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 and 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!

18 responses to “Law and the Multiverse Mailbag XII

  1. Here is another question that I have wondered: what about Stanley Jobson’s guilt? Not a lawyer nor play one on TV, but as I see it, legally he is just as much part of the hostage-taking plan as all those other characters in Shear’s crew.

    For some weird Hollywood logic reason that is never explained in the film, Stanley gets a free pass from the law (since he is only one the cops caught alive in the end, you’d think that the DA would mercilessly nail him to the cross to placate the good people of LA) just because he was so cool and he was trying to get back the custody of his daughter. But without Stanley’s computer virus, the bank plan would not have been possible in the first place.

    • Yes, as a co-conspirator, Stanley is guilty of felony murder (along with a host of other crimes). Prosecutorial discretion means that the prosecutors don’t have to charge him with anything if they don’t want to, but the likelihood that city, state, and federal prosecutors would all decide not to charge Stanley is vanishingly small. Of course, it’d be a bit of a downer if the movie ended with Stanley on death row, so the writers finessed that point.

      • Wouldn’t the fact that Stanley intervened by going to the FBI after his daugter was kidnapped and his various attempts to thwart the robbery be grounds to detatch him as a co-conspirator (the virus that transferred the money so Gabrielle couldn’t get it, shooting down the helicopter, etc)? A lot of his later work is also accomplished under duress (his daughter being kidnapped, Ginger being hanged, etc) it seems he’s as culpable for the crime as someone who’s been forced to wear a bomb and rob a bank. He was also quite cooperative with law enforcement afterwards with IDing Gabriel’s body (double) and though we don’t see it I’m sure he is given a lengthy taped debrief by FBI. I imagine he received some prosecutorial discretion consideration for that.

  2. Yes, the prosecutor letting Stanley go would make about as much sense as hypothetically letting that black computer hacker guy go at the end of the first Die Hard.

    And then there is even the issue of Stanley’s ex-wife and her new man with who Stanley was engaged in a bitter custody battle. We know that Stanley is innocent in their deaths, but I’d like to see him explain to cops and the jury that his fellow criminals conspirators conveniently killed these two totally without Stanley’s knowledge so that they could kidnap Stanley’s daughter, on the off chance that Stanley would not hold on to his end of the bargain.

  3. As for Stanley, I would have guessed that one of the lesser legal consequences of his participation in a crime plot ending in death would be damage to his chances of getting custody, but then again, O.J. got custody of his kids after killing their mother so perhaps Stanley may yet have hope.

  4. Speaking of using humans as shields, I’m reminded of Speed, where Dennis takes Jeff as a shield, but Keanu injures him to make Jeff useless. Switching Jeff from officer to civilian, should Keanu try to take out the victim in this way? And what if he accidentally kills the victim while merely trying to injure?

  5. A question about causation.
    Alice tells her boyfriend Bob she wants to leave him. Bob threatens to kill himself if she does. She leaves him anyway, and Bob commits suicide.
    Is Alice liable for this?

    • David Johnston

      Seems to me that Bob is attempting to imprison Alice with his threat. He can’t do that so she isn’t liable.

    • Unfortunately this seems a bit too close to a possible real-world situation for us to comment on. Has something like this come up in the comics?

      I will say that causation is not really the issue, though. The issue is whether Alice owes Bob a duty to protect him from self-harm, and that’s a complex fact-specific, jurisdiction-specific issue.

      • If I remember right Ambush Bug tried to take himself hostage once. The general consensus of everyone present was to let him shoot himself.

      • Can we use Twilight as an example? Bella acted pretty suicidal after Edward left her. What if she went further and actually announced that she no longer wantes to live if her love left her a) while they are dating b) while they are engaged c) while they are married?

  6. Swordfish and Speed are not comic books.

    That being said, there’s an opening here to discuss the movie S.W.A.T. Early in the movie, a woman is being used as a human shield. The police officer shoots the perp in the chest but in so doing injures the woman’s shoulder. The woman threatens to sue the department and the S.W.A.T. officer is told he is going to go back to being a regular patrol cop. Instead, he quits.

    My question? Can a woman really sue a police officer for accidentally shooting her if by doing so the police officer saves her life? Granted, the S.W.A.T. officer was ordered to stand down and he took the shot anyway. Oh and there really was no way that the perp was going to shoot her because there was no where he could have escaped to after doing so. That being said, most people I think would feel grateful. Oh and if not for grazing the hostage’s shoulder it would definitely have been considered justified as the perp was posing an immediate threat.

    I suppose really it is a stupid question because the people can sue for anything. The real question would be whether a _judge_ would have considered the officer (and by extension the department) liable for her injury.

    • We’re not tied down to comics, although they do tend to provide some of the best source material. The FAQ and comments on the FAQ page discuss that a bit.

      Regarding the situation in S.W.A.T.: the officer might very well be liable. The statutory immunity under § 802.2 has been held not to protect an officer’s unreasonable tactical choices, including the use of excessive force. Nelson v. City of Davis, 709 F.Supp.2d 978, 993 (E.D.Cal. 2010). The plaintiff would have claims for both negligence and battery, though the latter requires that she prove that the officer knew to a substantial certainty that the shot would harm the plaintiff as well as the hostage-taker. Maybe he honestly believed that he could pull off the shot without hurting her.

  7. On a note more specific to heroes, does liability change if the person doing the rescuing had been a superhero instead of a police officer? Obviously the government’s effective defense of “I make the laws that decide if you CAN sue and I say nuh uh!” for a police officer won’t hold for a private civilian; would they be liable in situation like this? And also, if the rescuer did know about the collar but tried to save the target anyway (thinking it was a bluff or something), does that change things legally for either a police officer or civilian?

  8. That is a point that did occur to me when I started reading, do the police have reason to believe that Shear was telling the truth? Do they have to assume that he was? He could have just made some realistic looking collars and said “they’ll explode… honest!”

  9. the purpose of felony murder isn’t to upgrade manslaughter and second degree murder… the doctrine of merger prohibits that from happening, otherwise all murder convictions would be first degree…

    • In many jurisdictions the felony murder rule causes unintended homicides that would otherwise be second degree murder or manslaughter to be charged as first degree murder. Technically speaking the rule constructively supplies the malice required for first degree murder, but ‘upgrade’ is more concise.

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