I saw Ant-Man this weekend and thoroughly enjoyed it. Appropriate to the title character, it’s a movie that deals in seemingly small things with larger implications. Largely disconnected from the wider Marvel Cinematic Universe plot arc, Ant-Man is a pleasant break from the Dramatic Global Crisis or Dramatic Cosmic Crisis themes of the Avengers and their individual films.
But you didn’t come here to read a movie review. So let’s take a closer look at a fine legal distinctions that the protagonist, Scott Lang, makes a few times in the movie: robbery versus burglary. Some minor, early spoilers ahead.
Lang considers himself a burglar, a cat burglar specifically. He takes umbrage when others refer to him as a robber, explaining that “robbery involves threat” whereas he abhors violence. As it turns out, he’s not wrong, as far it goes, but his explanation is incomplete. The distinctions between robbery, burglary, and theft are more complex than that. The film is set in San Francisco, so I’m going to refer to California law.
Cal. Penal Code § 211 defines robbery:
Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.
There’s a lot here, but breaking it down we can see that robbery involves:
- the personal property of another person
- in their possession
- taken from their person or immediate presence
- against their will
- by force or fear
Purse snatching and mugging are classic examples. A purse snatcher takes a purse (personal property) from another person while they still possess it, taking it from their person, against their will, by force. A mugger does something similar, except usually they do so by fear.
But note what robbery isn’t. Casually picking up someone’s wallet off of a table when they aren’t looking isn’t robbery. The property is taken from their immediate presence, but not by force or fear.
Similarly, taking something from a person’s home while they aren’t there isn’t robbery. The property may be in the victim’s possession because it’s in their home, but it’s not being taken directly from their person or immediate presence.
Why the distinction? Because robbery is inherently a violent crime. It involves force or the fear of force, and it carries with it both the psychological trauma of that force and the risk of physical harm to the victim. Thus, for centuries it has been considered worse than merely taking someone else’s property when they aren’t around or doing so without force or fear.
So it’s pretty clear that Lang is indeed not a robber. So how about burglary?
Cal. Penal Code § 459 defines burglary:
Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, “inhabited” means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.
That’s much more complicated than the definition of robbery, but it’s mostly technical. Paring it down to the bare essentials, we get something like:
Every person who enters any … building … with intent to commit … larceny or any felony is guilty of burglary.
Much simpler! Some things to note:
- Burglary does not require breaking-and-entering, only entering.
- The larceny or felony does not have to be committed (or even necessarily committable), only intended.
- Perhaps most importantly for our purposes: burglary does not require the taking of property or even the intent to do so. Any (intended) felony will do.
Thus, Lang may be a burglar (he certainly entered buildings with felonious intent), but he also, in his words, “steals shit.” That’s where theft comes in.
Like many states, California has adopted a general purpose theft statute, eliminating the distinct crimes of larceny, embezzlement, and obtaining property by false pretenses. The definition of theft in § 484(a) is even more complicated than the definition of burglary:
Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft. In determining the value of the property obtained, for the purposes of this section, the reasonable and fair market value shall be the test, and in determining the value of services received the contract price shall be the test. If there be no contract price, the reasonable and going wage for the service rendered shall govern. For the purposes of this section, any false or fraudulent representation or pretense made shall be treated as continuing, so as to cover any money, property or service received as a result thereof, and the complaint, information or indictment may charge that the crime was committed on any date during the particular period in question. The hiring of any additional employee or employees without advising each of them of every labor claim due and unpaid and every judgment that the employer has been unable to meet shall be prima facie evidence of intent to defraud.
But we can break it down and simplify it a bit for our purposes:
Every person who shall … take … the personal property of another,
or who shall fraudulently appropriate property which has been entrusted to him or her,
or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person …,
or who causes … others to report falsely of his or her wealth … thus … obtains credit and thereby fraudulently gets or obtains possession of … property … of another, is guilty of theft.
Thus we see that Lang is not just a burglar. He’s also a thief. Entering a building owned by another with the intent to take property within is burglary. Actually taking the property is theft.
IV. Lang’s Crimes
We’ll take it as a given that Lang committed burglary, theft, and probably a host of other crimes when he broke into and stole from Vista Corp. But what about breaking into Hank Pym’s house? On the one hand, this seems like a classic case of burglary (entering the house intending to steal the contents of Hank’s safe) and theft (taking the Ant-Man suit).
On the other hand, Lang returns the suit the next day (and then gets arrested while leaving the scene) and we later learn that Pym wanted him to steal the suit, as a kind of try-out for another job. Would either of these facts make a difference?
A. Returning Stolen Property
This certainly won’t help with the burglary. Lang entered Pym’s house with the intent to commit a felony. Whether he ultimately committed that felony or not, the burglary was complete as soon as he put any part of his body inside the house. What about the theft? Does regretting stealing something and putting it back amount to a defense?
Perhaps obviously, the answer is no. “The fact that a thief … may change his mind and return the property to escape prosecution for the crime, does not relieve him from the consequences of the theft.” People v. Post, 76 Cal.App.2d 511, 514 (1946). It might count as a mitigating circumstance for sentencing, but it won’t affect the underlying issue of guilt.
B. The Owner’s Permission, Unknown to the Thief
This is a more complicated issue. Having permission to enter a building and commit what would otherwise be a felony within is a defense to burglary:
a person who enters a structure enumerated in section 459 with the intent to commit a felony is guilty of burglary except when he or she (1) has an unconditional possessory right to enter as the occupant of that structure or (2) is invited in by the occupant who knows of and endorses the felonious intent.
People v. Salemme, 2 Cal.App.4th 775, 781 (1992). In this case, Pym knew of and endorsed Lang’s felonious intent, but that’s not enough. Lang had to have been explicitly invited:
There must be evidence of informed consent to enter coupled with the “visitor’s” knowledge the occupant is aware of the felonious purpose and does not challenge it.
People v. Sherow, 196 Cal.App.4th 1296, 1302 (2011). This difficulty, as well as Pym’s need for secrecy, may be why Pym didn’t simply disclose to the police that he intended for Lang to break into his house and take the suit.
Thus, Lang is out of luck. He committed burglary even though Pym intended him to.
(Also, in case anyone is wondering, Pym’s claim to be Lang’s lawyer makes him guilty of a misdemeanor under Cal. Bus. & Prof. Code § 6126(a). Claiming to the police not only to be a lawyer but to be a specific person’s lawyer was maybe not the wisest choice on Pym’s part.)