Tasered Falls prisoner raises issue of torture
LOCKPORT — An attorney for the man who was zapped with a Taser to compel him to give Niagara Falls police a DNA sample said Tuesday he is seeking permission to sue Niagara County and the City of Niagara Falls.
Christopher O’Brien said his client, Ryan S. Smith, was “tortured” by police Sept. 29 by means of the electrical stun gun.
“If we won’t allow it in Iraq and Afghanistan, we shouldn’t allow it in Niagara Falls,” O’Brien said.
However, Smith, 21, who has pleaded not guilty to a charge that he shot a man and robbed a gas station in separate 2006 incidents in Niagara Falls, missed a 90-day deadline after the incident to file a notice of claim, a legally required preliminary to a suit against a local government.
O’Brien said he’ll be in front of State Supreme Court Justice Richard C. Kloch Sr. June 4 to ask for permission to file a late notice.
Meanwhile, evidence in a hearing on the legality of the sample, which continued in Niagara County Court Tuesday, showed that the whole incident wouldn’t have occurred if it weren’t for an error by the Niagara Falls Police Department in sending a previous DNA sample from Smith to the wrong laboratory.
Deputy District Attorney Doreen M. Hoffmann wrote a letter to Niagara County Judge Sara Sheldon Sperrazza Sept. 23, which the judge read aloud Tuesday, explaining the mix-up and asking the judge to sign a second order for Smith to give a DNA sample. Sperrazza did so.
Defense attorney Patrick M. Balkin asserted that none of this was explained to Smith, which was why he resisted the police efforts to take another swab of the inside of his cheek six days later.
Smith was arrested on a misdemeanor criminal contempt charge after being zapped. O’-Brien and Balkin said that was backwards, and if Smith had been charged with contempt instead of being zapped, a judge would have ordered him to give the DNA sample and that, too, would have avoided the controversy.
Smith had not objected to a court order Sperrazza signed in August directing him to give such a sample, and one was taken.
Hoffmann said that Niagara Falls police sent the swab to the State Police lab, not to the Niagara County lab, which held other evidence in the case it intended to use for comparison. “I was advised by our lab that once it was opened, it was compromised and they couldn’t use it,” she said.
Balkin insisted that Hoffmann needed to again go through the entire process of serving Smith with an order to show cause, giving him a chance to object to the second sample demand. “My client had no due process, none,” Balkin argued.
“I believe we followed the proper procedure. The court signed the order, and the order is valid,” Hoffmann said.
Detective James Galie testified that Officer George W. McDonnell administered a roughly two-second “dry stun,” not using the Taser’s electric prongs, because Smith wouldn’t open his mouth for the swab. He was sitting on the floor of Police Headquarters at the time.
Galie said officers debated what to do and concluded that fighting with Smith would just result in injuring him and possibly some officers. “He’s extremely violent. We’re quite familiar with him,” Galie said.
“Ryan has described it as excruciating pain. He said it felt like his whole body was on fire. I’ve seen the scars,” O’Brien said. “It’s not fair to say, ‘This is a bad guy. This one we’ll torture.’ ”
The hearing will continue Friday, with testimony from a police technician on why there may be a one-minute gap in a police video of the Taser incident.
O’Brien said Sperrazza discovered the time discrepancy while viewing the 40-second video.
“The screen goes white and you hear the noise of the Taser,” said O’Brien.
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