The Rocketeer (1991 film)

Previously, we discussed The Rocketeer in its 1980s Dave Stevens comic book, instantiation. This time, we’re talking about the 1991 Disney movie. A lot of the main issues are the same, but this may actually be one time where the movie is significantly better than the comic book. The plot of the comic was pretty scattered, and the book seems to have just sort of ended without any significant resolution of any plot points. The movie really streamlines things and has a much more satisfactory plot arc.

One major way that the movie differs is the introduction of Neville Sinclair, played by James Bond Timothy Dalton, who serves as the movie’s main villain, a Nazi spy (sorry, we’re not warning about spoilers in a movie from 1991). While the Hindenburg stand-in is perhaps unrealistic—commercial zeppelin flights seem to have pretty much ended after the disaster, a year before the movie is set—but the idea that a well-placed celebrity was a Nazi sympathizer or even agent is not as implausible as it sounds.

Regardless, there is a plot point in the movie that raises an interesting question: is Secord’s “sabotage” of the rocket pack murder?

Probably so. Consider the elements. In California, murder, is “the unlawful killing of a human being … with malice aforethought.” Cal. Penal Code § 187(a).  Secord knew the rocket pack was dangerous and had every reason to believe that re-opening the bullet hole leak would cause anyone who operated it to die in a fiery crash. So when he moves that chewing gum, he is effectively killing Sinclair. We’ve got intent and act. But is there a defense (i.e. was the killing unlawful)?

Actually… probably not. True, Secord potentially saved the world by preventing the rocket from falling into Nazi hands. That’s all well and good, but “I thought he might use it for evil!” is not going to fly. In California, the necessity defense has several elements:

To justify an instruction on the defense of necessity, a defendant must present evidence sufficient to establish that he violated the law (1) to prevent a significant and imminent evil, (2) with no reasonable legal alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief that the criminal act was necessary to prevent the greater harm, (5) with such belief being objectively reasonable, and (6) under circumstances in which he did not substantially contribute to the emergency.

People v. Verlinde, 123 Cal. Rptr. 2d 322, 336 (Ct. App. 2002) (quoting People v. Kearns, 55 Cal.App. 4th 1128, 1135 (1997)).  The defense of necessity might be available in murder cases in California, but the evidence for that is sketchy.  See, e.g., People v. Potter, No. C052634 (Cal. App. 3d Dist. Dec. 10, 2007) (holding that “murdering someone cannot be done out of ‘necessity,’ because the harm caused is at least equivalent to the harm avoided” but also denying a necessity instruction on several other grounds).  Given the tremendous potential harm in this case, we think it could at least be argued that stopping Sinclair outweighed the harm of his death.

But that’s not enough to satisfy the elements of the defense.  Although Secord and his girlfriend (Jennifer Connelly) are in immediate danger of dying, killing Sinclair isn’t actually going to do anything about that. Heck, for all Secord knew, the rocket would explode immediately, killing them all right then and there. So the danger to be prevented was more that the rocket would make its way into Nazi hands, something well-intentioned persons would want to prevent. But the danger there isn’t imminent. It’s pretty attenuated, actually. Even in self-defense situations, the notion—even if correct—that someone is going to do something bad in a few days or even a few hours is generally insufficient to ground a necessity defense. The danger needs to be now.  Another problem is that Secord arguably contributed to the emergency by keeping the stolen rocket in the first place, although that may be too distant to count.

That being said, Secord is unlikely to be prosecuted for his “crime.” Prosecutorial discretion is, as we’ve discussed previously, an inherent power of the executive branch at all levels of government. The feds certainly aren’t going to bring charges, and it’s doubtful that local government will either, especially since the feds won’t like it. There’s also the possibility of jury nullification, i.e., when a jury refuses to convict a guilty defendant. Though judges in civil cases have the authority to overturn a jury verdict and enter a judgment notwithstanding the verdict (sometimes called “judgment as a matter of law” or “JNOV”), judges can only overturn a jury verdict in favor of a criminal defendant. In civil cases it can go either way, but a jury verdict of “not guilty” is final. If Secord can convince enough of the jury that what he did was for the greater good, then even if a judge refused to offer a necessity instruction, the jury might still refuse to convict. This is something that is becoming increasingly common today, but even if less common in the 1930s, it was a feature of common law jurisdictions going back to pre-colonial England.

So though what Secord did is probably technically murder, he’s likely to get away with it. The prosecutor isn’t likely to bring charges, and Secord is a sympathetic-enough figure who did what he did for admirable-enough reasons that a jury might well refuse to convict even if charges were brought.