So Thor is out. And it’s pretty good. I mean, it’s no Dark Knight, or even Iron Man, but neither is it The Fantastic Four (which, let’s face it, just sucked).
But you aren’t here for a review of the movie as a movie. You’re here for a review of the movie as it pertains to the legal system! At first glance, one might wonder exactly how a movie about an Asgardian major deity might have anything whatsoever to do with the American legal system. You’d be surprised! Spoilers, as always, follow after the break.
I. Government seizure of personal property
At one point, S.H.I.E.L.D shows up and basically cleans out Jane Foster’s lab. Computers, equipment, notebooks, the works. Jane protests that this violates her constitutional rights. Does it?
Maybe. The Fourth Amendment does prohibit unreasonable searches and seizures, and this is generally construed to mean that the government cannot look through any property or area where there is a reasonable expectation of privacy without good cause, typically a warrant. But note that the prohibition is not against all searches & seizures without a warrant. It is against unreasonable searches and seizures. There are circumstances where the police may enter a house without a warrant, generally where they have probable cause to suspect that something illegal is going on and that waiting to get a warrant will be bad, e.g. result in the destruction of evidence. If an agency like S.H.I.E.L.D., which seems to bear pretty high-level responsibility for national security in the Marvel film universe, deems that it is in the national interest to seize Jane Foster’s equipment… they might be able to do it. The national security card is pretty powerful, and the government is currently getting away with warrantless wiretaps with distressing regularity. Should there be concrete evidence of supernatural or extraterrestrial threats to national security, it isn’t hard to conceive that the relevant agencies would be granted pretty broad authority to take all your stuff.
There’s a sub-question here which doesn’t get addressed in the movie but which is relevant. The Fourth Amendment prevents searches and seizures without a warrant. But the Fifth Amendment prevents the taking of private property without compensation. When the police or another government agency takes private property as part of an investigation, why don’t they have to pay the owner of the property for the loss?
Because that isn’t how eminent domain works. If the government takes private property “for public use,” it must provide “just compensation,” but the taking of property as part of an investigation is not generally considered to be “for public use.” There’s a longer discussion of that issue—which is a bit controversial—over at the Volokh Conspiracy for those who are interested. Suffice it to say that the taking of private property as part of an investigation does not trigger the Fifth Amendment Takings Clause under current jurisprudence, even if the owner is innocent.
So what would Foster’s remedy be, supposing that S.H.I.E.L.D.’s actions do, in fact, violate her constitutional rights? One remedy for a 4th Amendment violation is the exclusion of the evidence from a criminal case against the victim, but Foster isn’t on trial, so that’s not much help. You might recall 42 USC 1983, but that only creates a cause of action for violations of constitutional rights by state or local officers. In this case Foster would bring a Bivens action, which is an implied cause of action based on a 4th Amendment violation, first described in the entertainingly named case Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). A Bivens action is basically like a § 1983 action except it may be brought against a federal officer.
II. Acts of God
This also seems as good a place as any to discuss the legal implication of “acts of God,” which a number of readers have asked about. Basically everyone is familiar with the phrase, and it is generally understood to be used in the context of a disclaimer. In particular, Elizabeth asks whether property damaged by Thor would be covered by insurance, as anything he does would be an “act of God,” or at least some kind of divine intervention.
This represents a common misunderstanding about the use of the term, which is now somewhat disfavored as ambiguous. At root, the phrase was most commonly used in contracts to indicate that when something happened beyond the parties’ control that the parties had not contemplated but which frustrates the purpose of the agreement, the parties are released from their obligations. For example, if a theater owner and a wedding planner sign a lease for the event space, and lightning strikes and burns down the building, it doesn’t seem fair to permit either party to sue the other for damages: neither party is responsible for the lightning, so neither party should be held to account for the resulting inconvenience. These days, the term “force majeure” is preferred, as “acts of God” is ambiguous. If one is a traditional theist, everything is an act of God, and the intent of the term is to say that some events void the contract but not others, so that’s no help. If one is an atheist, nothing is an act of God, so there’s the same problem. If one is a polytheist, the question becomes “Which god?” Besides, there are other things which contracting parties would want to exclude like war, civil unrest, adverse legislative action, etc. which aren’t traditionally considered “acts of God” yet which serve to frustrate the purpose of the contract just as well.
So then, would an act of a superhero/supervillain in general or Thor in particular be a force majeure? Depends on the kind of contract. If a sales contract or lease of a building is disrupted because of the acts of metahumans or deities, the parties would probably be released from their obligations. But insuring agreements are a bit different and don’t generally contain force majeure provisions. If something has happened which is so bad that an insurance company cannot pay covered claims, then either 1) the insurer is insolvent, or 2) whatever happened is so bad that insurance is the least of our worries. Something which frustrates the purpose of an insuring agreement would need to basically take down a huge chunk of the economy.
But more practically, we looked at supervillain insurance a while back, and came to the conclusion that an insurance company would probably be able to fit collateral damage from superhero battles under some exclusion, whether it be domestic unrest, riot, war, or terrorism. Still, Thor is an interesting case, as a lot of collateral damage he causes is probably in the form of lightning, which is a covered peril. But so is fire, and fire is a common result of riots, and fires set by rioters are definitely excluded. So yes, property damage caused by Thor would probably be excluded from most traditional insurance policies. But that isn’t because they’re “acts of God”—which are generally covered by insurance policies—but because the fall under an applicable exclusion.
Go see Thor. If this is any indication as to how good this summer’s superhero movies are going to be—and there are a bunch of them this year—then we should be in for a fun summer.