Category Archives: criminal law

Ultimate Spider-Man #117

Posted on March 27, 2014 by | 11 comments

The question behind today’s post comes from Levi.  Trigger warning: this post deals extensively and frankly with the subject of suicide.

Continue reading →

11 Comments

Posted in criminal law, mailbag, Spider-Man

Elementary: “Child Predator”

Posted on February 18, 2014 by | 3 comments

I’m back after a brief hiatus! A whole bunch of reader questions have accumulated in the mailbag, and I’m going to try to work through the backlog. Today’s comes from Bob, a British reader who asked about the American show Elementary, specifically the first season episode “Child Predator” (spoiler alert!).  If you haven’t seen Elementary, I recommend it.  I actually prefer it to Sherlock.

Anyway, on to Bob’s questions (again, spoilers):

[In the episode,] a multiple child-killer initially tricked the police into believing he was an unwilling accomplice of the “real” killer. Believing this to be the truth the DA offered immunity from prosecution in return for his help in catching the “real” killer. Holmes subsequently discovered that the roles were really the other way round – he was the real killer and the man he claimed to be the accomplice of was, in fact, the unwilling accomplice. The deal is specifically immunity from any crimes committed in concert with the other man.
The deal is implied to still hold and he openly admits his crimes to Holmes, apparently certain that he is safe from prosecution.
One of the crimes is later discovered to be a solo endeavor as the other man was in hospital when it was committed.  [At the] end of the episode the police are about to arrest him for that one crime.

I’m British and pretty much everything I know about American law comes from your blog or the sources that inspired it, so I have three questions.

1. Would the DA really offer such an all-encompassing deal.
2. When it’s discovered that he really is the prime instigator would the deal still hold.
3. Would the “solo” murder be covered by the deal  or not.

I. Immunity in Exchange for Cooperation

As I told Bob when he sent in the question (way back at the end of 2012, embarrassingly enough), I don’t have enough criminal law experience to say whether the deal was realistic.  My gut says yes.  In theory the “accomplice” had a good defense (duress, since he was originally kidnapped by the actual accomplice), he was a minor for most of the crimes, and the police and prosecution needed his help to put away the person they thought was the actual mastermind.  Granting immunity in order to allow one member of a conspiracy to roll over on another is a common tactic, and I could see it being used here.

II. Just How Strong are Immunity Deals Anyway?

It has been recognized for some time that plea bargains can be enforced against the government. Santobello v. New York, 404 U.S. 257 (1971).  But what about deals in which the defendant is offering something else, such as agreeing to testify as a witness against other participants in the crime?  It turns out that such agreements are not always enforceable.

The Second Circuit (which includes New York) has held that “the government may in its discretion make agreements in which it exchanges various levels of immunity from prosecution for the defendant’s cooperation” and that such agreements are subject to ordinary contract law principles.  U.S. v. Aleman, 286 F.3d 86, 89 (2d Cir. 2002).  These principles include construing any such deal strictly against the government (because, after all, the government wrote the deal). Id. at 90.

However, all the strict-construing in the world won’t save a defendant who fails to uphold their end of the bargain.  A common feature of immunity deals is that the defendant-witness has to agree to testify truthfully.  As the Aleman case held, “truthful” can include a sincere but incorrect belief, but it doesn’t include lying. Id.  On the other hand, while the government has the discretion to decide if a defendant has adequately cooperated, “the government’s discretion does not grant it power to turn its back on its promises to the defendant under the cooperation agreement or to ignore a defendant’s cooperation efforts simply because the defendant is supplying information that the government does not want to hear.”  Id. at 91.

Aleman was a federal case, however, and the case in Elementary was a state case.  So what do the New York courts say about this?  It turns out that there’s a fairly similar New York case, People v. Curdgel, in which the defendant was given a reduced sentence in exchange for testifying against his accomplices.  83 N.Y.2d 862 (1994).  After he testified, however, the defendant went on television and said that he had lied to the grand jury.  The prosecution refused to honor the plea agreement, and the highest court in New York upheld that refusal.  The court held that the “defendant failed to uphold his end of the plea agreement and rendered the agreement valueless to the People…We cannot say that essential fairness compels enforcement of the original agreement.”  Id. at 864.

So the answer will almost certainly depend on how exactly the immunity deal was written.  If it included a requirement that the defendant testify truthfully, or if the deal itself included a statement of facts that the defendant swore to, then the prosecution would not be bound by the deal because the defendant breached it by lying.  But if the deal was sloppily written and simply gave the defendant immunity in exchange for agreeing to testify (regardless of the content of his testimony), then the government may not have much of a leg to stand on.

III. The Scope of Immunity

Whether or not the “solo” murder would be covered by the deal depends again on how exactly it was written.  The language we get from the episode is “in concert with.”  We know that the real accomplice was in the hospital recovering from a major surgery at the time of the solo crime, so he certainly wasn’t actively involved in the commission of the crime.  However, the defendant likely used the accomplice’s vehicle and other, indirect, forms of assistance.  It could be argued that the deal should be strictly construed against the government to include not just conspiracy but also accessory or accomplice conduct.

That all assumes that the deal holds at all, however.  As discussed above, it’s very likely that the deal would fall apart completely once it came out that the defendant was lying about his role in the murders.

 

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Posted in criminal law, criminal procedure, mailbag, television

Book Review: Waller and Williams Criminal Law

Posted on December 23, 2013 by | 5 comments

I was recently asked by Lexis Nexis Australia if I would be interested in reviewing one of the books they publish.  Not knowing much about Australian law, I was happy to review one from the perspective of an American attorney looking for an introduction to the subject.  Given that criminal law is one of the most common subjects on the blog, I chose Thalia Anthony et al., Waller & Williams Criminal Law: Text and Cases (2013) to review, and Lexis Nexis Australia provided a free copy.

I. The Book

At over 1000 pages, Waller & Williams is a fairly comprehensive book.  Overall it’s broken into three parts: an introduction into the theory and justifications behind the criminal law (as well as a bit of criminal procedure), a section on specific criminal offenses, and a section on defenses.  Concepts are explained with a mixture of notes from the authors, statutory text, and excerpts from important cases.  This approach mirrors that found in many American casebooks and was very easy to follow.

Overall I was struck by how approachable the subject was.  Like the United States, Australia is a common law country.  This means that the general structure of the criminal law (e.g. the requirements of actus reus and mens rea) and the definitions of many crimes and defenses are the same or very similar to those in the United States.  Also like the United States, Australia is a federation.  This means that the Australian states have their own independent systems of laws separate from the Commonwealth’s.  Just as in the United States, this approach means that we can analyze a given problem in multiple contexts.

Just as the patchwork of criminal laws in the United States has resulted in a variety of insanity defenses in the different states, the same is true in Australia.  Further inspired by the international nature of Batman, Inc. (which included an Australian member, the Ranger), I decided to look at how supervillains claiming a defense of insanity would fare in Australia.

II. Insanity in Australia

In addition to coverage of the Commonwealth laws, Waller & Williams includes significant coverage of the laws in New South Wales and Victoria, the two most populous Australian states.  As in the United States, Australia followed the M’Naghten rules until recently, when some jurisdictions began adopting other rules.  The Commonwealth Criminal Code Act (i.e. the primary federal criminal law in Australia) uses a wider definition, found in § 7.3:

(1) A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that:

(a) the person did not know the nature and quality of the conduct; or
(b) the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or
(c) the person was unable to control the conduct.

…

(8) In this section: mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.

As Williams & Waller explains, this is essentially the M’Naghten rules (subsections (1) and (2)) plus uncontrollable impulse and coverage of severe personality disorder (i.e. psychopathy).  This is notable because very few American jurisdictions recognize uncontrollable (or irresistible) impulse as a defense.

In Victoria the defense is called mental impairment rather than insanity, but still broadly follows the M’Naghten rules in its Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, § 20:

(1) The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence the person was suffering from a mental impairment that had the effect that —
(a) he or she did not know the nature and quality of the conduct; or
(b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).
(2) If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.

In Victoria, mental impairment covers neither personality disorder nor irresistible impulse.

Unlike the Commonwealth and Victoria, New South Wales still follows the common law M’Naghten rules directly rather than having an explicit statutory scheme.  However, “mental illness” is defined by statute:

‘mental illness’ means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:
(a) delusions,
(b) hallucinations,
(c) serious disorder of thought form,
(d) a severe disturbance of mood,
(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)–(d).

The Mental Health (Forensic Provisions) Act 1990, § 38(1) provides that, if the person tried ‘did the act or made the omission charged, but was mentally ill at the time’, the jury should return a ‘special verdict’ — ‘that the accused person is not guilty by reason of mental illness’.  Given the statutory definition of mental illness above, this seems broader than the M’Naghten rules.

III. What Does This Mean for Supervillains?

The bottom line seems to be that supervillains branching out into the Australian market (so to speak) would do well to stick with federal crimes, as the Commonwealth Criminal Code’s definition of insanity is considerably broader than either Victoria’s or New South Wales’s.  The inclusion of irresistible impulse and severe personality disorder would potentially enable supervillains such as Two-Face, the Riddler, and even the Joker to claim insanity.  As we discussed previously, these supervillains would find it very difficult to plead insanity in most American jurisdictions (and, indeed, in most Australian jurisdictions).  For example, the Joker is not insane by virtually any American definition, but he is likely a psychopath (as I understand it), and thus could be insane under Australian federal law.

It is interesting to note that the Australian federal insanity defense is broader than the state equivalents.  Broadly speaking, the opposite is true in the United States, particularly as a result of the finding of attempted presidential assassin John Hinckley, Jr. not guilty by reason of insanity.  In response to the verdict, the US federal government passed the Insanity Defense Reform Act, which made it much more difficult to successfully plead insanity in federal court.  Several states also restricted the insanity defense, but in general state rules and procedure remain more lax than the federal ones.

IV. Conclusion

Overall I found Waller & Williams easy to use and fairly comprehensive.  As with any casebook I wouldn’t rely on it as a sole source for advising clients (admittedly not a very likely scenario to begin with when it comes to Australian criminal law), but it is a useful introduction to and outline of the subject.

5 Comments

Posted in books, criminal law

Guest Post: Defending Loki

Posted on November 25, 2013 by | 71 comments

This guest post was written by Joe Suhre, of Suhre & Associates, LLC, a firm with offices in Chicago, Illinois, Dayton, Ohio, and Columbus, Ohio. Joe received a Criminal Justice degree from Xavier University and worked for 6 years as an auxiliary police officer. He later received his Juris Doctorate from the University of Cincinnati.

In the closing sequence of Marvel’s The Avengers, The World Security Council that evidently has the authority to order a nuclear strike on New York City, questions Nick Fury about the disposition of Loki. Calling Loki a war criminal, they ask Mr. Fury why he let Thor take Loki away when he should be answering for his crimes.

In this iteration of the Multiverse, evidently the bureaucracy of the United States has given way to the autocratic decisions of an infighting oligarchy that ignores due process and extradition laws. Well, at least Nick Fury does.

I think I would have rather seen a little more adherence to law and let Loki have his day in a U.S. Court. I say this, because as a criminal defense attorney, I believe there is a reasonable defense for Loki.

Loki’s Past, the Key to His Defense

Based on Loki’s actions and behavior, Loki’s best defense would have to be the truth—he is insane—but not a generic insane; Loki suffers from grandiose delusional disorder, a very complex psychosis where non-hallucination influenced delusions become core beliefs and the main motivation for daily activities.

Loki’s delusions began when he was very young. As his defense attorney, I would chronicle his delusions from early childhood on, showing how specific events helped create and support his grandiose delusions. I would produce expert witnesses and then introduce testimony from Loki’s past that would that Loki’s behavior is consistent with his delusions.

Establishing the Beginning of Loki’s Delusions

Loki was born the son of Laufy, king of the Frost Giants. Laufy kept his infant son in seclusion due to his non-giant size. Odin, leader of the Asgardian gods led his armies to victory against the Frost Giants where Laufy was killed in battle. Loki was discovered hidden in the giant’s main fortress. His size, considered diminutive by his own kind, was actually similar to Odin and other Asgardians. Odin took Loki back to Asgard and raised him alongside his biological son Thor.

Even though Loki was raised as a god in Odin’s court, he would eventually learn the truth; Odin, Loki’s father since he could remember, destroyed Loki’s true family. He would never be favored above Thor. He was a “god” by association, not by blood. Despite his home address, Asgardians did not respect him as they did Thor.

As Thor rose from favor to more favor, the contradictions in Loki’s circumstances drove him to seek out the dark arts and mischief.

Expert Witnesses

After going over his past, I would bring in a child psychiatrist as an expert witness who would explain how the tragic and ironic events in Loki’s life from infancy to adulthood led him to replace the realities of his life with delusions.

My next expert witness would be an adult psychiatrist who had interviewed Loki extensively. I would have him or her explain the complexity of delusion disorder to the court and describe Loki’s dominant delusions. Since I am not a psychiatrist, I don’t know everything a doctor would find. My assumption would be that Loki’s main delusions would be his belief that he is the rightful king of Asgard, that he is smarter than everyone, and that as king of Asgard he is the rightful ruler of Midgard (Earth).

Corroborating the Findings of the Experts

Expert witnesses are indispensable to back up an insanity plea but equally vital are the actions and statements of the accused that would back up the claims of the experts. My next witness would show examples of Loki’s behavior that matched the findings of my experts.

Some of the instances I would use would be the following:

  • Loki’s introduction in the Avengers, “I am Loki of Asgard, and I am burdened with glorious purpose.”
  • Loki demanding a crowd of people to kneel to him and when they do states, “Is not this simpler? Is this not your natural state? It’s the unspoken truth of humanity, that you crave subjugation. The bright lure of freedom diminishes your life’s joy in a mad scramble for power, for identity. You were made to be ruled. In the end, you will always kneel.”
  • You are, all of you are beneath me. I am a god, you dull creature, and I will not be bullied…
  • Bruce Banner’s assessment was also an interesting observation, “I don’t think we should be focusing on Loki. That guy’s brain is a bag full of cats, you could smell crazy on him.”

Interspersed between Loki’s moments of delusion are cases where he acts normal and even helpful. This is typical for grandiose delusion disorder since people suffering from the same exhibit normal behavior when they aren’t trying to advance their delusions.

Conclusions

This part of the trial would typically be quite lengthy because we are attempting to establish a severe mental illness that would explain his crimes and his mental state during that time. We would not dispute the facts of the case, only the intent of the accused and his ability or inability to distinguish the morality of his actions.

We may weave through our defense the “McNaughton rule.” This rule creates a presumption of sanity, unless the defense proves “at the time of committing the act, the accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know what he was doing was wrong.” The McNaughton rule is the standard for insanity in almost half of the states.

In 1972, the American Law Institute, a panel of legal experts, developed a new rule for insanity as part of the Model Penal Code. This rule says that a defendant is not responsible for criminal conduct where (s)he, as a result of mental disease or defect, did not possess “substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” This new rule was based on the District of Columbia Circuit’s decision in the federal appellate case, United States v. Brawner, 471 F.2d 969 (1972).

One of the most famous recent uses of the insanity defense came in United States v. Hinckley, concerning the assassination attempt against then-President Ronald Reagan.

In 1984, Congress passed, and President Ronald Reagan signed, the Comprehensive Crime Control Act. The federal insanity defense now requires the defendant to prove, by “clear and convincing evidence,” that “at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts” (18 U.S.C. § 17). This is generally viewed as a return to the “knowing right from wrong” standard. The Act also contained the Insanity Defense Reform Act of 1984, 18 U.S.C. § 4241, which sets out sentencing and other provisions for dealing with offenders who are or have been suffering from a mental disease or defect.

The Verdict

Proving Loki’s delusion wouldn’t be difficult. However, on top of his grandiose delusion disorder is his Asgardian culture that believes in the glory of war, utterly destroying one’s enemies, and a totalitarian monarchy, that would further qualify him as being “unable to appreciate the nature and quality or the wrongfulness of his acts,” under Federal guidelines.

Even though John Hinckley, Jr. was found not guilty by reason of insanity, he has yet to be given unsupervised released from his hospital. Loki would most likely receive similar treatment after his verdict. However, maybe after 100 years of therapy and counseling Loki could be cured and lead a normal autocratic warrior life in Asgard.

71 Comments

Posted in criminal law, guest posts, movies

Citizenship and Jurisdiction in Ame-Comi Girls

Posted on September 5, 2013 by | 10 comments

Lately I’ve been working through our backlog of mailbag questions.  Today’s post comes from this email from Jesse, who offers this background:

In issue six of [Ame-Comi Girls] after having saved the world from Brainiac, the heroes discuss their next move when Steve Rogers Trevor, representing the U.S government, informs them—with the exception of Wonder Woman (who possesses Themysciran citizenship)—that they are subject to US law as American citizens which does not allow for vigilantism. He goes on to say that they are warned not to commit any more acts of vigilantism until legislation can be set in motion which would recognize them as acting under the United Nations.

Power Girl (who is of Kryptonian origin and the analogue of superman in this universe) suggests that they could operate from the Fortress of Solitude (Which apparently serves as a Kryptonian embassy located in Metropolis). However Steve Trevor informs them that the United States could ask the embassy to leave and insist that the heroes answer to American authority. (Particularly over the matter of the Batgirl and Robin in this universe being in high school. Something that the government frowns upon as they are still recognized as minors.)

Wonder Woman asserts that she will simply grant them Themysciran citizenship which would make them all subject to Amazonian law which would allow them to continue their acts of vigilantism without answering to American law.

Steve Trevor asserts that this would apparently work for a time but that there would be a number of legal issues if one of them was killed in action.

To counter this, Power Girl asserts that she has the authority to grant them all Kryptonian Diplomatic status as well as the Themysciran citizenship, making them not subject to American authority. Steve Trevor protests this, particularly regarding the fact that half of the team is under 21 but apparently, these actions cannot be countered and he leaves.

This all led to the following questions:

*Could a legislation making allowances for superheroes actually be made? Specifically one that recognizes superheroes as serving under the United Nations.

*Can a nation ask an embassy to leave? I know that this can apply to an ambassador but….

*Could another nation simply grant an American citizen citizenship/diplomatic status? Would something like that even be recognized or is there a process for relinquishing one’s American status?

*Finally, would the whole process even work from a legal stand point as a means for the heroes to continue doing what they were doing?

I’m going to address each of these questions in turn.

I. UN Superheroes

This part seems fairly straightforward.  The US could pass a law or resolution declaring that the US superheroes are acting as UN Peacekeepers, and the UN could pass an appropriate resolution accepting and deploying the superhero forces.  This approach would limit the heroes’ actions to countries that accepted the presence of the Peacekeepers, though.  It would probably also require Security Council approval, but we can ignore that political reality.

II. Kicking Out an Embassy

The short answer here is “yes.”  Contrary to popular belief, embassies are not actually little pieces of the guest country’s sovereign territory.  It would raise a tremendous diplomatic ruckus to do so, but a host country could evict an entire embassy.  Apparently the UK considered doing so in order to get at Julian Assange, for example.  But this is tantamount to completely cutting off diplomatic relations and would not be undertaken lightly.

III. Granting Foreign Citizenship

Sovereign countries can be as promiscuous with their citizenship as they like, and citizenship can be granted outside the normal naturalization process.  The US does it from time to time via private acts of Congress, for example.  The recipient of the foreign citizenship would not even necessarily have to relinquish their US citizenship first, nor would accepting the new citizenship necessarily result in loss of the US citizenship.  8 U.S.C. § 1481, the statute covering loss of citizenship, would not seem to apply if the foreign citizenship were voluntarily offered by the foreign government and did not require an oath of allegiance.  Care would have to be taken that the superheroes were not considered officers in the foreign military, though.

IV. Would This Even Work?

And this is where it all comes crashing down.  If the superheroes are operating in US territory, then the US has jurisdiction over them even if they aren’t US citizens.  And if they try to become foreign diplomats (via Themyscira or Krypton, say), then the US can simply kick them out.  If they refuse to leave then the US can exercise jurisdiction over them in the usual way.

If the superheroes decide to operate exclusively outside the US, then renouncing US citizenship would really get them very few benefits.  Eventually (after the usual penalty period) they would get to stop paying US income tax on income earned in foreign countries, and a few laws affecting actions abroad by US citizens like the Foreign Corrupt Practices Act wouldn’t apply.  But that’s about it.  Waiting for formal legal approval from the US (or whatever country they want to operate in) is probably the better approach.

As an aside: “vigilantism” isn’t a crime as such, at least not in any jurisdiction I’ve looked into.  Vigilantes certainly often commit crimes, to be sure, but it’s possible for a superhero to stay on the right side of the law (e.g. proper use of self-defense, no trespassing to find evidence).

10 Comments

Posted in criminal law, immigration law, international law, mailbag

She-Hulk v. Paparazzi

Posted on September 3, 2013 by | 32 comments

Today’s post was inspired by a question from the enigmatically-named Master182000, who recently reminded me that I hadn’t gotten around to it.  The question points to a 1985 John Byrne-era She-Hulk story (in Fantastic Four #275) in which She-Hulk is photographed while sunbathing on the roof of a tall building (maybe the Baxter Building).  The paparazzi used a helicopter to take the photos, the propellor wash of which blew away the towel she was covering herself with.  As Master18200 summarizes:

Later that day [She-Hulk] (in alter-ego form) and her friend track down the chopper, intimidate the pilot, and confront the photographer, who owns a tabloid called “The Naked Truth”. She confronts him, telling him since She-Hulk is a member of the SAG [as well as other show business unions] and images of her require her release before going to print. The photographer balks, claiming that She-Hulk is a ‘public figure’ and thus images of her are in the public domain and thusly don’t require She-Hulk’s release to print. He carries this argument forward until She-Hulk appears and crunches the photographer’s safe.

This led to the following questions:

1) Which party’s interpretation of the law is more accurate?
2) At what level of celebrity does a person lose 100% of their ‘media rights’ or become ‘public domain’ as the photographer suggests? Is this issue a settled matter at Federal law level or State law level?
3) Aren’t there issues with the way the pictures were taken? I don’t know much about aviation laws, but that chopper was pretty close to the building, close enough for She-Hulk’s clothes and stuff to be blown around.

I’ll take them one at a time.

I. So Who’s Right?

Well, technically neither of them.  There’s nothing special about being a member of SAG that would grant someone more rights than usual with regard to their image, unless SAG has negotiated an agreement with the other party (e.g. a movie studio).  Presumably the tabloid has no agreement with SAG or any other union.

On the other hand, public figures can still have an expectation of privacy, and the roof of a 30 story building, while somewhat exposed, is still a place where most people would have a reasonable expectation of privacy.  Furthermore, She-Hulk was covered up initially and only became exposed because of the close approach of the helicopter, which was intentionally done to blow away her towel.  The First Amendment wouldn’t protect that kind of action.

So She-Hulk is right in that the photographs can’t be published, but not for the reason she offers.

II. Public Figures, Invasion of Privacy, and the Right of Publicity

The notion of a person being a “public figure” mostly has to do with slander and libel, the standard for which for statements about a public figure is higher than for statements made about ordinary people.  Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).  As Chief Justice Warren described it in his concurrence, public figures are those who are “intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.”  Curtis Publishing, 388 U.S. at 164.  As between federal and state law, this is a federal First Amendment issue.

Is She-Hulk a public figure?  Maybe.  It’s hard to get a sense of just how famous any particular comic book character is within their own universe (with a few exceptions such as Superman).  But even if she were, that would only matter for purposes of libel and slander.  And as the sleazy tabloid owner said, the pictures are accurate depictions of what happened, so truth might well be a defense to any libel or slander claim anyway.

But that’s not the claim She-Hulk should be bringing.  What she should be claiming is invasion of privacy (which, when it involves nudity, is a crime in many states) and violation of her right of publicity.  These would be state law claims.  All of this would be sufficient to claim significant damages if not prevent publication of the photos outright (although the courts are pretty loathe to engage in censorship).

III. Aviation Laws

Nowadays the regulations regarding helicopter flights in and around Manhattan are fairly strict.  There are no-flight corridors, weekend bans, and other rules.  But these are mostly new developments, often in response to noise concerns.  Thirty years ago things were a little more free-wheeling, as far as I can tell, and private helicopters may well have been free to more or less buzz buildings.  Of course, had been an accident it would likely have been very easy to establish the tabloid’s negligence or recklessness.

IV. Conclusion

In the US the paparazzi can get away with a lot because of the stringent protections of the First Amendment.  But (perhaps unsurprisingly) ambushing someone with a helicopter in a private space and forcibly removing their clothing is beyond the pale.  She-Hulk (as attorney Jennifer Walters) could probably have succeeded in court where She-Hulk (as She-Hulk) failed using traditional Hulk methods.  In the end, the pictures were published anyway, but the developer messed up the skin color so that the pictures didn’t look like She-Hulk.  A court case might have meant a more satisfying result.  At the very least the damages award (and possible criminal sanctions) might have driven the tabloid out of business.

32 Comments

Posted in criminal law, mailbag, privacy law, torts

The Wolverine: Grand Theft Superpower

Posted on August 22, 2013 by | 26 comments

When I saw The Wolverine I was reminded of this post on “Superpowers as Personal Property,” which considers the idea of treating “stealing” superpowers as theft.  If you’ve seen The Wolverine you probably know where I’m coming from.  If you haven’t, read on but beware: major spoilers follow.

Continue reading →

26 Comments

Posted in criminal law, movies, X-Men

Batman: Court of Owls

Posted on August 8, 2013 by | 53 comments

Batman: The Court of Owls is the first few issues of Batman in the New 52. It concerns a shadowy conspiracy referenced in a child’s nursery rhyme apparently common knowledge in Gotham City. The story itself does have a few things to discuss, but this time we’re going to talk about shadowy conspiracies generally. How realistic is it, legally speaking, for a group of people trying to control Gotham City (or the world for that matter) to pull off something like this? Continue reading →

53 Comments

Posted in Batman, criminal law

“Holy Secret Recipe, Batman!”: Superheroes, the Misappropriation of Trade Secrets, and Economic Espionage

Posted on June 27, 2013 by | 10 comments

(This guest post was written by T. Stephen Jenkins, an associate in the Commercial Litigation Practice Group of Pepper Hamilton LLP.)

While Law and the Multiverse has featured several posts on various forms of intellectual property law (e.g. patent, copyright, and trademark), it has yet to discuss trade secrets . . . until now.  Trade secrets commonly appear in comic books, and given the recent concern with computer security and the alleged theft of trade secrets by domestic and international hackers, theft of trade secrets is a worthwhile topic to discuss.  (Warning:  minor spoilers ahead)

 

I. What IS a Trade Secret?

A person or company holding a trade secret, as its name suggests, seeks to safeguard information that is known by the person or company that is not readily known by anyone in the public.  Trade secrets can overlap with other forms of intellectual property, such as non-patentable inventions, trade dress, and “know-how.”  However, unlike many other forms of intellectual property where recovery of damages might be limited by lack of federal registration (disclosure) of the intellectual property (e.g. copyrights and patents), generally speaking, a trade secret holder may be able to recover damages if he or she maintained a reasonable level of protection to prevent non-disclosure of the trade secret.  The Uniform Trade Secrets Act (“UTSA”), which 48 of 50 states have adopted (or introduced) in some form, defines a trade secret as

(1) information, including a formula, pattern, compilation, program, device, method, technique, or process, that (2) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (3) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Uniform Trade Secrets Act §1, ¶ 4.

Trade secrets are common—and even famous—in the real world.  One of the most famous examples is the Coca-Cola secret recipe, which, for years has been guarded and has been the subject of threats of economic espionage.  Other examples of famous trade secrets include KFC’s “11 herbs and spices” and Google’s search algorithm.  Even less apparent examples of trade secrets have gained fame including the methodology for creating the New York Times Best Sellers’ list and Starwood Hotels’ (the owner of Westin hotel chain) luxury ambience.  Each of the above satisfies the three elements of the UTSA definition of a trade secret.

First, each example easily satisfies the information prong.  See  1-1 Milgrim on Trade Secrets § 1.01 (“The classic definition of trade secrets is stated at § 757, comment b, of the 1939 Restatement of Torts. . . . It covers any information (which can be embodied in a physical thing . . .”).  Second, because some have attempted to either unlawfully misappropriate and/or reverse-engineer the above trade secrets, it is probably safe to assume each trade secret has independent economic value in not being generally known.  Third, all are highly protected (though safeguarding all the details that create a Starwood Hotel’s luxury ambience is undoubtedly challenging).

Given the broad definition of a trade secret under UTSA, one can see how patterns, formulas, or devices in the Multiverse likely qualify as trade secrets.  The challenge is demonstrating whether these secrets have economic value.

The most famous comic book trade secret may be the Super Soldier Serum that created Captain America (and other characters), which many have tried to misappropriate (e.g. the Red Skull) and reverse engineer (e.g. the Green Goblin).  Though the Super Solider Serum was the product of government military research, there is a strong case that is has economic value.  Many villains and fictional enemies of the United States have tried to misappropriate the secret formula and use it either to gain a military advantage or to create a steady supply of mercenaries for hire.  Therefore, it is reasonable to assume that the Super Soldier Serum could meet the trade secret requirements.

Other examples might include:

  • Devices:  Spider-Man’s webshooters and Batman’s gadgets;
  • Programs/Patterns:  X-men Danger Room (depending on whether or not it is sentient) and Cerebro/Cerebra;
  • Methods/Techniques/Processes:  The method to access the Speed Force and the process of joining adamantium to Wolverine’s skeleton;
  • Formula: Vibranium and its derivative uses including Captain America’s shield, the Super Solider Serum, and the Anti-Life Equation;
  • Information/Compilations:  S.H.I.E.L.D.’s database on superheroes and villains and Justice League’s/X-Men’s/Avengers team-up database.

A superhero’s secret identity (within the Multiverse) may also be a trade secret, though not as easily established as the above.  See the Law and the Multiverse’s post on secret identities and privacy for an analogous argument.  For public superheroes such as those registered under the Marvel Universe’s Superhuman Registration Act, their secret identities may not enjoy trade secret protection.  However, other superheroes have had to protect their secret identities against those trying to kill them or sell their secret (e.g. Spider-Man).  They have also obtained benefits in their non-superhero professions from keeping their superhero identities secret (e.g. Peter Parker (photographer) / Spider-Man, Clark Kent (journalist) / Superman, and Matt Murdock (attorney) / Daredevil)).  Thus, for these superheroes, a secret identify might qualify as a trade secret.

 

II. What Laws Protect Trade Secrets?

In contrast to patents, copyrights, and trademarks, which federal law either establishes and/or strongly protects, trade secrets’ protection mostly arises from state law, though recently, international and federal protection of trade secrets has increased.  Most states have adopted UTSA in some form, which provides for civil actions for injunctive relief and damages within three years after misappropriation is discovered.  Two U.S.-signed treaties, the Agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPS”) and the North American Free Trade Agreement (“NAFTA”) also provide some protection.

Recently, the federal Economic Espionage Act (“EEA”), 18 U.S.C. §§ 1831 et seq.,  and the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030 et seq., have become enforcement tools against criminal misfeasors.  Both the EEA and the CFAA provide harsh civil and criminal penalties for the trade secret theft. See 18 U.S.C. §§ 1831 et seq. (providing for fines up to $10 million and/or 15 years imprisonment for economic espionage or trade secret theft); 18 U.S.C. § 1030 et seq. providing for unspecified fines and/or up  to 20 years imprisonment).

 

III. Who in the Multiverse Has Violated the EEA or the CFAA?

Though there are several examples of potential violations of the EEA and the CFAA in the Multiverse, a favorite comes from Marvel Entertainment’s popular Iron Man “Armor Wars” storyline (for a DC Comics example, see the mini-series aptly named The Hacker Files).

 

A. The Facts

“Armor Wars” is an Iron Man story arc that has appeared in many of Marvel’s comic book series.  In addition, it was featured in the second season of the Iron Man:  Armored Adventures televised cartoon.  In the Iron Man:  Armored Adventures version, Tony Stark is a teenager balancing being a superhero and a high school student.  Tony’s main antagonist is Obadiah Stane, who ousted Tony from the family company Stark International.

Stane, then Chair of the Board of Stark International, enlists Ghost to steal the Iron Man armor specifications.  Ghost goes to Tony’s hideout to steal the specs from Tony’s computer.  Stane also makes a deal with Doctor Doom, handing over the armor specs to Dr. Doom in exchange for help with creating a version of the armor for Stane.  Using Tony’s armor specs, Stane creates his own version of the Iron Man armor, becoming Iron Monger but is exposed as being involved with Ghost.  Ghost also sells the Iron Man armor specs to Justin Hammer (in this version a 21-year old spoiled rich kid), who creates his own version of the Iron Man armor, becoming Titanium Man.

 

B. Is There a Cause of Action Under the EEA or the CFAA?

While the cartoon takes a different approach to resolve the problem, consider whether a prosecutor or Tony could bring a claim under the EEA or the CFAA against (1) Ghost, (2) Stane, (3) Dr. Doom, and (4) Hammer (collectively, the “Misfeasors”).

 

1. Economic Espionage Act

Under the EEA, a prosecutor or Tony could bring claims of both theft of trade secrets (42 U.S.C. § 1832) and economic espionage (42 U.S.C.§ 1831).  The EEA makes it unlawful for a person to steal a trade secret and transmit it to a person who knows he or she is not authorized to possess it.  The EEA also makes it unlawful for a person to steal a trade secret with the purpose or knowledge that the delivery of the trade secret will benefit a foreign government (economic espionage).

The Misfeasors are all potentially liable for theft of trade secrets.  The EEA provides that “[w]hoever, with intent to convert a trade secret . . . steals, or without authorization,” or “appropriates . . . information” or “receives, buys, or possesses such information” or “attempts . . . or conspires . . . to commit any offense” described above shall be subjected to fines and/or imprisonment.  First, the Iron Man armor specs, at least in this storyline, are trade secrets  because they meet all the requirements under UTSA (see above Captain America/Super Soldier Serum analysis).  Moreover, the reason Stane and Hammer pay Ghost to steal the specs is because they want to derive economic value.  Second, the Misfeasors were involved in a conspiracy to misappropriate the specs:  Ghost stole the specs; Stane and Hammer bought the stolen specs, and Dr. Doom received the stolen specs.

However, not all of the Misfeasors are clearly liable for economic espionage under the EEA.  The EEA’s economic espionage provision is conceptually the same as its theft of trade secret provision, but requires that a misfeasor transmit a trade secret “intending or knowing that the offense will benefit” a foreign government or agent.  Here, the foreign government or agent is Latveria or Dr. Doom, respectively.

Hammer is likely not liable for economic espionage because it would be difficult to prove that he intended or knew that Dr. Doom would gain the armor specs.  In contrast, Stane and Dr. Doom are likely liable because they conspired for Dr. Doom to obtain the specs.  But the trickier case is Ghost who was happy to sell the specs to highest bidder.  Because it was Stane and not Ghost who gave the specs to Dr. Doom, Ghost can argue that he did not intend or know that his theft would benefit Dr. Doom.  However, given that “a conspiracy can exist even if each participant does not know the identity of the others or does not participate in all the events,” cf. United States v. Monroe, 73 F.3d 129, 131 (7th Cir. 1995) (internal citations omitted), Ghost’s argument may fail.

 

2. Computer Fraud and Abuse Act

The Misfeasors are also likely liable under the CFAA, which provides that “[w]hoever . . . knowingly accessed a computer without authorization or exceeding authorization . . . obtain[s] information that has been determined by [U.S. law] to require protection against unauthorized disclosure . . . [and] transmits . . . or conspires [to transmit]. . . to any person not entitled to receive it” will be subject to fines and/or imprisonment.  18 U.S.C. § 1030 (a)–(c).  The analysis under the CFAA is similar to the theft of trade secret analysis but requires that the information be obtained from a “protected computer.”  Under the CFAA a protected computer is either (1) a computer “exclusively for the use of a financial institution or the United States Government, ”18 U.S.C. § 1030(e)(2)(A), or (2) a computer used in “interstate or foreign commerce or communication,” 18 U.S.C. § 1030(e)(2)(B).  The latter requirement is a low standard to meet

Tony’s computer is a protected computer because it was used in interstate communication.  Thus, the Misfeasors could be facing years of imprisonment or at least hefty fines.  Dr. Doom may escape penalty given that, as the sovereign of his own country, he will likely not extradite himself for prosecution.  And if the U.S. government came after Dr. Doom or any of the Misfeasors, it would likely take years to reach a resolution, which is probably why the story arc’s writers resolved the issue in a much swifter way.

Using the EEA and the CFAA to pursue real-world misfeasors may increase in the coming years.  The EEA and the CFAA give federal prosecutors—and to a lesser extent civil litigants—broad power to prosecute alleged misfeasors, making even attempts to misappropriate trade secrets actionable.  “The Department of Justice has made the investigation and prosecution of corporate and state sponsored trade secret theft a top priority. . . . The FBI is also expanding its efforts to fight computer intrusions that involve the theft of trade secrets by individual, corporate, and nation-state cyber hackers.”  See Office of the President, Admin. Strategy on Mitigating the Theft of U.S. Trade Secrets at 7.

While there are many proponents and opponents of their use, there is no doubt that the Economic Espionage Act and the Computer Fraud and Abuse Act have had profound effects.  Of course, you can always come to Law and the Multiverse to see how the EEA and the CFAA continue to affect super powered individuals—and Pepper Hamilton LLP if you ever need real-world advice.

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Posted in criminal law, guest posts, intellectual property, Iron Man

Law and the Multiverse Retcon #5: The Crimes of the Mandarin

Posted on June 4, 2013 by | 3 comments

This is the fifth post in our Law and the Multiverse Retcons series, in which we discuss changes in the law (or corrections to our analysis) that affect older posts.  In this case we’re discussing a not-so-old post, this one from just a few weeks ago discussing the possible criminal liability of The Mandarin from Iron Man 3.  As with the original post, the correction requires pretty massive spoilers, so read on at your peril if you haven’t seen the movie yet (which you should, it’s great).

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Posted in criminal law, Iron Man, movies, retcons