World War Hulk: Front Line I

World War Hulk is a five-issue limited series from 2007 telling the story of the Hulk’s return to Earth after the events of Planet Hulk in 2006. The basic story is that in Planet Hulk, a majority of the Illuminati, consisting of Iron Man, Mr. Fantastic, Black Bolt, and Dr. Strange, decide to deal with the “Hulk problem” by sending him into space. The Hulk is tricked onto a starship set for another planet, but the Hulk winds up on the planet Sakaar instead of the peaceful world he was intended for. He winds up fighting a bunch of people, getting married to the local princess, only to have the better part of the city—and princess—blown up when the starship he arrived on explodes.

Hulk is pissed. About the trickery, about the exile, and now about the death of his wife. He plots revenge and returns to Earth. World War Hulk picks up there.

World War Hulk: Frontline is a parallel story about Ben Urich and Sally Floyd, as they continue reporting for Front Line, the newspaper they started back in the Marvel Civil War.. Like in the Civil War, the writers use the Front Line story to talk about the effects of the super-powered conflict on everyday people. So, for instance, we see the effects of the evacuation of Manhattan on the poor and indigent. As the more mundane side of the story, this is where some of the more interesting legal questions arise, and we’ll take a look at those here.

Early in the Front Line arc, Doc Samson tracks down Jen Walters, currently unable to transform into She-Hulk for reasons too complicated to get into here. But Walters, as an attorney, has some interesting things to say about the Illuminati’s treatment of the Hulk. She suggests three main things: (1) that the Illuminati have violated the Hulk’s civil rights, (2) that the Illuminati have committed at least one tort, and (3) that the Hulk’s treatment at their hands constitutes casus belli. We’ll look at each of these briefly.

I. Civil Rights

Turns out Walters may be wrong about this. With a few very limited exceptions, only the government—or a state actor—can violate someone’s civil rights, simply because those rights act to restrain the government, not private individuals. Unless the Illuminati are state actors, there’s simply no way for them to violate the Hulk’s due process rights. This is a fairly common misconception. If some punk steals your car, that’s theft, but it’s not a taking pursuant to the Fifth Amendment, because the thief isn’t a state actor. But if the cops take your car it may not be theft—there are a variety of ways they can get authorization to do this—but unless they pay for it, it might be a Fifth Amendment taking, because they are state actors.

So, generally speaking, it’s harder to sue the government than private individuals for tort claims, and it’s impossible to sue private individuals for most civil rights claims. The main exception is discrimination, which Congress, under the Fourteenth Amendment, has extended to everyone. But due process? Vague concepts of “human rights”? Going to be hard to sue the Illuminati for this unless they’re state actors.

Which raises the question: Well, are they? Hard to say. They aren’t claiming to act on behalf of the state, or any state for that matter, and though they are tending towards activities which are traditional state functions, they haven’t been authorized to do so. Indeed, the government would probably rather they left well enough alone. Still, they’re acting to effectively mete out punishment, as such, so one can see a judge deciding to categorize them as state actors just to stick it to them. This could go either way. But the default is that they would not be liable for any civil rights violations, as they’re only arguably, not obviously, state actors.

II. Tort Claims

Walters says that the Illuminati are on the hook for “illegal restraint”. This isn’t actually a thing. The much more common term is “false imprisonment,” but in any case the Illuminati are probably liable here. False imprisonment involves the “restraint of a person in a bounded area without justification or consent.” The spaceship is certainly a bounded area, and while the Hulk initially consented, he was deceived into doing so, which invalidates his consent.

The Illuminati are probably also on the hook for kidnapping. That just involves transporting someone somewhere else against their will. Sending the Hulk away certainly counts. Kidnapping is a crime, so the Illuminati could be liable both criminally and civilly.

There’s also the issue of the explosion of the shuttle on Sakaar. Is there a products liability or maybe a negligence claim here? Something the Illuminati built exploded and killed people. A lot of people. That would normally be grounds for civil liability, yes? Here it really depends on the state in which the claim is brought, as products liability is significantly governed by statute, and statutes vary widely in the degree to which they are business-friendly. But most states do involve at least some sort of product misuse defense, i.e., it’s not the company’s fault if you do something drastically stupid for which the product was never intended. There’s an argument to be made here. The Illuminati never intended the shuttle to be repurposed as some kind of monument, and it was that activity which caused the shuttle to explode. It was doing just fine sitting there, but the Sakaarians messed with it, and boom.

III. Casus belli

Last, Walters suggests that the Illuminati’s actions constitute casus belli, i.e., an act which justifies war. This one’s hard to see, particularly as Walters would need to use her fourth-wall-bending powers to know that the Hulk was anything but dead, let alone the ruler of an alien civilization. But casus belli really only applies to sovereign states. “War” isn’t something private individuals can engage in, except in the most metaphorical way. We talked about this in one of our posts about the Avengers. There, we concluded that Loki’s invasion of New York at the head of the Chitauri probably was war, because the Chitauri seem to have what looks a lot like a functioning state. Then, as now, we’re assuming that there’s no particular reason an alien civilization and a human one can’t go to war, and that technological differences are of no importance whatsoever. As there, this probably is a war. The Hulk is the head of an alien government and invades and occupies Manhattan. Front Line actually has some fairly detailed interactions with law enforcement officers on both sides of the conflict, suggesting that both sides do consider this to be a war, legally speaking.

The question here is whether the Hulk’s exile would constitute casus belli. The answer is probably not. He’s certainly got a cause of action for at least one tort, and possibly one for the civil rights issues. But being the victim of a tort or having one’s civil rights violated does not give one permission to raise a foreign army and go to war, particularly because the Hulk wasn’t a foreign head of state at the time. Personal affronts are no justification for large-scale political action. Really, the Hulk winds up displacing several million people and killing who knows how many simply because… four guys tweaked him off. Sure, he was really tweaked, but seriously. The injury and the response aren’t even in the same category, legally speaking. Further, the Hulk was a private individual when he was kidnapped. Actions against private individuals are never casus belli for the individual, because individuals can’t declare war.

II. Conclusion

So while Front Line does raise some interesting legal questions, they aren’t necessarily handled particularly well. The writers correctly realize that there are a bunch of potential tort claims, but don’t really get into those very much. But their intuition about the civil rights and casus belli issues, while understandable, is incorrect. Private individuals, like the Illuminati presumably are, can’t violate civil rights in most circumstances, and injuries to private individuals don’t constitute grounds for declaring war.

There are more issues here that we’ll take up in a later post. Stay tuned!

63 Responses to World War Hulk: Front Line I

  1. I don’t think that the Hulk cared very much for legal issues.

    That said, aren’t there examples of insults to personages that led to war later in the past? Not all of the insulted were leaders at the time.

    But then…what if the Hulk had outlined his charges and demanded that the Government hand over the 4 suspects, or else?

    Chris

    • Which government? I don’t think everyone involved was a citizen of the U.S. and even then the U.S. is fully entitled to refuse extradition requests unless there is a treaty with the Sakaarians (which there isn’t).

      And yes, on a few occasions insults have actually led to war such as the Franco-Prussian war, but those events were the result of much larger tensions between two or more states and not just because of the wounded pride of a leader. Aside from that, it still wouldn’t be remotely close to casus belli in the 21st century.

      • What makes you think that Hulk cares?

        The problem with laws (particularly international laws) is that they useless unless enforced. We (the West) have not really bothered to do much enforcing, hence the routine breaches by rogue states. Hulk does not have to follow 21C laws – why should he?

        The point is that Hulk has an army and (presumably) the force to compel the US to hand over Stark, Richards and Strange. Black Bolt may prove a trickier case, but he could be treated seperately – as he was in the first issue.

        And as Jen pointed out, the Hulk has every reason to view it as an act of war. By not holding the four US citizens in the group under control, the US has tacitly consented to their actions (not unlike the Taliban after 9/11.) Ironically, this is one of the better pro-reg arguments that weren’t used during the Civil War.

        Chris

      • Ryan Davidson outright points out that She-Hulk is, to put it simply, wrong. It wasn’t remotely close to an act of war. The Hulk was not a state actor, a citizen of another state, the crime wasn’t committed by a state and in fact the only thing that might remotely seem like an act of war was caused by the carelessness and sabotage of the Hulk’s own citizens.

        Additionally there are other errors. Not all of the individuals were/are American citizens. Some of them may be in hiding depending on the timing of events. It isn’t even clear if the U.S. had any idea that this was done until well after the fact, and considering that the Hulk’s idea of ‘justice’ seems to be ‘find people, don’t consider American laws, hit them a lot’ the U.S. has a responsibility to protect its citizens from what can only be described as an invasion.

  2. Not familiar with the series, but could an argument be made that sending the ship in its dangerous condition (It wasn’t called the Maine by any chance?) and it subsequently exploding and killing the co-head of state (or the head of state’s wife, whatever) and a bunch of citizens of the other polity was a casus belli? You say they “messed with it” which made it blow up. If they tampered with the power systems or whatever that would be one thing, but did they just move it and festoon it with flowers, or did they attempt to remove the arc generator with a plasma torch and a sledgehammer? One could argue that a negligent act (sending a potentially explosive starship to another planet) shouldn’t normally constitute a casus belli. But even if the locals did mess with the “don’t mess with this” machine, unless there was some indication that whatever they were doing could result in a massive catastrophe, gross negligence at the city-destruction level might start getting to the assemble-my-armies point.

    • Actually, it was later revealed that the spaceship was intentionally tampered with by one of Hulk’s “Warbound” allies in order to explode. (Because the ally felt that the recently made peace was anathema to warriors like him and Hulk, or something like that.) That would get the Illuminati off the hook in that case, I’d guess.

    • Any spaceship could blow up under the right circumstances. From what we know of the events it wasn’t intended to explode and the Hulk definitely wasn’t a head of state at the time it was used.

  3. Christopher L. Bennett

    Isn’t Black Bolt the head of state of Attilan, or wherever the Inhumans live these days? So he, at least, would be a state actor, I’d think. (And how does he communicate with the other Illuminati in their meetings, anyway? Notepads? Sign language? Does Dr. Strange provide telepathic translation?)

    • If he is a head of state, he could potentially violate Hulk’s Attilan civil rights, but could his US civil rights, correct? (Although many American travelers to other countries in movies seem to think that “civil rights” apply to them based on where they came from rather than where they are!)
      Also, I would think that a casus belli provoked by an Attilan state actor could potentially justify the invasion of Attilan, but not an invasion of Manhattan.

    • But he wasn’t acting as head of state in this instance, so surely that would make a difference. Queen Elizabeth chatting with her mates and hatching a plot to kidnap and exile me is surely a very different matter to her using the apparatus of the state to do same. So surely while he is head of a state he wasn’t functioning as a state actor? *shrug*

      Black Bolt can communicate telepathically with his bloodline, so I presume Medusa translates.

    • It was established that – with Black Bolt’s permission for each occasion – Charles Xavier, if present, would act as Black Bolt’s “translator” at the Illuminati meetings. If Xavier – or Strange, whom you inferred (correctly) had trained up in telepathic communication skills – weren’t available, but sufficient technological workarounds were at hand, then Black Bolt would likely use those.

      • Elizabeth might not get off simply because she is the queen. She can’t just get around it by saying ‘I was calling for that person to be sent to Libya for questioning as a private citizen’. She could abdicate and then do it, but that makes her part of a conspiracy to kidnap someone and also possibly liable for torture.

        As for Black Bolt, as long as he isn’t an American state actor the most you could get him on would be abducting an American citizen, sending a spaceship up without getting proper approval and a few other things. In any case the Hulk wasn’t a head of state at the time.
        If Barack Obama had not been born a U.S. citizen and was abducted by the government of Sudan as a teenager, escaped to America and was naturalized there, and ultimately rose to the rank of general in the U.S. armed forces a state of war would not exist between the U.S. and Sudan because of his abduction (yes I know how ridiculous it sounds but it’s to make a basic point).

      • @Gyre:

        You do realize this is going to be the conspiracy theory for this election cycle now right? Good job!

  4. The Inhumans were living on the moon, and Black Bolt communicated to the Illuminati through sign language.

  5. Just a thought; would the US have a case against the Illuminati for causing all of this? I mean, other than the criminal claim of kidnapping?

    • Probably n0t. The Illuminati didn’t intend for the ship to blow up and from what we know they took every precaution they could. They certainly didn’t cause it to blow up nor did they cause the Hulk to return to Earth. So you could get them on a few charges if you wanted but probably not on what happened after that. Even his accidental landing on Sakaar wasn’t their fault but caused by an environmental hazard (a wormhole).
      Aside from that the Hulk didn’t seem to have any interest in returning to Earth until the explosion which could really weaken his justification for attacking.

      • Ken Arromdee

        Kidnapping a person is a felony. Wouldn’t, therefore, anyone who died as a result of the ship being used to kidnap someone, be felony murder? Yes, the ship didn’t kill someone while the Hulk was still on board, but if it wasn’t for the Illuminati’s actions in committing the felony, people wouldn’t have died.

      • Ryan Davidson

        Interesting theory, but no. Not the way the story is written, anyway. Felony murder only attaches when the death occurs during the felony. But no one died while the kidnapping was actually taking place. The ship had been sitting around for quite some time, and the “crime” was basically completed. This cuts off the felony murder connection.

      • Ken Arromdee

        Was the crime over at that moment? It doesn’t sound like the Hulk had returned to Earth, so he was still being kidnapped. You could argue that he was no longer being restrained so he wasn’t in the process of being kidnapped at the time, but by that reasoning even being in the ship doesn’t count as kidnapping–the ship itself didn’t restrain him, it’s the fact that even if he escaped the ship he’s far from Earth that is restraining him.

      • James Pollock

        Kidnap is a continuous crime. It continues as along as the person has been moved against their will from where they wanted to be (without legal justification, of course… bouncers aren’t kidnappers). A kidnap ends when the person kidnapped regains complete freedom of movement. I think there’s a case that marooning a person in a place they are unable to return from means they are still kidnapped, even if they have freedom of movement within a constrained space. Perhaps this will be re-examined when there are actually more than one planet to be on, but in the meantime I would think that it would be analogous to taking someone from Manhattan and dropping them off in the jungle on some tropical island. Sure, you’re free to go anywhere on the island you want, but the kidnap doesn’t end until you can get back home.

      • The Hulk, once out of the ship, deliberately chose not to return to Earth until after the explosion and his return clearly showed that if he had wanted to go back to Earth he could have. I’d say his kidnapping either ended the moment he left the ship or the moment he had an opportunity to return and chose not to take it.

      • Sakaar is not a legally recognised state as far as either the United States nor the United Nations or any international treaty is concerned, and as such none of its citizens fall under any Earth-based laws or rights. In fact, nobody on Earth even knew it existed, and even if they did and had a treat with it or anything that might all be rendered null and void on the Hulk established his revolutionary government and if he decided to screw all treaties.

        In other words, the Illuminati could have went to Sakaar themselves and personally butchered the entire populace with their bare hands, and there would be no legal recourse. At all.

  6. Mister Andersen

    I’m fairly certain that at the time the kidnp, imprisonment, and exile all happened, Stark was the head of SHIELD which surely makes him a State actor for either the US or the whole world depending on which week it is in continuity. Especially as it’s highly likely that Stark probably used a bunch of SHIELD resources to commit the act — after all, he lost posession of Stark / Avengers tower to HAMMER due to his use of SHIELD resources to fund/supply/maintain it — which seems fairly within SHIELD’s remit of US/Global security

    And given that the design and manufacture of the craft was evidently inadequate to the task at hand — namely the safe transport of the Hulk to the paradise planet — which in turn led to its doubtlessly illegal landing upon Sakaar, I’m not really seeing how the Illuminati can be in any way absolved of responsibility for knock-on effects

    • No, Stark wasn’t director of SHIELD at that point. Maria Hill was.

      If Stark was still US Secretary of Defense at that point, though…?

    • JoeNotCharles

      Nothing wrong with the design and manufacture of the craft. It was sucked into a wormhole which drained its power so that it crashed. Could have happened to any ship, no matter how well-designed.

      • Ken Arromdee

        I’m not sure that would absolve them, especially considering the felony murder laws–if someone dies during the felony even as a result of a stroke of bad luck and not because of negligence, you’re still responsible.

    • I understand that Civil War was inconsistent on exactly what registration entails, but wasn’t one of the depictions that it’s basically like being drafted? If the Avengers have been drafted into government service, aren’t they now state actors?

  7. I like the products liability side of this post, I do wonder if Hulk/Banner would be able to pull it off. How would jurisdiction work in this instance? Is the claim brought where the product was manufactured or where the injury occurs? You just discussed in the Prometheus post that very few laws extend beyond the upper atmosphere, much less to foreign planets, so Hulk would have to be able to bring this action in the jurisdiction where the ship was manufactured.

    Assuming jurisdiction is possible, the logistics of building a case would probably be pretty overwhelming. All evidence that remains is in another solar system; the ship was (if memory serves) sucked through a wormhole, (or something along those lines), and there’s no documentation of how that may have altered the ship in the meantime; the ship itself crash landed (again, if I remembering correctly); there’s allegations of tampering and alteration (both innocent and nefarious); and most of the witnesses to the incident are dead. So gathering enough evidence to attach liability for the explosion is going to require an enormous amount of work.

    Unless, of course, the liability stems from the ship going off course due to a faulty navigation system. Then you could argue a whole chain of proximate cause culminating in the explosion. However, the question would become what injuries and damages are too tenuous to be sustained. If the ship’s goal was to ferry the Hulk to another planet where he could live and not harm humans anymore, mission accomplished (kind of). If the function was to get him to a specific planet, then it failed, but even then it’s not clear if it was due to a faulty design or due to unforeseen stellar objects interfering with the craft.

    (Sorry, I feel I’m getting a bit far afield here. I’ll stop before it gets too out of control)

    • TimothyAWiseman

      As for jurisdiction, you can generally sue a person/corporation for tortious acts in the state in which that person/corporation has residence regardless of where the tortious act occurred. Residency is one of the traditional grounds for jurisdiction.

  8. TimothyAWiseman

    I respectfully have a slightly different interpretation of the “Casus Belli” and “war” analysis here.

    First, you state that a private individual cannot go to war. This is true in a sense, it requires an armed group and by Blacks Law Dictionary (Which was helpfully quoted in your Avenger’s post), these armed groups must either be from nations that are at war or armed groups within the same nation.

    But first the line between “private individuals” and “nation” is not always quite so clear. In one historical example, Marcus Licinius Crassus raised his own army to fight against Spartacus. Spartacus was a former slave leading an army of (mostly) former slaves. Spartacus had no nation per se, and was no Roman citizen so it is hard to call him an armed group within the nation of Rome, but it certainly seemed like he was engaging in War. Crassus on the other hand was a Roman politician and a Roman General at the time, so he was clearly a state actor. Yet the army he raised was paid for out of his own fortune and answered only to him, not the broader Roman government. The lines were rather blurry on both sides, yet it is commonly acknowledged as a war by historians.

    In the instant case with Hulk, he was the sovereign of a nation and he came with the Warbound, which could arguably be considered something akin to the elite forces of that nation. He fought against the Avengers (arguably state actors) and the US Army (definitely state actors). This probably meets the technical Black’s Law Dictionary and certainly has the feeling of meeting the casual laypersons idea of war without going into metaphor.

    As for the casus belli, certainly nothing that was done would meet a legal idea that would receive acceptance from the UN. But in the less legalistic (but more literal meaning) of a “cause of war” which would gain acceptance from the public, the ship blowing up and killing their Queen would probably be fully accepted by the Sakaarans and they would see it as justified. Hulk and the Warbound certainly seem to feel justified as well as pissed, at least until they learn that there was a betrayal within their own ranks that led to the ship blowing up.

  9. Is there actually a legal definition for casus belli? I may be wrong, but my understand of war is that by definition, there is no authority above sovereigns in their interactions with each other, especially when violence erupts. In effect, “I felt like it” is sufficient casus belli.

    I’ve always found the concept of law strange in the interactions between sovereigns. When I am forbidden to do something, it has clear meaning: if I do that thing, the police show up, I get arrested, convicted and sent to jail. But if one country starts firing guns at another, what is the difference between a legitimate firing of guns and an illegitimate firing of guns? In both cases, the other side shoots back and their respective allies do or do not join in. It’s not as thought there is an international police force that will overwhelm the two sides and bring the fight to a peaceful conclusion.

    • The difference is largely in the allies joining in part. Especially in today’s world, where rather important nations may be allied with -both- sides of such a conflict, an aggressor that does not have a legitimate reason is going to find themselves up against significantly more resistance and/or with significantly less assistance.

      • Does the Hulk’s condition fall under the ADA as a disability. Can we ge tot a Civil Rights violation by that route?

    • TimothyAWiseman

      The wikipedia page actually has a really good write up of this. Depending on the field and context, casus belli can have a couple of different (related) meanings. One way it can be referred is as a justification the UN and certain treaties would readily accept as justified. This is a fairly narrow meaning and is reasonably well defined.

      Another is as a justification that would make the war morally a jus ad bellum. And the final is a justification that the public of that country would accept, whether or not it is morally a jus ad bellum.

      • The U.S. (for obvious reasons) generally prefers more loose definitions even though technically we haven’t actually gone to war for decades. Generally casus belli can be implied depending on whether or not the offending state did something completely out of bounds for international relations*, their relation to the great powers, the probability of the war spreading throughout the region and how much the great powers are pressing on them to find a peaceful resolution. Unsurprisingly, it’s more political than legal.
        Still the Hulk doesn’t have much to stand on in current international politics, not many states are going to accept an accidental explosion caused by a group of mostly-private actors as casus belli and the U.S. government doesn’t seem to have even been a party to it.

        *For example if Syria pursued a deliberate policy of bombarding Turkey and killed hundreds of civilians that would probably be casus belli, even though most nations would want it to be handled diplomatically.

  10. James Pollock

    I would argue that intentionally angering the Hulk is an inherently dangerous activity which cannot be made safe regardless of precautions. Thus, trapping the Hulk in a spaceship incurs strict liability for all consequences.

    Also, I wouldn’t be so quick to dismiss Hulk’s civil rights claim, on statutory rather than constitutional grounds. There’s an important intermediate step that would be required (is “hulk” a race?) but it’s not an impossible case. Stark, et al, might be liable for a hate crime enhancement or two on top of the kidnapping criminal case, too.

    • James Pollock

      One other issue, here. Based on the description of events above, the Hulk cloearly entered the U.S. without inspection, and Hulk, unlike Dr. Banner, is undocumented. Thus, he is subject to removal… good luck, ICE agents…

    • There is no evidence that Stark did it out of any sense of prejudice. He did this not out of dislike for the Hulk but in response to the fact that the Hulk is both incredibly powerful and impossible to control. If prosecutors have trouble getting hate crime charges to stick on racists who burn crosses it would be effectively impossible to get the illuminati on this.

      Also since there are only a bare handful of ‘hulks’ I don’t think you can really classify them as a racial, ethnic, political or religious group. People with a medical disability maybe.

      Besides that civil rights are usually an individual or group vs. state thing, not individual vs. group thing.

      • James Pollock

        Hulks are characterized from other people by a series of distinctive qualities, most notably… skin color. I think it’s possible that “hulk” could be found to be a “race”. I don’t think it’s likely, because “hulks” are not born “hulks”, as far as we know (The Bill Bixby TV show’s origin story suggests that they ARE, and the gamma-ray activation works upon and magnifies a genetic trait… but AFAIK, the comics various origin stories don’t.)

        “Besides that civil rights are usually an individual or group vs. state thing, not individual vs. group thing.”
        Actually, it’s ALSO a way to get federal prosecution when the state’s prosecutors are either too afraid or too corrupt to pursue state charges. And there are private causes of action for violation of civil rights… they show up in employment law, property law, an so on.

      • Ken Arromdee

        If you were to go around shooting blind people in the belief that blind people are a danger to others (perhaps because they cause traffic accidents when they try to cross the street), would that be excluded from being a hate crime?

      • The Hulk is primarily shown to be different because there is a difference. When Banner becomes the Hulk his intelligence vastly drops and his strength vastly increases. That, combined with a history of ripping apart any buildings that might happen to be in his way marks a clear difference than the blind person example. If blindness was proven to cause people to deliberately endanger other people or if it could be proven to increase their anger to the point of violence than the state probably would have the right to take some steps.

        As for civil rights, they clearly address this in the post. As is pointed out, it is usually a matter of the government and state actors with a few exceptions, chiefly discrimination. They then point out that you probably can’t get the Illuminati on that. The Illuminati are for the most part not state actors (except for nations that don’t have the American Constitution) and they aren’t discriminating against the Hulk.

        What the Illuminati did wasn’t legal. That’s not what’s being disputed. What is disputed is what crimes were committed.

      • Ken Arromdee

        Gyre: I asked the blind person question because the original reasoning is that “There is no evidence that Stark did it out of any sense of prejudice. He did this not out of dislike for the Hulk but in response to the fact that the Hulk is both incredibly powerful and impossible to control. ” This suggests that to determine whether it is prejudice, you look at the state of the person’s mind–if his intention is based on something other than dislike, it’s not prejudice.

        If so, it wouldn’t matter whether blind people are actually dangerous; just the belief that they are dangerous should exclude it from being “dislike”.

      • James Pollock

        “they aren’t discriminating against the Hulk.”
        How do you come to that conclusion? The Hulk is the only one in the spaceship, isn’t he?

      • I’m basing that on the lack of any animosity towards the Hulk on basis of his skin color or intelligence. If the Hulk simply had his skin turn green and had lower intelligence the Illuminati wouldn’t have worried at all. The reason why he was tricked into the spaceship was because he has both incredible power and incredible rage with no indication that either can be realistically restrained for an extended period of time. Discrimination has very specific criteria and the Illuminati probably doesn’t fall under those.
        Their real crime is the original kidnapping out of fear of his well-documented strength and anger. So they’re guilty of a crime (albeit for understandable reasons) but not of some other crimes.

        Cornell University provides these handy descriptions of court decisions, Congress’ interstate commerce powers and discrimination (quoted from Cornell’s website):

        1. Various jurisdictions have enacted statutes to prevent discrimination based on a person’s race, sex, religion, age, previous condition of servitude, physical limitation, national origin, and in some instances sexual orientation.

        The Illuminati definitely don’t care about Banner’s race, sex, religion, age, past history of slavery, nationality or sexual orientation. Physical limitation probably won’t count for discrimination in this case because I doubt it’s possible to reasonably accustom to the Hulk’s strength and anger.

        2. In 1868 the Fourteenth Amendment countered these “black codes” by stating that no state “shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States… [or] deprive any person of life, liberty, or property without due process of law, [or] deny to any person within its jurisdiction the equal protection of the laws.”

        That certainly doesn’t help because none of the members of the Illuminati are acting as state actors for the U.S. or for an individual state inside the U.S. The more extended definition of state also doesn’t work because if it did then the U.S. wouldn’t generally hold that citizens of the U.S. in foreign states must abide by that state’s laws while there.

        3. The Civil Rights Act of 1964: Discrimination based on “race, color, religion, or national origin” in public establishments that have a connection to interstate commerce or are supported by the state is prohibited.

        The Illuminati are probably as far away as you can get from a public establishment, the Hulk isn’t interested in them serving him anything and he doesn’t want to work for them so that one’s out. Also, unless the Illuminati are officially centered in the U.S.* you’ve got another jurisdictional problem.

        4. Definition of discrimination from Nolo’s Plain-English Law Dictionary (quoted by Cornell): Rights guaranteed by the Bill of Rights, the 13th and 14th, 15th and 19th Amendments to the Constitution. Civil rights include civil liberties (such as the freedom of speech, press, assembly, and religion), as well as due process, the right to vote, equal and fair treatment by law enforcement and the courts, and the opportunity to enjoy the benefits of a democratic society, such as equal access to public schools, recreation, transportation, public facilities, and housing.

        This wasn’t done by a state actor or by an employer or public establishment to prevent the Hulk from accessing any of those. Even if you argue that the Hulk de facto cannot access those benefits because of his kidnapping it doesn’t hold weight, if it did then every kidnapper and murderer would have those charges added on.

        The bottom line is that this really wouldn’t get tried for civil rights violations. If one of the members had been the governor of Kansas or a Vermont police officer and they had done this then you might get them on something but they weren’t. I’m not sure why it’s confusing, civil rights and discrimination are fairly clearly established in law.

        *I wonder if you could get the Illuminati on organized crime charges.

      • Ken Arromdee

        1) I’m still not convinced that just because the Hulk was expelled for being dangerous, it shouldn’t count. If I think that all gay people spread AIDS by being next to someone and I shoot one because he’s coming near me and I fear that I could get AIDS, I’m pretty sure that my belief is not going to exempt me from hate crime charges. Although my immediate rationale for shooting him is that he is dangerous, the “danger” is inextricably associated with being in a protected class.

        Likewise for the Hulk, they may be shooting him into space because he’s dangerous, but he’s dangerous because of his disability.

        Consider a real-life example: a person is mentally ill and goes into uncontrollable rages. If you kidnap him because “he’s a danger” even though he’s not attacking someone at this very moment, is that a hate crime based on disability status?

        2) Given the way superhero worlds work (and the lack of prosecution in general for crimes committed by superheroes while superheroing), I can safely say that the Illuminati are not going to be prosecuted by the government for their crime in kidnapping the Hulk. I can also safely say that the Illuminati would have known this in advance and that it had some bearing on their decision to do it.

        If I beat up members of a minority in the knowledge that the government is selectively prosecuting and won’t prosecute me for the crime, is that state action?

      • There is a world of difference both between the Hulk’s case and the case of homosexuals who may or may not have A.I.D.S. and between the Hulk’s case and someone who flies into uncontrollable rage.

        In the homosexual example you would have no scientific standing to base your actions on. It has been fairly well established how A.I.D.S. is transmitted and it also is fairly obvious that not all homosexuals have A.I.D.S. Of course you can demand that they not stand too close to you as it violates your personal space but simply existing in a place they have a right to exist in is different. However, if someone was proven to have a version of the Ebola virus and insisted on hugging you, you probably would be within your rights warn them off, although the courts would probably demand that you attempt to flee rather than cause the infected physical harm.

        The difference between the Hulk and the A.I.D.S. example is that the Hulk is clearly shown to have (as I have mentioned before) incredible strength and no ability to control that strength. This ties in with the example you use of real life people who in real life have uncontrollable rage. If a person’s anger cannot be controlled through treatment or medication I doubt a workplace would be penalized for refusing to employ that person. Indeed if there really was no way to stop the person from entering uncontrollable anger the state might be justified in incarcerating him for both the safety of the individual and society (depending on what state). With the Hulk it is even more clear because a regular person is dangerous, but not a threat to national security. The Hulk could rip apart entire cities and kill millions.

        Lastly I think you’re really stretching out any definition of discrimination. Discrimination has clear criteria (some of which I have listed above). The people responsible are not employers, public facilities or state actors. The Hulk is probably not going to qualify as a minority group. There is no way to realistically work around the Hulk. In fact the Hulk (were he treated more realistically) could be a good case for involuntary incarceration. Realistically there is no way to prevent him from becoming angry and realistically one of his rages would probably result in at least dozens (assuming the absolute best conditions) of deaths. If Banner had access to some kind of medication that could restrain the Hulk and agreed to do so on a consistent basis then this wouldn’t apply.

      • In the case of Hulk being medicated into submission, would the government be within their right to incarcerate Banner just to make sure he took the medication?

      • Ken Arromdee

        Gyre:

        In the homosexual example you would have no scientific standing to base your actions on.

        Then your explanation must be incomplete. You explained that prejudice is based around dislike of a group. That suggests criteria that depend on the state of mind of the person doing the discriminating, rather than on objective facts such as whether the group really is dangerous.

        Indeed if there really was no way to stop the person from entering uncontrollable anger the state might be justified in incarcerating him for both the safety of the individual and society (depending on what state).

        The state could incarcerate him as a danger. The Illuminati, however, are not (or at least have argued not to be) a state or agents of the state. The state may be able to lock someone up for being a danger, but I can’t do it. If I lock someone up “because he’s a danger”, that’s a crime, whether he’s a danger or not. And if being a danger stems from their minority status (in the Hulk’s case, the mentally disabled) that’s a hate crime.

      • James Pollock

        As I noted previously, I think that there’s at least a chance of getting “hulk” classified as a race.
        As for all murderers and kidnappers not getting civil rights charges added… that’s exactly what happens when a state is unable or unwilling to proceed with a state case… the federal government steps in, and prosecutes for the civil rights violations.
        Finally, the notion that discrimination isn’t discrimination if there is no malice is simply incorrect. Otherwise every discrimination case would be settled as soon as the defendant said “I wasn’t discriminating against THOSE people, I was selecting with a preference for THESE people!”

  11. The Hulk is the consequence of the effects of suppressed multiple-personality disorder, given incitement by gamma radiation-induced mutation…suffered by a United States citizen, one Dr. Robert Bruce Banner. And is therefore entitled to Banner’s citizenship, being a component of the mind of Dr. Banner.

    • Yeah, this. While that was a fun question, it’s sort of analogous to the Worgen in WoW. The game refers to them as a “race,” which they are not. They are humans who have been infected with a disease. (Lycanthropy.) It’s not like I go around calling myself a Fluan when I get sick. (Well, I might, but only because I am a smartass. ) Even if the disease is passed to offspring, we don’t call people SickleCellians, either.

      Anyway, to digress just a tad, this is just the latest variant of racial weirdness in WoW. For instance “undead” is a race. (All PC’s who are undead are members of a faction called the Forsaken, but that’s a group, not a separate type of undead.) This is also stupid. An undead human, for whatever reason, loses the ability to speak Common (the human language also understood by all human-allied races) and gains the ability to speak Orcish, even if the human had never seen an Orc before in their lives.

      There’s a game mechanic reason for this (the Forsaken are part of the Horde which is an alliance of races led by the Orcs which is opposed to Humans and *their* allies, who form the, um, Alliance.) And as it turns out it’s also necessary from a game conduct point of view because if members of the Horde and the Alliance are allowed to communicate directly with each other the entire game realm immediately becomes an uninhabitable sea of trash-talking twelve-year-olds. But it’s still stupid.

    • James Pollock

      There’s a difference between being a citizen entitled to enter, and proving you’re a citizen entitled to enter. Thus, even citizens can be subject to removal. An ordinary, non-gamma-ray-enhanced citizen who lacks documents necessary for entry (typically, because they’ve been pickpocketed or robbed while traveling abroad) may request assistance at a consulate. Hulk no do that.

  12. Another interesting question is whether Hulk can be prosecuted for treason by the U.S. He certainly did levy war against the United States, but the problematic part is “owing allegiance to the United States.” There is a really good argument that by becoming a head of state of an alien nation, he renounced his citizenship under 8 USC Sec. 1481(a)(4), but does it fully absolve him from allegiance to the U.S. even if his renunciation was not communicated to any U.S. official prior to levying war?

    • If the Hulk was expelled from the country by the Illuminati, and the Illuminati are at least arguably acting under government authority (whether they actually are is a separate question, of course), could a case be made that the United States, bu expelling him, has de facto deprived him of citizenship (after all, citizens can’t be expelled) and that therefore he owes no allegiance to the US because of the US’s own actions?

      Also, if the Illuminati’s actions are known by the government and the government unofficially gives them a wink wink nudge nudge that approves of them expelling the Hulk, rather than arresting them for kidnapping, would that mean they are acting under government authority?

      • Ryan Davidson

        Except that it’s pretty clear that Illuminati was acting on its own authority. The way the stories are written, they aren’t really answerable to anyone, especially given that two of the members are foreign heads of state. It’s not clear that *anyone* knew about the plot until after it happened.

  13. Ryan Davidson

    We discussed superpowers and the ADA in December 2010. We concluded that the Hulk probably qualifies for some protections there, as turning into an enormous green rage monster does probably interfere with his daily activities, but that because it might be impossible to reasonably accommodate said monster, he might not benefit as much as someone like Cyclops, who just needs to wear his visor.

  14. You accommodate the Hulk by LEAVING HIM ALONE. Which neither the Illuminati or the Hulk-Buster military origination that Gen. Ross set up did very well.

    • Considering that the U.S. was about to enter a very poorly written civil war you do not want something both as physically dangerous and as mentally limited as the Hulk wandering around. To be honest, were I the president at the time I probably would have made the same call and risked impeachment.

  15. Of the Illuminati, Namor and Black Bolt are heads of state. Stark has held high-level positions for SHIELD, an international organisation, and I’ve heard, for the US government. Xavier is one of the most influential people in the mutant community. Strange was Sorcerer Supereme, a position that agrguably is an international position of some responsibility. When originally formed, they asked the Black Panther to join, another head of state.

    Their membership at the time including the heads of state of the moon and the oceans, they do in fact represent enough territory to dwarf every other nation on earth combined.

    I would argue that the Illuminati is not a group of private citizens but an international organization of some sort.

    • Generally international organizations require members to represent their states or work for the I.O. (though they give N.G.O.’s some weight). Just previously working for S.H.I.E.L.D. (which may or may not be an I.O.) and the U.S. government isn’t enough to confer on Stark state actor status in the present any more than former president Carter. Xavier does not (as far as I know) hold an official status with any national or international organization, and the same goes for Dr. Strange. I’m also not sure that Black Panther was still a head of state at the time it was formed.

      That doesn’t necessarily mean that it can’t be considered an international organization, just that defining it as such is going to have some trouble. Usually an international organization, even a covert one, requires some commitment by the state to do something while it’s not clear if the Illuminati have official rules in the same manner.

      What could be done if you view it that way is another question. I suppose the U.S. could lay sanctions and demand that the U.N. Security Council back it on this. Kidnapping a U.S. citizen probably isn’t going to push hard enough to justify warfare.

      • Well, Namor and Black Bolt are close to absolute monarchs. They appear to wield more power in their respective nations than the President does in the US, or what any constitutional monarch does. (This probably represents the writers limited understanding of monarchy, but thats not germane). However, I believe they represent their states in a «L’état, c’est moi» manner. They appear to be the executive and legislative branches of their government, and a large fraction of their armed forces. It is, in fact, Namors stated policy that he is the main component of his nations armed forces.

        I don’t think you can represent a nation any harder.

        I do believe the Black Panther was a monarch when they attempted to recruit him. However, the Wakandan sovereign appears to function closer to a constitutional monarch.

        Xavier and Reed could be regarded as specialists. Strange is an iffy case, as I do believe there is some loose magical structure in the MU, and his position is recognized by interdimensional entities. Which themselves may or may not be recognized by nations on earth, of course. (What would happen if Latveria decided to open diplomatic relations with Dormammu or Limbo, I wonder?)

        Anyway, if regarded as an international organization, the Illuminati is not associated with the UN or signatory to any treaties. I am not sure if there are equivalent organizations out there, or what legal implications this would have.

  16. Would Tony Stark’s actions, at the time as the Secretary of Defense (I Believe), make it potentially a government issue? Wasn’t he also running SHIELD at the time they decided to chuck the Hulk into space?

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