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.
Niagara County Judge Sara Sheldon Sperrazza decided that the DNA sample obtained Sept. 29 from Ryan S. Smith of Niagara Falls — which ties him to a shooting and a gas station robbery— is legally valid and can be used at his trial.
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.
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.
Defense lawyer Patrick M. Balkin denounced the ruling in an interview with The Buffalo News.
“They have now given the Niagara Falls police discretion to Taser anybody anytime they think it’s reasonable,” he asserted. “Her decision says you can enforce a court order by force. If you extrapolate that, we no longer have to have child support hearings; you can just Taser the parent.”
A police officer said that when Smith was ordered by officers to give his DNA, he adamantly refused.
“I ain’t giving up my DNA again. I already gave it up once. I’ll sit in jail. I ain’t giving it up. You’re going to have to Tase me,” the officer’s report stated.
The officer wrote that he then applied the stun gun to Smith’s left shoulder, a “drive stun” that is regarded as less painful than shooting electric prongs into a person, which is the usual Taser approach. Smith then consented to the sample, and he was arrested on a contempt of court charge.
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.
Smith is charged with shooting a man in the groin July 27, 2006, after allegedly invading his ex-girlfriend’s home, tying up her two children and forcing the woman to take him to the shooting victim’s home.
He is also accused of taking part in the Dec. 24, 2006, armed robbery of a Sunoco station in Niagara Falls. A codefendant in the robbery, Christopher T. Walker Jr., now 21, pleaded guilty and is serving a 10-year state prison sentence.
Sounds like the guy committed the crimes charged against him. In a free market justice system I suspect that this would be perfectly acceptable and expected. HOWEVER, there would be much more weight placed on such an action because the individuals and businesses performing this tase and swipe are going to be held responsible for any harm done to the individual. Especially should he be found innocent. Today the individual could bring a civil suit against the officers or department but those rarely work out in their favor. And even when they do it’s the taxpayer often stuck with paying the settlement rather then the aggressors.
This however is still troubling as it sets a president that will most definately be abused.
