The Amazing Spider-Man: Warrants and Assault

As we discussed in our background post, most of the issues in The Amazing Spider-Man aren’t new, but there are two stand-outs.  There are some  minor spoilers ahead for anyone who hasn’t seen the trailers, and a couple of very minor spoilers for anyone who hasn’t seen the film.

I. Warrants

The first issue was brought to our attention several weeks ago by Matt, who asked a question based on a bit in the trailer:

I have a question regarding the trailer for (and presumably the actual film) Amazing Spider-Man.  In the trailer, at least, NYPD Captain George Stacy publicly announces that he’s issuing “an arrest warrant for the masked vigilante known as Spider-Man”.  My question is: Can he do that?  It’s my understanding that arrest warrants come from judges, not law enforcement officers, regardless of their rank.

Matt is correct on both counts: the scene is in the film, and—unfortunately for the writers—it’s wrong.  Warrants, whether search warrants or arrest warrants, are issued by judges.  In New York, arrest warrant procedures are defined by N.Y. Crim. Pro. Law §§ 120.10 – 90.

The curious thing about this, though, is that an arrest warrant was probably unnecessary.  In New York, an officer may generally arrest a person for committing “[a] crime when he or she has reasonable cause to believe that such person has committed such crime, whether in his or her presence or otherwise.”  N.Y. Crim. Pro. Law § 140.10(1)(b).

In this context, “reasonable cause” is essentially synonymous with the more familiar probable cause.  See, e.g., People v. Johnson, 66 N.Y.2d 398, 402 (1985).  “Probable cause to arrest exists if the facts and circumstances known to the arresting officer would lead a reasonable person possessing the same expertise as the arresting officer to conclude that it is more probable than not that the suspect has committed or is committing a crime.”  People v. Attebery, 223 A.D.2d 714, 715 (N.Y. App. Div. 1996).  Thus, a police officer who was aware of Spider-Man’s fairly unique description and alleged crimes would likely have probable cause to arrest him without a warrant.  Since most officers have probably heard of Spider-Man at this point, there wasn’t much need for the warrant.

At this point you might be asking, “then why have arrest warrants at all?”  There are a few reasons, but one important one is notice.  Recall that probable cause is based on “the facts and the circumstances known to the arresting officer.”  It’s no good if the officer arrests someone on a hunch and turns out to be right. People v. Wharton, 60 A.D.2d 291, 295 (N.Y. App. Div. 1977).  An arrest warrant is a formal way of communicating the existence of probable cause to arrest someone.  This is very handy when dealing with hundreds or thousands of people suspected of crimes; police officers can’t be expected to remember everyone with a warrant for unpaid traffic tickets, after all.  The utility is diminished somewhat when talking about a city-wide manhunt for a guy in a costume who climbs on walls, since even the busiest officer can probably remember to keep an eye out for Spider-Man.

So when Capt. Stacy announces the warrant, he’s really saying “Spider-Man may legally be arrested and I have instructed the New York Police Department to do so.”  It’s not so important from a criminal procedure point of view, but it’s good PR and lets the police department look like it’s doing something.

II. Assault

The second issue comes from Peter Parker’s dinner with Gwen Stacy’s family.  As hinted at in the trailers, the conversation between Peter and Capt. Stacy becomes a little strained, and Peter is surprised to hear Capt. Stacy describe Spider-Man as a guy in a costume going around assaulting people.  Apparently Peter had not considered the possibility that what he was doing might not be entirely legal.  But was it?  I think the answer depends on which incident one is talking about.

At several points in the movie, Spider-Man stops, interrogates, or otherwise beats up on apparent criminals.  In some cases, he’s probably more or less justified in using non-lethal force.  For example, one of the first times he goes ‘on patrol’ he stops a man who was hassling a woman and possibly about to strike her.  Under the circumstances that’s probably defense of others.  He is then attacked by a large number of people and engages in a little self-defense.

In another case he stops someone after hearing a report on the police radio about a fleeing suspect.  This depends on what the alleged offense was (does anyone remember?) and whether the person actually committed it.  In New York, a citizen’s arrest requires either that the offense be committed in the arresting person’s presence or that a felony have actually been committed.  N.Y. Crim. Pro. Law § 140.30.  So Spider-Man could lawfully arrest the person if he committed a felony, but if it was a lesser offense (or if Spider-Man got the wrong guy), then it wouldn’t be a lawful arrest—in fact it would be a crime, namely unlawful imprisonment.

But what about assault?  It’s a little hard to say.  If the use of force is unjustified and physical injury is involved, then it could be either third degree assault or second degree assault.  The difference hinges on whether Spider-Man’s webs can be considered a dangerous instrument.  A dangerous instrument is “any instrument, article or substance … which, under the circumstances in which it is used … is readily capable of causing death or other serious physical injury.”  N.Y. Penal Law § 10.00(13).  Arguably the web is capable of causing death by asphyxiation when it is applied to the face, which happens a few times in the movie (application to the face, not asphyxiation).

III. Conclusion

As a movie, The Amazing Spider-Man is pretty good.  I didn’t find too much to fault in terms of the law, apart from the wince-inducing warrant flub.  I also liked that it underscored the importance of maintaining a good working relationship with the police.  They might not be able to catch every petty criminal (or even every rampaging lizard), but that’s no reason to irritate them, especially if you wear a big, bright red and blue suit and aren’t immune to bullets.