The new run of Ultimate Comics: Spider-Man from Brian Michael Bendis is getting rave reviews. There haven’t been a ton of overt legal issues, but a scene from the recent issue #6 caught my eye. Spoilers ahead!
I. The Set-Up
Miles Morales is starting to get comfortable as the successor to Peter Parker, but he clearly has a thing or two to learn about being a superhero. While leaping around the city he overhears a cry for help and discovers a woman being mugged at knife point. He leaps in to save the day and gets knocked on the head for his trouble. Before the muggers can remove his mask, Miles surprises himself as he pretty deftly disables the muggers and retrieves the victim’s purse. The muggers try to flee when the cops show up, and Miles throws them onto the patrol car’s hood. The police respond by drawing their weapons and telling Miles to put his hands in the air.
II. Arresting the Hero
As the “real life superhero” movement has shown, this is pretty much what would happen in real life, and the police would be right to do it. From their perspective, they’ve heard a report of a mugging and show up to find a masked man throwing people at their car. Miles’s costume looks a bit different than Peter Parker’s did, and most people (including the police) still think Spider-Man is dead. Under the circumstances the police response was reasonable. Once Miles demonstrated that he was (apparently) Spider-man by jumping onto a wall, the police let him go. It probably didn’t hurt that the victim had been protesting Miles’s innocence the whole time.
So the police weren’t overreacting, but what about Miles? Were his actions justified?
III. Self-Defense / Defense of Others
In New York, the general rule is that “A person may … use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person.” N.Y. Penal Law § 35.15(1). There are some important exceptions that don’t apply here, and we’ll cover those at the end of the post.
Leaving aside the issue of the threat to the woman, the muggers punched Spider-Man without justification and showed no sign of letting up. It’s pretty clear that a reasonable person would have believed some force was necessary to defend themselves in this situation. But Spider-Man tosses one of the muggers into another, causing them both to hit the hood of a police car. Given Spider-Man’s enhanced strength, is this reasonably necessary force?
IV. Deadly Force and the Duty to Retreat
Luckily, we don’t have to answer that because one of the assailants had a knife. This potentially opens the door to the use of deadly force in response, which definitely includes merely tossing someone onto a car, even if it is from ten feet away. Let’s turn to the statute again:
A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
(a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating;
N.Y. Penal Law § 35.15(2). Spider-Man doesn’t have to retreat because, although he could retreat with complete personal safety to himself, he couldn’t do so with completely personal safety to the victim. There’s another alternative justification as well:
A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
…
(b) He or she reasonably believes that such other person is committing or attempting to commit … robbery
Id. In this case the muggers were attempting to commit a pretty textbook robbery:
Robbery is forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:
1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or
2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.
V. The Exceptions
Here are the main exceptions to the use of self-defense / defense of others:
A person may … use physical force upon another person … unless:
(a) The latter’s conduct was provoked by the actor with intent to cause physical injury to another person; or
(b) The actor was the initial aggressor; except that in such case the use of physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or
(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.
Spider-Man didn’t provoke the muggers, nor was he the initial aggressor, and they certainly didn’t agree to an unauthorized duel. Normally I wouldn’t even bring up these exceptions, but Spider-Man (rather foolishly) says this to the muggers: “Hey, you started it. No wait, technically I did.” It’s pretty clear from the facts that he didn’t start it, but the muggers could use that statement against him in a civil suit, supposing they ever managed to bring one.
VI. Conclusion
Ultimate Comics: Spider-Man is a great series. Spider-Man deals with ordinary criminals more often than a lot of other superheroes, and it’s good to see the writers handling it in a pretty realistic way.
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