Hancock is the 2008 superhero movie starring Will Smith and Charlize Theron about the interesting intersection of the superhero and the… homeless?
Or something like that. The movie is actually way more interesting than it has any right to be, not only for the obvious premise, i.e., a superhero who has to deal with property damage and people not being thrilled to see him, and the more mythological premise, which is a surprisingly creative take on the superhero concept. It also has the rather unusual benefit of not being an origin story. We first see Hancock passed out on a public bench, apparently mid-way through a multi-day drunk. We eventually learn his background, but it’s not the point of the movie.
But this being the blog that it is, we’re more interested in the former than the latter. Mythology is great and all, but we’re interested in the nitty, gritty, legal logistics. We’ll try to keep this mostly spoiler-free, but you have been warned.
I. Hancock Goes to Jail
There are an unknown impliedly large number of outstanding warrants for his arrest, only no one’s figured out how to do that, or to serve him with one of the hundreds of subpoenas he faces. As a plot point, Hancock voluntarily surrenders himself to the police. This is supposed to be a first step towards rehabilitating his image. And it’s probably what would need to happen for a superhero who has been acting outside the law before he could become “legit”.
The process is a bit abbreviated, as we basically just see Hancock go from a press statement at his surrender straight to jail. There are a few steps missing here, but with one exception, the process could go about as quickly as it seems to.
First, turning yourself into the police, even if you have an outstanding warrant, is not a ticket straight to jail. It is, at best, a ticket straight to a holding cell. In the United States, there’s a difference between “prison” and “jail”. “Prison”, which is where Hancock goes, is typically where you go after you’ve been convicted (or pled guilty to) a crime, and generally a felony. You need to be serving a sentence of at least a year. So the fact that Hancock ends up here before he’s even sentenced—he has a conversation about what his sentence is going to be after he’s in prison—is a mistake. He’d probably go to “jail” first, which is where you sit if you’re waiting to be tried or you’re serving a sentence of less than a year, often a misdemeanor conviction. Even people who are going to plead guilty to a felony don’t go to prison before that happens.
But it can happen pretty quickly. The movie doesn’t discuss exactly what charges Hancock is facing—nor does it deal with the civil side of things at all—but the DA has presumably got charges all drawn up. If, as in Hancock’s case, the defendant doesn’t intend to contest the charges, even a little, one can go from indictment to prison pretty quickly.
Still, it may well take a few days, even if everyone’s trying to speed things along. The issue of bail would then come up. Hancock would seem to be the very definition of a “flight risk”. But his lawyer, whom we don’t meet, could point out that if Hancock decided he wanted to leave, all the king’s horses and all the king’s men couldn’t do jack about it. He’s there because he wants to be. Bail is specifically and solely intended to create an incentive for defendants not to flee before trial. Hancock doesn’t have any money, so it’s not like it’s going to matter to him. And the fact that the cops couldn’t really arrest him even if they wanted to might be good reasons to just let him out on his own recognizance. Then again, because Hancock is cooperating, he may just have waived any request for bail, which would get him into jail immediately.
So other than the fact that Hancock seems to start serving a sentence before he even pleads guilty to anything, the process seems more-or-less okay. Most of the legal stuff happens off camera, but the results are mostly plausible.
The other thing the movie does really well is show the limitations of the “necessity defense.” We discussed this in the context of Superman stealing a bunch of iron bars to shore up a burning chemical plant in March. Necessity is often described as a “lesser of two evils” defense. The basic idea is that there are many actions which are tortious or even criminal which can be “justified” by the circumstances.
But however conceived, necessity isn’t going to work for Hancock in most of the property damage claims that have been leveled against him. Why? Because he didn’t really have to cause the vast majority of the damage he causes. He doesn’t need to shatter the pavement when he takes off or lands. He doesn’t need to crash into and through buildings when he flies around. And when he saves Ray from the train? He totally didn’t need to smash his car onto three others or cause a train wreck because he was too lazy to get out of the way.
This is something that more superheroes should probably take into account. Hancock is an obvious example because he’s a jerk about it, but even characters like Superman and the X-Men would be well-advised to take note. Just because you’re “fighting crime” or whatever does not automatically justify property damage. Nor is the fact that lives are in danger. It can serve as a justification, but there has to be some proportionality and connection with the underlying crime-fighting. At root, property damage has to be reasonably necessary to preclude liability. So if there is any less-destructive way of accomplishing the goal, a superhero could potentially be liable for any damage he causes, particularly if the damage is out of proportion to the threat. The movie really picks up on that, and the writers deserve credit for it.
III. Other Issues
The movie also raises several other issues which we’ve talked about previously. For example, Hancock is apparently immortal. We’ve done several posts on the subject. We’ve also done quite a few posts on insurance for superhero-related property damage. This seems like a situation where there probably would be coverage because Hancock’s activities would be really hard to characterize as war, civil unrest, nuclear-related, terrorist, or any of the other common exclusions found in property insurance policies. We’ve even got one on superhero spouses, which is not entirely unrelated.
If you didn’t catch the movie the first time around, you really should. It’s one of the more under-rated superhero movies out there, and one of the very few that isn’t connected to either Marvel or DC. Its take on the relationship of superheroes to society is refreshing, and its mythology is compelling. It’s not a perfect movie, and the tone shifts rather abruptly in places, but in a genre that’s given us Green Lantern and Electra, it more than holds its own.