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