The Rocketeer (1991 film)

Previously, we discussed The Rocketeer in its 1980s Dave Stevens comic book, instantiation. This time, we’re talking about the 1991 Disney movie. A lot of the main issues are the same, but this may actually be one time where the movie is significantly better than the comic book. The plot of the comic was pretty scattered, and the book seems to have just sort of ended without any significant resolution of any plot points. The movie really streamlines things and has a much more satisfactory plot arc.

One major way that the movie differs is the introduction of Neville Sinclair, played by James Bond Timothy Dalton, who serves as the movie’s main villain, a Nazi spy (sorry, we’re not warning about spoilers in a movie from 1991). While the Hindenburg stand-in is perhaps unrealistic—commercial zeppelin flights seem to have pretty much ended after the disaster, a year before the movie is set—but the idea that a well-placed celebrity was a Nazi sympathizer or even agent is not as implausible as it sounds.

Regardless, there is a plot point in the movie that raises an interesting question: is Secord’s “sabotage” of the rocket pack murder?

Probably so. Consider the elements. In California, murder, is “the unlawful killing of a human being … with malice aforethought.” Cal. Penal Code § 187(a).  Secord knew the rocket pack was dangerous and had every reason to believe that re-opening the bullet hole leak would cause anyone who operated it to die in a fiery crash. So when he moves that chewing gum, he is effectively killing Sinclair. We’ve got intent and act. But is there a defense (i.e. was the killing unlawful)?

Actually… probably not. True, Secord potentially saved the world by preventing the rocket from falling into Nazi hands. That’s all well and good, but “I thought he might use it for evil!” is not going to fly. In California, the necessity defense has several elements:

To justify an instruction on the defense of necessity, a defendant must present evidence sufficient to establish that he violated the law (1) to prevent a significant and imminent evil, (2) with no reasonable legal alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief that the criminal act was necessary to prevent the greater harm, (5) with such belief being objectively reasonable, and (6) under circumstances in which he did not substantially contribute to the emergency.

People v. Verlinde, 123 Cal. Rptr. 2d 322, 336 (Ct. App. 2002) (quoting People v. Kearns, 55 Cal.App. 4th 1128, 1135 (1997)).  The defense of necessity might be available in murder cases in California, but the evidence for that is sketchy.  See, e.g., People v. Potter, No. C052634 (Cal. App. 3d Dist. Dec. 10, 2007) (holding that “murdering someone cannot be done out of ‘necessity,’ because the harm caused is at least equivalent to the harm avoided” but also denying a necessity instruction on several other grounds).  Given the tremendous potential harm in this case, we think it could at least be argued that stopping Sinclair outweighed the harm of his death.

But that’s not enough to satisfy the elements of the defense.  Although Secord and his girlfriend (Jennifer Connelly) are in immediate danger of dying, killing Sinclair isn’t actually going to do anything about that. Heck, for all Secord knew, the rocket would explode immediately, killing them all right then and there. So the danger to be prevented was more that the rocket would make its way into Nazi hands, something well-intentioned persons would want to prevent. But the danger there isn’t imminent. It’s pretty attenuated, actually. Even in self-defense situations, the notion—even if correct—that someone is going to do something bad in a few days or even a few hours is generally insufficient to ground a necessity defense. The danger needs to be now.  Another problem is that Secord arguably contributed to the emergency by keeping the stolen rocket in the first place, although that may be too distant to count.

That being said, Secord is unlikely to be prosecuted for his “crime.” Prosecutorial discretion is, as we’ve discussed previously, an inherent power of the executive branch at all levels of government. The feds certainly aren’t going to bring charges, and it’s doubtful that local government will either, especially since the feds won’t like it. There’s also the possibility of jury nullification, i.e., when a jury refuses to convict a guilty defendant. Though judges in civil cases have the authority to overturn a jury verdict and enter a judgment notwithstanding the verdict (sometimes called “judgment as a matter of law” or “JNOV”), judges can only overturn a jury verdict in favor of a criminal defendant. In civil cases it can go either way, but a jury verdict of “not guilty” is final. If Secord can convince enough of the jury that what he did was for the greater good, then even if a judge refused to offer a necessity instruction, the jury might still refuse to convict. This is something that is becoming increasingly common today, but even if less common in the 1930s, it was a feature of common law jurisdictions going back to pre-colonial England.

So though what Secord did is probably technically murder, he’s likely to get away with it. The prosecutor isn’t likely to bring charges, and Secord is a sympathetic-enough figure who did what he did for admirable-enough reasons that a jury might well refuse to convict even if charges were brought.

19 responses to “The Rocketeer (1991 film)

  1. Would anything change if the movie was set after December 11th 1941 (Making Sinclair not just a spy, but a spy for a nation the US was at war with)?

  2. Seems you flipped the zero and the 1 in the link to the previous Rocketeer article

  3. ^_^ As per my question when you posted about the comic book, would Secord be on the hook for all of the damage caused at the beginning by the gangster’s shooting up his and other planes?

  4. On rare occasion a movie adaptation actually is clearly superior to the original material*. Actually that brings to mind the a legal question from a series called Death Note. Would you consider manga if it was clearly set in present day, directly involved the U.S. and it was a simple situation?

    *Not more popular. Many movies can be more popular even if an inferior work.

    • Sure. The main problem with anime and manga is that the settings are usually either outside the US (where our access to research materials is limited) or outside the real world (e.g. fantasy, sci-fi set in space). Well, that and we don’t really follow it, so unless people bring it to our attention we’d never come across it.

      • It’s pretty simple so it can be just put here. In the series Death Note* a Japanese teenager gets his hands on a book where, whenever he writes a person’s name and envisions their face, they will die shortly after. He uses this power to kill hundreds (at the time of the events in the series) of criminals, most of them in Japan and the U.S.A. A detective investigating the case in Japan suspects that the killer has infiltrated the Japanese police and so asks the F.B.I. to assist him in investigating the Japanese police. They do so, but the killer discovers and kills them. After the agents are killed and their actions made public the director of the F.B.I. tells the detective that no more agents are coming to help and that the director is going to have to explain the disaster to Congress.

        My question is this. Does the F.B.I. have the legal authority in the U.S. to carry out this operation, who do they need to notify (since it seems to be suggested that only the FBI knew of the mission), and are there any treaties with Japan that cover this?

        *For anyone interested I strongly recommend the two live action movies over the manga (graphic novels) and anime. The story makes more sense and has a more satisfying conclusion.

  5. How does the defense of necessity play against committing other federal crimes? If Secord had handed over the jetpack un-sabotaged, he might have been committing treason. Sinclair was an enemy agent who had led uniformed enemy soldiers against Federal officials in armed conflict. Isn’t handing him the jetpack providing “aid and comfort” since he’s aiding Sinclair in escaping and assisting the Nazi cause? Or does that just help the likelihood of jury nullification?

    • That is an interesting question. Following the 1938 decision in Erie Railroad v. Tompkins, the Supreme Court abolished the general federal common law, leaving only certain narrow areas where the federal courts were free to maintain and develop common law rules. The date of the decision is relevant because it’s the same year the movie is set in, so it likely just barely affects the outcome here. Anyway, there is no federal statutory defense of necessity, and the case law is unclear. See Stephen S. Schwartz, Is There a Common Law Necessity Defense in Federal Common Law?, 75 U. Chi. L. Rev. 1259 (2008). So the answer is…maybe? It’s especially hard to say what the result would have been in 1938.

      As for aid and comfort: the US wasn’t at war with Nazi Germany until 1941, so I don’t think that would come into play. And even if Secord couldn’t claim necessity as a defense to murdering Sinclair, he’d have a much better chance claiming duress as a defense to handing over the rocket. Duress is undisputedly available as a defense to federal crimes, at least today. See Dixon v United States, 548 US 1, 5 n 2 (2006).

      • Isn’t espionage against the United States a crime whether or not we are at war?

      • Still probably isn’t going to protect you. Usually espionage is not going to be grounds to murder you.

      • “I wasn’t trying to kill him, I was just rendering the classified technology inoperable to prevent it from being used against the U.S.A.!”

  6. James Pollock “I wasn’t trying to kill him, I was just rendering the classified technology inoperable to prevent it from being used against the U.S.A.!”

    “The gum is a good luck charm, like a rabbit’s foot. Taking back my gum is like wishing him bad luck. A wish is not a crime.”

  7. I was going to commet in regards to espionage. Sinclair is clearly engaged in espionage on American soil and I imagine espionage is a felony. I don’t know about the statutes in California around 1938 but isn’t it an acceptable defense in some jurisdictions (federal in this case) to kill someone in the act of a felony? Also if I recall correctly, there were German troops on the ground under the zepplin who were gunned down by gangsters and FBI, which to me constitutes an act of war rendering the killing of a foreign spy moot. My last point is even if it was murder, once the story hits the papers, no prosector is going to charge a national hero with killig the enemy. (I do recall the at the end of the movie the papers reported some cover story but I assume a deal was made for Secord’s silence on the matter)

    • Your defense to killing someone is pretty limited. As for the soldiers, they weren’t the spy trying to flee nor did they deliberately sabotage the spy’s machine to cause his death. Even if their presence on American soil started a war (which it didn’t) that doesn’t create an automatic immunity for private citizens.

      • James Pollock

        I think he’s on the right track. Some states do allow use of reasonable force to prevent some felonies (espionage is probably not one of them, unless, of course, you are one of MI6’s elite operatives).
        If you are being robbed, and you shoot the robber, you have a pretty good defense. If you are a bystander, and you come across a robbery, and you shoot the robber, you have a pretty good defense. If you are a bystander, and you are mistaken as to which member of the scuffle is the robber and which the intended victim, and you shoot the guy who is NOT the robber, you are in some pretty serious trouble (both civil AND criminal.) If you shoot a guy in the leg to keep him from jaywalking, you are probably not going to get that weapon back.

  8. I don’t remember if Secord knew there were German troops on the ground but if he did I’m sure he could argue that a reasonable person would feel that a state of war existed (whether Congress had declared it yet or not) and it was his duty as a citizen to use all force possible to repel the invaders. And as a spy for the Germans, Sinclair was just as much an invader as if he were a regular soldier.

    • And he would have known that the person in question was an active combatant. Spies, legally, do not count as the same thing as a soldier. That has been made very clear many times in many instances. In the recent Russian spying case in the U.S. the spies in question were not treated as invading soldiers.
      As for being a private citizen trying to repel invaders, I’m not sure how much (if any) protection that would provide and he certainly wasn’t attempting to repel any invasion when took deliberate action to cause the death of someone attempting to flee.

  9. “That’s all well and good, but ‘I thought he might use it for evil!’ is not going to fly.”

    Well, Neville Sinclair didn’t fly either, at least not for very long. Par for the course. (Sorry, that terrible joke just had to be made.) 😉

    But to make this post a little less groanworthy, though, I have a relevant follow-up question: the end of the movie has Jenny returning to Peevy the detailed schematics of the rocket pack he’d drawn up and that had been stolen from him by Sinclair’s henchman Lothar. If Peevy were ever to build a second rocket pack from those blueprints, could Howard Hughes have sued him for intellectual property theft?

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