No, You Can’t Tase Compliance

When Ryan Smith decided that he wasn’t feeling  particularly happy about the Buffalo Police telling him that he had to submit to a second DNA test because a judge issued an ex parte order, he gave them an idea they really liked:


Ryan S. Smith refused a judge’s order last fall to give a DNA sample, insisting to police that he didn’t care what court papers said.


“You are gonna have to Taser me if you want my DNA,” an officer reported Smith saying.


So police did just that, jolting Smith with electricity before swabbing the inside of his mouth.


Many were outraged by the use of a taser to compel Smith to submit, but Niagara County Judge Sara S. Sperrazza was not among them.

Sperrazza wrote in her ruling, based on police testimony, that when Smith refused to give another sample, Detective Lt. William Thomson phoned [ADA  Doreen M.] Hoffmann about it, and Hoffmann “instructed him that they could use the minimum force necessary to obtain the sample.”

But McDonell wrote in his report, “It was relayed that officers could use any means necessary to secure the sample.”

No reason to quibble over details. After all, it was just a quick tasing, and they did get the buccal swab, which is all that really matters anyway.

The DNA obtained was subsequently used against Smith at trial, where he was convicted of a laundry list of crimes. By his attorney, Mark Funk, Smith appealed, and the Appellate Division, Fourth Department, issued its decision reversing the conviction on both primary grounds, that he was denied due process by the issuance of an ex parte order to compel Smith, then a suspect, to provide DNA, and that no matter what, the police cannot tase a suspect into compliance with an order.

In an opinion by Justice Erin Peradotto, the court held:

We reject the contention of the People that no notice was required because defendant failed to appear in opposition to the People’s first application for a buccal swab. Defendant’s failure to object to the first order compelling him to provide a buccal swab does not constitute a waiver to any subsequent such orders inasmuch as each order constitutes a bodily intrusion warranting notice and an opportunity to be heard (see Schmerber, 384 US at 770; Abe A., 56 NY2d at 296; King, 161 Misc 2d at 452).

Further, we disagree with the dissent that, because defendant received notice of the first application for a buccal swab, the People were not obligated to provide notice of any further such applications. In our view, it does not elevate form over substance with respect to defendant’s due process rights to require the People to provide notice to an uncharged suspect each and every time they seek authorization to invade the individual’s body in search of evidence of guilt (see generally Schmerber, 384 US at 770; Abe A., 56 NY2d at 296).

Although the People may not need to make a showing of probable cause upon each successive application, defendant could contest, among other things, the need for further buccal swabs and the availability of less intrusive means of obtaining a DNA sample (see Abe A., 56 NY2d at 291). Inasmuch as the second order pursuant to which the DNA evidence was obtained was entered in violation of defendant’s due process rights, we conclude that the DNA evidence must be suppressed on that ground (see Latibeaudierre, 174 Misc 2d at 61-62).

(Quote broken into paragraphs to enhance readability.) The prosecution obtained an order for a first swab, with proper notice, but then sent it to the wrong lab and, poof, it was lost. They then needed a new swab, but this time didn’t bother with notice. After all, once granted, why bother? As the court held, because the defendant has a right to be object each time, and there is no waiver by his failure to contest it once.

Notice notwithstanding, Justice Peradotto smacked the cops and prosecution on the bigger issue, the quickest and easiest means of getting a suspect to be more, oh, cooperative: the handy-dandy taser.


It is undisputed that defendant did not threaten, fight with, or physically resist the officers at any time; rather, he simply refused to open his mouth to allow the officers to obtain a buccal swab. . . We cannot agree with the suppression court that, after 10 to 15 minutes of asking a suspect to comply with a court-ordered buccal swab of which the suspect had no prior knowledge, it is reasonable for the police to tase a nonviolent, handcuffed, and secured defendant in order to force the suspect into submission.

While the People seek to characterize the use of a taser as a “minimal” degree of force and emphasized at the suppression hearing that defendant did not lose consciousness and suffered no visible scarring or injuries, we note that “extreme pain can be inflicted with little or no injury” (Hickey, 12 F3d at 757). The officers who witnessed the tasing incident acknowledged that the use of a taser causes pain and that, upon application of the taser, defendant appeared to be in pain and shouted for the officers to stop using it. Our review of a videotape of the tasing incident supports the conclusion that defendant was in pain upon application of the taser to his bare skin.

What is remarkable about this decision is that if police can’t use a taser, the use of force and a means of inflicting pain, in order to get a person to submit to the order of a court, then they most certainly can’t use the same taser as a means of compelling a person to submit to the mindless commands of cop.

An order issued by a “neutral magistrate,” even if issued with slightly less than adequate notice, remains an order of substantially greater legal weight than the noise that routinely emits from the mouths of a police officer.  If a cop can’t tase an otherwise non-violent and non-threatening person into submission based on a court order, then he certainly can’t do so because a person didn’t produce his drivers license fast enough.

Of course, this doesn’t preclude a cop from calmly explaining at the suppression hearing how he felt threatened by granny’s furtive gestures and nervous demeanor, as the hearing judge closes his eyes as tightly as possible and adopts the officer’s testimony as gospel.  But at least the Fourth Department provided a floor to the use of a taser as the method of choice for making a recalcitrant suspect see the light.

H/T Our hinterlands correspondent, Kathleen Casey






7 thoughts on “No, You Can’t Tase Compliance

  1. Turk

    Some issues are really easy to identify:

    Can the police deliberately inflict pain on a non-violent person to comply with a court order that he doesn’t even know about?

    The amazing thing is that any judge could answer that yes.

  2. Frank

    No surprise there. The signature on the judge’s paycheck is the same as the one on the cop’s, and the one on the persecutor’s. They’re all on the same team. Which is to say, not on the same team as the poor slug getting a ride on the TASER.

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