Today we have questions about supervillain gadgets and imposing unwanted powers on people. As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.
I. Supervillain Gadgets and Asset Forfeiture
Ken asks “If a supervillain invents a useful device, and uses it for crime, and it
gets taken by a superhero or by the law, are they required to give it back? What if the superhero uses it–for instance, suppose it’s a device to animate rock and the superhero builds a million dollar tunnel with the device before handing it back, does he owe the crook a million dollars? Is this changed if the device is patented and the superhero tries to make more of them to give to tunnel builders everywhere?”
The answer here really depends on whether the device is taken by a superhero acting as a private citizen or by law enforcement. If it’s taken by a private citizen, then it would likely have to be turned over to the police, either as evidence or because it can legally be seized.
Assuming it can be seized, which is very likely, I don’t think the superhero would be liable to the supervillain if the superhero used the device for a while. Since the supervillain has forfeited his or her property rights in the device, he or she can’t sue for conversion or trespass to property. If the government wanted to be a jerk I guess it could sue or bring criminal charges, but that seems unlikely unless the superhero’s use of the device interferes with the criminal prosecution of the supervillain.
If the device were patented, that presents a few other wrinkles. Since I don’t think the patent itself would be subject to seizure, the villain could presumably enforce the patent from behind bars. The government has a license to all patents, and so it would only have to pay the villain a reasonable royalty, but a private party could be enjoined from using the patented invention. But it’s questionable as to whether any of that would extend to the actual device seized. If the villain’s property right in the device is forfeited by using it to commit a crime, then it seems to me that carries with it either an implied license or an exhaustion of the patent rights akin to a sale.
We’ve mentioned seizure and asset forfeiture a few times, so what exactly does that mean? The federal government and the states have laws that allow the government to seize property that is itself contraband (e.g. illegal narcotics, unlawful weapons, adulterated food or drugs), the proceeds of illegal activity (ill-gotten gains, basically), or was used in the commission of a crime (e.g. a getaway car, a lawfully owned gun used to commit a crime).
There are two kinds of asset forfeiture proceeding: criminal and civil. In a criminal proceeding, the forfeiture is part of the criminal sentence, so the defendant must be proven guilty of an underlying crime. The other, much more popular kind, is civil forfeiture. In a civil forfeiture case, the government sues the property itself (under the legal fiction of the property’s guilt) and the original owner is a third party claimant who must argue that the property is not actually subject to forfeiture. Because of the lower standard of proof in civil cases and because there is no need to actually prove the defendant guilty of an underlying crime, civil forfeiture is more common than criminal forfeiture. It also leads to hilarious case names like United States v. Five Gambling Devices and United States v. Forty Barrels and Twenty Kegs of Coca-Cola.
The main federal civil forfeiture laws are 18 USC 981 and 21 USC 881 (the latter deals with controlled substances so it’s not relevant to the standard supervillain gadget case). The ‘good news’ from the point of view of most supervillains is that the federal civil forfeiture laws are somewhat limited. Generally the underlying crimes fall into three categories: white collar crimes (e.g. fraud, forgery), controlled substance crimes, and terrorism. The criminal forfeiture law 18 USC 982 uses the same categories. Some supervillains might get caught out on the terrorism provisions, but many are relatively small time or stick to things like robbing banks and museums.
Alas the state civil forfeiture laws tend to be much broader. For example, here’s part of New York’s:
A civil action may be commenced by the appropriate claiming authority against a criminal defendant to recover the property which constitutes the proceeds of a crime, the substituted proceeds of a crime, an instrumentality of a crime or the real property instrumentality of a crime. New York Civil Practice Law and Rules § 1311.
As it turns out, ‘crime’ is defined pretty broadly. Basically, any felony counts, so long as the defendant is ultimately convicted, and it would allow the state to seize not only the villain’s devices, but also his or her lab, lair, secret hideout, or what-have-you (i.e. the “real property instrumentality of a crime”). The bottom line is that convicted supervillains can look forward to starting over from scratch each time they are released or break out of prison.
II. Liability for Imposing Powers on Others
Megan asks “In the movie X-Men when Magneto injects Senator Kelly with “mutant serum” and he dies as a result, if he had lived long enough would he have had a case against Magneto for either turning him into a mutant against his will or by inadvertently killing him as a result?”
This one’s actually simpler than it might sound: yes, there would be liability, both civil and criminal, under a theory of criminal assault or murder and civil battery or wrongful death (depending on whether Kelly dies or not).
The law generally penalizes those who cause bodily injury to another. In this case, Senator Kelly has been taken against his will (which is kidnapping and false imprisonment, by the way) and physically altered. So there’s criminal assault and civil battery. His damages are proportional to his injury, which is pretty serious in this case. Should he die as a result (as he did in the movie), Magneto would be liable for the death under both civil and criminal theories.
Interesting side note: what kind of murder is Magneto guilty of? Normally he wouldn’t be guilty of first degree murder, since he didn’t intend for Kelly to die, nor did he know that it would happen. But the murder occurred as a result of a separate felony, namely kidnapping. This invokes the felony murder rule, and felony murder is typically first degree murder. Supposing the felony murder rule didn’t apply, Magneto might still be guilty of second degree murder under the theory of depraved heart murder, since using untested genetic manipulation techniques on an unwilling subject likely demonstrates a “callous disregard for human life.” Failing all that we fall back on involuntary manslaughter.
There are, however, two little wrinkles here. First, Magneto can be liable for assault/battery or murder/wrongful death, but probably not both at the same time. The principle of merger applies in the criminal context, and civil courts will not permit plaintiffs to recover more than the sum of their damages by using alternate theories (i.e. you can’t recover twice for the same injury). However, Magneto wasn’t acting alone here, so in addition to the kidnapping, assault, and murder charges, he could also be criminally charged with conspiracy to commit those offenses, as conspiracy is an independent crime which does not merge with target offenses. The theory here is that groups of people acting in concert are more dangerous than solo criminals, and acting in concert is punishable in and of itself.
Second, what if Senator Kelly didn’t die, and his mutation turned out to be harmless if not downright beneficial? Say Magneto somehow discovered how to give people regenerative powers similar to Wolverine’s and then forced that transformation on Senator Kelly. Sure, there’s still the criminal charges as well as civil claims for false imprisonment and battery, but damages for the latter are going to be pretty hard to prove. If anything, Kelly is now better off than he was before! Recognizing this, a court would likely find that Magneto could be liable for battery but would probably limit the damages to something close to nominal.
There’s another potential claim lurking in here too: intentional infliction of emotional distress. Senator Kelly had a pretty strong emotional aversion to mutants, so changing him into one would definitely cause some kind of emotional trauma. If he lived and that trauma interfered with his ability to live his life, he could recover damages for that. Medical bills for therapy or lost wages are the typical ways of proving that. IIED is somewhat disfavored by the courts, and recovery is generally limited to extreme and outrageous conduct that goes beyond all bounds of civilized conduct and that actually causes “severe” emotional distress, but this seems to be a pretty good example of both.
Keep ’em coming, folks!
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