Law and the Multiverse Mailbag VII

Today we have questions about supervillain gadgets and imposing unwanted powers on people.  As always, if you have questions or post suggestions, please send them to and or leave them in the comments.

I. Supervillain Gadgets and Asset Forfeiture

Ken asks “If a supervillain invents a useful device, and uses it for crime, and it
gets taken by a superhero or by the law, are they required to give it back? What if the superhero uses it–for instance, suppose it’s a device to animate rock and the superhero builds a million dollar tunnel with the device before handing it back, does he owe the crook a million dollars?  Is this changed if the device is patented and the superhero tries to make more of them to give to tunnel builders everywhere?”

The answer here really depends on whether the device is taken by a superhero acting as a private citizen or by law enforcement.  If it’s taken by a private citizen, then it would likely have to be turned over to the police, either as evidence or because it can legally be seized.

Assuming it can be seized, which is very likely, I don’t think the superhero would be liable to the supervillain if the superhero used the device for a while.  Since the supervillain has forfeited his or her property rights in the device, he or she can’t sue for conversion or trespass to property.  If the government wanted to be a jerk I guess it could sue or bring criminal charges, but that seems unlikely unless the superhero’s use of the device interferes with the criminal prosecution of the supervillain.

If the device were patented, that presents a few other wrinkles.  Since I don’t think the patent itself would be subject to seizure, the villain could presumably enforce the patent from behind bars.  The government has a license to all patents, and so it would only have to pay the villain a reasonable royalty, but a private party could be enjoined from using the patented invention.  But it’s questionable as to whether any of that would extend to the actual device seized.  If the villain’s property right in the device is forfeited by using it to commit a crime, then it seems to me that carries with it either an implied license or an exhaustion of the patent rights akin to a sale.

We’ve mentioned seizure and asset forfeiture a few times, so what exactly does that mean?  The federal government and the states have laws that allow the government to seize property that is itself contraband (e.g. illegal narcotics, unlawful weapons, adulterated food or drugs), the proceeds of illegal activity (ill-gotten gains, basically), or was used in the commission of a crime (e.g. a getaway car, a lawfully owned gun used to commit a crime).

There are two kinds of asset forfeiture proceeding: criminal and civil.  In a criminal proceeding, the forfeiture is part of the criminal sentence, so the defendant must be proven guilty of an underlying crime.  The other, much more popular kind, is civil forfeiture.  In a civil forfeiture case, the government sues the property itself (under the legal fiction of the property’s guilt) and the original owner is a third party claimant who must argue that the property is not actually subject to forfeiture.  Because of the lower standard of proof in civil cases and because there is no need to actually prove the defendant guilty of an underlying crime, civil forfeiture is more common than criminal forfeiture.  It also leads to hilarious case names like United States v. Five Gambling Devices and United States v. Forty Barrels and Twenty Kegs of Coca-Cola.

The main federal civil forfeiture laws are 18 USC 981 and 21 USC 881 (the latter deals with controlled substances so it’s not relevant to the standard supervillain gadget case).  The ‘good news’ from the point of view of most supervillains is that the federal civil forfeiture laws are somewhat limited.  Generally the underlying crimes fall into three categories: white collar crimes (e.g. fraud, forgery), controlled substance crimes, and terrorism.  The criminal forfeiture law 18 USC 982 uses the same categories.  Some supervillains might get caught out on the terrorism provisions, but many are relatively small time or stick to things like robbing banks and museums.

Alas the state civil forfeiture laws tend to be much broader.  For example, here’s part of New York’s:

A civil action may be commenced by the appropriate claiming authority against a criminal defendant to  recover the property which constitutes the proceeds of a crime, the substituted proceeds of a crime, an instrumentality of a crime or the real property instrumentality of a crime. New York Civil Practice Law and Rules § 1311.

As it turns out, ‘crime’ is defined pretty broadly.  Basically, any felony counts, so long as the defendant is ultimately convicted, and it would allow the state to seize not only the villain’s devices, but also his or her lab, lair, secret hideout, or what-have-you (i.e. the “real property instrumentality of a crime”).  The bottom line is that convicted supervillains can look forward to starting over from scratch each time they are released or break out of prison.

II. Liability for Imposing Powers on Others

Megan asks “In the movie X-Men when Magneto injects Senator Kelly with “mutant serum” and he dies as a result, if he had lived long enough would he have had a case against Magneto for either turning him into a mutant against his will or by inadvertently killing him as a result?”

This one’s actually simpler than it might sound: yes, there would be liability, both civil and criminal, under a theory of criminal assault or murder and civil battery or wrongful death (depending on whether Kelly dies or not).

The law generally penalizes those who cause bodily injury to another. In this case, Senator Kelly has been taken against his will (which is kidnapping and false imprisonment, by the way) and physically altered. So there’s criminal assault and civil battery. His damages are proportional to his injury, which is pretty serious in this case. Should he die as a result (as he did in the movie), Magneto would be liable for the death under both civil and criminal theories.

Interesting side note: what kind of murder is Magneto guilty of?  Normally he wouldn’t be guilty of first degree murder, since he didn’t intend for Kelly to die, nor did he know that it would happen.  But the murder occurred as a result of a separate felony, namely kidnapping.  This invokes the felony murder rule, and felony murder is typically first degree murder.  Supposing the felony murder rule didn’t apply, Magneto might still be guilty of second degree murder under the theory of depraved heart murder, since using untested genetic manipulation techniques on an unwilling subject likely demonstrates a “callous disregard for human life.”  Failing all that we fall back on involuntary manslaughter.

There are, however, two little wrinkles here. First, Magneto can be liable for assault/battery or murder/wrongful death, but probably not both at the same time. The principle of merger applies in the criminal context, and civil courts will not permit plaintiffs to recover more than the sum of their damages by using alternate theories (i.e. you can’t recover twice for the same injury). However, Magneto wasn’t acting alone here, so in addition to the kidnapping, assault, and murder charges, he could also be criminally charged with conspiracy to commit those offenses, as conspiracy is an independent crime which does not merge with target offenses. The theory here is that groups of people acting in concert are more dangerous than solo criminals, and acting in concert is punishable in and of itself.

Second, what if Senator Kelly didn’t die, and his mutation turned out to be harmless if not downright beneficial? Say Magneto somehow discovered how to give people regenerative powers similar to Wolverine’s and then forced that transformation on Senator Kelly. Sure, there’s still the criminal charges as well as civil claims for false imprisonment and battery, but damages for the latter are going to be pretty hard to prove. If anything, Kelly is now better off than he was before! Recognizing this, a court would likely find that Magneto could be liable for battery but would probably limit the damages to something close to nominal.

There’s another potential claim lurking in here too: intentional infliction of emotional distress. Senator Kelly had a pretty strong emotional aversion to mutants, so changing him into one would definitely cause some kind of emotional trauma. If he lived and that trauma interfered with his ability to live his life, he could recover damages for that. Medical bills for therapy or lost wages are the typical ways of proving that. IIED is somewhat disfavored by the courts, and recovery is generally limited to extreme and outrageous conduct that goes beyond all bounds of civilized conduct and that actually causes “severe” emotional distress, but this seems to be a pretty good example of both.

Keep ’em coming, folks!

17 responses to “Law and the Multiverse Mailbag VII

  1. Great article, but one small correction: Where it says, “What kind of murder is Magneto guilty of?” it should be “What kind of homicide is Magneto guilty of?” because you also consider involuntary manslaughter

    • That’s technically accurate, but involuntary manslaughter was just the fallback option. The facts would have to be quite a bit different from the movie to get things down to manslaughter (e.g. no kidnapping, for one thing). And if you want to get really technical, the question should actually be “What kind of unlawful homicide is Magneto guilty of?”

  2. In the case of Senator Kelly, would that not also be assault of a federal offical as in the case of the shooting of Cong. Gabrielle Giffords.

    • That’s true. The relevant statutes are 18 USC 111 for assault and 18 USC 1114 for murder or manslaughter. Note that both sections apply to crimes committed against officials “while engaged in or on account of the performance of official duties.” I don’t recall if Kelly was engaged in his official duties when he was abducted, but the crimes were plainly on account of the performance of his official duties (i.e. his status as a senator and particular official acts he had previously performed). See, e.g., U.S. v. Velarde, 528 F.2d 387 (9th Cir. 1975); U.S. v. Hernandez, 921 F.2d 1569 (11th Cir. 1991).

  3. Regarding damages in the case that Senator Kelly wound up with a beneficial mutation: Would effect on his career factor in? Specifically, he’s a politician in a political climate which disfavors mutants (regardless how innocuous the power may be toward others), and in particular Senator Kelly’s constituent base is strongly anti-mutant. Chances are he’s not getting reelected as a mutant, with the anti-mutant voters almost certainly turning their backs on him in favor of a non-mutant and pro-mutant voters hardly likely to forget his prior stance on mutants. Would these be considered damages from the battery?

  4. Here’s a question. Larry Niven wrote the essay “Man of Steel, Woman of Kleenex” and argued that sex with Superman would kill Lois. (His thrusts alone would cause internal bleeding and his ejaculation would have the force of a gunshot.) Now if Superman were to kill Lois then that would be negligent homicide, right? Because he would be expected to be able to foresee what affect his powers would have on Lois. But what if she were merely hospitalized? Would Lois have a civil suit? Is hurting someone inadvertently a crime?

    • Let it never be said that we at Law and the Multiverse shy away from the controversial issues! Anyway, it depends on just how inadvertent the action was, but in general yes, hurting someone inadvertently is a crime. Typically a person can be liable for assault even if their actions were merely reckless or even just criminally negligent. Here’s New York’s definition of third degree assault, for example:

      “A person is guilty of assault in the third degree when:
      1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or
      2. He recklessly causes physical injury to another person; or
      3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.”

      In view of the statutory definitions and case law, I don’t think Superman’s body would qualify as a deadly weapon or a dangerous instrument, as though suggest an object external to the body. So his liability for third degree assault would turn on whether what he did was reckless:

      “A person acts recklessly with respect to a result or to a circumstance … when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”

      So in turn that depends on whether Superman realizes what would happen and goes ahead with it anyway.

      Under New York law, second and first degree assault are probably inapplicable here because there’s no intent, use of a deadly weapon or dangerous instrument, or “circumstances evincing a depraved indifference to human life.” Third degree assault is a misdemeanor in New York, so Superman’s guilty conscience would be the bigger issue, I think. As it happens, though, he may be able to avoid the problem entirely with a little creative problem solving.

    • Considering that he is obviously quite capable of controlling himself enough to turn doorknobs, type on keyboards, shake hands without crushing them and perform other everyday tasks I think it’s safe to assume that Mr. Niven’s arguments are probably incorrect. Additionally we have no idea how much force ejaculating would have. It’s not as though such things can be measured by your upper body strength or ability to withstand blows. Indeed I can’t think of any reason why it should have the ‘force of a gunshot’.
      Of course those are medical issues and not legal ones but I think you could make a good argument that Superman could safely assume that intercourse would be safe based on his ability to get through an entire day’s work without smashing his computer by accident.


        “Superman has been known to leave his fingerprints in steel and in hardened concrete, accidentally. What would he do to the woman in his arms during what amounts to an epileptic fit?”

        “Superman would literally crush LL’s body in his arms, while simultaneously ripping her open from crotch to sternum, gutting her like a trout.”

        “Ejaculation of semen is entirely involuntary in the human male, and in all other forms of terrestrial life. It would be unreasonable to assume otherwise for a kryptonian. But with kryptonian muscles behind it, Kal-El’s semen would emerge with the muzzle velocity of a machine gun bullet.”

        I paraphrased.

      • By this reasoning, since blinking is mostly involuntarily, every time Superman blinks it should happen with a dozen pounds of force and make a sound loud enough to be heard across the room. The same applies to his heartbeat. Needless to say, this doesn’t happen.

        There is no sign anywhere that because Superman has super-strength, that means that his involuntary muscle contractions are also super-strong.

      • There is some (non-canon) evidence that the problem has been solved one way or another. Son of Superman and the Superman Returns movie both featured children of Superman.

        As for the strength of his involuntary muscle movements: Pre-Crisis Superman destroyed an entire solar system with a sneeze, although the sneeze might only have been uncontrolled because of Mr. Mxyzptlk’s dust.

      • You could also argue that when Superman gets hit by a car as Clark Kent and the car is damaged then this is involuntary. The driver cannot sue Clark Kent for damages (I would think). Indeed, it probably is cheaper to fix a car than pay medical bills and/or make up lost wages as a result of injuries.

        Seriously, why should a car be damaged as a result of hitting Clark? Is he that heavy? Does Clark have to consciously use his power of flight when he sits on a chair to avoid breaking it and arousing suspicion? Likewise when he gets in an elevator he would probably have to fly under his own control because the elevator couldn’t lift him if he were that heavy. Wouldn’t he crush Lois if he were on top of her?

        (I’m surprised Larry Niven didn’t consider the possibility that Lois would be on top of Clark. No internal injuries for Lois in that case, although there’s still the question of Clark’s ejaculation. Clark should have some idea of the force of his ejaculation. Tell tale holes in his pajamas and bedsheets would have given him a clue.)

  5. In re. to Martin Phipps comment on Superman’s weight, weight isn’t the issue*. What matters is the speed the car is moving at. Assuming that Superman weighs a bit over 200 pounds** he should leave a nice big dent at the very least in any car going fast enough to accidentally hit him. It’s the same basic reason for why there’s so much worry about one of our satellites getting hit by some small piece of rock in space, at the speeds they’re moving the damage would be incredible.

    *Well it partially is, but not quite the way you’re looking at it
    **That should be a little less than 100 kilograms

    • Superman’s weight is important because when a normal person gets hit by a car it doesn’t damage the car all that much. Instead, the normal person is sent flying, usually to their death. If Superman weighs the same as a normal person then he should be sent flying away and the car shouldn’t be so badly damaged. Superman won’t be hurt because, hey, he’s Superman. But if Superman just stands there when he car hits him then that means he is much heavier than the car and this would be a big problem for Superman beyond the question of how he would have sex with Lois.

      • Technically speaking, what determines that a normal person goes flying is not weight (gravitational mass) but rather inertial mass. While these are equivalent (though distinct) for, well, all known matter (because gravity is just another force), it wouldn’t be unreasonable to consider that they differ for Superman, considering his array of powers. In fact, the ability to alter his own gravitational mass at will (anywhere from normal human weight down into the negatives for flight) while retaining an incredibly high inertial mass would be an interesting way to look at his abilities. Of course, this would bring up its own set of problems (like if he was -in- a car that crashed, or otherwise came to a sudden stop, he’d have to ‘fly backwards’ in place to keep from snapping his seatbelt and going through the windshield and possibly the nearest building).

      • Okay but then Clark would still have to turn his power off when he goes up in an elevator because in that case both gravitational mass and inertial mass are considerations. If he can turn his powers off then he should be able to have sex with Lois, although he’d be taking a big risk. Does he have to concentrate to use his powers or does he have to concentrate to not use his powers? Could he hurt Lois in the heat of the moment? And wouldn’t this be the perfect time for Lex Luthor to attack knowing that Superman wouldn’t want to use his powers with Lois there?

  6. Um, you’re all forgetting a few things here.

    1.) Lex Luthor doesn’t have a clue about Superman’s real identity, so no sweat there. I mean, he’s been presented with the possibility before, but he’s just too dense to accept it.

    2.) Superman’s weight is irrelevant, because of one of his chief powers- almost total invulnerability. If Superman as Clark Kent got hit by a car, which is unlikely to begin with considering his super-hearing, super-reflexes, etc., it would be roughly the same as if the same car ran into a giant steel pillar about three feet in diameter.

    3.) It has already been established in canon that although Clark and Lois cannot reproduce togehter, due to Clark’s Kryptonian biology (leading to the introduction of Chris Kent), they still able to, eh, have relations, making the debate pointless.

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