There has been considerable discussion of the ethics of police torture in the blogosphere without a single invocation of the seminal American text on the subject, a work with which all of these distinguished ethicists are doubtless familiar. I refer, of course, to Dirty Harry.
That famous torture scene on the football field has its troubling aspects. Callahan makes a point of ordering his partner, “Too Much Linguine” DiGiorgio, out of the stadium: “Go out and get some air, Fatso.” He knows he’s about to cross the line. He doesn’t want to make DiGiorgio complicit, but he doesn’t want witnesses either.
It’s also no certainty that the man they’re chasing is even the killer, although it’s highly probable. Nobody has had a good enough look at him to provide a physical description, and the only positive ID they have is from the ER doctor who treated his stab wound. It’s conceivable that someone else could show up at a big city hospital with the same sort of wound at the same time. But this is more than good enough for Callahan.
Callahan is also quite sure the girl, whose life he’s supposed to be interested in saving, is already dead. He tells the Mayor and the Police Chief so in an earlier scene, and Scorpio confirms his hunch by telling him in the bagman scene in the park that “I’ve changed my mind. I’m going to let her die. I just wanted you to know that.” And in fact the girl is dead. Callahan tortures Scorpio because he enjoys torturing criminals. In the famous bank robbery scene — “six shots, or only five?” — he fires the empty at the robber’s head only partly because the robber asks him to (“I gots to know”). Mostly he does it for jollies. If you doubt me take a good look at the grin on his face when the gun clicks.
Callahan does manage to discover the murder weapon (in an illegal search) and the location of the dead girl, so in a certain sense the torture is effective. In the long run, however, it proves disastrous. Callahan saunters into the District Attorney’s office the next morning expecting a hero’s welcome; instead he is informed that Scorpio isn’t going to prosecuted.
DA: You’re lucky I’m not indicting you for assault with intent to commit murder.
Callahan (doing classic Eastwood slow burn): What?!
DA: Where the hell does it say you’ve got a right to kick down doors, torture suspects, deny medical attention and legal counsel. Where have you been? Does Escobedo ring a bell? Miranda? I mean, you must have heard of the Fourth Amendment. What I’m saying is, that man had rights.
Callahan: Well, I’m all broken up about that man’s rights.
DA: You should be. I’ve got news for you, Callahan. As soon as he’s well enough to leave the hospital, he walks.
Callahan: What are you talking about?
DA: He’s free.
Callahan: You mean you’re letting him go?
DA: We have to, we can’t try him.
Callahan: And why is that?
DA: Because I’m not wasting a half a million dollars of the taxpayer’s money on a trial we can’t possibly win. The problem is, we don’t have any evidence.
Callahan: Evidence? What the hell do you call that? (He gestures toward Scorpio’s weapon on a side table.)
DA: I call it nothing, zero.
Callahan: Are you trying to tell me that Ballistics can’t match the bullet up to this rifle?
DA: It doesn’t matter what Ballistics can do. This rifle might make a nice souvenir. But it’s inadmissible as evidence.
Callahan: And who says that?
DA: It’s the law.
Callahan: Well then, the law is crazy.
Also in attendance is a Judge Bannerman, a professor of constitutional law — at Berkeley, naturally, which provokes, in me at least, some residual sympathy for Callahan. Bannerman summarizes the matter dryly:
The search of the suspect’s quarters was illegal. Evidence obtained thereby, such as that hunting rifle, for instance, is inadmissible in court. You should have gotten a search warrant. I’m sorry, but it’s that simple…The court would have to recognize the police officer’s legitimate concern for the girl’s life, but there is no way they can possibly condone police torture. All evidence concerning the girl — the suspect’s confession, all physical evidence — would have to be excluded…
Now, the suspect’s rights were violated, under the Fourth and Fifth and probably the Sixth and Fourteenth Amendments. Without the evidence of the gun and the girl, I couldn’t convict him of spitting on the sidewalk.
So is Callahan justified in torturing Scorpio? Legally, no way. He scotches a case that the State had a good chance of making. Morally, unclear. Part of his motive is to try to save the girl, unlikely as that is, but part of it is sadism. The movie doesn’t approve torture by any means, despite its reputation. Eastwood himself clearly wanted a chance to clean up Callahan’s act: the first sequel, Magnum Force, casts police vigilantes as the villains, against whom Callahan stands for law, order, and proper police procedure. (It is unsatisfactory for this very reason, among others.) If arch-badass Clint Eastwood is queasy about police torture, I’m not surprised that mild-mannered law professor Eugene Volokh is too.
(Update: Arthur Silber has some well-considered thoughts — on torture, not Dirty Harry.)