This week we look at sovereign immunity related to escapees from Arkham Asylum, liability for crimes against shapeshifters, and the possibility of non-consensual cloning. As always, if you have questions or post suggestions, please send them to email@example.com and firstname.lastname@example.org or leave them in the comments.
I. Escapees from Arkham Asylum
One of our readers sent in a question about whether, seeing how supervillains seem to be able to escape so easily from Arkham Asylum–or regular prisons, for that matter–the government might be found liable for damages to the victims of said supervillains after they escape.
This one is actually pretty straightforward: No. The reason is that sovereign immunity would act to prevent such claims. Sovereign immunity is the legal doctrine which holds that governments cannot be sued without their consent. The doctrine has its origins in medieval times, when the courts were really courts, i.e. official functions of the monarchy, held in various places at various times. The theory was that petitioners to the court were really asking the king to do justice, one of his duties as the monarch, and that as a result, suing the king really didn’t make all that much sense. Hauling a sovereign into his own court to ask him to do justice against himself? These days, with our notions of popular sovereignty, that may make a certain amount of sense, at least more than it did in the Middle Ages, but when the sovereign was a single, identifiable person it didn’t.
These days, it is possible to sue federal and state governments only because they have adopted statutes which consent to such suits under limited circumstances. The federal statute is the Federal Tort Claims Act, particularly 28 U.S.C. § 1346, which grants district courts jurisdiction over tort claims against the government where the plaintiff would be able to recover if the defendant was a private citizen. However, federal law contains an exception to this jurisdiction in 28 U.S.C. § 2680(a) for “discretionary function[s] or dut[ies]”, and the good money suggests that this would act as a bar to claims. Some states, like California, actually have a specific exception for this very situation.
So, no, the law generally does not permit suits against the government for damages caused by escaped prisoners.
II. Liability for crimes against shapeshifters
Mark asks what crime a person who kills someone who has shapeshifted into an animal might be convicted of. Homicide crimes have two elements. First, a person’s death has to have been caused by someone else. But second, and this is the one that determines what kind of homicide is at issue, the killer needs a particular kind of mental state. So in the killing of a shapeshifted individual, the question really becomes what the killer knew at the time.
If Wolverine sees Mystique change into a tiger and kills the tiger, that’s clearly an intentional killing, and would be first degree murder unless he has some kind of justification for the act. But if he happens upon a tiger and kills it, the fact that it turns out to have been Mystique will not necessarily make him liable for any kind of homicide: he thought he was killing a tiger, so he lacks the mental state for homicide. The question gets more interesting if he knew Mystique was around and what she can do. Then we might have a case for reckless homicide, as he engaged in an act which he thought might lead to the death of another, but he did it anyway.
The real sticker is negligent homicide. For negligent homicide, the defendant needs to kill someone, unintentionally, but by engaging in behavior that a reasonable person would not have under the circumstances. In a world where shapeshifters are known to exist, might that change what counts as “reasonable” with respect to killing animals? It seems unlikely, actually. Unless the person doing the killing had some reason to know that this particular animal might actually be human, which might make it reckless homicide anyway, it is difficult to imagine a court holding that the normal standard of care involves making sure that a particular animal is, in fact, an animal, before killing it. Even in worlds with shapeshifters, there generally aren’t thought to be very many of them, so the good money seems to be on a “not guilty” verdict for someone who kills an animal, thinking it’s an animal, that turns out to be a person.
III. Non-consensual cloning
Jacob asks, among other things, what legal repercussions there might be for creating a clone of a person without that person’s consent.
Actually, laws related to genetic experimentation and cloning are still in their infancy and mostly focused on research, so that act, as such, might not constitute any kind of crime. It’s also difficult to think of what tort might lie: misappropriation of likeness? Not unless the clone went around impersonating the original.
But if nothing else, we could have a fairly easy case for assault and battery, either as a crime or a tort, depending on how the genetic material was acquired. If it was given consensually, then our original may actually be out of luck. See, e.g., Moore v. Regents of Univ. of Cal., 51 Cal.3d 120 (Sup. Ct. Cal. 1990) (holding “the use of excised human cells in medical research does not amount to [the tort of] conversion“). But if it was taken against the original’s will or without their knowledge, it constitutes an intentional, non-consensual touching, creating the possibility of both civil and criminal liability.
As such crimes are generally misdemeanors unless committed with a deadly weapon, that hardly seems an adequate punishment for what most people would think is a pretty big deal. Perhaps this is an area where the law would need to develop if the cloning of entire individuals proved a viable technology.
That’s all for this week. Keep ’em coming!