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Judge: Tasering a suspect for DNA legal if not ‘malicious’
Stephen C. Webster
Raw Story
Friday, June 5, 2009
A judge in Niagra 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).”
(ARTICLE CONTINUES BELOW)
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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36 Responses to “Judge: Tasering a suspect for DNA legal if not ‘malicious’”
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June 5th, 2009 at 5:52 am
It dont matter if he did what they claim he did or not he is now guilty till proven innocent………we must speak out or we will be next
June 5th, 2009 at 6:16 am
…AND… WHAT happens if this guy is found innocent???? TASED for being INNOCENT! WHat if he died as a direct result of that tasing, and was innocent? WHO would be charged with that MURDER?
Chris Diminie Reply:
June 7th, 2009 at 9:23 am
No one. Tazers were invented because beating a guy over the head
with a baton repeatedly LOOKS too violent. Not because it messes people up, because it makes cops look like killers. Imagine the Rodney King beating tape if those 4 or 5 cops were just standing around Mr King tazing him. Just as bad of course, but it wouldn’t have looks to blatantly vicious.
We wouldn’t be debating this kid on a phone thing if the cop had clubbed him across the head and shoulders with a police baton.
Or even if Tazers were shaped like traditional cattle prods…
“Wow, look how non-lethal those electric guns are”.
June 5th, 2009 at 6:20 am
Another question… How can there be a “lawful court order” to violate the constitution by forcing an innocent man (until PROVEN guilty) to provide evidence that may incriminate him?
I’m not saying that I think that he IS innocent,(which I dont), I’m saying “what if he is?”.
Think it through.
June 5th, 2009 at 6:46 am
what is wrong with concealing your privacy these days?
you have rights to privacy and rights to remain silent…
Waterboarding and Tazers are now the same thing….torture for information….
Jim Lunsford Reply:
June 5th, 2009 at 7:51 am
You do not have any rights other than the right of conquest. The bill of rights, is really nothing more than the socially accepted norms which would govern a people with their consent. Once lawyers got their claws into it, it has been thoroughly decimated. The only truly god-given, inalienable right there has ever been, has been the right of conquest. Not concerned with victory, but with that individuals will to hold to the right of whatever they claim is a right until their death. That constitutes a true right. Something you refuse to give up even upon pain of death. Something we need to begin doing now. En masse.
June 5th, 2009 at 8:53 am
Arrest the judge for violation of the U.S. Constitution.
Gary B. Reply:
June 5th, 2009 at 9:04 am
For real… Judges KNOW that their rulings eventually become LAW. Could this case be a wolf in sheeps clothing? We’ll see…
June 5th, 2009 at 9:18 am
Wheeeeee!
Cattle prods for everyone!
Zzzzzzzt…. zzzzzzzt… zzzzzzzt…!
Matzo Man Reply:
June 5th, 2009 at 10:49 am
And it’s all legal… hehehe
Artyom Reply:
June 5th, 2009 at 11:33 pm
LOL!!!!!! I can see how that would end up…. Human nature is a real let down. )))
Steve Williams Reply:
June 6th, 2009 at 6:47 am
Moo-oo-ooooo!
“Roll ‘em, roll ‘em, roll ‘em, Rawhi-i-i-i-de….!
And if the cattle should balk, zap ‘em! That’ll put a little spring in their step!
June 5th, 2009 at 9:19 am
Now the gold fringed flag that symbolizes military law is being put into force. Forget your constitutional rights my friend – they don’t exist here. Also, the lawyers trace their allegiance to the temple bar located in the “City of London” not London England, but the City of London which, like the DOC and the city of Rome is its own jurisdictional district. The priviledges of thie “City” are at the bequest of the throne so in effect, our legal system is run by the English Monarchy. Put that in yer pipe n take a puff er two.
June 5th, 2009 at 9:57 am
You don’t want to pee in the cup?
Ok, so the Nazi Gestapo gets to rape and sodomize you.
Hey, it’s going to be done without malice.
June 5th, 2009 at 10:45 am
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June 5th, 2009 at 10:54 am
It’s all fun and games until the judge’s son or daughter gets TAS’d. Nice precedent.
But if it’s you or your son or daughter TOO BAD!
Gary B. Reply:
June 5th, 2009 at 11:29 am
Hey… Thats a great idea!!! I wonder how THEY would feel if THEIR kids were tased? Would they still say that it’s ok?
June 5th, 2009 at 12:02 pm
Excelent decision, Mein Furher
June 5th, 2009 at 3:25 pm
So now it’s OK to taze and kill people as long as you show no Malicious intent in committing the crime. Now you will see cops killing people at EVERY traffic stop because THEY CAN!
mikey Reply:
June 7th, 2009 at 10:58 pm
It is a worrying precedent.
June 5th, 2009 at 6:22 pm
I suppose a bullet to the brain pan could be construed as non malice. Just depends on who did it. More double speak bullshit.
June 5th, 2009 at 9:42 pm
i’m all for rights and freedoms etc. But put yourself in the law enforcement officer’s postion. Say you’re pretty god damned sure this dude did it. Why not tase him and slap him around while you’re at it?!? I know you’re gonna be pretty embarrased if he IS found innocent… but I mean… there are times to break law enforcement laws. No one can honestly say that even torture is wrong in ALL circumstances. If you do, you’re a fool. And for the record, i hate cops and they flagrantly abuse their power and priveleges given to them. But honestly, who says “no” to a DNA test which would 100% prove innocence if you WEREN’T ALREADY GUILTY!!! And… what if he was going to get off of a crime if he didn’t “provide” DNA willingly? I’d rathter have the guy who shot someones nuts off behind bars thank you very much.
Artyom Reply:
June 5th, 2009 at 11:37 pm
Because that goes against the very principle of American LAW!!!!!!!!! Everyone knows now the news plays up criminal cases on TV and contaminates a jury pool making people already judge before a case is brought to court. However, it is supposed to be Innocent Until Proven Guilty. Now they have everyone believing the opposite you will learn what kind of law enforcement it will be, very soon.
June 5th, 2009 at 9:43 pm
Oh, and don’t forget that his girlfriend and two children positively identified this guy. He’s a fucking bastard, let him rot, tase him again plz.
Artyom Reply:
June 5th, 2009 at 11:40 pm
on what do you base your information? If you really were a witness you would know, but then you would be apart of the court hearings. Maybe the girl hates him and could of been violated by another man and in a fit of rage, blamed him? He deserves his day in court before you spit on him no matter what you believe.
June 6th, 2009 at 1:04 am
We are/America is Nazi Germany now.
June 6th, 2009 at 5:45 am
Tyranny has come to America.
Soon the cops will be using tasers for any reason they can think of. They must get off on it.
June 6th, 2009 at 5:48 am
I wonder if it can happen, in the near future that the cops are tasered and so the judges . With the law of the jungle already in place anything is possible .
June 6th, 2009 at 8:49 am
its tuff bananas
this dirtbag has no no rights
if the dna comes up his he should hang.
and if it dont they can give him 50 bucks for his pain.
if youre inoncent you shouldnt run from the cops or refuse a dna test that would exonerate you.
Steve Williams Reply:
June 7th, 2009 at 10:08 am
???
June 6th, 2009 at 10:05 am
That’s right. If you’re not guilty you have nothing to be afraid of.
Now, be a good little slave and surrender your Rights.
Don’t make us Taze you, or your family….
June 6th, 2009 at 11:05 am
Welcome to China.
How soon before they remove his organs to the highest bidder?
June 7th, 2009 at 7:13 am
This is absolutely AMAZING watching how the events of these times are beginning to unfold. I am not a Bible thumper but I have read the Bible and to me it seems pretty incredible how the events of today’s world could be so close to those explained within the Bibles pages.
The ONLY way these words could not be of truth is if it were revealed that there were some dark ages conspiracy to take over the world and the bible was written to control the masses for the times we now see unfolding, or, the Bible was actually inspired of God and we are now experiencing the end times as described within it’s pages.
ABSOLUTELY AMAZING!
June 7th, 2009 at 9:48 am
We have some really stupid judges nowadays. I think they need to be thrown out for decisions like this. So we have the fifth ammendment to keep from incriminating ourselves. It seems like refusing to give DNA evidence fits into this catagory. Now though it is okay to take it by force.
June 7th, 2009 at 6:20 pm
This guy was obstructing a court order. The Court issues orders ONLY AFTER hearing and the hearing is held only AFTER a notice of hearing is filed and given to the opposing counsel. What transpired here is LEGAL, CONSTITUTIONAL, and even desireable in a functional republic and or democracy. The defendant’s rights were not compromised, nor were the rules of civil and or criminal procedure thwarted in this case. These rules are law, and if the law was broken, the defendant will have major grounds for appeal if convicted. Unfortunately this is not one of those cases. This man was treated fairly and in accordance with the US Constitution as well as his state’s criminal legal procedures. Nothing that happened in this story is wrong in either the ethical nor in the legal sense.
Please focus on stories of real law enforcement and or judicial abuse. Reporting on a story like this and then attempting to blow it up into a huge controversy is ineffective and counterproductive. The further utilization of procrustean arguments and unfounded opinions by the repliers herein only serve as “proof” to those that write you off as nut jobs that you are, in fact, nut jobs who are woefully illinformed, dangerously undereducated, and desperate to the point of finding fault where non exists.
ALL- Please know your local laws, your state laws, and the US Constitution. Only speak about that which you have an informed opinion. Unfortunately, having an informed opinion requires much more than just sitting at your computer and ranting about things that some other person has told you are true. GO FIND THE TRUTH FOR YOURSELVES. GO…NOW!!! Knowledge is power. If this were not true, then why do oppresive societies institute book burnings and employ censors? Arm yourself with knowledge and you will able to avoid having to go to the last resort – arming yourself with a gun. Armed resistance is the LAST option. If more people became lawyers, there would be more people available to check the government and also more people to tell you all that this situation was, is, and will be perfectly fine.
June 8th, 2009 at 12:48 am
Think you got a right to remain silent?
Not anymore.
They’ll just tase you until you talk.
Think you got a right not to incriminate yourself?
Not anymore.
They’ll just tase you until you do incriminate yourself.
Then of course, comes the torture.
America….you’re a fucking idiot, and the rest of the world now knows it.