[Kosh]

NOT unconstitutional

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.”

[FUBAR-BDHR]

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.

[karajorma]

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.

[Liberator]

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.

[karajorma]

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.

[Mikes]

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.

[Blue Lion]

Why don't they just do one of those stakeout stings for his DNA?

[karajorma]

Why should they have to if they have a court order compelling him to give it?

[Blue Lion]

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.

[Inquisitor]

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.

[karajorma]

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.

[Turambar]

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.

[BloodEagle]

First, I must congratulate everyone in this thread for not bringing up that tazer meme.

Second, in response to someone being tazered over this, .  I mean, seriously, .  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.

[TrashMan]

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?

[MP-Ryan]

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.

[headdie]

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

[karajorma]

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.

[NGTM-1R]

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.

[Inquisitor]

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.

[Flipside]

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.