Mayor Jameson’s Eminent Domain Problem

We’ve picked on Spider-Man a bit recently, so in interests of fairness we’re going to pick on J. Jonah Jameson, who is currently the mayor of New York in the Marvel Universe.  Recently, Jameson has focused his ire on Horizon Labs, a research and development company that happens to employ Peter Parker in his capacity as a scientist.

The particular issue in today’s post comes from a question from Christopher, who writes:

[In Amazing Spider-Man #682] Parker and other Horizon Labs employees witness a confrontation between HL owner Max Modell and Mayor Jameson in which the Mayor says “As Mayor of this city, I am ordering all of you to vacate these premises immediately!” He has arrived to bully HL into shutting down and gives various reasons [, listed below]. Later in issue 683 he comes back with “Chief Pratchett” presumably some ranking officer in the NYPD and shuts off the company’s power supply: “You’re not getting a single amp out of Con Ed!” He then orders “Chief Pratchett, have your men clear the building, after that, no one gets in or out, understood?” Chief Pratchett accedes to the request but we cut away from the confrontation and don’t return this issue.

This is obviously an ongoing storyline which will play out over another 4/5 issues but surely Jameson is overstepping his authority to clear out a private building without any kind of court order. And isn’t Pratchett wrong to comply?

At various points in #682 and #683 Jameson gives some reasons for wanting Horizon Labs shut down, including:

1. “This man has access to spider-jammers that could control Spider-man! Yet he refuses to turn them over to the city!” (see Spider-Island 667-673)
2. “One of your people built a time machine that did destroy the city.” (678-679)
3. “And now I hear you have a monster holed up here?!” (679.1 The “monster” is Dr. Morbius)
4. “Two days ago, you almost got my son killed.” (680-681)

So, is any of this sufficient to justify cutting power and ordering the police to clear the building?

As Horizon’s lawyer, who was present for the first confrontation with Jameson, argues, probably not.  The spider-jammers have been destroyed, the EPA cleared Horizon regarding the alternate universe incident (who knew that the EPA had jurisdiction over time travel and alternate futures?), and Dr. Morbius isn’t a monster but rather suffers from a poorly-understood medical condition.  Jameson isn’t satisfied and vows to return, which leads to the second confrontation (the one with the power-cutting and the police).

But suppose Jameson’s allegations were correct.  Could the mayor really do that?  And if not, what is the potential liability for Pratchett and the other police officers?

I. Eminent Domain

The most likely source of Jameson’s power to order Horizon shut down is eminent domain, which allows the taking of private property for public use in exchange for just compensation.  New York has a statute, the New York Eminent Domain Procedure Law, that is just what it sounds like.  It sets out “the exclusive procedure by which property shall be acquired by exercise of the power of eminent domain in New York state.”  N.Y. Eminent Domain Proc. Law § 101.  Unfortunately for Jameson, it doesn’t look like he has complied with the procedures.

A. Public Hearing

Ordinarily the eminent domain process begins with a public hearing.  § 201.  However, there are some exemptions, one of which is when “because of an emergency situation the public interest will be endangered by any delay caused by the public hearing requirement in this article.” § 206(D).  I suppose it’s arguable that Horizon presents such an extreme danger to the city that a public hearing can be avoided.

However, Horizon labs could file suit to challenge the City’s determination that it is exempt under § 206(D).  “Where, however, a condemnor proceeds under one of the exemptions provided in EDPL 206, and therefore claims that it is not required to comply with the foregoing notice, hearing, and determination requirements, a condemnee may, unless otherwise provided by statute, challenge the applicability of the claimed exemption in the Supreme Court … .” Steel Los III, LP v. Power Authority of N.Y., 33 A.D.3d 990, 990-91 (2006).  The reviewing court would almost certainly issue a temporary restraining order or preliminary injunction preventing the City from shutting down Horizon until it had reviewed the case.  Given that Horizon appears to be represented by competent legal counsel, I think it’s likely Horizon would go to court once Jameson threatened to take the building.

B. Negotiations

The eminent domain law also requires the condemnor (i.e. the City) to “make every reasonable and expeditious effort to justly compensate persons for such real property by negotiation and agreement” “at all stages prior to or subsequent to an acquisition by eminent domain.” § 301.  This includes making at least one written offer representing the just compensation for the property.  § 303.

In this case, we don’t see any discussion of compensation, much less negotiation or a written offer.  Instead, Jameson seems to think he can simply take the building outright.  There is a lot more to eminent domain, but I think that’s enough to establish that Jameson wasn’t doing it right.

II. Consequences

Assuming the City can’t legally take the building through eminent domain, what are the possible consequences for cutting power and forcibly evacuating the building?  The most likely result is a § 1983 suit alleging a violation of Horizon’s constitutional rights, specifically their rights under the Fourth Amendment.  If successful, this could result in an award of actual damages, punitive damages, and attorney’s fees.  Given the expensive equipment and experiments that may have been lost or damaged by the sudden loss of power, that could be a pretty significant bill for the city.

Importantly, the City and officers could claim qualified immunity under § 1983.  “The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  Pearson v. Callahan, 555 U.S. 223, 231 (2009).  “The protection of qualified immunity applies regardless of whether the government official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.”  Id.

So, for example, if the officers were told that the City had a court order to shut down Horizon, then the officers might not be liable because they were operating under a mistake of fact.  Jameson, however, clearly knew what was up, and I think it would be hard for him to claim qualified immunity, at least if he thought he was exercising the power of eminent domain, since a reasonable person would have known about the proper procedure for doing so.

III. Conclusion

There are other possible ways that the City could try to shut down Horizon (e.g. alleging violations of the law and arresting everyone or suing the company), but the way it’s depicted in the comics really suggests eminent domain to me.  I think it’s reasonable to assume that if the City had a good claim to criminal or illegal activity then it would have simply called in the cops or sent in the lawyers.  Jameson’s approach is so vague that eminent domain is the only thing that I can think of that fits the bill.  Alas, his failure to follow proper procedures is likely to get him (and the City) sued.

30 responses to “Mayor Jameson’s Eminent Domain Problem

  1. Melanie Koleini

    I know being mayor of NY City is a big deal but how much power does a mayor really have?

    Does Jameson have the authority to seize a building without the approval of the city council? If he doesn’t, and is exceeding his authority (and getting the city sued for millions), can he be impeached?

    What about the state government? I can’t imagine it happing in NYC, but state police officers are often called in when the local cops aren’t following the law because the boss (mayor/city council) is ordering them to selectively enforce the law. Could the state attorney general or the governor order state police protection for Horizon Labs if they believe the city is violating state laws?

    • This may be getting off-topic, but I’m curious if any of you know of any examples of this actually having happened in NYC; have state police been active within city limits without the cooperation of city police? (I am presuming county police haven’t existed for the boroughs since the counties were consolidated into the city)

    • Depending on the city U.S. mayors can have quite a bit of power, especially in comparison to some of our European counterparts. I don’t know how much power the mayor of New York City has but there are at least some cities where mayors have enough freedom to do as they wish.

  2. Could Jameson make an emergency necessity argument, for any of these?

    • The City could invoke public necessity, but it would have to show that shutting down Horizon was reasonably necessary to avert a public disaster. Barton-Barnes Inc. v. State, 180 A.D.2d 4 (1992). That’s a pretty high bar.

      • James Pollock

        I would think that “2. “One of your people built a time machine that did destroy the city.” (678-679)” would qualify as a disaster which the public would prefer to be avoided. Now, in our world time travel isn’t much of an argument for anything, but dangerous time travellers are well-established in Marvel history, ranging from Kang the Conqueror to Dr. Doom.

      • Well, you have to consider the facts, which I didn’t go over in detail. In the storyline, a time machine was built that could send a person 24 hours into the future. Parker went through it, discovered the city destroyed, went back to his original time and figured out how to prevent its destruction. Jameson took that to mean that the time machine caused the destruction of the city in that alternate future.

        Given that the alternate future was clearly avoided, the City can’t claim that it’s averting that possibility. That leaves the mere existence of the time machine, which I’m not sure counts as an imminent public disaster. Public necessity is usually invoked in cases where it’s plain that if something isn’t done, disaster will result (e.g. an ongoing fire, not merely a set of circumstances that might lead to a fire). I’m not sure that applies in this case, as much as a time machine is potentially very dangerous. The same could be said about a nuclear reactor or a chemical plant, for example.

      • Melanie Koleini

        But they would still have to show shutting them down actually prevented the use of the time machine.

      • James Pollock

        Part of my point was that a direct application of present law is iffy. In the Marvel Universe, there’s probably case law or even statute that covers the legality of time travel, as they’ve needed to confront the issue, whereas we, to the best of our knowledge, have not. They might well consider the mere presence of a functional time machine as a threat to reality (or various butterfly-effect theories might be applied).
        Stretching the “maybe”, perhaps the necessity of removing a time machine from private hands is sufficient to cover Jameson’s actions (Noting, again, that i’ve not read any of the material discussed herein, and am therefore relying on hearsay descriptions of events.)

  3. The differences between NYC (even the fictional Marvel-universe one) and Dallas are interesting. Dallas and the area generally enjoys (or suffers, YMMV) from dozens of more-or-less independent police forces. The mass transit system is separate from the Sheriff’s Office is separate from the (gun-toting, state-qualified) police force at the Dallas school system which is independent of the police (not security, POLICE) forces at Baylor or SMU hospital and college campuses …

    Is it correct that the NYC police forces — harbor and transit and traffic and crime — all form one sort of unitary command? Does that essentially city army report up to a single commander-in-chief, if not the mayor, somebody else (Commissioner Gordon, like?) Is the top level command a civil-service position, an appointed one (either by mayor, or city council, or senior civil servant), or an elected position like the sheriff or district attorney? If judges and prosectors at the top levels are elected how did police come to be otherwise?

    NYC, from this perspective, is a marvelous and fantastic place, irrespective of how super-humans there conduct their affairs…

    • Melanie Koleini

      This is a great idea for a future post. The command structure of the of Gotham (aka NYC) police.

  4. Martin Phipps

    We saw something like this in the Ghostbusters movie when the EPA shut down their operations. Is it easier for the EPA to claim eminent domain or do they face the exact same problems? Could the Ghostbusters also have filed a suit or asked for an injunction?

    • Melanie Koleini

      I don’t think the EPA was trying to seize the building. They were trying to stop the release of pollutants. (The exact opposite of what they achieved by shutting down the containment unit.)

      I think the post on that topic concluded the EPA would need a court order to do what they did but it would not involve imitate domain.

  5. Eminent domain? Really? I would have went with claiming J3 was using the city’s right to sue under the law of nuisance…

    • If the City sued for nuisance then there would be all kinds of legal process, which we see no evidence of, just vague threats. Further, it’s highly unlikely that a court would order the power cut to the building and the entire building vacated rather than a more tailored temporary restraining order or injunction (e.g. “no time travel”). Also, nuisance wouldn’t address one of Jameson’s complaints, which was getting ahold of the spider-jammers (which were in fact already destroyed, but we’re assuming he had a factual leg to stand on).

      I haven’t looked into it in detail, but I also don’t think that operating the time machine would even qualify, and it’s the best of the bunch, since a public nuisance “is an offense to the public of a neighborhood or community in the enjoyment of its common rights,” and I don’t think the mere operation of a time machine is such a thing. There’s just no damage to the neighborhood or the community. Anyway, the City has no standing to sue on behalf of the destroyed alternate future; that would be up to the people in the alternate future, who are of course non-existent. Now, perhaps the state could bring criminal charges, but that’s a different matter.

      And as it happens, in New York public nuisance can also be a criminal issue, in this case probably second degree criminal nuisance (first degree requires the sale of controlled substances). However, second degree criminal nuisance is only a class B misdemeanor, hardly grounds to shut down the whole building. N.Y. Penal Law §§ 240.45. And as with any criminal charge there would have to be a trial before there could be any punishment.

      • “I don’t think the mere operation of a time machine is such a thing. There’s just no damage to the neighborhood or the community.”

        That sort of depends on the type of time travel. In particular if the time machine sends you back into the past in the exact same location, that runs a -lot- of risk of accidentally altering local history to the detriment of the present-day neighborhood.

      • Tim O'Brien

        While an alternate future is a significant change to the environment, there would be no one to complain about an alternate future. To the inhabitants of the future environment, your alternate future is simply the actual present.

      • Does Cable or Bishop live in NYC? They aren’t from this reality…

  6. Presuming that a government official could demand these spider-jammers would a city official be able to demand them? I might be able to see the federal government or even state government doing so but a city mayor? It would help a lot if we had any idea what kind of legal framework for dealing with superhumans had been set up after Civil War.

    • That’s one of the reasons I turned to eminent domain, which is probably exercised more often by cities than states. Eminent domain is usually used to take real estate, but it can also be used to take personal property, such as a spider-jammer, for public use.

  7. “who knew that the EPA had jurisdiction over time travel and alternate futures?”

    A few years back, when the RHIC collider at Brookhaven was going online, the lab filed an environmental impact statement that indicated the probabilities of destroying the universe (which were very low). I’m not sure, but I think these things fall under EPA jurisdiction, so time travel and alternate futures probably would as well.

    • James Pollock

      I don’t think that Higgs Bosons or phi-photons are pollutants under the EPA’s jurisdiction. I’m not entirely sure that the question of whether carbon dioxide is has been finally settled. Similarly, apparently the FDA has approached the end-limits of its authority to require warning labels on products that kill you when used as directed.

  8. Melanie: There is no provision to “impeach” the Mayor of New York. One of the weirder provisions of the charter is that the power to remove the mayor is given to the governor of the state. (I recall a novel where the plot hinged on the obvious conflict of interest when the mayor and the governor are political adversaries.)

    There is the usual provision for succession if the mayor is ‘temporarily unable to discharge the office”, but no indication of what happens if the mayor says he is not disabled and someone else says he is.

    And not allowing anyone “out” AFTER the plant is cleared is a neat trick!

  9. Pat: There ARE county sheriffs for the counties within NYC, but they perform civil duties and report to the Mayor. Historically the biggest conflict between the state and city officials over policing was in 1857, when the NY state government created a “metropolitan” police force and ordered the city police disbanded, and the mayor refused. They spent a few months fighting over arrests, stations, etc and generally ignoring crime until the mayor gave up.

  10. So, I have a question about eminent domain. Let’s say someone has a very strong telekinetic power, and insert city government here from say NY decides to use eminent domain on previously mentioned super. Super decides to lift their house with their power into the air without damaging the house. We will just say its a cabin with no water/electricity to simplify things. What ae the legal recoures that the city might take? Is there anything that the super could do to keep the cabin if the city wants to take the house also?

    • Could you clarify the question? What is the city trying to take: the property the house sits on, the house itself, the property and the house, or the superhero?

  11. Let’s say the land the house sits on. For a new road. The house is currently sitting a hundred feet from the ground.

    • Ah, okay. Well, in that case, it’s highly unlikely that the city wouldn’t take the house as well, since building the road would necessarily involve destroying the house.

      But even if the city hadn’t taken the house in the first place, it could take the house as well, and then sue the superhero for trespass and conversion, or charge him or her with criminal trespass and theft. If the city didn’t care about the house then it could still invoke both civil and criminal trespass.

      That’s just the basics. There could be other civil and criminal charges.

      • That last comment makes me wonder:
        What would be legal consequences of a floating house
        assuming that it was over private property and not in restricted airspace
        Could I paint experimental on the side and be good? I know you have covered Flying heroes and the FAA. Would carrying a house while they fly change things from a legal perspective?

Leave a Reply

Your email address will not be published. Required fields are marked *