Law and the Multiverse Retcon #10

Time for another installment of the Law and the Multiverse Retcons series, in which I discuss changes in the law (or corrections in my analysis) that affect older posts.  Alert readers will notice that there was no Retcon #9.  This is because there are actually two Retcon #6s, and I have decided to retcon the Retcon numbering system as though I had not lost the ability to count to 10 at some point between kindergarten and last year.

This Retcon addresses some of my shortcomings on a recent episode of the Geek’s Guide to the Galaxy podcast, specifically my discussion of Man of Steel and Superman’s possible civil and criminal liability for the destruction of Metropolis.  I saw the movie when it was released and had forgotten several key plot points that affect the legal analysis.  Thanks to Damon for pointing out these issues!  Some spoilers for Man of Steel follow.

Damon points out two claims that I made that aren’t really born out by the facts of the movie:

1. Zod’s intentions were unknown and couldn’t be verified [Ed. note: and thus it would be difficult for Superman to argue self-defense or defense of others]

2. Superman couldn’t easily change the venue of the fight [Ed. note: and thus it could be argued that Superman did not take reasonable care to avoid collateral damage, even if he was acting in self-defense or defense of others]

With respect to Zod’s intentions, while Zod’s monologue might not have been within human earshot, he was already an enemy combatant. Lethal force or all measures were already permitted by the US Gov’t in attacking Zod with missiles, authorizing the creation of the singularity, and cooperating with Superman. … Zod publicly threatened the planet and then actually threatened the planet by activating the World Engine, whose effects were already discernible.

[I]n terms of Superman being able to choose or change the venue, careful examination of the fight shows Zod controlling the pace and location of the entire thing… at no point would Zod have chased Superman, in fact, Zod’s the one who retreats twice (after downing a building and placing a death sentence over all of humanity), showing Superman he couldn’t let Zod alone in Metropolis.

This is all true.  I had forgotten that Zod had not simply asked for Superman to be turned over to the Kryptonians but had threatened the world with destruction if that was not done.  Furthermore, I entirely forgot that Superman had convinced members of the military that Zod was intent on destroying the world anyway in order to remake it into a new Krypton.  I had also forgotten some of the details of the climactic fight, remembering it more as Zod chasing Superman, perhaps because Superman ultimately felt compelled to kill Zod.  A good example of the frailty of memory and the weakness of eyewitness testimony, I suppose.

I. Criminal Liability

In any case, given the more accurate facts, I should revise my legal conclusions.  First, it would be much easier for Superman to make out several defenses, including a defense of necessity or justification (i.e. the lesser of two evils).  Even if countless people were killed, it could still be argued that it was the lesser of two evils compared to letting Zod kill literally every human on Earth.  Second, there may have been some external evidence of the course of the fight (e.g. live video or radar data) showing that Zod was not willing to chase Superman, thus preventing Superman from drawing Zod out of the populated area.  These two points would likely suffice to make a good case that Superman was not guilty of a crime in the conduct of the battle.

II. Civil Liability

As for civil liability: the discussion veered off onto a bit of a tangent about comparative and contributory negligence, but in fact those are irrelevant.  Since Zod was acting intentionally, he would be completely liable for any damage.  Superman would only be liable for damage to the extent that he acted unreasonably under the circumstances.  Given that the circumstances were “killing the last of your own species in order to prevent the destruction of the world at the hands of superpowered genocidal maniacs”, Superman can probably be given a fair amount of latitude.

My ultimate conclusion, however, stands.  If Superman were somehow found liable for even a portion of the damage caused, there’s no point in pursuing a judgment.  The amounts involved are colossal, Superman has no assets (not on this scale), the 13th Amendment prohibits making him work off the debt, and in any case good luck getting him to show up in court.

III. Conclusion

Superman probably isn’t in as much (theoretical) legal jeopardy as we stated in the podcast.  Thanks again to Damon for the fact check!

6 responses to “Law and the Multiverse Retcon #10

  1. That’s an interesting recasting of the domestic-civilian-law issues. However, it just pushes matters into the Law of Armed Conflict (LOAC) and customary international law. This is just a little bit disturbing for a post made on the seventieth anniversary of nuclear warfare…

    General Zod, in particular, has put himself forward as the proper representative of a military force (I think “General” is a big hint).* I doubt that LOAC briefings are any better on Krypton than they are here,** but even if the LOAC briefings never reach Zod they’re going to reach the Terrestrial authorities… and those considerations will be a major part of the decisionmaking process. The Nuremberg trials ensure that at least the Western military will explicitly consider it — at considerable length — before making any decision.

    N.B. Neither Zod nor Superman as persons, not Krypton as an entity, is a signatory to any Terrestrial LOAC conventions. However, there is a thread in the customary international law movement that would impose similar responsibilities when the other party to a conflict is so bound… and I find the utter lack of consideration of potential collateral-damage issues by the military leaders “involved” completely nonsensical and noncredible. Whether the scriptwriters have commited any LOAC violations by advocating genocidal acts and disregard for civilian casualties and damage is, of course, a question for a law review article. <vbeg>

    * Which raises Posse Comitatus issues with his pursuit of Superman, a putative civilian… and whether US military would be allowed to “cooperate” with the law-enforcement function engaged in by a foreign military on US soil in the first place.

    ** Power corrupts. PowerPoint corrupts absolutely.

    • Melanie Koleini

      1) General Zod is intent on committing genocide. He doesn’t care about Earth laws because he plans to kill every human in existence.
      2) The Earth is faced with an eminent threat. What’s technically legal isn’t the top consideration. (Especially with Superman willing to surrender himself.)

  2. Many states, like mine (Texas) have long standing provisions in statute implementing the “Good Samaritan” concept. If internet articles can be credited, all US states have some form or another of such laws, with courts upholding the theory since the 1950s. At common law, I read that a person attempting to rescue another, or intervene during a violent event, had no special protections for damages or injuries resulting from his attempts. But in states with GS statutes, certain classes of people — doctors, nurses, fire fighters and EMTs, veterinarians, Boy Scouts, who knows — who are charged with civil liabilities can claim in defense that they were acting in good faith to prevent losses of life and property and gratuitiously and reasonably exercised their talents and resources in the way any other reasonable person in similar circumstances might. States, in order to encourage such altruism, shield the Samaritan.

    So, in New York, is Superman a member of a protected GS class of first responders? For that matter, and harking back to a recent similar article, does the UK have GS-ish statutues and would Thor be in such a class if sued for his actions or in-actions during events described here http://lawandthemultiverse.com/2015/06/16/whos-paying-for-all-of-this-thor-the-dark-world-part-2/ ?

    • Melanie Koleini

      My understanding of GS laws are comply different than what you outlined.
      My understanding is that for GS laws to come in to play, the person can’t have a DUTY to rescue. This means firefighters aren’t covered by GS laws when they are rescuing people from a burning building but a neighbor would have GS protection.

      This doesn’t mean firefighters, police, EMT, military personnel and possibly super heroes acting in concert with the government don’t have legal protections. It just means Good Samaritan laws may not apply.

  3. “My understanding of GS laws are comply different than what you outlined.”

    I stipulate that various jurisdictions have completely different versions in statute implementing the same concept. I guess I’m curious about the general concept, and how even Melanie K.’s understanding apply to comic book heroes.

    Maybe the more direct comparison is the early scene in the movie “The Incredibles” where superhero Bob Parr, in his role of Mr Incredible, leaps to prevent a man from falling from a tall building to his death — which man intended suicide and sues because Bob injured the rescued man’s back.

    MK suggests a firefighter — by which I infer she means an employee of the city, trained and certified at public expense — who while on the job, doing his duty, rescues a man from such a fall has various “qualified immunities” from liability claims, and doesn’t need “good Samaritan” protections. A grey area may exist when an off-duty firefighter — driving to his wedding, to make the analogy more exact — stops to rescue a falling man and induces a back injury.
    Some states may interpret the firefighter DOES have a duty to render assistance, but some may not. If he has no job-related duty to stop does the off-duty firefighter continue to enjoy the protections awarded him, as he uses the training and experience provided by the city government to conduct an off-duty rescue? Is he liable for injuries (or damages) resulting from attempted rescue? (“I was trying to stop the car fire, but you dragged me away, leaving my Corvette to explode! You owe me a new car! )

    It seems to me that Good Samaritan laws and the general policy encourage those with rescue resources (such as training) to deploy those resources even when not officially acting on behalf of the government. This, whether the resource is provided by the city (like a firefighter) acquired privately (like a doctor or nurse) or naturally (like a strong man attempting to shift a heavy weight off an accident victim.)

    For this hypothetical I assert neither Bob Parr or Clark Kent enjoy any government agent qualified immunity protections and are acting privately. But inasmuch as they are trying to prevent damage and injury (however inadequately) can they mount credible Good Samaritan claims to legal immunities and protections?

  4. Morgan Walter Champion

    I’d also point out that Bob Parr, unlike Superman, cannot fly (or at the very least, never demonstrated this ability in the Incredibles). Thus he cannot match velocities with a falling person, the way a flying being could, and thus if he rescues someone by grabbing them, he runs the risk of damaging the person in question.

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