Judge to probe use of Taser to obtain DNA

Ryan S. Smith refused a judge’s order last fall to give a DNA sample, insisting to police that he didn’t care what court papers said.

“You are gonna have to Taser me if you want my DNA,” an officer reported Smith saying.

So police did just that, jolting Smith with electricity before swabbing the inside of his mouth.

Now the judge in the case wants to know why.

“This isn’t pretty,” Niagara County Court Judge Sara Sheldon Sperazza told lawyers involved in the case during a recent court appearance. “I’m fearful of how he’s been treated.”

Sperazza ordered several Niagara Falls police officers and an assistant district attorney to appear in her court Monday and provide sworn testimony to explain how Smith came to be shocked by a Taser on Sept. 29, 2008.

According to police records obtained by The Buffalo News, officers involved had been told by superiors to “use any means necessary” to collect the sample.

Criminal and civil attorneys say that Smith had a constitutional right to refuse the DNA request.

The judge could have ordered Smith jailed until he gave the sample, the lawyers said, but police and prosecutors had no legal authority to force him to provide one.

“If someone refuses to give their DNA, then they can be held in contempt and be held in jail until they comply,” said Patrick Balkin of Lockport, Smith’s defense lawyer.

Balkin said he never heard of anyone in the nation collecting a DNA sample using a Taser.

“It’s the worse thing I’ve ever seen,” he said. “You don’t even see people in a Third World country treated like this.”

After the DNA sample was obtained and tested, a grand jury last December handed up a 24-count indictment against Smith, 21, of Niagara Falls, in relation to a shooting and a gas station robbery. The indictment includes multiple counts of robbery, burglary, kidnapping, assault and criminal use of a firearm, as well as single counts of resisting arrest and menacing.

The last two charges accuse Smith of pointing a gun at a Niagara Falls police officer who responded to the robbery at a Sunoco gas station in the city on Dec. 24, 2006.

Smith also is accused in the July 27, 2006, shooting of Joseph Harris in the victim’s Niagara Falls home.

Smith’s DNA profile was on file in a state criminal justice databank because he had been jailed for two incidents that took place in 2005.

Sperazza granted him youthful- offender status in those cases.

Smith had responded to an order by Sperazza to provide a new DNA sample last August, before the latest cases landed him in Niagara County Court, but that sample was lost. After that, the court order for another new sample was obtained.

On Sept. 29, Niagara Falls Detectives Jim Galie and Frank Coney located Smith on Niagara Street and told him they needed to swab the inside his mouth for DNA, but Smith “was being uncooperative,” according to a report filed by Officer George W. McDonell.

McDonell responded to the call with Capt. David LeGault and Warrant Officer Bill Gee.

On the way to Police Headquarters, Smith said, “Man, this is messed up. I already gave them my DNA. I’m not giving it up again,” McDonell reported.

Once at headquarters, Smith told Officer Ryan G. Warme, “You are gonna have to Taser me if you want my DNA. I don’t care what the [court] paper says,” according to the police incident report.

Then Smith was taken to the Crime Scene Unit, where Officer Jason Sykes was to take the swab. When Smith again refused, Galie, Coney, Sykes, Warme and McDonell tried to reason with him, McDonell said.

“I ain’t giving up my DNA again, I already gave it up once,” Smith reportedly said. “I’ll sit in jail, I ain’t giving it up again. You’re going to have to taze me.”

Galie then contacted Detective Lt. William Thomson and Assistant District Attorney Doreen M. Hoffmann, McDonell reported.

“It was relayed the officers could use any means necessary to secure the sample,” he wrote.

At that point, McDonell used a Taser to apply a “drive stun” to Smith’s left shoulder. After that, he wrote, Smith complied with the order to provide his DNA.

According to his lawyer, Smith was handcuffed and on the floor when he was Tasered, and was rendered unconscious for a short time. He barely recalls the DNA being taken.

“You get pretty disoriented when you get hit by 50,000 volts,” Balkin said.

After the sample was taken, Smith was charged with second- degree contempt for failure to obey a court mandate.

On the report obtained by The News, the section where officers are asked if the suspect was read his Miranda rights has a check in the box marked “No.”

In any case in which a Taser is used, Niagara Falls officers are required to file a “use of force” form.

On Monday, Balkin plans to call all of the officers involved to testify except Warme, who has been jailed and suspended from his job since FBI agents charged him in October with wire fraud, conspiracy to distribute crack cocaine and other charges.

Balkin said he also plans to call Hoffmann to the witness stand.

“I’d like to give [Hoffmann] some credit in this case. I sure can’t picture any district attorney thinking that they would use a Taser,” Balkin said.

Hoffmann told The News that she will offer a very different version of what happened that day than Smith did.

nfischer@buffnews.com and sscanlon@buffnews.com

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Police Tasers: excessive force or necessary tool?

A crop of legal cases across the US raise concerns over the use of electric stun guns in routine police stops.

It's time to ask our elected officials this question!

Washington – From isolated cases across the country, a debate is emerging over the use of electric stun guns as a “pain compliance” device by law enforcement.

At issue isn’t whether police can use the weapon, known as a Taser, to protect themselves from dangerous suspects or to prevent a criminal from escaping. That is its designed purpose. Instead, the question is to what extent police may use a stun gun against someone who is not actively resisting arrest but who is passively refusing to obey a police command.

To some officers, such refusal is a form of resisting arrest and constitutes grounds to shoot 50,000 volts of electricity into that person’s body in five-second bursts. When a person is tased, the central nervous system is overridden and the person experiences a seizure accompanied by intense pain.

Such tactics would be unconstitutional in a police interrogation room.

By contrast, during an arrest or roadside traffic stop, there are no clear standards for when police use of a stun gun for “pain compliance” might violate Fourth Amendment protections.

Officials at UCLA recently agreed to pay a student $220,000 to drop a lawsuit against the university in connection with a November 2006 incident in which the student was repeatedly tased after refusing a police order to leave the school library.

Last week, the US Supreme Court declined to take up the case of a handcuffed Florida motorist who was tased three times because he disobeyed a deputy sheriff’s command to stand up and walk to a patrol car.

Given the proliferation of police stun guns, the issue is expected come up with increasing frequency across the country, according to civil libertarians.

A controversial alternative to guns

Developed in the 1990s, stun guns have helped reduce injuries to both police officers and suspects by offering officers a safer alternative to a firearm or a night stick.

Today there are more than 375,000 stun guns being used at 13,400 law enforcement and military organizations in 44 countries, according to Taser International, the manufacturer of the leading brand of stun gun.

But stun guns have come under increasing scrutiny. According to Amnesty International, more than 300 individuals have died after stun gun encounters in the US in the past nine years. And even their nonlethal use has been controversial.

Los Angeles police tried to use a stun gun against Rodney King before his arrest degenerated into the now infamous police beating.

In September 2007, campus police at the University of Florida used a stun gun to neutralize a disruptive student at a John Kerry speech. The student’s plea, “Don’t tase me, bro,” became a popular tee shirt slogan.

In the case of the Florida driver, the Supreme Court justices offered no explanation for their decision not to hear his case. The move lets stand a federal appeals court decision that found the deputy’s actions reasonable and justified.

“I hope [law enforcement officials] don’t see this as open season to tase anyone who doesn’t do exactly what they are told,” says Tallahassee lawyer John Jolly, who successfully represented the deputy in the Florida case.

“In the end it is all going to come down to a question of reasonableness under the circumstances,” Mr. Jolly says. “If a reasonable person would think that use of force is going to accomplish a lawful objective and make it less likely that somebody gets hurt, they can do it.”

The tasing of Jesse Buckley

The Florida case involves a motorist named Jesse Buckley who was pulled over for speeding on a remote Florida highway in March 2004.

Mr. Buckley was issued a traffic ticket, but became distraught and refused to sign it. Washington County Deputy Sheriff Jonathan Rackard placed Buckley under arrest, cuffing his hands behind his back. As instructed, the motorist exited his car and headed toward the patrol car.

Before he reached the cruiser, Buckley collapsed to the ground. The encounter was captured on the video camera mounted on the dashboard of Mr. Rackard’s cruiser. The video has been posted on the Internet.

The deputy tried to lift Buckley, but he went limp and started sobbing. Buckley was warned that if he didn’t get up he would be shocked with a Taser.

“I don’t care anymore,” Buckley said. “Tase me.”

The deputy tased him three times before backup arrived, and the two officers walked Buckley to the patrol car.

Photos of Buckley’s body later revealed 16 burn marks.

Buckley filed a lawsuit against the deputy for excessive use of force by a police officer. A federal judge refused to throw out the lawsuit, but a divided panel of the 11th US Circuit Court of Appeals in Atlanta sided with the deputy. The suit was dismissed.

“The government has an interest in arrests being completed efficiently and without waste of limited resources,” wrote Chief Judge J.L. Edmondson in the 2-to-1 decision. “Even though [the motorist] was handcuffed, he still refused repeatedly to comply with the most minimal of police instructions – that is, to stand up and to walk to the patrol car.”

In a dissent, District Judge Beverly Martin said that “no reasonable officer could have believed that the force used by [the deputy] was necessary in response to the situation at hand.”

Judge Martin added: “The question in this case is whether a taser gun may be used repeatedly against a peaceful individual as a pain-compliance device – that is, as an electric prod – to force him to comply with an order to move.”

Courts loath to second-guess police

The appeals court decision creates a dangerous legal precedent permitting the use of tasers to force compliance with police orders, says Miami lawyer Michael Masinter, who represented Buckley.

“It isn’t hard to envision police officers dealing with anti-abortion protesters or civil rights protesters – pick your political issue,” he says. “There is nothing in this decision that forbids police officers from using tasers to break that up.”

Jolly views the case differently. He says police officers face an array of dangers during roadside stops and that it is wrong to second-guess split second judgments after the fact.

“This guy could turn from sobbing basket-case into a raging wild man at the snap of a finger. That officer is in a surprisingly difficult situation,” Jolly says.

Mr. Masinter disagrees. “Mr. Buckley was no threat to anybody,” he says. “There was no active resistance here and therefore no authority to use this kind of force.”

Jolly says the courts – including the Supreme Court – are generally reluctant to second-guess a police officer acting alone in a potentially dangerous situation. “In baseball, all ties go to the runner,” he says. “In federal civil rights litigation against individual officers, all doubts go to the officer. Close calls are his.”

Related Stories

Britain abuzz over a new plan to arm bobbies with Tasers 12/11/2008

Are stun guns too deadly? Louisiana case adds to debate. 08/12/2008

Police stun guns pack volts – and debate 07/15/2004

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