The Amazing Spider-Man: Warrants and Assault

As we discussed in our background post, most of the issues in The Amazing Spider-Man aren’t new, but there are two stand-outs.  There are some  minor spoilers ahead for anyone who hasn’t seen the trailers, and a couple of very minor spoilers for anyone who hasn’t seen the film.

I. Warrants

The first issue was brought to our attention several weeks ago by Matt, who asked a question based on a bit in the trailer:

I have a question regarding the trailer for (and presumably the actual film) Amazing Spider-Man.  In the trailer, at least, NYPD Captain George Stacy publicly announces that he’s issuing “an arrest warrant for the masked vigilante known as Spider-Man”.  My question is: Can he do that?  It’s my understanding that arrest warrants come from judges, not law enforcement officers, regardless of their rank.

Matt is correct on both counts: the scene is in the film, and—unfortunately for the writers—it’s wrong.  Warrants, whether search warrants or arrest warrants, are issued by judges.  In New York, arrest warrant procedures are defined by N.Y. Crim. Pro. Law §§ 120.10 – 90.

The curious thing about this, though, is that an arrest warrant was probably unnecessary.  In New York, an officer may generally arrest a person for committing “[a] crime when he or she has reasonable cause to believe that such person has committed such crime, whether in his or her presence or otherwise.”  N.Y. Crim. Pro. Law § 140.10(1)(b).

In this context, “reasonable cause” is essentially synonymous with the more familiar probable cause.  See, e.g., People v. Johnson, 66 N.Y.2d 398, 402 (1985).  “Probable cause to arrest exists if the facts and circumstances known to the arresting officer would lead a reasonable person possessing the same expertise as the arresting officer to conclude that it is more probable than not that the suspect has committed or is committing a crime.”  People v. Attebery, 223 A.D.2d 714, 715 (N.Y. App. Div. 1996).  Thus, a police officer who was aware of Spider-Man’s fairly unique description and alleged crimes would likely have probable cause to arrest him without a warrant.  Since most officers have probably heard of Spider-Man at this point, there wasn’t much need for the warrant.

At this point you might be asking, “then why have arrest warrants at all?”  There are a few reasons, but one important one is notice.  Recall that probable cause is based on “the facts and the circumstances known to the arresting officer.”  It’s no good if the officer arrests someone on a hunch and turns out to be right. People v. Wharton, 60 A.D.2d 291, 295 (N.Y. App. Div. 1977).  An arrest warrant is a formal way of communicating the existence of probable cause to arrest someone.  This is very handy when dealing with hundreds or thousands of people suspected of crimes; police officers can’t be expected to remember everyone with a warrant for unpaid traffic tickets, after all.  The utility is diminished somewhat when talking about a city-wide manhunt for a guy in a costume who climbs on walls, since even the busiest officer can probably remember to keep an eye out for Spider-Man.

So when Capt. Stacy announces the warrant, he’s really saying “Spider-Man may legally be arrested and I have instructed the New York Police Department to do so.”  It’s not so important from a criminal procedure point of view, but it’s good PR and lets the police department look like it’s doing something.

II. Assault

The second issue comes from Peter Parker’s dinner with Gwen Stacy’s family.  As hinted at in the trailers, the conversation between Peter and Capt. Stacy becomes a little strained, and Peter is surprised to hear Capt. Stacy describe Spider-Man as a guy in a costume going around assaulting people.  Apparently Peter had not considered the possibility that what he was doing might not be entirely legal.  But was it?  I think the answer depends on which incident one is talking about.

At several points in the movie, Spider-Man stops, interrogates, or otherwise beats up on apparent criminals.  In some cases, he’s probably more or less justified in using non-lethal force.  For example, one of the first times he goes ‘on patrol’ he stops a man who was hassling a woman and possibly about to strike her.  Under the circumstances that’s probably defense of others.  He is then attacked by a large number of people and engages in a little self-defense.

In another case he stops someone after hearing a report on the police radio about a fleeing suspect.  This depends on what the alleged offense was (does anyone remember?) and whether the person actually committed it.  In New York, a citizen’s arrest requires either that the offense be committed in the arresting person’s presence or that a felony have actually been committed.  N.Y. Crim. Pro. Law § 140.30.  So Spider-Man could lawfully arrest the person if he committed a felony, but if it was a lesser offense (or if Spider-Man got the wrong guy), then it wouldn’t be a lawful arrest—in fact it would be a crime, namely unlawful imprisonment.

But what about assault?  It’s a little hard to say.  If the use of force is unjustified and physical injury is involved, then it could be either third degree assault or second degree assault.  The difference hinges on whether Spider-Man’s webs can be considered a dangerous instrument.  A dangerous instrument is “any instrument, article or substance … which, under the circumstances in which it is used … is readily capable of causing death or other serious physical injury.”  N.Y. Penal Law § 10.00(13).  Arguably the web is capable of causing death by asphyxiation when it is applied to the face, which happens a few times in the movie (application to the face, not asphyxiation).

III. Conclusion

As a movie, The Amazing Spider-Man is pretty good.  I didn’t find too much to fault in terms of the law, apart from the wince-inducing warrant flub.  I also liked that it underscored the importance of maintaining a good working relationship with the police.  They might not be able to catch every petty criminal (or even every rampaging lizard), but that’s no reason to irritate them, especially if you wear a big, bright red and blue suit and aren’t immune to bullets.

21 responses to “The Amazing Spider-Man: Warrants and Assault

  1. Does the fact that Spiderman is fully aware that his webbing can cause asphyxiation make any difference as to whether or not using it is assault? In one scene he purposely removes it from a suspects nose to allow him to breath thus showing he’s aware of the problem.

    • Under most legal definitions of assault, whether something is a dangerous instrument (or a deadly weapon, or whatever) is subject to a reasonable interpretation test, not an actual knowledge or subjective belief test. However, “reasonableness” is itself subject to some interpretation. If a reasonable person, knowing what Spider-Man knows about his web, would think it was dangerous, then it’s probably dangerous. Since he knows it keeps people from breathing, it’s dangerous. If it were permeable enough to allow a person to breathe through it, and he knew that, then it’s not dangerous since a reasonable person who knew that wouldn’t think it was dangerous. (Assuming the physical impact, etc wasn’t likely to cause serious injury or death.)

      Contrarily, if it turned out that one in a million people was highly allergic to the web and would go into anaphylactic shock and die if it touched them, but it was otherwise harmless, it’s probably not a dangerous instrument absent actual knowledge that the target is allergic.

    • I suspect that knowledge of the dangerous character of the instrument is not required. See, e.g., People v. Tracey A., 97 Misc.2d 1053 (N.Y. County Ct. 1979). That case was about burglary, one of the elements of which was that the defendant “uses or threatens the immediate use of a dangerous instrument.” One of the questions in the case was whether the prosecution had to prove “that a defendant has knowledge that the weapon is loaded and thus deadly in character?” The court concluded that the prosecution did not have to prove knowledge.

      • Generally you would presume that any weapon which needs to be loaded is still dangerous and there is a good possibility of it being loaded. Gun safety courses make a point of drilling it into people’s heads that even when you know it’s unloaded, it’s still loaded*. I’m not sure how it would apply to Spider-Man but I would normally think that anyone who constructs a super-strong, super-sticky formula and uses it on someone’s face should be aware of the risk of blocking air.

        *And that’s not mentioning types that still keep a bullet in them after the clip is removed.

      • Replying to Gyre: now I can hear my small arms instructor in the Canadian Forces in my head:


      • Philo Pharynx

        In this reality Peter did not create the webs. Oscorp did. Peter stole several cartridges of the spider silk. This has several implications. One, that once he uses up the handful of cartidges he has, he can’t get any more without stealing more (or go into breeding super-spiders). Two, somebody at Oscorp probably suspects that Spiderman is using their webbing. Could Oscorp use this for PR? While they don’t have the right of publicity, Spiderman would have to admit to stealing in order to object.

    • Did he then make sure they guy could breathe through his nose? He might have had allergies. And maybe his sinuses are fine now, but they’ll swell some time in the next two hours before the web dissolves.

  2. What about when Captain Stacey let Spiderman go? It looked like the police officers around got a good look at what was happening: that the Cap had gotten Spiderman under gunpoint, and then had let him pick up his mask and go… What would have happened to him later? Is he on the clear since Spiderman rescued the city from a biological weapon? Would he have had to declare to the world Spiderman’s identity afterwards?

    And were the crane operators aiding a criminal? (Plus the very handy helicopter pilot and the light pointing the way…)

    Just curious…

    • My understanding here is that the police and prosecutors have a large amount of leeway regarding who they arrest, when, what they charge them with or even if they bother doing any of those things. There could be an active arrest warrant for anything and a cop is under no obligation to arrest that person even if they stop them and make them aware that they should be under arrest.

      The prosecutor is then under no obligation to actually pursue a criminal case against said person even if they are arrested. Its part of the reason the gangsters in Batman buy off the prosecutors and the cops.

      • Your understanding is correct. I know of no jurisdiction where a police officer could be liable in any way other than departmental discipline for failing to arrest a criminal or failure to prevent a crime. In every jurisdiction I’ve had occasion to research the law, I found at least one case where a court ruled specifically that the police had no liability to someone harmed by a criminal who the police had failed to apprehend and/or stop from committing a crime even when they had particular notice that the harm was probable or imminent. The seminal case in modern US legal education is Warren v. District of Columbia (444 A.2d. 1, D.C. Ct. of Ap. 1981). A more modern (and universal) case is Castle Rock v. Gonzales, 545 U.S. 748 (2005.) Warren is a better example for this discussion because in Warren the crime was ongoing, the police knew it was happening, and failed to stop it.

        This is an argument I’ve had many times on the internet, particularly with Brits, who are even more often under the impression that their police have some particular duty to protect than US citizens. They don’t, and the UK case law is clear.

      • @ Marc, what about a situation where a police officer stops a vehicle for DUI, the officer goes through the sobriety tests and gives a breathalizer test where the suspect blows over the legal limit (.08). If the officer lets the individual drive home (say he is friends with the buddy, and it is a small town) and the drunk driver then drives his car into another vehicle, wouldn’t the police officer and likely the police department be liable for the harm caused by failing to arrest the driver for DUI? He has a duty to arrest the drunk driver, he did not, and but for that decision, the car crash would not have resulted.

  3. Martin Phipps

    Almost certainly the webbing could blind somebody. For Peter to think he is not assaulting people is a bit silly. Most of the cases were self defense or defense of others but still…

    How does the law view this? A man yells “Stop thief!” and I see a man running away and I grab the guy and throw him to the ground. Do I have to stop and ask if I have the right guy? Maybe the thief was another guy and the guy I grabbed was running after HIM.

    Oh and as for “I am issuing a warrant for the arrest of Spiderman”, what if he had said “I am making a request for the issuing of a warrant for the arrest of Spiderman”? I can easily see a police chief omitting “making a request for” as the whole statement was PR anyway.

    Two questions: if a police chief (or prosecutor) asks a judge to issue an arrest warrant, how likely is he to get turned down? And do judges ever issue warrants without a police officer or prosecutor requesting them?

    • Most citizen’s arrests are made on the basis of best possible information. In most circumstances you’re next step after stopping the “thief” is to turn him over to police as soon as possible. That said, using an excessive amount of force is probably going to get you into trouble. In Canada we have the additional hurdle of only being able to do so if a peace officer is in “fresh pursuit”, or you witness somebody commit an indictable offence (roughly equivalent to a felony offence in the US), or believe has committed a criminal offence (ie. not indictable).

      So, in Canada if you believe that somebody has committed an offence, even if it is the wrong person you should be okay as long as you don’t beat them up. At least that’s how I’ve interpreted the Criminal Code, and I’m sure the Supreme Court has some case law here, but I can’t find anything in particular based on a cursory search.

      As for turning down arrest warrants, I have no idea. As for issuing them, judges do it all of the time. Usually for people that skip court hearings after being granted bail, although those are typically done as Bench Warrants since they are issued directly from a judge while at the bench. Its one of the way to get witnesses to show up at a trial as well. So don’t skip on out being a witness otherwise some friendly police officers will show up at your home and escort you to your court date.

    • If a police chief personally asks a judge for a warrant I can’t see many saying no.

  4. Another question: Does it matter that there’s no person legally known as “Spiderman”? Also, for all the police know, couldn’t there be a dozen other people who have the same superpowers and wear the same costume – so if an officer sees him and decides to enforce the warrant, for all he knows, he could be getting the wrong guy?

    • Ben Reilly, Mac Gargan, Ezekiel, Kaine, Mattie Franklin, Miles Morales, Gerry Drew, Miguel O’Hara…

    • When the police are in doubt as to the explicit identity of someone (i.e. when they wear a mask or otherwise obscure their identity) they can apply for a warrant for the alias/public identity/description of the individual. After an actual arrest is made, they are then required to prove that the individual they arrested is, in fact, the weirdo wandering around in the blue/red spider costume, and that they did commit the offenses for which the warrant was issued.

      • James Pollock

        I understand that (in the real world) there are people whose “job” is to dress up like famous people and pose for photos with tourists. I would think that “Spider-Man” might be a popular choice, because with a mask, anybody could do it, without having to actually look like someone in particular.

        So if a policeman finds a guy on the street wearing a Spider-Man costume, how does he prove that he’s got the guy in the Spider-Man suit that can actually stick to walls, and not one of the 20+ who can’t?

      • After a while maybe, but this is an origin story we’re talking about. Besides it shouldn’t be that hard to prove that someone was at the ball game when Spider-Man jumped onto a car in pursuit of a thief or to prove that the web shooters could not be gotten locally.

      • James Pollock

        OK, in the context of this movie, it’s too soon. But my question stands. I mean, it’s going to be easy for the cops to figure out if they have the right Warren Worthington, and when nobody can put that &*#$&#* hammer in the evidence lockup, they’ll know they got the real Thor. But if they nab Peter on the street, if he thinks quickly enough, the got just another guy who gets his picture taken for tips (especially since there’s about a 99% chance they pinch him carrying a camera. In fact, that’s probably what gets him in trouble… he’s got way too nice a camera, and they’re going to think he’s lifted it from a tourist.

  5. Peter actually has pulled the “I’m not Spiderman, I’m Peter Parker in a Spiderman suit,” stunt at least once that I recall. (It was to a group of villains, not the police, but the concept stands.)

    I doubt there’d be too many cases of that, though, since Peter tends not to stay in one place as Spiderman and his web-swinging is a pretty distinctive use of superpowers. He also has a habit of clinging to walls and ceilings when he does stay to talk.

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