Ultimate Comics: Spider-Man

The new run of Ultimate Comics: Spider-Man from Brian Michael Bendis is getting rave reviews.  There haven’t been a ton of overt legal issues, but a scene from the recent issue #6 caught my eye.  Spoilers ahead!

I. The Set-Up

Miles Morales is starting to get comfortable as the successor to Peter Parker, but he clearly has a thing or two to learn about being a superhero.  While leaping around the city he overhears a cry for help and discovers a woman being mugged at knife point.  He leaps in to save the day and gets knocked on the head for his trouble.  Before the muggers can remove his mask, Miles surprises himself as he pretty deftly disables the muggers and retrieves the victim’s purse.  The muggers try to flee when the cops show up, and Miles throws them onto the patrol car’s hood.  The police respond by drawing their weapons and telling Miles to put his hands in the air.

II. Arresting the Hero

As the “real life superhero” movement has shown, this is pretty much what would happen in real life, and the police would be right to do it.  From their perspective, they’ve heard a report of a mugging and show up to find a masked man throwing people at their car.  Miles’s costume looks a bit different than Peter Parker’s did, and most people (including the police) still think Spider-Man is dead.  Under the circumstances the police response was reasonable.  Once Miles demonstrated that he was (apparently) Spider-man by jumping onto a wall, the police let him go.  It probably didn’t hurt that the victim had been protesting Miles’s innocence the whole time.

So the police weren’t overreacting, but what about Miles?  Were his actions justified?

III. Self-Defense / Defense of Others

In New York, the general rule is that “A person may … use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person.”  N.Y. Penal Law § 35.15(1).  There are some important exceptions that don’t apply here, and we’ll cover those at the end of the post.

Leaving aside the issue of the threat to the woman, the muggers punched Spider-Man without justification and showed no sign of letting up.  It’s pretty clear that a reasonable person would have believed some force was necessary to defend themselves in this situation.  But Spider-Man tosses one of the muggers into another, causing them both to hit the hood of a police car.  Given Spider-Man’s enhanced strength, is this reasonably necessary force?

IV. Deadly Force and the Duty to Retreat

Luckily, we don’t have to answer that because one of the assailants had a knife.  This potentially opens the door to the use of deadly force in response, which definitely includes merely tossing someone onto a car, even if it is from ten feet away.  Let’s turn to the statute again:

A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:

(a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the 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).  Spider-Man doesn’t have to retreat because, although he could retreat with complete personal safety to himself, he couldn’t do so with completely personal safety to the victim.  There’s another alternative justification as well:

A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:

(b) He or she reasonably believes that such other person is committing or attempting to commit … robbery

Id.  In this case the muggers were attempting to commit a pretty textbook robbery:

Robbery is forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:

1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or

2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.

N.Y. Penal Law § 160.00.

V. The Exceptions

Here are the main exceptions to the use of self-defense / defense of others:

A person may … use physical force upon another person … unless:

(a) The latter’s conduct was provoked by the actor with intent to cause physical injury to another person; or

(b) The actor was the initial aggressor; except that in such case the use of physical force is nevertheless justifiable if the actor has withdrawn  from  the  encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or

(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.

Spider-Man didn’t provoke the muggers, nor was he the initial aggressor, and they certainly didn’t agree to an unauthorized duel.  Normally I wouldn’t even bring up these exceptions, but Spider-Man (rather foolishly) says this to the muggers: “Hey, you started it.  No wait, technically I did.”  It’s pretty clear from the facts that he didn’t start it, but the muggers could use that statement against him in a civil suit, supposing they ever managed to bring one.

VI. Conclusion

Ultimate Comics: Spider-Man is a great series.  Spider-Man deals with ordinary criminals more often than a lot of other superheroes, and it’s good to see the writers handling it in a pretty realistic way.

22 responses to “Ultimate Comics: Spider-Man

  1. Is “spider strength” deadly force? How about “I just work out a lot strength”? (I’m assuming “I just ate a can of spinach and then pummeled my adversary, Bluto, into submission” is covered by defense of self and others.)
    Given the wide range of things classed as “deadly weapons” in various prosecutions, I suppose Spider-Man could face trouble ahead if the prosecutor’s owe JJJ a favor or two…

    • That’s an interesting question. In the context of New York criminal law, “deadly physical force” is defined in the statute:

      “Deadly physical force” means physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.

      The key phrase here is “readily capable.” The definition “hinges on the nature of the risk created—i.e., its imminence or immediacy, as well as its gravity. The risk of serious injury or death and the capacity presently to inflict the same are central to the definition, not the consequence of defendant’s conduct or what he intended.” People v. Magliato, 68 N.Y.2d 24, 29 (1986).

      Even a person of ordinary strength can cause death or serious injury bare-handed but not readily so. It’s not clear just how strong Miles is, but I suspect Peter Parker could, if he used the full extent of his strength, potentially rise to that level.

      • The problem this is one of proof… how does plaintiff/prosecution establish that superhuman strength was, in fact, used? (Presumably, Spider-Man will testify that, because he was facing a normal-strength opponent, he pulled his punches.) Strength may or may not be used; it’s not like the wall-crawling power where he either is or is not sticking to the wall… he could be using 5%, 50%, or 100% of his strength at any particular time. Unlike most other “weapons”, superhuman strength is going to be tough to prove.
        (We could go into an interesting side-trip here and consider Iron Fist in the same context. There are a couple of other super-powers that might be hard to prove in court… MasterMind’s, for example, or Black Cat’s.)

      • Expert testimony to the rescue, I would think. An autopsy or medical examination could show that, for example, the amount of force necessary to cause the wound was far in excess of what any ordinary human could produce. Or it could just be obvious (e.g. throwing another person 30 feet is simply not possible for an ordinary person).

        Once the level of strength used can be proved, then it’s a matter of deciding whether that level of strength meets the deadly physical force standard.

        Sometimes the evidence will be inconclusive: maybe the wound could have been produced by an ordinary person through some combination of strength, luck, and the victim’s physiology, for example. Any time it’s not obvious that superhuman strength was used it’s pretty likely that a court would find that it didn’t amount to deadly physical force (assuming bare-handed combat, of course).

  2. Okay, here’s a question we can consider for the Amazing Spider-Man movie. In the new movie, Peter Parker develops his own web fluid like in the comics. He developed it at home, however, and didn’t test in on animals, let alone volunteer human test subjects. How much trouble is he is if somebody has an allergic reaction?

    One thing in Peter’s favor is that his web fluid dissolves. (Presumably it stays intact long enough for the police to arrive. Of course the police have to wait for the web to dissolve before they can arrest anyone, although the first time out they will probably try to cut the perps free.) That makes it difficult to prove he had used anything toxic.


    • I don’t think you have to do any kind of animal (or human) testing on things that aren’t food, drugs, or cosmetics. I would think Spidey’s real legal danger would be if someone who is not a criminal gets stuck in the webbing… the tort of false imprisonment would surely apply. (It might also apply to the criminals, depending on the state’s laws on citizen arrests… If, for example, a citizen making an arrest is required to physically present the arrestee to law enforcement and swear out a complaint, Spider-Man, like Batman, frequently does neither.
      There is also potential liability if a person has a seizure or requires medical attention that cannot be provided in the webbed-up state. Spidey has been known to blind opponents by webbing up their face and particularly the eyes… there is potential for some serious injury there, particularly for people who don’t know that the webbing will eventually dissolve on its own. (besides the obvious that Spidey does a lot of his work on the rooftops, and a suddenly-blinded person stumbling around on the roof (or in flight on a personal aircraft) poses a considerable danger to themselves and others.

      I think worrying about allergic reactions to webbing (not, as far as I know, ever shown to exist) will be far, far down on Spidey’s list of worries.

      • One time he webbed someone’s face and the criminal (who was super strong) decided to rip the webbing off from his face. Spider-Man said “Don’t” and the criminals face was bloody and scarred. While not an allergic reaction, it is the only example I can think of where a criminal was injured by webbing.

      • [NB: I originally wrote a comment about comparative negligence but on second thought I don’t think that’s the right analysis.]

        It comes down to whether Spider-Man would be justified in webbing the person in the face. If he was, then it’s the perp’s fault. If he wasn’t, then he would be liable for the resulting battery. Since it’s foreseeable that someone who has something thrown in their face would try to remove it, Spider-Man would likely also be liable for the injury caused by the removal. Since battery is an intentional tort, the victim’s negligence wouldn’t enter into it.

      • The problem is, when Spidey blinds the guy on the roof (or on a passing Goblin-glider) and the bad guy falls off the roof, and onto a person passing by on the sidewalk below. This passerby wasn’t in danger until Spidey webbed up the bad guy, and a blind person falling off a roof (or a personal flight device) seems eminently forseeable, as does (depending on time of day and location) a falling object striking a pedestrian in NYC.

        The way Spidey sprays the webbing around when he fights, an uninvolved person getting stuck to it seems quite possible as well. Even the ones he uses to swing from buildings potentially could reach the ground and ensnare an unwitting victim. (Of course, as presented in the comics, the webs somehow know whether to be sticky or not depending on what Spider-Man needs, but if he were, say, texting while web-slinging, he might be inattentive enough to cause a problem, if a rope of his still-sticky webline were to come down across a busy street, thereby anchoring one or more automobiles to a nearby building for an hour or so until it dissolved…

    • Since we can assume that Spider-Man doesn’t intend to cause an allergic reaction in anyone, and it’s not a product for sale, then it’s probably a question of negligence. The answer then depends on what a reasonable person would think: would a reasonable person exercising ordinary care take the time to perform tests to determine the toxicity of the webbing? Or would they assume that since it didn’t cause themselves any problems that it was probably safe to use on others? That’s a judgment call that would typically be made by a jury after being presented with some expert testimony.

      Now, if it turns out that a reasonable person wouldn’t use an unknown substance on others without some due diligence (i.e. that Spider-Man was indeed negligent), then his liability would extend as far as the foreseeable injuries that resulted from the negligence. That can go quite far. For example, if an allergic reaction caused the victim’s eyes to swell shut, and then the victim later fell and was injured as a result of their impaired vision, then Spider-Man could potentially be liable for that.

      • Does he even have a duty to make sure web-fluid is non-allergenic? (Assuming that web-fluid is used only for A) personal travel, and B) subduing persons who are creating a disturbance. In the first case, automobiles are known to produce poisonous exhaust, which is spewed forth into the nearby atmosphere, and in the second, presumably force is authorized, and being subdued by web-fluid to which one is allergic is less harmful than being subdued by lethal force or by knockout, and thereby allowed.

      • Yeah, I think James is right. Webbing someone in the eyes would be the moral equivalent of pepper spraying someone in the eyes. Spider-Man can’t web people at random without facing assault charges and, in the real world, I would be guilty of assault if I used pepper spray on somebody for no good reason.

        In fact, I imagine Spider-Man gets more of a free pass because he’s not a state actor: if he sees someone committing a crime he doesn’t have to announce his presence and say “Stop or I’ll web you”. In fact, I suppose even the police can use non-lethal force in defense of others but would have to warn someone otherwise before using pepper spray or tasers.

      • and being subdued by web-fluid to which one is allergic is less harmful than being subdued by lethal force or by knockout, and thereby allowed.

        I assumed that Martin was talking about a severe allergic reaction that either was or could have been fatal.

      • I was also assuming a severe, possibly life-threatening or fatal allergic reaction.

        I would assume that this would be in the same category as people who are killed by a TASER. Even though it CAN BE deadly, it’s still considered a less-than-lethal weapon, and thus reasonable to use in subduing a criminal during an arrest, and preferable to using a firearm (or, as discussed above, superhuman strength).

      • Even though it CAN BE deadly, it’s still considered a less-than-lethal weapon, and thus reasonable to use in subduing a criminal during an arrest, and preferable to using a firearm (or, as discussed above, superhuman strength).

        That’s why it’s a question of negligence. TASERs are only considered less-than-lethal because of extensive product testing. I don’t think any version of Spider-Man tested the webbing to see if it tended to cause harmful side-effects, so the issue would be whether it was negligent not to do so. If he should have known that the webbing could cause a deadly allergic reaction, then arguably he could be liable for using the webbing in a situation where non-deadly force was called for and the victim was injured or killed as a result of such a reaction.

      • You’re still addressing the breach element, and I’m not convinced there’s a duty. Assuming there is, I would think that the duty is owed NOT to the bad guy’s Spidey is fighting, but to various bystanders, victims, or hostages that are in the vicinity when Spidey is fighting bad guys… the bad guys themselves have exposed themselves to the risk of a deadly response by committing crimes and threatening violence to innocent parties, and thus should not be heard to complain that the specific form of deadly response is not to their liking. Has NY statotorily or judicially done away with implied assumption of risk as a defense to negligence?

      • I was talking about a severe allergic reaction but when James pointed out that Spider-Man shoots webs at people’s eyes I thought about pepper spray and I realized that even if the webbing did cause an allergic reaction it might not be illegal. Of course, in the real world, it would be insane to develop a chemical agent at home and then go around throwing it at people’s faces. At the very least I would have expected some of Spider-Man’s opponents to have been rendered permanently blind as a result.

  3. “statutorily”. I know how to spell “statute”.

  4. Going back to what constitutes deadly force, what about martial artists or boxers, essentially people who have the skills in order to readily kill someone? Are they held to a different standard in what constitutes appropriate force? I’m aware that boxers and martial artists aren’t required to register as “deadly weapons” (a common urban legend), but I know that in Japan, for example, professional boxers are legally not allowed to punch an unarmed person, even in self defense (specifically, professional boxers are never considered “unarmed”).

    • Killing someone with bare hands isn’t something terribly easy to do really, minus unlucky strikes in the wrong place or targeting the throat/head the right way (or intervening object a la smashing their head into a wall or something). Certainly your average “takes karate at the local dojo a few times a week” person isn’t much more likely to manage it than your average guy on the street. Martial arts can certainly injure and maim, especially some of the joint techniques, but treating them as if they were always carrying a lethal weapon like that Japanese example is just silliness. About the only fair argument you could make is that if they did manage to kill someone bare-handed that it wouldn’t be “accidental”; they should have the experience to know where their attacks are going and any decent trainer should have mentioned those kind of targets were dangerous for training safety at a minimum. At the least you’d probably need expert testimony from someone who knows the art to state it was accidental (i.e. the technique used should have been non-lethal except for whatever particular factor intervened). But people stick to using weapons over fists for killing for a reason after all; treating every martial artist as a killer is kinda overestimating their capacity. Real-world only, of course; in comics there are enough super-secret elite martial arts out there I could see some being treated as deadly superpowers if used.

    • Generally speaking, there are three levels of authorized force. The basic level is that force of any kind is prohibited, which is the general case. The next level up is “reasonable force”, which is authorized in a number of contexts. The third level is “deadly force”, which is usually defined as that force which can be reasonably expected to produce severe injury or death. The exact circumstances where each is authorized is, of course, incredibly complex and varies (sometimes wildly) from jurisdiction to jurisdiction (the most common limitation is to impose a duty to retreat if it is safe to do so, but when, or if, such a duty applies is one of those things you’d want a lawyer licensed in your jurisdiction to explain to you if you REALLY need to know.) Use of deadly force is usually quite limited, although most jurisdictions agree that use of deadly force in self-defense is authorized when facing one or more opponents who are armed with deadly weapons themselves (AKA “kill-or-be-killed”). Many states have so-called “castle” statutes that allow use of deadly force to repel intruders to one’s home. Some allow deadly force to be used to prevent any felony.
      Boxers, fighters, people with military hand-to-hand combat training… all are probably more capable of killing you when unarmed, but probably are less likely to actually do so, because although they know more ways to kill you, they ALSO know more ways to incapacitate you without killing you, and are more likely to apply a rational process to the decision of which to do. (Note that fights involving servicepersons are not entirely unknown in towns near military bases, but deaths resulting therefrom are fairly rare.) A firearm, whether used correctly or incorrectly has a great likelihood of inflicting serious injury or death. A punch, even from a professional fighter, doesn’t.

      • The issue for Spider-man is that even Miles Morales was categorized in the 10-25 ton lifting range for strength. So even if he is at the bottom if that range, he can left 20,000 pounds (this is the weight of a type C school bus – the stereotypical picture of one).

        So his strength alone almost certainly would qualify as deadly force IF it is fully understood how strong he is.

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