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.