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