Mailbag Roundup

Teaching and research have kept me very busy this semester, but I wanted to present a roundup of questions I’ve received and answered via email recently. There are lots of spoilers below, so be warned.

I. The Flash Season 2: Henry Allen’s Acquittal, Henry Allen’s Medical License, and Inter-Earth Jurisdiction

Levi asks:

1.) In the first episode of The Flash season 2, Henry Allen, Barry Allen’s father, is cleared for the murder of his wife Nora after the real killer admits to the crime in a video will after the killer’s death in the Season 1 finale.

My question is, what is the legal viability of such a confession in getting Henry’s name cleared?

There are some tricky evidentiary issues here, especially now that the real killer is himself dead, and in any event the explanation—though we know it to be true—is preposterous to just about anyone outside of Star Labs.  Simply having a video of someone claiming to have done it is pretty unlikely to be enough, at least in the real world.

2.) Near the end of the same episode, it’s mentioned that there might be a way for Henry to get his medical license back, the now free man having formerly been a physician before being jailed and thus losing his license.

What would be the legal gobbledygook involved in getting his license back? Keep in mind that this all takes place in Central City, which in the show’s continuity is located in Missouri.

Missouri law provides for automatic revocation upon a felony conviction, but also automatic reinstatement if that conviction is set aside.  Mo. Rev. Stat. 334.103.  So I suspect he would just have to inform the state board of registration that the conviction was set aside.

3.) Finally, Season 2’s main villain, Zoom, is a resident of Earth-2. He is responsible for multiple murders within the borders of Central City on both Earth 1 (where the main cast resides) and Earth 2.

As a resident of Earth 2, how would prosecutors on the two realities go about prosecuting Zoom? Since he’s (presumably) a U.S. citizen on both worlds, who would have ultimate jurisdiction over him?

Jurisdiction would exist in whatever reality he happened to be in at the time he committed the crime. I don’t think this particularly complicates matters. I guess he could try to argue that he should be deported to Earth 2 rather than incarcerated on Earth 1, but I think a court would treat that as an insanity argument, and not a very good one at that.


II. MCU’s Raft and cruel and unusual punishment

Duskdweller asks:

So, at the end of [Captain America: Civil War], Thaddeus Ross is not-quiet-gloating to Helmut Zemo, and one of the things he mentions is twice-a-day bathroom privileges. I’m presuming the Raft doesn’t have in-cell toilets like regular jails due to being modeled on it’s comics counterpart, where there are people who could flush themselves if given the opportunity…. I’m also taking it as given that prisons in the US have in-cell toilets to avoid running afoul of the 8th amendment, since I know I’d get rather uncomfortable only being allowed to go twice a day. … Would [the UN Convention Against Torture] apply to bathroom breaks, though–or to the Raft at all if it’s in international water? Presuming this is a problem for the cinematic Raft, would it still be a problem with the comics Raft, or would the argument about it being a potential escape risk fly, even for inmates who don’t have flush-myself powers?

The basic rule with the 8th Amendment is that a sentence or prison condition is okay as long as it serves some conceivable penological purpose*. What isn’t allowed is “wanton and unnecessary infliction of pain”, disproportionate punishments, or arbitrary punishments.

* Broadly speaking, penological purpose means that it was done for prison management purposes or furthering one of the accepted theories of criminal justice.

So when considering the bathroom privilege restriction, we have to ask if it has some legitimate purpose apart from simply making the inmates suffer. In the case of the Raft, the inmates are not just dangerous, they are also often inherently dangerous (i.e. have special abilities that can’t be removed). Escorting them to the bathroom is risky, and free access to the bathroom might make it easier for them to plan a riot or escape.

That may not be a very strong argument, though, since most of the inmates can’t actually escape via a toilet, but that’s the argument: it’s not an unnecessary punishment, it’s a necessary security measure.

On the other hand, referring to it as a ‘privilege’ suggests that it’s something that could be taken away, or at least reduced to once per day. That would almost certainly be going too far, akin to withholding medical care, which has been held to be a violation of the 8th Amendment.

International law is a whole other thing, but suffice to say that the CAT hasn’t been very effective at curbing real-world US prisoner abuses, so I don’t know that it would be much more effective regarding the Raft, especially if multiple countries were involved.

III. “I won’t kill you, but I don’t have to save you!”: SHIELD Edition

Derek writes:

A recent Agents of SHIELD episode raised a question among friends online. Well, more like it started an argument, but I digress.

In the episode, the SHIELD Agents are involved in a fight with anti-Inhuman terrorists in a fireworks warehouse. While the terrorists were using regular firearms, the SHIELD Agents were using “icers”, guns with ammo which (allegedly) knock the target out for a few hours.

During the fight, a fight between two fire-based beings [one of whom was working with SHIELD but was not himself an agent] caused a fire and set the entire factory into KA-BOOOM mode. As the SHIELD Agents rushed out of the factory, reaching safety just in (dramatic) time, they left behind unconscious members of that terrorist group.

The question is, should those SHIELD Agents be held responsible for not saving the lives of those men?

The fact that the fire was started in part by someone working with SHIELD complicates matter.  It’s arguable that the agent(s) created the peril, and so they had a duty to undertake reasonable efforts to rescue the people in peril. Of course, it may have been unreasonable to even try to rescue them, depending on how imminent the explosion was.

Beyond that, no, there would be no duty to attempt a rescue. Generally speaking, police and firefighters don’t owe anyone a duty to rescue or aid. The police can choose not to enforce a restraining order, leading directly to the deaths of three children, without consequence. Castle Rock v. Gonzales, 545 US 748 (2005). The state can also ignore repeated, obvious signs of child abuse without consequence. DeShaney v. Winnebago County, 489 US 189 (1989). It’s different when police or firefighters actively harm someone, but ‘mere’ inaction pretty much never creates liability.

16 responses to “Mailbag Roundup

  1. I think the bathroom limit could be justified with someone like Hydroman who can just flow out, or with someone like Lex Luthor or Dr. Doom who could probably turn a toilet into a bomb if they wanted to. It’s hard to imagine any real need to restrict Zemo that way.

    • Even for those who could flow out, there are toilets that do not involve being hooked up to the plumbing. A super-prison could default to composting toilets that can be emptied without opening the cell, (say by building them into a wall that backs onto a service corridor).

  2. Miguel, Irvine CA

    hmm… My immediate thought on hearing the talk about villains flushing themselves away would be to use self-contained chemical waste tanks. Like camper toilets or port-a-potties. When the prisoner is out of their cell for another purpose, or at least under direct observation, they would close a valve connecting to the toilet and only then pump out the tank.

  3. A couple of points:

    1) It’s Everett Ross, not Thaddeus, gloating to Helmut Zemo at the end.
    2) The holding facility in Berlin where Zemo is removed from Russia for the time being is run mainly by the Germans, with Americans and others being granted access as a co-operative courtesy, by the looks of things.
    3) Seeing as the Raft is being set up to hold prisoners from multiple nations due to the Sokovia Accords being a matter of international law – those 117 initial signatory nations making it so – there are likely a whole mess of human rights/international law complications about the running of the Raft. Add in the return of SHIELD to public respectability as the enforcement mechanism of the Accords in several signatory nations…

  4. “Keep in mind that this all takes place in Central City, which in the show’s continuity is located in Missouri.”

    That can’t be right, since Central City has a seacoast. The first time Barry travels time, it is to avert a tsunami which threatens Central City.

    • True, but that’s also where the town is in the comics. I understand the discontinuity, but this is hardly the first time that TV-land has gotten it wrong.

      • And it has a harbor in the comics too. When did it get set in Kansas? Back in the Bronze Age Cary Bates located it in Ohio (where Athens is in our world).

  5. “The fact that the fire was started in part by someone working with SHIELD complicates matter. It’s arguable that the agent(s) created the peril, and so they had a duty to undertake reasonable efforts to rescue the people in peril.”

    I think this is the right answer to the question. One of the exceptions to the “no duty to rescue” rule is “unless you created the hazard”. You can’t push someone who can’t swim off the dock and then say “Hey, I have no duty to rescue” when you get sued for the wrongful death. To use the formulation often used in cop shows, if you’ve shot the bad guy, and just stand there watching him bleed to death because you know that if you save him, he’ll just get off on a technicality and go right back to hurting people again… you’d better hope you’re not on surveillance.

    I think the line of argument I’d want to take if I were S.H.I.E.L.D.’s general counsel is that, well, there WOULD have been a duty to rescuse, but the cause of action for breach of a duty to rescue is negligence, and liability for negligence is cut off by intervening criminal act.

    For people to whom it is important that S.H.I.E.L.D. remain the “good guys”, perhaps it is best to assume that, offscreen, other S.H.I.E.L.D. agents were rescuing the bad guys before the big boom, and all escaped safely.

    • “For people to whom it is important that S.H.I.E.L.D. remain the “good guys”, perhaps it is best to assume that, offscreen, other S.H.I.E.L.D. agents were rescuing the bad guys before the big boom, and all escaped safely.”

      I’ve seen that episode and…yeah, there definitely wasn’t the case. In fact, they were working with Ghost Rider (the one who started the fire), and he IS shown saving one perp (the only named one), but the rest scrammed after they realised the place was about to blow without bothering to save the terrorists in their immediate vicinity.

      Still, I don’t see too much of an issue here. The “icers” seem more of an “preferred” weapon rather than “we never, ever kill” rule. They have certainly killed other people before.

      I don’t think saying that Ghost Rider was the one who imperilled them is fair- the context is that SHIELD was swooping in to investigate an incident which turned out to be a crime in progress- the terrorists in question were about to murder two people- and in the process Ghost Rider, while battling another fire-themed villain- set off the fireworks in the factory they were in.

      Basically, SHIELD did not start that fight and weren’t even sure there would be fighting at all until they showed up, and they had no control over the location or the opponents they were facing.

      Much more serious is the later episode where Ghost Rider flat-out murders someone in prison (in fact Ghost Rider is a vigilant serial killer in this series); this is shown to be a much bigger issue and nearly gets him arrested, until it’s shown that they need him for a mission and that they don’t actually have the capacity to hold him if they wanted to given the nature of his powers (it’s also shown that he is semi-posseseed; even if the host is co-operative, the demon inside him will NOT let SHIELD hold him prisoner). So, SHIELD is certainly in trouble for working with a killer, but I don’t think they are liable for the fireworks thing. That was unfortunate, but also unintentional.

  6. Even at best, S.H.I.E.L.D. is going to have vicarious liability for “negligent hire”. for anybody harmed by GR after he begins working for S.H.I.E.L.D. GR wouldn’t have been in the prison if S.H.I.E.L.D. hadn’t put him there, to use your example.
    So the liability is there… is there a defense? Say, necessity? At first blush, I don’t think so. Even with the deference courts tend to show law-enforcement agencies. And no, the fact that Coulson was off on his own and NOT following S.H.I.E.L.D.’s orders doesn’t, well, shield S.H.I.E.L.D.

  7. Depending on the medical license and the various rules of the state, a physician might have to complete CEs – Continuing Education courses as a requirement for reinstatement. After many years of having one’s license revoked, there would be quite a number of them to do – but many services allow online courses nowadays so a few weeks with a computer getting up to speed would do him.

  8. Just rewatched the scene. Robbie didn’t actually start the fire directly. “Hellfire” did. Robbie had him contained against a cinder block wall, standard ignition time is 20 minutes. He attempts to evade capture by using his powers to blow up the wall. The resulting explosion of which is what ignites the fireworks. Coulson and crew see the explosives in close proximity and simply to not have the ability to effect a rescue. I’d like to also point out it’s questionable if Robbie was even acting in an official capacity or if he was there in an advisory role. He never went through SHIELD training and was never formally hired, all of which presumably would have been required if the Skovia Accords were indeed law in the US.

    • And speaking of the Sekovia Accords, the Agents of SHIELD are even harboring another artificially intelligent robot just like ULTRON.

      Rules is made to be broken, they say.

      • Stark has been “harboring” an AI since before there were any Sokovia Accords OR Ultron (Jarvis), and the Avengers have been harboring an AI robot more powerful than Ultron (Vision). Thor comes from a technologically-advanced planet capable of creating destructive AI robots, and he doesn’t even have to go though customs when he enters the U.S.

        The Sokovia Accords aren’t about regulating artificial intelligence. They’re about A) requiring superpowered individuals to publicly identify themselves and B) follow directions from the government. They aren’t that effective, seeing as how we know of AT LEAST four superpowered individuals who have not registered their superpowers with a government agency… Daredevil, Jewel, Luke Cage, and the Purple Man (haven’t seen the Dr. Strange movie yet, so I don’t know if he belongs on this list, as well.) (and that’s also ignoring the fact that Black Panther has disclosed his identity to his government… because he IS his government… but might not have disclosed to any U.S. agency before operating in the U.S. Thor, on the other hand, might not even be subject to any Earthly law, as he is not a citizen of any Earthly nation and recognizes the sovereignty of Odin over Midgard.)

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