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.

9 responses to “Mailbag for October 27, 2011

  1. Would it be possible, in that case, for the punishment to be in fine form, allowing them to empty his bank accounts or some such? If those are fine-able offenses, and they don’t have minimum sentences on things, that might actually succeed in getting him to move. It would also discourage him and others like him from doing it again.

    Peace : )

    • Yes, most crimes (i.e. felonies and misdemeanors, as opposed to infractions or violations like speeding) are punishable by fine, imprisonment, or both.

      • So, try him in absentia and limit the sentence to fines, and you’ve punished without making the government liable for his care, allowing him to stay. Now you just have to deal with the people that are bringing him food and the like. I’m not sure if you could get them with an Aiding and Abetting charge once the lawful charges were filed.

        Peace : )

  2. Interesting. Isn’t there a mutant rights protest in San Francisco that is broken up by the Dark X-Men? I’m thinking that is the most likely solution on a Blob joining the Occupy Wall Street movement before the legal stuff comes in (unless the heroes support OWS, too).

    • That could be a hilarious storyline… The genius billionaire superheroes at odds with the more everyman style ones… Superman peacefully protesting Lexcorp, holding up a witty sign the size of an aircraft carrier in the middle of Metropolis… Or Captain America and Iron Man rehashing their Civil War differences over the 99%/1% issues…

  3. So, the Blob has plopped down in OWS and refuses to move. The cops want to arrest him, but can’t.

    Along comes Colossus. Can the cops ask him to do it for them? Can Colossus choose to move him without the cops asking? And what are the legal ramifications for all three parties if he does?

    If we replace “Colossus physically moving the Blob” to “Emma Frost mind controlls him to walk into jail”, does this change the law?

    • As the asker mentioned, “[I]n-universe these folks could presumably be stopped by someone more powerful strolling along.” And this is basically right. Whoever the police got to do the heavy lifting would likely be considered a state actor and so be constrained the same as the police. But given that, simply lifting the Blob would almost certainly be considered reasonable, non-lethal force.

      Mind control is a harder one, since there’s not really a real-world equivalent to analogize from. I suspect it would be okay, though, since it’s just another way to force the Blob to do something he was legally obligated to do (i.e. leave the scene peacefully in the custody of the police).

  4. As a practical matter, the Blob’s power stops working when he isn’t conscious. So all they have to do is wait for him to fall asleep, sneak up and fit him with an anaesthetic mask, and move him to Ryker’s. Now, if he decides not to move THERE, there are other ways to obtain compliance (such as, say, by limiting his dietary options.)

    Perhaps a more troublesome protester would be Unus the Untouchable. Or a pre-Avenger Quicksilver.

    A different challenge: Proteus, since he changes reality in his vicinity.

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