Monthly Archives: March 2011

Animal Sidekicks, Part Two

For this installment of our series on animal sidekicks (part one here) we’ll be discussing an animal owner’s tort liability for injuries caused by the animal.  This would also apply to supervillains who sometimes use animals, such as Catwoman and the Penguin.  Like most tort law issues, the law here varies from state to state, but there are some common principles that we can discuss.

There are two basic categories of animal here: domesticated animals and wild or exotic animals.  In both cases there are two sub-issues: the bases for liability and the available defenses.  As we shall see, the broad scope of liability makes the defenses particularly important.

I. Domesticated Animals

A. Liability

At common law a domesticated animal’s owner is liable for injuries caused by the animal if the owner knew or should have known that the animal was dangerous.  See, e.g., McCaster v. Jackson, 833 So.2d 36 (Ala. 2002).  This leads pretty naturally to the question “how can you prove an animal is dangerous?”  An animal’s dangerous propensities can be proven in a couple of different ways.

The first and most direct approach is to show that the owner knew or should have known that the animal acted dangerously in the past.  However, it is generally not necessary that the animal previously caused an injury; knowledge of its dangerous disposition is sufficient.  Mungo v. Bennett, 238 S.C. 79, 81-82 (1961).  Once knowledge is established, in some jurisdictions owners are strictly liable for injuries caused by the animal, but in other jurisdictions liability requires negligence on the part of owner.  See, e.g., Bard v. Jahnke, 6 N.Y.3d 592 (Ct. App. N.Y. 2006) (strict liability); Mungo, 238 S.C. at 82 (negligence).

The second, indirect approach is to show that the animal was of a breed or type known to be dangerous (e.g. that a dog was of a vicious breed or that a bull was particularly dangerous during breeding season).  However, not all jurisdictions recognize this approach.  See, e.g., Bard, 6 N.Y.3d at 599.

Some states have enacted statutes that eliminate or modify the requirement of knowledge of the animal’s dangerous disposition.  See, e.g., Robinson v. Meadows, 203 Ill.App.3d 706 (App. Ct. Ill. 1990).

The practical upshot of this is that any superhero with an animal sidekick is going to be potentially liable for injuries caused by the sidekick.  Heck, if the animal didn’t have dangerous propensities it’d be a pretty lousy sidekick.  So let’s turn to the defenses to see if our heroes can find a way out of having to leave their animals at home.

B. Defenses

There are four main defenses to an injury by an animal: contributory or comparative negligence, intentional provocation, assumption of the risk, and a fourth defense that we’ll call “being up to no good.”  Contributory or comparative negligence are, as the names imply, generally only available in states where liability is based on negligence.  Assumption of the risk, by contrast, is a defense to strict liability.  These defenses are the basis for things like “beware of dog” signs.  While those defenses are handy for people in the real-world, superheroes need a bit more, since they tend to go on the offensive.

For superheroes the main defenses are intentional provocation and “being up to no good.”  If a supervillain provokes an animal sidekick by attacking it, the animal may react without incurring liability for the owner.  See, e.g., Grams v. Howard’s O.K. Hardware Co., 446 N.W.2d 687 (Ct. App. Minn. 1989).

What we’ve called “being up to no good” is a slightly unwieldy phrase we made up to refer to a defense available in many states.  For example, Minnesota’s dog attack statute reads, in part:

If a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained.

Minn. Stat. § 347.22 (emphasis added).  As you can see, separate from provocation is a defense that the person attacked was either not acting peacefully or was trespassing.  Illinois has a similar defense. 510 ILCS 5/16.  As long as the superhero waits until the supervillain has started breaking the law, there appears to be considerable leeway for an animal sidekick (or at least a canine sidekick) to attack, at least in states that recognize this defense.

It is unclear to us to what extent self-defense or defense of others can be used as a defense.  That is, if the owner deliberately sics the sidekick on a villain in order to defend himself or herself or to defend a third party.  It seems like this would be proper self-defense or defense of others, so long as employing the animal amounted to reasonable force.

II. Wild Animals

Wild animals are treated differently than domesticated animals.  The general rule is that the owner of a wild animal is strictly liable for injuries caused by the animal, even if the owner had no knowledge of the animal’s propensity for harm and even if the owner took the utmost care in keeping the animal.  See, e.g., Poznanski ex rel. Poznanski v. Horvath, 788 N.E.2d 1255, 1259 (Sup. Ct. Ind. 2003).

There is an exception to this, albeit a narrow one.  Under the Restatement (Second) of Torts, and as adopted by many jurisdictions, strict liability only applies to the kind of danger that is characteristic of the particular class of wild animal.  Consider a wild snapping turtle kept as a pet.  Now suppose someone tripped over the turtle’s hard shell, causing a painful toe stubbing and hurting themselves in the fall.  A court would not apply strict liability in that case.  The danger of a snapping turtle is that it might bite a person, not that someone would trip over it.  Now, if the owner had deliberately put the turtle in the victim’s path, the owner might still be liable, but under a different theory.  Unfortunately, that exception is unlikely to be very helpful to a superhero, since the harm caused by a wild animal sidekick is likely to be exactly of the type that is characteristic of the animal.

As with states that apply strict liability in cases of dangerous domesticated animals, there are defenses here, too.  For example, provocation has been held to be a defense.  Whitefield v. Stewart, 577 P.2d 1295 (Okla. 1978).  And we see no reason self-defense or defense of others might not apply as well.

III. Conclusion

Superheroes selecting an animal sidekick should probably stick to domesticated animals such as domestic dogs.  Wild animals, even well-kept or tamed ones, carry with them additional legal risks and fewer defenses.  Since this is another area that varies widely from state to state, superheroes traveling around the country should do a little research before bringing their animal sidekick along.  What’s fine for their sidekick to do in one state might get them sued in another.

Reader Polls

We wanted to take a moment to let you, our readers, give us some feedback about what kind of posts you would like to see on the blog.  There are three polls.  If you have any questions, comments, or other feedback, please drop us a line in the comments to this post or send us an email.

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Thanks for voting, and don’t miss today’s post about Smallville right below this post!

Smallville II: “Dawson Casting” and Minors

The first season of Smallville is set during Clark Kent’s freshman year in high school. It premiered in October 2001, when Tom Welling (Clark) was 24, Kristen Kreuk (Lana) was 18, and Allison Mack was 19, making them between four and ten years older than the characters they were portraying. Casting adults as high school kids is not that uncommon and has become known as “Dawson Casting” after one of the more egregious examples, though it’s been going on almost as long as film has existed.

There are a variety of reasons for this, and the previous link discusses a lot of them, but in short, young adults are just a lot more suitable for the actual acting job than teenagers, partly for logistical and partly for legal reasons. As to the former, young adults tend to be better able to memorize, recall, and deliver lines believably than teenagers. Some of this is intellectual development, some of this is a broader depth of experience, and some of it is just getting past the emotional whirlwind that is adolescence. There are real world legal issues too: teenagers have limited work hours, and it’s frequently illegal to show them doing things that kids actually do (e.g. make out).

But this blog is about real world legal issues in comic book stories, not the legalities of Hollywood. Suffice it to say that this sort of thing is actually an issue within the series. As always, spoilers follow.

I. The Talon

Perhaps the most glaring example of a teenage character doing things that would be problematic for someone their age is Lana coming to be a partner and manager at the Talon. This implicates both minors’ capacity to contract and child labor laws.

A. Capacity

Children are not adults, and their ability to perceive the consequences of their actions are less than an adult’s would be. This is why the law generally recognizes that minors’ capacity to contract is different than adults. In general, a minor who agrees to a contract for something other than “necessaries,” i.e. food, clothing, goods necessary for the maintenance of a household, can “disaffirm” that contract at any time before they reach majority age. So a minor who walks into a restaurant and orders dinner would be required to pay, but a minor who enters into a business contract could theoretically get out of that contract simply by asking. They are then required to give back whatever it is they got, but this is why most businesses and organizations require that a minor’s parent sign relevant contracts and will generally refuse to deal directly with minors: they do not want to go through the hassle of having to take back whatever it is the minor contracted for.

So Lex Luthor offering Lana partial ownership in the Talon, aside from being incredibly generous, would definitely be something his lawyers would have had an absolute cow over. When this happened, Lana was either 14 or 15 (time is kind of… squishy, and her birthday is never stated), and Kan. Rev. Stat. § 38-101 provides that majority age for contracts is 16. Unless her legal guardian signed off on the deal, and there’s no evidence in the show that this happened, Lex would have almost certainly been acting against all legal advice. Granted, this probably wouldn’t be the first time, but it’s still a problem.

There is a way around this though: emancipation. Kan. Rev. Stat. § 38-108 grants district courts the ability to declare a minor to have all the rights of majority, including capacity to contract and to sue and be sued. This was mentioned in passing during the first season, before Lana’s guardian moved to Metropolis, and though it was never actually established that this happened, given both her involvement in the Talon and rather conspicuous independence thereafter, it seems likely that it did.

B. Labor Laws

And the reason is that even if it is technically legal to transfer ownership to Lana, establishing a partnership, it was probably illegal for her to run the place. We talked about child labor a little while ago, and Kan. Rev. Stat. § 38-603 prohibits anyone under the age of 16 from working before 7AM or after 10 PM on a school night, for more than 8 hours at a time, or for more than 40 hours in a week. Anyone who’s run a coffee shop that was open late can tell you that you basically have to do all three of those things. The place would have had to close no later than 8PM for Lana to be finished closing up before she turned into a pumpkin. But the show pretty clearly indicates that she was responsible for all of those things, including showing up to accept pastry deliveries at 5AM. Lana is, to all appearances, a remarkably mature and responsible girl (though perhaps not the best judge of character), who might actually have been capable of handling that kind of responsibility. But it isn’t clear that the law would have let her.

Emancipation wouldn’t work here either. The emancipation statute permits minors to contract and dispose of their own property, but it does not grant any exceptions to the child labor statutes. So there’s a problem there.

Now if Lana had been as old as Kreuk was when the season was shot, there wouldn’t have been any problems, which is probably why this is a little less noticeable in the show. It’s unusual, but not unheard of, for someone in their late teens or early twenties to be running a business like the Talon, particularly if they’ve got a benefactor (read “parent”) in the background somewhere. So seeing Lana run the Talon doesn’t look wrong. Just like Clark and Lana walking into a bar at the beginning of season three and not getting carded doesn’t look wrong either: Welling was 26 and Kreuk 21. But in-universe, this really is a problem.

II. Various Relationships

Then there’s the issue of Lana’s relationship with Jason. They met during the summer of Lana’s junior year, when she is presumably 17. Jason, on the other hand, is in college, making him probably 19. This looks kind of like a statutory rape situation waiting to happen, doesn’t it? Which is probably why Jason gets fired when the school learns about their relationship. So why doesn’t he go to jail?

Because the relationship, while arguably sketchy, is not actually illegal, at least not in Kansas (and certainly not in France, where it started). Kansas defines “indecent liberties with a child” as sexual contact with a person who is under 16 but more than 14 (Kan. Rev. Stat. § 21-3503). Other statutes for more serious crimes have similar definitions. Basically, Lana was legal. This is something a lot of people don’t understand, and it’s a common feature of television for talk of statutory rape to emerge whenever a girl is under 18. A character actually attempts to justify the relationship by pointing out that both of them are 18. Which, while true, is not strictly relevant, as the relationship was legal even before Lana’s birthday. The fact of the matter is less than a dozen jurisdictions still have the age of consent pegged at 18, though the fact that California is one of them may explain some of this.

Either way, the age of consent in Kansas is 16, so starting in season three, the entire class is basically fair game. This is actually not that uncommon. It’s that way in at least half of the US, and many states even have “Romeo and Juliet” laws which create an exception for couples who are no more than two years apart, so a pair of high school sweethearts don’t get carted off to jail as soon as one of them turns 16. Most of Europe has this limit set at 14 or 15, though it’s as high as 17 in Ireland and 18 in Malta, of all places.

III. Conclusion

Casting actors older than the characters they portray is fairly common, especially where teenage characters are involved. This can make certain things legally possible on screen, but it also increases the audience’s willingness to suspend our disbelief when high school kids are shown doing stuff that there’s no way they would be able to do in real life. I don’t care if you are Superman, most bouncers aren’t letting you in the door and most bartenders aren’t serving you booze unless you can produce some sort of ID, fake or otherwise. There’s more to talk about in this show, so stick with us.

Law and the Multiverse Mailbag XIII

Lots of good questions this week. Today we’re looking at two issues: extra-planetary jurisdiction and conscription of specific superpowered individuals.  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. Extra-planetary jurisdiction

Bob asks “Do the laws of a country apply in space?  Perhaps if they are on a NASA spaceship then the laws of the USA would apply.  But how about if a crime is committed on the Moon (and not in any country’s Moon-base)?”

As mentioned in our interview earlier this week, Earth-bound legal systems don’t normally extend beyond the Earth’s atmosphere. Indeed, individual nations’ legal systems don’t extend much beyond their borders, but we’ve already got a terrestrial example: the high seas.

Oceans outside the territorial claims of any particular country are already pretty lawless. The UN Convention on the Law of the Sea has been ratified or at least signed by almost every country, but apart from addressing piracy it is mostly concerned with mundane issues like establishing territorial boundaries and exclusive economic zones. Admiralty law is a little more detailed (and one of the oldest continuously operating bodies of law in the world) but even that has mostly to do with the conduct of vessels, salvage rights, etc.

But even there, national courts are widely held to be able to exert jurisdiction over persons for actions they commit while at sea once the person is brought to shore. One of the most famous cases in every law student’s criminal law class is R. v. Dudley & Stephens, about some sailors who cannibalize the cabin boy. The defendants were brought to trial and convicted once they returned to their native country, and jurisdiction was not one of the real issues. But if they had been rescued by, say, an American ship, it’s possible they could have been brought to trial in an American court. Crimes committed on the high seas can generally be tried everywhere, e.g. Somalian pirates are being tried in New York City. The theory is that crimes committed outside national boundaries are, in a sense, crimes against civilization, and thus may be tried anywhere. The controversial doctrine of universal jurisdiction has some of its origins in this concept.

There is a limit here: the acts in question need to be obviously criminal by anyone’s standards. Murder is a pretty easy example. So is piracy. But what about things that are only illegal by statute, like gambling? Well the ferry that runs between Maine and Nova Scotia passes through international waters, and the on-board casino is only open when outside both the US and Canada’s territorial waters. There really hasn’t been all that much law here, but it’s unlikely that any given nation would be able to enforce its particular regulatory regime on the high seas over anything but a ship registered under that nation’s flag.

Outer space is quite similar. There is, in fact, a statute which extends federal jurisdiction to spacecraft flying the US flag (18 U.S.C. § 7(6)), which also discusses maritime jurisdiction with similar results. State laws do not apply, but federal laws do. But again, note that enforcement would require bringing a defendant back to US soil for trial, just like it would for crime on the high seas.

The same statute, specifically subsection 7, also grants US jurisdiction over “any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States.”  This is kind of a catch-all clause.  If no one else has jurisdiction and a US national is either the suspect or the victim, then the US has jurisdiction.  So if a supervillain commits a federal crime against an American superhero on, say, Mars, then the supervillain can be hauled into federal court once he or she is brought back to Earth.

II. Conscription

Samuel asks “Given that an American superhero like Superman can be a tremendously valuable military asset, as both a frontline combat supersoldier and as a propaganda tool, is there any legal basis for the U.S. government to conscript Superman, specifically, into the Armed Forces?  What about drafting all superheroes in general?  Is there any legal way for Superman and other superheroes to ‘dodge the draft’?”

The law here is less clear than it is for law in outer space, only because it does not appear that the government has ever tried to draft a specific individual outside a wider draft program. As far as draft programs go, the courts have been exceptionally deferential to congressional power. The Supreme Court has held that “The constitutionality of the conscription of manpower for military service is beyond question. The constitutional power of Congress to support the armed forces with equipment and supplies is no less clear and sweeping.” Lichter v. United States, 344 U.S. 742 (1948).  As John Quincy Adams said in a speech before the House of Representatives, “[The war power] is tremendous; it is strictly constitutional; but it breaks down every barrier so anxiously erected for the protection of liberty, property and of life.”

More recently, the D.C. Circuit has held that “the power of Congress to raise armies by conscription is not limited by either the Thirteenth Amendment or the absence of a military emergency.” United States v. Chandler, 403 F.2d 531 (D.C. Cir. 1968). The Thirteenth Amendment, prohibiting involuntary servitude, is perhaps the most obvious potential constitutional issue with the draft, and the federal courts have unanimously and consistently held that it does not limit the draft power at all.

Similarly the federal courts have held that the First Amendment is no barrier to the draft.  Conscientious objector status is the product of statute, not the Constitution.  “The conscientious objector is relieved from the obligation to bear arms in obedience to no constitutional provision, express or implied; but because, and only because, it has accorded with the policy of Congress thus to relieve him.”  United States v. Macintosh, 283 U.S. 605, 623 (1931).  If Congress wanted to, it could conscript everyone, regardless of any religious or moral objection.  It’s unlikely it would do so, given that it would likely lead to civil disobedience, but it’s a theoretical possibility.  In the same case the Court lists a whole host of constitutional rights that may be superseded by the war power, culminating in “other drastic powers, wholly inadmissible in time of peace, exercised to meet the emergencies of war.”

However, this is still an untested area of law, because as far as we can tell Congress hasn’t actually tried to do this, there being no compelling reason to use the draft power this way. The only times a draft has been imposed have been in times of incredible demand for manpower—it is a pretty drastic step, after all—so going after a handful of specific individuals wouldn’t make sense in the real world. But if the draft of specific individuals or classes of individuals is to be attacked, it would have to be on some kind of due process argument, i.e. Congress can draft everyone in a certain age group, but it can’t draft specific people.

Should Congress go after a regular guy this way, the courts might be persuaded to intervene, but if the target is a superhero? It may well be that the courts would permit such an action, as the draft power is pretty sweeping, and the courts have not really displayed any willingness to limit that power before. If Congress thinks it needs the assistance of a uniquely capable citizen to fight a war, then that may well be something Congress is allowed to do.

III. Conclusion

Law in outer space would probably work pretty similarly to law on the high seas: a particular nation’s courts could probably enforce basic laws against things like murder, but only once the defendant was brought to Earth. And Congress may well be able to draft the services of specific people, particularly if there’s a reason for their unique services to be used.

Thanks for reading. There’ll be more next week!

Animal Sidekicks, Part One

Today’s post, which is the first in a series, was inspired by Christopher, who wanted to know about animal sidekicks (e.g. Zabu, Krypto, Lockheed), particularly Red Wolf’s wolf companion Lobo.  There are a lot of potential issues here, but we’re going to focus on three major ones: animal cruelty, liability for the animal’s acts, and animal regulations (e.g. leash laws and import regulations).

I. Animal Cruelty Laws

Similar to juvenile sidekicks and child endangerment laws, one possible issue with having an animal sidekick is that it might constitute animal cruelty.  After all, the animals are placed in dangerous situations and some are even asked to attack people, albeit usually villainous people.  But if Krypto takes a bite out of Brainiac, is that really enough to make Superman into Michael Vick?

For the most part animal cruelty laws are state-based.  There is a federal law criminalizing depictions of acts of animal cruelty and another federal law dealing with housing animals for exhibition or sale, but those aren’t really the issue here (and in case you were wondering, comic books depicting villains being cruel to animals don’t run afoul of the statute; the depictions must be of actual, real-world acts of animal cruelty).  Since cruelty laws vary from state to state, this will mostly be a general overview of their common features and principles.

II. The Scope of the Law

An immediate question is: do these sidekicks even qualify as “animals” for purposes of the statutes?  Lobo is a fairly ordinary wolf, but some versions of Krypto are super-powered, super-intelligent, or both, and Lockheed is a dragon for crying out loud.

As it turns out, most animal cruelty statutes are pretty broad. For example, California’s statute encompasses “every dumb creature,” which the California courts have held means “all animals except human beings.”  People v. Baniqued, 85 Cal.App.4th 13, 20-21 (Cal. Ct. App. 2000).  Pretty much every animal sidekick would qualify under that definition, since even the super-intelligent versions of Krypto are “by nature incapable of speech like that of human beings” and so would qualify as “dumb” for purposes of the statute.

Some statutes are a little narrower, however.  For example, Missouri’s only applies to “every living vertebrate except a human being,” and many states, such as Arkansas, go one step further and exempt fish. Mo. Rev. Stat. 578.005; Ark. Code § 5-62-102(2).  Both statutes would exempt Legion of Super-Pets member Proty II, which, as a shapeless mass of protoplasm in its native form, would not qualify as a vertebrate.  Interestingly, once Proty eventually learned how to talk he effectively disqualified himself from the protection of the California statute as well.

III. What Counts as Cruelty?

Now that we’ve established that most animal sidekicks would qualify for protection, the focus turns to the superheroes’ conduct.  As with the child endangerment post, we’ll assume none of the superheroes are engaging in obvious cruelty or neglect (e.g. no super-powered animal fighting rings or other deliberate cruelty).  The question is whether bringing animals along for regular superhero activities like investigating and fighting crime constitute animal cruelty.

California’s statute (Cal. Penal Code § 597) is typical and has two primary provisions.  First:

“every person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills an animal, is guilty of an offense”

But that certainly wouldn’t apply to our upstanding heroes.  Second

“every person who overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, drink, or shelter, cruelly beats, mutilates, or cruelly kills any animal… and whoever, having the charge or custody of any animal … subjects any animal to needless suffering, or inflicts unnecessary cruelty upon the animal, or in any manner abuses any animal, or fails to provide the animal with proper food, drink, or shelter or protection from the weather, or who drives, rides, or otherwise uses the animal when unfit for labor, is, for every such offense, guilty of a crime”

That’s a pretty long laundry list, but the overriding theme is one of fairly serious abuse or neglect. We actually had trouble finding cases that didn’t involve revolting or disturbing conduct, so we won’t go into detail here.

In any event, it would be surprising if taking a trained animal sidekick along to fight crime constituted animal cruelty, so long as the animals were otherwise well cared for.  There are three long-standing analogous situations to look to: the private use of dogs and other animals (e.g. llamas, believe it or not) as guard animals, the private use of dogs in hunting, including hunting dangerous prey such as wild boars, and the government use of dogs in potentially dangerous police work. Taken together, these situations encompass many of the same issues and risks as a superhero’s employment of an animal sidekick.

One final issue: at this point in the conversation we’re talking about animals which are either “normal” but highly trained or even start with some kind of superpowers. Whether or not an “uplift” situation would constitute animal cruelty is something we’ll discuss in a post on that subject in general, as there are a number of other issues related to that topic (e.g. is giving an animal enhanced intelligence a kind of animal experimentation?).

IV. Conclusion

Like any responsible animal owner, superheroes should be careful to keep their animal sidekicks healthy and safe, and certainly some missions would be too dangerous for a normal animal.  But superheroes seem to do a good job of caring for their animals, and we don’t think they have to worry about animal control officers knocking on their headquarters any time soon.

All Things Considered

An interview with James and Ryan was featured on All Things Considered today.  If you couldn’t catch it live, check the link to hear the full interview.

Welcome to all NPR listeners and readers!

Limitless

Limitless opened this weekend, and is the subject of Law and the Multiverse’s second look at a movie. Spoilers to follow, as always.

The basic premise is that Edward Morra (Bradley Cooper) stumbles across a drug, “NZT,” which massively boosts one’s memory and intelligence. This enables him to write his unstarted-and-overdue book in a matter of days, learn any language in a matter of hours, and become a concert-level pianist in a long weekend. So basically, what we’ve got here is every nerd’s fantasy: if I was only smart enough, I’d be able to get the money and the girl.

The movie has been described as “more interesting than it has any right to be,” which is about right. But there are a number of legal issues in the movie to talk about, mostly about the drug itself.

First, a high-level overview of how drugs are regulated in the US.  For a drug to be legally prescribed or distributed it must be approved by the Food and Drug Administration.  Clinical trials for new drugs must also have FDA approval.  Some drugs are further restricted by the Controlled Substances Act, which establishes a schedule of controlled substances, some of which can be prescribed by a doctor with a DEA number and some of which are banned outright (e.g. heroin).  Finally, individual states can add to (but not subtract from!) the federal controlled substances schedule.  Now we’ll look a little closer at how all of this affects NZT.

I. The Food and Drug Administration

It is illegal to sell, for human consumption, any pharmaceutical product which has not been approved by the FDA, which may be marketing approval or approval of a clinical trial. This is why pharmaceutical companies spend so much time and money on the approval process: one bad trial can mean millions in R&D going down the tubes. The FDA was (more or less) created by the Pure Food and Drug Act of 1906, later replaced by the Food, Drug, and Cosmetic Act of 1938. These and later acts make it a crime to market or distribute any drug (or medical device, food additive, or dietary supplement) without FDA authorization. The approval process for each category is different, which is why almost anybody can sell a dietary supplement, provided they do not make claims which would suggest that it is a drug and it isn’t drug-like enough to make the FDA want to categorize it there regardless of claims.

Still, as soon as the FDA got wind of this, you can bet that they’d take action, probably including bringing in the DEA, to see that the creation and distribution of this drug was brought under federal oversight. This isn’t entirely a bad thing, either. Sure, the War on Drugs is notoriously problematic from a civil liberty, social policy, and even race relations standpoint, but the real objection is that the government is misclassifying drugs, not that it shouldn’t be classifying drugs at all. In the nineteenth century, there really was no regulation on any of this stuff, so a drug containing heroin could not only be marketed freely, but without any indication that it contained heroin. A consumer could get addicted to a powerful narcotic without even realizing that they were using it. This, obviously, is not an ideal situation. Similarly, without regulating pharmaceutical manufacturing, companies could use unsanitary facilities or dangerous ingredients in their products without anyone knowing or being able to do anything about it. Again, not a good outcome. So even if we think that our approach to certain interesting substances needs to be re-evaluated, deregulating them entirely is probably not the best option.

So would the FDA ever approve something like NZT?  Probably not, though theoretically it could, and if it did it wouldn’t approve it for average people like Edward Morra.  The FDA most often approves drugs that treat, diagnose, or prevent diseases.  Since having average intelligence is not a disease, the FDA would be reluctant to approve NZT unless it had virtually no side effects.  Since it apparently kills people who stop taking it, approval is unlikely.  The FDA could limit NZT’s approval to use by people with development disabilities, but it’s also rare for the FDA to approve drugs that people have to take for the rest of their lives.  Usually such drugs are only approved for life-threatening conditions.  NZT would definitely struggle for regulatory approval.

II. The Controlled Substances Act

Many drugs, both approved and unapproved, are regulated under the Controlled Substances Act, which operates in two primary ways. The statute itself includes a list of scheduled substances, and it empowers the attorney general to modify the schedule, although in practice the schedule is modified by the Drug Enforcement Agency as informed by the FDA. The statute lays out the criteria by which substances are to be categorized into different schedules, but other than the drugs which Congress has scheduled by legislation, the statute basically lets the attorney general issue his or her own findings as to which drugs belong where.

Schedule I substances are basically illegal entirely, i.e. illegal to create, distribute, or possess. They have a high potential for abuse, no currently accepted medical use, and are unsafe to use even under medical supervision.  There are rare exemptions given for research, but that’s about it.  Schedule I includes things like heroin, marijuana, LSD, methaqualone (Quaalude), and a host of hallucinogens.

Schedule II includes drugs which have a potential for abuse which is less than those on Schedule I, and can be prescribed under certain circumstances. Cocaine, believe it or not, does fall here, as it is occasionally used as a topical anesthetic even today. Oxycodone, morphine, and most of the other narcotics fall in this schedule, as do amphetamines.

Schedule III is, again, less serious than Schedule II, etc., all the way down to Schedule V, which includes some substances (such as cough syrup with codeine) which are actually available over-the-counter in other countries.  It should be noted that most prescription drugs are not scheduled at all.

NZT is obviously something that would be scheduled by the appropriate federal agency—probably the FDA—and given its properties would be a good candidate for either Schedule I or II. It appears highly addictive, or at least the people who stop taking it tend to die, though it could potentially have a legitimate medical use. Giving it to developmentally disabled persons might enable them to live normal lives, for example, and as NZT is not said to have any adverse side effects other than dependency, the FDA might theoretically approve such a drug if a proposal were submitted. Either way, Eddie is taking it without a prescription. Is that illegal?

Maybe, maybe not.  It depends on how closely related NZT is to a known controlled substance. The federal government and many states have passed what are generally referred to as Analog Acts (e.g. the Federal Analog Act).  These laws attempt to regulate substances that are substantially similar to known controlled substances.  We say ‘attempt’ because the courts are not in uniform agreement as to whether such laws are valid or not.  In an effort to broaden the reach of the laws the legislatures tended to draft them very generally, to the point that some courts have held them void for vagueness, which is a rare but serious defect in a criminal law.  And this makes sense: for a criminal law to work people have to know what, exactly, is being criminalized.

But let’s assume that NZT is an entirely novel substance.  Certainly there’s nothing similar on the market, so that seems like a reasonable assumption.  New controlled substances need to be placed on the list via legislation or administrative procedures. A general rule of the US legal system is that if a given act is not prohibited, it is permissible. Inventing a new drug and deciding to take it is not illegal until the government says it is. Which is why you periodically see states and municipalities freaking out over whatever new substance the kids are using these days. Most recently it was spice, a kind of synthetic cannabis. Until that happens, new, unapproved drugs are basically fair game to create, possess, and consume.

But they aren’t legal to distribute, because that constitutes a commercial transaction over which the federal government has exerted pretty expansive jurisdiction. This power generally comes from the Commerce Clause, and the Supreme Court has been pretty generous in interpreting the Commerce Power where the regulation of drugs is concerned.  See, e.g., Gonzales v. Raich, 545 U.S. 1 (2005).  So while NZT is theoretically legal for Eddie to have and to use, the guy he got it from was definitely breaking the law.

We’ll keep these reviews coming as more interesting movies are released. A ton of great comic book movies are coming out this summer, including Thor, X-Men: First Class, and Captain America, so stay tuned!

Law and the Multiverse Mailbag XII

Today we have a question about a supervillain-worthy plot from the movie Swordfish.  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.

NB: If you haven’t seen the movie, the question and answer technically include spoilers, but they’re from the opening scene.

Alan writes “In the film Swordfish, the villain Gabriel Shear has an elaborate plan involving hacking a bank’s computer while holding hostages.  He wires these hostages with explosives rigged to a sensor which will detonate them if they leave the bank, and he explains this to the authorities.  However, SWAT members still grab one of the hostages and drag her away from the bank, against her will, and she explodes, presumably dying in the process and killing several SWAT team members. … Is Gabriel Shear liable for murdering the woman, or the SWAT team members? (Would this be ‘felony murder’?)  Would the woman’s relatives have a civil claim against the police?  Does the fact that she was unwilling to go with the officers affect these considerations?”

There are basically two issues here: Shear’s liability and police liability.  Since this scene is set in L.A., we’ll use California law.

I. Shear’s Liability

In California, murder is described in Cal. Penal Code § 187-89.  Immediately we see two potentially applicable kinds of first degree murder: murder by explosives and felony murder.  The felony murder rule may apply because the murder was committed in the perpetration of, amongst other things, the kidnapping of the hostages.  The question is: is Shear liable for the murder given that he didn’t ‘pull the trigger,’ so to speak?  Intuitively the answer seems like it should be yes, but let’s work through the analysis.

A. First Degree Murder by Explosives

This is the most straightforward charge: Shear murdered the victim with explosives.  But there are at least two potential sticking points: cause and intent.

i. Causation

An essential element of murder is that the defendant must cause the victim’s death, and Shear’s actions were at least one step removed from the victim’s death.  It was the SWAT team member pulling the victim out of range that was the immediate cause of death.  Does that get Shear off the hook?

As it turns out, probably not.  A defendant can also be responsible for a death if he “sets in motion a chain of events that produces as a direct, natural and probable consequence of the [act] [or] omission the death in question and without which the death would not occur.”  People v. Fiu, 165 Cal.App.4th 360, 369 (Cal. Ct. App. 2008) (emphasis in original).  The prosecution would argue that a direct, natural, and probable consequence of fitting hostages with explosive collars designed to kill people is that someone will, in fact, get killed.

Now, the defense might argue that the SWAT team member’s intervention broke the chain of causation, but it takes a lot to break the chain: “To relieve a defendant of criminal liability, an intervening cause must be an unforeseeable and extraordinary occurrence.  The defendant remains criminally liable if either the possible consequence might reasonably have been contemplated or the defendant should have foreseen the possibility of harm of the kind that could result from his act.”  Fiu, 165 Cal.App.4th at 371.

Here, it’s pretty clear that Shear in fact contemplated and foresaw the possibility of a hostage being harmed by police intervention in precisely this way.  That’s why he warned the police about the collars.  It’s no defense that the police tried to intervene anyway.  Indeed, as Justice Cardozo said in the context of torts, “Danger invites rescue….The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.”  Wagner v. Int’l Ry., 232 N.Y. 176, 180 (1926) (by the way, the Wagner case justifies a tort claim against Shear by the deceased police officer’s heirs; superheroes could make the same claim against supervillains if they are injured while trying to rescue the supervillains’ victims).

ii. Intent

Another potential issue with a straightforward murder charge is that arguably Shear did not intend to kill anyone.  Indeed, he specifically instructed the police regarding the explosives, which suggests he wanted a clean getaway.  In California the intent required for murder (‘malice aforethought’) may be express or implied.  Cal. Penal Code § 188.  According to the California Supreme Court, “Malice is implied when: The killing resulted from an intentional act, 2. The natural consequences of the act are dangerous to human life, and 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.”  People v. Dellinger, 49 Cal.3d 1212, 1222 (1989) (en banc).  Here, Shear intentionally caused the killing (per the above), the natural consequences of putting explosive collars on people are pretty obviously dangerous to human life, and Shear clearly was aware of the danger to human life and deliberately acted with conscious disregard of it.  So the intent requirement appears to be met.

But suppose a court disagreed and found that causation, intent, or both were absent.  Could another approach fit, perhaps the felony murder rule?

B. Felony Murder

The California felony murder rule is limited to killings committed in the perpetration of, or attempt to perpetrate various specific violent crimes listed in the statute.  Let’s assume that Shear and his conspirators committed at least one of those other crimes (most likely kidnapping).  Would the felony murder rule help us out here if regular murder were unavailable?  The answer is “probably not.”

The purpose of the felony murder rule is two-fold.  First, to upgrade what would be manslaughter or second degree murder to first degree murder.  Second, to impose liability on every participant in a felony.  If Shear isn’t guilty of first degree murder because he didn’t cause the hostage’s death or intend to harm the hostage, then he’s likely not guilty of second degree murder or manslaughter either.  So felony murder won’t work for the first purpose.  And since the SWAT team member that was the most direct cause of the hostage’s death wasn’t a participant in the underlying felony, felony murder won’t work for the second purpose.

This seems like an unsatisfying result, but as it turns out the California courts have plugged this hole.  The fix actually takes us back around to regular murder by way of the “provocative act” doctrine.

C. Provocative Act

Under the provocative act doctrine, “When the defendant … with a conscious disregard for life, intentionally commits an act that is likely to cause death, and … a police officer kills in reasonable response to such act, the defendant is guilty of murder. In such a case, the killing is attributable, not merely to the commission of a felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life.  Thus, … the police officer’s killing in the performance of his duty cannot be considered an independent intervening cause for which the defendant is not liable, for it is a reasonable response to the dilemma thrust upon the victim or the policeman by the intentional act of the defendant.”  People v. Gilbert, 63 Cal.2d 690, 704-05 (1965).

In fact, the courts have specifically found provocative act liability in cases where hostages have been taken, used as shields, and then accidentally killed by a would-be rescuer.  Pizano v. Superior Court, 21 Cal.3d 128 (1978) (en banc).  In Pizano the court noted “Taking [the victim] as a hostage, pointing a pistol at him, stating he would be shot if the police intervened, and then using him as a shield provided a more than sufficient basis for an inference of malice. Indeed, it has been argued that malice is express in such cases on the ground that using the victim as a shield is a direct and deliberate creation of immediate lethal danger to the deceased and to him alone.”  Pizano, 21 Cal.3d at 136.

So we think we can safely conclude that Shear is guilty of murder, even in the unlikely event that the straightforward murder charge didn’t apply and he escaped the felony murder rule.  But Shear’s criminal liability does not necessarily excuse the government of any tort liability for the victim’s death.

II. Police Liability

In California, police officers and their employers generally enjoy absolute immunity from tort liability for their discretionary acts, even if they abuse that discretion.  Cal. Gov. Code §§ 820.2, 815.2.  However, if the police officer exercises discretion and chooses to act, then he or she (or his or her employer) may be liable for his or her negligent performance.  McCorkle v. City of Los Angeles, 70 Cal.2d 252, 260-61 (1969).  As we’ve discussed on the blog before, however, police officers have no general duty to rescue anyone, and this is true in California as well.  Camp v. State, 184 Cal.App.4th 967, 975 (Cal. Ct. App. 2010) (noting “A police officer … is as much entitled to the benefit of this general rule as anyone else.”).  “Liability may, however, be imposed … if an officer undertakes affirmative acts that increase the risk of harm to the plaintiff.”  Id.  A special relationship, and therefore a duty to rescue, has been found in cases where a police officer “placed a citizen in harm’s way.”  Id at 977.

I’m not sure if the police officer knew about the explosive collar.  It’s been a while since I saw the (admittedly not very good) movie, but from a review of the script I don’t think the officer knew about it.  Regardless, trying to drag a hostage away from a well-armed and clearly dangerous group of bank robbers would pretty clearly increase the risk of harm to the hostage even without the explosive collar.  It seems at least as dangerous as what the officer did in the McCorkle case, which was to direct the plaintiff to walk into a dangerous intersection.  But is it enough?  Alas, probably not.

It is not enough that a police officer’s actions increased the risk of a pre-existing harm (e.g. that the collar would explode); the officer’s actions must change the risk or introduce a new risk.  Adams v. City of Fremont, 68 Cal.App.4th 243, 284 (Cal. Ct. App. 1998).  Furthermore, “law enforcement officers are shielded from ordinary negligence claims based on their response to public safety emergencies when those efforts prove to be ineffective in preventing self-inflicted harm or harm caused by third parties.”  Munoz v. City of Union City, 120 Cal.App.4th 1077, 1097 (Cal. Ct. App. 2004).

Here, the officer’s actions increased the pre-existing risk that the collar would explode, but he did not create a new risk by, for example, opening fire on the bank.  And of course the fairly blanket public safety emergency exemption described in Munoz applies anyway, since the harm was caused by a third party.  It’s generally pretty difficult to sue a government for incompetent police work, and this case is no exception.

III. Conclusion

One way or another, Shear is guilty of murder, likely first degree murder, as well as a host of other crimes.  The police officer and the government, however, are likely not liable for the hostage’s death.  Theoretically Shear is liable for the deaths of both the hostage and any police officers, but (spoiler alert!) since he manages to get away with billions in the end, that’s cold comfort for the victims’ families.  That’s what life insurance is for, we guess.

That’s all this week!  Keep your questions and post suggestions coming!

Smallville I: Discovery and Foundation

Smallville is one of the more recent television shows to feature superhero characters, and one of the few to feature comic book characters, at least in prime time. There are plenty of legal issues raised in the series, and this is the first post in a series examining them.

Needless to say, there are going to be spoilers here, so you have been warned.

I. Discovery

In the season 2 episode “Precipice,” Clark stands up to a guy who had assaulted Lana at the Talon. This winds up heading into the back alley, where the guy and his entourage attack Clark. This works about as well as one might expect, and the main offender winds up thrown on top of a sheriff’s cruiser. This also works about as well as one might expect. Clark is sentenced to community service, and the Kents are served with a lawsuit alleging bodily injury and emotional damages—the standard plaintiff’s attorney laundry list—asking for $1 million.

The core of the complaint is that the plaintiff was seriously injured, and later in the episode we see him leaving a store in a neck brace and using a cane. Clark attempts to apologize only to be rebuffed, as the guy claims that he’s been seriously injured and is coming after them for real. But when he gets in the back seat of his SUV, Clark uses his x-ray vision to see him take off his brace and high five his buddies. He’s faking the injuries.

Getting proof of this winds up being a fairly significant plot point. Clark can’t do it himself because of a restraining order, the Kents can’t afford a private investigator, and even if Clark could get close without breaking the law, the implication is that there wouldn’t be any way of getting that into evidence without revealing Clark’s abilities. Clark and Lana wind up cooking up a way of getting the plaintiff to expose himself. This makes for a decent amount of drama and serves as a useful point in the will-they-won’t-they subplot that constitutes a decent amount of the show’s appeal. But legally, it’s basically bogus, or at least completely unnecessary.

The reason can be expressed in one word: discovery. Discovery is the phase in litigation where the parties gather and exchange evidence, attempting to figure out exactly what the facts are and where they stand as a result. Civil procedure was radically changed in the 1930s when the Supreme Court adopted the Federal Rules of Civil Procedure in what proved to be one of the most significant, far-reaching, and successful legal reforms in history. Many states followed suit in the next few decades, adopting rules essentially copied from the federal rules. Rule 35 provides for physical and mental evaluations of significant persons, usually plaintiffs, but potentially anyone. In essence, if one of the parties makes the physical or mental condition of a person an issue in the case, the other party is entitled to require that person to submit to a medical examination.

This makes it really hard to fake injuries. Playing up injuries for dramatic effect is one thing—this is one way plaintiff’s attorneys earn their fees, after all—but actually fabricating them in the way this character did is pretty difficult to get away with, given that one would need to fool a medical professional hired by the party that wants to poke holes in one’s story. So instead of sneaking around and finding some way of getting the plaintiff to give himself away, all the Kents really needed to do was get their attorney to request a Rule 35 examination, which is something he would have done anyway.

Oh, and about the Kents not being able to afford an attorney or investigator? They didn’t have to. Unless the Kents are in way more financial trouble than they seem to be, they’ve got liability insurance, which means that the carrier will provide defense—including investigation as necessary—for free. It’s one of the benefits of insurance. So here’s a situation where the writers seem to have basically punted on the law to serve the story, which is fine.  Smallville is far from the first show to do that, and it’s much better to overlook part of the law for the sake of the story than to misstate it.

II. Foundation

But elsewhere the Smallville writers get it right. At the end of season 2 and beginning of season 3, Lionel Luther is arrested and tried for the murder of his parents. The key piece of evidence is said to be a recording that Chloe made of Lionel confessing to the crime. Her life is obviously threatened, which makes for some significant drama over about three episodes, but the real question here is why they needed her to testify at all.  Couldn’t they simply play the recording for the jury?  Here, the writers get things right.

To admit the recording into evidence there must be sufficient foundation. “Foundation,” in the legal sense, is preliminary evidence used to establish the origin and nature of other evidence, usually documents, recordings, objects, and the like. To get the recording into evidence, someone is going to need to testify under oath that they were involved in its creation, know when it was made, and whose voices it represents. So Chloe can testify that the recording she made is genuine. That will be sufficient to get a judge to permit the prosecutor to present it to the jury. The recording being as damning as it was, it’s unsurprising that he was convicted.

There’s one other matter that bears mentioning: the recording itself. The Fourth Amendment generally prohibits the government from using covert recordings in criminal proceedings without a warrant. Why, then, was Chloe’s recording admissible? There certainly wasn’t a warrant for that (though whether or not there was one for the investigation spearheaded by Lex is unaddressed). It turns out that this isn’t really an issue because while the Fourth Amendment does prohibit the government from using recordings, it does not prohibit the government from using recordings made by civilians on their own. People are entirely free to record their own conversations, and many states do not require a person recording their own conversations to notify the other party that a recording is being made. In other words: watch what you say, especially these days.

III. Conclusion

That’s all for now. So far the Smallville writers are 1-1. More to come!

Mercenaries and Bounty Hunters

Today’s post is inspired by David, who wondered about mercenary characters like Deadpool and Deathstroke, and a comment by John, who wanted to know about bounty hunters (in the “wanted poster” sense).  We touched on some of the legal issues surrounding bounty hunters, particularly the bail bondsman type, in the comments to our post on Superheroes and Citizen’s Arrest, but there are some more topics to discuss.  We’ll address mercenaries first, then bounty hunters.

I. Mercenaries

The term mercenary doesn’t really have a particular legal meaning outside the international law context (i.e. “a professional soldier hired by someone other than his or her own government to fight in a foreign country,” Black’s Law Dictionary (9th ed. 2009)).  Mercenary is also used to describe military security contractors like Blackwater/Xe.  But in comics the term is usually used to describe a “gun for hire” or private security typically employed by private individuals or companies rather than governments.  Frequently comic book mercenaries are hired to steal things or kill people, which leads us to two criminal law concepts: solicitation and conspiracy.

A. Solicitation

Solicitation is one of the inchoate offenses, and at common law consisted of soliciting, requesting, commanding, or importuning another person to commit a felony or serious misdemeanor.  These days solicitation is typically defined by a statute such as 18 USC 373(a):

Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned …

Something to notice here: the solicitor must intend that the other person actually commit the felony, so it’s not solicitation if, for example, an undercover police officer ‘solicits’ the commission of a crime in a sting operation.  Related to the intent requirement, the federal statute (like some state statutes) provides a defense of abandonment in 373(b):

It is an affirmative defense to a prosecution under this section that, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, the defendant prevented the commission of the crime solicited.

So what happens if the mercenary agrees to take the job?  Then the solicitor and the mercenary are guilty of conspiracy (some jurisdictions also require that the solicitor or mercenary take an affirmative step towards completing the crime; more on conspiracy later).

And if the mercenary finishes the job, committing the crime he or she was hired to do?  Then a curious thing happens: the solicitor and mercenary both become guilty of the crime (e.g. theft, murder) but the solicitation charge goes away.  In legal terms, the crime of solicitation merges with the underlying offense.  The solicitor can be charged as a principal (i.e. as though he or she committed the crime himself or herself) because he or she acted as an accessory to the crime.  See, e.g., 18 USC 2.

Fun Fact: In many jurisdictions, contract killings are automatically first degree or capital murder for the solicitor and the killer. See, e.g, N.Y. Penal Law § 125.27(1)(a)(vi).

B. Conspiracy

Like solicitation, conspiracy is generally defined by statute these days.  The general federal conspiracy statute is 18 USC 371:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned …

However, unlike solicitation and attempt, conspiracy does not merge with the underlying offense if the underlying offense is completed.  Instead, it’s a separate crime.  The usual rationale for this is that criminal conspiracies are especially dangerous because two or more people can do far more damage than one person acting alone and because people are more likely to go through with a crime if they are in agreement with others.

Like solicitation, some jurisdictions provide for a defense of abandonment or withdrawal in conspiracy cases, but it usually requires more than just ceasing one’s involvement in the conspiracy.  The defendant must also show that he or she tried to stop the commission of the crime, and that can be difficult to prove.

The practical upshot of all of this is that most comic book mercenaries are criminals, as are the folks that hire them.  Although we’ve seen that self-defense, defense of others, and citizen’s arrest are all useful legal tools for superheroes, those looking to stay on the right side of the law should probably look for work as bodyguards rather than mercenaries.

II. Bounty Hunters

First, some nomenclature: Strictly speaking, most bounty hunters are actually seeking a reward rather than a bounty.  A bounty may be claimed by multiple people performing the same service, while a reward may only be claimed by one person performing a unique service.  For example, a bounty may be offered for the destruction of dangerous animals (e.g. coyotes), whereas a reward may be offered for the arrest and return of a particular fugitive.

States generally have the power to post rewards as part of their general police power.  However, political subdivisions of states usually do not have general police powers, and so cannot post rewards without statutory authorization.  See, e.g, Brite v. Board, 21 Cal.App.2d 233 (Cal. Ct. App. 1937).  Courts have generally held that when statutes authorize rewards, the language of the reward has to hew pretty closely to the language of the statute.  See, e.g., Smith v. Vernon County, 188 Mo. 501 (1905).  Many statutes still have reward laws on the books.  See, e.g., Mo. Rev. Stat. 544.150, 145.  And those statutes do get a work out, even today.

Note, though, that the reward statutes generally only allow rewards for the capture or arrest of fugitives or felons, not their killing or the production of their bodies.  So “wanted: dead or alive” won’t work these days.  Frankly, I doubt it would work even with statutory authorization, since it amounts to a reward for an extrajudicial killing that couldn’t possibly survive modern due process analysis.

Private individuals and organizations can also offer rewards so long as the reward doesn’t request or require anything illegal (that would be solicitation, as discussed above).  In that case the reward is simply a unilateral contract (i.e. a contract that is accepted by performing the requested service).

Most states require that someone seeking a reward knew about the reward before they did whatever it is the reward requires.  See, e.g., Smith.  So going around arresting fugitives in hopes that a reward has been or will be posted is a good way not to get a reward.  Professional bounty hunters should wait for a reward to be posted first, then go get the bad guy.

As a final note, most modern “bounty hunters” are actually bail bondsman, i.e. people whose line of business is posting bail for criminal defendants and then rounding them up if they fail to appear in court when required. There isn’t really a public reward posted in these cases. Rather, a defendant contacts a bail bondsman when arrested, and the bondsman agrees to post bail in exchange for a commission, usually 10-15% of the bail amount. If the defendant fails to appear, the bond is forfeit, so the bondsman has an incentive to make sure that he does. But there isn’t any sort of general bounty or reward posted which would incentivize other persons to go after the defendant. Rewards are usually only posted for the most dangerous and notorious criminals. Bail bondsmen deal with mostly lower-end offenses and are thus far more common and far less interesting, story-wise.

III. Conclusion

Under the right circumstances, bounty hunting is a legally sanctioned way for a superhero to make money while fighting crime.  Mercenary work, by contrast, is usually more legally questionable, at least in the comics.