Mailbag Roundup

Teaching and research have kept me very busy this semester, but I wanted to present a roundup of questions I’ve received and answered via email recently. There are lots of spoilers below, so be warned.

I. The Flash Season 2: Henry Allen’s Acquittal, Henry Allen’s Medical License, and Inter-Earth Jurisdiction

Levi asks:

1.) In the first episode of The Flash season 2, Henry Allen, Barry Allen’s father, is cleared for the murder of his wife Nora after the real killer admits to the crime in a video will after the killer’s death in the Season 1 finale.

My question is, what is the legal viability of such a confession in getting Henry’s name cleared?

There are some tricky evidentiary issues here, especially now that the real killer is himself dead, and in any event the explanation—though we know it to be true—is preposterous to just about anyone outside of Star Labs.  Simply having a video of someone claiming to have done it is pretty unlikely to be enough, at least in the real world.

2.) Near the end of the same episode, it’s mentioned that there might be a way for Henry to get his medical license back, the now free man having formerly been a physician before being jailed and thus losing his license.

What would be the legal gobbledygook involved in getting his license back? Keep in mind that this all takes place in Central City, which in the show’s continuity is located in Missouri.

Missouri law provides for automatic revocation upon a felony conviction, but also automatic reinstatement if that conviction is set aside.  Mo. Rev. Stat. 334.103.  So I suspect he would just have to inform the state board of registration that the conviction was set aside.

3.) Finally, Season 2’s main villain, Zoom, is a resident of Earth-2. He is responsible for multiple murders within the borders of Central City on both Earth 1 (where the main cast resides) and Earth 2.

As a resident of Earth 2, how would prosecutors on the two realities go about prosecuting Zoom? Since he’s (presumably) a U.S. citizen on both worlds, who would have ultimate jurisdiction over him?

Jurisdiction would exist in whatever reality he happened to be in at the time he committed the crime. I don’t think this particularly complicates matters. I guess he could try to argue that he should be deported to Earth 2 rather than incarcerated on Earth 1, but I think a court would treat that as an insanity argument, and not a very good one at that.

II. MCU’s Raft and cruel and unusual punishment

Duskdweller asks:

So, at the end of [Captain America: Civil War], Thaddeus Ross is not-quiet-gloating to Helmut Zemo, and one of the things he mentions is twice-a-day bathroom privileges. I’m presuming the Raft doesn’t have in-cell toilets like regular jails due to being modeled on it’s comics counterpart, where there are people who could flush themselves if given the opportunity…. I’m also taking it as given that prisons in the US have in-cell toilets to avoid running afoul of the 8th amendment, since I know I’d get rather uncomfortable only being allowed to go twice a day. … Would [the UN Convention Against Torture] apply to bathroom breaks, though–or to the Raft at all if it’s in international water? Presuming this is a problem for the cinematic Raft, would it still be a problem with the comics Raft, or would the argument about it being a potential escape risk fly, even for inmates who don’t have flush-myself powers?

The basic rule with the 8th Amendment is that a sentence or prison condition is okay as long as it serves some conceivable penological purpose*. What isn’t allowed is “wanton and unnecessary infliction of pain”, disproportionate punishments, or arbitrary punishments.

* Broadly speaking, penological purpose means that it was done for prison management purposes or furthering one of the accepted theories of criminal justice.

So when considering the bathroom privilege restriction, we have to ask if it has some legitimate purpose apart from simply making the inmates suffer. In the case of the Raft, the inmates are not just dangerous, they are also often inherently dangerous (i.e. have special abilities that can’t be removed). Escorting them to the bathroom is risky, and free access to the bathroom might make it easier for them to plan a riot or escape.

That may not be a very strong argument, though, since most of the inmates can’t actually escape via a toilet, but that’s the argument: it’s not an unnecessary punishment, it’s a necessary security measure.

On the other hand, referring to it as a ‘privilege’ suggests that it’s something that could be taken away, or at least reduced to once per day. That would almost certainly be going too far, akin to withholding medical care, which has been held to be a violation of the 8th Amendment.

International law is a whole other thing, but suffice to say that the CAT hasn’t been very effective at curbing real-world US prisoner abuses, so I don’t know that it would be much more effective regarding the Raft, especially if multiple countries were involved.

III. “I won’t kill you, but I don’t have to save you!”: SHIELD Edition

Derek writes:

A recent Agents of SHIELD episode raised a question among friends online. Well, more like it started an argument, but I digress.

In the episode, the SHIELD Agents are involved in a fight with anti-Inhuman terrorists in a fireworks warehouse. While the terrorists were using regular firearms, the SHIELD Agents were using “icers”, guns with ammo which (allegedly) knock the target out for a few hours.

During the fight, a fight between two fire-based beings [one of whom was working with SHIELD but was not himself an agent] caused a fire and set the entire factory into KA-BOOOM mode. As the SHIELD Agents rushed out of the factory, reaching safety just in (dramatic) time, they left behind unconscious members of that terrorist group.

The question is, should those SHIELD Agents be held responsible for not saving the lives of those men?

The fact that the fire was started in part by someone working with SHIELD complicates matter.  It’s arguable that the agent(s) created the peril, and so they had a duty to undertake reasonable efforts to rescue the people in peril. Of course, it may have been unreasonable to even try to rescue them, depending on how imminent the explosion was.

Beyond that, no, there would be no duty to attempt a rescue. Generally speaking, police and firefighters don’t owe anyone a duty to rescue or aid. The police can choose not to enforce a restraining order, leading directly to the deaths of three children, without consequence. Castle Rock v. Gonzales, 545 US 748 (2005). The state can also ignore repeated, obvious signs of child abuse without consequence. DeShaney v. Winnebago County, 489 US 189 (1989). It’s different when police or firefighters actively harm someone, but ‘mere’ inaction pretty much never creates liability.