Posted by Orin Kerr:
Can A Suspect Be Tased Into Complying With a Court Order?:
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1244157895
Over at [1]Simple Justice, Scott Greenfield is blogging about [2]a
very unusual New York state court decision on whether a suspect can be
tased into compliance with a court order to submit to DNA testing.
In this case, the government obtained an Order to Show Cause (OSC)
ordering the target to appear and show cause as to why he should not
be ordered to submit to a buccal swab DNA test. The government sought
the DNA sample to see if the suspect's DNA matched samples collected
in a robbery and kidnapping investigation. After the suspect did not
respond to the OSC, the government sought and obtained an order,
apparently based on a probable cause affidavit, requiring the suspect
to submit to the DNA test. The suspect complied, but then the
government accidentally sent the DNA sample to the wrong lab, where
the sample was compromised.
The government then applied for another order, essentially identical
to the first one, and the court granted it. However, the suspect
refused to comply with the second court order: He said that he had
complied already and that he wasn't going to comply again. The police
took the suspect to the stationhouse, and they then called a
prosecutor to ask what to do. The prosecutor said that it was okay to
ouse force to carry out the order but they should use as little force
as possible. The police knew the suspect to have a history of
violence, so they believed that it wouldn't work to just hold down the
target while taking the cheek swab. The police then informed the
target that they were going to taser him on the "drive stun" setting,
the lowest setting, and that it would be unpleasant, but that they
were going to do it to get him to comply with the order. The suspect
continued to refuse to comply with the order.
The police then tasered the suspect using the "drive stun" setting
for about 2 seconds. The suspect yelled out, and then agreed to comply
with the DNA test. The DNA test yielded evidence that he was the man
who committed the earlier kidnapping and robbery, and the suspect
moved to suppress the evidence on the ground that the sample was
obtained as a result of excessive force in violation of the Fourth
Amendment because the DNA sample was a fruit of the tasering.
The court concluded that the use of force was reasonable and thus
denied the motion to suppress. The court noted that the best approach
would have been to bring teh suspect before the court, to give the
judge an opportunity to explain the situation and consider criminal
sanctions for the suspect's refusal to comply. But given that this
hadn't happened, the court had to confront the Fourth Amendment
question directly. The court then reasoned that the court order was
essentially a Fourth Amendment warrant, and that the police have the
power to use reasonable force to execute a warrant. The court then
concludes that on the limited record before it, and given the specific
facts of the case, the use of force was reasonable.
Off the top of my head, I find it somewhat hard to know whether this
case is persuasive as a matter of existing doctrine without having
access to the same record that the court was reviewing. The court
explains its judgment as a reaction to a specific record that is only
partially explained. However, my basic take on the case is that the
correctness of the court's framework depends on whether the court's
order is truly in the nature of a Fourth Amendment warrant. The court
is right that the Fourth Amendment allows the police to use reasonable
force to execute a warrant. If the order did in fact give the police
the authority to obtain the swab, then they had the right to use
reasonable force to get the target to comply; in that sense, the order
was like an arrest warrant, and the use of force was like a use of
force to overcome resistance to arrest. Whether the use of force was
reasonable then becomes a pretty fact-specific question.
On the other hand, it's not entirely clear to me from the opinion if
the order actually authorized forcibly obtaining the DNA sample, and
whether the order was in fact a warrant for Fourth Amendment purposes.
Other court orders such as subpoenas are not enforceable by force; the
government must seek enforcement from a court for willful failure to
comply. (There are also some interesting questions about about whether
the use of excessive force in a setting like this can lead to
suppression.) So in the end my take on the case depends on some pretty
detailed aspects of the record that we don't quite know. Still, it
seems like a very interesting case, much worth blogging. Thanks to
reader David Bork (not to mention Scott Greenfield) for bring it to my
attention.
References
1.
http://blog.simplejustice.us/2009/06/04/taser-the-new-buffalo-chicken-wing.aspx
2. http://blog.simplejustice.us/files/66432-58232/TaserDecision1.pdf
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