Author Archives: James Daily

Awake and Doctor-Patient Confidentiality

Posted on April 13, 2012 | 7 comments

Today’s post was inspired by a question from Andrew, who wrote about the television show Awake: “In the most recent episode, [the main character, a police officer] is involved in a hostage situation, and a psychiatrist is in the room, and talks about the hostage taker’s mental health in detail. Given the circumstances, was that legal?”

This is a pretty complicated question.  First, we have to determine which law applies, and there are several to choose from.  Often when people talk about doctor-patient confidentiality they are actually referring to the physician-patient privilege, which is a rule of evidence in some jurisdictions, including California.  Cal. Evid. Code § 994.  Since this incident didn’t involve the psychiatrist testifying in court, it doesn’t apply.

Apart from the evidentiary privilege, there is also a duty of confidentiality, which is both an ethical and a legal duty.  At the state level, California has the Confidentiality of Medical Information Act, and at the federal level there is the Health Insurance Portability and Accountability Act, better known as HIPAA.  Both of these apply in this case, but there are exceptions to both.

California was one of the first states to recognize that therapists have an affirmative duty to warn others when a patient may have violent intentions.  Tarasoff v. Regents of the Univ. of Cal., 17 Cal.3d 425 (1976).  The Tarasoff case is fairly famous, and is frequently discussed in law school torts casebooks.  Notably, however, the Tarasoff case was decided before the CMIA was passed, and the CMIA does not contain an exception for protecting others from a violent patient.  This left therapists in a tricky position, relying on the exception in the evidentiary privilege to find an implicit exception in the duty of confidentiality.

This recently changed with the passage of AB 1178 in 2007, which amended the CMIA to allow disclosure of medical information

consistent with applicable law and standards of ethical conduct, by a psychotherapist … if the psychotherapist, in good faith, believes the disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim or victims, and the disclosure is made to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.

Cal. Civ. Code § 56.10(c)(19).  As it happens, this exception is taken almost verbatim from a similar exception in HIPAA.  From 45 C.F.R. § 164.512(j):

A covered entity may, consistent with applicable law and standards of ethical conduct, use or disclose protected health information, if the covered entity, in good faith, believes the use or disclosure:
(i)(A) Is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and
(B) Is to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat;

I didn’t do a detailed review of the case law, but I suspect disclosing a patient’s mental health information to a police officer handling a hostage situation probably counts.

So, to sum up, the exceptions to the state and federal duties of confidentiality allow the psychiatrist to disclose the information, and the Tarasoff case imposes a duty to do so.  It looks the psychiatrist was in the clear.

7 Comments

Posted in mailbag, television, torts

Superhero Runaways

Posted on April 12, 2012 | 13 comments

Today’s post was inspired by a question from Frank, who asks “Cloak and Dagger are teenage runaways. If they could catch them, could the police forcibly separate them, incarcerate them, remand them to their parents and/or institutionalize them as wards of the state?”

Cloak and Dagger aren’t the only examples.  There are several other runaway superheroes, including, naturally, the Runaways.

This is a pretty interesting question.  I didn’t know the first thing about the law of runaway children, so I had to do a bit of research.  I decided to focus on Cloak and Dagger, since the Runaways all fled (and ultimately defeated) parents who were supervillains, whereas Cloak and Dagger were more ordinary disaffected teenagers.  As it happens, Cloak and Dagger both ran away to New York City, so we’ll primarily look at the law of New York.  Cloak is originally from Boston, and Dagger is from Ohio, which is also relevant.

I. What Exactly are Runaways?

In New York a runaway is a “child under the age of eighteen who has run away from home without just cause.”  N.Y. Fam. Ct. Act § 718(a).  A police officer may return a runaway to the child’s parent or another legally responsible person or may take the child to a state certified facility. N.Y. Fam. Ct. Act § 718(a), (b).  This requires only the police officer’s reasonable belief that the child is a runaway.  Id.

The cases and commentaries don’t really explain what “just cause” would be, but presumably fleeing abuse, neglect, or a similarly dangerous situation would be acceptable.  Thus, the Runaways might not actually have been runaways, at least under New York law.

Cloak and Dagger don’t seem to have that excuse, however.  Cloak ran away out of guilt over the death of a friend, and Dagger ran away because she felt her mother was too busy for her.  Not great situations, but probably not enough to justify running away from home, either.

II. So Now What?

If Cloak and Dagger were determined to be runaways, they could be returned to their parents or to a state facility.  But their parents don’t live in New York.  A state government generally has no authority outside of its borders, so how could the New York authorities legally transport them back to Massachusetts and Ohio, respectively?  Enter the Interstate Compact for Juveniles.

The Compact allows the child’s home state (called the “requisitioning state”) to request the child’s return from the state the child ran away to (called the “asylum state”).  The requisition includes “the name and age of the juvenile, a determination that the juvenile has run away without consent of a parent or legal guardian, and that it is in the best interest and for the protection of the juvenile to return to the requisitioning state.” 2 Children & the Law: Rights and Obligations § 8:53.

Nearly all states have adopted the Compact, including Ohio, Massachusetts, and New York.  Note that the current version of the New York law is set to expire in 2013 and will be replaced with the most recent version of the Compact.  See 2011 Sess. Law News of N.Y. Ch. 29.

So, perhaps unsurprisingly, the result is that both Cloak and Dagger could be returned to their home states.  This is separate from the issue of juvenile delinquency, however, and actually involves a different age standard.  Cloak and Dagger have engaged in a fair amount of vigilantism over the years, often involving the deaths of supervillains and more ordinary criminals.  In New York, for purposes of juvenile delinquency, juveniles are generally children over the age of 7 and under the age of 16.  N.Y. Fam. Ct. Act § 301.2.  When Cloak and Dagger ran away they were 17 and 16, respectively, which means they would likely be tried as adults.  I’m not too familiar with their exploits, but from what I’ve read they could be looking at some serious jail time.

III. Conclusion

As runaways, Cloak and Dagger could either be returned to their parents in Massachusetts and Ohio or placed in a state-certified facility in New York.  But as potential criminal defendants, they would likely be tried as adults.  In any case, they would almost certainly be separated.  The only reason they might not be is that consuming the energy produced by Dagger’s superpower is quite possibly the only legal way for Cloak to stay alive.

13 Comments

Posted in criminal law, family law, mailbag

Superheroes and Jury Duty

Posted on April 5, 2012 | 62 comments

Today’s post was inspired by an email from Marcus, who asks “what would happen if a superhero was summoned for jury service in his/her secret identity, and the case turned out to be one where the character had been involved as a crimefighter and might even be expected to appear as a witness?”

As Marcus points out, this is more of a problem for some superheroes than others.  For example, Peter Parker often photographs Spider-Man in action, so he couldn’t serve as a juror in such a case, since he would be a potential witness.  But what about a case he didn’t cover as a photographer?  And what about other superheroes like Batman who generally maintain significant distance from their secret identities?  To set the scene here, let’s talk a little about jury trials and the jury selection process.

I. Jury Trials

Unlike most of the world, the United States is big on jury trials for both criminal and civil cases.  The Sixth Amendment gives criminal defendants the right to a trial by jury, though not all criminal charges qualify.  “Petty offenses” (i.e. misdemeanors with a maximum penalty of six months imprisonment) don’t qualify for a jury, at least under the federal Constitution.  Duncan v. Louisiana, 391 U.S. 145 (1968).  So superheroes who bust only very small time crooks wouldn’t have so much to worry about, but most superheroes go after serious criminals.

A defendant could also waive his or her right to a jury trial, but most criminal defendants don’t do that.  That is, they often waive their right to a trial entirely by a plea bargain, but if they do go to trial they usually go with a jury rather than a bench trial conducted by the judge alone.

The Seventh Amendment gives the right to a jury trial in civil cases, but that right is more limited than the Sixth Amendment right.

II. The Jury Selection Process

So, now that a jury has been called for, how do they get picked?  The answer is: it’s complicated and varies from jurisdiction to jurisdiction, but most states are modeled after the federal system.  Under the Federal Jury Selection and Service Act of 1968, each district court must develop a jury selection plan, which must

(1) either establish a jury commission (consisting of one citizen and the clerk of the court) or authorize the clerk to manage the jury selection process;

(2) specify whether the names of prospective jurors are to be selected from voter registration lists or the lists of actual voters of the political subdivisions within the district or division, and prescribe other sources when necessary to achieve the objectives stated above; 

(3) specify procedures for selecting names from those sources designed to ensure that each political subdivision is substantially proportionally represented in the master jury wheel;

(4) provide for a master jury wheel into which the names of at least one-half of one per cent of the names on the source lists are placed;

(5) specify those groups of persons or occupational classes whose members shall on individual request be excused from jury service because such service would entail undue hardship or extreme inconvenience;

(6) specify that active members of the armed forces, members of fire or police departments, and members of the executive, legislative or judicial branches of government who are actively engaged in the performance of official duties are barred from jury service on the ground that they are exempt;

(7) fix the distance beyond which jurors shall on individual request be excused from jury service on the ground of undue hardship in traveling to where court is held;

(8) fix the time when the names drawn from the jury wheel shall be disclosed to the parties and to the public; and

(9) specify the procedure for assigning persons whose names have been drawn from the jury wheel to jury panels.

Wayne R. LaFave et al., 6 Crim. Proc. § 22.2(a) (3d ed.).

Already we can see a couple of potential ways out for our superheroes.  First, they can decide not to register to vote, although that’s not very heroic, and it may not help if the district supplements the jury rolls with driver’s license records, utility company lists, and other sources.

Alternatively, superheroes could live and register to vote in a different district than the one they fight crime in.  For example, supposing Gotham is actually New York City, then if Wayne Manor were located on eastern Long Island then it would be in the Eastern District of New York rather than the Southern District, which is where the city is (here’s a map).  Thus, Bruce Wayne wouldn’t get called for jury duty in the Southern District, and presumably there are a lot fewer supervillains on the eastern half of Long Island than in the city, so the odds of him getting called up for a supervillain case in the Eastern District are slim. Alternatively, if Gotham is in New Jersey, then Wayne Manor could be in New York, or vice versa.  A similar approach can work for state courts.

Of course, this depends on cooperative geography and having enough money and resources to “commute to work,” so to speak.  Another possibility is to have an exempt occupation.  The federal courts exempt active duty armed forces, professional fire and police departments, and full-time public officers of federal, state, and local governments.  State jury exemptions vary, but most are similar to the federal ones.  Historically there were exemptions for attorneys, doctors, and other occupations, but those have mostly been done away with, which eliminates most of the easy outs for superheroes.  Most superheroes can’t juggle being a superhero with being an active member of the armed forces, a full-time cop or firefighter, or a full-time public officer, so this route probably won’t work.

As a last resort, a superhero (or in this case more likely a super-antihero) could intentionally incur a felony conviction.  Most states and the federal government permanently exclude convicted felons from serving on juries.  Obviously this is a drastic step, and very few superheroes would do such a thing just to avoid the possibility of jury duty, but some superheroes may have secret identities that have run afoul of the law already for other reasons, and they may not have to worry about jury duty, depending on where they live.  For the record, we do not recommend this approach, even to fictional characters.

But assuming our superhero hasn’t avoided being selected in the first place, what do they do once they’re called up?

III. Summoned for Jury Duty.  Now What?

At this point, we’re afraid there isn’t much to be done.  The superhero could try to plead hardship or inconvenience (e.g. by claiming that they are needed at work or by feigning illness), but that often results in a delay rather than an exception.  They could refuse to show up, but that’s a good way to get fined or worse, which hardly seems very heroic.

They do have one last way out, and that’s the voir dire process.  Voir dire is the process by which the parties (e.g. the prosecution and the defense) ask prospective jurors questions and, optionally, eliminate them.  Each side gets a certain number of “peremptory” challenges, which are prospective jurors they can dismiss for whatever reason they like.  After that they can challenge an unlimited number of prospective jurors “for cause,” but each challenge for cause requires the assent of the judge.  Exactly what constitutes adequate grounds is beyond the scope of this post, but it’s usually cases of serious bias (e.g. a belief that the defendant is guilty until proven innocent) or a refusal to follow the law (e.g. would refuse to find the defendant guilty even if the case was proven beyond a reasonable doubt).

If our superhero has an honestly held belief that might get them tossed out, then that could work.  The problem is that most superheroes clearly believe in the justice system, at least in theory.  They could lie, but again that doesn’t seem very heroic, and it’s a crime anyway, since prospective jurors are put under oath.  One possibility is to raise the point that they don’t believe that the police are capable of handling crime effectively.  This is clearly true, or else why would they be a superhero?  And it may show sufficient bias against the police that the superhero would get tossed out of the jury pool.

IV. Conclusion

Avoiding jury duty is difficult, even for a superhero.  Some may be able to avoid it by separating where they live and where they “work,” but those who do get called up may find it very tricky to get out of it.  Faced with a situation in which their secret identity may be called as a witness in the same case, feigning illness might be the least bad option.  The result would probably be a delay rather than an exception, but hopefully lightning wouldn’t strike twice.

62 Comments

Posted in constitutional law, criminal procedure, mailbag

Superheroes and the Duty to Rescue

Posted on April 2, 2012 | 35 comments

We’ve talked before about the duty to rescue, but there are a couple of facets of the issue that we haven’t addressed.  Plus, this issue came up (indirectly) in the most recent episode of Grimm, and we’ll talk about that, too.  First, a brief summary of our prior post.

I. The Story So Far

In general there is no duty to rescue or aid others, so superheroes aren’t on the hook (except perhaps morally) if they decide not to rescue someone, even if they could do so very easily.  However, once a rescue is attempted, a superhero must carry out the rescue with ordinary care.  Similarly, abandoning the rescue partway through may leave the superhero liable.  In short, they don’t have to rescue anybody, but if they try they must do so with reasonable care and they have to follow through.

There is, however, an exception for people in “special relationships.”  For example, parents have an affirmative duty to rescue their children.  However, it is very, very rare that the police or other government workers are considered to have such a special relationship with the victim of a crime or other endangered person, so even superheroes who work with or for the government will rarely be treated differently than if they were working as a private citizen.

Finally, at least five states (Massachusetts, Minnesota, Rhode Island, Wisconsin, and Vermont) have passed laws overruling the common law rule in some circumstances.  For example, 12 V.S.A. § 519(a) provides “A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others.” (emphasis added).  Not only is this a fairly narrow exception to the common law rule, but the maximum penalty for violating it is a whopping $100 fine.  So while Vermont has pushed back against the common law rule, it hasn’t put a lot of weight behind it.  The other state laws have a similarly narrow scope and enforcement mechanism.

Note, however, that “without danger or peril to himself” part.  A lot of superheroes might get caught by that in situations where ordinary people would have an excuse.  There isn’t much that poses danger or peril to Superman, for example, so unless he owes an important duty to someone else or the imperiled person is already being assisted, Superman might find himself quite busy in Vermont.  This is especially true given that Vermont’s law, unlike the others, doesn’t require the rescuer to be at the scene, merely to “know that another is exposed to grave physical harm.”  Given Superman’s superhearing and other heightened senses, he is probably aware of most such situations in Vermont most of the time.  In fact, Superman should probably just stay out of Vermont entirely.

So those are the basics.  But what about people that are injured during a fight between a superhero and a supervillain?  Does the superhero owe them a duty of rescue or aid?  The answer is…maybe.

II. Injured Bystanders and the Duty to Rescue

The long-held common law rule was that there was a duty to rescue if one was legally responsible for the injury.  “If the actor by his tortious conduct has caused such bodily harm to another as to make him helpless, the actor is under a duty to use reasonable care to prevent any further harm which the actor then realizes or should realize as threatening the other.”  Restatement (First) of Torts § 322 (emphasis added).  Normally, however, superheroes are acting under a legal privilege that allows them to avoid responsibility for a lot of bystander injuries.

For example, suppose Batman throws a gas grenade in order to stop some criminals who are about to attack a civilian, but the wind shifts and the gas causes an injury to a bystander.  Batman would not be liable for that injury unless he realized or should have realized that the gas grenades created an unreasonable risk of causing such harm.  Restatement (Second) of Torts § 75.  No legal responsibility, no duty to rescue.

But the common law has developed, and now many jurisdictions observe a duty to rescue even when the injury was caused non-tortiously.  “If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.”  Restatement (Second) of Torts § 322 (emphasis added).

So going back to our example: under this new standard, Batman would have a duty of reasonable care to prevent further harm to the helpless bystander even though he was legally privileged to cause the harm in the first place.  Of course, “reasonable care” might mean “very little care” if there are more pressing matters at hand, such as a fleeing supervillain to catch or another group of henchmen about to attack other bystanders.  But if there is no other danger, then Batman may be obligated to at least call 911 or take the injured bystander to the hospital.

This rule means that superheroes would have to be very careful to avoid harm to bystanders, lest they be on the hook for preventing further harm, whether from themselves or from others.

III. Grimm and the Duty to Rescue

On the most recent episode of Grimm  (“Island of Dreams”), Nick’s co-worker Sergeant Wu is poisoned by a magical cookie meant for someone else.  Rather than take Wu to the hospital, Nick leaves him in the care of a Fuchsbau* named Rosalee who remembers seeing her father treat a similar case of poisoning several years ago.  As it happens, she (mostly) successfully treats Wu, who seems mostly unharmed.

* As an aside: the mostly nonsensical, horribly pronounced pseudo-German on that show is really irritating.  Hire a consultant, NBC, seriously.

Here, Rosalee (and to a lesser extent Monroe, who assists her) are in a bit of a bind.  What is reasonable in this situation?  Taking Wu to a regular hospital?  Rosalee assures Nick that the doctors won’t know how to treat the poisoning.  But the alternative doesn’t seem much better.  Rosalee’s knowledge is second-hand at best, and she’s not a trained healthcare worker, even among the creatures of Grimm.  And, of course, if things had gone badly, none of them would have been able to explain what had happened.

Initially, Nick himself doesn’t seem to be in any danger of liability, since having Rosalee treat Wu wasn’t Nick’s idea, and in fact he wanted to take Wu to a hospital at first.  But after Wu recovers somewhat, he helps Rosalee and Monroe take Wu to his house so that he can wake up in a familiar environment.  At that point, Nick became party to the rescue and could be liable if a reasonable person would have taken Wu to the hospital at that point.  And that means a reasonable person who knew only what most people know about the world (i.e., nothing about magical cookies or Grimms).

IV. Conclusion

Superheroes need to know the ins and outs of the duty to rescue and its many exceptions and caveats.  In some states superheroes may even have a limited affirmative duty to rescue others, and in Vermont at least that could be a real problem.  Those $100 fines can add up, and failure to pay them could result in a contempt charge.  In Superman’s case the bad PR would probably be worse than the fine or even the contempt charge, but it’s still something to watch out for.

35 Comments

Posted in television, torts

Ghostbusters and the EPA

Posted on March 28, 2012 | 18 comments

Today’s post is inspired by an email from Casey, who wondered about a couple of issues in the movie Ghostbusters.  Specifically, was Ray Stantz really a “duly-designated representative of the City, County and State of New York” with any kind of legal authority to order Gozer the Gozerian to leave the city?  And did the EPA have a legal basis for shutting down the Ghostbusters’ containment unit?

I. Were the Ghostbusters Duly-Designated Representatives of New York?

It’s pretty strongly implied in the movie that the mayor of New York authorizes the Ghostbusters to deal with the threat posed by Gozer.  That much covers the city.

Moving one level up, we turn to the county.  The five boroughs of New York City are each coterminous with a county.  For example, New York County covers the same area as Manhattan.  The New York County government is pretty vestigial, with most ordinarily-county-level functions handled by the city.  There are some borough-level officials, such as the Manhattan Borough President’s office, but it has a comparatively tiny budget and is mostly concerned with land use and zoning.  Still, there’s no reason to think that the Ghostbusters couldn’t be appointed to represent New York County as well.

Finally there’s the state level.  New York City obviously has a fair amount of clout in the state of New York, and we suspect the Mayor would have no trouble convincing the governor to give the Ghostbusters state authority in this situation, especially since it was geographically confined to New York City.

So what kind of authorization could there be?  One possibility is that the Ghostbusters could have been made emergency special deputies “for the protection of human life and property during an emergency.” N.Y. County Law § 655.  That would give the Ghostbusters the powers of regular police officers.  Not actually very helpful against an ancient Sumerian deity, but it’s something.  At the very least the qualified immunity would potentially prevent them from being personally liable for collateral damage.

Strictly speaking, all of this state authority would have little effect on the EPA’s jurisdiction (to the extent it has any) or the federal government’s ability to arrest the Ghostbusters or order the shutdown of their facility, but we can assume that the Regional Director of the EPA (actually titled the Regional Administrator), who was present at the mayor’s office, took care of all that.

II. Are Ghosts a Pollutant?

Walter Peck, from the EPA’s “third district,”* thinks the Ghostbusters are scam artists using dangerous chemicals to produce hallucinations and storing hazardous materials in their headquarters.  He alleges that they are in criminal violation of the Environmental Protection Act**, and for some reason, this leads him to shut off the containment grid, resulting in all of the captured ghosts being released.

* The EPA actually divides the country into regions.  Region 2 covers New York.

** There is no such federal law in the United States.  Federal environmental law is a hodgepodge of laws: the Clean Air Act, the Clean Water Act, and the Comprehensive Environmental Response, Compensation, and Liability Act, just to name some of the big ones.  There’s no Environmental Protection Act, though.

Peck is wrong about the Ghostbusters, but if they were storing and releasing hallucinogenic substances then that could qualify as pollution.  For example, under the Comprehensive Environmental Response, Compensation, and Liability Act (aka CERCLA aka Superfund) “pollutant or contaminant”

shall include, but not be limited to, any element, substance, compound, or mixture, including disease-causing agents, which after release into the environment and upon exposure, ingestion, inhalation, or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, will or may reasonably be anticipated to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological malfunctions (including malfunctions in reproduction) or physical deformations, in such organisms or their offspring

42 U.S.C. § 9601(33).  That’s pretty dang broad and would definitely include hallucinogenic gases.

One problem with Peck’s actions is that most of the enforcement mechanisms for pollution control are civil, not criminal, and even in the criminal case there would have to be a trial before any penalties could be assessed.  In fact, it would probably be easier and faster for the EPA to get a temporary restraining order or preliminary injunction in a civil case than to seek criminal penalties.

But we can gloss over all of those issues.  What we really want to know is whether ghosts could qualify as a pollutant.  Of course, for most purposes nothing is a pollutant unless it is discharged into the environment, and the Ghostbusters were doing a good job of preventing that.  But were the ghosts at least a potential pollutant?

I think they could be, at least under some environmental laws.  The fact that ghosts are, in some sense, living organisms doesn’t seem to matter.  For example, disease-causing organisms such as viruses and bacteria can be considered pollutants for purposes of the Clean Water Act.  33 U.S.C. § 1362(13) (defining “toxic pollutant” to include disease-causing agents that cause, among other things, behavior abnormalities); 66 C.F.R. 2960 (describing pathogens as a “leading pollutant” in bodies of water).  The Clean Air Act likewise defines “air pollutant” to include biological substances or matter that enters the air.  42 U.S.C. § 7602(g).

So it appears that the federal government could potentially regulate the release of ghosts into the environment.  Since the Ghostbusters never (voluntarily) released any ghosts, however, I’m not sure the EPA would have much standing to complain.

III. Conclusion

If the movie had been written so that a ghost or two escaped the Ghostbusters’ containment system, the EPA might have been on firmer legal footing.  Alternatively, the EPA might have been able to go after the potential discharge of radiation from the Ghostbusters’ proton packs.

Still, apart from some technical mistakes and omitted detail to keep the plot moving, the legal issues here were pretty minor.  The EPA is probably the right agency, to the extent any federal agency is the correct one, and we can forgive the writers for not wanting to get bogged down with administrative hearings and settlement talks.

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Posted in administrative law, criminal law, criminal procedure, mailbag, movies

Superman, Duels, and Affray

Posted on March 22, 2012 | 61 comments

Today we take a step back in time both in comic book history and the law.  While reading some classic Silver Age Superman comics, I found Superman #153, which contains a couple of great stories: “The Day Superman Broke the Law!” and “The Town of Supermen!”  Today’s post is about the second of these; don’t worry, though, we have a post planned for the first one.

I. The Set-up

The DC Wiki article has a good synopsis of the plot of “The Town of Supermen!”  but here’s the executive summary: A group of Kryptonian criminals escape the Phantom Zone and set up in the western ghost town of Deadwood Gulch, where they challenge Superman to a fight using Phantom Zone projector guns.  Superman accepts the challenge and wins by melting their guns with his heat vision and sending the criminals back to the Phantom Zone.

You might be wondering, “well, that sounds like standard Silver Age silliness, but what’s the legal issue?”  It turns out there are several, including some that involve old common law crimes with goofy names, which are always fun to talk about.

Note that the location of “Deadwood Gulch” is not specified in the story, so I refer to the law of various states in this post.

II. Dueling

One might guess, as I initially did, that the problem here is that Superman wasn’t acting in self-defense but rather voluntarily engaged in a duel.  It’s true that he wasn’t acting in self-defense or defense of others (the Kryptonians hadn’t directly threatened anyone yet), but in the eyes of the law this wasn’t a duel, despite Superman calling it “a showdown duel”:

The word “duel” bears a fixed, definite signification, not only colloquially, but juridically. Webster’s Dictionary defines a “duel” as a “combat between two persons, fought with deadly weapons, by agreement.” This definition is, as stated, the common—in fact, we may truthfully say the universal—understanding of the word. It indeed, is its intrinsic signification, and as so defined has been invariably adopted and used in the law and followed by the courts.

People v. Morales, 77 Cal.App. 483, 487-88 (1926).  Also see, e.g., Colo. Rev. Stats. § 18-13-104(2) (“Persons who by agreement engage in a fight with deadly weapons, whether in a public or private place, commit dueling, which is a class 4 felony.”).

In this case the parties used Phantom Zone projector guns, which certainly aren’t deadly weapons.  In fact, they wouldn’t even necessarily qualify as firearms in many jurisdictions, which avoids a lot of “criminal use of a firearm” type offenses.  See, e.g, Cal. Penal Code § 16520(a) (“As used in this part, “firearm” means any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.”).

As is often the case in the criminal law, the lack of one essential element of a crime doesn’t necessarily mean the act is legal.  Instead, it’s just a different crime, usually a lesser one.  In this case, the lack of deadly weapons turns it from a duel into an affray.

III. Affray

Affray is a very old common law offense, dating back to the late 15th century or so.  In fact, it’s so old that it originated from a French word, effrayer, meaning “to affright,” back when court business was still conducted in French following the Norman Conquest. See State v. Huntly, 25 N.C. 418, 421 (1843).  (Etymological side-note: the word “afraid” is the past-participle of affray and is essentially the only surviving remnant of the word in everyday English.)  As Edward Coke defined it in 1669:

But albeit upon the single combate no death ensue nor blood drawn, yet the very combate for revenge is an affray, and a great breach of the kings peace, an affright and terrour to the kings subjects, and is to be punished by fine and imprisonment … An affray is a publique offence to the terrour of the kings subjects, and is an English word, and so called, because it affrighteth and maketh men afraid …

Despite these ancient origins, affray is still very much alive in many US jurisdictions.  See, e.g, Hickman v. State, 193 Md.App. 238 (2010) (“we hold that common law affray continues to be a viable offense in the State of Maryland”); In re May, 357 N.C. 423 (2003); D.J. v. State, 651 So.2d 1255 (Fla. App. 1995).

As the court in May observed, “the essential elements of affray have proved remarkably durable, surviving through the ages without substantive change. …  An affray is defined at common law as a fight between two or more persons in a public place so as to cause terror to the public.”  In re May, 357 N.C. at 426.

That definition fits this case quite well. The fight was between Superman and eight Kryptonians, which is two or more people.  It took place on the main street of Dry Gulch, which is certainly a public place.  And the fight terrorized “the public,” namely Lois Lane, Perry White, and Jimmy Olsen, who made comments such as “I–I c-can’t look!”, “Jeepers! How can even Superman beat eight super-powerful foes to the draw?”, and “Poor Superman is doomed! *sob*”

So it looks like Superman may have broken the law by consenting to an affray rather than fleeing the scene, contacting the authorities, or waiting until self-defense or defense-of-others were available defenses.

IV. Conclusion

I suspect Jerry Siegel intended for the Phantom Zone projector guns to be both a way to dispose of the Kryptonian criminals at the end of the story and a way to make the fight non-lethal, fitting with Superman’s Silver Age morality.  Unfortunately, it was still a crime, albeit probably a less serious one than actual dueling.  This has implications far beyond this obscure story, however.  Affray, dueling, and related offenses could apply to many pre-arranged, public fights between superheros and supervillains.  That kind of open confrontation is much harder to legally justify than the standard self-defense, defense-of-others, and lawful arrest scenarios.

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Posted in criminal law, Superman

The Hunger Games and Other Dangerous Sports

Posted on March 16, 2012 | 43 comments

[amazon_link id=”0545265355″ target=”_blank” container=”” container_class=”” ]The Hunger Games[/amazon_link] is a trilogy of books, the first of which is also called [amazon_link id=”0545425115″ target=”_blank” container=”” container_class=”” ]The Hunger Games[/amazon_link] and which has been adapted into a film that debuts next week.  It looks like it’s going to be both a good movie and feature more accurate archery than The Avengers, but I digress. The books are set in a future dystopian society in which teenagers, selected more or less at random, are forced to compete to the death in the titular Hunger Games.

Since the book takes place in a fundamentally different world than the real one, we can’t really examine the Games on their own terms. We can say they would certainly be illegal in the real world (no surprises there), but it may be interesting to examine why, exactly. After that we’ll ponder just how dangerous a real-world version of the Games could be without obviously running afoul of the law.

Some very minor spoilers follow (nothing you wouldn’t know from the trailer, I think).

I. The Set-Up

Most entrants to the Hunger Games are selected randomly, but it is possible to volunteer.  That’s how the protagonist enters the Games, for example.  The Games themselves take place in a large uninhabited area in which the competitors (called tributes) are given weapons and supplies and expected to kill each other.  The people running the Games (the Gamemakers) have various carrot and stick mechanisms they use to goad the tributes into competing, and the more or less inevitable result is that a single victor emerges with everyone else dead.  If a group of tributes refused to fight then the Gamemakers would likely kill all of them or all but one.

II. So Why Exactly is This Illegal?

Intuitively this seems like it should be illegal, and it would be in the real world.  For starters, the Gamemakers’ actions are pretty clearly illegal: the involuntary competitors are essentially kidnapped and falsely imprisoned, then threatened with death if they don’t compete.

The voluntary competitors are pretty much just as bad, as they’re agreeing with the Gamemakers to try to kill other people, many of whom are there involuntarily.  That’s conspiracy and either attempted or actual premeditated murder.

(Note: By “voluntary competitors” I mean both tributes like the protagonist who make a direct choice to compete as well as those tributes who enter their names into the tribute selection lottery multiple times in order to earn extra food for their families.  Arguably both are voluntarily entering the Games, whereas the tributes whose names are entered the minimum required number of times could be said to be involuntary competitors.)

The involuntary competitors are only slightly better off.  They aren’t guilty of conspiracy because they didn’t agree to compete, but they may still be guilty of attempted murder or murder because they can’t claim the defenses of duress or necessity, since neither is a defense to murder in most jurisdictions.  They could avoid liability by only fighting in self-defense, however, but that would usually mean waiting until other tributes attacked them first, which isn’t typically a winning strategy.

Now wait a minute, you might say, what about consent?  Doesn’t it matter that the voluntary competitors consented to compete in the games?  The answer is no, not really, even if the minor competitors’ parents also consented.  While a person can consent to an assault or battery (think of boxing, for example), one cannot consent to one’s own serious injury or death. See, e.g., State v. Mackrill, 345 Mont. 469, 476 (2008) (“it is against public policy to permit a person purposely or knowingly to cause serious bodily injury to another, even though that conduct and the resulting harm were consented to”).

Well, what about assumption of the risk?  Aren’t the voluntary competitors assuming the risk that they will get hurt?  The problem here is that assumption of the risk does not extend to intentional wrongdoing, only negligence and recklessness.  Restatement (Second) of Torts § 496A (“A plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.”) (emphasis added).

Similarly, the exception made for the harm inherent in sporting events only applies to lawful sports, whereas the Games are predicated on kidnapping, conspiracy, and threats.  See, e.g, Colo Rev Stats, § 18-1-505(2) (“When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to that conduct or to the infliction of that injury is a defense only if … the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport.”).

That pretty much sums up why the Games would be both criminal and tortious, but what are the real-world limits for something like this?

III. So How Close Can We Get?

Clearly we’ll have to begin with consent, so we can toss out all of the involuntary competitors.  Ideally we’d get informed written consent from both the competitors and their parents, together with explicit waivers of liability for the Gamemakers and other competitors.  Of course, to be meaningful the consent must be ongoing, which means the competitors must be free to leave the game at any time.

An important part of the informed consent process is to ensure that the competitors and their parents are aware of the reasonably foreseeable hazards of the Games.  This helps bring the Games within the exception for lawful sports: “When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to such conduct or to the infliction of such injury is a defense if: … (b) the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport ….” Model Penal Code § 2.11(2) (emphasis added).

The Games themselves would have to be watered down from a fight to the death to something more like Mixed Martial Arts.  While certainly a vigorous athletic contest, serious injuries are not inherent in MMA, and so consent and assumption of the risk will go a lot farther in eliminating both criminal and tort liability.

That doesn’t mean that everyone is necessarily off the hook.  Competitors and Gamemakers could still be liable for injuries that result from, for example, breaking the rules of the game that are concerned with safety.  See, e.g., Nabozny v. Barnhill, 31 Ill. App. 3d 212 (1st Dist. 1975).  With children involved the Games would likely need to either take advantage of sovereign immunity or have a hefty insurance contract.

IV. Conclusion

So after all that, what are we left with?  Basically a kind of free-form outdoor MMA, which the competitors can quit at any time.  Not quite as exciting as a forced fight to the death in the wilderness, we’ll admit.  What can we say?  Lawyers spoil all the fun.

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Posted in criminal law, movies, torts

Good Day Sacramento

Posted on March 16, 2012 | Leave a comment

For the morning people in the audience: I will be appearing on Good Day Sacramento tomorrow, which you can watch live online on the show’s website.  Those of you who live in the Sacramento area can tune into KMAX, which I believe is channel 31.  The interview should be on at about 6:40am Pacific time.

For those of us who enjoy sleeping in a bit on Saturday: we will post a link to the segment later that day. (Update: Apparently there were technical difficulties at the studio and the segment wasn’t recorded.  Sorry about that!)

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Posted in interviews and podcasts

My Cousin Vinny: The Perils of Joint Representation

Posted on March 13, 2012 | 12 comments

Today’s post is our contribution to Abnormal Use’s My Cousin Vinny 20th anniversary celebration. Although it doesn’t have anything to do with comic books or superheroes, we still recommend giving it a watch. It’s a comedy, but it’s actually one of the more accurate representations of trial procedure in a film (which isn’t necessarily saying a lot). If you haven’t seen it, the Wikipedia article has a thorough plot synopsis, but we recommend buying a copy, since it really is a pretty good movie.

Since the movie has been around for 20 years, a lot of ink has been spilled on it, but there’s at least one issue that isn’t often discussed, probably because it’s only implicit in the film. The issue is that the defendants, Bill and Stan, are represented jointly by Bill’s cousin Vinny, but joint representation is fraught with ethical issues, especially in a criminal case. (For those looking for some kind of connection to comic books, I’ll note that a lot of supervillains work in groups and might find themselves in a joint representation situation. The same ethical issues apply.)

Simultaneous representation of clients whose interests may conflict is a common enough issue that there’s a rule especially for it.  ABA Model Rule of Professional Conduct 1.7:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

The movie takes place in Alabama, and its rule is similar. Notably, the Alabama rules were adopted effective January 1, 1991, so it’s conceivable that the rule applied during the time in which the film is set.

The situation in the movie is an example of paragraph (a)(2): “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.”  What exactly does the rule mean by that?  The official commentary goes into more detail:

A conflict may exist by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant.

Rule 1.7 Comment 23 (emphasis added). So it seems very likely that the rule applies in this case.

Paragraph (b) describes the circumstances under which a client can be represented despite a conflict, but unfortunately they aren’t met here. It’s far from his worst ethical lapse (repeatedly lying to a judge, anyone?), but Vinny almost certainly cannot reasonably believe that he “will be able to provide competent and diligent representation to each affected client.”  That is, he might believe it (in fact he nearly says as much), but his belief isn’t reasonable given the seriousness of the case and his lack of experience and knowledge. Nor does the movie contain any indication that Bill and Stan gave informed, written consent, although I might excuse that omission on the grounds that it would be a relatively boring detail.

So why exactly is the potential for conflict of interest so grave in a criminal case?  There are lots of reasons, but a major one is that codefendants may be sorely tempted to point the finger at each other in exchange for favorable treatment (e.g. immunity or a better plea bargain). Imagine in this case if Stan (accused of being an accessory to murder) claimed that it was all Bill’s idea and that Bill had kidnapped him after committing the murder.  That’s a fine defense for Stan, but it puts Bill on the hook for both murder and kidnapping. As their attorney it would be impossible for Vinny to be loyal to both Bill and Stan in that situation. The conflict would be further complicated by his family relationship to Bill.

Another example: neither Bill nor Stan waived their Fifth Amendment rights and took the stand.  What if the prosecution had offered immunity to whichever one testified against the other?  It would be virtually impossible for Vinny to advise his clients fairly.

As it happens the prosecution didn’t offer any deals, and both defendants agreed with Vinny’s strategy, so there wasn’t a serious conflict. And, for what it’s worth, Mitchell Whitfield (the actor who played Stan) says in an interview with Abnormal Use that he doesn’t think Stan would have turned state’s evidence if a deal had been offered: “[L]et’s say it was different, and there was something that I had that I could have used to sort of say, “Oh, look, he’ll get five years and they’ll try him.” No.  Never.  I’m neurotic, but I’m not a narc.”

It’s also hard to fault the writers for not wanting to introduce the complexity of two attorneys (with the exception of the brief appearance of the public defender).  But in many real-world criminal cases it’s a common strategy to turn co-defendants against each other, which is why this rule is so important.

Vinny’s joint representation of Bill and Stan was ethically problematic, even if it was ultimately only a theoretical problem.  In my opinion that makes it all the more worthwhile to examine it, much like the legal issues implicit in comic books. I also don’t think one more ethical breach hurts the movie, since Vinny’s inexperience and ethical problems are essential to the plot.  My Cousin Vinny holds up pretty well even when watching it critically. If you haven’t seen it, I recommend it.

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Posted in criminal law, criminal procedure, legal ethics, movies

My Cousin Vinny’s 20th Anniversary

Posted on March 12, 2012 | Leave a comment

Our friends over at the Abnormal Use blog are celebrating the 20th anniversary of the movie My Cousin Vinny.  While the movie doesn’t have anything to do with comic books or superheroes, it does feature Joe Pesci playing a surprisingly competent trial attorney, which requires almost as much suspension of disbelief.

As part of the celebration, Abnormal Use has asked a number of legal bloggers—including yours truly—to write a post on the film.  Ours will go up on Wednesday, so keep an eye out for it.

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Posted in movies