Ant-Man: Robbery vs Burglary vs Theft

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.

I. Robbery

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 personagainst their willby 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?

II. 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.

III. Theft

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.)

20 responses to “Ant-Man: Robbery vs Burglary vs Theft

  1. “Pym’s claim to be Lang’s lawyer … was maybe not the wisest choice on Pym’s
    part.”

    Had he used the near-synonym “counselor” would he have been any better off? No? Pym intended to claim undeserved and unearned privileges the state reserves to lawyers. But Yes? Pym intended to claim only the status as an advisor and friend and the privileges ANY such citizen may exercise on behalf of another.

    • Using the term “counselor” in a legal context has been held in California to be evidence of unauthorized practice of law. People v. Landlords Professional Services, 215 Cal.App.3d 1599 (1989).

      There’s a nice irony about trying to use a technical, semantic argument to defend against a charge of unauthorized practice of law.

  2. Additional question: Could Pym – as part of his process of going into the private sector after leaving SHIELD – have actually obtained a law degree? The story as shown in the cinema does not address the point at all, so I’m on very thin ice to even make the suggestion here.

    • He could have, sure, but as you say the movie doesn’t say so, and I can’t find any reference to Pym ever going to law school or becoming an attorney in the comics. The simpler explanation is that he just lied about being Lang’s lawyer in order to get access to him in jail.

  3. Ori Pomerantz

    What about attorney? Literally, that is simply an agent that represents a principal.

    • That’s one meaning (“attorney in fact”). The other, much more common meaning is that of attorney at law. The crime is not based on the (mis)use of magic words but rather “advertising or holding [oneself] out
      as practicing or entitled to practice law or otherwise practicing law”. Using titles such as attorney, lawyer, or counselor are evidence of that, but the use or non-use of such a title is not conclusive.

  4. If the charges were dropped by Dr Pym, could Scott still avoid prosecution?
    Also how did he *Spoiler Warning*

    Stay out of jail at the end? What did his wife’s fiancée mean when he said, I made sure you were processed correctly?

    • It’s the prosecutor / district attorney / prosecuting attorney that decides whether or not to file criminal charges, not the police or the victim. Prosecutors frequently take a victim’s wishes into account when making that decision, but they do not have to, and they sometimes act completely counter to a victim’s wishes.

      TV shows and movies often talk about “not pressing charges” or “pressing charges” as being something the victim decides, but that’s not how it actually works.

      • Philo Pharynx

        I would think that when a prosecutor files charges against the victim’s wishes the victim would often become a witness for the defense.

      • James Pollock

        “I would think that when a prosecutor files charges against the victim’s wishes the victim would often become a witness for the defense.”

        That just means the prosecutor gets to treat the witness as hostile (ask leading questions).

      • But of course, a word from a friendly cop to the prosecutor indicating that all the cops think this is a good guy and shouldn’t be hassled is a powerful social motivator to the district attorney. Even if the policeman didn’t use any physical or authoritative force.

  5. But Pym delivered the information to Lang about the suit and its location with the express intent that he steal it. Is that sufficient to count as invitation even though Lang did not know since Pym used an intermediary?

    • No. “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.” The “visitor” (Lang) did not have knowledge that the occupant (Pym) was aware of the felonious purpose and did not challenge it.

      The reason why this isn’t a defense is that we don’t want to encourage people to break in to houses in the hope that the owner will turn out to be okay with it. They need to have actual consent, known about in advance.

  6. Interestingly, I’ll add that the villain of the piece at one point enters Dr. Pym’s house uninvited (claiming the door was left open). He might have been intending to kill Dr. Pym – the assassination weapon he was likely carrying at the time would be evidence at least of conspiracy to commit.

    • Pretty sure that the villain explicitly told Hope that he had been intending to kill Dr Pym until he saw her there.

  7. What about a MUCH bigger crime on Lang’s part: the destruction of Pym Industries (or whatever it was called)? And not just Lang, but his buddies and the Pyms also. How long are they going to jail for that one?

    • Philo Pharynx

      Yes, but they have no evidence who did it. The building debris shrank into the microverse. It would be easier to pin it on Cross’ experiments.

      • I think all the gunfire and the tank crashing through the window probably clued the police in that there were outside forces at work.

      • Depending on how much information was publicly or semi-publicly revealed on what was being shown that night – Cross wouldn’t put out a press release that he was showing off the Yellowjacket system if he was going to be selling it to Hydra, but the fact that that level of reception was apparent and his comments to Pym about the stock prices, the company certain has revealed some sort of information about new technologies – that could be at least implicitly taken as the case, especially with Cross’s disappearance and Paxton’s testimony on how he was acting and using the Yellowjacket technology.

        As for the tank, no one outside would have any evidence that it was NOT a weapons system originally from inside the building (even Hope didn’t know that the “toy” on Hank’s keychain was anything but what it seemed to be until moments beforehand, remember). Given that Darren Cross and Hope Pym was in the process of negotiating military contracts (even if the Yellowjacket program was secret, that the company was doing defense work was apparently known and would be easily learned), the lack of remaining physical evidence aside from that tank would suggest that it was part of something was being worked on inside (lending further credence to a wider range of military-grade programs that could have caused such an “accident” – especially after Paxton would be able to testify to Cross’s own prototype having a similar meltdown later).

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