Thor, Part Two

We’ve written one post about the Thor movie already, but there are a couple of other legal issues to discuss.  As before, spoilers follow after the break.

I. Don’t Tase Thor, Bro

Early in the film, Thor is discovered in the New Mexico desert by Jane Foster’s research team.  Thor is disoriented as well as confused by his state of relative weakness.  Darcy tases Thor, apparently out of an abundance of caution.  But was this a justifiable use of reasonable force in self-defense?

New Mexico, where the potential tort occurred, follows the common law rule that “the privilege of … self-defense, is limited to the use of reasonable force.”  Downs v. Garay, 742 P.2d 533, 536 (Ct. App. N.M. 1987).  The Downs case cites the Restatement (Second) of Torts.  Here’s the relevant part of what the Restatement has to say about self-defense (in § 63, for those of you playing the home game): “An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.” So now there are two questions: 1) was the taser reasonable force and 2) did Darcy reasonably believe that Thor was about to intentionally inflict a harmful or offensive contact or bodily harm against her or the other members of the research team?

A. Reasonable Force

As the commentary to the Restatement explains “the means used must be proportionate to the danger threatened.”  Note that it must be “proportionate” not “equal.”  So while Thor was unarmed, he was clearly both taller and stronger than Darcy.  The use of a non-lethal weapon like a Taser was probably reasonable, especially given that “In determining [the reasonable character of the means], account must be taken of the fact that the other’s conduct has put the actor in a position in which [s]he must make a rapid decision.” Courts most frequently draw lines where someone pulls a “dangerous weapon,” usually something like a knife or a gun, but potentially any object capable of inflicting serious bodily injury without trying too hard. Tasers don’t fall into that category most of the time.

B. Reasonable Belief

The second issue is whether Darcy’s belief in the immediacy of the threat was reasonable.  The question is whether a reasonable person in Darcy’s shoes would have thought that tasing Thor was the only way (apart from fleeing or complying with Thor’s demands, neither of which are required) to prevent a harmful or offensive contact that Thor was about to intentionally inflict on Darcy or someone else.

Before being tased, Thor advances on Darcy, saying “You dare threaten me, Thor, with so puny a weapon?”  Combined with his shouting and erratic behavior, this makes a decent case for reasonable belief, especially given that the group was alone in the desert with little opportunity to call for help or the assistance of the police.

C. But Was the Tasing Actually Privileged?

But what of the fact that Darcy pointed the Taser at Thor before he threatened anyone?  There’s the rub.  As the Restatement explains in the commentary on § 72:

 If the actor, not being privileged to do so, intentionally inflicts or imposes, or attempts to inflict or impose bodily harm or an offensive contact … upon the other, the actor is not privileged to use force to defend himself against the force which the actor thus compels the other to use in self-defense.

The wording there is a bit confusing.  In a nutshell: self-defense doesn’t apply if the defendant started the fight.  Arguably Thor was acting in his own self-defense because Darcy threatened him with a Taser without privilege to do so.  Darcy got a little trigger happy, and if it had been a strange man lost in the desert and not the God of Thunder, she might have had criminal charges and a civil suit on her hands. Especially since they had just run over him, so he was probably justified in feeling a bit put upon.

II. Jane Foster and Negligence

Speaking of which, Thor gets run over not once, but twice.  In both cases Foster doesn’t intend to hit him, but could she be found liable for negligence in either case?

A. The First Case

In the first case, Jane and Professor Selvig are wrestling with the wheel while driving towards the storm caused by Thor’s arrival on Earth.  Suddenly, the silhouette of a man appears in the dust cloud and the van strikes Thor.

This does not strike us as negligent.  Although Jane was being careless, the likelihood of running into a man in the middle of the desert, especially in the middle of a freak storm, is so remote that her (and Professor Selvig’s) carelessness likely does not rise to the level of a breach of a duty of due care. Again, the standard for negligence is where a reasonable person would have perceived a risk and avoided a course of conduct as a result. A reasonable person does not anticipate the Bifrost depositing an exiled, depowered Asgardian (or anyone else, for that matter) in the middle of the desert at o’dark-thirty.

B. The Second Case

The second case, when Jane backs into Thor in the hospital parking lot, is quite different.  A hospital parking lot during the day is a place where one can reasonably expect to find people walking, including people who may be less than fully aware or less able to move out of the way to avoid an accident.  Jane could easily have avoided the accident by checking her mirrors before backing up, so the negligence case is pretty cut and dry here.

However, it’s unlikely that a plaintiff in Thor’s position would be entitled to much in the way of recovery, because awards are based on liability and damages. Award = liability x damages. Thorsdoes indeed get knocked down, but, well… Whether or not someone other than an Asgardian, depowered or no, would rebound so quickly and completely is an open question–defense attorneys see all kinds of crappy cases where someone who takes a minor tumble claims hundreds of thousands in damages–but from these facts, it’s unlikely that a lawsuit would be filed, and defense counsel would almost certainly want to litigate the damages issues, not the liability issues. Foster’s liability is probably somewhere around 90% (Thor did kind of just wander out there), but the damages are pretty minimal. 0.9 x [not much] = [slightly less than not much].

III. Conclusion

There’s a lot of stuff going on here, if you stop to look for it. The law winds up having something to say about almost everything the government does, and motor vehicle accidents are sort of a gift that keeps on giving. Priest comes out on Friday, but that isn’t set in the US legal system, so our next in-depth review will probably be Green Lantern, which comes out on June 17.

8 Responses to Thor, Part Two

  1. The cut of the film I saw does not have a character “Professor Andrews”. You mean Dr. Selvig?

  2. Must disagree with you that Tasers are “non-lethal” weapons. The law is very much in flux here. There are folks who’ve died after being Tasered (the cause of their death being disputed), and folks who can be seriously injured by Tasers. They are certainly more dangerous than pepper spray or Mace, both of which have resulted in “assault with a deadly weapon” charges (or their counterparts) in various states.

    On the other hand, Tasers are rarely dangerous/deadly weapons per se (tho some states do ban them either entirely or for non-law enforcement use), so this would be an issue for a jury just like coffee (hot or cold), snowballs, tacos, a shod foot, a thrown shoe, or numerous other things that have been charged as deadly weapons for purposes of assault with a deadly weapon cases.

    • “Tasers are rarely dangerous/deadly weapons per se”

      And that’s just it. The Restatement privileges the use of reasonable force “not intended or likely to cause death or serious bodily harm.” Tasers fall squarely within that definition. Darcy clear did not intend death or serious bodily harm, and Tasers are not likely to cause death or serious bodily harm. In the vast majority of cases of Taser use, no serious bodily harm results. See William P. Bozeman et al., Wake Forest Sch. of Med., Injury Profile of TASER Electrical Conducted Energy Weapons (CEWs) (2007) (“99.7% of 962 subjects had no injuries or mild injuries only”).

      “They are certainly more dangerous than pepper spray or Mace, both of which have resulted in “assault with a deadly weapon” charges (or their counterparts) in various states.”

      As far as I can tell it’s nearly always an “assault with a dangerous or deadly weapon.” A Taser can be a dangerous weapon within the meaning of a criminal statute and yet still not be “intended or likely to cause death or serious bodily harm” because most criminal statutes define “dangerous weapons” very broadly.

      “so this would be an issue for a jury”

      Actually that depends on the jurisdiction. Some courts have held that determination to be a matter of law for the court. See, e.g. Handy v. State, 745 A.2d 1107, 1109-10 (Ct. App. Md. 2000). But it is an issue for the jury in New Mexico. See, e.g. State v. Neatherlin, 154 P.3d 703, 708 (Ct. App. N.M. 2007).

  3. Just to extend the pedantic point slightly, I’d say that the status of TASERS will vary widely state to state — I think you have a good legal argument about this being non-deady force because of studies like the one above. (Deaths and serious injuries from TASERS are rare, but not nil.) And the rules for police use of force are somewhat different that for citizen self-defense, but this is an area in great flux.

    In my home state of Mass, Gen. Laws ch. 140, § 131J restricts “electronic defense weapons” to law enforcement (and that was a relatively recent change) and requires a carry permit for pepper spray (Gen. Laws ch. 140, § 129B(9B). Next door in Conn., likewise one cannot carry an “electronic defense weapon” General Statutes § 53-206. (Helpfully defined General Statutes § 53a-3 as “a weapon which by electronic impulse or current is capable of immobilizing a person temporarily, but is not capable of inflicting death or serious physical injury.)

    When last I looked, there was limited case law — See People v. DeLaCruz, 20 Cal. App. 4th 955; 25 Cal. Rptr. 2d 202 (1993) (security guard did not fear “bodily injury” when he used “mace” on rowdy young man); Snell v. United States, 754 A.2d 289 (D.C. 2000) (defendant who failed to establish self-defense using pepper spray charged with “simple” assault): Com. v. Lord, 55 Mass. App. Ct. 265, 271-72 (2002) (“mace” as inherently dangerous, capable of inflicting serious harm, charge properly submitted to jury, collecting cases).

    I haven’t found much on TASERS. My impression is that police will react to someone aiming a TASER at them as if it were an attempt to use deadly force, but seem to treat their own use of it as a lower level of force than various bare hands techniques (quintessentially bare hands are non-deadly force). This seems to be an area where most state law and case law hasn’t caught up with technology.

    • You are correct that a plaintiff would try to argue that the level of force was not proportional, but I think that Darcy would prevail on that issue. It’s hard to be sure, however, and it does not help that my research did not turn up any New Mexico case law on this issue in either the criminal or tort context.

      In any case, from the plaintiff’s point of view I think the far better argument is that Darcy was not privileged to use the Taser at all. She pointed the Taser at Thor, with the laser sight activated, before he advanced on anyone or made any threats; that is pretty clearly an assault. I think Thor would have a good argument that he was the one acting in self-defense.

  4. I can’t find much either in the self-defense context. If Darcy were a police officer, I think a court would find the use of the Taser to be excessive force. See e.g. Bryan v. McPherson, 590 F. 3d 767, 774-75 (9th Cir. 2009) (Taser is “intermediate or medium, though not insignificant, quantum of force”; use must be justified by “a strong government interest [that] compels the employment of such force.”); Casey v. City of Federal Heights, 509 F. 3d 1278 (10th Cir. 2007) (summary judgment in excessive force case denied where officer used taser on plaintiff without first giving verbal commands and chance to comply); Draper v. Reynolds, 369 F. 3d 1270, 1278 (11th Cir. 2004) (being struck by a taser gun is an unpleasant experience, the amount of force [officer] used — a single use of the taser gun causing a one-time shocking — was reasonably proportionate to the need for force and did not inflict any serious injury); Hinton v. City of Elwood, 997 F.2d 774, 777 (10th Cir.1993 (not excessive for officers to use an “electrical stun gun” on a man after grabbing him and wrestling him to the ground).

    “He was freaking me out!” certainly doesn’t get to imminent danger of death or serious bodily harm (the standard for lethal force), and probably not even to “peril” (one of the common standards for non-deadly force at common law) — per the clip (haven’t gotten to the movie yet), Thor’s big, but outnumbered 3 to 1, not making clearly aggressive moves or issuing threats, in an area with lots of room for the defenders to retreat (in those place where the law requires it), and at least 10′ back (civilian tasers have a max range of 15′, so he can’t be further). Police will use deadly force on aggressors within 21′ feet due to the speed with which even an unarmed aggressor can cross that distance vs. the speed with which the officer can perceive the rush and respond, but courts and juries tend to be itchy about using any force on folks who are more than 10′ or so away.

    • For the record I don’t think New Mexico requires retreat, since it follows the Restatement (Second) with regard to self-defense, and the Restatement does not require retreat or compliance with the assailant prior to resorting to self-defense.

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