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Univ. of San Diego School of Law

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Wednesday, December 15, 2004

Can Cops Use Threats to Get a Kidnapper to Disclose a Victim's Location?

Germany A German prosecutor says no.  In September, 2002, two officers threatened a suspected kidnapper to get him to disclose the location of the 11-year-old victim, the son of a wealthy banker.  Upon hearing the threats, the kidnapper admitted the boy was dead, at the bottom of a lake.  The kidnapper is serving a life sentence.  The officers are now being prosecuted for the threats, which evidently violate the German constitution.  The prosecutor is seeking fines against the officers. ``The door to a very dark room was opened and this door needs to be shut again,'' the prosecutor told the court. ``A person in custody has the right to be treated with human dignity.''   A verdict is expected later in December. 

On a related topic, here is a paper by Minnesota CrimProf Oren Gross, "Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience" and here is "Torture" written by Loyola CrimProf Marcy Strauss. But of course, torture is not the precise problem presented in the German case, because there is a big difference between threats of torture and torture.  See, e.g., Arizona Revised Statutes section 13-407(A) which permits threats of deadly force to terminate a trespass, but not the actual use of deadly force. In many cases, a successful, empty threat of deadly force would be better than actual use of lawful, non-deadly force; I'd rather have cops make peaceful arrests, for example, by threatening to shoot a resisting subject rather than requiring them to use a nightstick, mace or Taser. [Jack Chin]

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