Thor

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.

III: Conclusion

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.

26 Responses to Thor

  1. Martin Phipps

    Perhaps we can revisit the question of child labour laws when X-Men First Class comes out. In the comics, the X-Men started out as students and fighting supervillains was always an “assignment” but if the movie depicts an early version of the X-Men being used as as weapon against the Soviets in Cuba then the line “They’re just kids” carries with it legal implications. If any of the X-Men accompanying Charles and Eric into the Caribbean are minors then wouldn’t the government themselves be violating child labour laws?

    • Child labor laws do not apply to military personnel; whether they apply to paramilitary forces has (AFAIK) not been litigated. The Convention on the Rights of the Child bans military use of under-18-year-olds but the USA stands alone among major nations in not having enacted it. This places other nations at a distinct superhero disadvantage.

  2. The X-men/students of the era of the early comic books were (IIRC) college students thus not covered under child labor laws at all. It was often implied that the School included younger students, but I don’t think they appeared “on screen” (as it were) until The New Mutants. (That being said, given the lame bunch they’ve chosen – I have no intent of seeing First Class.)

  3. It seems like even if the “Acts of God” language were applicable, there would be an implication that it is voidable in a case where a god decides to come to earth and walk around as a definite invidual who can presumably be brought into court.

    • Actually any lawyer could get around the “Acts of God” language by reasonably pointing out that Thor is not “God,” capital “G.” Neither is Odin. Capital “G” God refers exclusively to the Creator, First Cause, Prime Mover, etc, at minimum the Nature’s God of the deists.

      • Ryan Davidson

        Only if you’re willing to establish Christianity or at least some version of a traditionally theistic religion in violation of the First Amendment.

        And that ambiguity is precisely why the term is no longer favored.

      • I think you’re missing the point; religious preference has nothing to do with it. Thor, historically, was a mere war god. Odin, while one link up the chain, was also a god who came along and found the universe already here (although he did help make Midgard). Neither could be mistaken as God, capital G, in a lineup, therefor neither could be implicated by the term “Acts of God,” although certainly lightning damage from one of Thor’s fights could be called an “Act of Thor.”

      • Martin Phipps

        The second commandment said “Thou shalt not have any other gods before me”. Nowadays it is assumed to mean that there is only one God but the way it was written (assuming it is an accurate translation of the ancient text) seems to imply that other gods do exist but they are not to be worshiped. So saying Odin is a god while God is God and not merely a god does seem to violate the doctrine of church and state. After all, if by “Acts of God” you literally mean acts of God then atheists can argue there are no acts of God as was already stated in the main text.

      • “It seems like even if the “Acts of God” language were applicable, there would be an implication that it is voidable in a case where a god decides to come to earth and walk around as a definite invidual who can presumably be brought into court.”

        Going back to the original argument, my point was merely that Thor could not be mistaken for Nature’s God in any case; in a court of law he could be held responsible only for his own thunderbolts. An atheist could argue that, whatever his claims, he wasn’t truly a god. A theist could equally argue he might be a small-case god, but certainly wasn’t large-case God, master of the universe and therefore responsible for everything in it. A strict Christian might argue he was a blasphemous fraud. None of them would argue he should be held responsible for Acts of God.

  4. “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?”

    In the movie, one of the S.H.I.E.L.D. agents hands Jane a check and says something along the lines of “this should compensate you for your loss”. I understand the movie makers not wanting to spend too much time discussing compensation, but it was a clear implication that she was compensated to some extent (and given the way S.H.I.E.L.D. seems to work, it was probably a pretty generous compensation – especially since Jane just stared at the check for a few seconds instead of doing the usual movie thing of tearing it up while yelling “this doesn’t even begin to cover it!”).

    • Ryan Davidson

      A valid point. However, the question is still relevant, because a lot of what was being taken was irreplaceable. If the cops take your care, you can get another care if given sufficient funds. But the cops taking every copy of decades of research? Hard to put a numerical value on that. Either way, it still doesn’t seem likely that they strictly had to offer her anything due to the nature of the seizure.

      • TimothyAWiseman

        I think the movie was a bit vague on Shield’s actual intent there, but I got the impression that they wanted to use her information not in any sort of criminal or national security investigation but to hand off to in house scientists for development and further research. Under this viewing, it would fall far more under the fifth ammendment than the fourth.

        And while this is far outside the legal realm, I found it at least sloppy if not absurd on behalf of the scientists that it was possible to seize all of their work. I have backups of my pertinent personal files in multiple physical locations, I am even more cautious about backing up the business files that are entrusted to me in separate physical locations.

        And that is just talking about deliberate backups. Scientists routinely publish papers and sometimes publish papers about methodologies and progress as they lead up to results. And that is before talking about collaboration which would result in other places holding copies of much of their data just as routine course of business.

        Certainly they would loose some, but if they had been cautious they wouldn’t lose more than a days worth of data (at least not that easily, Shield would need time to track down the multiple backups etc), and with paranoia that would be down to almost nothing.

      • Ryan Davidson

        Well two things there.

        First, there’s some suggestion in the films that Foster is operating on the fringes of science, as her mentor suggests that she’s never going to get able to publish any of this. So the idea that she is the only one to have data on the subject isn’t as implausible as it might be.

        Second, someone with a tendency to run over pedestrians as frequently as Foster may not be completely on top of her data security either. Still, the lack of on-site backups is damned sloppy.

      • Martin Phipps

        I got the impression that they wanted to use her information not in any sort of criminal or national security investigation but to hand off to in house scientists for development and further research.

        Actually, I rather thought that they thought the hammer was alien. Technically it was: we saw glimpses that indicated that Asgard and the Frost Giant “realm” were actually planets so Thor, etc. are remarkably human looking aliens who happen to speak English. (Okay, they could have at least had Thor speaking some Nordic language that Jane’s uncle would recognize and then have Thor miraculously start speaking English when he got the hammer.)

        Anyway, the standard Hollywood assumption is that if aliens came to Earth then the government would cover it up. Why? Because paranoid conspiracy theorists who believe in alien visitations think the government has already been doing that. Certainly the government DOES cover things up in the name of national security and if evidence of an alien encounter WERE considered a matter of national security then Jane Foster would be out of luck. On the other hand, when Thor, Sif, etc. started walking around in full costume the cat was out of the bag so to speak and they had no reason to hold onto her data anymore.

        One more thing: in the real world, the idea that they would take a scientist’s data and hand it off to other scientists sounds a bit far fetched. Why not take Jane Foster herself along with her data? Granted, that escalates the situation in that now the government is kidnapping her rather than just seizing her property BUT if they really want to know what her data says it really doesn’t make sense to hand it off to other people who hadn’t been working with her and wouldn’t know what her research was all about. Chances are she would have been happy to have been around people who were taking her seriously for a change, in which case taking her and her data by force would never have been an issue.

      • TimothyAWiseman

        @Martin Phipps
        “One more thing: in the real world, the idea that they would take a scientist’s data and hand it off to other scientists sounds a bit far fetched. Why not take Jane Foster herself along with her data?”

        That is a good point, on any interpretation of what Shield was doing. If they wanted to investigate, then they should at least want to interview her. If they want to cover up, then they want her silenced whether by threats, making her entirely vanish, or (since this is Marvel) telepathic mind alteration.

        And if they want her data to hand off to more senior scientists already in their employ as I posit, then they probably want to hire her (which they do at the very end).

        But in any of those scenarios they want a lot more interaction with her than taking her stuff and handing her a check. My only thought is that perhaps they want to observe her, but in that case they would be better off leaving some rootkits on her machines and recording devices in the lab rather than exposing themselves to her at all.

      • Martin Phipps

        @Timothy
        If it was a cover up then handing her data to “senior scientists” would be a bad idea because such people actually get published in journals and taken seriously. Mind you, again, they’d need Jane Foster not only to explain the data but also because she would be entitled to at least co-authorship on any papers published. To not do so would constitute academic fraud. I really don’t understand SHIELD’s motives here.

    • Jane said that the check was insufficient compensation because much of the equipment was custom-built and the data was also unique.

      There are two kinds of remedy, generally speaking: money damages and injunctions. A Bivens action, brought under the Fourth Amendment, can provide both. Even if Jane was adequately compensated for some of her losses, money damages are an inadequate remedy for the loss of irreplaceable equipment and data. A court could issue an injunction ordering the government to return the equipment and copies of the data.

      Of course, this all assumes that the seizure was, in fact, illegal. If it was a legal seizure, then she’s out of luck.

    • Slight correction: the agent hands Jane a slip of paper the size and shape of a check, although all we see is the back which is blank. It is not explicitly stated to be a check, although from the context that is the most logical explanation.

      • I remembered Jane saying that she couldn’t be compensated for the loss of equipment before receiving the check, not afterward. I could be wrong though – I guess I’ll have to wait for it to come out on DVD.

      • Mere silence in the face of an offer of compensation—or even physically accepting a check—will not estop someone from bringing a claim in court later. Given the events of the film, it’s a moot point in the end, but if, after doing the math, Jane felt the amount of the check was inadequate, she could have brought a claim rather than cash the check. And again, an injunction ordering the return of the equipment and especially the data is a separate issue from the money damages.

    • How do you know that’s a check, it might just be a receipt listing what was taken? Isn’t a receipt often given when materials are taken as part of an investigation just to prevent arguments over whether everything is returned, if and when it’s given back?

  5. A question regarding SHIELD, as an agency of the US government wouldn’t the concept of Soveriegn Immunity apply here, should the goverment choose to exercise that?

    Additionally, wouldn’t the Tucker act apply, in this case depending on whether SHIELD draws on the US Treasury, or has its own budget?

    • The government can’t use sovereign immunity to get around a Bivens action because the cause of action is implied in the Constitution. However, as with § 1983, a federal officer subject to a Bivens action has qualified immunity unless “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Groh v. Ramirez, 540 U.S. 551, 563 (2004) (citing Saucier v. Katz, 533 U.S. 194, 202 (2001)). If the S.H.I.E.L.D. agents seized the equipment without a warrant (which seems likely; they didn’t mention or show one to Foster) or with a facially invalid warrant, and none of the exceptions for a warrantless seizure applied (which also seems likely), then the agents would not be protected by qualified immunity.

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