Saturday, March 17, 2012

Order to Obtain DNA Doesn't Authorize Police To Use Taser to Acquire DNA

Confronted by the police who had an order to obtain his DNA, Ryan Smith reportedly told the police "You are gonna have to Taser me if you want my DNA." Ans so the police proceeded to use a taser to acquire Mr. Smith's DNA. On appeal Mr. Smith challenged both the legality of the order and the use of the taser. In a 4-1 decision (People v Smith,2012 NY Slip Op 01896 (3/16/2012) the Appellate Division, Fourth Department agreed with Mr. Smith both that there was insufficient notice of the motion to seek DNA testing and that the use of the taser was improper.

Normally, this is the part in which quote from and discuss the decision. But I am very happy to report that Scott Greenfield has returned to blogging at Simple Jusice and has already written this excellent post on the case.

So I will just quote this portion of the decision regarding the use of the taser:
It is undisputed that defendant did not threaten, fight with, or physically resist the officers at any time; rather, he simply refused to open his mouth to allow the officers to obtain a buccal swab. . . We cannot agree with the suppression court that, after 10 to 15 minutes of asking a suspect to comply with a court-ordered buccal swab of which the suspect had no prior knowledge, it is reasonable for the police to tase a nonviolent, handcuffed, and secured defendant in order to force the suspect into submission.

While the People seek to characterize the use of a taser as a "minimal" degree of force and emphasized at the suppression hearing that defendant did not lose consciousness and suffered no visible scarring or injuries, we note that "extreme pain can be inflicted with little or no injury" (Hickey, 12 F3d at 757). The officers who witnessed the tasing incident acknowledged that the use of a taser causes pain and that, upon application of the taser, defendant appeared to be in pain and shouted for the officers to stop using it. Our review of a videotape of the tasing incident supports the conclusion that defendant was in pain upon application of the taser to his bare skin.

Congratulations to Mr. Smith's attorney, Mark Funk, for obtaining this reversal.

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