Monthly Archives: October 2011

Law and the Multiverse Holiday Special – Halloween Edition

Today is Halloween, so to mark the occasion we’re doing a post on Batman: The Long Halloween, a great series that was a major influence on the Christopher Nolan Batman films (or at least the first two).  Without giving too much away, the story concerns an enigmatic serial killer named Holiday, who kills on, well, holidays, beginning on Halloween.  That’s about all we’ll have to say about the story, since the legal issues presented in the series don’t revolve around the plot as such.  Nonetheless, there may be spoilers.

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Batman: No Man’s Land, Part 6

The main legal issues in No Man’s Land ended with the legal separation of Gotham from the United States—after all, if there’s no legal system there can’t be much in the way of legal issues.  But there are a few loose ends to address, including some that our readers asked about.

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Mailbag for October 27, 2011

Today we have another mailbag question.  Joe writes:

What if a hypothetical protester had powers that prevented the police from carrying out their duties? How would this legally break down, and to what degree could authorities enjoin or do anything to them?  [For example:] the Blob … decides to protest Wall Street. Literally no cop or a thousand cops will be moving him, if he decides to plop down in the middle of Wall Street. They can try to arrest or cite him, but being physically unable to remove him or execute the law, what legal recourse would they have?

[I]n-universe these folks could presumably be stopped by someone more powerful strolling along, but … What plausible legal end game could this be escalated to?

This is an interesting and timely question.  Just what are the limits of the legal sanction for someone who is only under arrest and has not yet been tried?  As we see it, there are a few different approaches the authorities could use.  We’ll assume that the Blob has done something to prompt a lawful arrest (e.g. obstructing traffic), since demonstrating peacefully is usually legal.

I. Resisting Arrest

One of the first things the authorities could try to do is tack on a charge of resisting arrest.  In New York (this is a Wall Street demonstration, after all), resisting arrest is defined by Penal Law § 205.30:

A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer … from effecting an authorized arrest of himself ….
Resisting arrest is a class A misdemeanor.

In New York there is an important distinction between undertaking an affirmative action with the intention of preventing an arrest and merely refusing to cooperate.  See People v. McDaniel, 593 N.Y.S.2d 154 (App. Term. 1992). “[T]here has been no citation to this court of any statute, rule or ordinance that requires a defendant to cooperate once that defendant is arrested and so long as the defendant does not affirmatively act to resist the arrest then there is no independently unlawful act that the defendant is committing.”  McDaniel, 593 N.Y.S.2d at 156-57.  So whether the Blob is guilty of resisting arrest depends a great deal on whether he uses his power before or after being arrested.  In the McDaniel case, for example, the defendant had chained herself to a door before being arrested, and the court held that to be insufficient evidence of intent to prevent arrest.

II. Non-lethal Force

The police could also try to use non-lethal force to obtain compliance (e.g. using Tasers and the like).  The courts have held that Tasers can be used to subdue suspects who are resisting arrest, at least when it is reasonable to do so.  See, e.g., Crowell v. Kirkpatrick, 400 Fed.Appx. 592 (2d. Cir. 2010); Hardy v. Plante, 2009 WL 249787 (N.D.N.Y. 2009).  Given the Blob’s resistance to injury, attempting to Tase him is unlikely to succeed, but it is also likely to be reasonable.  In fact, given the special circumstances, it’s not clear what the limit might be, so long as the police limited themselves to reasonable and non-lethal force.

III. Contempt

Another commonly used method to induce defendants to cooperate is contempt, and the Blob could be held in criminal contempt for his failure to appear in court.  In New York a person may be held in criminal contempt for “disorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority.”  N.Y. Jud. Law § 750(A)(1).  Although the Blob would be outside the court, the fact of his absence would occur in the court’s “immediate view and presence,” thus justifying the charge of contempt.  Waterhouse v. Celli, 336 N.Y.S.2d 960 (Sup. Ct. 1972).  Criminal contempt is also available in cases of disobeying or resisting a lawful mandate of the court, which could apply if the Blob refused to appear for a line-up.

So far we’ve just racked up additional charges.  Let’s move on to the big guns.

IV. Trial in absentia

The Sixth Amendment guarantees criminal defendants a right to be present in the court (via the Confrontation Clause), but this may be waived by disorderly conduct.  Illinois v. Allen, 397 U.S. 337 (1970).  The Blob’s refusal to appear could result in such a waiver, and he could be tried (and convicted) in his absence.

Interestingly, we’re not sure if he could be charged with anything new at this point, since the usual charge for avoiding going to prison (escape from custody) requires escaping.  Since the Blob remains motionless in this hypothetical, he can’t really be said to have escaped.

As a matter of speculation, a final option could be to build an ad hoc prison around the Blob, but that could be difficult depending on where he sat down (e.g. the middle of a major street).

V. Conclusion

There’s a lot that the police and courts could try when dealing with a particularly difficult suspect like the Blob, but there are limits.  Furthermore, it’s not obvious that they would actually want to go all the way to trying him in absentia.  Once he’s a convict, the government might suddenly find itself liable for his care and feeding, making it that much harder to ever dislodge him.

Mailbag for October 24, 2011

We haven’t done a mailbag feature in a while, and we’ve built up a little bit of a backlog of questions.  Today’s question comes from Caleb, who asks “Under the Constitution, would RoboCop be considered a person or property?”

This is an interesting question!  As we see it, the answer hinges on whether James Alex Murphy was legally dead before he became RoboCop.  Michigan has adopted the Uniform Determination of Death Act as MCL 333.1033:

(1) An individual who has sustained either of the following is dead:
(a) Irreversible cessation of circulatory and respiratory functions.
(b) Irreversible cessation of all functions of the entire brain, including the brain stem.

Notice that it allows for someone to be declared dead if either are true.  In Murphy’s case, all that was left were parts of his digestive tract, most of his brain, several organs and his left arm, though the arm was later amputated.  Depending on what exactly “several organs” refers to, this could well mean that there was irreversible cessation of circulatory and respiratory functions (i.e. that he no longer had a heart or lungs).  In that case, the fact that his brain function could later be restored wouldn’t necessarily matter. (Though we’re sure that the law would be changed in a world where people’s brains could be maintained separately from the rest of their bodies).

So supposing Murphy was properly declared legally dead despite the advanced technology of the RoboCop program, then RoboCop could be considered property rather than a person.  (There might still be difficulty overcoming laws regarding the disposal of human remains, but maybe Murphy made a legal gift of his organs for research purposes.)  But if he never died then he would still be a person.

An interesting side-effect of RoboCop not being a person is that he (or maybe ‘it’) could arguably no longer use lethal force in self-defense.  While a person may use lethal force to defense himself or herself, lethal force may not be used to protect property.  Thus, a robot can’t use lethal force to defend itself.

It also raises the issue of whether RoboCop can lawfully use lethal force at all.  The law frowns on automated lethal devices in other contexts, for example using lethal booby traps to protect a home from trespassers.  See, e.g., Katko v. Briney183 NW 2d 657 (Iowa 1971) (“the law has always placed a higher value upon human safety than upon mere rights in property”).  Even a remotely-operated drone is at least controlled by a human, and it’s not clear that a police force could legally employ a lethal automated robot.

Batman: No Man’s Land, Part 5

And now we finally come to the main event in the No Man’s Land arc: the evacuation and quarantine of Gotham City.

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Another Poll!

Since we started Law and the Multiverse we’ve gotten a lot of questions about non-comic-book-based movies, TV shows, and books, and on the heels of our posts about Castle we’ve seen an uptick in the number of those questions.  While we try to keep the blog focused on comic books, superheroes, and broadly-related media, it’s clear that there’s an interest in discussing how the law works (or doesn’t!) in other kinds of fiction.  So to gauge that interest among our readers we’ve set up a poll.  If enough people are keen on the idea, then we’ll start a sister-site with a wider scope.  Let us know what you think!

Dollhouse

Dollhouse was the 2009 Joss Whedon sci-fi (horror?) show starring and produced by Eliza Dushku. As with some other Whedon projects, it’s also a comic book series.  The basic premise is that a major pharmaceutical corporation has developed (but not perfected!) the technology to basically scoop out a person’s personality and memories and then write a new personality and set of memories in the brain. Repeatedly, and at will. This is at least as horrific as it sounds.

As it turns out, there isn’t a whole ton of legal analysis to be done here, as the show and its writers are entirely aware that what’s being done here is both morally repulsive and illegal (though they don’t go into specifics), and the main arc of the show is the efforts of a few characters to try to bring down the Dollhouse. But there is one really interesting issue that touches on something we talked about a few weeks ago with Castle, namely the definition of “death” used in the legal system. There aren’t really any spoilers inside, as we won’t be talking about many plot details beyond the basic premise, but you have been warned. Continue reading

The Intergalactic Nemesis

We’re happy to announce that Law and the Multiverse co-author James Daily will be participating in a panel discussion preceding performances of The Intergalactic Nemesis at the Edison Theatre at Washington University in St. Louis on November 18th and 19th.  The Intergalactic Nemesis is a live action graphic novel, sort of a radio-play-meets-motion-comic, and it has received rave reviews around the country.  If you’re a fan of pulp action and sci-fi, you’ll love it.  Tickets are available online.

In addition to the panel discussion there are also some exhibits planned, including a display of rare comic books collected by Dr. Gerald Early, professor of English at Washington University (who you may have seen on PBS’s History Detectives), and a demonstration of Sentinels of the Multiverse, a new comic-book-inspired cooperative card game.

Law and the Multiverse Retcon #2

This is the second post in our Law and the Multiverse Retcons series, in which we discuss changes in the law (or corrections to our analysis) that affect older posts.  Today we’re revisiting one of our earliest posts, Hearsay and Professor X, from way back in December of last year.  Although that post focuses on hearsay issues, this retcon is actually about the Fifth Amendment aspect.  After further research, we think that the original post was incorrect, and that the Fifth Amendment rights to silence and non-self-incrimination would protect against having one’s thoughts read by a psychic.

The Supreme Court has held that “the privilege protects a person only against being incriminated by his own compelled testimonial communications.”  Fisher v. United States, 425 U.S. 391, 409 (1976) (emphasis added).  So what is a testimonial communication?  The Court explained in a later case that “in order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.”  Doe v. United States, 487 U.S. 201, 210 (1988).  There are many kinds of evidence that are non-testimonial and may be demanded without running afoul of the Fifth Amendment, including blood, handwriting, and even voice samples. Doe, 487 U.S. at 210.  Perhaps the best example of the distinction between testimonial and non-testimonial communication is that requiring a witness to turn over a key to a lockbox is non-testimonial, while requiring a witness to divulge the combination to a safe is testimonial.  Id.

(This distinction is of vital importance in the era of password-based encryption, and it is not entirely clear whether the Fifth Amendment protects passwords.  One court decided the issue by holding that the defendant need not give up the password but rather only produce the contents of the encrypted drive.  In re Boucher, No. 2:06-mj-91, 2009 WL 424718 (Feb. 19, 2009).  Thus, the protected evidence (the contents of the defendant’s mind) remained secret while the unprotected evidence (the contents of the drive) were discovered.)

We need not wonder whether reading someone’s thoughts counts as testimonial communication, however.  As the Court explained “[t]he expression of the contents of an individual’s mind is testimonial communication for purposes of the Fifth Amendment.”  Doe, 487 U.S. at 210 n. 9.

One might be tempted to argue that the Fifth Amendment shouldn’t apply because the testimony is the psychic’s rather than the witness’s (i.e. the difference between the witness saying “I saw Magneto kill Jean Grey” and the psychic saying “The witness remembers seeing Magneto kill Jean Grey”).  However, the Supreme Court actually addressed this issue in Estelle v. Smith, 451 U.S. 454 (1981).  In that case, a defendant was subjected to a psychiatric evaluation, and the psychiatrist’s expert testimony was offered against the defendant.  The Court held that the expert testimony violated the right against self-incrimination because the expert testimony was based in part on the defendant’s own statements (and omissions).  Thus, using an intermediary expert witness to interpret a witness’s statements will not evade the Fifth Amendment.

So, contrary to our earlier conclusion, we think that psychic powers could likely not be used to produce admissible evidence from a witness who invoked the Fifth Amendment.  And believe it or not, this issue actually has modern resonance.  Although a far cry from the kind of mind-reading that Professor X is capable of, technologies like fMRI may someday see regular use in criminal investigation.  However, scholars and commentators are divided on whether fMRI-like tests fall under the scope of the Fifth Amendment (i.e. is it more like a blood sample or speech?).  See, e.g., Benjamin Holley, It’s All in Your Head: Neurotechnological Lie Detection and the Fourth and Fifth Amendments, 28 Dev. Mental Health L. 1 (2009); Matthew Baptiste Holloway, One Image, One Thousand Incriminating Words: Images of Brain Activity and the Privilege Against Self-incrimination, 27 Temp. J. Sci. Tech. & Envtl. L. 141 (2008); Dov Fox, The Right to Silence as Protecting Mental Control, 42 Akron L. Rev. 763 (2009).

Superhero Corporations II: Piercing the Corporate Veil

So a couple of days ago we talked about superhero corporations and respondeat superior. This time we’re taking a look at the opposite situation, where corporate actions can result in personal liability for the owners of a corporation.

I. Basic Doctrine

This is significantly less common than respondeat superior liability, as the whole point of corporate entities is limited liability. Corporations were invented to permit investors in trade missions to limit their liability to the money they had actually invested—ships were lost pretty frequently, so this was a big deal. Without the joint stock company, the Age of Exploration just wouldn’t have happened. These let the risk of investment be spread not only among multiple investors, but across multiple voyages. So while a particular ship may go down with all hands, but not only can the creditors not proceed directly against the investors for anything owed, but the debtors can use the profits of another voyage they’ve funded to make good the debt. Everybody’s happy.

The basic point here is that while it’s pretty easy for a company to be liable for the actions of its employees, it’s very difficult for an executive or owner to be personally liable for the actions of the corporation. When that happens, it’s called “piercing the corporate veil”. In US law, there are a series of factors that courts look at to determine whether the veil should be pierced. This isn’t a checklist, and it’s not the kind of thing where if you have more than half of the factors you win. Even a single factor can result in piercing if it’s bad enough, particularly when we’re talking about undercapitalization, i.e. when the investor hasn’t actually put enough money into the corporate entity to cover its debts. The courts do recognize that the point of corporations is to limit liability, but they aren’t very happy with people who create corporations solely for that purpose, particularly when the risk to be avoided is less just the ups and downs of business than avoidance of a known debt. The law lets you limit your liability for business purposes, but it won’t let you play games.

II. Superheroes and Piercing the Corporate Veil

So then, might it be that actions of various superhero corporations could result in personal liability for the superheroes that own them? Again, this is a fact-intensive analysis. But going with the examples above, we can again see something of a spectrum.

Remember, now we’re talking about something the corporation does, not something that the superheroes do as a result of their connection to the corporation. Products liability is perhaps the most obvious example, but it can come up with contracts, too. Basically, we’re now thinking about a situation in which the corporation, as a corporation, has gotten itself into trouble, completely independent of any superhero activities.

First, Batman. Here it seems very unlikely that the actions of Wayne Industries could result in personal liability for Wayne himself. Again, we’re talking about a multinational conglomerate with legitimate business operations in multiple continents, most of which have absolutely nothing to do with Wayne personally. The corporation is certainly well capitalized, and Wayne doesn’t appear to be doing much in the way of co-mingling of funds, though he may be guilty of siphoning away corporate assets for personal purposes as part of his Batman sideline. Still, the facts would probably have to be related to Batman in particular for that last one to matter, in which case Wayne would be personally liable anyway.

Tony Stark seems to be in almost the same position. Here we’ve got a major corporation, and though his identity as Iron Man is well-known, Stark Industries appears to be a healthy, well-run defense contractor with little in the way of corporate irregularities. Piercing again seems unlikely.

But just as with respondeat superior, the Fantastic Four seem a lot more susceptible to this. Fantastic Four, Inc. exists almost solely to let them operate as superheroes, and it doesn’t do all that much aside from licensing Reed’s patents and manufacturing goods based on them. There’s also a sense that personal and corporate assets may not be kept very distinct, in that while both Wayne and Stark are said to be independently wealthy apart from their role in the corporation, the FF’s money seems to be entirely based on the corporation. Wayne and Stark both own mansions, boats, sports cars, etc., and frequently show off their personal wealth. The FF live a lot more modestly and while they really don’t seem to worry about money, a lot of their material comfort really does seem to be linked directly to their corporate activities. So if FF Inc. is sued for products liability, this isn’t going to look good. It’s entirely possible that Reed and potentially the rest of the family could be on the hook personally.

III. Conclusion

Piercing the corporate veil is strongly disfavored by the courts, and plaintiffs really need to show that the corporate investors/owners are trying to pull off some kind of manifest injustice before the courts are going to put the investors/owners on the hook personally. But it can happen, particularly in situations like the Fantastic Four where the corporation is basically just a front for personal activities.  With Wayne and Stark, by contrast, it’s unlikely to happen unless Wayne or Stark personally ordered or oversaw something seriously illegal.