Author Archives: James Daily

Xavier’s School for Gifted Plaintiffs

Posted on March 9, 2012 | 12 comments

Xavier’s School for Gifted Youngsters (aka the Xavier Institute) has existed in several most versions of the X-Men as a place of safety for young mutants, a training ground for future X-Men, and a private school.  These purposes are somewhat in tension, however, and students are sometimes injured either in the course of instruction or because of attacks on the school.  That leads to today’s question from Frank, who asks: “Is Professor X responsible for minor students in a parental capacity? What happens when one of them is injured or killed while at school?”

There are a few different aspects to this question.  First there’s the question of the school’s institutional liability, and second there’s the question of Professor X’ (and the teachers’) personal liability.

I. Institutional Liability

Xavier’s School is a private school in New York.  It’s usually written as a charitable school.  In some states this would entitle it to a certain degree of immunity, but New York (unlike, e.g., New Jersey) rejected the doctrine of charitable immunity several decades ago.  Bing v. Thunig, 2 N.Y.2d 656 (1957). So if the school can be sued, what could it be sued for?

The most likely cause of action is negligence: negligently allowing students to take part in dangerous activities, negligently failing to prevent superpowered students from harming one another, negligently failing to protect the students from outside threats, etc.

Normally one isn’t liable for failing to protect someone else from harm, but certain special relationships (e.g. parent/child) can create a duty to rescue, protect, or supervise.  Schools have such a relationship with students:

Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.  Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another.  A teacher owes it to his or her charges to exercise such care of them as a parent of ordinary prudence would observe in comparable circumstances.  The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians.

Mirand v. City of New York, 84 N.Y.2d 44, 49 (1994).  So while a school may not be liable for every injury caused by a student, it will be liable if the injury was the result of inadequate supervision.  What’s more, since Xavier’s is a residential school, this duty is basically continuous, because “Ordinarily, the duty of care imposed on a school district, and in this case a private school, terminates upon a student’s release from their physical custody.”  David XX v. Saint Catherine’s Center for Children, 699 N.Y.S.2d 827, 830 (App. Div. 1999).

So the school’s liability will ultimately come down to whether the teachers and staff acted reasonably and whether the injury was foreseeable.  If the teachers follow all the right protocols but a superpowered delinquent blows up the school, well, that’s tough.  Similarly, a random attack by evil mutants may be unforeseeable, so it doesn’t really matter whether the school took reasonable precautions to protect the students from such an attack or not.

II. Personal Liability

“A school district, like any other employer, may be held vicariously liable under the doctrine of respondeat superior for a tort committed by an employee in the course of the performance of the employee’s duties.”  Mary KK v. Jack LL, 611 N.Y.S.2d 347, 348 (App. Div. 1994).  Of course, the employee is also still liable (and the employer can turn around and seek compensation from the employee for any damages the employer has to pay out), but most plaintiffs prefer to sue the party with deeper pockets.

But as the quote suggests, the employer is only liable under certain circumstances.  As the Mary KK court said, “What constitutes the scope of employment is generally a jury question, but” there are some guidelines.  “An act falls within the scope of an employee’s duties when the employee is doing his master’s work, no matter how irregularly, or with what disregard of instructions. On the other hand, there is no respondeat superior liability for torts committed for personal motives unrelated to the furtherance of the employer’s business.”  Murray v. Watervliet City School Dist., 515 N.Y.S.2d 150, 152 (App. Div. 1987).  More specifically, courts and juries look at factors such as:

the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated

Riviello v. Waldron, 47 N.Y.2d 297, 303 (1979).  Sometimes the school might be vicariously liable, but it won’t be liable for the actions of “rogue” (no pun intended) employees.

III. Conclusion

We certainly hope Xavier’s has a serious insurance policy (or three).  Not only could it be sued, but it’s a magnet for serious injuries.  Waivers can help for voluntary activities, but not there are limits to what can be waived.  Of course, if the school goes beyond negligence and into the realm of gross negligence or intentional misconduct then its insurer may not cover it at all.

12 Comments

Posted in insurance, mailbag, torts, X-Men

Superman, Kryptonite, and Treason

Posted on March 7, 2012 | 31 comments

Today we’re continuing to clear out the mailbag, this time with a question from Jon, who asks about the 2008 Superman/Batman story arc “The Search for Kryptonite” (now available as a trade paperback):

[In the story], a Kryptonite meteorite has landed, making the element common all over the world. People are putting it in jewellery, using it as paperweights – it’s everywhere. Superman decides that the only way he can be effective as a hero is to gather it all up and get rid of it, arguing that people die when he’s incapacitated. “I can only save as many people as I can be there for.” What right does Superman have to do this?

Aquaman calls it arrogance, when Supes and Batman are collecting a large chunk of green K from the seabed – “You do as you will, and expect people to thank you for it”. Amanda Waller calls it treason, when they break into a government facility to take K-based weapons (a multi-billion dollar facility specifically created to stop Superman, should he go rogue) – “You boys justified the need for this facility the minute you broke into it”.

There are two aspects to this question: first, does Superman have any right to go rounding up kryptonite and second, did Superman and Batman really commit treason?

I. Self-Defense?

The answer to the first part is “no,” for two reasons.  First, Superman isn’t in any imminent danger from the vast majority of the kryptonite, so self-defense doesn’t apply (and thus defense-of-others doesn’t apply to Batman’s actions either).  Second, like everyone else, Superman doesn’t have a general duty to prevent crime or rescue others.  Thus, although an abundance of kryptonite may be unfortunate for both Superman and the general public, it isn’t interfering with a legal obligation and so Superman can’t really claim a legal right to remove the kryptonite.  Even if he could, his remedy would be in court, not taking matters into his own hands.

II. Treason?

The answer to the second part is also “no and yes.”  While Superman and Batman no doubt broke multiple federal laws by breaking into the Last Line facility, it couldn’t have been treason for Superman, though it might conceivably have been for Batman.

In the US, treason is defined by the Constitution thus: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” U.S. Const. art. 3 § 3 (emphasis added).  That ‘only’ means that Congress has no power to redefine treason.  “This definition is meticulously exclusive and that it was so intended is indicated by the use of the adverb ‘only.’  The Constitution has left no room for constructive treason and Congress could not and has not undertaken to restrict or enlarge the constitutional definition.”  Stephan v. United States, 133 F.2d 87, 90 (6th Cir. 1943).

Arguably, neither Superman nor Batman has levied war against the United States.  Levying war requires that “a body of men be actually assembled for the purpose of effecting by force a treasonable purpose.”  Ex parte Bollman, 8 U.S. 75, 126 (1807).  I’m not sure how many men it takes to make “a body,” but I suspect it’s more than two.  Otherwise any two people who committed or intended to commit a violent crime against the United States could be charged with treason.

That leaves adhering to and giving aid and comfort to the enemies of the United States.  The problem is that the only possible enemy aided or comforted here is Superman himself.  And if Superman is an enemy of the United States, then it stands to reason that he cannot owe the United States a duty of loyalty and thus cannot commit treason.  If there were some larger entity that Superman was assisting (e.g. a Kryptonian separatist group), then that would be different, but as it stands he appears to be the only direct beneficiary, which makes it difficult to call him a traitor rather than a run-of-the-mill self-interested criminal (albeit one with superpowers).

The same cannot necessarily be said of Batman, however.  If Superman is an enemy of the United States (as proven when he broke into a military base), then Batman is arguably committing treason by helping him.  “Aid and comfort” are read very broadly, and includes “an act which weakens or tends to weaken the power of the [sovereign] and of the country to resist or to attack the enemies of the [sovereign] and the country.” Cramer v. United States, 325 U.S. 1, 29 (1945) (quoting Lord Reading in the Casement trial).  Since the Last Line was created specifically to defend against a possible rogue Superman, helping Superman destroy that facility seems like a pretty clear example of “weakening the power of the United States to resist or to attack the enemies of the United States.”

Superman’s citizenship is not an issue, by the way.  One does not have to be a citizen to commit treason; even a resident alien owes the United States a kind of loyalty, and Superman is definitely at least a resident alien (if not necessarily a lawful one).  See Carlisle v. United States, 83 U.S. 147, 154 (1872) (“The alien, whilst domiciled in the country, owes a local and temporary allegiance, which continues during the period of his residence.”).

III. Conclusion

So is Superman just completely hosed here if he wants to follow the law?  Not necessarily.  At a minimum, he could keep his Clark Kent alter ego safe by claiming to have developed a kryptonite allergy.  This would probably qualify as a disability under the Americans with Disabilities Act, with the result that the Daily Planet (or at least the part of the office where Kent works) would become a kryptonite-free zone.  Since there’s no real need for kryptonite there, that seems like a reasonable accommodation.

This may seem like a pretty poor consolation, but on the other hand Superman’s kryptonite-resistant “K-suit” managed to survive a pretty severe beating before giving out, so he’d probably be able to continue fighting crime effectively.  He’d just have to be a bit more careful.

31 Comments

Posted in Batman, constitutional law, criminal law, mailbag, Superman

Person of Interest: Witness

Posted on March 2, 2012 | 14 comments

We’ll be back with more comic book-inspired posts next week, but we’ve been clearing out the mailbag lately and we’ve had quite a few questions about television shows.  Today’s question comes from Brian, who asks about an episode of Person of Interest.  Minor spoilers ahead.

In the episode, protagonist John Reese is trying to protect a witness to a mob killing.  Unfortunately, the witness is shot in the shoulder.  With the mob still on their trail, Reese makes an attempt at first aid using topically applied cocaine and glue, without the witness’s prior consent.  Brian asks:

If/when the victim presents himself at the hospital and informs doctors of how it was treated, would the victim be in violation of any laws due to the presence of cocaine in his bloodstream and/or how would he be (legally) expected to handle the consequences of being given a highly addictive and illegal street drug as an analgesic?

There are several aspects to this question.  First, did Reese violate any laws?  Second, did the witness?  And third, how does the physician/patient privilege come into play?

First, a brief factual background: cocaine has legitimate medical uses, including as  a vasoconstrictor to control bleeding (that’s why it’s a Schedule II drug instead of Schedule I in the US).  Its use in that role is mostly limited to areas like the nose rather than large-scale trauma like a gunshot, but there’s at least some theoretical efficacy there.  Similarly, certain cyanoacrylate glues (e.g. Dermabond) are FDA approved for use in closing wounds.  The medically approved kind are not all that different from over-the-counter cyanoacrylate glues, so again there’s some vaguely reasonable basis for the treatment.

I. Reese’s Liability

The most obvious problem is that Reese purchased and possessed an illegal drug.  It’s hard to tell exactly how much he bought, but it was probably about a gram, which would make it fourth degree criminal possession of a controlled substance under N.Y. Penal Law § 220.09, a Class C felony, plus liability as a buyer.  Could this be excused under a necessity theory?  And even if that could be excused, what is his potential liability if his first aid actually made things worse?

A. Necessity

In New York, the defense of necessity is called “justification,” and is described by N.Y. Penal Law § 35.05:

… conduct which would otherwise constitute an offense is justifiable and not criminal when:

…

Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.

Basically New York follows a “choice of evils” theory: “the desirability and urgency of avoiding such injury [must] clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.”  Importantly, the choice is judged by an objective standard: the question is whether a reasonable person would agree that Reese’s conduct was necessary under the circumstances?  See People v. Craig, 78 N.Y.2d 616 (1991).

The word “necessary” must also be emphasized.  The statute “rules out conduct that is tentative or only advisable or preferable or conduct for which there is a reasonable, legal alternative course of action.”  Craig, 78 N.Y.2d at 623.

So, was there an imminent private injury?  Yes, the witness had been shot, was severely wounded, and there was no help on the way.  Was it Reese’s fault?  No, he was trying to protect the witness, who was shot by the mob.  Was Reese’s action necessary under the circumstances?  Quite possibly, but that issue would probably ultimately come down to expert testimony.  If a reasonable person would have thought that the witness was likely to die without the ad hoc medical treatment (and ordinary first aid would have been insufficient), then it was probably justified.

B. Good Samaritan Laws

So far, so good.  Reese may be off the hook for buying the cocaine.  But what if his unusual first aid actually made things worse?  Could the witness sue?

New York, like just about every state, has a “Good Samaritan law” that limits liability for people who render aid to others.  New York’s law is particularly strong, since it gives complete immunity to qualifying people who give aid:

… any person who voluntarily and without expectation of monetary compensation renders first aid or emergency treatment at the scene of an accident or other emergency outside a hospital, doctor’s office or any other place having proper and necessary medical equipment, to a person who is unconscious, ill, or injured, shall not be liable for damages for injuries alleged to have been sustained by such person or for damages for the death of such person alleged to have occurred by reason of an act or omission in the rendering of such emergency treatment unless it is established that such injuries were or such death was caused by gross negligence on the part of such person.

N.Y. Public Health Law § 3000-a.  So as long as Reese’s cocaine & Superglue first aid didn’t amount to gross negligence, he’s in the clear.  Of course, it’s easy to argue that cocaine is so often adulterated with toxic substances that it would be gross negligence to even try to use it in that situation.  It would all come back to what a reasonable person would think and whether Reese, knowing of an unreasonable risk, took it anyway.

So that’s Reese’s liability.  Now let’s turn to the witness.

II. Possession

If Reese’s use of the drug was justified, then the witness’s possession is also necessarily justified, but if Reese’s use wasn’t justified, then could the witness be in trouble?

In New York (as in most jurisdictions), possession requires knowledge of the possession of the controlled substance.  In this case, the witness was conscious as the cocaine was administered, so he certainly had knowledge.  And while he wasn’t asked for permission in advance, he seemed to consent during the procedure (“there’s a first time for everything”), so he can’t claim that he tried to divest himself of the drugs.

On the other hand, New York does not seem to recognize an “internal possession” theory of possession (e.g. using an elevated blood alcohol level as the sole evidence in proving that a minor had been in possession of alcohol).  I could not find a case specifically rejecting this theory, but the NIH agrees with this assessment.

So merely having cocaine in his bloodstream may not be enough to prove that the witness possessed cocaine.  Of course, the prosecution could impose immunity on Reese and compel him to testify, but that seems unlikely.

III. The Physician/Patient Privilege

New York, like many jurisdictions, privileges certain communication between a physician and a patient from disclosure.  N.Y. CPLR § 4504:

Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry, podiatry or chiropractic shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.

Knowing that the witness had potentially adulterated cocaine in his system would probably be necessary to enable a physician to attend to the witness in a professional capacity.  So given that, it’s difficult to see how the police would ever learn about what happened, assuming neither Reese nor the witness talked.

IV. Conclusion

We don’t typically follow Person of Interest, but this episode had a lot of interesting legal issues, even if some of them turned out to be moot points (if you’ve seen the episode or read the plot synopsis you’ll know what I mean).

14 Comments

Posted in criminal law, evidence, mailbag, television, torts

Grimm: Game Ogre

Posted on February 29, 2012 | 9 comments

[Note! This post is the subject of Law and the Multiverse Retcon #11. The 2020 U.S. Supreme Court decision Ramos v. Louisiana has reversed the law in Oregon (and Louisiana) and also my analysis of this case!]

It’s been a while since we’ve done a post on Grimm, and today we have a brief post about an interesting quirk of Oregon law brought up by episode 8, “Game Ogre.”

I. The Setup

The villain of the episode is, unsurprisingly, an ogre.  Nick’s partner Hank helped put him in prison 5 years before the episode, and after escaping from prison the ogre comes after Hank.  In the episode, Hank admits that he “misplaced” a faked security camera tape that might have established an alibi for the ogre.  Hank’s reasoning was that the ogre had a really good lawyer, and if only a single juror felt that the tape established reasonable doubt, then the ogre would have walked.

Interestingly, Oregon—where the show takes place—is the only state in the country for which that isn’t necessarily true.  The Oregon Constitution provides that “in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise.”  Ore. Const. art. I § 11.  Oregon has since replaced first degree murder with aggravated murder, but the unanimity requirement applies to aggravated murder.  See, e.g., State v. Sparks, 336 Or. 298 (2004) (en banc).  We’ll come back to aggravated murder in a moment; first a discussion of jury verdicts and the Constitution.

II. Unanimity and the Constitution

Federal statutory law requires a unanimous verdict in federal cases (Fed. R. Crim. Pro. 31).  However, this requirement is not necessarily rooted in the Constitution, and the states can permit convictions on less than unanimous verdicts.  Apodaca v. Oregon, 406 U.S. 404 (1972).  There was not a clear majority in Apodaca, so depending on which Justice you want to believe, the reason for this is either because the Sixth Amendment simply doesn’t require it or because that part of the Sixth Amendment isn’t incorporated by the 14th Amendment.

So just how much less than unanimous is okay?  The Supreme Court hasn’t drawn an exact line, but the Apodaca case upheld 11-1 and 10-2 convictions, though a later case held that 5-1 was impermissible.  Burch v. Louisiana, 441 U.S. 130 (1979).  Justice Blackmun, concurring in Apodaca, said that he’d be okay with 9-3 but not as far as 7-5.

So that’s the constitutional law aspect.  Now let’s turn to the facts of the case.

III. Aggravated Murder and Lesser Included Offenses

The show isn’t specific, but the ogre was probably charged with aggravated murder.  From the definition of aggravated murder in ORS § 163.095:

 “aggravated murder” means murder as defined in ORS 163.115 which is committed under, or accompanied by, any of the following circumstances:

…

(e) The homicide occurred in the course of or as a result of intentional maiming or torture of the victim.

In this case the ogre tortured his victim for two days, which would surely count.  So a guilty verdict would have to be unanimous, right?  Not necessarily, via the magic of lesser included offenses.  Basically, the concept of a lesser included offense recognizes that many crimes consist of “committing crime X, plus some other stuff.”  Thus, if someone commits the more serious crime, they’ve necessarily committed the lesser included offense of crime X.  A classic common law example is that robbery is larceny plus assault (i.e. stealing something by force or the threat of force).  So if someone commits a robbery, they’ve necessarily also committed both a larceny and an assault.

This has a few different practical effects.  For one, a defendant can’t be convicted of both an offense and a lesser included offense for the same criminal act.  So for example someone who forcibly steals a purse can’t be convicted of both robbery and larceny, since the larceny was part of the robbery.  Of course, if they forcibly steal a purse and then non-forcibly shoplift some jewelry, then that’s two separate acts and they could be convicted of both a robbery and a larceny.

Another practical effect of this doctrine is that a defendant can, however, be convicted of any lesser included offense of the crime charged.  Keeble v. United States, 412 U.S. 205 (1973).  In fact, in a capital murder case, the Constitution requires the jury to be given instructions for lesser included offenses like manslaughter.  Beck v. Alabama, 447 U.S. 625 (1980).

So, in the ogre’s case, the jury would have been instructed that they could find him guilty of aggravated murder, which requires a unanimous verdict, or they could find him guilty of a lesser included offense, which would require only 10 guilty votes, or they could acquit him.  So if one or two jurors believed the faked alibi tape, but the other 10 or 11 still thought the ogre was guilty of aggravated murder, the jury could still find him guilty of regular murder or manslaughter, the one or two votes to acquit notwithstanding.

In just about any other jurisdiction, the jurors who believe the alibi would vote to acquit and the result would be a hung jury.  Of course, if three or more jurors believed the alibi then all bets are off, even in Oregon.

IV. Conclusion

“Game Ogre” wasn’t the strongest Grimm episode, but more recent ones have been better.  We’ll definitely cover those in future posts, but we couldn’t resist the opportunity to make a post out of what is ordinarily a piece of legal trivia (although maybe it’s not so trivial to criminal defendants in Oregon!).

9 Comments

Posted in constitutional law, criminal law, criminal procedure, television

Ultimate Comics: Spider-Man

Posted on February 23, 2012 | 22 comments

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!

Continue reading →

22 Comments

Posted in criminal law, criminal procedure, Spider-Man

Dollhouse: Haunted

Posted on February 17, 2012 | 19 comments

We’ve written generally about the TV series Dollhouse before, but this is our first look at the legal issues raised by a particular episode from season one.  The show was recent enough that we’ll give a spoiler warning.

Continue reading →

19 Comments

Posted in criminal law, estate law, mailbag, property law, television

Buffyverse Vampires and Criminal Liability

Posted on February 10, 2012 | 78 comments

The inspiration for this post comes from an email from Will, who asked about vampires in Joss Whedon’s Buffy the Vampire Slayer and Angel.   Buffyverse vampires are a bit different from most mythological or fictional vampires.  For legal purposes, the biggest difference is that Buffyverse vampires retain their memories from mortal life but are possessed by a demon’s soul, so they tend to be evil.  This raises some interesting questions about vampires’ potential for criminal liability, especially for the character of Angel.

Note that I’m going to gloss over the issue of whether vampires are subject to the human justice system in the first place.  It’s arguable that, as non-humans, they lack legal rights.  From a legal perspective, the original human has died  because their cardiovascular functions have irreversibly ceased.  Cal. Health & Safety Code § 7180(a) (the California version of the Uniform Determination of Death Act).  Since they’re dead, they can’t be human.  That’s not very satisfying or interesting, though, so I’m going to ignore it.

I. Mental Capacity

Most vampires seem to be mentally competent, or at least as competent as they were in life.  Some of them aren’t very bright, but they aren’t anywhere near the level of mental incapacity required to be a defense under California law.  In California, the test for mental incapacity is the same as for insanity:  the accused must be incapable of understanding the nature of his or her act or distinguishing right from wrong. People v. Phillips, 83 Cal. App. 4th 170 (2d Dist. 2000).  Vampires seem mentally capable of understanding what they are doing, and they can distinguish right from wrong.  It’s pretty hard to revel in doing evil acts if you don’t understand that they’re morally wrong.

II. Insanity

For pretty much the same reason, it’s hard to argue that vampires are insane, at least under California’s M’Naghten test, which is defined by statute.  Cal. Penal Code § 25(b).  Under a different test, such as the irresistible impulse test, they might be found insane, but California does not recognize that test. People v. Severance, 138 Cal.App.4th 305, 324 (3d Dist. 2006).  The Severance case is actually surprisingly applicable: “The gist of defendant’s claim of insanity was that after he was hit on the head in January 2000, Satan took control of his mind and body and he did things he does not normally do—namely, rob two stores. In the words Flip Wilson playing Geraldine, “the Devil made him do it.” In essence, defendant’s claim of insanity was a claim he acted under an “irresistible impulse.” The irresistible impulse test, however, has long been discredited in California as a test for legal insanity.”  Severance, 138 Cal.App.4th at 324.

III. The Special Case of Angel

The character of Angel is (almost) unique among vampires.  Through various means throughout Buffy and Angel, his human soul is restored, lost, and restored again.  In his human-souled state, he is called Angel; his demonic form is called Angelus.  Angel feels remorse for the terrible deeds of Angelus and works to set things right.  Does this change anything?  From a legal perspective, I think not.  Essentially, he is akin to a person with a recurring mental illness that doesn’t quite rise to the level of insanity.

One might argue that Angel shouldn’t be punished for Angelus’s crimes.  After all, it’s not like Angel is likely to commit any of the same crimes.  But actually, incarcerating Angel would serve the function of incapacitation (i.e. preventing Angel from turning into Angelus and wreaking havoc).  So it wouldn’t solely be an exercise in (mostly pointless) retribution.  And arguably it would also serve a deterrent function for other vampires by showing that they can be caught and punished by humans.  They may be evil, but they’re not stupid.  Well, mostly.

IV. A Side-Note About Blood

Since the vampires in the Buffyverse can survive on animal blood, they can’t claim the defense of necessity for drinking human blood, at least non-consensually.  Angel generally drinks animal blood, so that’s not a problem for him, and California allows animal blood to be sold for human consumption. 3 CCR § 904.17.

V. Conclusion

Assuming the vampires are considered human (and thus capable of committing crimes in the first place), then their vampirism probably won’t save them from criminal liability.  In Angel’s case, that means he’s potentially liable for a couple centuries’ worth of killing, since there is no statute of limitations on murder.  The animal blood is probably legit, though, so I’m sure that’s a certain comfort.

78 Comments

Posted in administrative law, criminal law, mailbag, television

Chronicle

Posted on February 8, 2012 | 19 comments

The movie Chronicle came out last week, and it’s pretty good (the Blu-ray version comes out on May 15, 2012).  The basic plot is that three teenage boys develop powerful telekinetic abilities, resulting in, well, as the AV Club put it, “This is why teenagers cannot have nice powers.”  Obviously a lot of what goes on in the film is plainly illegal, especially toward the end, but there are some more subtle and interesting legal issues to discuss.  Spoilers ahead!

Continue reading →

19 Comments

Posted in movies, torts

Getting Rich with Superpowers, Part 2: Gambling

Posted on February 3, 2012 | 31 comments

This is the second post in our series on how common superpowers might be used to make money in the short term.  Our first post was about insider trading, and today we discuss the arguably related field of gambling.  First a little legal background, then we’ll get to the powers.

I. The Law

Throughout this post we refer only to legal gambling; obviously illegal gambling is against the law, and moreover the courts will generally not enforce an illegal gambling contract.  See, e.g., McConnell v. Com. Pictures Corp., 7 N.Y.2d 465 (1960) (“It is the settled law of this State (and probably of every other State) that a party to an illegal contract cannot ask a court of law to help him carry out his illegal object, nor can such a person plead or prove in any court a case in which he, as a basis for his claim, must show forth his illegal purpose.”)

There are several ways in which cheating can run afoul of the law.  First, winnings “earned” via cheating have been held in some jurisdictions to be unenforceable (i.e. the losing party can recover their loss from the winner). See, e.g., Berman v. Riverside Casino Corp., 323 F.2d 977 (9th Cir. 1963).  Second, states that have legalized gambling have also enacted laws criminalizing cheating.  See, e.g., Nev. Rev. Stat. §§ 465.070, 465.083.  We’ll mostly focus on Nevada law, since it has a well-developed body of law regarding gambling and cheating (no surprise there!).

II. The Powers

There are several powers that could be used to facilitate gambling, including telepathy, empathy, X-ray vision, superhuman speed or dexterity, precognition, eidetic memory, time-travel, and outright probability manipulation.  The question is, which of these, if any, could be legal to use?   We’ll start with what may be the only power that is actually legal to use.

A. Eidetic Memory

Eidetic memory would be of great use to a card counter.  Card counting has been held to be skillful play, not cheating, and a casino that allows a card counter to play must pay the player his or her winnings absent some other fraud.  Chen v. Nevada State Gaming Control Board, 116 Nev. 282 (2000) (en banc).  On the other hand, no one has a right or property interest in gambling at a particular casino, and a casino can bar a suspected card counter from playing.  Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173 (3d Cir. 2000).  Given that even a perfect card counter will require a hefty bank roll and a long stretch of play in order to realize a significant advantage, this approach, while legal, is far from a guaranteed thing.

B. Empathy

Empathy is where we begin to enter a grey area.  Arguably, reading someone’s emotions is akin to finding a gambler’s tells, and empathy is simply a more precise, direct way than, e.g., looking for facial cues or nervous tics.  Depending on how the power works, it might run into invasion of privacy problems, but some versions of the power (e.g. pheromone detection) likely wouldn’t as they make use of “broadcast” signals.  There is enough uncertainty left in reading an opponent’s emotions that it couldn’t be construed as knowing the outcome of the game, which sets empathy apart from many other powers.

C. Precognition and Time-Travel

Precognition and time-travel are, alas, probably a fraudulent act within Nev. Rev. Stat. § 465.070(5), which prohibits, “[placing] or [increasing] a bet after acquiring knowledge of the outcome of the game or other event which is the subject of the bet, including past-posting and pressing bets.”

Now, the real crux of the matter is the meaning of the word “after.”  A precog clearly places a bet “after” acquiring knowledge of the outcome, but the issue is less clear for a time-traveler.

Suppose the time traveler leaves the present (t1) and goes to the future (t2) to learn the outcome of the game, then returns to the past (t0, even earlier than t1) to place the bet.  Has the time-traveler placed the bet “after” acquiring knowledge of the outcome?  Common sense says yes: from the perspective of the time-traveler, the bet was placed after the outcome was known.  The time-traveler could make the argument that, objectively, the bet was placed before the outcome was known, but believe it or not that level of semantic hair-splitting is frowned upon by judges.

Of course, as with Biff Tannen’s scheme in Back to the Future, Part II, proving that someone is cheating by traveling through time is a tough sell unless time-travelers are well-known to exist.

D. Telepathy and X-ray Vision

Telepathy and X-ray vision are where we really cross the line into cheating  because these powers violate the rules of the game.  There’s no meaningful distinction between peeking over a player’s shoulder and using X-ray vision to look at their hand, and telepathy presents similar problems as well as invasion of privacy issues.  This may well fall under Nev. Rev. Stat. § 465.083, which simply makes it unlawful for any person to cheat at any gambling game.  Somewhat surprisingly, this law has been held not to be unconstitutionally vague, as we’ll discuss in more detail in a moment.

Failing that, these powers also likely fall under § 465.070(2), which prohibits “[placing], [increasing] or [decreasing] a bet or … [determining] the course of play after acquiring knowledge, not available to all players, of the outcome of the game or any event that affects the outcome of the game or which is the subject of the bet.” In most games, reading an opponent’s mind or viewing their hand is a great example of “acquiring knowledge, not available to all players, … that affects the outcome of the game.”

E. Superhuman Speed or Dexterity, Probability Manipulation

Superhuman speed or dexterity could be used in games like craps, either to place the dice in a particular position after rolling them or to roll them such that they are guaranteed to end up in a particular position.  There are actually cases that deal with these tactics, which hold that they are a form of illegal cheating.  Skipper v. State, 110 Nev. 1031 (1994) (holding that law criminalizing cheating was not unconstitutionally vague as applied to “dice sliding” in craps).

Those same cases would also appear to apply to probability manipulation.  “A skilled dice slider such as [the defendant], surreptitiously and contrary to the rules of the game, alters the probable outcome of a throw and drastically increases the chances of winning certain types of bets on the craps table.”  Skipper, 110 Nev. at 1035 (emphasis added).  Even though someone who manipulates probability may not even touch the dice (instead betting on someone else’s throw) or may play a game like roulette, the same logic would seem to apply.

III. Conclusion

There do not seem to be very many superpowers that could be used to legally and efficiently make money via gambling.  Many of these methods are hard to prove (e.g. precognition, time-travel), but they are nonetheless probably illegal.  Of course, many superpowers could be used to win bets of an altogether different kind, for example Wolverine betting on himself in boxing matches in X-Men, but it’s hard to make really serious money that way without arousing suspicion: eventually people catch on that betting against you is a bad idea.  It may actually be easier for a superhero to make money legally via the stock market than via gambling.

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Posted in contracts, torts

Aquaman’s Citizenship

Posted on February 1, 2012 | 28 comments

We’ve written previously about Superman’s U.S. citizenship (and his brief flirtation with renouncing it), but he isn’t the only superhero with potential citizenship issues.  Believe it or not, Aquaman has troubles of his own, even if they aren’t addressed explicitly in the comics.  As astute reader Frank asked, “[DC New 52] Aquaman is half-American, on his father’s side. As a citizen, can he hold a title of nobility, namely “King of Atlantis,” in a foreign country?”  As the question implies, there are two issues here: Can Aquaman be King of Atlantis while remaining a U.S. citizen?  And can a U.S. citizen hold a foreign title of nobility?

I. Renunciation

As discussed previously, 8 U.S.C. § 1481 provides several ways in which someone can lose their U.S. citizenship, if they are done “with the intention of relinquishing United States nationality.”  In Aquaman’s case, subsection (a)(4)(A) is the most likely route to renunciation:

accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state

Since Aquaman is an Atlantean citizen, assuming the office of King of Atlantis would seem to be sufficient.  Strictly speaking, he would also have to do so with the intention of relinquishing United States nationality, but intent can be inferred from actions.  Perkins v. Elg, 99 F.2d 408, 412 (D.C. Cir. 1938) (“expatriation is a matter of intent on the part of the person concerned, which intent must be shown by some express act or some other act from which it can be gathered”).  In fact, the State Department considers accepting a policy-level position in a foreign government to be prima facie evidence of intent to relinquish citizenship.  The fact that Aquaman remains a citizen of Atlantis means that he is not at risk of becoming stateless, which is one of the major policy reasons prohibiting the involuntary imposition of expatriation.  Tropp v. Dulles, 356 U.S. 86 (1958).

Notably, Aquaman later abdicated the throne to be a full-time superhero based in Boston.  Could this abdication signal that he never intended to relinquish his American citizenship?  Probably not.  “After an American citizen has performed an overt act which spells expatriation under the wording of the statute he cannot preserve for himself a duality of citizenship by showing his intent or understanding to have been contrary to the usual legal consequences of such an act.”  Grassi v. Acheson, 101 F.Supp. 431, 432 (D.D.C. 1951); see also Terrazas v. Muskie, 494 F.Supp. 1017, 1020 (N.D.Ill. 1980) (“plaintiff’s struggle to retain his citizenship is likely evidence of his realization of the gravity of his earlier decision to relinquish his citizenship”).

So is there any hope for Aquaman?  There is a slim thread.  Any doubts or ambiguities in these kinds of cases must be resolved in favor of retaining citizenship.  Dulles v. Katamoto, 256 F.2d 545, 548 (9th Cir. 1958) (“in construing § 401(d) as to such a dual national … the facts and the law should be construed as far as reasonably possible in favor of the citizen.”); Nishikawa v. Dulles, 356 U.S. 129, 133 (1958) (“when a citizenship claimant proves his birth in this country or acquisition of American citizenship in some other way, the burden is upon the Government to prove an act that shows expatriation by clear, convincing and unequivocal evidence”).  Unfortunately for him, the only issue is whether Aquaman intended to relinquish his citizenship: the fact that he voluntarily assumed the throne of Atlantis is established beyond doubt.

II. Titles of Nobility

The Title of Nobility Clause of the U.S. Constitution forbids both the federal government and the states from granting titles of nobility.  U.S. Const. art. 1 § 9 cl. 8; U.S. Const. art. 1 § 10 cl. 1.  Furthermore, “no person holding any office of profit or trust under [the United States], shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”  But these clauses do not prohibit private citizens from holding such titles,  so Aquaman is in the clear in that regard.  He could hold a title of nobility as long as he did not “accept, serve in, or perform the duties of any office, post, or employment under the government of” Atlantis.

By the by, the reason why U.S. citizens are granted honorary knighthoods rather than proper ones (e.g. Bill Gates, who is a KBE but may not use the title “Sir”) is not because of the Title of Nobility Clause but rather because proper knighthoods are only granted to British subjects.

There is a proposed constitutional amendment to prohibit private citizens from holding titles of nobility, on pain of expatriation, but it has not been ratified by three-fourths of the states.  Interestingly, the twelve ratifications it has received so far still “count,” and so if 28 more states ratified it then it would become part of the Constitution.  Such a long period between proposal and adoption is not unheard of: The Twenty-Seventh (and currently last) Amendment was adopted 203 years after its proposal in 1788.

III. Conclusion

Once again Aquaman has been overshadowed by better-known superheroes, even when it comes to fictional legal troubles.  Where was the Fox News outrage that the former King of Atlantis was allowed to roam the streets of Boston without being deported?  Where are the Republican candidates on this issue?  Superman merely threatened to renounce his citizenship in a non-canon side-story, whereas Aquaman actually went and did it, as far as the law is concerned, yet there is only silence.  Aquaman just can’t catch a break.

28 Comments

Posted in constitutional law, international law, mailbag