Law and the Multiverse Mailbag IV

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 james@lawandthemultiverse.com and ryan@lawandthemultiverse.com 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!

25 responses to “Law and the Multiverse Mailbag IV

  1. A belated followup to the last mailbag, regarding tort liability for Bruce Wayne for funding Batman: Couldn’t negligent entrustment be used as a theory of liability? By now Bruce could reasonably be expected to know what Batman does with all that money.

    • Negligent entrustment requires the entrustment of a dangerous instrumentality (e.g. a car, a gun, that kind of thing). I don’t think money counts. Here’s how the Restatement (Second) of Torts defines it:

      “One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.”

      Certainly the money itself poses no risk of physical harm to anyone (except maybe paper cuts), though it is technically a chattel. And the use of the money would be to do things like buy equipment and pay the rent on the secret headquarters, which again poses no risk of harm. Yes, the equipment purchased with the money could be used in a way that involves unreasonable risk of harm, but I think the connection to the money is too tenuous at that point.

      • Regarding negligent entrustment or the gifting of dangerous articles, you mentioned once that Wayne incorporated likely sells the inventions 18 months or so after Batman uses them to fight crime, back when you discussed patents. So you can’t argue that Batman bought his grapple gun from Wayne corp, because it wasn’t on the market yet. He was being entrusted with gliders, grappling guns and shark repellents! If you can tell me one activity those items can be used for which is not considered dangerous well…we need to make that an Olympic sport!

        In addition, the Tank/Batmobile from Batman Begins is a Wayne Enterprises invention, which is clearly dangerous. batman got that directly from an employee of the company, who later became CEO. From an outside reporter, it looks like lucius fox was rewarded with a promotion for entrusting Batman with A TANK! A tank designed for URBAN environment!

        So even if you argued that Fox could say he had no idea Batman would use the vehicle in Gotham (good luck using the same excuse on the Batwing), batman would still be committing a crime if he tried to take it abroad, since, like Iron Man’s trip to Afghanistan, you can’t take weapons abroad without permission! And that TANK is armed to the teeth, if not considered a weapon in it’s own right.

        What I’m saying is, does that change your view on the negligent entrustment issue?

  2. As both a lawyer and a comics geek, may I just say how freaking awesome your blog is?!!!

  3. Regarding the shape-shifting theory, I don’t know how much of a wise-acre I’m being, but if it was that cut and dried, wouldn’t you (presuming you to be a super-villain, I mean) just claim that everybody you’ve killed was thought to be a tiger at the time?

    Cloning, though, has some semi-interesting precedent in the real world. The legalities are often swept entirely under the carpet, but nearly every biological lab in the world has “HeLa” cells, cancerous cells cultivated and cloned repeatedly since 1951. Nobody has yet tried to make their own Henrietta Lacks, of course, but the fact that just about every advance in genetics has used her cells…”in for a penny, in for a pound” isn’t legal doctrine, of course, but it’s possible it might be permissible as the natural endpoint of Henrietta’s legacy.

    Mind you, those cells are also “immortal,” in that they can infinitely divide, and they’re also somewhat alien, in that the genome has crossed in odd ways with HPV18. So if someone does make a new one of her, she may personally answer some of the questions here.

    • 1. Sure they could. And if a jury believed them, they’d walk. But that’s the catch, isn’t it? Any defendant can claim or raise any defense, but unless the jury buys it, they’re still going up the river.

      2. I’m aware of those cells, and the fact is that they don’t start assembling themselves into a human body. They just grow and grow and grow, being, after all, cancer. Which is interesting, but not likely to lead to the creation of another person.

      • Oh, I realize that it’s not cloning, per se. But the state of the art in cloning is rather terrible, in our world, with less than twenty species of mammal surviving to any significant extent. So cells tend to be really bad at self-organization, anyway, in artificial circumstances; SCNT isn’t exactly stable.

        I suppose that my original point was that her cells (among many others) were kept and used for millions of experiments without her consent or knowledge. The extent to which donors like Henrietta or her heirs would have a case against her doctors or the researchers would guide how the courts might handle a full clone.

  4. Your previous FAA and flight analysis made me think of the applicability of speed limits to Speedsters. Would it be a similar case, where the Flash running faster than the speed limit would not count since he has no vehicle? Also the Batmobile probably speeds, but since it is most likely not registered, what are the consequences? Could it be designated an emergency vehicle (private ambulance? firefighter?) and therefore be exempt? (extra: The Flash’s violation of the universal speed limit: the speed of light.)

    • Well, speed limits don’t apply to the Flash, because as you pointed out, he isn’t operating a vehicle. The law is not “You shall not go faster than 65mph,” it’s “You shall not operate a vehicle going faster than 65mph.” But the Batmobile is all kinds of illegal, as it isn’t registered and thus would not be eligible for any kind of special designation.

      Violating the laws of physics isn’t illegal.

      • I think – under the Batman Incorporated rules – the registration situation re: Batmobiles will have changed. No?

  5. Re: cloning

    Given the value, including monetary, now associated with human genetic material, might the person whose cells are used to make an unauthorized clone have a claim of theft?

  6. Re: cloning and artificial reproduction
    Let’s suppose a super villain creates an army of human soldiers with some mutant powers, either through traditional reproductive technology or cloning. They are nurtured and birthed through an artifical womb. Who would be considered their legal parent(s) and have first right to custody/have to pay child support? Would it matter if the donors voluntarily gave their genetic material (although they may not have known the exact use)?

    • That’s tricky, particularly because of the artificial womb business. That really hampers the usual ways of determining parentage, though a flexible court could rule that whoever had possession and control over the womb was legally a parent in the same way a woman who carries a child is. I suppose the supervillain could legally adopt the offspring, just to be on the safe side. It would vary from state to state, of course.

      The voluntary donation of genetic material does matter. If it’s voluntary then there can be contractual language relinquishing rights to any offspring. But note that you can’t sign away a child’s right to support, so although the donors may not have parental rights, they may still be liable for support in some states (if, for example, the supervillain were imprisoned). As in many family law situations, things get complicated quickly.

      • That would explain why Paul Kirk made it his goal to kill off all his clones in the old Manhunter backups, I guess. Yeah, there’s the “abomination” argument, but supporting an army of live-in killer man-children sounds…actually, it sounds like a Will Ferrel movie. That can’t possibly be a good thing.

      • Martin Phipps

        How about this hypothetical case that could happen in the real world. Suppose a man has sex with his girlfriend using a condom and afterwards disposes of the condom in the trash. His girlfriend’s roommate later finds the recently discarded condom and uses it to impregnate herself. When the baby is born and the man is proven to be the father does he have to pay child support? I think he probably would. By the same token I think I would have to pay for the care and upbringing of my clone unless it could be shown that either I was cloned without my consent or that the clone has been legally adopted by someone else.

      • “By the same token I think I would have to pay for the care and upbringing of my clone unless it could be shown that either I was cloned without my consent or that the clone has been legally adopted by someone else.”

        A child who is a clone, like any other child, has a right to support from his or her parents. The question then is under what circumstances the original person (the source of genetic material) is a parent. I think, as you suggest, that consent and adoption are relevant to that question.

      • Martin: As you point out, in the real world, if someone uses your sperm to make a child, you’re responsible. I don’t think, then, that whether you are cloned without your consent would matter. There have been real-world cases where a child was conceived by statutory rape. The father is required to pay child support anyway.

      • Martin Phipps

        What complicates things is how cloning in portrayed in comics and science fiction. In the real world, a baby is a baby is a baby and it shouldn’t matter if the baby is a clone as long as they can identify two parents (and as I can’t have a baby by myself there will always be a second person involved, except in the case of a female doctor who clones herself in which case that is her responsibility alone). In comics in science fiction though, a supervillain could take a skin sample from me and use it to make a hundred clones. As they say “the law would need to develop” but I doubt if anyone would hold me responsible for that.

        One other thing, if we had artificial wombs in the real world then they would be in labs and they would be getting funding from somebody, usually a corporation so somebody birthed in an artificial womb would probably be legally owned by a corporation, at least until the baby is legally given a birth certificate. This would certainly help to get me off the hook for having to pay child support, I would think.

      • “somebody birthed in an artificial womb would probably be legally owned by a corporation”

        People cannot be owned in the US, regardless of the circumstances of their birth or whether they have a birth certificate or not. It’s entirely possible that the production of human beings would be considered ultra vires, and thus the child would be the individual responsibility of some set of people (possibly the manager who was in charge or the scientists who ran the lab).

      • Martin Phipps

        Here’s another potentially real case. Suppose my wife and I decide we want to have a baby and we go to a doctor and we opt for invitro fertilization. The procedure is a success the first time so the extra embryos are placed in storage and not given much thought by either of us. But then an unmarried woman comes to see the same doctor and ask if he can help her get pregnant and the two of them -without the consent of my wife or myself- opt to use the embryos we have in storage. Years later the unmarried woman falls on hard times and asks us for support. Does she have a case? Can my wife and I demand custody? Did either the doctor or the woman break any existing laws? This is probably an even better precedent than the last hypothetical case I suggested because the embryo fully belonged to my wife and I and is not the other woman’s offspring even though she gave birth to it.

  7. Does that mean that Peter Parker has to pay child support for Ben Reilly? The problem with comic-book and TV/movie clones is that they’re usually treated as adult duplicates or “twins” when in actuality a clone is an offspring. So the questions involved may differ depending on whether we’re speaking of cloning in real-world terms or in comic-book terms. What about a comic-book clone with the memories and personality of its original, like Ben Reilly? How would they be legally defined?

    • Often it makes sense to treat a clone as a twin or adult double because usually they’re introduced as adults. A court might still consider them to be offspring but for purposes of legal guardianship, education etc there might not be any point.
      Of course this creates an entirely different question. How would our legal system handle a clone who chronologically was only a few years old but emotionally and physically was an adult*? Would there be any way for them to vote, gain employment, register with the military or other things that require you to be above a certain age? In contrast, would a clone chronologically the age of 13 but physically 25 with a college education be required to attend school?

      *Yes, I’m aware cloning doesn’t work that way but that’s the way it’s often presented in comics so that’s what we have to work with.

      • Martin Phipps

        There’s two possibilities, of course, namely that the clone has all your memories or it doesn’t. If it does then that’s another kind of technology altogether because DNA doesn’t carry memories. If it doesn’t then it is still mentally a child, although stories often still have clones having “implanted” memories, whatever that means.

    • One of the best examples is the current Superboy. He’s a clone of Superman with some Luthor added in, giving him two “parents”. He’s treated as family by Superman, and while he has certain implanted skills so he can act like a teenager, they don’t include actual memories. While this certainly isn’t realistic cloning it’s almost the opposite of Ben Reilly.

      Another example is X-23. No memories and created as a child. Also treated as family to some degree by Wolverine.

      That being said, there’s a continuum from “two gene sources, created as infant, no skills, no memories” to “one gene source, created as adult, has skills, has memories”. A clone could have any one or none of those traits and the closer it gets to one end or the other, the less or the more the cloning resembles a child rather than a sibling or a duplicate. Are we going to end up saying “if the clone has at least X number of characteristics from this list, the clone is considered an offspring, otherwise not”?

  8. Regarding the various Batmobiles – would they be street legal if registered? Many film versions of it still exist, mostly confined to theme parks and such.
    Here in Australia, there is a park called Movie World that has a few Bat-vehicles including the Tumbler and the Batman Returns batmobile, as well as Robin’s and Batgirl’s motorcycles from ‘Batman and Robin’. They’ve even got the bat-boat from Batman Forever (it was rebuilt after having been blown up in the film).

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