Category Archives: criminal law

“Gadget” Superheroes and Federal Arms Control Laws

Posted on December 21, 2010 by | 40 comments

At least two major superheroes, Batman and Ironman, are the alter egos of  billionaire “industrialists,” Bruce Wayne and Tony Stark respectively. Both are the at least titular heads of their respective corporate empires, Wayne Enterprises and Stark Industries. Both are major defense contractors, i.e. arms merchants. Wayne Enterprises is generally described as a multi-industry conglomerate with significant revenues in a number of unrelated businesses, while Stark Industries is primarily in the arms business, but both appear to derive a significant portion of their revenues from selling weaponry of all sorts.

This raises two interesting issues. First, how exactly do these companies get the money for these sorts of secret projects? And second, do our various heroes break any laws when they leave the country or provide this equipment to others?

I. Arms Revenue

Weapons, particularly exotic and/or large and/or expensive ones, aren’t exactly for sale at Wal-Mart. Nor are they typically sold in much volume. Lockheed Martin Aeronautics, the division of Lockheed Martin responsible for the F-22 and F-35, sells somewhere in the neighborhood of a few hundred planes a year. Wal-Mart probably sells more items than that every second, even at 2:00AM.

That’s because Wal-Mart is selling to the consumer market, i.e. the hundreds of millions of customers their stores reach around the world. Lockheed Martin probably only has a handful of actual customers, because legal issues aside, only sovereign governments can afford to drop $150 million on a plane that seats one person, let alone a hundred of them.

In just about every comic book story, the conventional military does not seem to have access to the technologies used by Batman, Iron Man, etc., either explicitly or implicitly. I mean, there’s a reason the US government was pressing Tony Stark so hard in the beginning of Iron Man 2: the Pentagon wanted what Stark had, clearly implying that they did not, in fact, have it, i.e. Stark Industries wasn’t selling Iron Man technology to anyone. And they can’t be selling them to foreigners, because in addition to there being no indication of that in the stories it would be completely illegal without government authorization (see section II), and the federal government isn’t terribly likely to license the sale of weapons to foreign governments that it does not have itself.

Which raises the question: if the export of the really cool toys that our gadget-based superheroes like Batman and Ironman are using is restricted, how exactly is Stark Industries making any money? Wayne Enterprises is perhaps an easier case, as a company the size of Wal-Mart can probably misplace a billion dollars without too much difficulty, but a company that makes all of its money selling weapons has to sell weapons to someone. And if it isn’t to the government, the general public or to foreigners, where’s the budget come from?

The answer seems to be that these companies appear to be intended to replace existing defense companies, not exist in addition to them. It’s probably no mistake that the Stark Industries logo looks a lot like the Lockheed Martin logo. So Stark Industries presumably makes most of its money selling entirely mundane weapons to the government instead of, say, Lockheed Martin or Boeing. Wayne Enterprises makes a ton of money in its other business ventures, in addition to providing conventional arms to the government, so it is also probably intended to replace a number of other companies. This is a convenient and understandable substitution. Comic book authors probably don’t want to be bothered with the hassle of getting permission from actual companies to use their name and logos, and it’s doubtful that said companies would have given permission if asked. The replacement is made easier by the fact that most of the companies being replaced don’t have much in the way of public exposure.  For example, before it became linked to the Bush presidency, most people had probably never even heard of Halliburton, an $18 billion a year company.

Even then, defense contractors live and die on Defense Department funding, and wild conspiracy theories aside, it’d be pretty hard for one of them to secretly develop a weapons platform that the government didn’t directly fund and therefore know about. Black budgets may not be known to the public or to Congress, but someone at the Pentagon or CIA sure knows about them. But replacing an existing company with a fictional one permits us to attribute the profits of entirely mundane weaponry like jets, tanks, and firearms, all of which are significant profit centers for their respective manufacturers, to our fictional companies and their R&D departments.

II. The United States Munition List

But there actually are legal issues here. Specifically, the International Traffic in Arms Regulations (ITAR) 22 CFR parts 120-130, specifically the United States Munitions List, codified at 22 CFR part 121 (amendments). This is where the federal government lays out in great detail the restrictions placed on the export of weapons and related technologies. So, for example, it is illegal to export a gas turbine specifically designed for use in a ground vehicle. The regulation probably has in mind things like the M1 Abrams tank, but hey, isn’t the Batmobile (at least sometimes) powered by a gas turbine? And just about everything in one of Iron Man’s suits is going to find its way on the list somewhere, from the armor itself down to the micro-controllers in the servo motors: almost everything specifically designed for a military application, and even some things that aren’t, is on the export list. The ITAR even apply to civilian-developed software encryption, so they’d obviously apply to something as kick-ass as the arc reactor.

So what about S.H.I.E.L.D.? The general international law issues of S.H.I.E.L.D. will be the subject of a future post, but how does all this apply to what is sometimes portrayed as an organization under the control of the United Nations, clearly a “non-US person” under the terms of the USML? Again, if the Department of Defense doesn’t have access to S.H.I.E.L.D. gadgetry, it seems unlikely that State would authorize such a transaction. It gets better/worse. It is a violation under 22 CFR § 127.1(a)(1) to export any item on the USML without a license, and “export” is defined in 22 CFR § 120.17 as “Sending or taking a defense article out of the United States in any manner, except by mere travel outside of the United States by a person whose personal knowledge includes technical data.” So Iron Man’s little jaunt to Afghanistan in the first movie? That almost certainly constituted a violation of federal arms control laws. And even assuming that Bruce Wayne or Tony Stark invents their weaponry completely using their own funding and resources, the ITAR do not limit themselves to weapons developed with federal money: they apply to everything that fits into one of the categories on the USML.

Here we actually run into some difficulty trying to make the legal system in the real world sync up with the legal system in the comic book world. It is highly unlikely that the federal government would either 1) decide to scale back arms control laws when faced with gadget-based superheroes or 2) decide to give those superheroes a pass, especially if they wouldn’t share. So the question becomes: why doesn’t the US Attorney attempt to prosecute Tony Stark for this violation of federal law? More to the point, why is Congress messing around with hearings when they can simply send Stark to jail?

Well, probably because having Tony Stark do ten years (22 U.S.C. § 2778(c)) for arms control violations would be a pretty boring story.* And because fining Tony Stark the $1 million penalty there wouldn’t really make him think twice. Ultimately, this may just be one of those places where we have to pull out the mantra and remember that if we’re okay with a world where guys can shoot laser beams out of their eyes or turn into metal, we can probably handwave this too.

III. Conclusion

So really, we’re one for two. We can probably see how a company like Stark Industries or Wayne Enterprises could find the resources to develop weapons like the ones used by Batman and Iron Man, but actually using them, particularly in international contexts, seems to run up against a federal prerogative the government seems unlikely to abandon.

*Of course, this could be a great premise for Iron Man 3, where Stark is sent to prison, only to be released when the government realizes that it simply can’t get on without Robert Downey, Jr. Which is at least as plausible as some other things speculative fiction authors have tried to sell us.

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Posted in administrative law, Batman, criminal law, international law, Iron Man, superheroes

Healing Factors, Indestructability, and Murder: Factual Impossibility Gets A Workout

Posted on December 14, 2010 by | 29 comments

Wolverine is one of a number of comic book characters who is extremely difficult to kill. It has been theorized that it would take decapitation followed by immediate removal of his head from the vicinity of his body to effectively kill him. Similarly, though Superman has died, he can survive far, far more punishment than a standard Homo sapiens sapiens.

Which raises the question: if it is impossible for a given action to kill a potential target, does it constitute a crime? And if so, which crime?

I. Mens Rea

The question has to do with the way crimes are defined at law. Crimes are made up of elements, all of which must be present for the crime to have been committed and proven by the prosecution for a defendant to be found guilty. One of the elements of most crimes is an appropriate “mens rea,” i.e. an appropriately guilty mind.* The great American jurist Oliver Wendell Holmes, Jr. is said to have remarked, “Even a dog knows the difference between being tripped over and being kicked.” In short, the law recognizes a distinction between things which are done on purpose and things which are done by accident, and intentional acts are generally treated more seriously.

The Model Penal Code sets up five types of mens rea: purposeful, knowing, reckless, negligent, and strict liability. To be convicted of murder in a state which has adopted some version of the MPC (i.e. virtually any state), one must kill another either purposefully, knowingly, or recklessly. That is to say, one needs to have either 1) actively intended for the person to die, 2) known that a particular course of action was practically certain to lead to a person’s death and engaging in said course of action anyway, or 3) known that there was a substantial risk that a particular course of action will lead to a person’s death and engaging in said course of action anyway. Killing another negligently, i.e. engaging in a course of action which one should have known was likely to lead in the death of another, is only good enough for manslaughter, and killing someone completely innocently isn’t a crime at all. I mean, good luck convincing a jury of that one, but if you do, you walk.

So far we’re basically only talking first year Criminal Law. Where things get interesting is when the intended victim is someone like Wolverine or Superman. Say, for example, Pyro lights Wolverine on fire. Wolverine is going to be pissed, and it’s going to hurt like hell, but he’s going to be okay in a minute. (Superman might not even notice, depending on when and in what continuity said ignition occurs.) If Pyro had targeted a non-mutant (or most mutants other than Wolverine), said target is going to have a pretty unpleasant final few minutes. Pyro is clearly guilty of assault, as he deliberately inflicted harm on Wolverine (though Wolverine’s civil damages are going to be nominal), but not of murder, as Wolverine is still around. The question is whether he can be convicted of attempted murder.

Attempted murder requires that you act intending to kill someone but somehow fail to do it. Knowing or reckless activity will not suffice, because the legal system is only willing to punish inchoate offenses of the most serious sort. On first blush, it would seem that yes, Pyro would be guilty of attempted murder, as he tried to kill Wolverine and failed. But what if this isn’t Pyro’s first rodeo and he knows damn well that burning Wolverine is just going to make him mad? That Pyro can’t actually kill him, or, at least, that lighting him on fire isn’t going to do it? Now the picture gets a little murkier, as it would seem that the requisite mens rea is missing. Again, he’s still obviously guilty of assault, as he did intend to harm Wolverine, but it seems at least questionable as to whether doing something that you want to kill someone but that you know won’t work does not constitute the mental state necessary to ground attempted murder.

II. Factual impossibility with a twist

There is another question here: does the fact Pyro can’t kill Wolverine this way make a difference? In other words, does factual impossibility operate as a defense here? In general, factual impossibility is not a defense to any crime, but these aren’t normal facts.

Consider an analogy: A man is trying to kill his neighbor. So he sneaks into his neighbor’s home after midnight, fires three rounds into the bed, and leaves. It turns out that the neighbor was at his girlfriend’s house and the bed was empty. Clearly, we have no murder charge. But do we have an attempted murder charge? If the man fired the shots believing the neighbor to be in his bed, then the fact that he was not does not change the fact that the man took an action he believed was going to kill his neighbor. This constitutes an intentional attempt to kill another, which is all you need for an attempted murder charge. The intended victim being in actual danger is not, in fact, an element of attempted murder. So whether the neighbor survived because the man was a bad shot and only winged him, or because the neighbor was in a difference house entirely is irrelevant: the man’s guilty mind and actions are enough to convict him.

But if the man saw that his neighbor was gone but shot the bed out of frustration, wishing that he was there so that he would die, this is another matter entirely. Here, the most he can be convicted of is probably some combination of unlawful discharge of a weapon, destruction of property, and burglary. But because he knew that the man would not die, he lacks a guilty mind with respect to attempted murder.

So it would seem that if Pyro attacks Wolverine and is surprised that he survives, an attempted murder charge will stick: the fact that the attack couldn’t have killed him is irrelevant if Pyro believed that it would. But if Pyro attacks Wolverine, intending to kill him but knowing that the attack will not succeed, factual impossibility may actually serve to defeat a charge of attempted murder. Pyro certainly had the intent to kill, but did not commit an act which produced a substantial risk of death and knew this to be the case at the time.

This would seem to be in keeping with the classic case on the subject, State v. Mitchell, 71 S.W. 175 (Mo. 1904), which held “it is no defense that the defendant could not succeed in reaching his goal because of circumstances unknown to him.” The implication is that it would be a defense if the defendant knew he could not succeed. An excellent discussion of intent in criminal law can be found in People v. Joseph, 172 N.Y.S.2d 463 (County Ct. of N.Y., Kings County 1958) (with apologies to those without access to legal research tools; that case is not available freely online).

III. Serious bodily injury

But what about a slightly different case: what if the person truly only intended to hurt Wolverine, not kill him? And what if, knowing that Wolverine is one tough bastard, they used force which would have completely obliterated a normal person? Again, no attempted murder charge, but intent to inflict “serious bodily injury” (defined in federal law at 18 U.S.C. 1365(h)(3)) is something the law recognizes. If we were talking about a normal person, intent to inflict serious bodily injury is good enough to ground a murder charge if the victim does die, because recklessness, i.e. disregard for known risk, will work for murder. So if Pyro lights someone on fire and they die, it doesn’t matter whether or not he actually intended them to die, because he would have completely disregarded an obvious risk that they might. The legal system is pretty comfortable imputing intent to defendants who display extreme disregard for human life.

But intent to inflict “extreme physical pain” coupled with the knowledge that death will not result will not seem to ground an attempted murder charge, which is a specific intent offense. But even if the intent was only to inflict “extreme physical pain,” intent to do that coupled with the knowledge that it will not result in death will still turn the crime from simple assault, which is normally a misdemeanor, into aggravated assault, a felony. This would be true regardless of the intended victim: doing something which is going to cause a lot of pain is a serious crime. Wolverine being Wolverine does, however, mean that you can dish out a lot more pain and still only get stuck with an aggravated assault charge. Which kind of sucks for Wolverine, but hey, nobody said having a mutant healing factor was an unmitigated good. Most people I know would probably be willing to give up potential attempted murder charges against them in exchange for, you know, being invincible.

Superman is an interesting case here. Lighting him on fire may or may not even be possible, but assuming that it even works, it’s an open question as to whether or not he’ll notice. Probably depends on who’s writing the story in question. Attempted aggravated assault is, in fact, a crime, but that one’s going to be difficult to actually get to. If Pyro has run into Superman before–yay, crossovers!–then he knows that Superman isn’t going to die, so we’ve got no attempted murder charge. But he might not know whether Superman is going to feel it. If he knows, then we’ve probably just got a simple assault: Pyro was attempting to do something to Superman, and he did something, but he knew that it was futile. But if this was their first meeting, there doesn’t seem to be any room to argue that Pyro was only trying to burn him a bit, not kill him, Pyro having reason to believe that fire is really, really bad for people. Factual impossibility being no help to defendants not aware of the impossibility, it would seem that we have an attempted murder charge.

IV. Conclusion

Thus, whether an attempted murder charge will stick when the victim is basically indestructible essentially depends on whether the attacker knew beforehand that the target would survive. If they did know, then it’s going to be very difficult if not impossible to convict them of attempted murder. But if they didn’t, then an attempted murder charge should stick, because factual impossibility is no defense for the unwitting defendant.

*There are a few exceptions. Statutory rape, for example, does not require one to know that the person with whom one is having sex is underage. It is a “strict liability” offense, i.e. one for which the commission automatically brings liability, regardless of one’s state of mind. Speeding is similar: one need not have intended to speed to be guilty of doing so, even though one does need to be on notice as to what the speed limit actually is. But as intent is such a basic part of almost every ethical system, strict liability is reserved for offenses society deems to be either so serious as to be worth punishing at any cost, or so minor that the efficiency gain of disregarding intent is worth including some involuntary infractions.

29 Comments

Posted in criminal law, superheroes, supervillains, X-Men

RICO and the Legion of Doom

Posted on December 13, 2010 by | 13 comments

Comic book supervillains, like real world criminals, often form groups and work together to advance their nefarious schemes.  The Legion of Doom, the Brotherhood of (Evil) Mutants, and the Evil League of Evil are examples of organized supervillain teams.  With organization comes a price, however.  Participating in these groups makes their members more vulnerable to criminal prosecution and civil claims under the federal Racketeer Influenced and Corrupt Organizations Act, or RICO (there are also similar state laws).  But before discussing RICO and its applicability to supervillain teams, let’s first consider why other theories of criminal liability may not be the best fit.

I. Aiding and Abetting

Aiding and abetting may be a route to prosecution of members of a supervillain organization that “aid, abet, counsel, command, induce or procure” the commission of a crime by another, presumably another member of the organization. 18 USC 2 (state laws are similar).  The problem is one of proof.  Unless someone (perhaps whichever villain was caught in the act) testifies as to the nature of the scheme or some physical evidence ties a given supervillain to the crime (e.g. a diabolical device with Lex Luthor’s fingerprints all over it) the prosecution may have difficulty proving that a particular member of the organization aided or abetted the commission of the crime.

II. Conspiracy

At first glance conspiracy seems a better fit, but like aiding and abetting it has problems in practice.  Under US federal law, conspiracy generally requires an agreement between two or more people to commit an illegal act as well as for at least one member of the conspiracy to “do any act to effect the object of the conspiracy.”  18 USC 371.  However, at common law conspiracy did not require an overt act, and some states and specific federal conspiracy statutes do not have that requirement; mere agreement is sufficient.  See, e.g, United States v. Shabani, 513 U.S. 10 (1994).  It may seem like conspiracy is a fairly easy charge to run afoul of, but that low bar is justified by a strong public policy against conspiracy, probably because agreement makes it more likely that the crime will actually be committed and because cooperation can make possible more heinous crimes than could be committed by a single person.

But although the bar is low, evidence of agreement is still necessary.  Ordinarily this can be accomplished through informants, sting operations, surveillance, and plea deals that encourage conspirators to testify against each other.  In the case of a supervillain organization, however, it may be difficult to arrange surveillance or a sting operation without a superhero’s assistance (e.g. The Invisible Woman’s invisibility or Superman’s X-ray vision), and that kind of close cooperation with the police raises other concerns.  Informants are a possibility, but it may be difficult to offer a supervillain something valuable enough to warrant betraying his or her organization.  And plea deals only work if a supervillain is willing to testify in exchange for something.  A well-run supervillain organization may be able to enforce a ‘no snitching’ policy.

Conspiracy is most useful if the entire organization agrees to cooperate on a particular criminal scheme, but that agreement may be difficult to prove if not all of the members actually participate directly in the scheme (remember the problems with relying on other members’ testimony).  If not all of the members participated in the conspiracy, or if their participation cannot be proven, then the organization can live on minus a few members, and in most comic books that means the roster will be filled out again within a couple of issues.  What’s needed is a way to take down the entire organization at once, particularly the leadership, even if direct involvement in a given criminal act cannot be proven.

III. RICO

The problems with conspiracy and aiding & abetting are problems in the real world, too, especially when dealing with organized crime.  For example, it can be very difficult to prove that a mob boss ordered a hit, especially if the members of the organization won’t testify.  This was the inspiration behind the RICO Act.

In a nutshell, RICO allows prosecutors to charge members of an organization  with racketeering if the organization has committed 2 crimes out of a list of 35 within 10 years (exhibited a ‘pattern of racketeering activity’).  The individual members charged with racketeering must also have done at least one of the following (this is a broad paraphrase of 18 USC 1962):

  • have invested income derived from racketeering activity in an organization engaged in or affecting interstate or foreign commerce
  • acquired or maintained an interest or control in such an organization through a pattern of racketeering activity
  • conducted or participated in the affairs of such an organization, directly or indirectly, through a pattern of racketeering activity
  • or conspired to do any of the first three

As you can see, conspiracy has raised its head here as well, and in this context it is very useful as it stretches the already broad reach of the statute.  Whichever way it is accomplished, racketeering is a serious charge carrying up to a 20 year prison term as well as the possibility of treble damages in an accompanying civil suit.  For example, a member of the X-Men who was kidnapped by the Brotherhood of Evil Mutants could file a civil RICO claim.

Many of the crimes covered by RICO are inapplicable to a typical supervillain group (they don’t usually engage in bankruptcy fraud, for example), but several are likely to apply, including murder, kidnapping, arson, robbery, bribery, terrorism, and (federal) theft.  For some of the underlying crimes (e.g. murder, kidnapping), it is sufficient for the crime to be threatened.  Supervillain organizations frequently engage in many of those crimes.

It should be noted that in practice RICO is sometimes used against what you might think of as ‘proper’ organized crime groups or gangs, but it’s also sometimes used against more nebulous, loosely affiliated groups.  In those cases it can sometimes be difficult for prosecutors to prove the existence of a criminal enterprise.  That’s definitely not the case with groups like the Brotherhood of Evil Mutants or the Evil League of Evil.  Not only are they a well-defined organization with a leadership structure and a headquarters, they’ve got ‘evil’ right in their names!  It’s a prosecutor’s dream.

IV. Conclusion

RICO is clearly a danger to any traditionally-organized supervillain team.  A few successful convictions for kidnapping or robbery by less capable members could lead to racketeering charges and civil suits against the entire membership.  Forward-thinking supervillains might consider adopting a cell organizational structure that is more resistant to legal tools like RICO (and to infiltration by meddling superheroes)–or at least changing the group’s name to something a little less suspicious.

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Posted in criminal law, supervillains

Outlawry, Supervillians, and Modern Law

Posted on December 9, 2010 by | 21 comments

Before the modern period, the ability of the courts to enforce their authority was quite limited, shockingly so by modern standards. Court was only held in most English towns a few times a year, and it could easily be six or more months before the same court returned. This meant that the risk of a defendant, particularly a criminal defendant, beyond simply not showing up for trial but being completely un-locatable, was far greater than in modern times.

More than that, the mere fact that a court issued an order was no guarantee that said order would have any real effect. As an example, the English Court of Chancery stopped moving around from town to town in the mid-fourteenth century, meaning that most cases in equity were only heard in London, which unless you either lived there or were a landed aristocrat, you had probably never been to. So an order issuing from a court tens or hundreds of miles away, without any extant system of law enforcement–the first English professional police forces only date to the mid-seventeenth century, and the Metropolitan Police were not founded until 1829–was pretty easy to ignore.

So what was the legal system to do? Well, one common tool was “outlawry”, declaring a person to be beyond the protection of the law. The meaning of the sentence changed over time, and it ultimately disappeared with urbanization and doctrines like habeas corpus, but a growth in supervillainy might bring it back into fashion.

I. The Nature of Outlawry

When it was originally imposed in the Middle Ages, a sentence of outlawry was essentially a death sentence that the court did not believe it could immediately enforce, largely because the person was nowhere to be found. An outlaw was a person whom it was illegal to give any food or shelter, and whom it was legal to kill on sight as one might a wild animal. The pronouncement caput gerat lupinum, “Let his be a wolf’s head” (gotta be a lycanthropy storyline in there somewhere) set someone outside the bounds of civilized society. The theory was that a person who failed to show up to answer a felony charge was admitting their guilt.

Still, by the modern period, the definition of outlawry had shifted somewhat. Sir William Blackstone, perhaps the most famous English jurist in history, had already observed by the late-eighteenth century that while outlawry was still a potential sentence for criminals, it no longer permitted an outlaw to be killed at will. Rather, it permitted anyone to arrest them for prosecution and retained the penalties for aiding an outlaw.

Note that even this this arguably watered-down version of outlawry is significantly different from the way the word “outlaw” is used in modern parlance. “Outlaw” motorcycle gangs and “outlaw” country musicians are really nothing of the sort. Sure, there’s some at least feigned anti-social tendencies in both, and the former does even occasionally rise to the level of criminal activity, but neither represent groups of people who exist entirely outside the bounds of the law.

II. The Decline of Outlawry

For a variety of reasons, outlawry slowly fell out of favor in the legal system. For one thing, population growth and expansion made hiding from society increasingly difficult. A supervillain having trouble finding a place to put a lair should have cause to regret that they were not born a few centuries earlier, when there was still a huge amount of unoccupied and undeveloped land to be had. But even by the early modern period, circa 1700, Europe was pretty far towards occupying its remaining wilderness regions.

“Outlawry” does not seem to have crossed the Atlantic as an identifiable legal tool, as by the time of the founding of the American colonies, it was already disappearing in England. Even the famous “outlaws” of the Old West were generally not declared outlaws as such by a court of law. A lot of the bounties posted were either offered by private citizens or local law enforcement, both of which acted pretty much outside the legal system. In truth, the legal situation significantly resembled pre-modern England, where the reach of the court was pretty limited–many judges rode circuit on horseback–and local communities pretty much dealt with things on their own authority. But once civilization made it out there, the advent of the Fourteenth Amendment and the development of habeas corpus jurisprudence effectively ended the practice even in this unofficial basis.

III. Outlawry as a Weapon against Supervillains

So what happens when the Joker, or Magneto, or Doc Oc, or some other immensely powerful figure emerges and does what supervillains do? The whole premise of comic book multiverses is that there periodically appear people/things that society can only be protected from by specially-empowered individuals, that normal methods of law enforcement and even military intervention won’t necessarily work.

Fair enough. But that doesn’t mean that the courts are completely powerless, and it may be time to dredge up outlawry as a useful tool. If nothing else, declaring a supervillain to be an outlaw through due legal processes would permit superheros to go after supervillains whenever and wherever convenient. The issue here, rarely addressed in comic books, is that unless a superhero is working directly for the state, their ability to apprehend and kill anyone, even supervillains, is pretty limited by the law. If the Joker is threatening to drop a bus full of school kids off a bridge, yeah, Batman can do whatever, because deadly force is justified in preventing the deaths of others. But if the Joker is between capers, private actors, like most superheros, can’t go after them without exposing themselves to civil and criminal liability for wrongful death, impersonating an officer, false imprisonment, excessive force, etc. But if the supervillain were declared to be an outlaw, hey, all bets are off. Go nuts.

Second, declaring someone to be an outlaw would make it illegal to transact basically any business with them. Some supervillains may be magnificently rich, evil geniuses, but they still need to get their raw materials from somewhere unless they’re basically running their own country (which is, apparently, an option, albeit a rare one). In this sense, outlawry could be considered an absolute economic embargo targeted at a person or persons rather than a state or government. This could be a potentially useful tool in curbing the power and influence of supervillains.

IV. Reimplementing Outlawry

As discussed above, outlawry is basically gone as a legal sentence, and as useful as it might be, outlawry as it was originally defined is completely incompatible with modern concepts of due process. For starters, declaring someone guilty because they failed to show up for trial violates just about every procedural standard it is possible to name, chief of which is the presumption of innocence, an important civil right enshrined in Coffin v. United States, 156 U.S. 432 (1895), which held: “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”

So that’s probably out. But trial in absentia is probably out too, at least without some changes being made to the law. Federal Rule of Criminal Procedure 43 requires the presence of the criminal defendant, and Crosby v. United States, 506 U.S. 255 (1993) makes it pretty clear that a criminal who is arrested but escapes or absconds before trial cannot be proceeded against until he appears in court. It may be possible that a trial might be permitted to continue if a defendant is there at the beginning and then voluntarily leaves (see United States v. Lawrence, 161 F.3d 250 (4th Cir. 1998)), but simply bringing charges against someone and going to trial without them would probably not be permitted under current law.

Still, if I were the prosecutor, I’d make the argument that a supervillain that law enforcement is unable to apprehend but who damn well knows about the prosecution is a different case than your standard, underprivileged, uneducated, minority offender that the legal system is right to try to protect from being railroaded or lynched inside the courthouse. One might even limit the definition of “supervillain” to “one who possesses powers or abilities so far in excess of ordinary human beings that forcefully apprehending them would either be impossible or almost certainly cause significant loss of innocent life.”* This might constitute a violation of equal protection, but there’s a good case to be made that such an approach would survive strict scrutiny, in that it is 1) directed at a compelling governmental interest, 2) narrowly tailored, and 3) the least restrictive means of accomplishing said interest. Given that a challenge of this sort would probably be first attempted against a notorious villain the cops are unable to apprehend, and that a sentence of outlawry would manifestly assist both superheros and traditional law enforcement in their efforts against said villain, the pressure to find some way of carving out an exception would be pretty significant. Then again, hard cases make bad law, so whether or not this is a good thing remains to be seen.

V. Conclusion

Outlawry is an old legal doctrine, one more suited to a time where the law is relatively powerless. As such, it has faded from use and is now almost unheard of. But the presence of supervillains might justify resurrecting the doctrine, and a few minor changes to the law could theoretically make this work.

*Note that this definition would exclude so-called “criminal masterminds” who lack any kind of paranormal abilities. So, for example, the Joker and Lex Luthor, under most of their instantiations, would probably fall outside this definition. But Iron Man or someone using Stark technology might not. And there would be litigation.

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Posted in criminal law

Resurrection Redux: Crimes, Punishment, and Debt

Posted on December 7, 2010 by | 31 comments

Probate law is just one aspect of the law affected by death and resurrection. Criminal law and contract law are also implicated.

I. Resurrection and Criminal Law

The Enron scandal was one of the biggest financial scams in history, before the 2008 crash anyway. While there are certainly interesting issues to be discussed in the execution and ultimate unraveling of that scheme, the real supervillainy shows up right at the very end. Kenneth Lay was convicted of ten counts of conspiracy and fraud on May 25, 2006, but before he had been sentenced, he died. The official cause of death was listed as heart failure, and following well-established law (see, e.g., United States v. Schuster, 778 F.2d 1132, (5th Cir. 1985)), the judge vacated the conviction and the indictment. This meant that his estate got to keep all of the money he “earned” while at Enron, leaving the government and the people he defrauded entirely without remedy.

But what if he was somehow resurrected or reanimated after the judgment was finalized?

This blogger is unaware of any cases where a conviction had been vacated or abated by reason of the defendant’s death before his appeals were exhausted but was then reinstated when the defendant turned out not to have been dead. But given the seriousness with which courts tend to treat criminal convictions, it seems likely that a court would not hesitate to reinstate a conviction for a defendant who somehow stopped being dead.

There’s another potential wrinkle in here: what if someone is convicted for murder and then the victim comes back to life?

Actually, this one is could be pretty straightforward: if the victim was actually dead at some point, i.e. he really was dead, he wasn’t simply missing or presumed dead, then the elements of the crime are still complete. The defendant did, in fact, kill the victim. Whether or not the victim stays dead is not actually an element of any homicide offense. So it would seem that this is ultimately irrelevant, which is perhaps a little counter-intuitive but does have the benefit of simplifying things a lot. As courts tend to like rulings which alleviate the burden on their dockets, this is not an unlikely outcome.

If, on the other hand, the victim turns out to have merely been critically injured and then lost or hidden, as has happened too many times in comic book history to count, things do change somewhat. If the defendant has been sentenced to death, that sentence would probably be commuted, as the Supreme Court is pretty consistent about requiring a dead body before the death penalty can be invoked.  See, e.g., Coker v. Georgia, 433 U.S. 534 (1977). But it is unlikely that the conviction would be overturned entirely. A murder conviction includes all the elements of attempted murder, and a manslaughter conviction would probably include all the elements of aggravated assault. Whether or not a court would order a new trial probably depends on the facts of the crime and the reappearance.

II. Resurrection and contract law

In addition to vacating convictions, death also has an effect on contractual liabilities. If someone incurs a lot of debt and then dies, their creditors can go after the estate but will not actually be able to go after the decedent’s heirs. So what happens when a character dies, his estate is probated, and then comes back? The ins and outs of resurrection and probate have already been discussed, but here it is probably the case that the outcome is going to be pretty dependent upon the facts.

The sneakiest, most villainous hypothetical would be a character that deliberately dies/has himself killed, knowing he will be resurrected or otherwise return to life, in an attempt to avoid his liabilities. Here, there is a good argument to be made that in the courts’ preference for substance over form, a person would not be permitted to deliberately avoid their liabilities this way. Fraud is fraud, regardless of how it is accomplished, and this sort of thumbing your nose at the legal system is likely to piss off the judge. A pissed off judge will probably find some way to nail you, even if it involves creating new law to do it.

But what about the hero who is actually killed and is brought back to life where neither are of his own doing? Clearly there is no intent to defraud, but that doesn’t mean that a court will simply hand out a free pass. Contracts are contracts and debts are debts, and though neither will follow one beyond the grave, coming back from the grave would seem to require leaving its protections behind as well. Here, it seems plausible that a judge would base the treatment of any outstanding debts on the way that the character goes about the rest of his assets. If he wants a clean break and does not attempt to reclaim any of his property that has gone through probate, a court could easily adopt the position that hey, he did die, and as he isn’t trying to “undo” the legal effects of his death beyond the mere fact of his resurrection, allowing the debts to remain discharged makes some sense.

If, on the other hand, the character attempts to return as closely as possible to the legal position he occupied before he died, equity would seem to demand that his creditors be given the opportunity to reassert their claims.  In particular, the equitable doctrine of unjust enrichment would require that, at a minimum, any assets subject to a claim by a creditor could not be reclaimed by the resurrected character without also reviving the debt (no pun intended).

III. Conclusion

So it turns out that these are both examples of how the law might actually be more resilient than it might otherwise appear. Though resurrection does pose interesting issues for judges in both criminal and contract law, it would seem that the legal system already possesses the necessary doctrines and flexibility to handle them.

Commentary from James Daily

I generally agree with my co-author here.  I think there is one interesting edge case, however, and that is the treatment of characters who routinely come back from the dead as a matter of course.  For example, some characters have such powerful regeneration abilities that they will come back from the dead on their own (e.g., Doomsday, Claire Bennet, Lobo).  If someone ‘kills’ such a character only to have them self-resurrect in the expected fashion, has a murder actually been committed?  Note that at the very least attempted murder has been committed as has aggravated battery, so the defendant would still be guilty of a serious crime, but not murder, which would foreclose the death penalty, at least in the US per Coker v. Georgia.

I should probably first explain why attempted murder is still on the table, even if it were factually impossible to permanently kill the victim (e.g. the weapon in question could not actually have killed the victim or the victim would necessarily self-resurrect).  Factual impossibility is generally not a defense to an attempted crime; it suffices that the defendant intended to kill the victim or to cause grievous bodily harm.  It seems likely that any damage sufficient to temporarily kill a self-resurrecting character would fit the bill.

Regarding the primary question: one approach would be to analogize to cases in which the victim was briefly clinically dead but was later resuscitated and then recovered.  Unfortunately, I could only find cases in which the victim was resuscitated but then steadily got worse and ultimately died.  If any knows of a case on point, please let me know.

Instead we can turn to the legal definition of death.  This varies from state to state, but a majority hold that brain death is synonymous with legal death.  In 1975 the American Bar Association stated: “For all legal purposes, a human body with irreversible total cessation of brain function, according to usual and customary standards of medical practice, shall be considered dead.”  61 J. Am. Bar Assoc. 464 (1975).  This is not exactly the definition used in many states, but it’s close enough for our purposes.

In the case of a temporarily dead self-resurrecting character the damage done to the brain is demonstrably reversible.  On the other hand, it may still be irreversible according to the usual and customary standards of medical practice.  A criminal defense attorney would certainly try to argue that a self-resurrecting character cannot be murdered, but I think the courts would be unpersuaded.  The public policy against murder is very strong, perhaps the strongest there is, and the courts would almost certainly adjust their definition of death to encompass the temporary deaths of self-resurrecting characters.

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Posted in contracts, criminal law

Superheros and alter-egos

Posted on December 1, 2010 by | 38 comments

Bruce Wayne is Batman. Clark Kent is Superman. Tony Stark is Ironman. Peter Parker is Spiderman.

And so it goes. Throughout the various multiverses, numerous superheroes have maintained alter-egos, either to protect their “normal” lives and loved ones or to disguise their true natures. Sometimes both.

Either way, the idea of an alter-ego comes with certain legal complications, as has been recognized long before the publication of the first comic book. In Robert Louis Stevenson’s Strange Case of Dr. Jekyll and Mr. Hyde, first published in 1886, one of the main plot drivers is Jekyll’s pains to ensure that he maintains access to his property when he changes into Hyde. This largely took the form of instructing his servants to pay heed to Hyde and executing a will leaving everything to Hyde should Jekyll disappear.

Legally, there is no reason Jekyll could not do this. The fee simple gives a property owner the right to dispose of his property in any legal way that he sees fit. The problem is not that Jekyll’s design was illegal, but that it was unusual, to the point that people noticed something was up. Indeed, it was the very attempt to create and maintain this alter-ego which led to the discovery of his dual identity. If Jekyll/Hyde had been content to live two entirely different identities with no overlapping property or affairs, i.e. if Hyde had been willing to forego all of Jekyll’s advantages, the story could have ended quite differently.

So the problem is not only in the creation of an alter-ego, but doing so within the bounds of the law in ways that will maintain the integrity of the illusion. Both of these will cause problems on a number of levels.

I. Legal Status

The relationship between one’s “mundane” and “masked” identities is significant. If one starts life as a mundane person and then acquires a masked identity, e.g. Bruce Wayne becoming Batman, things are fairly straightforward, as one already has a full-fledged legal identity. But simply creating a new person out of whole cloth, as one would need to do if one were creating a new cover identity or faking one’s own death, is more difficult. Governments do this for people on a regular basis for things like witness protection programs, espionage, undercover operations, etc., but there are two main facts about this which present problems for our superheros. First, government-created identities are obviously created with government approval, so no laws are being broken. Second, these identities are rarely intended to be used either for significant transactional purposes or for very long, i.e. they are not intended to fully or permanently replace the original identity.

The basic problem then is that to create a new identity without government authorization requires the commission of a number of felonies, potentially including making false immigration statements (18 U.S.C. 1015), identification document fraud (18 U.S.C. 1028), perjury (18 U.S.C. 1621) and numerous related offenses under state law. And trying to live in contemporary society without such documents will be very, very difficult. One cannot buy a car, rent an apartment, get a checking account, or engage in a host of transactions essential to the logistics of mundane life without some form of government identification, identification which a superhero wanting to create a new mundane identity for his masked persona would need to forge. Creating successive false identities all but requires one to engage in illegal activities. So much for being a law abiding citizen.

All of these may seem trivial, but Al Capone was eventually brought down, not for racketeering or the St. Valentine’s Day Massacre, but for simple tax evasion. And if the illegality is not problem enough in its own right, these sorts of illegalities do tend to attract enough attention to make maintaining a secret identity pretty difficult, particularly if one wishes to maintain some kind of base-level commitment to law and order.

II. Money Laundering

Speaking of taxes, transferring large sums of money without a paper trail is difficult to do legally. Money laundering is a federal offense, and suggestions of financial shadiness tend to attract the attention of prosecutors. Jumping through offshore banks is no guarantee of secrecy: the discipline of forensic accounting exists almost solely to analyze patterns of financial transactions for irregularities. Even cash transactions are no solution, as transactions over $10,000 must be reported to regulators and paying for anything more than $500 with cash will be reported as suspicious. So while the money being “dirty” in some sense, i.e. representing the proceeds of or being used for some unlawful activity (18 U.S.C. 1956) for disguising the origin and ownership of funds to be a felony, simply the attempt to disguise it is likely to raise red flags all over the place, because most of the people engaged in that sort of activity are doing so for nefarious reasons. If our superhero or an artificial “mundane” persona is going to need to spend any money, this poses problems of the sort which could easily trigger an IRS audit. As the Joker observed at one point, “I’m crazy enough to take on Batman, but the IRS? No, thank you!” So again, it seems that our some of our heroes are faced with a difficult choice: maintain their secret identity or live within the bounds of the law, but even breaking the law in this way is no guarantee of success.

III. Evidence and the Sixth Amendment

Unfortunately, unless a hero plans to kill every villain with whom they come into conflict, bringing said villains to justice is actually made a lot more difficult the more a masked hero is involved in the case. It turns out that wearing a particular costume or uniform, which is how superheros and villains are normally identified in comic books, does not actually count as evidence that the person wearing them is, in fact, the same person all the time.

This is significant, because the Confrontation Clause of the Sixth Amendment reads “[I]n all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him.” The goal of the Confrontation Clause, as stated by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), is to “preserve reliability of evidence” by establishing procedures so that “reliability [may] be assessed in a particular manner: by testing in the crucible of cross-examination.”

A witness whose identity cannot be definitively established would likely be useless as a witness. Courts and legislatures have made exceptions to the Confrontation Clause for situations like child witnesses against their abusers, but these are mostly limited to permitting the child, visible to the court, to testify via closed-circuit TV so that they do not have to see the accuser. There is no precedent to suggest that an essentially anonymous person or a person operating under a known or obvious alias would be permitted to testify in court without revealing their actual legal identity. A clever defense attorney could easily point out that we don’t even let witnesses in the witness protection program testify in open court while disguised; why should we let a superhero?

The Sixth Amendment aside, it is not clear that the Federal Rules of Evidence would permit a masked person to testify at all. Federal Rule of Evidence 602 reads, in part, as follows:”A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” It will be much more difficult to prove that a masked person was a witness to a particular event when there may be no evidence that the masked person on the stand is the same masked person who allegedly saw what he claims to have seen. It is common practice for attorneys to ask a few simple questions such as name, address, age, etc. to establish a witness’ identity before proceeding to elicit testimony. Such questions would be impractical for a masked person to answer without revealing their identity, and a refusal to do that might well cause a judge to exclude their testimony entirely. Again, we don’t let traditional witnesses disguise themselves, and there isn’t any obvious legal reason that a superhero should be an exception to that rule. As the FRE apply to both criminal and civil cases, so this could be a problem even when the Sixth Amendment does not apply. Something like Peter Parker taking pictures of Spiderman’s exploits might help, but again, someone needs to be able to testify as to the veracity of those pictures, and that would mean testifying about their origin under oath.

This is a legal problem inherent to the maintenance of an alter-ego of any sort. Even a person who starts life as a mundane and then dons a mask to fight crime will run into this.

IV. Conclusion

So creating a superhero creating an alter-ego is a bit more legally complicated than it might seem. In addition to the problems of actually creating one in the first place, the logistics of maintaining the persona are significant, especially when trying to do so legally. But even the simplest alter-ego, the normal person who occasionally fights crime as a masked crusader, will run into legal problems if they are called to testify to what they have seen.

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Posted in Batman, civil procedure, criminal law, criminal procedure, superheroes

Law and the Zombie Apocalypse

Posted on November 28, 2010 by | 25 comments

Characters in post-apocalyptic scenarios often resort to drastic measures to survive, but are they legally justified?  While the law recognizes a defense of necessity, the defense has limits.  In particular, murder (perhaps in the form of cannibalism) cannot be justified by necessity.

In The Walking Dead characters engage in cannibalism to survive.  In the lawless environment of the comics & TV series, this seems justified, but what if law and order were restored?  There is no statute of limitations for murder, and as it turns out, even the necessity of survival does not justify cannibalism.  Note that I’m talking about cannibalism that involves killing a person, not eating someone who died from other causes.

In the law-school-famous* case of R. v Dudley and Stephens, 14 QBD 273 DC (1884), it was held that necessity is not a defense to murder.  In that case, four shipwrecked men adrift in a lifeboat eventually resorted to killing and eating the youngest and weakest of the crew.  The three remaining men were picked up, whereupon they admitted what happened.  Two were charged with and convicted of murder and sentenced to death, though the appellate judge expected mercy, and indeed they were only sentenced to six months imprisonment.  The third survivor, who had been less keen on the scheme, was not charged so that he could be called as a witness, though he had also eaten the victim.

The shipwreck case is analogous to a post-apocalyptic situation in many ways.  The legal system is effectively suspended, the chances of survival are remote, and cannibalism may be a literal necessity.  But while the defense of necessity may excuse trespassing, looting, and a multitude of other sins, murder remains beyond the pale.

* Law school famous is like internet famous but for law students and lawyers.

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Posted in criminal law, zombies