Taser ruling shocks defense lawyer

   Is it OK to use a Taser to shock a criminal suspect into giving a DNA sample?

   Yes, says Niagara County Judge Sara Sheldon Sperrazza, as long as the police don't overdo it.

   In a 16-page ruling released Wednesday, Sperrazza said the Niagara Falls police did nothing wrong Sept, 29 in using the 50,000-volt electronic stun gun on Ryan S. Smith, 21, who didn't want to open his mouth for a buccal swab, a glorified Q-Tip, to be used to rub some cells off the inside of his cheek for a DNA sample.

   Smith objected that he had already given such a sample the previous month. That was where the case gets complicated.

   Note that if Smith is guilty, he's a pretty bad guy. 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.

   The August sample was supposed to go to the Niagara County Sheriff's Department forensic lab, but the Falls police erroneously mailed it to the State Police lab. Workers there opened the package and contaminated it, which is why another sample was sought.

   Sperrazza signed a second court order for a DNA sample without telling the defense. Normally, such orders are issued after giving the defense a chance to object. But Sperrazza wrote in her ruling that since Smith hadn't objected to the first sample, she didn't think he would object to the second.

   Smith did object, reportedly telling officers, "I ain't giving it up. You're going to have to tase me."

   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).

   Smith was ordered to take his shirt off, handcuffed and made to sit on the floor, to minimize the risk that he could fall and hurt himself after being shocked.

   From there, it's a question of who you believe.

   Smith either was "tortured into unconsciousness" (according to court papers filed by his civil lawyer in an attempt to sue the City of Niagara Falls) or "complained of no injury and none was observed" (according to the police incident report).

   And then, after zapping him with 50,000 volts for one and a half to two seconds (according to testimony by the officer who pulled the trigger) or as long as four seconds (according to the Taser's readout) and obtaining the sample, the Niagara Falls police arrested Smith and charged him with contempt of court.

   Sperrazza said the police should have arrested him first and brought him to court to be warned that court orders must be obeyed.

   But even so, she said it's all right to use a Taser on a suspect as long as it's not done "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."

   Did the police handle this correctly? Did the judge make the right call?

-- Thomas J. Prohaska

Read the full story in today's Buffalo News here.

Comments

[West Side]

This is disgusting and unAmerican. If the man didn't want to comply with the court order he should have been held in contempt of court and jailed until he agreed to provide a sample.

The actions of the police were beyond the pale. What is even worse is the judge compounded it by siding with the cops. We are on step closer to a fascist police state thanks to the actions of Judge Sara Sheldon Sperrazza.

[Jeff]

Wow. Shocking is an understatement. This is cruel, unusual, inhumane, tortuous behavior by the government. Giving the police the authority to taser a suspect into compliance is extremely frightening.

[Disturbed Citizen]

It's helpful to remember one thing here people: this guy is in an "unconvicted" status when they did this. That means that if they can do it to him-they can do it to you.

This will not stand, and much worse, if this guys is convicted-it's a bad judgement about something so obvious that can invalidate (potentially) the entire criminal case. Even if this guy "did" this-he could end up released because they tortured him to get the DNA.
What kind of nation are we becomming?

[Grinch]

Despite what this guy did, there was no justification for the way the evidence was collected. People should lose their jobs. Hope the supreme court is not to busy to hear this violation of civil rights. Perhaps the CIA has a few openings for these cops. I say fire them, fire the judge, and start treating people - even criminals - with respect and in accordance with their civil rights.

[DanMingo]

Agreeing with the posters here who rightfully condemn this action. This is no different than torture to coerce a confession (or sample).

[Wayne]

Nice. When are they going to start Tazering for over due library books, since *that* is now a criminal defense?

Oh, and to add insult to injury, he's being charged with contempt? I thought he already got a 50,000 volt charge of contempt from the police.

Cops who think like this suck. Anyone who justifies this behavoir deserved to be fired, voted out of office, and subjected to the same treatement.

[JA_NICE]

This is way beyond the pale! Hitting someone with 50,000 volts of electricity is certainly not minimal force.(Notice he was made to sit on the floor so he would't fall from the force)Hopefully the defense atty. is preparing briefs to the Court of Appeals, the state Supreme Court, and the SCOTUS.Where is the ACLU(yikes)when you need it?

[voice of reason]

A contempt of court charge is a better approach than a taser.

If refusal continues and forced collection is appropriate, there should be ways much less drastic than a taser. For example, why not get saliva from a drinking glass as done when investigating Sanchez?

I suppose this ruling shows that female judges don't always make wiser decisions, despite what some may hope for.

[GW Plunkett]

WOW...so much for our rights!!!

So..if judge sperazza was pulled over and argued with a cop and he tazered her... well I wonder how she would feel...

This truly is a perversion of justice.

[Butch]

You got to be kidding me. A prediction:it will be reversed on appeal. It is the case of the Judge, as a former prosecutor, siding with the cops because they screwed up. Protecting their behind. Isn't justice great. Especially, being a Judge and being able to make goofy decisions.

[RSBL]

I dare one of them to tazer me for anything at all, even someone I know. This is a torture device designed for punishment. I will retaliate with unequal force, all those involved...it is a declaration of war against the population and a breach of contract through the constitution. I f--king dare you cowards!

[RSBL]

First they said tazers were an alternative to using deadly force and only to be used if the officers life was in danger, now its being used for coercion. Are they gonna use them for teachers on students who dont swallow their brainwashing too? Or give a wrong answer, or even dont think and act the way their "masters" want them too....its time for a revolution....and not a "peaceful one either, those are just ignored, this is exactly why there is a second amendment.

[ree]

In continuation to the tasing. When I say the Niagara Falls police department needs to be tased I mean tase them with a law suit. I do not mean by violence. I am against viloence that is why I am outraged that you can treat an individual like that. We do not allow a dog to be chained and tortured so why do the Niagara Falls police department think its okay to do it to humans. Also, Smith was no threat to the NFPD because he was handcuffed.

[A mother]

I can not understand any human being thinking its okay to torture a handcuffed young man who is innocent until proven guilty. The law enforcement in Niagara Falls are not above the law and should not abuse their badges. There are many parents in the Niagara Falls police Dept. and I ask you this- How would you like it if someone tortured one of your kids? How do you sleep at night knowing you tortured a young man for no reason! What you guys did was unjust and everyone invoved should be brought up on charges. Internal affairs needs to step in and prosecute all that was involved from the judge to last officer on duty that evening. I hope then the next time you have a handcuff prisoner who poses no threat to you, you stop and think!

[A concerned individual]

When will the Internal Affairs step in and stop the Niagara Falls police department from treating us all like animals? It is so sad that tasing a handcuffed human is considered okay in the eyes of the ones who suppose to protect us. Have you all gone mad? I think anger management is in order for all the judges and police officers who think that this tasing was justified. I speak for many people in Niagara Falls. Smith if you read this good luck and your day will come when you can legally tase them back in a court of law. Until then hold your head up!

[A Buffalo News subscriber]

Buffalo News, whats your take on this tasing? Keep us all informed on the Smith case. I hope Mr. Smith finally get some fair justice in this matter. I know he was done wrong by the court system and the Niagara Falls police department. The Niagara Falls police department do alot of things that are against the law and get away with it! By the way what happened to the cop that was arrested for breaking the law? I hope he tells on all the other corrupted officers in the law enforcement field! I'm sure if he does all they will get is a slap on the wrist and not a tasing! Lets start taking a way some badges for their wrong doing! If, we do that it will open up alot of jobs in Niagara Falls for some people who really take their oath serious! Its time to clean the nfpd, city hall, and the benches up! Come on people get out and register to vote and clean our offices up!

[po'd @ Buufalo News]

I wrote a comment @ 10:45p.m tonite speaking on Internal affairs to step in and prosecute all the who doers in the nfpd and I told Smith that he will get his turn to tase the nfpd in a court of law and you did not print it! Why? Is it because I told Smith to keep his head up? I guess you are down with the Niagara Falls police department! That's okay because Smith will have a chance at tasing them back in a court of law! Buffalo News if you do not like what we got to say then shut it down. We the people have freedom of speech! You should know that by now! You do not want anyone to give encouragement to a young man! As far as I am concern Smith is getting another tasing by the Buffalo News! I guess your down with the Niagara Falls police tasing crew!

[BobbyCat]

Using electric shock to control a dangerous person is one thing; Using electric shock to take a dna sample amounts to torture.

Pssssst! Judge, torture is illegal - a famously heinous crime. Get a grip on reality.

[Hodge]

Hey there, po'd, while I agree with you that this whole case stinks and the cops should be disciplined, please keep a sense of perspective on one thing: your right to freedom of speech does not extend to being entitled to post anything you want on a website owned by a private company. The Bill of Rights protects your freedom of speech from being curtailed by the government. A privately-owned company can and will moderate its own website. That's why they can remove messages that might be deemed offensive. What's more, I see your post is there at 10:45, so calm down, OK? You've had your say. Let's concentrate on the real issue, which is the misuse of police and judicial authority.

[Matt]

Good Job NFPD... Even if he's found guilty (which he probably is) once it goes to appeal he'll probably walk. When they go through training in using the taser, they are told to ONLY use the device when they feel threatened and need to take control of the situation. It seems obvious that even though this dumb*** wasn't being compliant he definintely wasn't threatening the officers.

The only bright side to the situation is that even if this guys walks I'll bet he'll break the law again. Maybe the police will get it right the second time!

[Bill]

IT'S A COURT ORDER!!!! Why should the police or anyone else put themselves at risk because a VIOLENT felon decides he is too good to comply with a court order. Here's some news people...it is not torture, it is not waterboarding and learn to read - he wasn't hit with 50,000 volts - it was significantly less and for less than 4 seconds. Every cop who uses a tazer has to be tazed - so do they get to sue the city for torture????

[Korey]

Bill, it is torture and if you don' t believe me then I can arrange a demo for you if you want? How would you like the police to pull you over for anything and then taze you because you were alleged to have committed a "crime" and then because it was legal to taze you keep a DNA sample to put in their database? Pull your head out of W's butt for just a second and realize this affects the future of this country, they are taking our freedoms incrementally, and you never notice until they are all GONE!

[Jay]

How professional is the NFPD when they sent the first sample to the wrong lab. Do they have standard operating procedures or do they just "wing it." If they can make a mistake on a case that is this simple just think of how many mistakes can be made on a more interpretive case. Why would anyone believe what they present in court?

[BIlly]

Korey I have been tazed - as has every police officer who uses one - does it hurt - absolutely. But every court in this country has ruled the use of a tazer to be a legal. Here's a thought, don't commit crimes and you won't have to worry about it. And yes - not obeying a court order is a crime.

[Jonathan]

@Billy
You wrote,
" Here's a thought, don't commit crimes and you won't have to worry about it."

Bill, there are over 2 million Federal, state, and local laws and statutes on the books in this country at present. What's my point? Well, basically this means that somewhere, somehow, each and every one of us is committing a crime. You can't pass gas without committing a felony somewhere in this country. (Ok, that's an exaggeration, but you get my point.) Do YOU know all the laws? I certainly don't, and I challenge any judge or lawyer in the land, up to and including the 9 nazgul on the SCOTUS, to tell me truthfully that they can either. And yet we are constantly fed platitudes like "don't commit crimes and you won't have to worry about it" and "ignorance of the law is no excuse". Excuse me? With that many laws on the books, how is ignorance of the law NOT an excuse?
And what if you've not committed a crime? What if you are pulled over and merely assert your 4th amendment right to not be searched without a warrant? From what I can see, this judge's ruling allows them to tazer you in order to gain compliance, regardless of the occurence of a crime. After all, is not Ryan Smith considered innocent until proven guilty? And regardless of guilt or innocence, why not just slap him with a contempt charge till he complies? Then, at least, the police could have obtained evidence from him without violence, and this issue wouldn't have even come up.
No, my friend, this is a slippery slope that we are on now because of this judge's ruling, and I do not like it. Remember, if they can do it to him, they can do it to any of us.