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Can A Suspect Be Tased Into Complying With a Court Order?:
Over at Simple Justice, Scott Greenfield is blogging about 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.

  [Added later: I should think it pretty obvious that this is a bad situation the police put themselves in. As the judge pointed out, the proper step would have been to take the defendant before the judge. It was overzealous and unwise to actually try to force compliance by some means, much less a taser. Still, in this post I want to put aside the poor judgment of the police and instead focus on the Fourth Amendment issue: should the court suppress the evidence?]

  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.

  UPDATE: Some commenters object to the fact that the officers used force to get the suspect to act "voluntarily" rather than used force directly on the suspect: The suggestion is that the use of force was essentially torture. Putting aside the factual question of whether use of a taser on its lowest setting for 2 seconds is "torture," I'm interested in but uncertain about the idea that there is a Fourth Amendment difference between threatening or using force to get a suspect to do something and using force to make them. In particular, the option the officers faced in this case was holding down the suspect and forcing his mouth open to do the swab. The officers rejected that option because they thought they could get hurt given the suspect's history of violence. Do readers think that this would have been preferable, or that it should be constitutionally required? I've found this Ninth Circuit case suggesting that there isn't much of a difference, if any, but I am no expert on the question. I'm interested in the responses, so please feel free to comment.
Steve:
If a court orders the defendant to turn over documents in a criminal case, surely the police can't just show up at the defendant's house and take the documents.
6.4.2009 8:21pm
OrinKerr:
Steve,

It depends on whether the order is a search warrant or a subpoena.
6.4.2009 8:22pm
Terrivus:
Hey Prof. Kerr -- off-topic, but I notice that there hasn't been much coverage (blogs or MSM) of the NSA wiretapping opinion yesterday in N.D. Cal. upholding the constitutionality of the telecom immunity provisions so brutally fought over a year or so ago. Thought this might be up the VC's alley, especially with its curiously extensive discussion of the non-delegation doctrine -- which the court deemed a "close question"(!).
6.4.2009 8:24pm
ArthurKirkland:
When lesser police officers, a lesser prosecutor and a lesser judge confront an unusual circumstance, the result can be the series of events described by Mr. Kerr.

This chain required three weak links.
6.4.2009 8:29pm
TRE:
I'm uncomfortable with this since it strikes me as torture. Even if there was a warrant for some documents, I don't think the police should be able to say twist someone's arm until they produced the documents.
6.4.2009 8:30pm
Burt Likko (mail) (www):
I'm with TRE. The prosecutor and the police had already gone to court to get the suspect to submit to a non-violently obtained swab; they therefore knew they could go back. Deciding to tase the guy instead shocks the conscience. That which shocks the conscience should be presumptively unreasonable and therefore a Fourth Amendment violation.

(I briefly considered creating a new account with the login name "Don't Tase Me, Bro" but thought better of it.)
6.4.2009 8:35pm
OrinKerr:
I'm uncomfortable with this since it strikes me as torture. Even if there was a warrant for some documents, I don't think the police should be able to say twist someone's arm until they produced the documents.

Imagine the police have a warrant to arrest the target, and the target refuses to be arrested. Can the police twist the man's arm into the handcuffs?
6.4.2009 8:37pm
Owen Hutchins (mail):
Imagine if they have a court order for you to open your safe; can they torture you if you still refuse?

For goodness sake, you're supposed to be a lawyer.
6.4.2009 8:45pm
cboldt (mail):
OrinKerr: You speculate "the government sought and obtained an order, apparently based on a probable cause affidavit." How does that compare with a 4th amendment warrant on the one hand, and a subpoena on the other? It seems your take on the use of force turns on this suspicion/investigation distinction.
.
Assuming it's a 4th amendment warrant, the issue is fact specific. The police are entitled to use force to overcome resistance.
6.4.2009 8:48pm
Virginia Alum:
This is exactly the sort of reasoning that has led me to question this country's commitment to opposing torture--that is, when they can't blame the Bush White House for it. Clearly, the use of tasers have gotten way out of control, and have become simply an easy means for the police to accomplish their objectives, regardless of the pain inflicted on suspects. Prof. Kerr, I don't think you're asking the right question: The ability to effect an arrest--which is done for the officers safety--is an entirely different goal than carrying out a court order. The deliberate infliction of physical pain when a suspect poses no physical threat to the officer is a much different moral question, although I understand that you are approaching the matter from a doctrinal perspective.

At the end of the day, shocking someone in order to coerce or encourage them to follow the directives of the police when they pose no danger to the police or anyone is something that shocks my conscience.
6.4.2009 8:48pm
OrinKerr:
Virginia alum:
The ability to effect an arrest--which is done for the officers safety--is an entirely different goal than carrying out a court order.
Can you say why? An arrest is done to bring a suspect into police custody, not for officer safety purposes.

I'm curious what readers would think if the police instead chose to forcibly hold the man down and force open his mouth. The officers rejected that because they thought it was dangerous to the police. Do you think they should have been required to do that, or should that, too, have been illegal?
6.4.2009 8:52pm
OrinKerr:
Owen Hutchins
Imagine if they have a court order for you to open your safe; can they torture you if you still refuse?

For goodness sake, you're supposed to be a lawyer.
I assume this means that you feel sufficiently confident in your view that this is unlawful that you feel that someone who doesn't clearly agree with you is somehow either uninformed or acting in bad faith. If I am correct in understanding your state of mind, can you explain why you feel that way?
6.4.2009 8:58pm
whit:
for a near perfect example of the logical fallacy "begging the question", please refer to the above post:

Clearly, the use of tasers have gotten way out of control,
6.4.2009 8:58pm
Steve:
Well, since New York law seems quite clear that an order such as this is in the nature of a search warrant, I feel compelled to agree with Prof. Kerr's analysis. In fact, the leading case (In re Abe A., 56 N.Y.2d 288) makes quite clear that the search warrant process is the only legal method by which the state can force a suspect to provide bodily evidence.
6.4.2009 9:05pm
Gulf Coast Bandit (mail):
There's a typo on p. 9 of the opinion - a slip, perhaps?

"We are now called upon to determine the extremely sensitive issue of whether a suspect in Kidnapping and Armed Robbery cases can be "tased" to illicit compliance with a Court Order for a DNA swab.

One might say, if one disagreed with the Court's opinion, that use of the Taser was illicit, therefore it was actually "illicit compliance."

Homonyms aside, I completely concur with Virginia Alum. There was no need to tase the guy; it truly shocks the conscience.
6.4.2009 9:09pm
Brooks Lyman (mail):
Orin,

I'm with TRE, it looks like torture to me.

As for "the police twist[ing] the man's arm into the handcuffs," this is not (in my understanding of the procedure) what I would call torture: yes, the police are forcing the man's arm into a position that he does not want to place it, but (for most people) that position is not painful. Now, if the police twisted the man's arm in a painful manner until he consented to "voluntarily" place both wrists into the handcuffs, I would call that torture.

Now, in the case in question, what if the police had given the man a shot of a tranquilizing drug and then taken the DNA sample?

Off the main topic, I have always felt that we should be considering interrogation of suspected terrorists using drugs (or booze) combined with psychologically targeted questioning. One might get good intelligence quite quickly by these means, and while it may not meet the standards of the Geneva Accords for POW interrogation, it's certainly better (at least from a political and moral standpoint) than our current "enhanced interrogation' techniques.
6.4.2009 9:12pm
Chris12341:
As a lay person I would think the proper response would be to take him to the judge, threaten him with contempt of court, and if he still didn't comply, have him jailed until he did. Since when we decide it was acceptable to inflict pain to enforce court orders?
6.4.2009 9:13pm
LightCon:
The police are not justified in using the Taser unless the subject has already demonstrated himself to be a threat. The use of the Taser necessarily causes the subject pain. Holding the subject down (or strapping him down) and trying to take the swab, while it involves the use of force, only causes the subject pain if he chooses to fight, and therefore the police should try this approach first. The police assumption that the subject will fight, based on his behavior on previous occasions, is not sufficient to justify skipping that step. If the subject fights, then the police can reasonably use the Taser to protect themselves.
6.4.2009 9:14pm
OrinKerr:
As for "the police twist[ing] the man's arm into the handcuffs," this is not (in my understanding of the procedure) what I would call torture: yes, the police are forcing the man's arm into a position that he does not want to place it, but (for most people) that position is not painful. Now, if the police twisted the man's arm in a painful manner until he consented to "voluntarily" place both wrists into the handcuffs, I would call that torture.

Very interesting. Just to help us see your perspective, can you explain why?
6.4.2009 9:17pm
DennisN (mail):
OrinKerr:


I'm curious what readers would think if the police instead chose to forcibly hold the man down and force open his mouth. The officers rejected that because they thought it was dangerous to the police. Do you think they should have been required to do that, or should that, too, have been illegal?


There are other methods to obtain a DNA sample, besides prying open his mouth. A small blood sample would do the trick, and that can be obtained with minimal pain and no cooperation, using something like the lancets diabetics used to use to draw a drop of blood for testing.

You could confine him until he agrees. That's a time honored solution. It's not as if his DNA is time sensitive.

What if the Taser was not sufficient to force the person to comply, should they have been allowed to use more painful means? Whips? Red hot irons? Waterboarding? Punch him in the nose and collect the blood?


Owen Hutchins:


Imagine if they have a court order for you to open your safe; can they torture you if you still refuse?


Again, there are other methods to open a safe.

I'm not absolutely opposed to the use of torture, even extreme means, but it bloody well better be necessary. Neither of these examples comes close. I don't want to get into an argument over the subject of whether torture is ever justified, but I hope that it would be extremely rare, in any event.
6.4.2009 9:24pm
whit:
as for this torture thing...

claims by kunstler aside, there is ample justification for the police tactic of "pain compliance"

for example, if i am trying to arrest somebody, and they have both hands clasped together under them, i can use "pain compliance" (especially if i give a warning first) to get the person to release his grip, such as pressing the thumb into the nerve plexus between the back of the jaw and the ear. this method is taught as a method of pain compliance.

i'm not saying the tasing in this circumstance was justified (legally or from an "ick standpoint"). i am certainly not comfortable with it. however... the idea that the police cannot use pain to get compliance is simply wrong.

pain compliance. it's what's for breakfast.
6.4.2009 9:28pm
notaclue (mail):
Prof. Kerr, Brooks's and Lyman's comments pretty much explain themselves. To ask, "So why do you feel that way?" sounds to me like sophistry.

And now don't ask me why I feel that way.
6.4.2009 9:29pm
Frater Plotter:
This is almost Rochin v. California material, isn't it?

"[A] conviction which rests upon evidence of incriminating objects obtained from the body of the accused by physical abuse is as invalid as a conviction which rests upon a verbal confession extracted from him by such abuse."
6.4.2009 9:29pm
zippypinhead:
Wait a minute - there's a fundamental difference between an order and a warrant that should control the outcome here, even though both may be based on a showing of probable cause. A warrant authorizes the sworn officer to whom it's directed to seize something or someone. And reasonable (but not excessive) force may be employed to carry it the warrant's mandate. An order, on the other hand, directs the person to whom it's addressed (here, the suspect) to do an act or refrain from acting - in this case, to provide a DNA sample.

A court order to produce evidence directed to a suspect does NOT authorize the authorities to seize evidence from the suspect by force. The remedy for violation of an order is purely judicial - for example, a civil or criminal contempt proceeding, with an appropriate coercive or punitive remedy. Thus, a subpoena or other order compelling the production of evidence does not authorize that the evidence be seized by the authorities by force -- although that WOULD make subpoena enforcement much more interesting and "efficient!"

Bottom line: The police made a warrantless seizure, in apparent violation of the Fourth Amendment. Whether the evidence needs to be suppressed depends on several factors, including whether the good faith exception should apply. Possibly relevant -- the state probably wasn't limited to getting the DNA sample with an order to show cause. Unless N.Y. law is materially different than the jurisdiction(s) I'm familiar with, the state can apply for and obtain a warrant to seize physical evidence such as DNA, hair or blood. Thus, one could argue that the error in obtaining an order to show cause rather than a warrant is the sort of good-faith "clerical" mistake that triggers the good faith exception? [FWIW, I think that's a loser argument on these facts, but at least it would be worth making].
6.4.2009 9:31pm
Brooks Lyman (mail):
Orin,

I would have thought the matter was plain enough, but it seems to me, that while the usual "judicial" use of torture is (was, preferably) to elicit a confession or other intelligence information. Other uses - mainly criminal to one degree or other - would be to get the victim to open a safe or perform some action they don't wish to do (as in the instant case), or as a punishment ("cruel and unusual").

Granted, that police work sometimes requires the use of painful "come-along" holds to enforce an arrest, but this is presumably "in the heat of battle," so to speak. Forcing compliance with judicial orders (or police investigations) by the application of pain strikes me as being generally beyond the pale. I grant that in police work, there may be times when the line becomes ambiguous, but the instant case does not strike me as such an example.
6.4.2009 9:42pm
OrinKerr:
Notaclue writes:
Prof. Kerr, Brooks's and Lyman's comments pretty much explain themselves. To ask, "So why do you feel that way?" sounds to me like sophistry. And now don't ask me why I feel that way.
Let me try a somewhat different take. In a Ninth Circuit case from 1991, the Ninth Circuit concluded that it was reasonable in context to use "pain compliance techniques" to arrest protesters who were resisting arrest. According to the court,
The "pain compliance" policy provided for the police to use either "Orcutt Police Nonchakus" (OPNs) (two sticks of wood connected at one end by a cord, used to grip a demonstrator's wrist) or direct physical contact (firm grip, wrist-and arm-twisting, and pressure point holds)
The Ninth Circuit provided the following analysis in supporting the view that these "pain compliance techniques" were consistent with the Fourth Amendment
We think ample evidence supports the jury's conclusion that the officers acted reasonably in using pain compliance techniques to arrest the demonstrators. . ..

The evidence satisfies the Graham inquiry of reasonableness. First, the nature and quality of the intrusion upon the arrestees' personal security was less significant than most claims of force. The police did not threaten or use deadly force and did not deliver physical blows or cuts. Rather, the force consisted only of physical pressure administered on the demonstrators' limbs in increasing degrees, resulting in pain. Compare Eberle, 901 F.2d at 820 (reasonable as a matter of law to use a painful "finger control hold" to remove belligerent spectator from arena) with Hammer, 932 F.2d at 846 (unreasonable to forcibly extract blood against the will of arrestee who indicates a willingness to undergo alternative form of alcohol testing).

Second, the city clearly had a legitimate interest in quickly dispersing and removing lawbreakers with the least risk of injury to police and others. The arrestees were part of a group of more than 100 protesters operating in an organized and concerted effort to invade private property, obstruct business, and hinder law enforcement. Although many of these crimes were misdemeanors, the city's interest in preventing their widespread occurrence was significant: "[T]he wholesale commission of common state-law crimes creates dangers that are far from ordinary. Even in the context of political protest, persistent, organized, premeditated lawlessness menaces in a unique way the capacity of a State to maintain order and preserve the rights of its citizens." Bray, --- U.S. at ----, 113 S.Ct. at 769 (Kennedy, J., concurring). The city had a substantial interest in preventing the organized lawlessness conducted by the plaintiffs in this case, and the police were also justifiably concerned about the risk of injury to the medical staff, patients of the clinic, and other protesters. Id. at ----, 113 S.Ct. at 780 (O'Connor, J., dissenting).

Despite these governmental interests, the demonstrators argue that dragging and carrying was a more reasonable means of accomplishing the city's goals and therefore contend that any other method was excessive. Police officers, however, are not required to use the least intrusive degree of force possible. Rather, as stated above, the inquiry is whether the force that was used to effect a particular seizure was reasonable, viewing the facts from the perspective of a reasonable officer on the scene. See Graham, 490 U.S. at 396, 109 S.Ct. at 1871. Whether officers hypothetically could have used less painful, less injurious, or more effective force in executing an arrest is simply not the issue. See Hammer, 932 F.2d at 846.4
I understand some readers who feel; this issue is easy are not interested in explaining why, as the issue is believed to be self-evident and no explanation is necessary. To the extent some are interested in the discussion, I'd be interested in whether this Ninth Circuit decision is also wrong, whether it is distinguishable, etc.
6.4.2009 9:43pm
OrinKerr:
Oh, and I should make explicit what I would hope is obvious, but some readers may not follow -- that I am interested solely in the question of whether the technique used in this case is lawful or unlawful based on existing constitutional doctrine and precedent. I think it's obvious that there were less invasive procedures, and that it was unwise to do as the police did. The police acted badly. They should be told that this was bad. They should not do this again. Despite my agreement that this was a bad situation that the police handled poorly, I'm nonetheless interested in the legal question of whether this violated the fourth Amendment.
6.4.2009 9:49pm
whit:
as somebody who already brought up pain compliance, orin, i certainly think that there are circumstances where it is justified.

i think the primary difference between the case you mentioned and the case here is that there was no issue with delay, like in the case you mentioned. iow, there was no organized concerted effort, organized lawlessness, risk of the protest spreading, etc. etc. etc.

also, unlike (for example) a blood draw on a felony DUI, there is no danger of evidence dissipating, like it would with blood alcohol content.

again, i have not made up my mind whether or not the tasing was ok, but i think it is distinguishable from any # of cases i have used pain compliance (riot control, arrests etc.) and heard of it being used, and this case.
6.4.2009 9:51pm
Donald (mail) (www):
I had the same thought that Frater Plotter has expressed: that this scenario shouldn't be analyzed solely under the Fourth Amendment, but also the due process clause. It would seem problematic under Rochin. There was no urgency. The police should have gotten a court order to have this done by a doctor, under restraints and/or sedation if necessary.
6.4.2009 9:57pm
ArthurKirkland:
Bad judgment by the police officer. Bad judgment by the prosecutor. Bad judgment by the judge.

Plus a kindergarten-level botched handling of evidence.

I wonder whether any of the bad judgment that permeated this "adventures in law enforcement" episode generated a reprimand.
6.4.2009 9:59pm
OrinKerr:
Good point, whit. I agree that the time-pressure does make a difference; it is the key argument for the government's interest in the 9th Circuit case.
6.4.2009 9:59pm
Mahan Atma (mail):
"I'm nonetheless interested in the legal question of whether this violated the fourth Amendment."


Well isn't it at least a Due Process violation under the "shocks the conscience" standard? I would certainly hope so.
6.4.2009 10:01pm
zippypinhead:
Studying the opinion a bit closer, the logical flow the Judge employs is as follows:

1. Under state law an order to provide a DNA sample has to be supported by probable cause, and the method of collecting the sample has to be safe, reliable, and consistent with the Fourth Amendment, as "in the nature of a search warrant." op. at 5. Interestingly, if the order involves a bodily intrusion, it cannot be ex parte (even though the particular order here was). Id.

2. State law - and the Constitution - also authorize issuance of a warrant for the search of a person. And the law says reasonable force may be used to execute a search warrant. No need to exhaust judicial remedies first. Op. at 10.

3. Since search warrants are judged under a Fourth Amendment reasonableness standard, and it's OK to use reasonable force to seize evidence with a warrant, then it's also OK under the Fourth Amendment to do so with an order (even tho the order statute does not authorize use of force).

4. And since tazing' the bro' (and other pain compliance techniques) have been found to not be excessive force in other contexts and in other jurisdictions - especially where there are exigent circumstances or potential danger to the officers - it must be OK here, too. Op at 12-15.

Sorry, but the logic is underwhelming...
6.4.2009 10:10pm
Nick B (mail):
I think this is a perfect example of how so much bad precedent gets set. The Judge got shown an obvious scumbag, and the cops said "Please, let us jail him!" The Judge made the obvious choice, "Jail the scumbag."
I think had the police taken the sample *while* they tasered the victim they would have a good argument. "We chose to taser him so he could not assault us while we took the sample." This is not the method they chose. Instead they said "We will taser you until you comply." As intended, and as understood this could be translated "We will hurt you until you comply." Could someone explain how this could be something other than torture?
Nick
6.4.2009 10:14pm
Fub:
I'm inclined to agree with zippypinhead at 6.4.2009 9:31pm on the warrant / court order issue.

But the really outrageous thing about the case is that the cops didn't have to taze the guy, or waterboard him, or whatever, to get a DNA sample.

All they had to do was think up some reason to keep him at the station for a while and eventually offer him a cold drink, or a cigarette, or anything he'd put in his mouth and take out again. Suspect drinks, police swab the glass, saliva sample obtained. No muss. No fuss. Same chain of custody as a swab.

Why do it the hard way? Old age and treachery beats youth and enthusiasm -- at least in a situation like this one.
6.4.2009 10:15pm
Owen Hutchins (mail):
OrinKerr- I have to explain why it is wrong for the police to deliberately inflict pain in this sort of situation? How about you answer my question? Is it permissible for the authorities to torture someone into agreeing to comply with an order to perform an action? If a court orders you to produce documents within a certain time, and you fail to do so (or you do and they lose them), can they taze you until you do?
6.4.2009 10:17pm
hawkins:
Probably not a violation of the 4th Amendment. But they should be held civilly and criminally liable.
6.4.2009 10:22pm
IanQ:
I think the gut level reaction is that the police shouldn't use force - either by holding the suspect down or by using pain compliance - when all they're trying to do is obtain information from the suspect. They aren't under any time pressure and no one's safety is at risk. This accounts for (at least my) initial reaction that what the police did is wrong.

Once it's accepted that the police acted in poor judgment, I think the use of the taser may actually have been preferable to holding the suspect down (which I'm assuming would have been permissible(?)). Holding the suspect down apparently would have placed the police and maybe even the suspect at risk of harm (at least the police appeared to have thought so). The use of a low-level taser stun would (I think) be safer for all concerned.

Once it's accepted that a low level taser stun is OK, though, how far can it go? Would it have been permissible for the police to use escalating levels of taser shocks until the suspect complied?
6.4.2009 10:23pm
ShelbyC:
Huh. Putting asside the T-word, I wonder to what extent it makes that the tazing was punative? The tazing didn't directly get the evidence, it seems that they used the taser to punish him for not complying, so that he would comply to avoid more tazing, kinda like I get a speeding ticket so that I'll comply with the speed limit in the future.

We wouldn't allow this to happen as a punishment in the formal sense for violating the order, it seems there vas an eighth amendment violation and a due-process violation as well.
6.4.2009 10:35pm
David Schwartz (mail):
Fub: That would not have produced the type of DNA sample they want. They wanted a clean sample that would hold up in court, one taken by a clean, sterile swap and put immediately into a clean bag. A sample left on a cigarette or cup is not the same thing.
6.4.2009 10:40pm
whit:

I wonder to what extent it makes that the tazing was punative? The tazing didn't directly get the evidence, it seems that they used the taser to punish him for not complying


i see no evidence whatsoever for this to "seem" to be the case. what evidence are you referring to?
6.4.2009 10:41pm
David Schwartz (mail):
Second, the city clearly had a legitimate interest in quickly dispersing and removing lawbreakers with the least risk of injury to police and others.
Easily distinguishable. In this case, the police had an interest in rapidly solving a problem made by the people they used pain-compliance on. The people they used pain-compliance on were lawbreakers.

This is in no way comparable where the police want to compel a person to help them fix a case they botched. There was no rush in this case, they could have brought the suspect before a judge.

There is no way you can compare police action in the field dealing with lawbreakers and civil unrest with police desire to compel a bodily intrusion without having to take a suspect before a judge where nothing prevented them from doing so.

I'd be interested in whether this Ninth Circuit decision is also wrong, whether it is distinguishable, etc.
It's really not immediately obvious that these two cases have nothing to do with each other?
6.4.2009 10:44pm
Brian!:
Professor Kerr:


The police acted badly. They should be told that this was bad. They should not do this again.


I realize you've clearly stated you're interested in the legal questions (as opposed to policy implications), but:

What do you suppose will act as a disincentive for doing it again, if not suppression of the evidence?
6.4.2009 10:53pm
ShelbyC:

i see no evidence whatsoever for this to "seem" to be the case. what evidence are you referring to?


Well, to me something is punitive if it's deliberately making you're life tough to cause you to comply with the law. Your pain compliance stuff is probably "punitive" too, since you punish the guy with pain in order to get him to stop the punishment by complying. The linked case doen't address that issue, it talks about whether or not the force was "reasonable"
6.4.2009 11:03pm
Virginia Alum:

Can you say why? An arrest is done to bring a suspect into police custody, not for officer safety purposes.


To use the arm twisting example, I would argue that the arm twisting is done in order to get the suspect into handcuffs, which protects officer safety. If we didn't care about officer safety, we could simply bring most suspects down to the station without handcuffs. A big reason that force needs to be applied in an arrest is in order to incapacitate the individual so that he or she will not be able to hurt an officer.

Unless I'm mistaken, there's nothing inherent about the nature of an arrest that it must involve handcuffs. Warrants and pick-up orders simply authorize a police officer to bring in a suspect--with further inherent authorization for the officers to protect themselves in the process. From a moral, if not a doctrinal perspective, it is this officer safety rationale, I believe, that authorizes more extreme uses of force--not the mere fact that we wish to take the suspect into custody. (Think of the Catholic Doctrine of Dual Purposes: where one purpose is legitimate, but the other is not, we don't call the act illegimate.)

Of course, part of the rationale for the use of force is to effectuate the arrest warrant. I'm just saying that the methods that we authorize when a suspect is free and able to injure police officers or harm the public aren't necessarily the methods that we should authorize when a suspect is in custody or poses no threat to anyone.
6.4.2009 11:04pm
Ricardo (mail):
What do you suppose will act as a disincentive for doing it again, if not suppression of the evidence?

The same thing that acts as a disincentive against the police trying out their tasers on suspects for fun and entertainment: the threat of civil or criminal liability and administrative sanctions.

I also don't think the police acted well in this situation. I'm sure there are plenty of techniques for getting DNA samples from uncooperative people (especially by drawing blood which is more intrusive but wouldn't put officers in any danger). In general, it seems best to me to switch tactics and resort to pain compliance only as a last resort.
6.4.2009 11:06pm
Justin (mail):
In terms of forcing someone using a taser to do something he's legally obligated to do anyway, and there's no question about it - isn't this the PERFECT case for monetary damages and no suppression, from a policy standpoint? The police are in the same position they'd be in anyway, right?

Just random thoughts from someone too tired to think this through from a legal standpoint.
6.4.2009 11:09pm
LightCon:
It's important to keep in mind that a Taser is a weapon, not some clinical, painless, completely safe means of restraining someone. It's generally a nonlethal weapon (though there are a few cases where people died after being shocked with on) but nevertheless a weapon that inflicts pain and potentially causes injury. Therefore its use is only justified when police face a threat that cannot be stopped by direct physical restraint of the threatening subject.

Furthermore, to the extent that it achieves its intended purpose, a Taser suddenly paralyzes the subject. Such a violent removal of the subject's ability to control his own body, it seems to me, represents a kind of seizure of a person that poses a much greater Fourth Amendment concern than merely holding a person down long enough to swab the inside of his mouth.
6.4.2009 11:11pm
Gulf Coast Bandit (mail):
I have to wonder at Prof. Kerr wishing to separate the poor judgment of the police and the Fourth Amendment issue. It seems that they are inexorably linked.

The standard for excessive force "is whether the officer's actions are 'objectively reasonable in light of the facts and circumstances confronting them'." (p. 10)

The officers, it appears from the facts as delineated in the opinion, after attempting to cajole the defendant into submitting to the swab, immediately leap to force in order to coerce the defendant into submitting.

Force should be a last resort; there were and are far more reasonable options available, and the police showed incredibly poor judgment - unreasonable judgment - in not choosing one.

That's not entirely correct. They did choose one - after they tased the defendant! After the defendant was tased and the swab was taken, "the defendant was then placed under arrest on charges of Obstructing Governmental Administration for his refusal to submit to the court Order." (p. 9)

No force was necessary at all! Why did the police simply not arrest him to begin with? After all, he refused to submit - "obstructed governmental administration", if you will - before the tasing took place, not afterward.

The defendant would then be brought before a judge on this charge and the proper scenario, described on the bottom of page 9, would have played itself out.

The police had to know they could have arrested the defendant on an obstruction charge at any time after he refused the swab, because they did arrest the defendant on such a charge. The use of force was unnecessary. Because the use of force was unnecessary, it was excessive. Because the use of force was excessive, it was unreasonable.

Note 1: If the defendant had resisted, then force would have been justified. So far defendant had simply refused, without resisting.

Note 2: Where was defendant's lawyer? A reasonable person would not have felt free to leave the station, especially when the officer is telling you that you can leave if and only if you give the sample. I believe that means he was seized/detained/whatever term. Did the defendant waive his right to a lawyer at any point between his seizure and his tasing? If so, wouldn't that be a nice thing to put in the summary of events?
6.4.2009 11:17pm
ShelbyC:
What Justin said. To the extent exclusion is a remedy, it's not an appropriate remedy in this case, the state was entitled to the evidence, right?
6.4.2009 11:17pm
Justin (mail):
That ShelbyC agrees with me makes me realize I'm wrong.

;)
6.4.2009 11:18pm
KFischler (mail):

zippypinhead:
1. Under state law an order to provide a DNA sample has to be supported by probable cause, and the method of collecting the sample has to be safe, reliable, and consistent with the Fourth Amendment, as "in the nature of a search warrant." op. at 5. Interestingly, if the order involves a bodily intrusion, it cannot be ex parte (even though the particular order here was). Id.

FYI, the judicial directive was not the result of an ex parte proceeding. An Order to Show Cause is merely the procedural vehicle in New York whereby a party seeks to have a motion/application calendared -- usually because it wants the motion heard on shorter notice than the 10-13 days otherwise required by statute. An OTSC is merely a substitute for the usual Notice of Motion served with motion papers; it does not determine the merits of the underlying motion or application.

When presented to the court, an OTSC typically has blank spaces which are then filled in by the judge to (a) set the date and time on which the motion/application will be heard, (b) fix the date and time by which the moving party is to serve its papers upon the other parties, and (c) direct how service is to be made (typically personal service, not by mail or fax).

In this case, the defendant didn't show up in the Niagara County Court on the August 19 return date, specified in the OTSC, to argue against the DA's application. And at the later suppression hearing, he did not adduce any evidence which would explain his failure to appear on 8/19. Decision &Order, pp. 2, 4.
6.4.2009 11:24pm
Jon Roland (mail) (www):
What we have here is a line of precedents that leads to msking every warrant or court order a torture warrant.

It is a violation of due process because it is the disablement of a right (not to have pain inflicted on one) without a trial before a jury on proof beyond a reasonable doubt that the subject is guilty of a crime for which the penalty is torture.

What we have is extrajudicial punishment under cover of a court order for another purpose.

But such a penalty would itself be a violation of the "cruel and unusual" prohibition.

Can anyone spell "police state"?

Does anyone wonder why the Founders adopted the Second Amendment, or why there is an active militia movement?
6.4.2009 11:27pm
Mahan Atma (mail):
"The same thing that acts as a disincentive against the police trying out their tasers on suspects for fun and entertainment: the threat of civil or criminal liability and administrative sanctions."


Civil rights plaintiffs' lawyers know full well how empty this threat really is.

I'll gladly trade the exclusionary rule for the elimination of qualified immunity, Heck v. Humphrey, disingenuous applications of summary judgment, jaundiced prosecutors, and all the other mechanisms that effectively insulate the police from civil and criminal liability.

No deal? Didn't think so...
6.4.2009 11:30pm
ShelbyC:

That ShelbyC agrees with me makes me realize I'm wrong.


Now I know the trick
6.4.2009 11:32pm
devoman:
If the subject did not agree to comply after 2 seconds at the "stun" setting, could they then crank it up to 4 seconds at "medium" and then 8 seconds at "turbo"? I am curious what they would have done in that situation. Possibly, the answer to that is what they should have done in the first place.
6.4.2009 11:38pm
David Schwartz (mail):
In terms of forcing someone using a taser to do something he's legally obligated to do anyway, and there's no question about it - isn't this the PERFECT case for monetary damages and no suppression, from a policy standpoint? The police are in the same position they'd be in anyway, right?
We'll never know. There never was a court hearing over the legitimacy of the use of force to collect this evidence, and now it's moot. So we'll never know if he could have contested it.

Don't we reject arguments like "the police almost certainly would have been able to get a warrant had they applied for one"?
6.4.2009 11:42pm
A. Zarkov (mail):
devoman:

Exactly the question I had intended to pose. You beat me to it. Would the police have been authorized to induce whatever level of pain necessary to gain compliance?

How about this scenario. Suppose a judge orders someone to disclose the password necessary to decrypt the contents of a disk drive, and the subject refuses. Can we then legally induce increasing levels of pain until he discloses the password? Why would this situation be any different? Why not simply hold the subject in contempt?

This is the kind of activity used in brutal and despotic dictatorships such as the former USSR. How could this possibly be justified for an ordinary civil crime? How would this not be torture? With all the fuss about waterboarding terrorists, I can't understand how anyone could possibly condone such behavior.
6.4.2009 11:53pm
whit:

Well, to me something is punitive if it's deliberately making you're life tough to cause you to comply with the law. Your pain compliance stuff is probably "punitive" too, since you punish the guy with pain in order to get him to stop the punishment by complying. The linked case doen't address that issue, it talks about whether or not the force was "reasonable


um, no.

that's NOT what punitive means. if your intent is to gain compliance, then it is NOT punitive.

fwiw, cops can never use force for punitive reasons. yet, pain compliance is (in certain circumstances) legal. why? because in those circumstances it is NOT punitive.

if the purpose of the force is to gain compliance, and NOT to punish him for pissing the cop off, then it is not punitive.

it has the same effect on the subject - it hurts - but that's irrelevant

there's this pesky little thing in law called "intent".
6.4.2009 11:57pm
ShelbyC:

Why not simply hold the subject in contempt?


Even with a holding of contempt it would be difficult to imagine a judge using tasing to comply with a court order. Here the cops did it without a holding of contempt.
6.4.2009 11:59pm
whit:

It's important to keep in mind that a Taser is a weapon, not some clinical, painless, completely safe means of restraining someone. It's generally a nonlethal weapon (though there are a few cases where people died after being shocked with on) but nevertheless a weapon that inflicts pain and potentially causes injury. Therefore its use is only justified when police face a threat that cannot be stopped by direct physical restraint of the threatening subject.


that's false. tasers are justified by the "reasonableness" standard. as orin has already pointed out (and is a fact of law), reasonable force is not the absolute lowest level of force that will work in a given situation. iow, if a lower level of force would have worked, that does not mean automatically that the higher level is unjustified. we don't require police to parse at that high a resolution.

we have specific use of force guidelines (that vary somewhat from agency to agency) as to when a taser is justified per UOF policy. in no cases is the metric you claim the one that is used. nor should it be. that would be an impossible standard.


Furthermore, to the extent that it achieves its intended purpose, a Taser suddenly paralyzes the subject. Such a violent removal of the subject's ability to control his own body, it seems to me, represents a kind of seizure of a person that poses a much greater Fourth Amendment concern than merely holding a person down long enough to swab the inside of his mouth


this is also false. you are 2 for 2. the taser in DRIVE STUN MODE, which is what was used here, does NOT paralyze the subject. the drive stun mode means the two contacts are very close together, thus there is a minimal amount of muscle mass affected. drive stun is STRICTLY a pain compliance technique, as OPPOSED TO a standard taser application where the distance between the darts effectively incapacitates the subject by tying up a significant portion of his body (neuromuscularly).

i have been both drive stunned and "classic" tased.

i am also a reasonably capable athlete (national level strength athlete). i was COMPLETELY incapacitated by the latter tase, where one dart was shot into my right shoulder, and then a drive (with the other contact) was given to my left shin. this meant the circuit ran from my lower left calf to my right shoulder. effectively incapacitating me (to put it mildly). a standard taser application has less distance (it's usually about 15 inches) and is effective for the same reason - neuromuscular incapacitation.

i have been drive stunned. there was NO incapacitation. just pain
6.5.2009 12:06am
JC (mail):
"[T]o the extent that it achieves its intended purpose, a Taser suddenly paralyzes the subject. Such a violent removal of the subject's ability to control his own body, it seems to me, represents a kind of seizure of a person that poses a much greater Fourth Amendment concern than merely holding a person down long enough to swab the inside of his mouth." I concur with LightCon's sentiment.

As far as distinguishing this case from the 9th Circuit case, there is the lack of time-sensitivity, discussed above, and the (related) fact that the suspect did not pose a "risk of injury to police and others" (he was in police custody already).
6.5.2009 12:11am
whit:

That's not entirely correct. They did choose one - after they tased the defendant! After the defendant was tased and the swab was taken, "the defendant was then placed under arrest on charges of Obstructing Governmental Administration for his refusal to submit to the court Order." (p. 9)

No force was necessary at all! Why did the police simply not arrest him to begin with? After all, he refused to submit - "obstructed governmental administration", if you will - before the tasing took place, not afterward.

The defendant would then be brought before a judge on this charge and the proper scenario, described on the bottom of page 9, would have played itself out.



this is an excellent analysis. iow, i agree with it :)

seriously, i simply cannot fathom why these cops didn't simply ARREST the guy for refusing to comply with the order.

there was NO reason to go "stampeding towards the taser" to borrow a phrase from monty python and AMPLE reason not to.

i have certainly seen some pretty hilarious/disturbing incidents of poor judgment in my career, but i cannot imagine anybody i work with ever tasing a guy to force him to give a DNA sample in a NON-exigent situation.
6.5.2009 12:12am
whit:

I concur with LightCon's sentiment


JC, read my previous post. a drive stun does NOT incapacitate a person. it is distinghuishable in that respect from a classic taser application. it's SOLE effectiveness lies in the fact that it causes pain. NOT incapacitation
6.5.2009 12:13am
JC (mail):
whit: I stand corrected on the effect of the "drive stun." My conclusion is still the same, based on the second part of my previous post and the what you discuss here. Thank you for the clarification though.
6.5.2009 12:42am
A. Zarkov (mail):
I refer VC readers to the Gulag Archipelago, Vol. 3, Part V, Chapter 6-- The Committed Escaper. This chapter tells the story of Georgi Pavlovich Tenno. This man stood down his torturers. He was brought to the infamous Lefortovo Prison. His interrogator Anatoly Levshin threatened him and advanced. Tenno stood his ground
Look my life's worth nothing anyway! But I can gouge out one or both of your eyes right now.

The interrogator retreated.
You can read the whole section here. This is how free men stand up to a tyrannical state. Tenno would not have let himself be tased into submission either. What would our American equivalents of the Soviet security organs do with such a person?

The police and the judge need to be punished for this outrage.
6.5.2009 12:43am
nicehonesty:
To review:

Waterboarding = simulated drowning = TORTURE!!!! = FALSE CONFESSION!!!! = WAR CRIME!!!!

but,

Tasering = simulated electrocution = judicially approved method of forcing a reluctant citizen to provide self-incriminating evidence of a non-time-sensitive nature
6.5.2009 12:45am
JC (mail):
which, I should add, to give proper credit, comes from Gulf Coast Bandit here
6.5.2009 12:45am
David Schwartz (mail):
nicehonesty: So long as the judge was both tasered and waterboarded and could make a fair comparison, I don't see the problem.
6.5.2009 1:13am
one of many:
I'm not certain where but there must be a distinction between pain inflicted incidental to taking someone into custody and pain inflicted to cause someone to take action other than incident to arrest.

In theory arrest is only permitted because of necessity, there is some reason why allowing the arrested person to remain at large would be a bad idea. The necessity of making an arrest "forces" police into a situation where they are at some risk.

Not certain where to go from here, perhaps someone else can develop this line of thought. I dislike the courts reasoning here though, if we follow it to its logical conclusion then surely there is no bar to beating confessions out of suspects with rubber hoses, as long as some pretext of officer safety can be invoked.
6.5.2009 3:26am
whit:
i've been tased. haven't been waterboarded. being tased kind of sucks, but it really isn't that bad.

the closest i have come to waterboarding is getting held under by a close out set, which happened to me many many many times when i was a young hawaii surfer punk (tm).


JC: i think we are on the same page. i cannot say conclusively that what the cops did was illegal, but it was very stupid, and simply incomprehensible to me/.
6.5.2009 3:28am
zippypinhead:
In this case, the defendant didn't show up in the Niagara County Court on the August 19 return date, specified in the OTSC, to argue against the DA's application. And at the later suppression hearing, he did not adduce any evidence which would explain his failure to appear on 8/19. Decision &Order, pp. 2, 4.
But that was the August 22 order for the FIRST sample - which the defendant complied with. After that sample was botched, a second, ex parte order was issued on September 25, which is the order at issue here. And that is why the Judge went to such great pains to impute notice from the first order to the second. Op. at 6-7. But at the opinion notes, notice and an opportunity to defend is required by statute, Op. at 5, which notwithstanding the Judge's creative attempt to impute from a previous order that had been complied with, simply did not occur here.

This case is reversal-bait on sooooo many grounds... not just Fourth Amendment ones.
6.5.2009 4:05am
bushbasher:
"I'm interested in but uncertain about the idea that there is a Fourth Amendment difference between threatening or using force to get a suspect to do something and using force to make them."

really? so it's similarly o.k. if the cops whack him around the head a few times, until he "agrees" to the swab? how many whacks? how hard? hows about a little water? why not?
6.5.2009 6:27am
Largo (mail):
whit: if the purpose of the force is to gain compliance, and NOT to punish him for pissing the cop off, then it is not punitive. ... [T]here's this pesky little thing in law called "intent".

I wonder about this in light of the phrase "punitive damages" in civil law. If the purpose (or a purpose) of such damages can be accurately described as [1] "to gain the future compliance of a party wrt to some civil law": then, in this context, "punitive" relates to intent in a way different from your analysis.

(I recognize that context may mean everything here, especially if the phrases are distinct terms of art. I also have no idea whether whether or not my description of the purpose of "punitive damages" is accurate in any legal sense.)
6.5.2009 6:33am
Jon Roland (mail) (www):
one of many:

In theory arrest is only permitted because of necessity, there is some reason why allowing the arrested person to remain at large would be a bad idea.

You are talking about custodial arrest. An arrest doesn't have to be custodial. An arrest is essentially the delivery of notice of a charge. Taking into custody is more properly called "detention", which can also be done without arrest, in principle.

The definition of "punishment" is surprisingly ambiguous in legal practice. I would define it as "deprivation of life, limb, liberty, or property, either in retribution for an offense, or to deter further offense." Deprivation of property to compensate another for damages is not considered punitive.

"Limb" would include infliction of pain, as well as lopping off body parts.

As for "punitive damages", I regard them as a due process violation if not determined by the same standards and procedures as a criminal trial. It is not a violation to combine civil and criminal in the same trial, but history has shown the two types of proceeding don't work well in combination.
6.5.2009 9:05am
Tom Gardner:
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.


I'm not sure whether this decision in People v Brown (Sup. Ct. Queens; 2002) is good law, but it seems to strongly distinguish the order to show cause procedure from a warrant procedure:
 . . .

For the reasons stated below, I am precluding the People from introducing any evidence obtained as a result of the search warrant. I am not, however, dismissing the indictment.

The transitional period while a case is pending on a felony complaint and before an indictment is filed is a “legal black hole” in the criminal procedure law. There are few actions a local criminal court can take at this period in the life of a case. Clearly, as the People correctly contend, there can be no court ordered discovery for any party under CPL article 240 where the only accusatory instrument pending is a felony complaint.

Two options exist in order to obtain non-testimonial evidence.

1) Pursuant to the Matter of Abe A, 56 NY2d 288, the People may proceed by a noticed order to show cause; or

2) The People may seek to proceed by way of a search warrant, which is, by its definition, an ex parte application.

In my opinion, either of these options is legally permissible.

The few cases in this area, (See, In the Matter of Santucci, 117 Misc.2d 500; People v. Coleman, 43 NY2d 222; and People v. Smith, 134 AD2d 465), suggest that where an accusatory instrument has been filed and a defendant is represented by counsel that the People should proceed by way of a show cause order, and be held to the standards of Abe A, supra. I find these cases persuasive and, in this case, choose to follow them. However, nothing in this decision should be construed as an absolute bar to the People from utilizing a search warrant to obtain such non-testimonial evidence under appropriate circumstances. The need for an ex parte order should be contained in the affidavit in support of the warrant in the same fashion and manner as a “night time provision” or “no knock” provision. Also, while I am suppressing the use of the DNA evidence obtained in this case I am not precluding the People from seeking the same evidence through another appropriate motion or procedure.

 . . .


More research is needed.

In general, I'd tend to agree that the exact form of the order matters in this present case. An order commanding Mr Smith to comply with the DNA collection is distinct from an order commanding peace officers to bring the DNA to the court. The distinction matters.
6.5.2009 9:27am
ShelbyC:

The definition of "punishment" is surprisingly ambiguous in legal practice. I would define it as "deprivation of life, limb, liberty, or property, either in retribution for an offense, or to deter further offense." Deprivation of property to compensate another for damages is not considered punitive.



I think this is basically administering pain to deter further offence, but you described punishment way better than I did.

Whit, I agree that pain compliance in exigant circumstances is a different issues, but in the absence of such circumstances, isn't this basically like flogging someone until they comply with a court order?
6.5.2009 9:28am
Sid the warmonger (mail) (www):
First, tasing is not a physical percursor to death. Being morbidly obese, having a lethal amount of drugs in your system, having a heart (or other physical condition) ailment can lead to death after tasing, but only because physically getting arrested would have triggered the death. Tasing causes pain. Not physical death. If not for tasers, then get ready for a return of the old days when black eyes and fractured skulls are the norm. Law enforcement officers use tasers as a non-lethal tool.

The taser is lethal is a red herring.

Second, the police officers called the ADA. They sought legal guidance. They followed the legal guidance of the attorney. Yes, they should not be given blanket immunity. But the cops behaving badly meme is running ragged. They had the presence of mind to call an attorney for legal guidance and chose a path that had very little physical risk for the suspect or themselves.

Third, answer this hypothetical - we go back in time and the police follow a more legally defined path. They bring the suspect in and have whatever technically valid documents and judical ruling necessary. He refuses. What methods and procedures would we want them to use? How long would we want them to hold him? Can 6 cops physically force him down on a gurney and strap him? Can they wedge his mouth open with an intrusion clamp? Can they use police batons on his extremities if he refuses to get on the gurney or open his mouth? Should they just lock him up in a cell until he voluntarily complies by opening his mouth for the swab?

Don't skip that hypothetical.

I am not a lawyer. I realize and appreciate that Prof Kerr is pursuing a valid legal question. Please continue with the debate about that pointed interest.

But grow up. Leave the cops behaving badly for a moment when the cops are actually behaving badly.

Should the ADA and judge be debarred? Should the victims have a right to sue the ADA and judge?

Contemplate this for a moment - in the movie "A Few Good Men", who was the most negligent and actually started the events that lead to PFC Santiago's death? Was it the COL, was it the fellow Marines, or was it the Navy doctor?
6.5.2009 9:35am
Carl B.:
I'm surprised at the controversy noted in Oren's added comment. Anyone who has been involved in such cases (indeed, anyone who gives it a moments thought) would realize that using a threat to coerce compliance reduces the risk of physical injury by several orders of magnitude. Police are authorized to use force directly against the suspect, but if you've ever done that (as I have on a dozen occasions or more), you know that serious injuries to the suspect or the officers are almost inevitable. In a weapon-less "wrestling match" with a determined suspect, someone almost always suffers injuries, usually serious injuries. At least, that was my experience based on a dozen or so instances - torn ligaments, broken bones, permanent eye injuries, etc.

The officers have no obligation to expose themselves to that risk, and they show good judgment when they minimize that risk for the suspect. I don't see how anyone would even think that's a close question.

I'm also struck by the opinion that it would have been preferable to take the suspect before the judge who issued the order. About four years ago, I defended a section 1983 case in which officers had done that, and the suspect/plaintiff then alleged that taking him before the court was a prolongation of the seizure not authorized by the warrant. The judge in the civil case agreed, but ruled in the officers' favor only on grounds of qualified immunity. These truly are "damned if you do, damned if you don't" situations.
6.5.2009 9:37am
OrinKerr:
I had written:"
I'm interested in but uncertain about the idea that there is a Fourth Amendment difference between threatening or using force to get a suspect to do something and using force to make them.

bushbasher responds:
really? so it's similarly o.k. if the cops whack him around the head a few times, until he "agrees" to the swab? how many whacks? how hard? hows about a little water? why not?
The doctrine at issue here is called excessive force: I assume we would all agree that there is a critical difference between a small amount of force and a large amount of force that is relevant to an excessive force claim. On the other hand, it's less clear to me that excessive force law automatically rules out the threat or use of pain to encourage a person to comply with a court order. Maybe it should, and maybe it does, based on cases I haven't seen yet, but that's the question that at least so far I'm not sure has an obvious answer.
6.5.2009 10:00am
ctd:
Here's a twist I'd like answered:

I have a pacemaker. Being on the receiving end of a Tazer would probably kill me.
How does that change the legal dynamics of this situation?
6.5.2009 10:12am
ShelbyC:

The doctrine at issue here is called excessive force: I assume we would all agree that there is a critical difference between a small amount of force and a large amount of force that is relevant to an excessive force claim. On the other hand, it's less clear to me that excessive force law automatically rules out the threat or use of pain to encourage a person to comply with a court order.


I think it's also the purpose of the force. If someone refuses to testify when ordered, isn't there a difference between using force to put someone in a jail cell untill they agree to testify, and using the same amount of force to cause pain untill they agree?

But to answer you question, I don't think this difference affects 4th amendment rights, I think it affects 8th amendment rights.
6.5.2009 10:16am
Bob from Ohio (mail):

gladly trade the exclusionary rule for the elimination of qualified immunity, Heck v. Humphrey, disingenuous applications of summary judgment, jaundiced prosecutors, and all the other mechanisms that effectively insulate the police from civil and criminal liability.


I'd take that trade. The exclusionary rule punishes society and provides no incentive to remedy bad police behavior.

Let the evidence in but punish the police.

(BTW, I realize the law rejects this, but I have always though that blood tests, breath tests and other such things are a 5th Amendment violation--you are giving evidence against yourself. The fact that it is your body makes it different from the gun you stashed in the basement. No search warrant or other device should compel what is more like testimony than a search for evidence.)
6.5.2009 10:44am
R Nebblesworth:
ShelbyC: If someone refuses to testify when ordered, isn't there a difference between using force to put someone in a jail cell untill they agree to testify, and using the same amount of force to cause pain untill they agree?

I think that hits the distinction dead on. The government can deprive of your life, liberty, and property to get you to comply with the laws or punish you once you've broken them. There is something about using the threat of pain, and actual pain, to get compliance in this situation which is different from using it to get a suspect into handcuffs or to disperse protesters, for example. It's a little Soviet Russia-ish for me; after all what if this guy took the taser stun and kept refusing? Could they switch to waterboarding... or why not just beat the hell out of him or tranquilize him? Seems like a slippery slope.
6.5.2009 10:50am
R Nebblesworth (mail):
How about expanding this technique to reticent witnesses and deponents? Just put some electrodes in the chair and give 'em a zap whenever they get a little too "non-compliant".
6.5.2009 11:12am
oneal lane (mail):
Coming to your local community. Beware the "goon squads,"
sorry, I mean the local police.
6.5.2009 11:14am
David M. Nieporent (www):
Should they just lock him up in a cell until he voluntarily complies by opening his mouth for the swab?
I think, given the lack of time-sensitivity of the matter, that this is the right approach, yes.

The hard case comes when it is time-sensitive, and so you can't wait for voluntary compliance.
6.5.2009 11:16am
ShelbyC:

Let the evidence in but punish the police.


Punish the police? But how's the cop supposed to know beforehand which big long legal brief the trial judge and all the appealate judges are going to find more convincing?
6.5.2009 11:27am
mooglar (mail):
Though I am from Ohio myself, I don't think I have ever agreed with Bob from Ohio before. But I do think, unfortunately, that this discussion, while relevant in a legal sense, is sort of like rearranging the deck chairs on the Titanic. The problem is the precedent that blood, DNA, and breath tests do not run afoul of the 5th Amendment. Once one's own bodily fluids are seen as "evidence" to be obtained with a warrant, one loses the right to bodily integrity upon which, I would argue, all other rights depend. It is the mistaken idea that the government has a right to violate one's body to obtain "evidence" that results in absurd situations like this one. How can the State's right to gather evidence of a crime trump the right to bodily integrity of a person who is, after all, at least in theory, innocent until proven guilty?

(And yes, like Bob from Ohio, I realize this is settled law and that it is irrelevant to what Professor Kerr is interested in, but really, what rights do we really have if we don't have the right not to give up parts of our bodies to the government when demanded?)

Also, the question of people with pacemakers who might be killed by being tasered is not trivial. Can the government really put your life -- remember, an innocent life until proven otherwise -- in danger in order to force you into giving up your bodily integrity? The difference between this and the government taking out a warrant on a "pound of flesh" is less a difference in kind than in degree.

I also find it particularly hypocritical that the government, and DAs in particular, so often drag its feet and attempts to impede any effort by inmates to prove their innocence through DNA testing, but at the same time asserts the right to take DNA samples by force and "pain compliance." How can a society be considered just when a person can be tasered to force him to comply with a second order to give up his bodily integrity (how many times can they come back, anyway? Infinite? Does one's right not to have the government put its hand in your mouth ever outweigh the government's right to put it there?) but a wrongly convicted person can be denied the opportunity to prove his or her innocence with the same type of evidence?

Anyway, on the legal question, the idea that civil penalties and criminal sanction will prevent 4th Amendment abuses has already been proven untrue. The whole reason the exclusionary rule was put into place was the fact that civil penalties and criminal sanctions against the government and its agents did nothing to deter such behavior. The difficulty of bringing such a suit, of winning it in the face of "qualified immunity" and also the tendency of judges and juries to believe police and agents of the government over convicted criminals, means that the police know the odds of anything bad happening to them for violating a citizen's 4th Amdendment rights are slim and none. Only through the exclusionary rule -- not as currently applied, that is to say, not applied, but a broadly applied exclusionary rule -- can act as a deterrent, because it deprives the government and its agents of any reward for such violations.

To get the heart of Professor Kerr's question, though, as the law stands, this was likely not a 4th Amendment violation. But, then, I would contend that this is simply an indication that 4th Amendment rights have gone the way of the Dodo bird.
6.5.2009 11:28am
B.A. Baracus (mail):
Brian!


What do you suppose will act as a disincentive for doing it again, if not suppression of the evidence?


There can be any number of disincentives, such as policy department policy against such action, department sanctions for failure to comply with such policy, etc. that do not require the nuclear option of suppression of evidence. It is not the case that every police action that violates police protocol and which can lead to sanctions against the officer so acting does (or should) also require suppression of the evidence thereby obtained.

It seems some commenters insist on misinterpreting Prof. Kerr's question by suggesting that he means that this type of action should be replicated, or even expanded (e.g. Nebblesworth's comment re: electrodes in a witness chair). While these statements are presumably hyperbolic and intended merely to emphasize the commenter's underlying belief that indeed, the actions of the officers here are a violation of the Fourth Amendment that requires suppression of the evidence, mere rhetorical flourish does not convincingly make my point. To my mind there is certainly an argument to be made that finding a Fourth Amendment violation and thus suppressing this evidence would indeed be the incorrect outcome. While there are surely less offensive and aggressive means by which the police could, and should, have obtained the DNA (as Prof. Kerr has repeatedly agreed) there are likewise far less offensive and aggressive ways to prevent the recurrence of this type of behavior than finding a 4th Amendment violation/suppression of the evidence.
6.5.2009 11:37am
B.A. Baracus (mail):
I meant mere rhetorical flourish does not convincingly make that point.
6.5.2009 11:38am
Philistine (mail):
Professor Kerr:


," I'm interested in but uncertain about the idea that there is a Fourth Amendment difference between threatening or using force to get a suspect to do something and using force to make them. In particular, the option the officers faced in this case was holding down the suspect and forcing his mouth open to do the swab. The officers rejected that option because they thought they could get hurt given the suspect's history of violence. Do readers think that this would have been preferable, or that it should be constitutionally required? I've found this Ninth Circuit case suggesting that there isn't much of a difference, if any, but I am no expert on the question. I'm interested in the responses, so please feel free to comment.


I found the dissent in the 9th Circuit case more compelling--and it was particularly significant that the procedural posture was reviewing a jury verdict which found the force used to be non-excessive. As Judge Kleinfelter argued in dissent:


Before explaining my reasons for dissenting, I shall point out some important things we have not decided. First, we have not decided that pain compliance techniques are constitutionally permissible as a matter of law. We have done no more than let a jury verdict stand because there was evidence on which the majority believes rational jurors could have based a verdict. The identical facts could easily have resulted in substantial damages awards which would have been upheld on the same principles which led to the affirmance in this case. Municipal officials would be mistaken to think that this decision approves the use of pain compliance on Operation Rescue demonstrators.


I also thought Hickey v. Reeder (cited by the NY Judge) was more analagous (though there was no judicial order there, so it is distinguishable).

From a "shocks the conscience" point of view--I can't imagine that a judge could enter an equivalent order--"I order that he be tasered until he agrees to submit to testing." OTOH, an order that he be held down and a sample be taken forcibly (presumbaly through blood draw) might actually result in greater pain and injury than the tasering into compliance, but to me there is a fundamental distinction between using pain to effect an arrest, or respond to violent resistance than using pain to force compliance with directions.

The law doesn't seem well-developed on this issue, as most cases appear to involve force which is used to actually effect the seizure, whether arrest, or holding them down and taking blood.
6.5.2009 11:44am
ShelbyC:

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.


I am also completely ignorant of the distinction between a court order to submit to a buccal swab and a warrant. The order just means the guy had to open his mouth, right? Is there a distinction for 4th ammendment purposes between going into the guys mouth when its open and siezing DNA and forcing his mouth open to sieze DNA? You'd think you'd need a warant in either case, right? I'm not sure why there's a fourth amendment issue at all.
6.5.2009 11:52am
zippypinhead:
it's less clear to me that excessive force law automatically rules out the threat or use of pain to encourage a person to comply with a court order. Maybe it should, and maybe it does, based on cases I haven't seen yet, but that's the question that at least so far I'm not sure has an obvious answer.
On the assumption there's not much law on point (caveat: an assumption based on precisely zero research), it strikes me in the Fourth or Fifth Amendment context, the answer basically depends on a standard voluntaryness analysis: In eliciting a confession during interrogation, one would presumably look to whether the threat or infliction of pain, without more, was sufficient to make the confession involuntary. Which is undoubtedly a very fact-based inquiry: in the "threat" context, merely making a verbal threat or even brandishing (but not using) a tazer or a gun may be different from, say, holding the gun to the head of the suspect's child and threating to pull the trigger if the suspect didn't confess. And in the evidence-gathering context, where does the threat or the infliction of pain cross over to make the suspect's production or consent to search involuntary?
6.5.2009 11:54am
Jon Roland (mail) (www):
Bob from Ohio:

Let the evidence in but punish the police.

That could only work if we opened the courts to private criminal prosecutions, which used to be the norm before the late 19th century. Public prosecutors are not going to make serious, good faith prosecutions of police, unless there is a strong public clamor for it. Cops, public prosecutors, and judges have become a self-protecting tribe that stands in opposition to the general public.
6.5.2009 12:00pm
bushbasher:
"On the other hand, it's less clear to me that excessive force law automatically rules out the threat or use of pain to encourage a person to comply with a court order."

that's incredible. let's not dwell on your somewhat orwellian phrasing. ("encourage"?). the idea that the deliberate application of pain is "reasonable" is simply barbaric. you can argue whether the judge was legally right or wrong in his ruling. but the ruling is barbarism.

but then, we're talking about a legal system which doesn't regard capital punishment as cruel. and a country which discusses the reasonableness of torture in mannered tones. so, a little more barbarism is really neither here nor there.
6.5.2009 12:01pm
Jon Roland (mail) (www):
ShelbyC:

Let the evidence in but punish the police.

Punish the police? But how's the cop supposed to know beforehand which big long legal brief the trial judge and all the appealate judges are going to find more convincing?

How is anyone who is expected to obey the law? Cops need to be trained in the law, with at least a college degree and a year of law school. Indeed, that is almost a necessity for any citizen to function in this country today. In particular, living under a Constitution means everyone needs to be a expert on it, and resolve conflicts of law involving the Constitution without relying on judges, supervisors, or legal advisers. We are all on our own, ready or not.
6.5.2009 12:08pm
Fub:
David Schwartz wrote at 6.4.2009 10:40pm:
Fub: That would not have produced the type of DNA sample they want. They wanted a clean sample that would hold up in court, one taken by a clean, sterile swap and put immediately into a clean bag. A sample left on a cigarette or cup is not the same thing.
People have been convicted by DNA samples taken from cups, cigarette butts, etc. Therefore "what they wanted" was only a matter of form, not substance. "They wanted" the guy to keep giving DNA samples until they managed to not screw up a sample.

Maybe if he had volunteered to deliver the sample to the right lab for them they wouldn't have tazed him.

Fact is that if they had obtained by stealth what they were entitled to obtain by the court order, they could have continued to enforce the court order by regular means (frex: the court could order him jailed until he complied), and still have a sample that would hold up in court as basis for charges in the original crime. They'd get a twofer.

But that would have required thinking of something besides immediately gratifying the desire to show the peons who is boss.
6.5.2009 12:11pm
ShelbyC:

How is anyone who is expected to obey the law?


Well, it seems that criminally proscribing "unresonable search and siezure" would be unconstitutionally vague, right? But that is the standard that the govt is held to under the 4A. So have the cops do their best, and if they get is wrong, use exclusion as a remedy. Exclusion, when appropriate, doesn't allow any more guilty folks to go free than an effective deterant would, right?
6.5.2009 12:14pm
Philistine (mail):

People have been convicted by DNA samples taken from cups, cigarette butts, etc. Therefore "what they wanted" was only a matter of form, not substance. "They wanted" the guy to keep giving DNA samples until they managed to not screw up a sample.



FWIW, the DNA that was compared with that from his swab came from a soda can and a glove.
6.5.2009 12:17pm
Tom Gardner:
I am also completely ignorant of the distinction between a court order to submit to a buccal swab and a warrant.


An order directed to a peace officer, commanding him to seize persons or propertie grants immunity(*) to that peace officer for trespasses and batteries.

(*) Subject to a lot of finer points and caveats.

An order directed to a person, compelling him to submit to some procedure, might perhaps grant that compelled person some immunity for any trespass reasonably necessary for compliance with the court's order.
6.5.2009 12:37pm
levisbaby:
Torture works - what's the problem? A prosecutor said it was okay.
6.5.2009 12:43pm
OrinKerr:
I wrote:
On the other hand, it's less clear to me that excessive force law automatically rules out the threat or use of pain to encourage a person to comply with a court order."
Bushbasher responds:
that's incredible. let's not dwell on your somewhat orwellian phrasing. ("encourage"?). the idea that the deliberate application of pain is "reasonable" is simply barbaric. you can argue whether the judge was legally right or wrong in his ruling. but the ruling is barbarism.
I think it's pretty clear from the post and the comment thread that I am just considering whether the judge was legally right or wrong. The question is what excessive force law allows; there are precedents allowing the intentional infliction of pain as a method of compliance (as the cases term it), and I am wondering how the case law applies to these facts. This does not mean that I personally find it reasonable, that I like it, or that I want to share a ham on rye with the police officer. It just means that the law here is actually sort of murky.


Bushbasher responded:
6.5.2009 1:07pm
Bob from Ohio (mail):
Punishment of police does not necessarily mean criminal punishment. Dismissal from the force and civil liability are punishment too. You'd haveto get rid of "qualified immunity" at the least.


But how's the cop supposed to know beforehand which big long legal brief the trial judge and all the appealate judges are going to find more convincing?


That is only a problem at the margins. Most of the time, it is pretty clear that what was done was wrong.

Its like the lay person may not know the details of insider trading laws but certainly knows he can't break into a house and steal stuff.

Police are enforcing law, they should know how to conform their own behavior too in most cases. If they can't, get better police.
6.5.2009 1:39pm
Robin (mail):
Why didn't they just shoot (stab) the guy and mop up the blood? Same thing isn't it?

Seems like a business opportunity emerging here to supply courts with witness stands all wired up. If the witness won't answer a question, just hit the ol' COMPLY button. No need to delay the trial while they cool their heels in jail on contempt charges.
6.5.2009 1:41pm
ShelbyC:

You'd have to get rid of "qualified immunity" at the least

But how's the cop supposed to know beforehand which big long legal brief the trial judge and all the appealate judges are going to find more convincing?


That is only a problem at the margins. Most of the time, it is pretty clear that what was done was wrong.


But qualified immunity doesn't apply when it's "pretty clear" under current supreme court doctrine that what was done was wrong, correct?

And at the margins, why isn't the guy entitled to the remedy of exclusion?
6.5.2009 1:53pm
LightCon:
whit:

tasers are justified by the "reasonableness" standard. as orin has already pointed out (and is a fact of law), reasonable force is not the absolute lowest level of force that will work in a given situation. iow, if a lower level of force would have worked, that does not mean automatically that the higher level is unjustified. we don't require police to parse at that high a resolution.

I understand the idea that you don't have to use the absolute minimum level of force, but I don't see how that allows you to jump to conclusions about the subject's evil intent before he has actually done anything violent.

Tell me, every time you have to arrest someone who has ever been violent in the past, do you just automatically use a Taser on him before even attempting to handcuff him?
6.5.2009 3:43pm
LightCon:
Oops--that last comment should read "violent intent" instead of "evil intent".
6.5.2009 3:45pm
whit:

Police are enforcing law, they should know how to conform their own behavior too in most cases.


which of course, they do. it is a TINY minority of investigations that ever lead to questions, like the one in this thread. we just don't talk about the scores of thousands of cases that DON'T lead to any controversy.

thus, (i believe the fallacy is called ) selection bias occurs. iow, since we are only talking about these whack cases, it seems like this kind of stuff is common. the reality is the opposite.

just like newspapers do not report "cops in liberty city arrested 800 people without incident today, no use of force (besides handcuffing), no injuries etc.

but in the case where some guy gets shot, or seriously injured or some really icky stuff happened, THAT makes the news.

that's only natural.

but don't think because we have UNUSUAL cases, that the extremes define the norm.

they don't.
6.5.2009 3:50pm
whit:

I understand the idea that you don't have to use the absolute minimum level of force, but I don't see how that allows you to jump to conclusions about the subject's evil intent before he has actually done anything violent.


it's called "totality of the circumstances.

for example, if you are arresting somebody for possession of a stolen car (which is a non-violent crime--- usually), you are justified (and in fact required in many agencies) to use a felony stop. iow, draw your gun and order the person out of the car, preferably with backup, etc.

you have no idea if he has done anything violent or not, but based on the nature of the crime, the type of people who commit that crime, etc. drawing your gun and ordering him to comply is justified.

same would not be justified for a guy who was fleeing a shoplift.

cops necessarily have to factor in all sorts of facts and circumstances, some of which support each other, some which may conflict with each other, in a dynamic environment. and when they get it wrong, they are frequently seriously injured (if not killed).

cops become remarkably good at this. it's a similar procedure to what a good pilot does (constantly scanning his instruments almost subconsciously) and processing all sorts of disparate data, or a good ER doc when trying to make a diagnosis.



Tell me, every time you have to arrest someone who has ever been violent in the past, do you just automatically use a Taser on him before even attempting to handcuff him?



first of all, what do you mean by USE a taser? are you referring to drawing it and ordering the subject to comply with handcuffing or he will be tased), or are you referring to actually firing the taser?

and what level of "violence in the past". some people are actually entered into WACIC/NCIC in our state as dangerous persons and we ARE justified in using more proactive methods, which again is dependant on a totality thang.

fwiw, i've carried a taser over 3 years and have NEVER fired it, but that makes me pretty rare. i am (imo) damn good at verbal persuasion, and also am a nationally competitive athlete, so that may help a bit.

i guess to answer your (extremely vague) question, the answer is no.

fwiw, as i have seen over and over again, the taser is a REMARKABLY effective deterrent w/o ever being fired. suspects know that oftentimes even when a cop has drawn his gun, that he is almost certainly not going to fire it if the guy turns tail and runs (the situations where that is legally justifiable are certainly rare). some mistakenly think that if they rush the cop who has his gun drawn, and clearly are unarmed, that the cop CAN'T shoot him. one guy got perforated by one of my coworkers for making that erroneous conclusion. he told me that he KNEW the cop couldn't shoot him. he was wrong. if you charge at a cop who has his gun drawn on you, you are probably going to get shot. and yes, the shoot was valid (it was a stolen car stop fwiw, with possible kidnap).

anyway...

ESPECIALLY if a person has been tased before, a drawn taser, with a nice laser centered on a person's chest is INCREDIBLY effective at getting people to comply. no injury (to officer, suspect, or bystander). this works especially well for people who have been tased before. they know it works, they know it sucks, and (unlike the gun), they know the cop WILL fire it if he doesn't comply.

this is a benefit to suspects, cops, and the public. nobody gets injured, and nobody gets away, and no use of force apart from the THREAT of tasing is required.

and in the scores of thousands of times when this happens, it doesn't make the paper, or volokh conspiracy, beccause of course, we don't report NOT news, and we don't wank about incidents that went perfectly, so to speak.
6.5.2009 4:03pm
ctd:
Of course it's torture - in light of what the Left is defining as "torture". The message sent by "merely" zapping the guy at a low setting for 2 seconds is "comply now, or we'll do it again longer &higher until you DO comply." What's the bright-line difference between low-and-short vs. long-and-high? Considering there was no hurry to make him comply, were all other options exhausted first? or was this just a matter of irritation at non-compliance?
6.5.2009 4:05pm
Fub:
whit wrote at 6.5.2009 3:50pm:
but don't think because we have UNUSUAL cases, that the extremes define the norm.

they don't.
What the extremes do demonstrate, IMHO, is the tenuous grip that we allow police, courts, prosecutors (and legislators too) to maintain on common sense. Anything the slightest bit unusual seems to be an excuse for becoming completely unhinged and resorting to force.

On using tasers, this recent example shows pretty clearly that the taser was a first resort to an unusual situation. I'll give them credit for not first resorting to firing guns in a ricochet prone environment, but sheesh! It apparently never occurred to them to use a flashlight to identify the target.
6.5.2009 4:26pm
whit:
fub, no they don't demonstrate what you claim at all.

unusual occurrences do not define the norm.

the VAST majority of arrests (unusual or not) use no physical force (apart from handcuffing).

cops exercise incredible amounts of restraint.

cherry picking extreme incidents does not prove that they are anywhere close to the norm.
6.5.2009 4:33pm
Sid the warmonger (mail) (www):
ctd,

Pacemakers are uneffected by the use of tasers. Pacemakers and similar implanted devices are built to withstand electrical currents several thousand times the amount produced by a law enforcement taser. I realize that there is urban mythology that goes with tasers, but this is one easily refuted by the medical research.

Als, there have been numerous anecdotal reports of taser-related deaths. As I stated in my previous post, all deaths attributed to the use of tasers have been shown to have other causes. A suspect who swallowed a lethal dose of drugs and then is tased being the usual example. The point being, the suspect was going to die from the stress of being arrested and the underlying medical issue. Being tased had no cause in the death.

Really, a taser causes pain. That is all it does. Suspects will comply with the users instructions because they want to avoid the pain. That is why the police used it. They could have used the swarm tactic and had several officers physically grab the suspect. Then, fought his mouth open and swabbed him. But he most likely would have been physically injured and the tactic is very risky to the officers as well.



David,

How long can we lock him up until he voluntarily complies with the order to produce a swab? You seem to miss the fact that use of pain compliance has an order of reasonableness implied. Can we hold the suspect indefinitely until complies with the court order? What is a reasonable standard?
6.5.2009 4:54pm
whit:
sid, you are mostly right.

the taser does not merely cause pain, though. if there is any reasonable seperation between the darts it DISABLES the neuromuscular system

for example, even very highly trained martial artists have generally been unable to perform even simple physical acts during a tase. i am talking very skilled defensive tactics experts.


you are correct about tasers and the misconception that people who die AFTER being tased, necessarily implies that the taser caused the death.

people have always died, especially the kind of people we deal with - strung out on polydrug combos, extremely unhealthy, etc. after all sorts of exertion. for example, i had a gun once stop breathing after a mere 5 minute wrestling match. he ended up recovering, but he very easily could have died, and stuff like that will always happen -tasers or not

the reality is that when agencies adopt tasers

1) officer involved deaths go down
2) suspect injuries go down
3) officer injuries go down.

they have saved literally thousands of lives.

as you say, the medical research IS clear. i really find it not surprising that somebody brought up the pacemaker canard.
6.5.2009 5:10pm
Fub:
whit wrote at 6.5.2009 4:33pm:
fub, no they don't demonstrate what you claim at all.

unusual occurrences do not define the norm.

...

cherry picking extreme incidents does not prove that they are anywhere close to the norm.
I didn't say they demonstrated "the norm". I said they "demonstrate the tenuous grip that we allow [officials] to maintain on common sense."

The outlier situations demonstrate just how much officials can get away with, and not face even slight sanctions. We're just lucky that not every official decides to behave that way all the time, because when they do, they usually get away with it.

BTW, I agree that a tazer zap is unlikely to cause death, in the statistical sense. But I do not agree that they cannot and have not caused death. By analogy, a haymaker is unlikely to kill someone who is generally healthy, but one did kill Harry Houdini.
6.5.2009 9:00pm
whit:
i have yet to see ONE autopsy report that said a taser caused the death. not saying it's not possible, but i've never seen one.

almost any use of force can result in death fwiw. even a simple wristie-twistie. extremely unlikely, but possible.

fwiw, i never said a taser COULDN'T cause death.
6.5.2009 9:18pm
Fub:
whit wrote at 6.5.2009 9:18pm:
i have yet to see ONE autopsy report that said a taser caused the death. not saying it's not possible, but i've never seen one.
There's a first time for everything.
6.5.2009 11:15pm
RT (mail):
Frankly, taking a DNA sample or any other sample by force should not be allowed. Try them for contempt or some such for refusing to provide one by court order.

"i have yet to see ONE autopsy report that said a taser caused the death. not saying it's not possible, but i've never seen one. "

Because the taser manufacturer will promptly swarm all over any coroner who does so, and they know it.
6.5.2009 11:26pm
David M. Nieporent (www):
How long can we lock him up until he voluntarily complies with the order to produce a swab? You seem to miss the fact that use of pain compliance has an order of reasonableness implied. Can we hold the suspect indefinitely until complies with the court order? What is a reasonable standard?
We hold people in custody for civil contempt indefinitely all the time.
6.5.2009 11:40pm
CMB (mail):
The progressive use of the taser is alarming. One thing is clear: cops love them! Years ago I thought they were a great idea; but this was under the assumption that they would only be used in lieu of guns — not in lieu of a judge.
6.6.2009 12:23am
Another_BillS_Guest (mail):
I think that whether the use of the taser constitutes torture depends on the context of the use:
1. If the cops essentially communicated: "We're going to taser you for 2 seconds, and then ask you again. If you refuse we'll up the time/level and try this again." then I think that constitutes torture.
2. If the cops told the individual: "We're going to get this sample, if necessary we're going to taser you while we do it." and the result was they used the taser to subdue the suspect while the sample was collected - protecting them from serious injury. - that's not torture.

Now most likely the reality fell in between those two extremes - or I should say the events don't support a clear application of option 2... but to me that's the difference. That's what the court would need to determine - was the application close enough to option 2 to justify the use of the taser.
6.6.2009 1:34am
Gary McGath (www):
We're talking about torturing a suspect to get information out of him. Has America come to the point where the legitimacy of such an act is even debatable?
6.6.2009 6:37am
Gary McGath (www):
And inflicting pain on someone to make him comply with an order IS torture, no matter how you wiggle around it.
6.6.2009 6:40am
jukeboxgrad (mail):
Prof. Kerr, thank you for this very interesting thread (which of course is greatly enhanced by your participation, as always). Congratulations on your prestigious new assignment. I'm sure I'm not the only reader who thinks VC will be much diminished while you are absent. And my respect for Cornyn just went up a notch.

I did just notice something about Cornyn that's related to this thread:

Cornyn sponsored a bill that would allow law enforcement to force anyone arrested or detained to provide samples of their DNA, which would be recorded in a central database.


Next time you see Cornyn, I think you should greet him as follows: 'is that a Taser in your pocket, or are you happy to see me?' Just kidding.

Along the lines of the issues raised in this thread, I thought of the following hypothetical. Pawlenty has said he'll obey the court, and sign Franken into office if the court directs him to do so.

What if Pawlenty changes his mind? Could the court have him Tased? (I mean this as sort of a serious question, although I also see a humorous side.)

To make the scenario even funnier, could Franken be granted permission to wield the Taser? This would make probably the hottest youtube ever. Although maybe not as hot as Jesse Ventura waterboarding Sean Hannity.
6.6.2009 8:23am
Marian Kechlibar:
I must agree with Zarkov here.

Using physical force on non-violent suspects to obtain some kind of information is hallmark of totalitarian regimes. If, say, Turkish or Ukrainian authorities tried this on an American suspect, the American diplomatic corpse would be out in force. Remember the American youngster who got canned in Singapore for vandalism?

The disbalance of power between the state and a person in custody is so huge that only a few states in the world are able to execute enough self-restraint and not harm the suspect at will. This is civilization. The rest is barbarism.

In this, America stands on important crossroads. I do not believe that Washington or Jefferson would hesitate over this case. Their descendants do ...
6.6.2009 10:58am
sbowers3:
Suppose that the evidence is excluded. Do not the police still have the authority to obtain a DNA sample? So they refile the case with the newly obtained evidence. Excluding the original sample is pointless because the evidence would have been obtained eventually. Nonetheless, the prosecutor deserves a good talking to by someone who better understands good procedure.
6.6.2009 11:00am
Marian Kechlibar:
sbowers is right. The evidence can be clearly obtained again, lawfully.

But the policemen who did that deserve jail time.

My God, isn't it obvious to everyone that approaching a non-violent human being and putting a 2-second jolt of electricity in his body just because he refuses to open his mouth and give a spit onto a swab, is awful? Twice as much if the acting person is a LEO?
6.6.2009 11:15am
Jon Roland (mail) (www):
Marian Kechlibar:

But the policemen who did that deserve jail time.

I agree but the question comes back to, who is going to prosecute? Unless or until we revive private criminal prosecutions there will be no remedies.
6.6.2009 6:56pm
David Schwartz (mail):
We have no idea if the evidence can be obtained again lawfully. There has never been an adversarial hearing on the legality of obtaining the second sample, and it is now moot.

No opportunity was ever provided to contest the second order. It was applied for, and granted, ex parte.
6.7.2009 4:38am
David Schwartz (mail):
And, by the way, someone needs to file a disciplinary complaint against the DA who told the police that it was okay for them to use as much force as they need until they got the information they want.
6.7.2009 4:50am
ReaderY:
The police did not use force here. They explicitly decided not to use force. Instead, they inflicted pain. There's an enormous difference between the two.

I think it's critical that the officers did not attempt, did not even intend, to obtain the DNA sample themselves, using force or otherwise. They did not do any obtaining at all. They instead inflicted pain until their victim complied.

This is torture, not force. The difference between the two is wide enough to squeeze through an entire constitution.

Even assuming the police were authorized to use force, they were NOT authorized to use torture.
6.7.2009 5:44am
David Schwartz (mail):
And don't forget, they had a legal opinion from a bona fide lawyer that they could use as much force as was necessary to obtain the information they wanted. Perhaps they relied on this opinion in good faith.
6.7.2009 5:54am
Jon Roland (mail) (www):
See this article "Texas cop Tasers great-grandmother" in which:


The use of Tasers is controversial because, while they are often presented as non-lethal devices, they are actually less-lethal alternatives to firearms. According to Amnesty International, "[s]ince June 2001, more than 351 individuals in the United States have died after being shocked by police Tasers." Tasers can interfere with proper cardiac function, even resulting in death. Logically enough, people with pacemakers, such as might be expected among older people, are at particular risk, according to a 2007 study.

A research paper prepared for the Canadian Broadcasting Corporation (PDF) found that some Tasers give an even bigger jolt than intended, with resultingly higher risks to the proper function of the heart.
6.7.2009 10:14am
David Schwartz (mail):
Putting aside the factual question of whether use of a taser on its lowest setting for 2 seconds is "torture," I'm interested in but uncertain about the idea that there is a Fourth Amendment difference between threatening or using force to get a suspect to do something and using force to make them.
This completely misses the point. Whether something is torture or not has nothing to do with how much pain was actually inflicted. In this case, the police got approval to use as much force as was needed to get the information they sought. They communicated this to the suspect, and began to apply pain.

"We will cause you as much pain as we have to go to get you to tell us what we want to know" is just as much torture as "we will shoot your son if you don't tell us" which is just as much torture as waterboarding.

I honestly cannot believe I actually have to say this.
6.7.2009 10:19am
Jon Roland (mail) (www):
David Schwartz:

And don't forget, they had a legal opinion from a bona fide lawyer that they could use as much force as was necessary to obtain the information they wanted. Perhaps they relied on this opinion in good faith.

So were the concentration camp guards who carried out the holocaust. The "Nuremberg defense" didn't work for them and shouldn't work for cops today in this country.
6.7.2009 10:20am
Marian Kechlibar:
Jon Roland:

Here in Czechia, we have a special department, called Inspection of the Interior Ministry, which only investigates charges against policemen. And it seems to do some good work. Definitely, a Czech policeman who abuses a detainee, can expect some serious investigation and trial, if evidence suffices.

And the journalists are quite eager to publish details, which prevents silent discarding of the charges.

We had a case when police arrested a guy who was riding his bicycle with a dog leashed to it (I do not think that the dog was harmed by the leashing, btw; it was some large breed which likes running; but it is not allowed anyway).
Nevertheless, they handcuffed him to the central heater of the police station and beat shit out of him.

They are both doing time now.
6.7.2009 10:44am
Jon Roland (mail) (www):
Marian Kechlibar:

Here in Czechia, we have a special department, called Inspection of the Interior Ministry, which only investigates charges against policemen.

Oh to once again be a young republic where the memory of the struggle for liberty is fresh in the minds of everyone.

In the U.S. we also have Internal Affairs departments in major metro police organizations, and citizens review commissions, but both tend to become submerged by the political pressures from the police unions the Establishment of judges and prosecutors, who have emasculated the grand juries who once served that role.

The problem will not be solved until libertarians start winning the majority of elections.
6.7.2009 11:22am
markm (mail):
Exclude the evidence, and order the subject to appear personally in court for a hearing on whether a third sample can be collected - and collect it in front of the judge when he loses.
6.8.2009 7:06am
David Schwartz (mail):
markm: Exactly.

Torture: We will cause you as much pain as we have to until you give us the information we want.

Legal: We will keep you in jail as long as a judge allows us to until you tell us what we want to know.

See? That's not so hard to understand, is it? The problem is that some ADA didn't know the difference between these two things and idiotically authorized the police to use as much force as necessary to get the information they wanted despite the absence of any exigency.
6.8.2009 10:30am
mojo (mail):
I think I'm with the defendant on this one. He had already complied with the court's order and provided a buccal sample.

The fact that the government then bobbled the thing and invalidated the DNA sample is their problem and not the defendant's. Forcing him to comply yet again was excessive, in my opinion.

Tell thew cops to be more careful with evidence.
6.8.2009 12:57pm
East:
They could have just waited for him to fall asleep.
6.9.2009 8:28am

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