Category Archives: constitutional law

The Sons of Liberty

Posted on October 19, 2012 by | 17 comments

The Sons of Liberty, Book I is the first installment in Alexander and Joseph Lagos’ 2010 graphic novel series of the same name. Book II came out last year, but I haven’t gotten to that one yet. The premise is that two slave boys in colonial America acquire superpowers via experiments into electricity performed on them after they escape from their master, a Virginia tobacco farmer. The boys are Graham and Brody, and they come under the tutelage of fictionalized Benjamins Lay and Franklin in 1760.

The book is unusual for several reasons. There aren’t a ton of graphic novels set in the Revolutionary period, nor does Random House put out all that many graphic novels, for that matter. But it provides a great opportunity to take a quick look at a rather unpleasant chapter in American legal history: laws having to do with slavery. Continue reading →

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Posted in constitutional law, legal history

Surrogates II: Crime and Law Enforcement

Posted on September 17, 2012 by | 34 comments

We started our discussion of Surrogates back on Labor Day, and this time we’re going to talk about the story’s implication on law enforcement, crime, and punishment. We touched briefly on the labor issues related to an all-surrogate police force, but are there legal issues too? And do the story’s claims about the impact of the widespread operation of surrogates bear up under analysis? Read on! Continue reading →

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Posted in constitutional law, criminal law, criminal procedure

Manos: The Hands of Fate

Posted on August 20, 2012 by | 15 comments

No, really. We’re going to talk about Manos: The Hands of Fate, one of the worst movies ever made, with a rare 0% on Rotten Tomatoes. Even the title (“Hands: The Hands of Fate”) is terrible. The movie isn’t just bad, it’s downright incompetent. It might not even be possible to make a movie this bad anymore; two guys with an iPhone would have infinitely better production values.

The immediate reason for talking about this is that the guys from Rifftrax, i.e., the ones responsible for the absolutely classic MST3K episode featuring the movie, just did a live riffing of the movie on August 16, 2012. You should have been there. They’re doing Birdemic in October, just in time for Halloween. The way it works is that the three of them show up live in a theater—this time it was in Nashville—and the show is broadcast live to theaters around the country. It’s an enormously good time.

Anyway, believe it nor not, there is a very, very important legal issue to be discussed here. A legitimate one, one which has been the subject of some of the most significant U.S. Supreme Court decisions in the last fifty years. Remember the two teenagers making out in the convertible that kept getting busted by the movie’s Barney Fife equivalent? They represent a perfect opportunity to discuss loitering and its enforcement. There aren’t any spoilers here to speak of—it’s not like it’s possible to spoil this movie anyway—so here we go. Continue reading →

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Posted in civil rights, constitutional law, criminal law, movies

Total Recall

Posted on August 13, 2012 by | 11 comments

Earlier this month, Total Recall hit theaters. This isn’t exactly a remake of the 1990 Arnold Schwarzenegger movie, but instead more of a parallel adaptation of “We Can Remember it For You Wholesale,” a 1966 Philip K. Dick short story. It’s a bad movie on multiple levels. For one thing, somebody needs to revoke the lens flare privileges of whoever thought sticking the effect in 50% of the shots in the movie was anything remotely like a good idea. Also, if you’re going to cast two actresses who look somewhat alike, in the same movie, and have them get in a fight, at least have the decency to have one of them dye her hair or something so the audience can tell who the devil is winning.

The premise is basically ridiculous. Both movies and the short story have two primary settings. The story and first movie have those settings be Earth and Mars. But this movie? England and Australia, connected by “The Fall,” a patently impossible tunnel through the center of the earth which is used as a daily commute between the “United Federation of Britain” and “The Colony.” It apparently takes seventeen minutes to travel approximately 8,450 km, about 30,000 km/hour. Surprisingly enough, this is only about twice as fast as physics suggests should be the case, but really, having a human colony on Mars seems a lot more plausible. Compared to moving hundreds of megatons of rock and dealing with the immense pressures near the Earth’s core, going to Mars seems downright trivial.

The other major feature of the movie is common to all three works, i.e., “Rekall,” pronounced “recall.” It’s a company that’s perfected the process of both reading and writing memories into the human brain. They bill themselves as a vacation or adventure company. Don’t have the money to do whatever? Want to do something squicky? For a modest fee, you can get those memories in a matter of minutes. The technology also extends to erasing and replacing existing memories. This raises two issues, both of which we’ve talked about before: amnesia and mind reading.

I. Amnesia

We actually looked at this in the abstract last year, when we concluded that in most cases, amnesia is not a bar to prosecution. The argument is that a person who has no memories of the charged offense can’t offer assistance to his lawyer. Unfortunately, the courts have pretty much roundly rejected this idea (with the possible exception of the D.C. Circuit). Amnesia can be considered in competency hearings, but it’s rarely dispositive and does not act as an automatic bar to prosecution.

The justification for the rule is largely practical. If the head trauma is really bad, the defendant will probably be incompetent for other reasons, independent of amnesia. If you’re catatonic, a lack of memories is the least of your problems. Further, most of the time when this comes up in real cases, the defendant is strongly suspected to be faking and/or on drugs. Amnesia isn’t actually all that common absent head trauma or drugs. The former is pretty obvious to spot, and the courts strongly disapprove of letting voluntary use of drugs or alcohol keep someone from justice. And even if a person has no specific memories of the crime in question, odds are really good that they will still be able to assist their lawyer. They’ll know who their family and friends are, so they can probably get a pretty good idea of where they’ve been. They’ll still be able to weigh the objective evidence, e.g., forensic and surveillance evidence. Etc.

But what about if one’s memories aren’t just missing, but have been completely replaced? What if Douglas Quaid, apparently a factory worker, is actually an intercontinental (or interplanetary) intelligence operative? That might be a different situation. Here, the accused probably would have no way of reconstructing their whereabouts. They’d simply have no idea what was going on. And in the presence of technology which makes that kind of thing plausible, a court might take that into account. Still, the court also takes into account the strength of the government’s case. If they’ve got the defendant dead to rights, an amnesiac but otherwise mentally competent defendant would probably be found competent (and guilty).

II. Mind Reading

The technology also apparently permits fairly accurate mind reading, to the point that messages can be planted in someone’s brain to be delivered to someone who reads said brain later on. This is Johnny Mnemonic territory. But what about the use of this technology in the case of a defendant that’s pleading amnesia? Might a court be able to order the use of the technology to determine if the defendant is telling the truth?

This is a closer call. On one hand, the Fifth Amendment does create a right against self-incrimination. We’ve discussed this previously and came to the conclusion that telepathy and mind-reading technology can’t be used to get evidence from a criminal defendant’s mind against their will at trial. But on the other hand, a court can order the psychiatric evaluation of a criminal defendant. Indeed, a defendant found incompetent can be held indefinitely and subjected to involuntary psychiatric treatment, including forcible medication. That’s exactly what happened to Jared Lougnher, the shooter in the 2011 Tucson shooting.

So could a court order the use of mind-reading technology for the limited purpose of determining competency? Probably. But statements given during a psychiatric evaluation to determine competency may not be used for any other purpose unless the defendant consents (i.e. is properly warned first) or the defense brings it up at the trial.  Estelle v. Smith, 451 U.S. 454 (1981).  As the Eighth Circuit explained in Wise v. Bowersox, 136 F.3d 1197, 1205 (1998):

No violation of the privilege against self-incrimination arises from a trial court’s ordering a defendant to undergo a psychological examination if the information gained in that examination is used solely to determine whether the defendant is competent to stand trial and not to show that the defendant is guilty or that he deserves a particular sentence.

Even without mind-reading technology, this is something to keep in mind. If a defendant wishes to assert any kind of psychiatric problem as a defense or delaying tactic, the courts and prosecution have pretty broad-ranging powers to investigate that assertion. And, as also explained in Wise, refusal to cooperate may result in an adverse inference (i.e. an assumption that the defendant must be faking it), so there’s not a lot of point to it.

III. Conclusion

Really, there’s not much to be said in favor of the movie. The movie itself doesn’t really involve any particularly interesting legal concepts. Its take on mind-reading technologies has interesting implications, but none of them are really worked out on screen. Given the complete implausibility of the rest of the movie (A society that can build a tunnel through the Earth’s core can’t figure out how to clean up the landscape after a chemical weapons release? Really?), this one’s best skipped.

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Posted in constitutional law, evidence, movies

The Uniques I: Registration

Posted on June 6, 2012 by | 30 comments

We discussed The Uniques on Monday, giving a sort of introduction to the authors, the estimable Comfort Love and Adam Withers, and the story itself. Very briefly, Comfort and Adam are awesome, and The Uniques is an unfolding story, still in its early stages, about a world where superheroes aren’t just a sort of bonus pack to reality that somehow doesn’t affect anything, but a vital, hugely important part of modern history. Which might be the most ambitious and fun thing that we’ve seen anyone try to do. So you should read it.

This week, we’re going to start looking at the way The Uniques deals with law and the legal system. And where better to start than with what has been the single most debated issue in any superhero setting: registration. Continue reading →

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Posted in constitutional law

Law and the Multiverse CLE Reminder

Posted on May 22, 2012 by | Leave a comment

We have two new live CLE courses coming up, courtesy of Thomson West: What Superheroes and Comic Books Can Teach Us About Constitutional Law today, May 23rd at 1PM Eastern and Real-Life Superheroes in the World of Criminal Law on May 30th, also at 1PM Eastern.  CLE accreditation is available in most states.  Last year’s CLE courses were a big hit, so we hope you’ll join us again this year!  Remember to use promo code MULTIVERSE30 for 30% off!

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Posted in constitutional law, conventions and talks, criminal law

Who Owns Wolverine’s Bones?

Posted on May 18, 2012 by | 58 comments

Today’s post was inspired by an email from Frank, who asks:

Does Wolverine own his bones? Does Captain America own his shield?

Both of these characters are military agents granted  items by employers. Since I didn’t get to keep my rifle when I left the military, I presume that Cap would have to turn in his shield should he ever leave military service (or, in the case of the Civil War storyline, be prosecuted and presumably discharged).

Wolverine’s a more interesting case. Let’s presume that since adamantium is unbreakable, it will always have value of some kind. Can a body part be repossessed? Can you “own” an artificial organ installed in another person? Would it matter that Wolverine doesn’t need the adamantium to live, because of his healing power?

These are interesting questions!  We’ve previously (and very theoretically) addressed treating superpowers as personal property, but in this case we’re dealing with special equipment rather than intrinsic abilities.  I’m going to address Captain America first, since it’s the easier one to answer.

I. Who Owns Captain America’s Shield?

The answer seems to be “the US military.”  This is true of other military-issue equipment, including weapons and body armor.  And sure enough, the comics treat it that way, with Captain America giving up his shield on the few occasions in which he left service (e.g., Captain America #332).

So that’s that.  On to the much trickier case of Wolverine.

II. Who Owns Wolverine’s Bones?

Of course, what we mean here is the adamantium bonded to Wolverine’s skeleton, not the bones themselves.  In some ways it’s similar to having a plate or screws put in place by an orthopedic surgeon, or a device like a pacemaker implanted by a cardiologist.  The patient still has all of his or her parts, there are just some new bits added.

Normally the patient owns those bits, however, and they are just like any other piece of personal property.  In the UK, for example, “on implantation, an implant becomes the property of the person in whom it has been implanted and it remains his or her property even if it is subsequently removed. Following the patient’s death, it forms part of his or her estate unless there is any specific provision to the contrary.”  Department of Health and Social Security Health Notice HN(83)6 (1983).  The situations appears to be the same in the US, although I was unable to find such a specific statement.  I assume it is likewise the same in Canada, which is really the relevant jurisdiction here.

(Note that the situation with implanted devices is distinct from naturally-occurring organs and tissues.  The courts have pretty universally held that people do not have a property right in their own bodies or the parts thereof.  See, e.g., Moore v. Regents of Univ. of Cal., 51 Cal.3d 120 (1990).)

So under normal circumstances, Wolverine would appear to own the adamantium in his body.  But these are not normal circumstances.  Wolverine was a soldier, but he was also brainwashed by the Weapon X project.  So while he may have technically signed some sort of agreement giving the Canadian government ownership of the adamantium, the circumstances under which the agreement was made mean that it is probably not binding, either because of fraud or Wolverine’s mental incompetence.

But what if there had been no brainwashing and the Weapon X project had been completely forthright with Wolverine?  Is it even possible for someone to own a part of another person’s body?  What if it can be removed without (permanently) harming them?

These are interesting questions with no clear answer.  At least one commentator, writing in the context of microchip implantation, has argued that it is both possible and desirable to extend existing law to reach the conclusion that “anything within an individual’s body [is] the property of that individual.”  Elaine M. Ramesh, Time Enough? Consequences of Human Microchip Implantation, 8 Risk: Health Safety & Env’t 373, 403 (1997).  I agree with that conclusion, even if it is difficult to point to a particular legal principle that supports it.

Another approach is to consider not the property right but the remedy.  Supposing that the Canadian government did own the adamantium, how could it enforce that right?  It’s true that Wolverine could probably survive the removal of the adamantium, but it would be extremely intrusive even if the pain could be minimized through anesthesia.  It seems doubtful that a court would order such an operation.  Involuntary medical operations are generally limited to prisoners and people who have been involuntarily committed and even then there are significant due process safeguards.  Washington v. Harper, 494 US 210 (1990).  I suspect the law is similar in Canada, though Wolverine seems to spend most of his time in the US these days.

III. Conclusion

Not all superhero equipment is created equal, even equipment that came from the military.  Captain America will have to give up his shield if he retires, but Wolverine probably owns his adamantium bones, or can at least retain possession of them as long as he lives, which should be a very long time!

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Posted in constitutional law, contracts, mailbag, property law, X-Men

The Avengers: Declarations of War

Posted on May 14, 2012 by | 41 comments

Our last post, discussing the issue of compensation for the property damage that resulted from the battle over Midtown Manhattan, delved into whether or not the battle counts as an “act of war” or even just a “war” or whether it counts as “terrorism” or something else. This is as good a time as any to discuss what it means to be “at war” and what “war” means as a legal concept. Continue reading →

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Posted in constitutional law, international law, movies

Mayor Jameson’s Eminent Domain Problem

Posted on May 2, 2012 by | 30 comments

We’ve picked on Spider-Man a bit recently, so in interests of fairness we’re going to pick on J. Jonah Jameson, who is currently the mayor of New York in the Marvel Universe.  Recently, Jameson has focused his ire on Horizon Labs, a research and development company that happens to employ Peter Parker in his capacity as a scientist.

The particular issue in today’s post comes from a question from Christopher, who writes:

[In Amazing Spider-Man #682] Parker and other Horizon Labs employees witness a confrontation between HL owner Max Modell and Mayor Jameson in which the Mayor says “As Mayor of this city, I am ordering all of you to vacate these premises immediately!” He has arrived to bully HL into shutting down and gives various reasons [, listed below]. Later in issue 683 he comes back with “Chief Pratchett” presumably some ranking officer in the NYPD and shuts off the company’s power supply: “You’re not getting a single amp out of Con Ed!” He then orders “Chief Pratchett, have your men clear the building, after that, no one gets in or out, understood?” Chief Pratchett accedes to the request but we cut away from the confrontation and don’t return this issue.

This is obviously an ongoing storyline which will play out over another 4/5 issues but surely Jameson is overstepping his authority to clear out a private building without any kind of court order. And isn’t Pratchett wrong to comply?

At various points in #682 and #683 Jameson gives some reasons for wanting Horizon Labs shut down, including:

1. “This man has access to spider-jammers that could control Spider-man! Yet he refuses to turn them over to the city!” (see Spider-Island 667-673)
2. “One of your people built a time machine that did destroy the city.” (678-679)
3. “And now I hear you have a monster holed up here?!” (679.1 The “monster” is Dr. Morbius)
4. “Two days ago, you almost got my son killed.” (680-681)

So, is any of this sufficient to justify cutting power and ordering the police to clear the building?

As Horizon’s lawyer, who was present for the first confrontation with Jameson, argues, probably not.  The spider-jammers have been destroyed, the EPA cleared Horizon regarding the alternate universe incident (who knew that the EPA had jurisdiction over time travel and alternate futures?), and Dr. Morbius isn’t a monster but rather suffers from a poorly-understood medical condition.  Jameson isn’t satisfied and vows to return, which leads to the second confrontation (the one with the power-cutting and the police).

But suppose Jameson’s allegations were correct.  Could the mayor really do that?  And if not, what is the potential liability for Pratchett and the other police officers?

I. Eminent Domain

The most likely source of Jameson’s power to order Horizon shut down is eminent domain, which allows the taking of private property for public use in exchange for just compensation.  New York has a statute, the New York Eminent Domain Procedure Law, that is just what it sounds like.  It sets out “the exclusive procedure by which property shall be acquired by exercise of the power of eminent domain in New York state.”  N.Y. Eminent Domain Proc. Law § 101.  Unfortunately for Jameson, it doesn’t look like he has complied with the procedures.

A. Public Hearing

Ordinarily the eminent domain process begins with a public hearing.  § 201.  However, there are some exemptions, one of which is when “because of an emergency situation the public interest will be endangered by any delay caused by the public hearing requirement in this article.” § 206(D).  I suppose it’s arguable that Horizon presents such an extreme danger to the city that a public hearing can be avoided.

However, Horizon labs could file suit to challenge the City’s determination that it is exempt under § 206(D).  “Where, however, a condemnor proceeds under one of the exemptions provided in EDPL 206, and therefore claims that it is not required to comply with the foregoing notice, hearing, and determination requirements, a condemnee may, unless otherwise provided by statute, challenge the applicability of the claimed exemption in the Supreme Court … .” Steel Los III, LP v. Power Authority of N.Y., 33 A.D.3d 990, 990-91 (2006).  The reviewing court would almost certainly issue a temporary restraining order or preliminary injunction preventing the City from shutting down Horizon until it had reviewed the case.  Given that Horizon appears to be represented by competent legal counsel, I think it’s likely Horizon would go to court once Jameson threatened to take the building.

B. Negotiations

The eminent domain law also requires the condemnor (i.e. the City) to “make every reasonable and expeditious effort to justly compensate persons for such real property by negotiation and agreement” “at all stages prior to or subsequent to an acquisition by eminent domain.” § 301.  This includes making at least one written offer representing the just compensation for the property.  § 303.

In this case, we don’t see any discussion of compensation, much less negotiation or a written offer.  Instead, Jameson seems to think he can simply take the building outright.  There is a lot more to eminent domain, but I think that’s enough to establish that Jameson wasn’t doing it right.

II. Consequences

Assuming the City can’t legally take the building through eminent domain, what are the possible consequences for cutting power and forcibly evacuating the building?  The most likely result is a § 1983 suit alleging a violation of Horizon’s constitutional rights, specifically their rights under the Fourth Amendment.  If successful, this could result in an award of actual damages, punitive damages, and attorney’s fees.  Given the expensive equipment and experiments that may have been lost or damaged by the sudden loss of power, that could be a pretty significant bill for the city.

Importantly, the City and officers could claim qualified immunity under § 1983.  “The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  Pearson v. Callahan, 555 U.S. 223, 231 (2009).  “The protection of qualified immunity applies regardless of whether the government official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.”  Id.

So, for example, if the officers were told that the City had a court order to shut down Horizon, then the officers might not be liable because they were operating under a mistake of fact.  Jameson, however, clearly knew what was up, and I think it would be hard for him to claim qualified immunity, at least if he thought he was exercising the power of eminent domain, since a reasonable person would have known about the proper procedure for doing so.

III. Conclusion

There are other possible ways that the City could try to shut down Horizon (e.g. alleging violations of the law and arresting everyone or suing the company), but the way it’s depicted in the comics really suggests eminent domain to me.  I think it’s reasonable to assume that if the City had a good claim to criminal or illegal activity then it would have simply called in the cops or sent in the lawyers.  Jameson’s approach is so vague that eminent domain is the only thing that I can think of that fits the bill.  Alas, his failure to follow proper procedures is likely to get him (and the City) sued.

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Posted in civil rights, constitutional law, mailbag, property law, Spider-Man

Time Travel, Resurrection, and Double Jeopardy

Posted on April 23, 2012 by | 41 comments

This is an issue raised tangentially by The Kingdom, a sort of spin-off storyline from Kingdom Come. The basic premise is that a villain kills Superman, then goes back in time and kills him again. And does this at more-or-less regular intervals back down the timestream.

The set up suggested at least a possible interaction with double jeopardy, prohibited by the Fifth Amendment, in that we’re looking at a situation where a defendant could potentially be charged more than once for killing the same person. On that note, we’re also going to look at the possibility of a defendant killing someone, the victim rising from the dead, and the defendant killing them again, as it seems factually similar. Continue reading →

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Posted in constitutional law, criminal law, criminal procedure, evidence