Castle: “Heroes and Villains”

Last week’s episode of Castle featured a new twist for Rick and Kate: a real, live, caped crusader!

Or, well, someone dressed up as one, who goes around fighting crime. This is another instance of pop culture taking a more-or-less serious look at the real phenomenon (apparently with its own website) of people putting on costumes and patrolling the streets, basically looking for trouble in which they can get involved. We talked about the implications of real life superheroes when we reviewed Kick-Ass a while back.

It sounds like about as good an idea as it turns out to be. There really isn’t any way to talk about this one without some pretty major spoilers, so here goes.

I. The Limits of Self-Defense

The basic plot is that the cops are called to the scene of a murder where the victim has actually been cut in two by what appears to be a sword. The only witness reports that the victim was actually about to rape her when this guy showed up dressed as a superhero, cut off the victims hand, and then cleaved him from stem to stern. The cops are, understandably, less than pleased with this. Which is actually both somewhat curious and the right response.

Here’s the thing: the right to defend others is pretty much co-extensive with the right to defend one’s self. So if a passerby saw a woman about to be raped, he would be entirely justified in intervening and perpetrating what amounts to a pretty significant assault on the would-be rapist, if necessary to prevent the attack. In New York (and many other jurisdictions) even lethal force is permitted to prevent a forcible rape.  N.Y. Penal Law § 35.15(2)(b).  So why do the cops even care? The victim was caught in the act of committing a particularly heinous felony, and the killing was quite possibly justified. Even his mother didn’t seem all that bothered by the victim’s untimely and unusual demise, though she did say she figured he’d get shot rather than bisected.

But here’s the thing: as with self-defense, when one is coming to the defense of another, one can only proceed so far as the person being defended is still in danger. If the assailant is driven off or otherwise manifests what a reasonable person would perceive as a withdrawal from the situation, there is no license to pursue and continue one’s attack. So once the attacker’s hand is cut off, that’s probably as far as our self-appointed hero is allowed to go. A person who kills an attacker who has been driven off is exposing themselves to a charge of homicide, definitely voluntary manslaughter if not murder.

II. Villain as Superhero

Of course, there’s another wrinkle here. The “superhero” who kills the victim was actually an enemy of the victim who deliberately followed him with the intent to kill. He then dressed up as a superhero to frame the actual person running around in that costume, who had interfered with his business doings on several occasions. Not a bad plan, when you think about it.

Of course, the fact that the killer deliberately set out to kill wipes out any claims of self-defense, defense of others, or even mitigating circumstances. This wasn’t done in the heat of passion, it was a carefully set-up scenario intended to kill one person and frame another for the murder. That’s first degree murder in many jurisdictions, although in New York it’s probably still second degree.  First degree murder in New York requires one of several specific aggravating circumstances, none of which likely apply in this case.  Either way, he’s going away for a long time.

III. Cop as Superhero

Then there’s the question of whether it matters that the actual superhero is a cop by day. Here we start to run into questions about state actors, which we talked about last year. At first glance, it may seem like even though the hero is a cop, she’s just moonlighting, so there’s no real conflict of interest or state action. But the way the story is told, the cop uses information gained from her day job to go out and fight crime off the clock. Because she’s using state resources to which she has access because of her position as an officer of the law, that may be enough to push her into state actor territory. On the other hand, this was entirely without permission and against all department regulations, so the state may be able to argue that while she violated various people’s civil rights, the state as such didn’t have anything to do with it and thus shouldn’t be liable for her actions. Of course, if the department does not hang her out to dry for her actions, that starts to look like tacit approval, which would keep the department in the case. Because the officer winds up getting off with a slap on the wrist, it’s pretty likely that if anyone did decide to sue, they could have a good shot at including the city in the suit.

IV. Conclusion

This was actually a pretty interesting episode, legally speaking. So far the season’s looking pretty good. Can’t wait ’til Monday!

Relatedly, the graphic novel adaptation of Richard Castle’s Deadly Storm was published by Marvel last week.  Look for a review of it soon.

23 responses to “Castle: “Heroes and Villains”

  1. Re. III: I got the sense they were going for a plausible-deniability scenario. As they said, since there were multiple versions of the hero in play, they could say “well, we don’t know which one’s which,” and they cut an under-the-table deal that said “stop now and we won’t prosecute.” So yes, the department would probably be in hot water if someone sued…but only if that someone could prove it, which would not be easy. And if the cop ever played the hero again, they would hang her out to dry. Very Batman-esque, in that regard. (In certain continuities, anyway.)

    • Here’s the thing: If someone sued the Department over these superhero shenanigans, the facts that 1) the Department knew who the superhero was, and 2) the superhero was a cop, would come out very quickly in discovery. How? Because the plaintiff(s) could request that the Department produce its files of the case pursuant to FRCP 34, and there’s very little in the way of argument that the Department could avoid being made to produce them.

      That’s part of why discovery is so powerful. If one party has evidence of something that the other party merely suspects, the discovery process almost always ensures that this evidence is shared with both parties.

      This comes up in litigation all the time. Oh, so after your accident, you haven’t been able to play sports like you used to? Gee, that sucks. Let’s hear about every trip you’ve taken outside the state since the accident and see copies of every picture of you taken during a recreational activity. While you’re at it, hand over a copy of your calendar for the last five years. Hmm. What’s this? You played beach volleyball while on vacation in Cancun just two months ago? And we’ve got pictures of you making a fairly awesome save? And you want how much money again?

      The same goes for civil rights litigation. Pretty much every document or record related to the subject incident will come out in discovery. If you try to hold something back, the other side is quite likely to figure that out, and when they file a motion to compel under FRCP 37, the court is not going to be amused.

  2. Regarding the part about reasonable withdrawal…how would that play out in states like Florida where you have castle laws that, if I read it correctly, extend to the point of allowing the use of deadly force to stop a forcible felony being committed against another person?

    • The way I understand it–and I’m not licensed in Florida–is that these laws change the amount of force that can be used, but not really the circumstances in which said force can be used. So maybe you can now use deadly force to prevent a less-than-deadly felony, but once the felony is prevented, you have to stop.

    • In many jurisdictions (including New York) the general rule is that one cannot claim self-defense if it is possible to safely retreat. “[T]he actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating.” N.Y. Penal Law § 35.15(2)(a). There are many exceptions to that general rule, however.

      The “castle doctrine” is one such exception; in jurisdictions that follow it (often by statute, as in the case of New York), one does not have to retreat from one’s own home. This doesn’t apply in the episode of Castle because a) the attack occurred in an alley and b) it was not possible for the woman to safely retreat and c) there is no duty to retreat in New York in cases of, among other things, forcible rape or other forcible criminal sexual act. § 35.15(2)(b).

      Another exception is so-called “stand your ground” laws, which basically do away with the duty to retreat entirely.

      • Ryan Davidson

        James is, of course, correct on the duty to retreat issue, but I’m aiming at something slightly different. Even in jurisdictions that don’t have a duty to retreat or in situations where it doesn’t apply, the right to self-defense does not, almost as a matter of definition, permit the use of force once the immediate danger has passed.

        Take an extreme example. Say a robber pulls a knife on me. If i pull a gun and shoot him, that’s self defense, because I was being threatened with deadly force. But if the robber drops his knife and runs away, shooting him in the back as he flees would be murder, because I was no longer in any immediate danger of being a victim of anything.

        That’s basically what we had here. The “superhero” cuts off the would-be rapist’s hand, which should have ended the incident. The prosecutor probably wouldn’t have brought charges against the superhero, but even if he had, a not-guilty verdict seems almost assured. As does a conviction for attempted rape for the attacker. But once the guy’s hand gets cut off, he stops, no longer posing a threat to anyone. Killing him then is thus murder, as there was no need to use any force against anyone.

        Again, the key here is that the “superhero” cut off the hand before going for the kill. If he had simply cut the guy’s head off right away, the cops wouldn’t really have a murder on their hands. They’d have an attempted rapist who got himself killed. Case closed. As a result, and intentionally or otherwise, the writers wound up depicting a scenario where the “superhero” really was a villain, rather than simply a zealous but legally blameless vigilante.

      • Yes, I see what Ryan (and Kenny) were getting at now. Even in castle law and “stand your ground” states, the ability to use force typically only extends to that reasonably necessary to prevent the attack. Inherently, if the attack has been prevented, then further force is no longer reasonably necessary.

        For readers who didn’t see the episode: it should probably be noted that the villain cut off the attacker’s gun hand, disarming him (no pun intended). This gives more weight to a defense of others argument compared to, say, cutting off his other hand. It also shows that the threat was over at that point, and killing the attacker was indeed unjustified.

  3. Originally left this comment on your Livejournal feed.

    This often comes up when self-defense is raised. It is (if you will pardon me) a messy, fact-based inquiry. It is not always apparent in combat when the assailant has been driven off or rendered incapable of further attack. This often seems incredible to those who have never been involved in a significant altercation, but experts will attest that it is difficult for the party engaged in self-defense/defense of another to gauge when the line is crossed.

    It is entirely possible that a trained martial artist would follow his “kata,” a predetermined and trained series of moves, in a few seconds without pausing between blows to determine effect. It would then become a question of whether state law imposed strict liability when using deadly force or whether the proper analysis relies on determining when the person defending self/other knew or should have known that the assailant was incapacitated/driven off.

    In other words, the fact that the defender (if he has been an actual defender) first cut off the hand would not make the following killing stroke per se illegal. If the defendant could introduce evidence that the strokes happened in rapid succession, and that the defendant could not have reasonably been expected to pause between strokes to assess the impact, then self-defense defense should still be available.

    If memory serves, this was an issue in the Goetz case, with competing testimony by the State and defendant Goetz with regard to his assessment as to whether he reasonably felt under threat when he fired.

    • Interesting. Unfortunately, in this case we’ve got an eyewitness who would testify that the would-be rapist sort of sat there with a silly look on his face for a few seconds before being cut in two. This wasn’t a “kata” or anything like it. It was one blow, a decent pause, and then another. No rapid succession. I’d have to rewatch it to time it, but memory suggests it could have been as long as five seconds between blows. It certainly wasn’t any kind of “one-two” thing.

      So yes, messy fact-based analysis. But in this case, the facts do lend themselves to the outcome discussed above.

    • “If the defendant could introduce evidence that the strokes happened in rapid succession, and that the defendant could not have reasonably been expected to pause between strokes to assess the impact, then self-defense defense should still be available.”

      I couldn’t find any self defense cases specifically discussing martial arts kata, but in any case: “[E]ven if a defendant is justified in using deadly physical force at the beginning of a single, ongoing encounter with an assailant, his right to use that force terminates at the point where he can no longer reasonably believe that the assailant still poses a threat to him.” People v. Colecchia, 251 A.D.2d 5, 6 (App. Div. 1998). So the question is whether an objective, reasonable person would have believed the assailant still posed a threat throughout the entire kata, not whether the defendant subjectively thought so.

  4. Indeed. But this is invariably the difficulty of the “reasonable person” standard. Even when it is not subjective to the individual (and perhaps mistaken) belief what is “reasonable” for the person in a brawl? Experts from both sides would testify as to the nature of the training, what the average person can be expected to understand, and so forth. No doubt experts on the mental state of a person in combat and whether that is a subjective question or objective question would be raised and argued.

    I was merely suggesting that often times something may appear “obvious” to observers at a distance hearing a description from witnesses, but not trigger any sort of per se rule because the factual inquiry may demonstrate the defense is available. And even under the “reasonable person” standard, it is not too difficult to produce a conflict among experts and introduce subjective evidence.

  5. On an entirely separate note, please tell me you’re going to do yesterday’s episode of Castle too. By the time they were discussing the “legal chicken-and-egg” problem I was imagining your reactions.

    • Once we watch it, certainly! Because we don’t actually watch it live, writing a post the next day isn’t as convenient for a show on a Monday (e.g. Castle) as it is for a show on a Friday (e.g. Torchwood). But we’ll get to it presently.

    • As it turns out there was no chicken-and-the-egg problem in the case at all. The police didn’t even need a court order.

      Under New York law, “The right to dissect the body of a deceased person exists … When the dissection is performed by or at the direction of … a medical examiner of a county … and is performed in the course of an investigation within the jurisdiction of the officer performing or directing the dissection, or is performed upon the written request of a district attorney, or sheriff, or the chief of a police department of a city or county, or the superintendent of state police.” N.Y. Pub. Health Law § 4210.

      “Although the statutes governing the performance of autopsies grant broad discretion to Coroners, the power is limited to deaths which indicate a possibility of criminality or suicide. … Occasionally a court may find that the evidence shows an abuse of discretion as a matter of law, but such instances are rare.” Brown v. Broome County, 8 N.Y.2d 330, 332 (1960).

      There was certainly “a possibility of criminality or suicide” in this case, even with only the evidence from the crime scene.

      As for the episode’s reference to “murky case law”: I couldn’t find any case law in New York (or any other U.S. jurisdiction for that matter) on autopsies and cryogenics. It was a good episode, but it hinged on a legal problem that doesn’t exist.

      • That sounds more like it’s an issue of whether they have the right to open the guy up, but it doesn’t say anything about not having the body. What if, for example, there is a “possibility of criminality or suicide” but the body is already buried? I wouldn’t argue for a right to exhume absent a court order.

      • Nope, exhumation is covered by § 4210 as well. The district attorney has broad latitude to order an exhumation in order to determine cause of death:

        “Whenever any district attorney in this state, in the discharge of his official duties, shall deem it necessary, he may exhume, take possession of, and remove the body of a deceased person, or any portion thereof, and submit the same to a proper physical or chemical examination, or analysis, to ascertain the cause of death. … Said district attorney shall have power to direct any police officer … to assist him in exhuming, removing, obtaining possession of and examining physically or chemically such dead body or any portion thereof.”

      • Well, that’s that, then. The DA in the episode was shown as resistant to the idea (which is why there was trouble to begin with, because the DA wasn’t backing the cops’ play), but sounds like that was the mistake, because he didn’t have to be.

      • Martin Phipps

        I know I’ve seen police procedurals on TV in which the police ask the family if it is alright to exhume their relative. I know I saw that on CSI. This may have been done for dramatic purposes as asking a family member to agree is a lot more dramatic than asking the DA. That being said, I would imagine that the polite thing to do would be to ask the family. Surely if the family agreed to an exhumation the question of legal grounds for exhuming the body would be moot. Besides, I suspect nine times out of ten a DA would be reluctant to exhume a body without the family’s consent so they might as well go ask the family first. On TV the exhumation always results in the case being reopened but in real life they might find nothing and then the family would be understandably pissed if the state dug up grandma on a whim. While technically the family wouldn’t be eligible for compensation, they might have a good case for claiming emotional distress.

  6. Back to the superhero episode: aside from the delay between the “disarming” blow and the killing blow, there’s the fact that the complete bisection of a human being with a single sword stroke is something that would take great skill and precision to achieve if it were even physically possible (which it probably isn’t in reality, not the way it was depicted — you could bisect someone easily enough at the neck or the waist, but vertically, you’d have a lot of bones to get through). For the sake of argument, let’s assume that it is possible in the Castleverse. It would nonetheless be very, very difficult, and the characters commented on the skill and training it would require.

    So it would be naive to discuss it as being merely a finishing move in a fight. The very nature of the killing stroke is evidence, if not of premeditation, then at least of considerable calculation, the deliberate choice to kill someone in an extremely difficult, carefully planned way. So that would argue against the idea that the perpetrator was simply caught up in the heat of battle and didn’t realize the threat had passed. So even before the detectives figured out it was premeditated murder disguised as a “heroic act, the very nature of the killing stroke was evidence that the homicide went beyond defense and involved a conscious choice to kill without need.

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