In what is believed to be the first ruling of its kind, a New York State court has determined that police can taser a suspect in order to obtain a DNA sample without his consent.
Think about the implications of this.
If the police cannot obtain the evidence they need through the normal methods - that is, by doing their jobs - they can zap you to get some. And you can be forced to give up evidence, as long as there's a warrant and the police aren't being "malicious". Although who will judge this maliciousness and how it will be defined isn't noted.
The taser in this case isn't being used to subdue a dangerous, out-of-control suspect, or to protect the police; it's being used to force a suspect to give potentially incriminating evidence. It's pain compliance, pure and simple. The more pain compliance is rationalized and condoned, the more it will be abused, as law enforcement knows the state will back them up.
In other words, this court has ruled that the police can torture you to obtain evidence.
With any luck, the ACLU will be on this, and it will be overturned. But this is a frightening and dangerous push of the envelope of state intrusion into bodily integrity.
Note that in this case, the suspect has already given a DNA sample, which was corrupted through bureaucratic incompetence.
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.
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