When the Niagara Falls police put their heads together and decided that tasing a guy was the best idea for collecting a DNA sample, I “tsked”. That, apparently, is why I’m not sitting on the big bench, like Niagara County Judge Sara Sheldon Sperrazza. I lack her imagination.
From the Buffalo News :
From the Buffalo News :
It is legally permissible for police to zap a suspect with a Taser to obtain a DNA sample, as long as it’s not done “maliciously, or to an excessive extent, or with resulting injury,” a county judge has ruled in the first case of its kind in New York State, and possibly the nation.
Not to nitpick, but does that mean the intentional infliction of pain in order to obtain compliance with an ex parte order is fine as long as it’s done lovingly? Must they cradle the taser in their warm and caring hands before they fire? Just asking.
For anyone who may not recall, Ryan Smith gave a DNA sample willingly, which the cops promptly screwed up, thus requiring another one.
For anyone who may not recall, Ryan Smith gave a DNA sample willingly, which the cops promptly screwed up, thus requiring another one.
He already had given a sample, a swab of the inside of his cheek, without protest the previous month. But police sent it to the wrong lab, where it was opened and spoiled. Prosecutors who had obtained a court order for the first sample went back to Sperrazza, who signed another order without consulting the defense.
The judge figured, if he didn’t mind the first one, why bother asking about the second? After all, nothing crazy could happen, right? But Smith didn’t see it that way, and decided that he didn’t want to give up his DNA again. So the cops have a court order and an uncooperative defendant. Normally, the refusal to comply with a court order would compel the police to let the prosecutor know, who would then move to have the defendant held in contempt for failure to obey the court order. But not in Niagara Falls.
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.
But the police took no pleasure from this, I bet. Just doing their job.
In her ruling, Sperrazza cited numerous legal precedents and the state’s Criminal Procedure Law, allowing the use of reasonable force to carry out a court order.
Although there are no New York cases specifically dealing with using a Taser to accomplish that, the judge did find a Wyoming case where a court ruled it was legal to use a Taser to force a suspect to open his hand for a search.
Balkin and other lawyers familiar with the case say they know of no other case in the country in which a Taser was used to gather DNA.
Wyoming? Let me see if I have this straight, a Niagara County Court judge wanted so desperately not to rule against the cops that she researched? And she researched Wyoming? Because Wyoming is so fundamentally relevant and persuasive in the formation of novel New York law? I’m still stuck on the part where she did research. Boy, would I like to see this decisions, but it’s not yet available online. Our hinterlands correspondent, Kathleen Casey, is hot on its trail, however, so I hope we’ll have it available soon.
Update: Kathleen has gotten the decision and
Update: Kathleen has gotten the decision and
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It’s amazing. How awful.
I live in New York, I can see my taxes going up after this one!
So you moved from left coast to civilization? I knew there was something I like about you. Yeah, this decision seems to be one that even the hardcore are having a problem with. See the Buffalo News editorial and, more particularly, the comments. Rather vicious, those Buffalonians.
Well, your blog title was the thing I liked, I’m not too sure if I like you yet…you seem to rub my mental fibers the wrong way…I always find myself shaking my head after reading your post!
And the west coast by FAR is more freedom oriented, liberty loving than this place you call civilization. If this is civilization (sigh) then there is no hope!
Buffalo, and Western New York in general, is a pit wallowing in its own incompetence since at least the early 80s. They’re trying to beat Detroit as the worst metro area in the US. I grew up in a local suburb and return to the area a few times every year. Police corruption at all levels is rampant and political/fiscal corruption is so bad NYS runs the place.
I can say this judge in Niagara Falls is an idiot, but the problem is systemic and not limited to this one person. Judge training in New York is non-existent, pay is horrible when compared to the other state and factoring in the cost of living, and removal of bad judges requires a murder before someone takes notice.
Her decision if it’s not overturned will set a nasty precedent for New York and beyond. Contact this woman’s bosses (The voters of her district) and work hard to get her removed from the bench come election time.
Yeah, I do that to flabby mental fibers, but once you get some exercise, they’ll come around.
We’re going to have to teach you to use the “reply to this” button, though, as it makes it far less confusing to follow.
To undigress, for a moment, the whole notion of either using “the minimum force necessary to obtain the sample” vs. “any means necessary to obtain the sample” is a: a distinction without a significant difference, and b: a brain-dead-written blank check.
What if, say, he’d been taser-resistant, and the minimum force necessary or the any means necessary turned out to be, oh, bastinado with a spiked club? Or waterboarding? Or making him watch “My Mother the Car” or listening to porcine German drinking songs over and over until he geeked?
Stupid decision, in many senses. There really wasn’t a rush — one thing that this guy wasn’t going to run out of was DNA before there was time to put him in front of a judge and use the normal procedures (in the US, that is, not Iliketozapistan) for dealing with a guy who doesn’t want to get his cheek swabbed like the nice judge has ordered that he’s got to.
‘Bout the only explanation I can come with is that the Taser does cause brain injury — not just to the unknown number of cops who seem to become far too willing to watch a guy do the electron dance when there are better alternatives, but to the judges who apparently drain IQ points through their fingers and into the keyboard while writing a taser-driven opinion.
The “any force” versus “minimum force” had less to do with what amount of force than with whether the ADA authorized the tasing or the cops came up with it on their own. Just a game of pin the tail on the guilty.
But the best point is that he’s not going to run out of DNA any time soon. Although I hear that the wings they serve up there tend to alter genertic material when eaten without bleu cheese. And may I add what an excellent use of the old Reo, “MMTC” reference.
Can A Suspect Be Tased Into Complying With a Court Order?:
Over at Simple Justice, Scott Greenfield is blogging about a very unusual New York…
Another Reason To Round Up The Kids
In the swirl of outrage surrounding the tasing of Ryan Smith to compel his “voluntary” compliance with a court order to collect his DNA, we tend to forget about the reasons underlying the general desire of law enforcement to have DNA samples from anyone and everyone they possibly can.
Another Reason To Round Up The Kids
In the swirl of outrage surrounding the tasing of Ryan Smith to compel his “voluntary” compliance with a court order to collect his DNA, we tend to forget about the reasons underlying the general desire of law enforcement to have DNA samples from anyone and everyone they possibly can.
A Reason To Round Up The Kids
In the swirl of outrage surrounding the tasing of Ryan Smith to compel his “voluntary” compliance with a court order to collect his DNA, we tend to forget about the reasons underlying the general desire of law enforcement to have DNA samples from anyone and everyone they possibly can.