Category Archives: criminal law

The Lincoln Lawyer

Posted on May 27, 2011 by | 28 comments

A couple of months ago we were asked about the movie The Lincoln Lawyer.  It’s not a comic book film, but it’s still close enough to pop culture that we thought people might be interested in a short post about it.  Spoilers follow, starting with the question itself.

“Benjamin Button” asks “is it feasible that any of [Mickey Haller’s] ‘legal obligations’ could prevent him from telling the courts that his client did in fact murder someone?”

In the film, Mickey Haller is the titular criminal defense lawyer.  He discovers that one of his clients (Louis Roulet) is a serial killer, but attorney-client privilege apparently prevents him from disclosing information that could free a former client (Jesus Martinez) wrongly convicted of one of Roulet’s crimes.  So the question really goes to the crux of the plot: is Haller actually in an ethical bind, and is his solution actually within ethical boundaries?

I. The Attorney-Client Privilege and the Duty of Confidentiality

The film is correct in stating that the privilege is held by the client, not the attorney, and that an attorney has an obligation to keep a client’s confidences.  In California, where the film takes place, the Business and Professions Code § 6068(e)(1) states that attorneys must “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”  Confidentiality is a key part of being an attorney, and attorneys take that obligation very seriously, even in the face of death threats and criminal charges.  Without Roulet’s permission Haller could not testify against Roulet in court, nor could he disclose what he knew to the police or anyone else.

There are narrow exceptions to the duty of confidentiality, but they do not apply here.  In California, an attorney “may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the member reasonably believes the disclosure is necessary to prevent a criminal act that the member reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.”  California Rules of Professional Conduct 3-100.  Although Roulet showed signs of being a serial killer he was careful not to overtly threaten anyone or indicate a planned future crime.  Haller’s hands remain tied.

II. Haller’s ‘Solution’

Unfortunately, Haller’s solution is not free of ethical problems, to say the least.  The biggest issue is that Haller inappropriately discloses confidential information to at least two people: Gloria and Margaret.

Gloria is the imprisoned client that he uses to relay information to a known jailhouse snitch; she alleges to the snitch that if he testifies against Roulet that the prosecutor will cut him a deal.  There are several problems here.  First, there’s the breach of confidence inherent in disclosing anything that Roulet told Haller.  Second, he asked Gloria to solicit the snitch to commit perjury.  This is a violation of Rule 1-120 and quite likely a crime as well.

Margaret is Haller’s ex-wife and a prosecuting attorney.  Haller tells Margaret that his investigator, Frank, found information tending to exonerate Jesus Martinez and implicating Roulet in a prior murder.  But Frank only found that information as part of his investigation into Roulet’s alibi, and therefore the information is privileged.  Note that in many jurisdictions Margaret would be under an affirmative duty to report Haller’s ethical breach (ABA Model Rule 8.3), but California does not have a mandatory reporting rule for attorneys.  Nonetheless, she could theoretically report him, although the movie suggests that would be out of character for her.

III. Haller’s Other Ethical Breaches and Crimes

Haller commits several other ethical breaches, but we’ll limit our discussion to three of the most egregious ones.  First, he lies to a judge about the need to continue a trial by inventing a fictitious witness (“Mr. Green”) in order to extract payment from a client.  This violates Rule 5-200: an attorney “Shall not seek to mislead the judge … by an artifice or false statement of fact.”  It also violates § 6068: an attorney may not “encourage … the continuance of an action or proceeding from any corrupt motive of passion or interest.”  It’s also almost certainly a crime.

Second, Haller commits an ethical violation when he promises to recommend Val Valenzuela’s bail bond services in exchange for being recommended as an attorney to Roulet.  Rule 1-320(B) states “A member shall not compensate, give, or promise anything of value to any person … for the purpose of recommending … employment of the member … by a client, or as a reward for having made a recommendation resulting in employment of the member … firm by a client.”  Although it ultimately comes out that Roulet had specifically requested Haller and that Valenzuela was simply trying to secure a recommendation for his bail bond service, Haller did not know that at the time that he made the deal with Valenzuela

Third, it is strongly implied that Haller contacted the biker gang and asked them to beat up Roulet.  This is obviously a crime.

IV. The Good Stuff

We don’t want to sound too down on the movie.  It’s an enjoyable court room drama with a nice twist, and it gets many of the legal details right, even if the protagonist is ultimately a scoundrel and a hypocrite.  (Haller defends his career as a criminal defense lawyer on the basis of the sanctity of the justice system and criticizes a prosecuting attorney for going too far, yet Haller himself repeatedly acts outside the justice system.)

So, here’s some of the good stuff.  Criminal defendants often do not get nice rooms alone with their attorneys; the movie’s portrayal of conversations between Haller and his clients are pretty accurate.  Court is largely fairly boring, heated objections are rare, the jury is excused when discussing issues like whether a new witness can be put on the stand, and objections are made with reasons instead of simply by shouting ‘objection!’  Attorneys are usually collegial toward one another outside the courtroom.

V. Conclusion

The Lincoln Lawyer is a pretty good film as long as you don’t come away with the mistaken impression that Haller is just a slick attorney who knows how to work the system.  Instead, he’s a flawed, conflicted attorney who often uses morally and legally questionable means to accomplish noble ends.

28 Comments

Posted in criminal law, legal ethics, movies

Kick-Ass

Posted on May 25, 2011 by | 14 comments

So last year a little movie called Kick-Ass was released to theaters. It was moderately successful, to the point that a sequel has been rumored, though that’s apparently in limbo for the moment. At any rate, the basic plot is that an unpopular high school kid, under the influence of comic books and a healthy dose of insecurity, decides to step up and be a superhero. He even gets a costume and everything. The results are… well… not exactly heroic per se, but pretty funny. This review is organized less around specific legal issues than the characters and the legal issues they raise. Spoilers follow as always.

I. “Kick-Ass”

First off, “Kick-Ass” himself. Better known—or rather “officially”, since no one seems to know him at all—as Dave Lizewski, resident of what seems to be either Brooklyn or Queens, is a loser. Plain and simple. He spends a disproportionate amount of time either hanging out in a comic book store or local diner with his two outrageously nerdy best friends or being rendered speechless by Katie, the girl he’s got a massive crush on. A couple of local thugs have set up shop in a parking lot/alley that Dave and his friends regularly cross on their way to and from school, and the thugs have relieved them of their lunch money and consumer electronics with sufficient regularity for it to have become something of a ritual. Then, one day, he asks himself why no one has tried to be a superhero in real life. He decides to go for it, and orders himself a wetsuit from an online vendor. After a couple of modifications and some… batons? practice swords? they’re never really identified… he’s got himself a costume and a self-imposed mandate. Who does he run into first? The aforementioned thugs. Emboldened (delusional?) by his newly-discovered superhero-ness, he decides to make a stand.

The scene of a gangly, out-of-shape teenager going after two muscle-bound thugs goes about as well as could be expected. Dave—excuse me, “Kick-Ass”—surprises the thugs for a minute when he resists, and manages to land one or two decent shots with his sticks. But unlike the stories in comic books, these thugs are not easily intimidated, nor do they mess around. Kick-Ass gets knifed in the gut pretty much right away, and as he wanders off, bleeding profusely, Kick-Ass gets hit by a car, shattering just about every bone in his body. The resulting full-body x-rays reveal pins and plates throughout his entire skeleton, yielding a picture which admittedly does look like a film of Wolverine, if Wolverine’s adamantium frame were patched together piecemeal with pins and screws rather than seamlessly welded to his skeleton by design. After a few weeks in the hospital Dave returns home, little worse for the wear, except that the damage to his spine has deadened his ability to feel pain. In short, Kick-Ass’s one superpower is the ability to take an ass-kicking slightly better than your average guy, not out of sheer physical toughness, but because he’s damaged goods.

After that auspicious start, things get a bit more interesting, legally speaking. Kick-Ass gets his break-out moment when some civilians upload a video to YouTube of him fighting off a group of hooligans to save a random stranger. The superpower does come in handy, as Kick-Ass really does take a beating, but he manages to get off a few defiant quotes about being willing to die rather than watching a group of guys beat up a defenseless man while the crowd watches. And you know what? Dave, as Kick-Ass, would be entirely within his rights to do what he did there. The right to defend others is basically co-extensive with the right to self-defense in most jurisdictions, i.e. one may use reasonable force to fend off or prevent what one reasonably perceives to be an assault on another. The weapons Kick-Ass was using aren’t particularly dangerous—no guns nor knives—and there were a bunch of attackers, so even if they had been unarmed, some additional “oomph” would be justified. And he doesn’t go after them, or even really try to hurt any of them, he simply strikes out whenever one of them attacks the guy he’s defending. This is, basically, an okay thing to do.

But that’s about where things stop. Dressing up in a costume isn’t really a violation of any law, but deliberately going out on patrol to fight crime with force is likely going to be a problem unless one is a law enforcement officer.  We’ve mentioned it in comments, but some idiot was arrested and charged in Michigan last month for hanging off the side of a building in a Batman costume with a variety of concealed weapons. The cops were, to put it mildly, not amused. The stock-in-trade of the costumed hero involves trespassing, violations of weapons laws (for concealed weapons if nothing else), and disturbing the peace, if not also assault or worse. Sure, there’s plenty of crime in our streets, but at this point, it isn’t the kind of crime that we believe could not be solved by police officers if there were enough of them.

II. Hit-Girl and Big Daddy

Of course, Kick-Ass realizes pretty quickly that he isn’t the only game in town. “Big Daddy,” a former police officer with a grudge, and his precocious daughter “Hit Girl,” are as close to the real deal as one can get without having actual superpowers: highly trained and ridiculously well-equipped. Hit Girl herself is a combination of utterly hilarious and deeply disturbing, given that she appears to be about twelve, yet is the single most violent and foul-mouthed character in the movie. There are a few obvious legal problems here. Training your daughter to take bullets by shooting her constitutes “endangering the welfare of a child” (N.Y. Penal Law 260.10) if anything does, and the number of laws they violate by possessing the kinds of weapons they do aren’t even really worth enumerating. It’s so blatantly illegal that it’s beyond illegal into something else entirely. Then again, the whole movie is pretty tongue-in-cheek, and it’s arguable that part of the whole project is to point out just how absurd the whole superhero gig really is.

III. Conclusion

If you’re looking for a realistic movie, this probably isn’t it, but in taking this approach, the filmmakers do seem to capture just how unlikely the idea of real superheroes actually is. It’s worth watching for that alone, and it also manages to be a pretty hilarious movie in its own right. A sequel probably isn’t warranted at this point, but it’s definitely worth watching.

14 Comments

Posted in criminal law, movies

Manhunter, Volume 1

Posted on May 23, 2011 by | 1 comment

This is the first post in a new series analyzing the legal issues raised by the 2004-09 Marc Andreyko run of Manhunter.  These issues cover Kate Spencer’s turn as the eponymous superhero.  By day, Spencer is a federal prosecutor who later becomes a criminal defense attorney for supervillains.  As with She-Hulk and Daredevil there are a lot of overt legal issues here but also a lot of more subtle ones.  There will be spoilers, but we plan to cover the issues chronologically, so if you want to read along then we suggest picking up the trade paperbacks (Manhunter vols. 1-5).

I. Not Guilty by Reason of Genetic Anomaly?

Early on in the first issue, Kate is prosecuting a case against Copperhead, a metagene-enhanced supervillain with a nasty habit of killing and eating people.   The defense stipulates to the facts of the case but argues that Copperhead is a genetic anomaly, possibly insane, and should not be held to the standards of human behavior.  Rather than being executed, the defense argues that he should be confined and studied.  The jury finds him “not guilty by reason of genetic anomaly” and he is sent to the Death Valley Metahuman Research Facility.

Assuming that “not guilty by reason of genetic anomaly” is not a defined verdict in the DC universe, could a jury do this anyway?  The answer is a clear yes.  For better or worse, a jury in the US system can find a defendant not guilty for any reason or no reason, even against all the weight of the evidence, and an acquittal cannot be appealed by the prosecution.

However, as we’ve discussed before, an acquittal (e.g. by reason of insanity) does not necessarily mean that the defendant won’t be involuntarily committed.  A defendant can lack the requisite mental capacity to be guilty of a crime (or as the defense appeared to argue in this case, the requisite personhood) yet still be a danger to themselves or others, justifying involuntary commitment.  So again the story is accurate in that Copperhead could be confined at a research institute despite the acquittal.

All that said, the defense theory is a strange mishmash of insanity and lack of personhood, which is itself a novel theory (“my client can’t be guilty, your honor, he isn’t even human” hasn’t been tried in the real world as far as we know).  It would have worked just as well to say that the defendant was legally insane and the underlying mental defect was caused by the genetic anomaly.  Still, off to a good start.

II. Child Endangerment

Here’s where things start to get dicey.  Kate’s son Ramsey finds her staff, which Kate had barely hidden in her house.  Curious, he activates it, causing an explosion that severely injures him.  Kate lies about the cause of the explosion, saying it was a gas leak.  It’s unclear why DCFS didn’t investigate, but supposing they had, what might Kate have been charged with?

One possibility is child endangerment.  Cal.Penal Code § 273a(a) states “Any person who, under circumstances or conditions likely to produce great bodily harm or death … willfully causes or permits [a] child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment.”  Other options include criminal storage of a firearm if the staff is considered a firearm and reckless possession of a destructive device otherwise.

III. Blackmail

Later, Kate blackmails a former supervillain gadget-guy, Dylan Battles, into repairing and maintaining her equipment.  In particular, she threatens to reveal to his wife that he used to work for supervillains and is now in the witness protection program.

This is, as the comic points out, a crime.  Specifically, in the comic’s setting of California it’s extortion.  Cal. Penal Code § 518-19.

518. Extortion is the obtaining of property from another, with his consent, … induced by a wrongful use of force or fear.

519. Fear, such as will constitute extortion, may be induced by a threat … to expose any secret affecting him or them.

Although Kate primarily extorts services, some property comes along with it as well.

Further, by asking Dylan to break the law (the comic doesn’t say what but it’s probably weapons-related), Kate is committing both the crime of solicitation and an ethical breach.  California Rule of Professional Conduct 3-210 prohibits attorneys from “advis[ing] the violation of any law.

IV. Conclusion

Kate’s actions expose the contradictions inherent in every vigilante character: they often break the law while nominally trying to uphold it.  Sometimes the authors call that out explicitly, but sometimes they don’t.  There’s a lot to talk about in this series, so look out for more posts coming soon.

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Posted in criminal law

Daredevil: The Trial of the Century Part I

Posted on May 4, 2011 by | 14 comments

It’s taken us a while to get around to it, but we’re finally going to talk about Daredevil, aka Matt Murdoch, one of the most famous superhero lawyers.  This will be the first in a series of posts discussing the Trial of the Century storyline, which ran from Daredevil vol. 2 #38 – 40.  Be warned: there will be significant spoilers throughout this series.

We’d like to start by saying that this is one of the better written trial storylines we’ve encountered in the comics.  It’s not perfect, but we definitely want to give writer Brian Michael Bendis credit for getting the broad strokes as well as many of the details correct.  However, there are a few issues to address, starting with the charges against the defendant.  But first a quick synopsis of the facts:

A couple of gang members are interrupted by a police officer while robbing a pawn shop.  In the ensuing scuffle, the police officer’s gun is taken and he is shot.  Hector Ayala (aka the White Tiger) arrives and attempts to stop the criminals, but they overpower him.  When backup arrives, they find Ayala standing over the dead police officer holding a television.  Certainly, it looks bad for Ayala.  Matt Murdoch takes the case despite the fact that the media is hounding him after allegations surface that he is Daredevil.

I. The Charges — and a Lesson on Lesser Included Offenses

The charges against Ayala are never fully described, although Murdoch describes them as “the crimes he stands accused of,” so we assume there are multiple charges, presumably including some kind of attempted robbery.  What we know for sure is that the jury returns a guilty verdict for the charge of manslaughter in the first degree.  This is strange to say the least.  In New York, where the crime was committed and where the trial takes place, the most relevant definition of first degree manslaughter is this:

A person is guilty of manslaughter in the first degree when:
1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person. N.Y. Penal Law § 125.20.

However, because Ayala was accused of killing a police officer engaged in performing his official duties it would make more sense to charge him with aggravated first degree manslaughter:

A person is guilty of aggravated manslaughter in the first degree when:
1. with intent to cause serious physical injury to a police officer …, where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer…, he or she causes the death of such officer … . N.Y. Penal Law § 125.22

It’s possible that the prosecution intentionally declined to bring an aggravated first degree manslaughter charge, but that seems very strange in a highly visible case involving the death of a police officer allegedly at the hands of a superhero who is being defended by famous attorney Matt Murdoch, who is himself fending off allegations that he is Daredevil.  Indeed, it’s more likely the prosecution would have gone straight to first degree murder.  We’ll stick to manslaughter for our analysis, but bear in mind that a similar analysis would apply to an alternative charge of murder.

Now, it is entirely possible for the prosecutor to bring separate charges for first degree manslaughter and aggravated first degree manslaughter because the prosecution may charge the defendant in the alternative.  People v. Gallagher, 69 N.Y.2d 525, 528 (1987).

However, the doctrine of merger dictates that Ayala could not be guilty of both manslaughter charges simultaneously: the regular charge merges with the aggravated charge because regular manslaughter is a lesser included offense of aggravated manslaughter, i.e. “that it is an offense of lesser grade or degree and that in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense.”  People v. Glover, 57 N.Y.2d 61, 63 (1982).  In this case the only difference between the two crimes is that in one the victim is “another person” and in the other it is a police officer.  Since a police officer count as “another person,” it is impossible to commit aggravated first degree manslaughter without committing regular first degree manslaughter at the same time.  The merger doctrine prevents ‘double-dipping’ multiple charges for the same criminal act.

The weird thing is that the prosecution offered the alternative charge at all.  It’s undisputed that the victim was a police officer performing his official duties.  The defense could try to argue that the defendant did not know and should not reasonably have known that the victim was a police officer, but the victim was killed with his own gun.  It’s pretty hard to take a cop’s gun from him and shoot him without, at some point, realizing that it’s a cop.  So we would expect the prosecution to go straight for the more serious charge.

Now, frequently a defendant will request that a lesser included charge be presented to the jury so that it has the option of finding the defendant guilty of the lesser included offense rather than the greater offense.  But such an instruction requires “a determination that there is a reasonable view of such evidence which would support a finding that, while the defendant did commit the lesser offense, he did not commit the greater.” Id.

As described above, though, we don’t think there’s a reasonable view of the evidence that would support that, and certainly that’s not part of Murdoch’s defense strategy.  So the alternative charge would have to come from the prosecution, weird as that would be.  But if that’s the case, then being found guilty of regular first degree manslaughter is actually a slight win for Ayala.  It’s far from the worst crime he could have been convicted of, given the prosecution’s allegations.

II. Cumulative Evidence, Expert Testimony, and Motions in Limine

Twice during the trial the prosecution and defense debate evidentiary issues.  First, after a police officer who arrived at the scene relates what he saw, Murdoch’s law partner Foggy Nelson states “Your Honor, if the defense stipulates that all seven officers witnessed the same events as Officer Snipes and came to the same conclusions from it…Will the prosecution spare the court the tediousness and move on with the trial?”  The prosecution declines the offer, apparently leading to a series of police officers being called to testify to essentially the same facts.

Second, when the defense calls Reed Richards as an expert witness the prosecution “strongly objects” on the basis that the witness “has had no direct contact with the accused.”  The judge reluctantly allows the witness over the prosecution’s continued objections.

In reality, both of these evidentiary issues would have been fought out via motions in limine rather than in full view of the jury.  More specifically, rather than politely asking the prosecution not to call the other witnesses, the defense would have made a motion to exclude their testimony as cumulative.  And rather than object to Richards as a witness in the middle of trial, the court would have conducted a Frye hearing to determine whether Richards’ testimony would be admissible as expert opinion on the psychological makeup of superheroes.

(Because New York has not adopted the Federal Rules of Evidence, it, along with a few other states, continues to use the older Frye standard for admissibility of expert testimony rather than the more common Daubert standard.)

These are fairly minor points, and we understand that the writers didn’t want to break up the action and the chronology by presenting pre-trial motions.  However, at a minimum the attorneys should have approached the bench or withdrawn to the judge’s chambers to discuss the issues outside of the jury’s hearing.  Besides, it’s a great excuse to use impressive lines like “Counsel, approach the bench” and “Counsel, in my chambers. Now.”

III. Conclusion

The writers did a good job with this storyline, but we think some of the details could have been tightened up without hurting the plot.  In fact, a little more attention to legal detail might even have improved it.  A charge of first degree murder is much more dramatic than first degree manslaughter, after all, and we’ve already discussed how the proper way to handle evidentiary issues can give rise to some nice lines. We’re not done with this storyline yet, though, so keep an eye out for more posts in this series!

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Posted in criminal law, criminal procedure, evidence

Accidental Superpowers and Assumption of Risk

Posted on April 18, 2011 by | 20 comments

This post was inspired by Tim, who asked about liability for the transformations of Ben Grimm (The Thing) and Bruce Banner (The Hulk). We answer a lot of reader questions in our Mailbag posts, but this one was a big enough issue to need a post of its own.

The story of the two characters is similar in many respects. Both were involved in a scientific experiment that went awry, leaving the two changed in fundamental ways. Grimm’s skin was changed into a rock-like mass, rendering his appearance unusual, to say the least, and he struggled with this for years. Banner, on the other hand, found himself transformed into the Incredible Hulk, prone to almost incomprehensible savagery at the slightest provocation, leading to his exile from Earth and subsequent disastrous return. If any superhuman character might have a cause of action for bodily injury related to their powers, it would seem to be these two.

But there are key facts in their origin stories that change the liability situation significantly.

I. Ben Grimm, aka “The Thing”

The origin of the Fantastic Four‘s powers is told in Fantastic Four #1, November 1961. Dr. Reed Richards was planning a space mission and felt a sense of urgency because the Communists were apparently on the verge of launching their own. The story was published at the height of the Cold war, and this issue came out mere months after Cosmonaut Yuri Gagarin became the first human being to leave the earth’s atmosphere, so the story makes sense in that context.  Richards was discussing the flight with his team when the following exchange occurred:

Grimm: If you want to fly to the stars then you pilot the ship! Count me out! You know we haven’t done enough research into the effect of cosmic rays! They might kill us all out in space!

Susan Storm: Ben, we’ve got to take that chance… unless we want the Commies to beat us to it! I– I never thought that you would be a coward!

Grimm: A coward!! Nobody calls me a coward! Get the ship! I’ll fly her no matter what happens!!

If Grimm were then to act as a plaintiff—presumably against Reed Richards for organizing the flight without adequately researching it first—this little conversation would come back to haunt him. Why? Because assumption of risk is a viable defense in tort law. The basic idea is that if a plaintiff is aware of a specific risk related to a particular activity and engages in that activity anyway, a defendant would be absolved of any duty to protect the plaintiff from that particular risk. This is not any kind of blanket protection, and the specific nature of the risk generally needs to be contemplated by the plaintiff, but in Grimm’s case, there’s a good argument to be made that he had assumed the risk of flying Richards’ ship.

First, the comic indicates that in addition to being a test pilot and thus familiar with the risks associated with piloting experimental craft, he specifically knew about the risk of cosmic rays. Granted, he did not know that they would turn him into The Thing, but not only did no one else know this either, but everyone involved was consciously aware that they had no idea what the effects of these rays would be but that death was a distinct possibility. Besides, “I’ll fly her no matter what happens,” is a pretty broad statement.

Second, both Grimm and Richards seem to possess the same mens rea with respect to the accident. Assumption of risk will not protect a reckless defendant against a negligent plaintiff, but it may well protect a reckless defendant against a similarly reckless plaintiff. The idea here is that the law does not want to protect a party that acted with a lower degree of care over one who acted with a higher degree, and when the playing field is equal, the argument that everyone involved knew the risks of the activity and voluntarily engaged in it is a lot stronger.

Third, Grimm was not a mere passenger. He was a pilot. As such, he had a significant role in the planning and execution of the test flight, and was in fact the only person even potentially capable of steering the craft out of danger. So unlike a passive participant or even someone participating in an event organized by others, Grimm had ample opportunity to mitigate the risks involved both before and during the incident. It’s even theoretically possible that the Storm siblings might have a cause of action against Richards and Grimm as the joint organizers of the project! However, neither of them seems to have been affected negatively, so their “damages” may be nominal,

Ben Grimm knew as well as anyone what he was getting into. He knew that the trip involved the risk of cosmic rays, and he knew that exposure to those rays posed a risk of serious bodily injury or death. No one seems to have known more about the risks than he did, even Richards, though that’s more a matter of shared ignorance than anything else. What Richards did was arguably incredibly foolish, but another famous Ben had some choice words about following fools.

II. Bruce Manner, aka The Incredible Hulk

Bruce Banner’s story contains a significant difference. Banner is characterized as one of the world’s most brilliant scientists, rivaling if not surpassing Reed Richards and Tony Stark. Banner was involved with a Defense Department project to develop a gamma ray bomb or “G-bomb” when he was accidentally exposed to gamma rays, which due to a fluke in his genetic structure transforms him—periodically—into the rampaging Hulk.

Sounds pretty similar to Ben Grimm, right? So far, yes. But there’s a wrinkle which makes all the difference. In the case of the Fantastic Four, just about everyone involved was acting recklessly, and no one intended for anyone to get hurt. But Banner was actually a victim of attempted murder. The way the story is told, just before the test of the G-bomb, Banner noticed that a teenager had breached security and was inside the blast zone. He ordered the test to be delayed and ran to get the kid out of the way. Banner was able to get the kid to a protective trench when the bomb went off, exposing him to gamma rays. But the reason the bomb went off is because Igor Drenkov, a Russian agent, ordered the test to continue, hoping that Banner would die in the resulting explosion. Assumption of risk will protect a defendant against a reckless plaintiff, but it will not protect a defendant that intended for harm to befall the plaintiff. Indeed, Drenkov could be subject to civil and criminal liability, as attempted murder is a serious felony.

But Banner would probably not be able to sue the government, as he was the organizer of the project and the government is likely not liable for the actions of enemy infiltrators. Furthermore, depending on the nature of Banner’s employment, either the Federal Employee Compensation Act, the federal equivalent of workers’ compensation, or the Veterans Affairs Administration would provide compensation for his injuries, as he sustained them while executing his duties as a government employee. So he would theoretically be entitled to some money, though only in proportion to his medical bills (non-existent) and expenses related to mitigating his disability (good luck). In practice, he’s going to have trouble proving his damages, and as the FECA and/or VA would be an exclusive remedy, no other recovery would be available with respect to the government. He’s still free to sue Drenkov though.

III. Conclusion

We’ve seen here that, as in all cases, the facts are really important, and a single conversation, document, or other changed fact can result in a wildly different outcome, potentially saving—or costing—a party enormous amounts of money. Finding these facts and putting them in their proper context is a lot of what litigation attorneys do for a living, and the amount of money at risk is one reason many charge as much as they do.

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Posted in criminal law, torts

Animal Sidekicks, Part Three

Posted on April 13, 2011 by | 21 comments

In this latest installment of our series on animal sidekicks we’re going to discuss the many regulations that affect animals, including leash laws and import restrictions (see here for part one and part two).

I. Leash Laws and the Like

Leash laws vary widely from jurisdiction to jurisdiction.  Many cities and counties (and some states) require animals to be kept on leashes or otherwise controlled when in public, or at least in certain public areas.  Sometimes these ordinances are specifically aimed at dogs, but sometimes they are written to apply to all pets or kept animals.  See, e.g., St. Louis County Revised Ordinance 611.200.  It’s not common in the US, but some cities even require dogs to be muzzled in public.

So what does this mean for a superhero with an animal sidekick?  First, it means doing a bit of research before traveling with the sidekick.  This is an area where the law can vary substantially from one city or county to the next, and ignorance of the local laws is not a defense.  It would be pretty embarrassing for a superhero get busted for not having his or her faithful companion on a leash while out fighting crime.

Second, it means brushing up on the defense of necessity.  If violating a leash law allows a superhero and his or her animal sidekick to stop a much worse crime about to be committed by a supervillain, then the defense of necessity may excuse the lesser harm of letting the animal run loose.  Necessity is usually based on some kind of reasonableness standard, so the superhero can’t just let the animal run loose all the time on the theory that a crime is bound to be attempted sooner or later.  Instead, we recommend investing in some kind of quick-release harness.

Note that many leash laws have exceptions for service animals, but we don’t think many animal sidekicks would meet the criteria for being a service animal.  Daredevil briefly had a seeing-eye dog named Deuce, but that’s about it as far as we can recall.

II. Health Regulations

Many animals are also subject to a host of health regulations, particularly vaccination requirements.  There are also laws regarding the quarantine and even destruction of diseased animals, but let’s assume that superheroes keep their sidekicks healthy.

The most important requirement is rabies vaccination, although the rules vary from state to state and even within states (e.g., Missouri doesn’t have a state-wide standard but instead directs individual counties to adopt appropriate rules and regulations.  Mo. Rev. Stat. 322.090).  However, most vaccine laws specify particular types of animals, so they are less of a concern for superheroes with unusual sidekicks.  But really this shouldn’t be much of an issue.  Making sure Krypto gets his rabies shots might be pointless (assuming a superpowered Krypto), but it’s not a significant burden, either.

III. Restrictions on Importation and Ownership

Now we come to the big one: can these animals be lawfully imported (or moved across state lines) or even privately kept at all?  Many states prohibit or restrict private ownership of wild or exotic animals, which are defined differently from state to state: another headache for the superhero on the go.

At the federal level, the Endangered Species Act generally prohibits, among other things, the possession, importation, sale, and taking of endangered species.  16 USC 1538(a)(1).  By the way, “‘[t]ake’ is defined … in the broadest possible manner to include every conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife.” S.Rep. No. 93-307, at 7 (1973).  There are a lot of endangered animal species, and although most of them would probably make pretty bad sidekicks—clams are not known for striking fear into the hearts of evildoers—there are some popular choices on the list, such as the gray & red wolves and several eagles.

So there’s a trade-off here.  Having a wild or exotic sidekick avoids some animal regulations, but it subjects the superhero to a new set at the same time.  Also remember from part two of this series that wild animal owners are subject to a higher standard when it comes to injuries caused by their animals.  On balance, our conclusion is pretty simple: “get a dog.”

21 Comments

Posted in administrative law, criminal law

The Trial of Reed Richards

Posted on April 6, 2011 by | 23 comments

Several readers have inquired about The Trial of Reed Richards (aka The Trial of Galactus), which is a great John Byrne-era Fantastic Four storyline.  There are several legal issues to discuss here, but we’ll start with a brief synopsis of the story line.  Readers who are already familiar with the story can skip to section II.

I. The Story

In Fantastic Four #243-44, Reed Richards saved the life of Galactus, a powerful creature with a nasty habit of devouring inhabited planets.  Later, in Fantastic Four 261-62, the survivors of Galactus’s prior attacks put Reed on trial for the deaths caused by Galactus after Reed saved him, most notably the deaths of 7 billion Skrulls when Galactus consumed the Skrull throneworld.

(Actually, first the survivors sentence Reed to a summary execution, but after a brief fight between the rest of the Fantastic Four and Reed’s would-be executioners, the Watcher intervenes, and then the survivors decide to hold a trial.)

Princess Lilandra of the Shi’ar Empire appoints herself prosecutor.  Apparently Lilandra had appeared to Reed after he saved Galactus and warned him “Should [Galactus] consume any world known to us you will be in part responsible…and will be held responsible for it…to the full extent of Shi’ar law!”

Lilandra first calls a survivor of the destruction of the Skrull throneworld.  Following that, she calls innumerable survivors of prior Galactus attacks to establish that Reed knew full well of Galactus’s pattern of planet-eating.

In the face of the prosecution’s evidence, Reed pleads guilty—but not to a crime, rather to the fact of saving Galactus’s life.  Reed argues that doing so was no crime because Galactus is a force of nature and part of some greater plan for good in the universe.  To this end, the god Odin is summoned by the Watcher to testify as to Galactus’s origin, as told to him by Thor, who was told by Galactus himself.  Odin testifies that Galactus was created at the beginning of the universe, the lone survivor of the end of the prior universe, and thus Galactus is a natural force.

Alas, Odin’s testimony fails to persuade everyone.  And so Galactus himself shows up to testify that Reed’s act was “honorable and good.”  Unsurprisingly, the testimony of an alleged mass murderer whose life was saved by the defendant is unpersuasive.  So the Watcher and Galactus combine powers to summon Eternity, the embodiment of the entire universe.  Eternity links the minds of all of the creatures in the court room, allowing them to see the Cosmic Truth that Galactus is a necessary force in the universe.  In the face of such overwhelming evidence, Reed is exonerated and the Fantastic Four return to Earth.

So that’s the story.  We don’t know anything about Shi’ar law or M’ndavian procedure, so we’ll analyze the case from an earthly legal perspective.

II. The Legal Issues

A. Preliminary Issues

There are a whole host of legal issues here, but we’ll stick to the big ones.  Right off the bat we can say that the appeal of Reed’s summary execution is a kind of habeas corpus petition, essentially a demand that the authorities prove that they have the right to detain (and for that matter execute) Reed.

Next: the issue of Reed’s extradition.  Here we can take some issue.  The alleged crime (saving Galactus) occurred on Earth, Reed is a citizen of a nation of Earth, he was on Earth at the time of his forcible extradition, and it doesn’t appear that the US or UN have agreed to any kind of extradition treaty with the Shi’ar or the ad hoc Galactus-survivor court.  On the other hand, Reed seems to waive the jurisdictional issue and accept the legitimacy of the trial, which by Reed’s choice is conducted under M’ndavian procedures, “the most perfect legal system in the galaxy.”

B. The Prosecution’s Case

Now we get into the trial proper.  Lilandra’s argument is that Reed saved the life of someone he knew would go on to kill others, and therefore Reed is guilty of a crime, though the specific crime is not named.  We can’t speak to Shi’ar law, but under the US legal system Reed’s actions would probably not be a crime.  There are three main theories under which Reed might be liable: conspiracy, accomplice or accessory liability, and facilitation.  However, the first two require a level of intent that Reed did not possess (i.e. he did not intend for Galactus to go on to commit any crimes).

That leaves facilitation.  In New York, where we believe the alleged crime took place, facilitation is, in general, “a kind of accessorial conduct in which the actor aids the commission of a crime with knowledge that he is doing so but without any specific intent to participate therein or to benefit therefrom.” Staff Notes of the Commission on Revision of the Penal Law. Proposed New York Penal Law. McKinney’s Spec. Pamph. (1964), p. 328.  Here’s the definition of the most general form of facilitation:

A person is guilty of criminal facilitation in the fourth degree when, believing it probable that he is rendering aid to a person who intends to commit a crime, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felony.

N.Y. Penal Law § 115.00.  At first glance this looks pretty bad, and it is a closer case than conspiracy or accomplice liability.  Again, the answer turns on intent, but in this case it’s Galactus’s intent that matters, not Reed’s.

At the time Galactus’s life was saved, Galactus did not have the required intent to commit a crime.  Sure, at some point Galactus was likely to get hungry and eat a planet, but at that particular moment he did not have the intent to eat any particular planet.  Without that intent element, Reed couldn’t commit the crime of facilitation.

But even supposing Reed’s conduct would have been a crime, he may still offer the defense of necessity, which we’ll discuss below.

C. The Defense’s Case

First off, Reed’s guilty plea is completely backwards.  Rather than pleading guilty to the fact of saving Galactus’s life but arguing that his conduct was not a crime, it would make more sense to say that he stipulates to the facts but maintains a plea of not guilty.  But that’s a pretty technical point.  There are bigger problems with the defense’s case, specifically Odin’s testimony.

Odin’s testimony is a gigantic ball of hearsay problems, and we don’t think there’s any answer to it.  Odin is trying to offer the rare double hearsay: the words of Galactus as spoken to Thor as spoken to Odin.  It would also have been hearsay if Thor had been the one to testify, since there’s no exception that would apply there, either.  What’s more, all of the hearsay issues could have been circumvented since Galactus himself showed up and so could have given the same testimony properly.

Finally we have Eternity’s testimony, which basically amounts to the defense of necessity mentioned above: saving Galactus was a lesser harm to the universe than allowing him to die, even though he would go on to destroy other planets.  So even if Reed’s conduct would have been a crime, he may still claim the defense of necessity.  We’re not so sure that his actions were actually reasonable under the circumstances (i.e. an ordinary reasonable person would probably not have made the same choice), but who’s going to argue with Eternity?

III. Conclusion

The Trial of Reed Richards is a classic and enjoyable Fantastic Four story, and we’ll take John Byrne’s word for it that M’ndavian procedure and Shi’ar law were followed in the comic.  It’s interesting to note, though, that roughly the same result would probably have been achieved under US law, in some cases for the same or similar reasons.

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Posted in criminal law, criminal procedure, international law

Smallville II: “Dawson Casting” and Minors

Posted on March 28, 2011 by | 12 comments

The first season of Smallville is set during Clark Kent’s freshman year in high school. It premiered in October 2001, when Tom Welling (Clark) was 24, Kristen Kreuk (Lana) was 18, and Allison Mack was 19, making them between four and ten years older than the characters they were portraying. Casting adults as high school kids is not that uncommon and has become known as “Dawson Casting” after one of the more egregious examples, though it’s been going on almost as long as film has existed.

There are a variety of reasons for this, and the previous link discusses a lot of them, but in short, young adults are just a lot more suitable for the actual acting job than teenagers, partly for logistical and partly for legal reasons. As to the former, young adults tend to be better able to memorize, recall, and deliver lines believably than teenagers. Some of this is intellectual development, some of this is a broader depth of experience, and some of it is just getting past the emotional whirlwind that is adolescence. There are real world legal issues too: teenagers have limited work hours, and it’s frequently illegal to show them doing things that kids actually do (e.g. make out).

But this blog is about real world legal issues in comic book stories, not the legalities of Hollywood. Suffice it to say that this sort of thing is actually an issue within the series. As always, spoilers follow.

I. The Talon

Perhaps the most glaring example of a teenage character doing things that would be problematic for someone their age is Lana coming to be a partner and manager at the Talon. This implicates both minors’ capacity to contract and child labor laws.

A. Capacity

Children are not adults, and their ability to perceive the consequences of their actions are less than an adult’s would be. This is why the law generally recognizes that minors’ capacity to contract is different than adults. In general, a minor who agrees to a contract for something other than “necessaries,” i.e. food, clothing, goods necessary for the maintenance of a household, can “disaffirm” that contract at any time before they reach majority age. So a minor who walks into a restaurant and orders dinner would be required to pay, but a minor who enters into a business contract could theoretically get out of that contract simply by asking. They are then required to give back whatever it is they got, but this is why most businesses and organizations require that a minor’s parent sign relevant contracts and will generally refuse to deal directly with minors: they do not want to go through the hassle of having to take back whatever it is the minor contracted for.

So Lex Luthor offering Lana partial ownership in the Talon, aside from being incredibly generous, would definitely be something his lawyers would have had an absolute cow over. When this happened, Lana was either 14 or 15 (time is kind of… squishy, and her birthday is never stated), and Kan. Rev. Stat. § 38-101 provides that majority age for contracts is 16. Unless her legal guardian signed off on the deal, and there’s no evidence in the show that this happened, Lex would have almost certainly been acting against all legal advice. Granted, this probably wouldn’t be the first time, but it’s still a problem.

There is a way around this though: emancipation. Kan. Rev. Stat. § 38-108 grants district courts the ability to declare a minor to have all the rights of majority, including capacity to contract and to sue and be sued. This was mentioned in passing during the first season, before Lana’s guardian moved to Metropolis, and though it was never actually established that this happened, given both her involvement in the Talon and rather conspicuous independence thereafter, it seems likely that it did.

B. Labor Laws

And the reason is that even if it is technically legal to transfer ownership to Lana, establishing a partnership, it was probably illegal for her to run the place. We talked about child labor a little while ago, and Kan. Rev. Stat. § 38-603 prohibits anyone under the age of 16 from working before 7AM or after 10 PM on a school night, for more than 8 hours at a time, or for more than 40 hours in a week. Anyone who’s run a coffee shop that was open late can tell you that you basically have to do all three of those things. The place would have had to close no later than 8PM for Lana to be finished closing up before she turned into a pumpkin. But the show pretty clearly indicates that she was responsible for all of those things, including showing up to accept pastry deliveries at 5AM. Lana is, to all appearances, a remarkably mature and responsible girl (though perhaps not the best judge of character), who might actually have been capable of handling that kind of responsibility. But it isn’t clear that the law would have let her.

Emancipation wouldn’t work here either. The emancipation statute permits minors to contract and dispose of their own property, but it does not grant any exceptions to the child labor statutes. So there’s a problem there.

Now if Lana had been as old as Kreuk was when the season was shot, there wouldn’t have been any problems, which is probably why this is a little less noticeable in the show. It’s unusual, but not unheard of, for someone in their late teens or early twenties to be running a business like the Talon, particularly if they’ve got a benefactor (read “parent”) in the background somewhere. So seeing Lana run the Talon doesn’t look wrong. Just like Clark and Lana walking into a bar at the beginning of season three and not getting carded doesn’t look wrong either: Welling was 26 and Kreuk 21. But in-universe, this really is a problem.

II. Various Relationships

Then there’s the issue of Lana’s relationship with Jason. They met during the summer of Lana’s junior year, when she is presumably 17. Jason, on the other hand, is in college, making him probably 19. This looks kind of like a statutory rape situation waiting to happen, doesn’t it? Which is probably why Jason gets fired when the school learns about their relationship. So why doesn’t he go to jail?

Because the relationship, while arguably sketchy, is not actually illegal, at least not in Kansas (and certainly not in France, where it started). Kansas defines “indecent liberties with a child” as sexual contact with a person who is under 16 but more than 14 (Kan. Rev. Stat. § 21-3503). Other statutes for more serious crimes have similar definitions. Basically, Lana was legal. This is something a lot of people don’t understand, and it’s a common feature of television for talk of statutory rape to emerge whenever a girl is under 18. A character actually attempts to justify the relationship by pointing out that both of them are 18. Which, while true, is not strictly relevant, as the relationship was legal even before Lana’s birthday. The fact of the matter is less than a dozen jurisdictions still have the age of consent pegged at 18, though the fact that California is one of them may explain some of this.

Either way, the age of consent in Kansas is 16, so starting in season three, the entire class is basically fair game. This is actually not that uncommon. It’s that way in at least half of the US, and many states even have “Romeo and Juliet” laws which create an exception for couples who are no more than two years apart, so a pair of high school sweethearts don’t get carted off to jail as soon as one of them turns 16. Most of Europe has this limit set at 14 or 15, though it’s as high as 17 in Ireland and 18 in Malta, of all places.

III. Conclusion

Casting actors older than the characters they portray is fairly common, especially where teenage characters are involved. This can make certain things legally possible on screen, but it also increases the audience’s willingness to suspend our disbelief when high school kids are shown doing stuff that there’s no way they would be able to do in real life. I don’t care if you are Superman, most bouncers aren’t letting you in the door and most bartenders aren’t serving you booze unless you can produce some sort of ID, fake or otherwise. There’s more to talk about in this show, so stick with us.

12 Comments

Posted in contracts, criminal law

Animal Sidekicks, Part One

Posted on March 23, 2011 by | 21 comments

Today’s post, which is the first in a series, was inspired by Christopher, who wanted to know about animal sidekicks (e.g. Zabu, Krypto, Lockheed), particularly Red Wolf’s wolf companion Lobo.  There are a lot of potential issues here, but we’re going to focus on three major ones: animal cruelty, liability for the animal’s acts, and animal regulations (e.g. leash laws and import regulations).

I. Animal Cruelty Laws

Similar to juvenile sidekicks and child endangerment laws, one possible issue with having an animal sidekick is that it might constitute animal cruelty.  After all, the animals are placed in dangerous situations and some are even asked to attack people, albeit usually villainous people.  But if Krypto takes a bite out of Brainiac, is that really enough to make Superman into Michael Vick?

For the most part animal cruelty laws are state-based.  There is a federal law criminalizing depictions of acts of animal cruelty and another federal law dealing with housing animals for exhibition or sale, but those aren’t really the issue here (and in case you were wondering, comic books depicting villains being cruel to animals don’t run afoul of the statute; the depictions must be of actual, real-world acts of animal cruelty).  Since cruelty laws vary from state to state, this will mostly be a general overview of their common features and principles.

II. The Scope of the Law

An immediate question is: do these sidekicks even qualify as “animals” for purposes of the statutes?  Lobo is a fairly ordinary wolf, but some versions of Krypto are super-powered, super-intelligent, or both, and Lockheed is a dragon for crying out loud.

As it turns out, most animal cruelty statutes are pretty broad. For example, California’s statute encompasses “every dumb creature,” which the California courts have held means “all animals except human beings.”  People v. Baniqued, 85 Cal.App.4th 13, 20-21 (Cal. Ct. App. 2000).  Pretty much every animal sidekick would qualify under that definition, since even the super-intelligent versions of Krypto are “by nature incapable of speech like that of human beings” and so would qualify as “dumb” for purposes of the statute.

Some statutes are a little narrower, however.  For example, Missouri’s only applies to “every living vertebrate except a human being,” and many states, such as Arkansas, go one step further and exempt fish. Mo. Rev. Stat. 578.005; Ark. Code § 5-62-102(2).  Both statutes would exempt Legion of Super-Pets member Proty II, which, as a shapeless mass of protoplasm in its native form, would not qualify as a vertebrate.  Interestingly, once Proty eventually learned how to talk he effectively disqualified himself from the protection of the California statute as well.

III. What Counts as Cruelty?

Now that we’ve established that most animal sidekicks would qualify for protection, the focus turns to the superheroes’ conduct.  As with the child endangerment post, we’ll assume none of the superheroes are engaging in obvious cruelty or neglect (e.g. no super-powered animal fighting rings or other deliberate cruelty).  The question is whether bringing animals along for regular superhero activities like investigating and fighting crime constitute animal cruelty.

California’s statute (Cal. Penal Code § 597) is typical and has two primary provisions.  First:

“every person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills an animal, is guilty of an offense”

But that certainly wouldn’t apply to our upstanding heroes.  Second

“every person who overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, drink, or shelter, cruelly beats, mutilates, or cruelly kills any animal… and whoever, having the charge or custody of any animal … subjects any animal to needless suffering, or inflicts unnecessary cruelty upon the animal, or in any manner abuses any animal, or fails to provide the animal with proper food, drink, or shelter or protection from the weather, or who drives, rides, or otherwise uses the animal when unfit for labor, is, for every such offense, guilty of a crime”

That’s a pretty long laundry list, but the overriding theme is one of fairly serious abuse or neglect. We actually had trouble finding cases that didn’t involve revolting or disturbing conduct, so we won’t go into detail here.

In any event, it would be surprising if taking a trained animal sidekick along to fight crime constituted animal cruelty, so long as the animals were otherwise well cared for.  There are three long-standing analogous situations to look to: the private use of dogs and other animals (e.g. llamas, believe it or not) as guard animals, the private use of dogs in hunting, including hunting dangerous prey such as wild boars, and the government use of dogs in potentially dangerous police work. Taken together, these situations encompass many of the same issues and risks as a superhero’s employment of an animal sidekick.

One final issue: at this point in the conversation we’re talking about animals which are either “normal” but highly trained or even start with some kind of superpowers. Whether or not an “uplift” situation would constitute animal cruelty is something we’ll discuss in a post on that subject in general, as there are a number of other issues related to that topic (e.g. is giving an animal enhanced intelligence a kind of animal experimentation?).

IV. Conclusion

Like any responsible animal owner, superheroes should be careful to keep their animal sidekicks healthy and safe, and certainly some missions would be too dangerous for a normal animal.  But superheroes seem to do a good job of caring for their animals, and we don’t think they have to worry about animal control officers knocking on their headquarters any time soon.

21 Comments

Posted in criminal law

Limitless

Posted on March 21, 2011 by | 10 comments

[amazon_link id=”B005DD7MH8″ target=”_blank” container=”” container_class=”” ]Limitless[/amazon_link] opened this weekend, and is the subject of Law and the Multiverse’s second look at a movie. Spoilers to follow, as always.

The basic premise is that Edward Morra (Bradley Cooper) stumbles across a drug, “NZT,” which massively boosts one’s memory and intelligence. This enables him to write his unstarted-and-overdue book in a matter of days, learn any language in a matter of hours, and become a concert-level pianist in a long weekend. So basically, what we’ve got here is every nerd’s fantasy: if I was only smart enough, I’d be able to get the money and the girl.

The movie has been described as “more interesting than it has any right to be,” which is about right. But there are a number of legal issues in the movie to talk about, mostly about the drug itself.

First, a high-level overview of how drugs are regulated in the US.  For a drug to be legally prescribed or distributed it must be approved by the Food and Drug Administration.  Clinical trials for new drugs must also have FDA approval.  Some drugs are further restricted by the Controlled Substances Act, which establishes a schedule of controlled substances, some of which can be prescribed by a doctor with a DEA number and some of which are banned outright (e.g. heroin).  Finally, individual states can add to (but not subtract from!) the federal controlled substances schedule.  Now we’ll look a little closer at how all of this affects NZT.

I. The Food and Drug Administration

It is illegal to sell, for human consumption, any pharmaceutical product which has not been approved by the FDA, which may be marketing approval or approval of a clinical trial. This is why pharmaceutical companies spend so much time and money on the approval process: one bad trial can mean millions in R&D going down the tubes. The FDA was (more or less) created by the Pure Food and Drug Act of 1906, later replaced by the Food, Drug, and Cosmetic Act of 1938. These and later acts make it a crime to market or distribute any drug (or medical device, food additive, or dietary supplement) without FDA authorization. The approval process for each category is different, which is why almost anybody can sell a dietary supplement, provided they do not make claims which would suggest that it is a drug and it isn’t drug-like enough to make the FDA want to categorize it there regardless of claims.

Still, as soon as the FDA got wind of this, you can bet that they’d take action, probably including bringing in the DEA, to see that the creation and distribution of this drug was brought under federal oversight. This isn’t entirely a bad thing, either. Sure, the War on Drugs is notoriously problematic from a civil liberty, social policy, and even race relations standpoint, but the real objection is that the government is misclassifying drugs, not that it shouldn’t be classifying drugs at all. In the nineteenth century, there really was no regulation on any of this stuff, so a drug containing heroin could not only be marketed freely, but without any indication that it contained heroin. A consumer could get addicted to a powerful narcotic without even realizing that they were using it. This, obviously, is not an ideal situation. Similarly, without regulating pharmaceutical manufacturing, companies could use unsanitary facilities or dangerous ingredients in their products without anyone knowing or being able to do anything about it. Again, not a good outcome. So even if we think that our approach to certain interesting substances needs to be re-evaluated, deregulating them entirely is probably not the best option.

So would the FDA ever approve something like NZT?  Probably not, though theoretically it could, and if it did it wouldn’t approve it for average people like Edward Morra.  The FDA most often approves drugs that treat, diagnose, or prevent diseases.  Since having average intelligence is not a disease, the FDA would be reluctant to approve NZT unless it had virtually no side effects.  Since it apparently kills people who stop taking it, approval is unlikely.  The FDA could limit NZT’s approval to use by people with development disabilities, but it’s also rare for the FDA to approve drugs that people have to take for the rest of their lives.  Usually such drugs are only approved for life-threatening conditions.  NZT would definitely struggle for regulatory approval.

II. The Controlled Substances Act

Many drugs, both approved and unapproved, are regulated under the Controlled Substances Act, which operates in two primary ways. The statute itself includes a list of scheduled substances, and it empowers the attorney general to modify the schedule, although in practice the schedule is modified by the Drug Enforcement Agency as informed by the FDA. The statute lays out the criteria by which substances are to be categorized into different schedules, but other than the drugs which Congress has scheduled by legislation, the statute basically lets the attorney general issue his or her own findings as to which drugs belong where.

Schedule I substances are basically illegal entirely, i.e. illegal to create, distribute, or possess. They have a high potential for abuse, no currently accepted medical use, and are unsafe to use even under medical supervision.  There are rare exemptions given for research, but that’s about it.  Schedule I includes things like heroin, marijuana, LSD, methaqualone (Quaalude), and a host of hallucinogens.

Schedule II includes drugs which have a potential for abuse which is less than those on Schedule I, and can be prescribed under certain circumstances. Cocaine, believe it or not, does fall here, as it is occasionally used as a topical anesthetic even today. Oxycodone, morphine, and most of the other narcotics fall in this schedule, as do amphetamines.

Schedule III is, again, less serious than Schedule II, etc., all the way down to Schedule V, which includes some substances (such as cough syrup with codeine) which are actually available over-the-counter in other countries.  It should be noted that most prescription drugs are not scheduled at all.

NZT is obviously something that would be scheduled by the appropriate federal agency—probably the FDA—and given its properties would be a good candidate for either Schedule I or II. It appears highly addictive, or at least the people who stop taking it tend to die, though it could potentially have a legitimate medical use. Giving it to developmentally disabled persons might enable them to live normal lives, for example, and as NZT is not said to have any adverse side effects other than dependency, the FDA might theoretically approve such a drug if a proposal were submitted. Either way, Eddie is taking it without a prescription. Is that illegal?

Maybe, maybe not.  It depends on how closely related NZT is to a known controlled substance. The federal government and many states have passed what are generally referred to as Analog Acts (e.g. the Federal Analog Act).  These laws attempt to regulate substances that are substantially similar to known controlled substances.  We say ‘attempt’ because the courts are not in uniform agreement as to whether such laws are valid or not.  In an effort to broaden the reach of the laws the legislatures tended to draft them very generally, to the point that some courts have held them void for vagueness, which is a rare but serious defect in a criminal law.  And this makes sense: for a criminal law to work people have to know what, exactly, is being criminalized.

But let’s assume that NZT is an entirely novel substance.  Certainly there’s nothing similar on the market, so that seems like a reasonable assumption.  New controlled substances need to be placed on the list via legislation or administrative procedures. A general rule of the US legal system is that if a given act is not prohibited, it is permissible. Inventing a new drug and deciding to take it is not illegal until the government says it is. Which is why you periodically see states and municipalities freaking out over whatever new substance the kids are using these days. Most recently it was spice, a kind of synthetic cannabis. Until that happens, new, unapproved drugs are basically fair game to create, possess, and consume.

But they aren’t legal to distribute, because that constitutes a commercial transaction over which the federal government has exerted pretty expansive jurisdiction. This power generally comes from the Commerce Clause, and the Supreme Court has been pretty generous in interpreting the Commerce Power where the regulation of drugs is concerned.  See, e.g., Gonzales v. Raich, 545 U.S. 1 (2005).  So while NZT is theoretically legal for Eddie to have and to use, the guy he got it from was definitely breaking the law.

We’ll keep these reviews coming as more interesting movies are released. A ton of great comic book movies are coming out this summer, including [amazon_link id=”B005H9B44A” target=”_blank” container=”” container_class=”” ]Thor[/amazon_link], [amazon_link id=”B004LWZW42″ target=”_blank” container=”” container_class=”” ]X-Men: First Class[/amazon_link], and [amazon_link id=”B005ZCXPP0″ target=”_blank” container=”” container_class=”” ]Captain America[/amazon_link], so stay tuned!

10 Comments

Posted in administrative law, criminal law, movies