give up the DNA sample violated his constitutional right against an unreasonable search and seizure. Sperrazza ruled that the police action was reasonable.
Sounds like the court ordered him to give a DNA sample to me. I don't know much about the law in America so I don't know what powers the police do have to compel a sample but I doubt that the correct course of action for the police was to let him go about his merry way simply because he refused.
-
All I can say to this is if he's innocent he has nothing to fear from giving another sample, his body makes about 1 gallon a day or something of saliva.
-
But that's how Nazi Germany got started!
Okay, now that Liberators attempted thread jack has been dealt with in a matter befitting it, let's deal with the actual original subject.
-
All I can say to this is if he's innocent he has nothing to fear
Ah yeah... thats the phrase used by oppressive regimes and policestates throughout history. It's an anathema to the whole concept of civil rights and freedom in general.
Ironically it's also how the Inquisition rationalized torture and witchhunts... "if she's innocent, she has nothing to fear... when she meets her maker eh? LOL".
It really has nothing to do with "justice" in one specific case either. It rather has to do with the ramifications AFTER that case.
The problem with this policy is that it is basically an encouragement to get "taser happy" in the future... and a taser really doesn't care who is innocent or not or who has a medical condition or not or who gets a heartattack or not. It's an encouragement for a "shoot them now, sort them out later" policy and the sad thing is that it propably will take a few innocent bystanders to get tasered first before this gets another look.
-
Why don't they just do one of those stakeout stings for his DNA?
-
Why should they have to if they have a court order compelling him to give it?
-
That was a joke that no one got. I blame myself. :(
Did they do it while he was on the floor or did they tase him and then he gave the sample later?
I also wonder if this judge was the first one to say you can use a taser. I can't imagine these guys have been using these things forever and no one thought to ask if they could.
-
He voluntarily gave a sample, they ****ed it up. He did not appear to be under arrest, he refused a second sample. They electrocuted him and took one anyway.
What if they had hit him with a phone book? Would that still be ok? Punched in the head? He may be a scum bag, he may have done it, but they should have arrested him and gotten guidance from the courts. Cowboy cops like that do stupid things like arrest ambulance drivers on the way to the hospital.
Without knowing more than what is in a dramatic news story, and not googling for more meaty links, I would say that sounds a lot like unlawful search and seizure on the face of it. Innocent until proven guilty is also something I read somewhere that American citizens were supposed to be able to enjoy.
I strongly expect this will be appealed, and that a sane judge will toss this particular ruling out on those grounds. I bet the scum bag goes free eventually because these moron cops.
On a related note: Its depressing to me that people who fight with venom and anger about one right (say, for example Keep and bear arms) are cavalier about others.
-
As I pointed out, there was a court order compelling him to give up a sample. Whether they used excessive force in getting the sample is a completely different matter from whether or not they were constitutionally allowed to get a sample.
The lawyer wanted the entirety of the DNA evidence thrown out on the grounds that excessive force was used in getting it. But that's nonsense. The best he could get was that the particular sample from that day was thrown out and another one was compelled in its place. Which would have been a pointless waste of public time and money. So the judge quite rightly threw it out.
Now if the suspect had complained about excessive force, then I might have been interested in his case, but I'm most certainly not going allow some sleazy defence lawyer trick me into complaining about the evidence against his client by pushing a hot button of mine and expecting me to run off foaming at the mouth in the wrong direction.
-
All I can say to this is if he's innocent he has nothing to fear from giving another sample, his body makes about 1 gallon a day or something of saliva.
GTFO of my country.
-
First, I must congratulate everyone in this thread for not bringing up that tazer meme.
Second, in response to someone being tazered over this, :wtf:. I mean, seriously, :wtf:. Was he hopped up on PCP or something? Why in the Hell did he need to be incapacitated!? Arrested for violating a court order, sure. He was obviously in contempt of a court order. But, Hell, he didn't need to be tortured for a little spittle.
-
How do you arrest someone who resists without restraining him?
Dose it really matter if it's a tazer? Is twisting his arm painfully somehow a lot better? Or knocking to the ground?
-
Everyone stop, right now, before this gets any more stupid. Read this part of the article:
In September 2008, prosecutors asked for another DNA sample because the first one had been sent to the wrong laboratory and could not be used. Sperrazza [Ryan's note: The judge] signed the second request and Falls Police went looking for Smith.
When they found Smith and took him to police headquarters, he refused to give another sample, telling the officers that he would have to “be tased” to give one. After detectives and officers tried to get Smith to comply with the court order, and he refused, they drive stunned him with a Taser and then took the DNA sample.
Balkin had argued that the use of the Taser to get Smith to give up the DNA sample violated his constitutional right against an unreasonable search and seizure. Sperrazza ruled that the police action was reasonable.
This should not be a surprise to anyone.
The use of force to enforce a COURT ORDER is well established in Common Law. This ranges from warrants for arrest to compelling the appearance of an accused or convicted person before a judge. How that force is applied must be reasonable, but there is no limitation on what tools can be used within that definition of reasonable (and the court is who decides what reasonable force is).
So, to summarize:
1. Person gives a DNA sample voluntarily.
2. Sample gets screwed up.
3. A JUDGE, acting within the force of law, orders the person to provide another legal sample.
4. Person refuses - which is a criminal offence.
5. Officers, acting on the authority of a court order, use reasonable force to force the subject to comply with the court order (e.g. to provide a DNA sample).
It's a novelty because it's the first time a Taser has been used and challenged in this context, but it is absolutely no different legally than the officers holding him down and prying his mouth open to take the swab. The only difference is that the Taser has to be deemed a REASONABLE use of force in this instance. Who decides that? The court - no one else.
So before we blow this all out of proportion and throwing out accusations of trampling on rights, PLEASE bother to understand what the case is about. The decision means, in a single sentence:
A Taser, properly applied and justified, is an acceptable level of force for the enforcement of a court order.
That's it. It has nothing to do with how the sample is obtained, whether it's justified, etc. The sample (e.g. what the lawyer argued was unreasonable search and seizure) is justified because the court order says so. The use of force applied to compel it is reasonable because the court says so. The end.
Don't turn this into a 10-page discussion completely irrelevant to the decision at hand.
-
i suppose this all boils down to reasonable force
in this we are weighing up the police's necessity to obtain the sample as required by the court order and the level of force used.
what if instead they wrestled him to the floor and he was injured in the attempt?
use of pepper spray?
by defying the police in their attempt to enforce the order the person was committing not only a criminal offense but diminishing the police's authority does this just a legal technicality or a fair and just action?
also statements along the lines of you will have to taze me first can be associated with increased agitation and it has not been discussed if the defendant was being aggressive or calm, in my eyes aggression opens the door for elevated force and is not something that has been discussed here
-
Nice to see I'm not the only person on this thread to see that this was just a bull**** ploy by some defence attorney.
-
The part where you say to officer "you'll have to taze me first" is basically the part where you lose all rights to complain if they do taze you.
And here I thought this was going to be something more interesting, like the legality of getting DNA off tazer prongs if he had to tazered during arrest.
-
I wasn't actually directing my comments at you Kara (I was remarking on the remarkable frequency that pro gun folks forget there are a bunch of other amendments to the Constitution that deserve equal protection), but I am now ;)
Raise your hand if you have been tazered? I have not, it looks like its more than a little unpleasant. I have had several unfortunate encounters with an electric fence, which I hear is similar.
http://www.metacafe.com/watch/126127/how_to_use_a_taser/
Couple questions for the sake of argument:
Would this conversation be different if he had been innocent?
How about if the tazer's 5000 volts triggered a heart attack (which apparently can happen in certain, narrow circumstances)?
Quick check implies that the UN considers them torture under certain circumstances (at least according to the wiki, YMMV), can I waterboard someone on a court order? Smack them with a phone book?
Enforcement of an order is as important as the order itself. You use a taser to incapacitate a violent suspect as an alternative to shooting them with your sidearm. They should have arrested him, and put him in a cell for refusing the court order. Due process has to work both ways for it to be effective, otherwise we get stupid things like Gitmo. This was stupid an irresponsible of the officers if the facts of the case are indeed as they are laid out in that article. Additionally, the decision was from a county court, if its real, I'd expect an appeal.
Granted I have been too lazy to look up any additional information. But there has to be more than is in that article. Was he resisting, then tasered, THEN the sample collected? Or did they just say "ok, I'll taser you" and stick a swab in his mouth between convulsions?
It all seems damned irresponsible.
-
I'm not at all happy about this in some ways. I think in the UK it would be that, whilst the defendant cannot be physically forced to give another sample, the fact that the Defendant refused would go very heavily against them at trial.
Once again, I think this is one of those situations where it needs to be judged on a case-case basis, there are reasons for collecting evidence by force, especially if it for the safety of other people, but it needs to be extremely carefully monitored and only used in the most severe of situations.
Whilst I don't see images of officers walking through downtown New-York, tazing people and checking their shoe-prints, or anything like that, there are certainly occasions when an almost certainly guilty criminal refusing forensic information has led to their release, and that annoys me, but to my mind, the law has to be very careful when it adopts techniques like this, it's dabbling with the Dark Side, and can lead to worse.
It also has to be remembered that the original sample was given freely and lost due to a Police screw-up in the first place, that should have been taken into account.
-
Would this conversation be different if he had been innocent?
No.
How about if the tazer's 5000 volts triggered a heart attack (which apparently can happen in certain, narrow circumstances)?
Unfortunate, but he was tempting fate to begin with and he shouldn't have resisted anyways.
Enforcement of an order is as important as the order itself. You use a taser to incapacitate a violent suspect as an alternative to shooting them with your sidearm. They should have arrested him, and put him in a cell for refusing the court order. Due process has to work both ways for it to be effective, otherwise we get stupid things like Gitmo. This was stupid an irresponsible of the officers if the facts of the case are indeed as they are laid out in that article. Additionally, the decision was from a county court, if its real, I'd expect an appeal.
Now, granted, he's holding up the whole justice system and frankly he can't avoid giving a DNA sample whether he really wants to or not. They could throw him in the cell and then vacuum it for skin flakes and all, but they'd have to get the cell clean first and everything. The court order exists and in the absence of any serious concerns about his health or safety, it becomes an issue of expediency. We can hold him down and get the sample or take twenty hours to get it off the drinking fountain where it may be contaminated.
Then he's got to object to being held down and it all goes to hell and we end up here. The use of force to compel compliance is neither strange nor inherently wrong; it is a matter of degree.
I'm not at all happy about this in some ways. I think in the UK it would be that, whilst the defendant cannot be physically forced to give another sample, the fact that the Defendant refused would go very heavily against them at trial.
This is a major difference in the justice system here. If you invoke your 5th Amendment right against self-incrimination, your taking the Fifth cannot be used as evidence of guilt because that would make a mockery of the ability to take the Fifth in the first place.
Much of the ability of the court to compel you to give up DNA evidence or fingerprints is about the concept of inevitable discovery; you really can't avoid leaving your fingerprints or DNA all over the place, so the cops could trail you for a few hours and recover them, go through your garbage for them, or they could just get them with a court order in an environment where errors are less likely to be made and contamination is less likely to exist.
-
Ah yes, the Fifth, forgot about that.
I think that, in the UK, a refusal to give evidence that might clear you is considered an indication that you are aware that the evidence you give might convict you instead, which is, as you say, completely different from the US.
-
Isn't this really just an argument about the use of a taser? Can a taser be used in a law enforcement capacity?
-
To question the use of tazers you also need to question the use of the firearms tey are supposed to replace that have a much greater capacity to kill or cause prolonged pain, the use of pepper spray, rubber baton rounds and weapons in general
Personally i think they are a dark necessity for law enforcement in the current age where certain degrees of violence is found acceptable by certain groups and glorified by others including the consumers of certain of genres of film, tv, computer games, comics, written literature, news papers etc.
-
I wasn't actually directing my comments at you Kara (I was remarking on the remarkable frequency that pro gun folks forget there are a bunch of other amendments to the Constitution that deserve equal protection), but I am now ;)
Would this conversation be different if he had been innocent?
Wouldn't have mattered to me one iota.
Granted I have been too lazy to look up any additional information. But there has to be more than is in that article. Was he resisting, then tasered, THEN the sample collected? Or did they just say "ok, I'll taser you" and stick a swab in his mouth between convulsions?
It doesn't say and it's rather irrelevant to the motion his defence lawyer tried to bring. Now had his lawyer been claiming excessive force I'd be a lot more interested in what he had to say. I might even be on the other side of that debate, as I was in the case of Andrew Meyer.
But that isn't what his complaint was about. He seemed to believe that the incident would allow him to get all the DNA evidence thrown out on a technicality. The fact that his lawyer complained he'd done no work on the DNA evidence is pretty good proof that he was trying to get the whole lot chucked with this stunt. I don't care how much brutality the police used in obtaining an exemplar from him, that doesn't give him the right to throw out evidence that has nothing to do with that incident.
Best case scenario he should conceivably win is that the police were forced to not use that particular sample and had to compel a new one from him. Which would be a complete waste of taxpayer time and money.
-
it is a matter of degree
I agree. Force is often justified. This seems a ridiculous application of force under questionable circumstances.
Does anyone have the link to the judges opinion?
Smith was handcuffed and sitting on the floor of Niagara Falls Police Headquarters when he was zapped with the 50,000- volt electronic stun gun after he insisted he would not give a DNA sample.
http://www.buffalonews.com/home/story/692141.html
same article, the judge apparently agrees with me to some extent:
Sperrazza said the police should have arrested Smith first and brought him to court to be warned about the penalties for noncompliance with a court order.
-
it is a matter of degree
I agree. Force is often justified. This seems a ridiculous application of force under questionable circumstances.
The court said otherwise. Unless overridden by a higher court, it's that judge's opinion that counts.
Consider this: Taser's and empty-hand-hard techniques are considered to be the same level of force (actually, Tasers usually fall BELOW empty-hand-hard). I can just about 100% guarantee that the officers would have had to use hard techniques (a.k.a. strikes) to force physical compliance in that instance. Hard techniques also carry significant risk of positional asphyxia. Tasers are safe for public use except in very limited circumstances regarding specific health cases. Technically, the Taser could be considered the lesser use of force in this instance.
You also have to consider officer safety. Their job is to enforce compliance with the court order and go home safe at the end of the day. Getting in a physical altercation with a combative subject (and yes, the subject is definitely combative in that instance) is more dangerous to both the officers AND the subject. There is less risk of injury to all parties with the Taser.
Regardless, this is not a discussion about whether a Taser is justified in this circumstance so much as whether you consider Tasers to be justified at all. If you do, you have to acknowledge the legitimacy of the Use of Force model and the court's intepretation of reasonable force, both of which authorized the officers to use the Taser in this circumstance. If you don't, you can argue until your fingers fall off and it will still be totally irrelevant, though it might make you feel better to be outraged.
Does anyone have the link to the judges opinion?
Google might help you out. I don't read US case law intentionally (as it often conflicts with Canadian case law).
-
Cops use tazors way too much, lazy bastards. If a bunch of them can't hold one guy down and put him in a cell, they shouldn't be cops. If they hold a dude down in such a way that it kills him, they clearly have no knowledge of how to restrain someone without killing them. And they should be fired.
There's been no mention of the guy being violent. I get that there was a court order for the DNA sample, but was potentially lethal force necessary against a man who hadn't been convicted of anything?
Of course, maybe I'm biased because I'd stand a good chance of not surviving being tazed.
-
Cops use tazors way too much, lazy bastards. If a bunch of them can't hold one guy down and put him in a cell, they shouldn't be cops. If they hold a dude down in such a way that it kills him, they clearly have no knowledge of how to restrain someone without killing them. And they should be fired.
Read, then post.
Physical restraint and empty hand control techniques pose a greater health and safety risk to officers and subjects than does a Taser. A few officers holding him down could kill him much more readily than the Taser. "Holding him down" is the way a good percentage of in-custody deaths occur.
-
He was apparently restrained, and seated. The account appears to indicate that the taser was applied for a couple seconds, in an effort to intimidate him into consenting to the sample. I read that as "do what I ask, or I will hurt you" but that's me. The suspect consented to the sampling after being contact shocked a couple of times.
The court said the police should have done something different, but allowed the evidence collected regardless as it turns out.
So, its ok to shock someone until they consent. Even drunk drivers get to decline the blood alcohol test. They loose their license and spend the night in jail, but nobody tasers them into submission to conduct the test.
I have a problem with this, its a precedent that has a huge capacity for abuse, at least in the State of New York. The police should not have this as an alternative to judicial oversight when a suspect declines to obey the order, especially if he or she is handcuffed and in custody.
On a related note: I appear to be misspelling taser according to firefox...
-
Frankly, that sounds almost like obtaining evidence by torture.
I agree that there's a lot of shifty stuff here, I can justify most parts under the court order, but tying him to a chair and electrocuting him until he does what they want? Regardless of the power of a court order, there are some lines that Police should not cross.
If he'd been physically resisting the officers trying to take the sample then that's one thing, but this....
-
Taser is the brand name for it.
Are you mad they're using tasers on him, or just any physical force?
-
Well, I'll accept that physical force is sometimes needed, and that tasers and even guns are sometimes needed, but they are for stopping people that are a threat to themselves, the Police or the Public, not merely to inflict pain for the purpose of obtaining evidence.
-
Physical restraint and empty hand control techniques pose a greater health and safety risk to officers and subjects than does a Taser. A few officers holding him down could kill him much more readily than the Taser. "Holding him down" is the way a good percentage of in-custody deaths occur.
Then there's something that cops need to be taught in order to be cops.
-
Then there's something that cops need to be taught in order to be cops.
To not touch people? Cause that's not gonna work in law enforcement. Or do you know of some magic safe 100% nonlethal way to do that?
-
Are you mad they're using tasers on him, or just any physical force?
Me?
I am mad that the officers should have arrested him, charged him, and tossed him in the cell for contempt and then let the judge explain it. I am mad that they exercised what I consider unreasonable force on a restrained and seated prisoner (or whatever his status was at the time) when from the account, no lives were in imminent danger and they had the SOB on contempt and could hold him. That was all implied in the original article, but I am mad that my hunch was right and that people think that its ok to set a legal precedent for ignoring 5th amendment rights. The days of "beating a confession" out of a suspect are supposed to be gone.
The person to decide this was not the officer in the interrogation room. No lives were at risk. As soon as he declined, he was in contempt, jailable, and therefore no lives would be at risk for the immediate future. Due process would have allowed him an attorney, and a whole host of opportunities for the LE folks to get the sample or convince him to consent. I believe you can still be held indefinitely under contempt, so the judge should have had the opportunity to explain to the moron that his actions had longstanding consequences.
Now we have case law. Case law is precedent, and precedent has a funny way of getting abused in cases like this.
-edit-
I guess I am also mad that some moron defense lawyer apparently has ****ty argument capabilities and let this happen. I think the ideal here would have been something like:
1) toss the samples obtained under duress
2) hold the officers accountable for doing something stupid
3) order re-samples with clarity on the repercussions for declining and jail Mister Smith until he complied.
Allowing the samples sanctions the technique by which they were acquired, and its clear from the snippet of the opinion I read (and posted above, I can't find the full opinion) that the judge was not happy with how they did it.
Maybe there is something in the actual opinion that makes that clearer, and this is all chicken little noise...
-
Then there's something that cops need to be taught in order to be cops.
How to defy the laws of physics?
I've been in law enforcement for nearly 5 years. Every instructor I've ever had has emphasized the risks of physical intervention. The best way to do it safely (for all parties) is not to do it unless absolutely necessary. And for the record, I don't carry a Taser in my position.
Sorry, TV cop shows do not a criminal justice education/experience make.
-
Then there's something that cops need to be taught in order to be cops.
How to defy the laws of physics?
I've been in law enforcement for nearly 5 years. Every instructor I've ever had has emphasized the risks of physical intervention. The best way to do it safely (for all parties) is not to do it unless absolutely necessary. And for the record, I don't carry a Taser in my position.
Sorry, TV cop shows do not a criminal justice education/experience make.
I don't watch tv, sorry. However, I do know it's unsafe to put a ton of pressure on some asshole's head, neck, abdomen, chest, etc. Durhh. People die when you do that. That's why you have multiple cops. You can get an asshole into handcuffs without killing him. If he's THAT frail, then there shouldn't be so much force required to cuff him and put him in a cell or a car.
-
He was apparently restrained, and seated. The account appears to indicate that the taser was applied for a couple seconds, in an effort to intimidate him into consenting to the sample. I read that as "do what I ask, or I will hurt you" but that's me. The suspect consented to the sampling after being contact shocked a couple of times.
[Snipped from next post]
I am mad that the officers should have arrested him, charged him, and tossed him in the cell for contempt and then let the judge explain it. I am mad that they exercised what I consider unreasonable force on a restrained and seated prisoner (or whatever his status was at the time) when from the account, no lives were in imminent danger and they had the SOB on contempt and could hold him. That was all implied in the original article, but I am mad that my hunch was right and that people think that its ok to set a legal precedent for ignoring 5th amendment rights. The days of "beating a confession" out of a suspect are supposed to be gone.
The person to decide this was not the officer in the interrogation room. No lives were at risk. As soon as he declined, he was in contempt, jailable, and therefore no lives would be at risk for the immediate future. Due process would have allowed him an attorney, and a whole host of opportunities for the LE folks to get the sample or convince him to consent. I believe you can still be held indefinitely under contempt, so the judge should have had the opportunity to explain to the moron that his actions had longstanding consequences.
Now you're making a good point, and I see where you're going with it. Physical restraint is never to be used for the purposes of intimidation, nor should force be applied to obtain evidence (regardless of how lawful the order to obtain that evidence is).
However...
This case was about whether DNA evidence obtained on the authority of a lawful court order is admissible as evidence. Consider the following hypothetical:
-Judge rules that the use of force to obtain the DNA was unconstitutional.
-Judge subsequently throws out the DNA evidence.
-Judge's original court order is still in effect.
-Law enforcement staff obtain a new DNA sample and/or hold subject in contempt while waiting for him to provide the DNA sample.
The judge cannot throw out the DNA because it would just be obtained again under the same lawful order that was issued in the first place. In short, regardless of how that DNA was actually obtained, it's coming in as evidence against the accused because the order under which it was demanded is both lawful and binding. There is no provision to throw out the evidence in this case because it can simply be demanded yet again quite legally. It would be another matter entirely if the court order didn't exist and the officers did this on a mission to obtain evidence of the offence - in that case, the evidence could be excluded and there would be no provision to re-collect it.
Having not read the actual case law decision I can't say what the judge said, but I would speculate that they probably gave the officer's a lecture and subsequently denied the application to suppress the evidence because it was absolutely pointless in the first place.
-
I guess I am also mad that some moron defense lawyer apparently has ****ty argument capabilities and let this happen. I think the ideal here would have been something like:
1) toss the samples obtained under duress
2) hold the officers accountable for doing something stupid
3) order re-samples with clarity on the repercussions for declining and jail Mister Smith until he complied.
Allowing the samples sanctions the technique by which they were acquired, and its clear from the snippet of the opinion I read (and posted above, I can't find the full opinion) that the judge was not happy with how they did it.
As I said before, if that's the point they want to argue I consider points 1 & 3 to be rather a waste of time. We all know that the samples from 3 will have the same result as 1 otherwise the lawyer would have a very strong case for aquittal. They should have gone much more strongly after point 2.
-
I don't watch tv, sorry. However, I do know it's unsafe to put a ton of pressure on some asshole's head, neck, abdomen, chest, etc. Durhh. People die when you do that. That's why you have multiple cops. You can get an asshole into handcuffs without killing him. If he's THAT frail, then there shouldn't be so much force required to cuff him and put him in a cell or a car.
Cuffing requires only one competent officer - it's fairly straightforward. But now what? This isn't about cuffing, this is about obtaining a DNA sample - which is usually done with an interior cheek swab.
How do you propose to force someone to open their mouth and cooperatively provide a DNA sample when they don't want to and are actively fighting (and believe me, people can still very effectively fight while in handcuffs)? And don't even think about saying "pry their mouth open."
-
I guess I am also mad that some moron defense lawyer apparently has ****ty argument capabilities and let this happen. I think the ideal here would have been something like:
1) toss the samples obtained under duress
2) hold the officers accountable for doing something stupid
3) order re-samples with clarity on the repercussions for declining and jail Mister Smith until he complied.
Allowing the samples sanctions the technique by which they were acquired, and its clear from the snippet of the opinion I read (and posted above, I can't find the full opinion) that the judge was not happy with how they did it.
As I said before, if that's the point they want to argue I consider points 1 & 3 to be rather a waste of time. We all know that the samples from 3 will have the same result as 1 otherwise the lawyer would have a very strong case for aquittal. They should have gone much more strongly after point 2.
Agreed. The judge in this instance has not sanctioned the officer's actions, but they are incidental to the case. The subject would be much smarter to file a suit for excessive force and place the process itself under scrutiny.
-
Thing is, excessive force would do him little good.
That's why I was so hostile to this case from the off. The lawyer was trying to use the excessive force that may have occurred in an attempt to cause sufficient smoke to get his client off of a completely separate crime.
-
The defense lawyers job, and only job, is to get his client cleared. This one just happened to be a moron. My problem is with the underlying circumstances, and I think the suspects rights to due process were violated.
Dude was restrained with handcuffs, dude was tasered into consenting to the court order. That's evidence obtained under duress, last I checked that WAS the inadmissible sort of thing.
Meh. Mister Smith should have had his lawyer there to begin with.
-
The defense lawyers job, and only job, is to get his client cleared.
And the job of the judge is to rule against him if he thinks his argument has little merit. And in this case it did. Because the only thing forcing the state to compel new evidence would do is waste taxpayer money on new tests. It's not like the outcome of those tests was ever going to be anything different is it?
Dude was restrained with handcuffs, dude was tasered into consenting to the court order. That's evidence obtained under duress, last I checked that WAS the inadmissible sort of thing.
Meh. Mister Smith should have had his lawyer there to begin with.
That's probably where he did begin. The point is that even if the judge had found that evidence inadmissible then all that would have happened is simply taking a new sample.
The mistake was in trying to link the two incidents. The lawyer should have ignored this criminal case completely and started working on a separate one for the torture of his client.
-
And the job of the judge is to rule against him if he thinks his argument has little merit. And in this case it did. Because the only thing forcing the state to compel new evidence would do is waste taxpayer money on new tests. It's not like the outcome of those tests was ever going to be anything different is it?
So i guess it would be fine to tortute people too as long as we "know" they are guilty mh?
I mean when we "know" they are guilty, why should we waste taxpayers money on elaborate ways to entrap criminals and collect evidence when we can just torture them a little until they admit all their sins ?;)
In this case the suspect turned out to be guilty (i.e. DNA matched)... but just imagine for a second if he had been innocent and the DNA didn't match - the police happens to have the "wrong guy" often enough after all -, what then ? This "what then" is bound to inevitably happen as innocent people happen to get caught up in the system now and then - That's a fact. And then some moron lawyer will propably point out that there was a precedent for using a taser to acquire DNA samples and it points all right back at this case.
There is a reason why there are so many restrictions on "due process" and what the police is allowed to do - and that reason is to protect innocent people from the system itself. That HAS to take priority. Of course that means that a guilty person will often walk free... but that is the price for living in a free society and not in a policestate where every single citizen has to be afraid of police brutality and torture despite being quite innocent lol.
Using "force" to restrain or arrest a suspect appears to be something quite different in my eyes than deliberately attacking a suspect to make him give up evidence - and yes... that is pretty much what they did. They could have held him in contempt of court if he had not complied with the court order and done all kind of things, but instead they choose to use force to directly acquire evidence. Maybe that is not quite as drastic as using outright torture to acquire a testimony... but the logic and reasinong involved really are quite uncomfortably close to it. How much of a difference really is there between "taser (or beat etc.) him to get his DNA" and "beat him till he admits it" ? Uncomfortably close. It's not a stretch either to imagine the police tasering a bunch of rowdy suspects in order to determine "who of them has actually dun it" either. Quite uncomfortably close.
Contrary to popular belief a law-enforcements officers job is not to "arrest criminals" and make sure they are convictet, but rather to "protect the public" - not just from criminals, but also from themselves. And that is pretty much the main difference between a free society and a policestate. If cops forget to play by the rules and it results in a criminal going free, then that is frustrating... but if cops don't play by the rules and the criminal gets convicted anyways, then that is a much greater failure of the system. That is, if democracy, freedom, individual rights and all that good stuff are supposed to have any meaning ;)
-
So i guess it would be fine to tortute people too as long as we "know" they are guilty mh?
I should bundle all these strawmen off and sell them. I'd make a lot of money from people who are arguing against me without the faintest clue of what I'm actually saying.
In this case the suspect turned out to be guilty (i.e. DNA matched)... but just imagine for a second if he had been innocent and the DNA didn't match - the police happens to have the "wrong guy" often enough after all -, what then ?
Now that is an interesting question. What would have happened if the guy was innocent?
If the guy was innocent he wouldn't have wasted time trying to get the DNA evidence thrown out. The DNA evidence exonerates him. So instead of doing that he would have spent his time and effort bringing a case against the police for brutality. Which he'd almost certainly win.
The guilty cops lose their jobs, the innocent man goes free and probably sues the state for a lot of money.
But because this guy was guilty he wasn't interested in following the case against the police brutality because he was more interested in using it to get him off another crime.
This "what then" is bound to inevitably happen as innocent people happen to get caught up in the system now and then - That's a fact. And then some moron lawyer will propably point out that there was a precedent for using a taser to acquire DNA samples and it points all right back at this case.
Which is why this should have been dealt with as a case of police brutality and not as an abuse of due process.
-
The guilty cops lose their jobs, the innocent man goes free and probably sues the state for a lot of money.
The opinion means that many potentially innocent people get tasered. That's how precedent works. Its now a sanctioned tool to enforce a court order. Its both an abuse of due process and a case of police brutality. The two are inextricably related in this case,under my understanding of US law.
THAT is the problem with it. Its not really a straw man in the US legal system. You don't get one without the other the way this has appeared to play out.
-
It's that which concerns me also, in the US, a lot more weight it put on precedent than in the UK, and, no offence intended to our US posters, the sometimes put word of law before common sense, though, in their defence, their entire social system is (supposed to be) based on that concept, since, common sense isn't always 'right'.
In this case, the accused was tied to a chair and electrocuted in order to obtain a sample, as I said earlier, those weapons are supposed to be used in the defence of self or others, defence, once again, can be broadly interpreted, is forcing evidence from someone you 'knew' did the crime an act of protection? But then there's the other end of the stick, is tying someone to a chair and electrocuting someone justifiable to prove that they didn't commit the crime? Water starts getting murky now.
-
The opinion means that many potentially innocent people get tasered. That's how precedent works.
And every single cop who does it goes to jail. That's also how precedent works. Not many policemen are going to do it if they know it will cost them their jobs.
See the problem with this case is that they put the judge in a position where whatever he decided would be a miscarriage of justice. This whole matter should have been dealt with when the incident happened not kept until months later when the defendant thought (incorrectly) that it could be used to get him off.
-
But it didn't. The court said they preferred they do it a different way, but did not issue any formal judgement (from the snippets I read) other than the evidence was allowed.
The abuse is allowed without penalty. The penalty is left to the department. So, the abuse is codified. The penalty is left up in the air (including no penalty). I do not want to be the innocent man picked up for mistaken identity and tasered into consenting to a rights violation. What's now to stop them from doing that before my lawyer arrives, if I am picked up on a valid arrest warrant (which is a court order)? Where do you draw the line? Are all people subject to court orders allowed to be tasered? Period? This draws no lines that I can see (it appears the opinion itself is yet to be published on the court's website, or I am looking in the wrong place).
This decision, and the circumstances that led to it, is/are a problem in the American judicial system, partly because the way that system works. I can only hope a higher appellate strikes it down.
I don;t think, you understand precedent as it applies to American jurisprudence, since you have been dismissive of it now on 2 occasions. Its a powerful force in US law, often overcoming common sense.
This has much deeper implications than simply one stupid lawyer trying a "trick" to get one scumbag acquitted. And hoping that the deterrent of a POSSIBLE penalty for doing a wrong thing is overcome by "getting the bad guy" will prevent abuse is naive, again assuming that the decision includes no stronger language than cited above.
I'll be looking for the appeal to this, the judge was irresponsible in allowing this (if its as presented), but I suppose no more irresponsible than the previous administrations creation of Gitmo, the withdrawal of Habeas Corpus, etc.
-edit-
Once again, someone has said it more succinctly than me, sorry for reiterating Flips comments so obtusely :)
-
Then instead of simply complaining about it, get the district attorney to prosecute the case against the police officers who did this. It's a separate issue from the case itself.
It's what should have been done all along.
-
Then instead of simply complaining about it, get the district attorney to prosecute the case against the police officers who did this. It's a separate issue from the case itself.
It's what should have been done all along.
Even if the cops are held responsible, it is still a problem that evidence obtained that way is allowed to be used at all.
It would still mean that cops can decide to "cheat the system at will" if they just are determined enough to accept the personal consequences.
That alone is still a huge can of worms. And letting it stand "as is", with no consequences for the cops involved, is certainly an even bigger can of worms.
It really just leaves the hope that this case will get squashed by some judge higher up the food chain, because if it isn't, the precedent it sets leaves so many uncomfortable implications.
You don't get a policestate overnight (not without a coup anyways ;)), you get it babystep by babystep and this is certainly one babystep in the wrong direction.
-
It's what should have been done all along.
If I lived there, I would.
-
If they have an arrest warrant for a guy and complete it a completely crappy way, do they have to let the guy go and try to arrest him again?
No, you charge the cops with whatever and let the guy sit in jail for his arrest.
Same here. You charge the cops and let the DNA stand. It's not gonna change if they destroy it and try again. And it's not going to erase the fact they tased the guy. The only thing you can do now is charge the cops for any rules they may have broken in the process.
-
If they fail to miranda you, you are damn straight they throw out the evidence obtained, possibly the arrest. This is not a new concept.
-edit-
Yes I know Miranda doesn't apply to DNA, I am using it as an example.
-
If they fail to miranda you, you are damn straight they throw out the evidence obtained, possibly the arrest. This is not a new concept.
Only the evidence obtained AFTER the arrest is thrown out - statements, etc. Physical evidence discovered on the person is still fully admissible. The arrest will stand so long as sufficient other evidence (e.g. aside from any statements taken after the arrest was conducted) exists to satisfy habeas corpus.
Legitimate arrests are not necessarily thrown out if the officers complete them in an unconstitutional way. The reason for this is an arrest doesn't actually mean much. The evidence available for prosecution is what counts. So long as enough legitimate evidence exists of a crime to prosecute, and it wasn't obtained in an unconstitutional way, excessive force complaints don't factor into it. Those go for separate investigation and prosecution.
-
If they fail to miranda you, you are damn straight they throw out the evidence obtained, possibly the arrest. This is not a new concept.
-edit-
Yes I know Miranda doesn't apply to DNA, I am using it as an example.
That's a due process violation is it not? If a guy is in jail and the guards beat the crap outta him, they don't let him go and start all over again. They charge the guards.
-
If they fail to miranda you, you are damn straight they throw out the evidence obtained, possibly the arrest. This is not a new concept.
-edit-
Yes I know Miranda doesn't apply to DNA, I am using it as an example.
Problem is that Miranda is a poor analogue in this case.
The purpose of Miranda rights are to make certain that the defendant is aware that he doesn't have to speak to the police, is allowed to have other people in the room besides the police and to make certain that he knows that if he chooses to give a confession he's fully aware he didn't have to.
The reason why Miranda is so important is because if the defendant isn't aware of this he can incriminate himself in a way that is against the law. This would have the effect of changing the outcome of the case.
Now this example is different. The defendants DNA isn't going to change. The sample he gave, even if it did violate his rights to take it isn't going to be any different from the one he would eventually have had to give after sitting in prison for refusing to obey the court order. Dumping the evidence has no net result on the case since the new evidence would be no different to the old evidence.
Now if the guards had tased him into giving a confession, that would be thrown out. As there you have an example of the taser being used to coerce information that might not have been forthcoming without it.
AFAIK all this ruling says is that you can not judge DNA evidence inadmissible simply because excessive force was used in obtaining it unless other rules of due process were also broken. I've not seen any evidence to say that the ruling says that the police can't be investigated for brutality in getting the sample. Nor that they have been given permission to use tazers in this fashion.
-
I guess the devil is in the details. I have not tried to locate the actual ruling again. I am erring on the side of "the whole thing is ****ed up" and you are erring the other way.
And neither of us actually knows whats in the full decision.
I happen to disagree that its fundamentally different than Miranda, but I expect I am wrong there the more I read about why something like DNA is not covered. I also disagree that due process violations are not reasons for release. Due process violations can happen all they up the chain, including resulting in things like mistrials, which could indeed nullify the arrest, conviction or what have you. That's why (in my opinion) getting due process right is so crucial.
YMMV