Healing Factors, Indestructability, and Murder: Factual Impossibility Gets A Workout

Wolverine is one of a number of comic book characters who is extremely difficult to kill. It has been theorized that it would take decapitation followed by immediate removal of his head from the vicinity of his body to effectively kill him. Similarly, though Superman has died, he can survive far, far more punishment than a standard Homo sapiens sapiens.

Which raises the question: if it is impossible for a given action to kill a potential target, does it constitute a crime? And if so, which crime?

I. Mens Rea

The question has to do with the way crimes are defined at law. Crimes are made up of elements, all of which must be present for the crime to have been committed and proven by the prosecution for a defendant to be found guilty. One of the elements of most crimes is an appropriate “mens rea,” i.e. an appropriately guilty mind.* The great American jurist Oliver Wendell Holmes, Jr. is said to have remarked, “Even a dog knows the difference between being tripped over and being kicked.” In short, the law recognizes a distinction between things which are done on purpose and things which are done by accident, and intentional acts are generally treated more seriously.

The Model Penal Code sets up five types of mens rea: purposeful, knowing, reckless, negligent, and strict liability. To be convicted of murder in a state which has adopted some version of the MPC (i.e. virtually any state), one must kill another either purposefully, knowingly, or recklessly. That is to say, one needs to have either 1) actively intended for the person to die, 2) known that a particular course of action was practically certain to lead to a person’s death and engaging in said course of action anyway, or 3) known that there was a substantial risk that a particular course of action will lead to a person’s death and engaging in said course of action anyway. Killing another negligently, i.e. engaging in a course of action which one should have known was likely to lead in the death of another, is only good enough for manslaughter, and killing someone completely innocently isn’t a crime at all. I mean, good luck convincing a jury of that one, but if you do, you walk.

So far we’re basically only talking first year Criminal Law. Where things get interesting is when the intended victim is someone like Wolverine or Superman. Say, for example, Pyro lights Wolverine on fire. Wolverine is going to be pissed, and it’s going to hurt like hell, but he’s going to be okay in a minute. (Superman might not even notice, depending on when and in what continuity said ignition occurs.) If Pyro had targeted a non-mutant (or most mutants other than Wolverine), said target is going to have a pretty unpleasant final few minutes. Pyro is clearly guilty of assault, as he deliberately inflicted harm on Wolverine (though Wolverine’s civil damages are going to be nominal), but not of murder, as Wolverine is still around. The question is whether he can be convicted of attempted murder.

Attempted murder requires that you act intending to kill someone but somehow fail to do it. Knowing or reckless activity will not suffice, because the legal system is only willing to punish inchoate offenses of the most serious sort. On first blush, it would seem that yes, Pyro would be guilty of attempted murder, as he tried to kill Wolverine and failed. But what if this isn’t Pyro’s first rodeo and he knows damn well that burning Wolverine is just going to make him mad? That Pyro can’t actually kill him, or, at least, that lighting him on fire isn’t going to do it? Now the picture gets a little murkier, as it would seem that the requisite mens rea is missing. Again, he’s still obviously guilty of assault, as he did intend to harm Wolverine, but it seems at least questionable as to whether doing something that you want to kill someone but that you know won’t work does not constitute the mental state necessary to ground attempted murder.

II. Factual impossibility with a twist

There is another question here: does the fact Pyro can’t kill Wolverine this way make a difference? In other words, does factual impossibility operate as a defense here? In general, factual impossibility is not a defense to any crime, but these aren’t normal facts.

Consider an analogy: A man is trying to kill his neighbor. So he sneaks into his neighbor’s home after midnight, fires three rounds into the bed, and leaves. It turns out that the neighbor was at his girlfriend’s house and the bed was empty. Clearly, we have no murder charge. But do we have an attempted murder charge? If the man fired the shots believing the neighbor to be in his bed, then the fact that he was not does not change the fact that the man took an action he believed was going to kill his neighbor. This constitutes an intentional attempt to kill another, which is all you need for an attempted murder charge. The intended victim being in actual danger is not, in fact, an element of attempted murder. So whether the neighbor survived because the man was a bad shot and only winged him, or because the neighbor was in a difference house entirely is irrelevant: the man’s guilty mind and actions are enough to convict him.

But if the man saw that his neighbor was gone but shot the bed out of frustration, wishing that he was there so that he would die, this is another matter entirely. Here, the most he can be convicted of is probably some combination of unlawful discharge of a weapon, destruction of property, and burglary. But because he knew that the man would not die, he lacks a guilty mind with respect to attempted murder.

So it would seem that if Pyro attacks Wolverine and is surprised that he survives, an attempted murder charge will stick: the fact that the attack couldn’t have killed him is irrelevant if Pyro believed that it would. But if Pyro attacks Wolverine, intending to kill him but knowing that the attack will not succeed, factual impossibility may actually serve to defeat a charge of attempted murder. Pyro certainly had the intent to kill, but did not commit an act which produced a substantial risk of death and knew this to be the case at the time.

This would seem to be in keeping with the classic case on the subject, State v. Mitchell, 71 S.W. 175 (Mo. 1904), which held “it is no defense that the defendant could not succeed in reaching his goal because of circumstances unknown to him.” The implication is that it would be a defense if the defendant knew he could not succeed. An excellent discussion of intent in criminal law can be found in People v. Joseph, 172 N.Y.S.2d 463 (County Ct. of N.Y., Kings County 1958) (with apologies to those without access to legal research tools; that case is not available freely online).

III. Serious bodily injury

But what about a slightly different case: what if the person truly only intended to hurt Wolverine, not kill him? And what if, knowing that Wolverine is one tough bastard, they used force which would have completely obliterated a normal person? Again, no attempted murder charge, but intent to inflict “serious bodily injury” (defined in federal law at 18 U.S.C. 1365(h)(3)) is something the law recognizes. If we were talking about a normal person, intent to inflict serious bodily injury is good enough to ground a murder charge if the victim does die, because recklessness, i.e. disregard for known risk, will work for murder. So if Pyro lights someone on fire and they die, it doesn’t matter whether or not he actually intended them to die, because he would have completely disregarded an obvious risk that they might. The legal system is pretty comfortable imputing intent to defendants who display extreme disregard for human life.

But intent to inflict “extreme physical pain” coupled with the knowledge that death will not result will not seem to ground an attempted murder charge, which is a specific intent offense. But even if the intent was only to inflict “extreme physical pain,” intent to do that coupled with the knowledge that it will not result in death will still turn the crime from simple assault, which is normally a misdemeanor, into aggravated assault, a felony. This would be true regardless of the intended victim: doing something which is going to cause a lot of pain is a serious crime. Wolverine being Wolverine does, however, mean that you can dish out a lot more pain and still only get stuck with an aggravated assault charge. Which kind of sucks for Wolverine, but hey, nobody said having a mutant healing factor was an unmitigated good. Most people I know would probably be willing to give up potential attempted murder charges against them in exchange for, you know, being invincible.

Superman is an interesting case here. Lighting him on fire may or may not even be possible, but assuming that it even works, it’s an open question as to whether or not he’ll notice. Probably depends on who’s writing the story in question. Attempted aggravated assault is, in fact, a crime, but that one’s going to be difficult to actually get to. If Pyro has run into Superman before–yay, crossovers!–then he knows that Superman isn’t going to die, so we’ve got no attempted murder charge. But he might not know whether Superman is going to feel it. If he knows, then we’ve probably just got a simple assault: Pyro was attempting to do something to Superman, and he did something, but he knew that it was futile. But if this was their first meeting, there doesn’t seem to be any room to argue that Pyro was only trying to burn him a bit, not kill him, Pyro having reason to believe that fire is really, really bad for people. Factual impossibility being no help to defendants not aware of the impossibility, it would seem that we have an attempted murder charge.

IV. Conclusion

Thus, whether an attempted murder charge will stick when the victim is basically indestructible essentially depends on whether the attacker knew beforehand that the target would survive. If they did know, then it’s going to be very difficult if not impossible to convict them of attempted murder. But if they didn’t, then an attempted murder charge should stick, because factual impossibility is no defense for the unwitting defendant.

*There are a few exceptions. Statutory rape, for example, does not require one to know that the person with whom one is having sex is underage. It is a “strict liability” offense, i.e. one for which the commission automatically brings liability, regardless of one’s state of mind. Speeding is similar: one need not have intended to speed to be guilty of doing so, even though one does need to be on notice as to what the speed limit actually is. But as intent is such a basic part of almost every ethical system, strict liability is reserved for offenses society deems to be either so serious as to be worth punishing at any cost, or so minor that the efficiency gain of disregarding intent is worth including some involuntary infractions.

29 responses to “Healing Factors, Indestructability, and Murder: Factual Impossibility Gets A Workout

  1. Presumably, any mutant which can unleash a serious amount of destruction could kill Wolverine if they can unleash the destruction faster than he can heal? Does his head have to be cut off, or could it be completely vaporized in an incredibly hot fire? I’d say probably any serious amount of destruction to his head could kill him. So Pyro would probably be hoping that he had enough fire at hand to finish the task.

  2. Scott W. Somerville

    Interesting questions! Leaving the superhero world for a moment, does sticking pins in a voodoo doll constitute “attempted murder”?

    • Potentially–factual impossibility is generally no defense–but it’d be almost impossible to get a conviction, as it’d be pretty to raise an insanity defense. Getting around that would involve the state proving that you can actually hurt someone with voodoo. Which would be massively entertaining, but not terribly productive.

      • If it could be shown, contra our world, that sticking pins in a voodoo doll was an effective way to cause death–and in such a world, there would be, no doubt, a long history of such cases–then voodoo would be considered a capital offense.
        For that matter, in the English speaking world, there were times and places when magic was considered effectual, and a magical assault was considered a capital offense. Most obviously, we have witch trials. The Salem witch trials didn’t involve voodoo, and were flawed proceedings; but we do have a whole history of English common law, which probably DOES have records of magic assaults, probably pre-1850 and going back for three or four centuries.
        Considering Superman, usually a little magic is enough to cause him harm.

      • TimothyAWiseman

        While it is far outside my expertise, it seems entirely possible to have a person who genuinely believes in the efficacy of vodoo dolls who is not mentally ill. They could be fully aware of the difference of right and wrong and suffer no mental illness but believe in the efficacy of voodoo dolls, just as many believe in the efficacy of certain new age healing techniques with little to no evidence to support them.

        A person who then believed it would work and used those techniques to attempt to kill someone and had no other mental illness would then have met every condition for attempted murder, even if there were no chance for success.

        Now, I do agree that it would be very hard to get a convicetion just as you say, but for a very different reason. It would be very hard to prove intent to kill. To do that you would first have to prove that they genuinely believed it would, and if they are prepared to deny it in court that is a high bar indeed. Even if they had been proselytizing for years and showed every outward sign of believing it, they could easily say everything else was a lie meant to con others out of money, establish status within a group of other believers, or just to disturb people.

        And even if it could be shown they believed such rituals could be effectively, you would have to show they actually intended it to kill, rather than say cause heartburn.

        Showing both that they beleived such rituals could work, that they actually did something like that, and that they thought it would kill would be incredibly difficult.

        But it could be possible. If you had someone state they intended the death, performed the ritual with witnesses, and then took actions relying in some way on the victim actually dying in the near future, then you could very convincingly show that they genuinely intended the ritual to lead to death and get a conviction.

      • Jimbo Jones

        Sorry for thread necromancy. Vis a vis the voodoo issue, doesn’t attempt require a ‘substantial step’ taken towards the commission of the crime? This has been defined as “some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime.” United States v. Manley, 632 F.2d 978.

        Here, one could argue that voodoo curses are not overt acts adapted to, approximating, and which in the ordinary and likely course of things will result in murder.

      • That depends on the jurisdiction. Consider the Model Penal Code approach:

        (1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise requested for commission of the crime, he:
        (2) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be;

        Model Penal Code § 5.01. This approach has been adopted by jurisdictions such as Pennsylvania. “For no matter what the actual extrinsic circumstances are, if the defendant intends to commit a crime, he may be guilty of attempt even if the crime is impossible to complete or his actions do not constitute a crime.” Com. v. Henley, 312 Pa.Super. 564, 569 (1983) (aff’d by 504 Pa. 408 (1984)).

    • This was, in fact, the exact same question that came into my head while reading this, and I think analysis reaches the same analysis above.

      It seems at least questionable as to whether doing something that you want to kill someone but that you know won’t work does not constitute the mental state necessary to ground attempted murder.

      Let’s say there is someone with whom I am very upset; I would go so far as to say that I want to kill them. If I make a voodoo doll, not actually believing in its ability to actually harm, and if lo-and-behold it does not work, I cannot imagine that this would be considered a crime. The fact that I wish, in my heart of hearts, that I could kill them with a voodoo doll does not mean that I have committed any crime, in agreement with the opinion of this post.

      However, an extension of this metaphor might also contradict the second part of this article.

      So it would seem that if Pyro attacks Wolverine and is surprised that he survives, an attempted murder charge will stick: the fact that the attack couldn’t have killed him is irrelevant if Pyro believed that it would.

      If I truly believe in my ability to kill using a voodoo doll, and I make one but (little surprise) it does not work, I doubt any reasonable jury would convict me of attempted murder or of any other crime. Intent alone, I believe, would not suffice in this case of factual impossibility.

      The difference in the Pyro/Wolverine case, however, is that Pyro’s ability would kill a normal person. It seems, therefore, that the factual impossibility defense in this case has an additional test: general factual impossibility (i.e. with a voodoo doll) would preclude attempted murder even in the case of legitimate mens rea and even if the defendant did not know of the factual impossibility, whereas specific (and unknown to the defendant) factual impossibility (i.e. attacking Wolverine or Superman) would not because there is not a reasonable expectation of the knowledge of the factual impossibility.

      • I think it varies by state. Isn’t there a series of cases involving people who shoot corpses – and whether that’s attempted murder? IIRC, that usually is NOT attempted murder.

        L nny

  3. Fascinating! So, if I believe that my next-door-neighbour is the Wicked Witch of the West (not all that difficult to believe), and I throw a bucket of water over her, I’d be guilty of attempted murder?

    • Again, potentially. The prosecution is going to have to prove that you actually believed that it would be effective, which again, is going to be difficult to get past an insanity defense.

      The court may actually decide that the prosecution needs to prove that it was reasonable for you to believe the facts that you did. It’s reasonable to believe that someone is home when they’re actually not, but it’s probably not reasonable–possibly as a matter of law–to believe that someone is a fictional character.

      But I doubt it’d get that far, as I don’t see a prosecutor being interested in this case. Even the civil damages would be pretty nominal, and DAs generally have better things to do with their limited time. There are enough actual criminals running around as it is to bother with this stuff.

  4. Indeed, it doesn’t seem “factually impossible” to kill Wolverine. Very difficult, yes, but not an impossibility. A character like the Human Torch should be able to do it relatively easily. Moreover, there’s times when his healing factor has not been all that powerful, so how does Pyro know if it’s operating at top speed or not?

    Even Superman has been depowered or lost his invulnerability on occasion.

    I think a court would apply a “reasonably foreseeable” standard – if the action could result in death under “reasonable” circumstances, even if it didn’t this time, and there was intent to kill if possible, then it’s attempted murder.

    Here’s a hypothetical: Mafia enforcer is given the assignment of killing well-protected rival Mafia “godfather”. The “godfather” usually travels in a well-protected car with bulletproof glass. One day, the enforcers happens to see the “godfather” travelling in the armored car, but enforcer has only a small-caliber gun. Enforcer knows the gun’s power won’t be enough to get through the bulletproof glass, but decides to take some shots at the car anyway just to rattle the “godfather”. Police see this and arrest the enforcer. Could he claim “factual impossibility” to a charge of attempted murder?

    • Factual impossibility refers to the particular action taken, not whether it would ever be possible for a given attacker to kill a given victim. Reasonably foreseeable is more of a negligence standard, and negligence can’t be the basis for attempt.

      A classic example is pulling the trigger on an unloaded gun pointed at someone when you don’t know it’s unloaded. Still attempted murder, despite the factual impossibility of killing someone with an unloaded gun (at least by pulling the trigger; you can always hit them with it).

      Your Mafia hypothetical is tricky. First, factual impossibility isn’t normally a defense (just the opposite), so the enforcer wouldn’t claim it. Instead, he would say that he couldn’t have had the requisite mens rea for attempted murder because he knew he couldn’t actually kill the godfather through the bulletproof glass. In reality, that probably wouldn’t work because he’d probably still qualify for recklessness and thus attempted murder. Yes, it’s highly unlikely that his small-caliber gun could penetrate the glass, but it’s possible (e.g. the glass could be defective, multiple close shots could break through). Shooting at a car can lead to death in other ways, too (e.g. causing an accident). All told it could be argued that he knew there was a substantial risk of death and proceeded anyway.

  5. So, Pyro has flamed Superman a few times in the past (and read the Daily Planet at least once, so probably knew ahead of time that this particular caped individual is indestructible). Thus, we’ve established that factual impossibility and possibly mens rea (by virtue of knowing that his assault is futile) reduces his crime to misdemeanor assault (also, in this case, known as “being annoying”).

    A couple hypotheticals, now:

    Let’s say Pyro decides Clark Kent is a prick for reporting on him in a bad light. He knows Superman is invulnerable, but he thinks he could burn Clark to death (not knowing the Man of Steel’s secret identity). So he burns him! When Clark shows up in court to testify that Pyro did, in fact, bathe him in flames (and it’s a good thing Superman showed up to save me with super-breath!), is that attempted murder? I’m guessing “yes,” but it’s worth thinking about.

    Now, let’s take that same situation, but assume Pyro’s flames burned away Kent’s suit and revealed the “S” underneath. Pyro now knows he can’t kill Clark (having discovered his secret identity). Leaving aside the problems having his secret ID broken poses for Superman, can Pyro plead that superman was invulnerable, so it really wasn’t attempted murder? I’m guessing “no,” because he THOUGHT he could kill Clark, even though he knew he couldn’t kill Superman.

    Alright. So somehow, Clark protected his secret identity, and Pyro looks like an idiot. Pyro, being a supervillain, escapes jail and decides to prove to the world that Clark Kent is Superman. He puts on a trenchcoat and lurks outside the Daily Planet. Being unusually social conscious today, he deliberately waits for a moment when Clark is out in the open and not near enough anybody else Pyro could be accused of recklessly endangering anybody else, and bathes Mr. Kent in flames. He’s guilty of assault, and nothing else, right? Whether Clark is unmasked or he again pulls off a “the Man of Steel saved me!” Pyro can claim “I had no intention of killing him, and had every reason to believe it would only destroy his suit.” Could “attempted murder” stick? Obviously, “insanity” is no defense. A rational man CAN believe Clark Kent is Superman. A rational man, with a right reading of evidence, might even believe Jimmy Olson or Lois Lane was (hey, who says the Man of Steel can’t have gender-bending or shapeshifting powers he never, ever reveals?).

    Next, let’s take the above scenario again. But, on this particular tragic day, Clark had suffered one of his many bouts with depowerization. Pyro believes (correctly) that Clark is Superman and (incorrectly) that fire cannot hurt him. He bathes the mild-mannered reporter in flames, and is stunned when the charred corpse falls to the ground. Is he guilty of murder? Manslaughter? He honestly believed – and had rational reason to believe – that Clark Kent was Superman and thus could not be hurt seriously by this. He had no intent to kill. Is this “reckless?” “Negligent?” Neither? Does the case change if it is shown that Clark WAS Superman, just depowered? Or does whether Pyro was right or wrong matter if he honestly believed it and had evidence of it that a sane man might have believed?

    Finally, let’s say Thuggo, Pyro’s cell mate (with the super power of being a thug!), who busted out of jail, is robbing a bank. Clark (who somehow came back to life; this is a comic after all), still depowered, puts on his Man of Steel uniform to bravely try to halt this horrible crime, counting on bluff to pull him through. Thuggo shoots him in the chest, just like every other meathead with an uzi. He knows this is Superman. He knows this cannot even slow him down. He’s just venting a bit as he tries to get away. But the bullet hits and kills Superman. Is Thuggo guilty of murder? Even manslaughter? This is a pretty accidental death; he didn’t have even the slightest inkling that it would be worse than slapping the guy on the back.

    • I generally agree with your analysis of your first two hypotheticals. But as to the others:

      Pyro attacks Clark Kent believing he is Superman: still attempted murder under recklessness, I think. There’s an objectively high risk that Pyro is wrong about Superman’s identity. (By the way, that’s not really the test for insanity, but no matter).

      Pyro attacks de-powered Clark Kent, killing him: I think this is pretty clearly felony murder, which usually means first degree murder with capital punishment available. Pyro is no doubt committing numerous other felonies by attacking Clark, and the immediate result is that Clark Kent was killed. His lack of intent to kill Clark Kent is immaterial. I think the Thuggo case is the same.

    • I’ll also add that in the case of a de-powered Superman being killed, the eggshell skull rule means that Superman/Clark Kent’s heirs would be able to receive full compensation for Superman’s death in the ensuing wrongful death suit. That Superman would ordinarily have shrugged off the attack is immaterial: you commit the tort, you take your chances.

  6. Scott W. Somerville

    There’s always felony murder for the de-powered Superman case. Any death that results from an inherently dangerous felony can be charged as murder, so assault with a deadly weapon on a depowered (and subsequently dead) Superman should result in a felony murder conviction.

  7. I remember reading a YA novel where the kids had to deal with an evil witch, who looked like a beautiful young teenager. They discovered that witches had a deadly allergy to a particular plant. They set up a trap where they lured the woman under a tree and poured a thermos full of tea made from the plant over her. One of the teenagers asked “Won’t that be murder?” but was assured by their peers that since if you poured the tea over a normal person they would just get wet, it couldn’t be murder to just pour it over the witch. Even at the time, I wondered if that meant one could kill people with peanut allergies with impunity.

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  9. Isn’t this a variation of an old legal example. A man sees his hated rival sleeping on a bed and shoots him. He is caught. At trial, it turns out the victim had died of a heart attack and had been laid out waiting for the mortician. The shooter claims that he should be set free because he didn’t kill anyone. IIRC he was convicted of attempted murder because he believed he was shooting his rival and had intended serious bodily harm. Note that no harm was actually caused – because well the victim was dead. So when people shoot guns and flames and throw things at Superman only to watch them bounce off, they are still guilty of assault with intent to either inflect great bodily harm or attempted murder.

  10. Is there such a thing as ‘felony attempted murder’, though? What if depowered Superman is severely burned by Pyro’s attack, but thanks to the heroic intervention of S.T.A.R. labs medical team, survives and eventually recovers. Is assault now the strongest charge that can apply?

    • No, I think the felony murder rule only comes into play when a death has actually resulted. Though in a case where the attack caused severe burns there would be much worse charges than simple assault. Aggravated battery, at the very least.

  11. People v. Joseph, which is referenced in the post, can be accessed online at:


    Google Scholar’s legal reference tools are pretty darn good.

  12. Just discovered this blog, and I have a question: In a superhero universe, an individual, aged 21 or more (so not a minor) has a yet undiscovered superpower (Let’s say that he has something like Cyclops’ eye beams) that manifests for the first time, and due to that first manifestation, kills someone. Would this be a case where you killed someone completely innocently?

    • I would think it boils down to foreseeability. If you had no idea you were about to develop deadly powers, it’s an accidental death. But if all 4 of your brothers developed deadly eyebeams on their 21st birthdays, and you kill someone at your 21st birthday party with your newly developed killer eyes, I think at a minimum, it’s negligent homicide.

      L nny

  13. A twist on this question is whether Wolverine or others with the healing factor could ever plausibly claim self-defense to justify their use of deadly force. For instance, if Pyro blasts Wolverine, who heals, and then stabs Pyro to death as Pyro attempts to unleash another blast of fire, can Wolverine claim self-defense?

    • I think they probably could. Just because Wolverine will heal doesn’t mean that Pyro won’t inflict serious bodily injury. In that particular example, I think Wolverine is probably in the clear, because 1) getting hit with a blast of fire totally sucks, so at least some serious level of force is going to be appropriate, and 2) Pyro’s abilities are dangerous enough that using deadly force to stop him is probably justifiable under a theory of defense of others. There are probably certain circumstances where the latter wouldn’t come into play, but if a guy is just randomly flinging fireballs around, the idea that taking him out was necessary, even if that meant killing him, might not be that tough of a sell. Arson is way up there in terms of criminal seriousness–one of the original felonies to qualify for felony murder–so the use of lethal force to stop something like that is, at worst, borderline, and at best downright justified.

      Let’s change things a bit though: say that instead of Pyro, who is a manifestly dangerous individual, we’re talking about, say, The Blob. The Blob is a tough customer to be sure, but it isn’t as if his powers are going to either 1) seriously hurt Wolverine in any kind of permanent way, or 2) pose any unintentional risk to others. Pyro might accidentally burn down the building, but Blob is just likely to break stuff. Which is bad, sure, but doesn’t pose the same level of threat to others that Pyro’s abilities do. So putting Wolvering up against someone like that, who is dangerous but not in the same kind of unrestrained way that Pyro is, would seem to make the use of lethal force less appropriate.

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