Daredevil #2

Our coverage of the recently re-launched Daredevil continues with the second issue.  There are some great legal topics here, including criminal procedure and legal ethics.

I. Attack First, Arrest Second?

As teased at the end of the first issue, Captain America has shown up to arrest Daredevil for crimes he committed while possessed by a demon (which is a very good defense, if you can prove it).  There are some potential issues with the way Captain America handles the arrest, though.

First, Cap starts things off by throwing his shield at Daredevil.  He explains that this was to make sure it really was Daredevil, though that’s a troublesome explanation.  If it hadn’t been Daredevil, presumably he would have smacked some innocent cosplayer upside the head, likely causing serious or even deadly injury.  He’s lucky that it was, in fact, Daredevil, or else he’d be opening himself (and the Avengers / the US government) up to a serious lawsuit.

Second, Cap doesn’t read Daredevil his Miranda rights.  This is not a huge problem, but it does mean that it may be difficult to admit as evidence anything Daredevil says while he argues that he should be let go.  We can forgive this one, though, since nothing serious was admitted and it would probably be a boring waste of panels.

Notably, Daredevil breaks a window and trespasses into a warehouse while resisting arrest.  These are crimes in and of themselves, and his past possession wouldn’t be a defense here.  An innocent person has no right to resist a lawful arrest, even if they are ultimately acquitted.  See, e.g., People v. Thomas, 657 N.Y.S.2d 184 (N.Y. App. Div. 1997).  He should really have tried talking things out first and only running as a last resort.

II. Romantic Entanglements and Legal Ethics

Meanwhile, Kirstin McDuffie, a new assistant DA, comes to Nelson & Murdock’s office, where it’s revealed that she and Foggy have a romantic relationship.  Moreover, she passes him some useful evidence relevant to the Jobrani case (the police brutality case from issue #1).  She says her boss wouldn’t look favorably on this, and it’s implied that she’s doing this because of her relationship with Foggy.

First off, we should note that the New York City DA’s office handles criminal cases, not civil ones such as a police brutality suit.  That is the responsibility of the New York City Law Department.  However, it’s possible the DA’s office would have evidence of interest from a criminal investigation of the officers, so this detail isn’t necessarily a problem.  But if this was evidence the DA’s office planned to use against the officers, then it would come out in court anyway, so we’re not sure why all the secrecy.

However, if it were evidence from a criminal investigation of Jobrani himself, then it would likely be covered by the prosecutor’s duty to disclose information showing a defendant’s innocence (i.e. New York Rule of Professional Conduct 3.8).

But let’s suppose that the DA has no duty to disclose the evidence and that it wouldn’t come out in court (e.g. because the DA isn’t going to bring charges against the police, perhaps because of corruption).  Did McDuffie just do something unethical?  We think so.  New York Rule 1.6 states that “confidential information” includes information that a client requests be kept confidential and information that would be embarrassing or detrimental to a client if disclosed.  Information showing that the city is liable in a police brutality suit would likely fit.

For his part, Foggy is likely free to use the information.  In New York, attorneys that receive confidential information inadvertently are restricted in whether they can use it, but information given voluntarily is probably fair game.  However, Foggy does have a duty to report McDuffie’s ethical lapse, which would probably make for a pretty awkward second date.

III. Legal Ethics, Again

Daredevil speaks to the lawyers that Jobrani tried to hire.  Each of them refused to take his case after receiving threatening phone calls.  The problem is that he does this as Daredevil.  If he’d simply gone as Matt Murdock, Jobrani’s attorney, then Jobrani could have easily approved of the revelation of confidential information (e.g. how he planned to spend the money if he won).  But the lawyers were wrong to disclose anything to Daredevil, and Daredevil was wrong to encourage them to break the ethical rules.  We don’t actually understand why he did this bit as Daredevil rather than Murdock, since Murdock was tipped off about the other attorneys, not Daredevil.

IV. Conclusion

Despite the occasional legal error, the Daredevil relaunch continues to make for good reading, so we suggest picking up a copy of the first couple of issues if you haven’t already.

21 responses to “Daredevil #2

  1. e.g. because the DA isn’t going to bring charges against the police, perhaps because of corruption

    Or more likely: Simply because the DA doesn’t want to charge a cop with anything unless he absolutely has to. Police officers not being charged in situations where a civilian would be facing years in jail is an all too common thing.

  2. What if it was something along the lines of information that would come out in court eventually, but not for some time, and they just didn’t want it out before they had to? Would that be considered confidential until the point it’s supposed to come out, or does the inevitability give a free pass?

  3. > Cap starts things off by throwing his shield at Daredevil….

    > Daredevil breaks a window and trespasses into a warehouse while resisting arrest. These are crimes in and of themselves, and his past possession wouldn’t be a defense here. An innocent person has no right to resist a lawful arrest…. He should really have tried talking things out first and only running as a last resort.

    I’d have thought that attempting to escape from a law enforcement officer who has used lethal force, without provocation, before attempting to make an arrest, would be a pretty good defense against a resisting arrest charge.

    • >I’d have thought that attempting to escape from a law enforcement officer who has used lethal force, without provocation, before attempting to make an arrest, would be a pretty good defense against a resisting arrest charge.

      Not by most of the precedents I’m aware of unfortunately. Use of force rules in general seem pretty sympathetic to the police if any doubt is present, probably especially in the case of a obviously dangerous super like Daredevil. Besides, minus any audiovisual recording, the case would revolve around Daredevil’s word vs. Captain America, not terribly good creditability odds there.

    • Some states, including New York, allow someone to resist an otherwise lawful arrest if the arrest involves excessive force. See, e.g., State v. Valentine, 132 Wash.2d 1 (1997) (adopting rule that “Orderly and safe law enforcement demands that an arrestee not resist a lawful arrest … unless the arrestee is actually about to be seriously injured or killed.”); People v. Stevenson, 31 N.Y.2d 108, 112 (1972) (“a citizen may use reasonable force in self-defense where the force exerted by the police in effecting an arrest is excessive.”)

      The problem is that the rule in Stevenson hasn’t been explained by the New York courts, so it’s not clear whether the force in this case would qualify as excessive. If the rule were like Washington’s, for example, then the force used wouldn’t qualify because Daredevil was not about to be seriously injured or killed (albeit only because of his super abilities).

      Furthermore, there is an argument that Cap’s behavior was explicitly lawful because of N.Y. Penal Law § 35.30, which lists the circumstances under which a police officer may use force or deadly force in making an arrest or preventing an escape. I don’t necessarily want to get into the particulars, but suffice it to say that he could probably make a decent argument from that section. He would be a bit hampered by the fact that he wasn’t actually sure it was Daredevil when he tossed the shield, though.

      (Note that at common law one could resist an unlawful arrest, but that rule has been discarded pretty much everywhere, and the arrest here was presumably lawful.)

      • Except his attacks prior to attempting to make an arrest wouldn’t be shielded by the law concerning ‘circumstances under which a police officer may use force or deadly force in making an arrest or preventing an escape’, would they? Seems like that can’t come into play until Daredevil knows that Cap is there to arrest him, as opposed to acting as a private citizen, or possibly an impersonator, just attacking him.

        And given that Cap’s shield has been shown to shear through metal when he throws it, Daredevil could very easily have been maimed or killed had he not resisted at least to the extent of dodging or deflecting it.

      • As I said, it’s an argument he could make, though it has its problems.

  4. I’d also imagine that if a cop drew a gun and shot at you (or in this case, threw a shield), without attempting any other course of action first (presuming you weren’t actively trying shooting at someone yourself or something), you’d have a pretty good excuse for running.

    I haven’t read the book (just saw previews on CBR), but it appears that at the time of the attack DD is standing costumed and armed with weapons drawn on a rooftop (and in fact from the panel printed in issue 2’s opening “newspaper” page, he’s in combat stance and swinging one of the clubs in a manner that suggests he’s preparing an attack). Does that color the situation at all? These are melee weapons, not a gun, and I’m not aware enough of DD’s tech to know whether they can be deadly at range (though he does throw them in response to the shield attack and they’re at least enough to cut off or knock off one of Cap’s mask’s wings).

    Of course, he might have just started getting ready in issue 1 in response to “sensing a presence” or something.

    As far as the “testing the identity” thing, I think the implication is that Cap’s testing whether it’s really DD or someone /with ill intent/ costumed as him, not an innocent. This is, again, a guy standing on a rooftop in identity-concealing garb and armed with potentially-deadly weapons. In superhero stories, if that’s not the real guy, it’s probably an evil clone or a disguised villain. (Or a successor, but they usually change the costume in some way.)

  5. “This is, again, a guy standing on a rooftop in identity-concealing garb and armed with potentially-deadly weapons.”

    So Cap can pre-emptively throw his shield at cosplayers? Or actors taking a smoke break? Or a guy trying out a new Halloween costume?

    Cops can’t simply shoot at folks in any of those circumstances, even in NYC. Absent an overt actual threat to the officer or someone else they have to at least challenge as the only crime would be weapons possession.

    NYC has a lot of bad weapons laws but I’m not sure it is a felony to stand alone on a roof holding a couple sticks, or even nunchaka.

    • I can’t speak to NYC specifically, but in New York state the possession of nunchaku (called a ‘chuka stick’ in the statute) is criminal possession of a weapon in the 4th degree, a class A misdemeanor. N.Y. Penal Law § 265.01(1). So indeed, it’s not a felony.

    • Again, though, my point was less about him having the weapons and more about him swinging them in a manner suggesting he was preparing to attack in some manner. Daredevil can apparently throw the clubs pretty effectively, so if they’d be considered a deadly weapon usable at range, and the user was moving in such a way that did indeed suggest he intended to cause harm to someone, I’m wondering if that would color the situation.

      Again, though, I’m just going off the first page of issue #2, where it looks like Daredevil is swinging the clubs in a way suggesting he is preparing to strike with and/or throw them before the shield is flung at him.

  6. Does Cap know Daredevil’s true identity? If so, how much of a difference does it make that he didn’t read the Miranda rights, since Murdock is an attorney who may know them better than Cap himself?

    • I don’t think it makes a difference. I couldn’t find any cases holding that someone does not have to be Mirandized if they are presumptively aware of their rights already.

  7. I thought I’d read somewhere that the need to read Miranda rights before arresting someone is a myth — that they’re really only required before interrogating someone. Or is that a moot distinction here because DD was giving testimony during the attempted arrest?

    And why are we treating Captain America as a police officer? Isn’t he a private citizen, or (as an Avenger) a government representative? Granted, pre-emptively attacking someone with a potentially deadly weapon, particularly before confirming his identity, is pretty clearly unethical regardless, but as for the other issues under discussion, would it make a difference if Cap isn’t actually a police officer?

    • You are correct that the Miranda warning is not required when arresting someone. In fact, the warning is not required at all, strictly speaking, but the without it interrogating an arrestee is not very useful, since the testimonial evidence is inadmissible. Here, Daredevil was under arrest and being questioned. As it happens he didn’t admit to much of importance, but if he had confessed outright then that confession would have been inadmissible.

      Captain America, in his role as an Avenger, appears to be a law enforcement officer of some kind (“America’s top cop,” Daredevil calls him). Exactly who is required to give the Miranda warning is not super-well-defined, but it almost certainly applies here where we have a government official carrying out a planned arrest in his official capacity.

  8. So Captain America is a state Actor but Batman is not
    (see I have been reading)
    Actually I can see that if the Avengers are statesponsored and not just Tony Stark’s hobby

    • I’d say Batman’s usually not a state actor, but there are some occasions when he’s working so closely with the police that he certainly runs that risk.

    • The Avengers have often (usually?) been shown to be operating on behalf of the US government. I recall that Henry Peter Gyrich (often an antagonist in the X-Men comics) was the Avengers’ government liaison for a time. And in the Marvel Cinematic Universe, the Avengers are being organized by SHIELD, a government agency.

  9. I have always been unclear on precisely what Captain America’s position is. Clearly, he had some type of officer rank in the U.S. Army during WWII (perhaps he was *actually* a captain, but I think I have read somewhere that he retains “captain” as a moniker when in fact he has a higher ranking). But now Cap primarily works as a government agent associated with S.H.I.E.L.D., which is a federal peace-keeping agency of unimagineable power and resources. Yet, at times, Cap has acted in the non-profit sector. If you look up Jack Flag’s origin story, it turns out that he and a number of other minor characters were associated with Captain America’s “hotline.”

    There’s an interesting question– if a government agent opens a non-profit, does it still qualify for 501(c)(3) status? If Cap’s non-profit were sued (perhaps because Cap attacked an innocent cosplayer on the street, acting in his official capacity as a peacekeeping officer), could the plaintiff pierce the corporate veil and sue the government? Or just the non-profit?

    • I’m not entirely sure what SHIELD’s situation is at the moment, post-Secret Warriors, seeing as it looks as if the United Nations has been “encouraged” by the lobbying of the US federal government – via Senator and former charter Howling Commando “Rebel” Ralston – and covertly by the manipulations of Nick Fury into reorganizing the Directorate.

      Whatever Steve Rogers is running on behalf the US government in order to keep the Avengers at least semi-solvent seems to be a separate organization from the new version of SHIELD, albeit in quiet alliance with them.

      Am I wrong?

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