[NGTM-1R]

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.

[Flipside]

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.

[Blue Lion]

Isn't this really just an argument about the use of a taser? Can a taser be used in a law enforcement capacity?

[headdie]

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.

[karajorma]

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.

[Inquisitor]

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.

[MP-Ryan]

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).

[iamzack]

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.

[MP-Ryan]

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.

[Inquisitor]

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...

[Flipside]

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....

[Blue Lion]

Taser is the brand name for it.

Are you mad they're using tasers on him, or just any physical force?

[Flipside]

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.

[iamzack]

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.

[Blue Lion]

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?

[Inquisitor]

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...

[MP-Ryan]

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.

[iamzack]

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.

[MP-Ryan]

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.

[karajorma]

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.