Judge: Tasering a suspect for DNA legal if not ‘malicious’
Published: June 4, 2009
Updated 5 months ago
A judge in Niagara County, New York, ruled Thursday that DNA evidence, obtained only after police applied a Taser to a suspect who refused to provide evidence against himself, may be used by the prosecution because the electric shock was not administered with malice.
Judge Sara Sheldon Sperrazza, with this 17-page decision, becomes “the first judge in western civilization to say you can use a Taser to enforce a court order,” defense attorney Patrick Balkin said, according to The Niagara Gazette.
“Note that if Smith is guilty, he’s a pretty bad guy,” interjected The Buffalo News. “He’s charged with shooting a man in the groin after invading his ex-girlfriend’s home, tying up her two children and forcing her to take her to the home of the man he shot. He’s also charged with the shotgun-point robbery of a Niagara Falls gas station. DNA was found at both crime scenes.”
Smith, according to reports, had previously agreed to a court order for a DNA sample. But when authorities accidentally spoiled the sample, forcing them to return to the judge for a second order Sperrazza issued it without consulting the defense counsel, thinking the defendant would not mind.
“Smith did object, reportedly telling officers, ‘I ain’t giving it up. You’re going to have to tase me,’” added Buffalo News.
“Which they did, after consulting with a prosecutor, who either told them to use ‘the minimum force necessary’ (according to police testimony at last month’s court hearing) or ‘any means necessary’ (according to a police report written the day of the incident).”
After tasing Smith, a DNA swab was taken without consent.
“They have now given the Niagara Falls police discretion to Taser anybody anytime they think it’s reasonable,” Smith’s attorney said, according to a separate report in The Buffalo News. “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.”
In the decision’s text, Sperrazza cited a Wyoming case in which a judge ruled police acted legally when they tased a man in order to force him to open his hand relative to a search.
“The Court is certainly concerned that the purpose of the Taser was to inflict pain, and has seriously considered the argument of the defendant that a line is crossed when such government action is sanctioned,” she wrote. “This Court would immediately condemn and sanction the actions of the police if there was any indication that the Taser was used maliciously, or to an excessive extent, or with resulting injury. The Court is convinced by the evidence presented that the exact opposite of those factors was present in this case.
“The court would not advice the government to systematically utilize pain compliance as a standard tool in future similar circumstances, because of the intense scrutiny the use of such tactics would receive from this Court. However, this case is perhaps best described as the ‘perfect storm’ where the crimes being investigated were egregious, the evidence sought highly probative, the intrusion was minimal, and with a subject who steadfastly refused to comply with a lawful court Order. Further, the officers, armed with the Order issued, repeatedly sought the subject’s compliance, explored alternative methods of obtaining the sample, repeatedly warned the defendant of the consequences of his refusal and took steps to minimize the pain inflicted and the potential for injury. There was no malice or desire to injure the defendant.”
“Well, this certainly changes the landscape for noncompliance with an order,” socked the blog Simple Justice. “No need to go back to the issuing magistrate for a pep talk about the penalty for noncompliance, just zap ‘em right then and there. Cut out the middleman. There are plenty of aspects of the criminal justice system where this could move things along a little faster. Like maybe just executing defendants upon arrest. Think of the cost savings.”
The judge granted a postponement to August 11 of Smith’s trial on the 24-count indictment. Smith’s lawyer, not expecting Thursday’s ruling, asked for the extension because he had not yet begun having the DNA in question analyzed.
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That means you get a warm handshake right before getting shot.
Just when I thought it was getting better
IT’s time to get the fuck out of the u$a
Isn’t this ripe for appeal on 5th amendment grounds. Can someone be forced to testify against themselves. I think thye decimated this liberty long ago by requiring DNA but perhaps a legal scholar will clarify?!?
The American dream of liberty is now dead!
Don’t tread on my 5th Amendment! This judge should be immediately removed from the bench. Treason!
Why am I not surprised a judge named Sara SHELDON Sperrazza doesn’t understand that in America, you can’t be tortured to give evidence against yourself?
I am sick to death of this nonsense.
I suppose holding him in custody, and waiting for him to fall asleep and pull a hair was too “time consuming” for this thing called a “judge”?
How come I have watched cop shows where they stake out a suspect, and pick up a cup he is drinking from? Now, they just go Taser the suspect, and TAKE a sample?
No one is saying he shouldn’t be made to give DNA if he is under arrest and in custody.
But you DO NOT FREAKIN’ USE TORTURE.
BTW ~ FYI ~ Any shmo can be picked up dragged into an er at the request of a cop and fordable draw your blood.
Oops ~ with force draw your blood.
Blah blah blah. Guns and gold will protect you. Guns and gold.
The problem is you are expecting folks who were hired based on their lack of intelligence–literally the lowest rung on the human evolutionary scale–to make fine distinctions that require a minimal level of intelligence. All because local jurisdictions can’t afford to hire anyone who can make a living doing something else.
uberliberal said–
“The American dream of liberty is now dead!”
The American dream of liberty died when the richest man in America and a general of the army, George Washington, was elected president.
We have become the country our forefathers gave their lives to defend us against. Welcome to the Soviet Union.
It’s worst that that. Did you read about sotomayor’s ruling on imminemt domain case? Read on… this really worries me.
The case, Didden v. Village of Port Chester, involves seizure of condemned property that was transferred to a developer for “redevelopment” for “public use.” Sotomayor was on the appeals court that upheld the decision, in part based on a Supreme Court ruling in which the city of New London, Connecticut seized private property and turned it over to developers with the argument that redeveloped property would increase tax revenues and create jobs.
Sotomayor was part of a panel on the Second Circuit US Court of Appeals that upheld the Didden ruling and referred to the New London case in upholding the decision allowing the Village to seize the condemned property.
WAKE UP PEOPLE!
The Torture Issue is Bigger Than Bush And Cheney
ordering Torture.
When any local Judge starts thinking he or the local police can use force or pain (TORTURE) to get a suspect to do or say anything, IT has gone Too Far!
The Reluctance of our Elected Democrats to Enforce our Federal Laws Against Torture is No Longer Tolerable.
We the people Must Stop The Use of Torture in America, NOW!
The only way to do it IS TO PROSECUTE
THE DUO THAT Popularized Torture,
Bush and Cheney.
Cheney especially has made the indefensible topic of Torture debatable. TORTURE ! IS A FEDERAL CRIME
SEE http://tinyurl.com/besdd3
It is Never Debatable and Never Morally Correct.
IT is a heinous Federal Capital Crime.
WHY IS OBAMA PROTECTING BUSH AND CHENEY?
They obviously violated Federal Law.
Is Obama Soft On Crime?
This will be a huge negative for the Democrats in the next two elections.
If you do nothing else for your Country today,
SIGN THE PETITION To Prosecute Them For Torture
http://ANGRYVOTERS.ORG
Over 250,000 have signed
Join them and call yourself a Patriot
.
Fuck you Sperrazza. Maybe mUssolini’s Italy would be a better fit for you?
Chinese people call “tasers” what they are. Cattle prods. Electric shock’s. They do not call them by their American BRAND, trademark, name.
Wake up and smell the surrounding fascism…
This ruling opens the door for cops to have another new way to abuse the the fourth and fifth amendment rights of citizens via the use of Tasers.
What’s to keep them from starting a data base of DNA samples from anybody they choose to Taser for any reason?
It’s also a very risky approach as there have been over 400 deaths resulting from the use of the so-called “non-lethal” Taser.
WTF? This ruling crosses the line in my opinion. How can you be forced to testify against yourself under the bill of rights? Your DNA is just that…yours!
Ask yourself:
If that was YOUR Grandmother who was TAZED yesterday, what would you do?
(I can’t write what I would do b/c of the Left wing hysteria over “just words”)
What’s this judges name again? Judge Fucking Asshole?