This week’s Castle introduces the issue of cryonics, i.e. the practice of “preserving” human remains in liquid nitrogen under the theory that identity and personality are simply a product of cellular structures. The thinking is that a person who is “dead” by standard definitions may someday be revivable under the right circumstances. Although this episode didn’t have much to do with superheroes, we got some questions from readers about it. Spoilers inside.
The basic premise of the episode is that the murder victim had a contract with a cryonics outfit to preserve his bodily remains. This includes a vital signs monitor which notifies the company immediately if the wearer’s heart stops so that they can be frozen as rapidly as possible. So when the murder victim is shot, the company comes by and picks up the body—much to the annoyance of the NYPD.
A few issues here. First, what is the legal status of cryonics and people who are cryogenically preserved? Second, can the police get the body of a person who has been so preserved? There’s also sort of a broader question about settlement and precedent which the writers really deserve credit for invoking. Finally, they also name-check tortious interference, so we’ll take a look at that too.
If a person is cryogenically preserved, they’re not dead, right? So… why don’t we run into the really weird stuff that immortality does to legal systems?
The answer is that the legal system does consider them dead. Right now, cryonics are only used once the patient has passed the legal and medical definitions for death. Doing it before that would be considered murder. Clinical death is basically the same thing as cardiac arrest, which is reversible in many cases. But if it isn’t reversed, you’re dead, and that’s the end of it. The legal definition of “death” is, in most US jurisdictions anyway, part of the Uniform Determination of Death Act as implemented in the several states. This includes both clinical death and the chunky salsa rule, i.e. if your brain is gone, you’re dead, whatever else may be going on with you. If a person is cryogenically preserved who is not legally dead, the result is murder.
So how is this legal at all? Because cryonics advocates distinguish between clinical/legal death and information-theoretic death, i.e. the theory that the structural state of your brain is you, and as long as it’s preserved, resuscitation is theoretically possible. Of course, no one knows how to do this, and the assumption is basically that we’ll figure it out someday. It’s also assumed that there’s no such thing as a metaphysical soul, or, at the least, that cryogenics doesn’t interfere with that in any way. Regardless, the legal system does not recognize the information-theoretic definition of death, so for all intents and purposes, a cryogenically-preserved person is a corpse, not a patient or a citizen.
II. Cryogenically-Preserved Victims and the Fourth Amendment
The question then becomes whether the cops can get a cryogenically preserved corpse as evidence. The episode shows the cryogenics company promising to fight the cops over this issue. The basic theory is that because the cryogenic facility is private property, the cops can’t just waltz in there and start taking stuff without permission. In the absence of such permission, a warrant is required. That’s the theory, anyway. The reality is quite different.
In fact, neither a warrant nor a court order are required in order for the victim’s body (head included) to be taken by the police and autopsied. From N.Y. Pub. Health Law § 4210:
“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.”
“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.”
Ordinarily an autopsy can be objected to by the surviving family or by the deceased person (via an ID card, for example) on the basis of religious belief, but there is an exception for criminal investigations. N.Y. Pub. Health Law § 4210-c. Here, it would be a bit of a stretch to say that the victim’s faith in cryonics was a religious belief. The episode also said that the case law in this area was “murky,” but we couldn’t find any case law in New York (or any other U.S. jurisdiction for that matter) on autopsies and cryogenics. In short: getting ahold of the body would likely not be problematic at all.
As for a hypothetical Fourth Amendment argument: we think this is a non-starter. There’s no case law on it that we could find, but we think inspecting a dead body to determine cause of death in a murder investigation is a reasonable search and seizure and therefore outside the scope of the Fourth Amendment, which only protects against unreasonable searches and seizures.
III. Precedent and Settlement
So if push came to shove and a lawsuit were filed, the courts would be likely to rule against the cryonics people, therefore creating really bad precedent if not completely undermining the very concept. Which the writers actually pointed out! And they’re totally right!
Say you’ve got a potentially new area of law. Like cryonics. At some point, you want the courts to recognize that what you’re doing is basically okay. But there’s always the risk that they’ll rule against you, and it’s pretty widely recognized that most courts will usually do whatever they need to do to get the result that they think is best for the facts before them. Hence the “Hard facts make bad law” proverb. In general, if you want to make new law on a point, it’s a good idea to wait until the facts are most favorable to your side before filing that lawsuit.
Opposing the NYPD’s investigation into a murder? Not a very sympathetic position, especially if you’re the one with the body. But something else? Say, trying to get extra damages or particular causes of action against a driver who damages a cryonics facility? Much more favorable.
IV. Tortious interference
The cryonics lawyer mentions the issue of tortious interference as a main reason why the NYPD should keep its nose out of this one. The doctrine basically says that if A causes B to breach a contract, either party to that contract can sue A for tortious interference. The example here would be the NYPD causing the cryonics company to breach its contract with the victim. Tortious interference is a real thing, and formed a major plot point in the 1999 film The Insider.
There is a slight problem here though. Government action is generally considered a force majeure in contract law. We talked about force majeure in our discussion of Thor this spring. Basically, if a circumstance comes along that was not contemplated by either party and is neither party’s fault, but which makes it impossible for one party to perform, the contract is basically canceled. In particular, compliance with a warrant or subpoena, i.e. the order of a court, is usually specifically noted as an exception to the rest of the terms of the contract, e.g. “We’ll never give out your information unless a court makes us, in which case, well, tough for you.”
Exactly how that works is going to be specified by the terms of the contract, and a cryonics contract should have an interesting force majeure clause indeed. But it’s a little unbelievable for a company savvy enough to want to fight the NYPD on producing the body not to have thought about this one ahead of time, if only because they’d want to cover themselves for liability to their customers’ families.
So far we’ve got two really interesting episodes of Castle in season four, which is quite promising. Even if the writers in this one didn’t quite handle things correctly (in the real world the legal issues are straightforwardly in the NYPD’s favor), they were aware of all of the relevant issues and even managed to get the right outcome!