I. INTRODUCTION

A renegade cop holds back the torrent of crime in San Francisco, plugging the dam with the barrel of his .44 Magnum. Controversial when released in 1971, Dirty Harry was banned in Finland for over a year but was also used as a training film for police in the Philippines. Fifty years after the film was released, we watched it again to see how it holds up today, with a focus on the film’s depiction of race, constitutional law, and police procedure. Dirty Harry’s script was originally set in New York and titled “Dead Right,” with Frank Sinatra set to play the lead. After Frank bowed out, Paul Newman also passed because of the film’s conservative themes, suggesting Clint Eastwood as a better fit for the film’s hero, Harry Callahan. The film is a type of morality tale, tailored for a market of older men feeling unmoored in a lawless world. Callahan’s world can’t be tamed by political hacks, bumbling bureaucrats, and do-gooders, requiring instead the stern hand of a violent father figure. Think Chuck Norris, Charles Bronson, and Sylvester Stallone, replaced today by Liam Neeson, Bruce Willis, and Denzel Washington. Men of similar ages ice their backs, avoid spicy food, and go to bed early, but these men cannot be underestimated, because when violence erupts (often in the form of a kidnapped daughter or brutalized wife), these leather-hard men unlock their gun cabinets and get to work. There is a guilty pleasure in the stark morality of these films. Rather than having to contemplate society’s role in shaping criminality (through poverty, education, race, addiction, and mental health), we are presented with evil villains devoid of humanity — in a word, monsters. While some films play lip-service to exploring options in society’s tool box, the genre provides one tool to combat crime: violence, meted out personally. In the end, we know the good will heroically triumph, and the bad will die terrible, well-deserved deaths, sometimes accompanied by terse one-liners.

II. FEELING LUCKY?

Everyone remembers Harry’s line, near the film’s beginning, to a wounded bank robber, inches away from getting his hands on a fallen shotgun: “I know what you're thinking. ‘Did he fire six shots or only five?’ Well to tell you the truth in all this excitement I kinda lost track myself. But being this is a .44 Magnum, the most powerful handgun in the world and would blow your head clean off, you've gotta ask yourself one question: ‘Do I feel lucky?’ Well, do ya, punk?” Confronted with the barrel of Harry’s .44 Magnum, the robber assumes Harry’s confidence indicates a loaded gun. The robber’s hand retreats from his weapon. But he isn’t satisfied with the unanswered question. The bank robber, played by Albert Popwell, says to Harry, “I gots to know.” Harry obliges the robber. Instead of telling him, or showing him the empty barrel of the revolver, Harry again points the gun at the robber. Harry revels at Popwell’s response, eyes wide with fear, as Harry pulls the trigger, dry firing the gun in the robber’s face. The speech was a bluff. The confidence wasn’t in a loaded gun, but something inherent in Harry. Harry’s shoot-out with his .44 Magnum on a crowded San Francisco street is frighteningly reckless. It is difficult to accurately aim a pistol at a distance. And there’s the issue of over-penetration. If not loaded with an expanding bullet, the round of the .44 Magnum could penetrate its target, and the wall behind the target, and the unknown and unsuspecting citizen beyond. The .44 Magnum Smith & Wesson signaled Harry as a maverick detective. Later, the Scorpio Killer, played by Andrew Robinson, perhaps gets to the heart of things with his improvised line upon the reveal of Harry’s weapon, “My, that’s a big one.”

III. SMART PHONES AND BODY-WORN CAMERAS

Today, smart phones and body-worn cameras, which have captured fraught scenes of brutality targeting minorities, would present a challenge to Harry and the script writers. The injured bank robber is black, and Harry is white. Gun owners are trained to never point a weapon at anything they are unwilling to destroy, even if the gun is believed to be unloaded. Video images of a sadistic cop dry firing on someone would end that officer’s employment, and may even result in prosecution. Even in 1971, the filmmakers attempted to preempt criticism of that scene with the next one. Injured during the gun battle, Harry is operated on by a black doctor. What’s more, Harry knows the doctor by name — they even come from the same neighborhood. The message is that Harry can’t be racist — he has a black friend. (And in the station house, Harry directs his prejudices to all races and ethnicities.) The doctor inoculates and gives tacit approval for Harry’s future actions when, after Harry attempts to direct the physician’s hand, the doctor responds, “Do I come down to the station and tell you how to beat a confession out of a prisoner?” Dirty Harry was a cash cow milked for four sequels. Curiously, the actor Albert Popwell, a black man, is also cast in three of the four sequels to Dirty Harry (Magnum Force, The Enforcer, and Sudden Impact) as different characters from the bank robber he plays in the original. Either the casting director was exceedingly loyal, or there was an implicit understanding that the audience wouldn’t care or wouldn’t notice the repetition.

IV. A 'VERY UNUSUAL PIECE OF POLICE WORK'

But back to the original Dirty Harry. Tipped off by a doctor, and knowing the Scorpio Killer has threatened to asphyxiate a hostage who will suffocate in hours if not immediately found, Harry races to Kezar Stadium, where Scorpio, who has been allowed to stay by a groundskeeper, lives like an underworld demon beneath the grandstands. Accompanied by his sidekick Frank “Fatso” De Georgio, Harry appears thwarted by a high chain-linked fence, blocking access to the stadium. Seeing the fence, De Georgio remarks, “Illegal entry. No warrant.” Put on notice, Harry responds by scaling the fence to access Scorpio’s living quarters. De Georgio bows out (“Uh-uh, too much linguine”). Because of his heft, or his scruples, De Georgio searches for another way to enter. But Harry finds the living quarters and kicks the door open. Inside, he finds a rifle that, presumably, could be matched to bullets fired by Scorpio at victims, but only if the evidence is admissible. Harry has acted without a warrant. The District Attorney will later interrogate Harry, describing his conduct as a “very unusual piece of police work,” adding, “I mean you must have heard of the Fourth Amendment!” The DA informs a flabbergasted Harry that no charges will be filed against the Scorpio Killer. Why? Because, according to the DA, all the evidence obtained (including the rifle used to kill Scorpio’s victims) is fruit of the poisonous tree. The DA informs Harry that he violated Scorpio’s rights, and that all the evidence collected would be suppressed at trial. Indeed, the DA makes it clear that Harry is lucky he will not be prosecuted for his lawless actions.

V. FOURTH AMENDMENT ANALYSIS

The DA’s analysis is too facile. While Harry’s scaling of the fence might be considered trespass, the fence and the area surrounding it belong to Kezar Stadium. They are not the “curtilage” to Scorpio’s residence, and he has no reasonable right to privacy in that area. Thus, it is unlikely Scorpio would have standing to argue a violation of his rights just because Harry hopped the fence, either under Justice Scalia’s property theory based on invasion of the curtilage in Florida v. Jardines (2013) 133 S.Ct. 1409, or Justice Kagan’s privacy theory in her concurring opinion. Harry did not have a search warrant to enter Scorpio’s living quarters under the stadium. But Harry’s knowledge that the Scorpio Killer is armed and dangerous, and that his latest victim has only enough “oxygen till 3:00 a.m. tomorrow,” would plausibly provide exigent circumstances. Under People v. Ramey (1976) 16 Cal.3d 263 and other California cases, this might get around the warrant requirement, if it were found that the information from the citizen informant (the doctor who treated Scorpio) provided enough information to indicate Scorpio had committed a crime and merited urgent investigation. Arguably, the doctor’s descriptions of the patient’s unique wounds and his physical description, the timing of events, and his having left without giving a name would be enough to present the police with probable cause to believe the man was the Scorpio Killer. Penal Code sections 836 and 844 codify when arrests can be made without a warrant, and the requirements for making an arrest when breaking a door or a window to effectuate that arrest. Under Penal Code section 836, a police officer can arrest a person without a warrant in circumstances where (1) the officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence; and (2) the person arrested has committed a felony, although not in the officer’s presence. Under Penal Code section 844, officers may break a door or window to effectuate a felony arrest if they have reasonable grounds to believe that the person to be arrested is inside, and if they knock and announce themselves. While Harry did not knock or announce himself before kicking the door in, precedent allows exceptions to the "knock and notice" requirement in cases of exigent circumstances, such as peril to the officer or to someone else. The contents of the room Harry entered (most notably, the gun Scorpio used to kill his victims) could conceivably be used as evidence at trial, because Harry’s no-knock entry was made with the reasonable belief that Scorpio was dangerous, that he’d committed numerous felonies, that a victim would soon die if Scorpio could not be found, that Scorpio possessed firearms, that he could be found beneath Kezar Stadium, and that he was a violent psychopath. The gun could be matched to the bullets and casings found, and potentially provide the basis for a murder prosecution.

VI. BRADY VIOLATIONS

But our analysis doesn’t end here, because Harry has committed several crimes of moral turpitude (commonly called “Brady” violations) in obtaining the evidence, most notably shooting and torturing the unarmed Scorpio Killer. To lay a foundation for admitting the gun at trial, Harry would have to take the stand and testify about how and where it was found. Evidence of his Brady violations would have to be turned over to the Scorpio Killer’s defense attorney, and any defense attorney worth their salt would cross-examine the hell out of Harry. The question left to the jury in closing would look something like this: “Inspector Callahan shot and tortured an unarmed man. And now he wants you to believe he just ‘found’ the gun used in these killings in my client’s room?” If a man is willing to cross the line between policing and criminality — shooting and torturing an unarmed suspect — a jury could readily conclude the same man is capable of planting evidence. So perhaps the DA, playing the game a few moves ahead, could see that even if the evidence came in, it would be tainted because it had been handled by Dirty Harry. Harry is an unconventional Inspector who does not observe rules. He doesn’t view evidence gained from his warrantless entry as fruit of the poisonous tree. Harry would perhaps accept the personal consequences, even if it meant prosecution for a tort, as long as the evidence was admitted and the vicious criminal convicted. One can debate whether Harry, knowing a victim would die in hours, was acting in hot pursuit, and was acting reasonably even if his entry into Scorpio’s living quarters was warrantless. But Harry is about action, not reflection. The standard for a Fourth Amendment analysis is a reasonable officer with the knowledge of the actual officer involved; Harry is, of course, anything but a “reasonable officer.” He is willing to get his hands dirty; and his superiors, whatever they really believe, are relieved to have Harry do the dirty work. Interestingly, whatever the legality of Harry’s actions, in the movie, they have no legal consequences for him. In the film, the Mayor and Police Chief continue to place Harry at the forefront of investigations, despite his checkered history and reputation. While the warrantless entry may have been a stretch of hot pursuit and subject to debate, Harry’s later actions are not.

VII. A TORTURE SCENE

In a harrowing pursuit of the killer through the stadium, Harry chases Scorpio onto the darkened field. Just then, De Georgio flicks on the stadium lights. As Harry raises his .44 Magnum and takes aim from the bleachers, Harry yells out “Stop!” Scorpio is revealed, unarmed, with his hands raised across the lit field. Despite Scorpio’s compliance, Harry fires his gun, hitting Scorpio across the field, in the leg. Only in the movies is a pistol shot with pinpoint accuracy at such a distance. Harry tells De Georgio, “Go on out and get some air, Fatso!” This is a certain sign Harry knows his actions are beyond the pale and he does not want to implicate De Georgio in what he has done and is about to do, or create another witness to his actions. Knowing Scorpio has kidnapped a teenager who will suffocate in a hole if not found immediately, Harry points his gun at Scorpio, whose bloody leg has left him immobilized and on the ground. Harry demands to know where the girl is. Scorpio pleads for his life, asks for a doctor, demands to see a lawyer, and insists he has rights. The script writers are throwing the Warren Court’s rulings in Escobedo v. Illinois (1964) 378 U.S. 478 and Miranda v. Arizona (1966) 384 U.S. 436 in the audience’s face. Harry stays on message, demanding to know where the girl is while grinding the killer’s wounded leg with his shoe. The stadium fills with Scorpio’s resonant scream. This is torture: inflicting extreme mental or physical pain. This isn’t policing, it’s attempted murder and mayhem with the use of a firearm. While the violence in this film is still shocking 50 years on, it’s this scene that horrifies, leaving the audience grateful for the camera cutting away. Yet, Harry’s extreme methods yield results: The teenager’s body is shown being pulled out of a hole. Those who would justify Harry’s actions might rely on the infamous “ticking time bomb” thought experiment, in which the police know a time bomb is about to explode in a crowded railway station, and only the use of torture may disclose its location, allowing the bomb to be defused. But Harry’s use of torture is not successful by any measure: Evidence obtained is jeopardized, and no life is saved. The girl is found too late; she has suffocated. In the utilitarian calculus of the ticking time bomb experiment, the many lives at stake justify the use of torture. In Dirty Harry, only one life is at stake, and the torture does not save that life. Did San Francisco in 1971 really want a police force populated with officers ready to inflict pain and permanent injury to obtain results? No. And that is why Harry is unique among the Potrero Hill force. Indeed, he is called “Dirty Harry” because he is called upon to do the dirty work others do not wish to do, and his superiors do not want to be associated with it. Harry’s use of extreme interrogation methods will cause another problem in the movie, leading to questions about whether evidence obtained will be “fruit of the poisonous tree.” Outside of the film, one can’t help but wonder if the association with Dirty Harry led the Potrero Hill force to be renamed Bayview Station in 1997.

VIII. HARRY'S FATE

In 1971, body cams didn’t exist, and Harry knew it would be difficult to hold him accountable for shooting the villain or standing on his wounded leg in an empty stadium. Yet, all the basic facts are apparently contained within Harry’s report, leading the fictional DA to sardonically congratulate Harry that he is not going to be prosecuted despite a report that would have read like a confession. It would be difficult to remake Dirty Harry today without retooling the lead or the message. A modern version might be more like Falling Down (1993), with Michael Douglas’s William “D-Fens” Foster believing himself to be in the right as he returns slights and discourtesy with violence, while being seen by all who come in contact with him (and the audience itself) as a psychotic with a gun. Taken as is, Harry Callahan in 2021 is a dark figure. What once was considered heroic vigilantism has been deeply compromised by time. Today, Harry isn’t a vigilante but a villain, and an audience wouldn’t be satisfied with him emerging unscathed. If Harry had been wearing a body cam, his story today could not have had a second act, let alone a third. The recorded image of a sadist pointing his gun and pulling the trigger at a surrendered criminal would have prevented Harry from holding a badge and representing the people of San Francisco. He wouldn’t be referred to as “Inspector Callahan” or “Harry.” He’d just be dirty.

Colin C. Alexander is an Assistant District Attorney for the City and County of San Francisco. He is solely responsible for any opinions expressed in this article.