Category Archives: criminal law

Alphas: Pilot

Posted on September 28, 2012 by | 13 comments

Alphas is the 2011 SyFy series about the X-Men a group of individuals with extraordinary abilities brought on by a poorly-understood “next phase in human evolution. The pilot was last July, and it showcases some of the legal issues we’ve talked about on the site previously. Spoilers within Continue reading →

13 Comments

Posted in criminal law, television

The Rocketeer (1991 film)

Posted on September 24, 2012 by | 19 comments

Previously, we discussed The Rocketeer in its 1980s Dave Stevens comic book, instantiation. This time, we’re talking about the 1991 Disney movie. A lot of the main issues are the same, but this may actually be one time where the movie is significantly better than the comic book. The plot of the comic was pretty scattered, and the book seems to have just sort of ended without any significant resolution of any plot points. The movie really streamlines things and has a much more satisfactory plot arc.

One major way that the movie differs is the introduction of Neville Sinclair, played by James Bond Timothy Dalton, who serves as the movie’s main villain, a Nazi spy (sorry, we’re not warning about spoilers in a movie from 1991). While the Hindenburg stand-in is perhaps unrealistic—commercial zeppelin flights seem to have pretty much ended after the disaster, a year before the movie is set—but the idea that a well-placed celebrity was a Nazi sympathizer or even agent is not as implausible as it sounds.

Regardless, there is a plot point in the movie that raises an interesting question: is Secord’s “sabotage” of the rocket pack murder? Continue reading →

19 Comments

Posted in criminal law, movies

The Scarlet Witch and Insanity

Posted on September 19, 2012 by | 22 comments

Christopher writes:

In fairly recent issues of Avengers, the Scarlet Witch has returned from being in hiding (of a sort) for years. Her last real interaction with her old team and mutant kind was not a pleasant one. She went mad and attacked the Avengers, leading to the deaths of Ant-Man in an explosion and her own husband, the Vision, at the hands of a berserk She-Hulk, and Hawkeye  was lost to a Kree warship as her reality warping powers basically engineered the worst day ever for the team. Not long after that an event called House of M happened and it ended with her essentially depowering thousands of mutants, many of whom were killed in the aftermath by religious terrorists.
My question is: once the Avengers vs. X-Men crisis is over, could any of those people affected actually seek legal action against her? I’m sure that the Avengers will forgive her, since they tend to take a lot in stride and be really forgiving even when they should be still rather angry, but isn’t it on the shoulders of the government to prosecute for deaths anyway? And not to mention thousands of mutants who have lost their powers who might not have wanted it, and the families of those killed in the aftermath? Frankly, how can she possibly actually remain a hero and not stuck in jail for the next millenium?
The Scarlet Witch’s madness is a great example of comic book writers’ (understandable) tendency to overlook the consequences of their larger-than-life plots.  So would Wanda be on the hook either criminally or civilly?  Or would she have a viable insanity defense?
I. Insanity
We’ve talked about the insanity defense a few times before (here, for example), usually concluding that it doesn’t apply.  This may be one of the cases in which it does.  The Scarlet Witch’s madness may have been caused by some sort of possession or it may have been a more common sort of mental illness, perhaps related to the deaths of her children.  Psychic possession could be a kind of insanity or it could simply eliminate the mental state required to commit a crime; either way, that would be an effective defense.  But what if the Scarlet Witch wasn’t being actively controlled but was merely ‘ordinarily’ mentally ill?
Unlike many supervillains, Wanda may actually be legally insane.  As Dr. Strange describes her in Avengers #503: “Reality controls her. … Reality, eventually, as she knows it, starts to slip away. Elude her.  Blur.  … She loses herself, her reason. … [Y]ou’d say to yourself, this sounds like a person who has lost control of themselves on a deep psychological level.  You’d say this sounds like a disturbed person.”  That sounds a lot like it would satisfy the most common insanity test, the M’Naghten test: whether “the party accused was labouring 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 he was doing what was wrong.”
II. Liability
But supposing Wanda wasn’t insane, she could face both civil and criminal liability.  However, in the US system the government is not strictly required to prosecute any particular crime, and you can imagine how it might be reluctant to try to go after someone as powerful as the Scarlet Witch.  Even so, the depowered mutants, Ant-Man’s survivors, and Hawkeye’s survivors could probably all sue her in civil court.  The nice thing about a civil case is that if the Scarlet Witch doesn’t show up after appropriate efforts are made to serve her with process, then the plaintiffs could get a default judgment.  I don’t know if she has bank accounts or other assets that could be seized to satisfy a default judgment, but if she does then that could provide some relief to the injured parties without having to actually get her to show up in court.
III. Conclusion
The Scarlet Witch has a plausible insanity defense.  However, while she might not be guilty of a crime or liable for any torts, I’m not sure that makes Captain America’s decision to offer her a spot in the Avengers more sensible than it would if she had committed the crimes in a sane state (although she declined the offer).

22 Comments

Posted in criminal law, X-Men

Surrogates II: Crime and Law Enforcement

Posted on September 17, 2012 by | 34 comments

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

34 Comments

Posted in constitutional law, criminal law, criminal procedure

Hancock and Defense of Others

Posted on September 13, 2012 by | 6 comments

Today we have a follow up to our post about the movie Hancock.  (Moderate spoilers below!)

In one scene, Hancock foils a bank robbery.  The lead robber was holding a dead man’s switch that would set off explosives, killing bystanders, so naturally Hancock solved the problem by amputating the robber’s hand.  After our review, Heiki watched the film and wrote in with a question about that scene:

How do the facts of Hancock being a state actor (he was called in by the police), his ability to retreat, and his seeming ability to simply move so fast that the robber would not be able to act and being able to squeeze his hand shut without amputating it bear on the legality of the amputation manoeuvre?

As Heiki indicates, there are a few different issues here, but we’re going to focus on whether the amputation was possibly legal under the circumstances.  Hancock is set in Los Angeles, so we can refer to California law.

I. Defense of Others and the Reasonable Person

Presumably Hancock himself would not have been harmed by the blast (or he could have left the scene), so we’ll assume Hancock was acting in defense of the bystanders and police.  California defines self-defense and defense of others by statute, Cal. Penal Code § 197:

Homicide is also justifiable when committed by any person in any of the following cases: …  1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or … 3. When committed in the lawful defense of such person … when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished

NB: the “commit a felony” part has been constrained by the courts to refer to the kinds of felonies that allowed lethal self-defense at common law, not all felonies.  People v. Ceballos, 12 Cal.3d 470, 478 (1974).  The felony must be “some atrocious crime attempted to be committed by force.”  Id.  But threatening to blow up a bank with people inside it seems to qualify in any case.  It would also likely count as “a design to … do some great bodily injury,” and there was imminent danger of the design being accomplished.

So, Hancock may have been justified in killing the robber outright.  Does that include cutting off his hand?  Yes.  “Since a homicide is justifiable under the circumstances specified in section 197, a fortiori an attempt to commit a violent injury upon another under those circumstances is justifiable.” Ceballos, 12 Cal.3d at 477.

But the analysis does not stop there.  Although it is not directly apparent from the statute, California requires that the use of deadly force must have been reasonably necessary under the circumstances.

For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend.  If the belief subjectively exists but is objectively unreasonable, there is “imperfect self-defense,” i.e., “the defendant is deemed to have acted without malice and cannot be convicted of murder,” but can be convicted of manslaughter.  To constitute “perfect self-defense,” i.e., to exonerate the person completely, the belief must also be objectively reasonable.

People v. Humphrey, 13 Cal.4th 1073, 1082 (1996).  As is often the case, the “objectively reasonable” standard is determined by the ordinary person.  “California law expresses the criterion for this evaluation in the objective terms of whether a reasonable person, as opposed to the defendant, would have believed and acted as the defendant did.” People v. Aris, 215 Cal.App.3d 1178, 1196 (4th Dist. 1989) (emphasis in original).  Specifically:

a jury must consider what would appear to be necessary to a reasonable person in a similar situation and with similar knowledge. It judges reasonableness from the point of view of a reasonable person in the position of defendant. To do this, it must consider all the facts and circumstances … in determining whether the defendant acted in a manner in which a reasonable man would act in protecting his own life or bodily safety.

Humphrey, 13 Cal.4th at 1082-83.

Unfortunately, it is not completely clear whether this objective standard also takes into account the defendant’s physical abilities, but I think it does.  Those abilities are part of the “situation” and “all the facts and circumstances.”  So, would a reasonable person, knowing what Hancock knew and with Hancock’s abilities, have done what Hancock did in that situation?  I don’t know.  I think a reasonable person might have chosen the amputation route.  It did avoid killing the robber, and it was successful.  Maybe Hancock was unsure if, fast as he was, he could disable the robber in time any other way.

2. Imperfect Defense of Others and Mayhem

But what if Hancock didn’t act reasonably? Could he claim imperfect self-defense and try for a reduced charge, perhaps some kind of battery or even a mere assault?  Alas, no.  The crime Hancock may have committed is not murder (since the robber didn’t die) but rather mayhem:

Every person who unlawfully and maliciously deprives a human being of a member of his body … is guilty of mayhem.

Cal. Penal Code § 203.  The California courts have held that imperfect self-defense is not a general-purpose defense and applies only to murder. “Imperfect self-defense is not an affirmative defense, but a description of one type of voluntary manslaughter.”  People v. Michaels, 28 Cal.4th 486, 529 (2002).  Further, they have also held that it does not apply to mayhem.  People v. Quintero, 37 Cal. Rptr.3d 884, 894-97 (4th Dist. 2006).  It is also unclear whether California even recognizes “imperfect defense of others” as opposed to imperfect self-defense.  People v. Michaels, 28 Cal.4th 486 (2002).

Now, you might be thinking, how can it be fair that Hancock is stuck with mayhem if he was acting unreasonably, but he would have gotten a reduced charge if he outright killed the robber?  The answer is that mayhem is already a less serious crime than voluntary manslaughter (the typical result of imperfect self-defense).  It carries a sentence of 2-8 years, whereas voluntary manslaughter is 3-11 years.  That’s a pretty slim difference in punishment for a pretty huge difference in outcome for the victim, if you ask me, but that’s the wisdom of the legislature for you.

III. Conclusion

It’s hard to say for certain whether Hancock acted reasonably and so was justified in doing what he did, but it’s certainly possible.  Since nobody (other than the robber) seemed to complain, I guess the LA district attorney’s office felt it was reasonable, or at least close enough.

6 Comments

Posted in criminal law, mailbag, movies

The Rocketeer (comic book)

Posted on September 10, 2012 by | 11 comments

The Rocketeer is the 1980s Dave Stevens eight issue comic book that was turned into the 1991 Walt Disney movie. The premise should be well-known at this point: a late 1930s stunt pilot stumbles upon a prototype jetpack. Hijinks ensue. This is, of course, not to be confused with racketeering, which is another thing entirely. But we know that racketeering is illegal. Is “rocketeering”?

It turns out that the plot of the comic book and the movie diverge widely, so this time we’re going to be talking about the comic book. Specifically, we’re going to take a look at two issues, one of which we’ve touched on before: air traffic control and receiving stolen property.

I. Air Traffic Control

Perhaps the most obvious legal issue here is the fact that the Rocketeer is using an experimental flying machine, and flying machines of all sorts are subject to the regulative authority of the Federal Aviation Administration. We talked about this issue in a two post series back in December 2010. In that post we had a discussion about whether something like a jet pack would be considered an “experimental” device and thus subject to lighter regulation. In this case, we can categorically say that the Rocketeer’s jet pack would not fall into this FAA category. Why? Because the FAA didn’t exist until 1958.

This is not to say that there was no federal regulation of US airspace before then. The Air Commerce Act (May 20, 1926, ch. 344, 44 Stat. 568) was enacted over a decade before the events in the story, set in 1938. The ACA of 1926 empowered the Department of Commerce to regulate US airspace and air transportation generally, but it took quite a few decades before our current system would emerge. Indeed, air traffic control didn’t even exist as late as the mid 1930s, and when the Bureau of Air Commerce—the renamed Aeronautics Branch, still part of Commerce—took over air traffic control operations in 1936, there were only three ATC operations in the country, presumably near major airports. Remember, radar was still in the process of being invented. The Civil Aeronautics Act was passed in 1938—the year of the story—which further increased the government’s regulatory authority. But the full panoply of FAA regulations would not really come about for decades. So while the Rocketeer might have been violating a few aviation regulations, one gets the impression that the aviation regulatory regime was still in its infancy, and there was a lot of unregulated activity going on. As an exhaustive accounting of the state of such regulation in the late 1930s is more the subject for a scholarly article than a blog post, we’ll leave it at that.

II. Receiving Stolen Property

The other issue is the legal status of Secord’s possession of the jet pack. The question is whether there could be any additional offenses beyond the old common law receiving stolen property, which the story recognizes as being applicable. Here we run into some of the same issues as with aviation regulations: the law in 1938 was significantly different, and less extensive, than it is today. What is currently the foundation of federal criminal law and procedure, Pub. L. No. 80-775, 62 Stat. 683 was only passed in 1948. Legal research websites are very careful to show only the latest, amended versions of laws currently in force, so laying hands on a copy of the US Code current through 1938 is kind of difficult.  Luckily, we don’t have to go quite that far.

It’s fairly safe to assume that some version of 18 U.S.C. § 641, which criminalizes receiving stolen property belonging to the federal government, existed in 1938. But 18 U.S.C. § 793 on “gathering, transmitting, or losing defense information”? Which makes it a crime to be in the unauthorized possession of any “instrument” “relating to the national defense” and “willfully retains it”? Turns out that that is merely a recodification of a provision which is part of the Espionage Act of 1917, Pub.L. 65-24, 40 Stat. 217. So because Secord knows that the jet pack “relates to national defense,” knows he isn’t supposed to have it, and doesn’t surrender it to government officials—either on his own or when asked—he’s in violation of the Espionage Act. That’s good for a $10,000 fine and two years in the federal pen. And since the two crimes each have an element lacking in the other, neither is a “lesser included offense,” which means Secord could do the full time for both offenses. Now we’re talking a $10,000 fine, plus the value of the jet pack (which may be a lot higher than that), plus three years in prison.

And that’s just for those two. A US Attorney in the late 1930s would undoubtedly have been able to come up with a few more, just for good measure, to say nothing of whatever state laws Secord may have broken.

III. Conclusion

So the most significant legal issue in the Rocketeer isn’t actually one of substantive law, but of legal research: it’s very, very important to know when something occurred, because the law changes, and usually not retroactively. Sometimes a little, e.g., many of the same criminal offenses in play today were present in some form in 1938. Sometimes a lot, e.g., even the precursors to modern FAA regulations didn’t exist in 1925. Sometimes this change is slow, e.g., the espionage offense discussed here uses the same language as was in force in 1917, and sometimes rapidly, e.g., an entirely new area of federal regulation springing into existence overnight in 1926. But a lawyer—or citizen!—that assumes that they know what the law is because they know what the law was may be in for a nasty surprise.

That’s about it for the comic book of The Rocketeer. We’ll be back for the movie in a bit!

11 Comments

Posted in administrative law, criminal law

Dodging Missiles, Attracting Liability?

Posted on August 27, 2012 by | 11 comments

(Note from May 8, 2020: Subculture for the Cultured is no longer online, so the links in this post have been changed to use the Internet Archive Wayback Machine.)

Our latest monthly column at Subculture for the Cultured is up. It was inspired by this question from Promethee:

I’m watching Ironman 2 (I know, I’m late) but something that seems to happen quite a lot (and come to think of it happens in like every other superhero movie) is the scene where the hero is being chased by some sort of tracking missiles. At that point, the hero flies at some sort of building and when really close, takes a tight turn. The missiles can’t turn that tightly, so they fly into the building destroying it and killing a bunch of people. Of course, whoever fired the missiles has plenty of liability coming at them. But what about the hero who performs the maneuver?

Check it out!

11 Comments

Posted in criminal law, Iron Man, mailbag, movies, sftc columns, torts

Daredevil: Born Again

Posted on August 23, 2012 by | 4 comments

Today we have a quick legal ethics note from the classic 1986 Frank Miller Daredevil storyline, Born Again (which is available collected in trade paperback).  At the outset of the story, Wilson Fisk (aka the Kingpin) sets out to destroy Matt Murdock’s life.  One of the first steps is to get him disbarred.  To do this, Fisk frames him for bribing a witness to perjure himself (aka subornation of perjury).  A brilliant defense by Foggy Nelson keeps him out of prison, but Murdock nonetheless loses his license to practice law.  But how does that work?  Can a lawyer be ‘sentenced’ to losing their license?

The answer is ‘sort of, at least in New York.’  First, let’s take a closer look at the facts.

I. Bribery and Perjury

In New York, bribing a witness is a class D felony. N.Y. Penal Law § 215.00.  Subornation of perjury is not a separate offense, but rather the person doing the suborning is guilty of perjury by accomplice liability.  See Staff Comments of the Commission on Revision of the Penal Law. Revised Penal Law. 292-93 (1965).  First degree perjury (i.e. swearing falsely and making a material false statement as part of one’s testimony) is also a class D felony.  N.Y. Penal Law § 210.15.  Class D felonies are punishable by up to 7 years imprisonment with a mandatory minimum of at least one year, unless:

the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose an indeterminate or determinate sentence, the court may impose a definite sentence of imprisonment and fix a term of one year or less.

However, it is not clear to me whether there was any mandatory minimum provision at all in 1986, and the court may have had discretion to sentence Murdock to probation only.  So that could explain why Murdock didn’t end up in prison despite what happens next.

II. Disbarment

As Fisk narrates, “Even as he hears the much-tempered verdict of the court that he will not face a prison sentence, as I had planned—that all he will lose is his license to practice law…whatever reactions he has are hidden—even, I suspect, from himself.”  So Murdock doesn’t receive a prison sentence, but he does lose his license.  But how could a criminal court do that?

This is a fair question.  Disbarment is not a criminal punishment per se.  In New York, for example, attorney discipline is ordinarily handled by the Appellate Division (i.e. the intermediate courts of appeal).  However, in New York, a felony conviction results in an automatic disbarment.  N.Y. Judiciary Law § 90(4)(a).  We discussed this  last year with regard to She-Hulk’s disbarment.  So while the trial court wouldn’t technically sentence Murdock to losing his license, a conviction on either felony count would result in immediate, automatic disbarment with no action from the Appellate Division necessary.  Since the court undoubtedly knew this would happen, it could take that into account when deciding not to sentence Murdock to prison.

III. Conclusion

The circumstances of Matt’s disbarment are a little odd, but it actually hangs together pretty well due to New York’s unusual felony disbarment rule.  Since Murdock loses his license right off the bat, there’s not a lot of legal issues in the rest of Born Again, but it’s a great story in its own right.

However, we will quibble with the fact that Matt is summoned to a grand jury hearing “and not as a witness” (i.e. as the defendant).  Lots of comic books get this wrong, so we’ll say it again in the hope that comic book authors won’t keep making the same mistake: grand jury hearings are secret.  There’s no judge, no public gallery, and the defendant (technically only a suspect at that point) is not present or represented by an attorney.  There’s just the prosecutor, a court reporter, the grand jury, and one witness at a time.  We know that means grand jury scenes sometimes have to be depicted without the main character present, but on the other hand “a grand jury would ‘indict a ham sandwich,’ if that’s what you wanted,” so we recommend not bothering.  Just assume that the grand jury handed down an indictment and move on to the actual trial.

4 Comments

Posted in criminal law, criminal procedure, legal ethics

Manos: The Hands of Fate

Posted on August 20, 2012 by | 15 comments

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

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

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

15 Comments

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

Hancock

Posted on August 15, 2012 by | 16 comments

Hancock is the 2008 superhero movie starring Will Smith and Charlize Theron about the interesting intersection of the superhero and the… homeless?

Or something like that. The movie is actually way more interesting than it has any right to be, not only for the obvious premise, i.e., a superhero who has to deal with property damage and people not being thrilled to see him, and the more mythological premise, which is a surprisingly creative take on the superhero concept. It also has the rather unusual benefit of not being an origin story. We first see Hancock passed out on a public bench, apparently mid-way through a multi-day drunk. We eventually learn his background, but it’s not the point of the movie.

But this being the blog that it is, we’re more interested in the former than the latter. Mythology is great and all, but we’re interested in the nitty, gritty, legal logistics. We’ll try to keep this mostly spoiler-free, but you have been warned.

I. Hancock Goes to Jail

There are an unknown impliedly large number of outstanding warrants for his arrest, only no one’s figured out how to do that, or to serve him with one of the hundreds of subpoenas he faces. As a plot point, Hancock voluntarily surrenders himself to the police. This is supposed to be a first step towards rehabilitating his image. And it’s probably what would need to happen for a superhero who has been acting outside the law before he could become “legit”.

The process is a bit abbreviated, as we basically just see Hancock go from a press statement at his surrender straight to jail. There are a few steps missing here, but with one exception, the process could go about as quickly as it seems to.

First, turning yourself into the police, even if you have an outstanding warrant, is not a ticket straight to jail. It is, at best, a ticket straight to a holding cell. In the United States, there’s a difference between “prison” and “jail”. “Prison”, which is where Hancock goes, is typically where you go after you’ve been convicted (or pled guilty to) a crime, and generally a felony. You need to be serving a sentence of at least a year. So the fact that Hancock ends up here before he’s even sentenced—he has a conversation about what his sentence is going to be after he’s in prison—is a mistake. He’d probably go to “jail” first, which is where you sit if you’re waiting to be tried or you’re serving a sentence of less than a year, often a misdemeanor conviction. Even people who are going to plead guilty to a felony don’t go to prison before that happens.

But it can happen pretty quickly. The movie doesn’t discuss exactly what charges Hancock is facing—nor does it deal with the civil side of things at all—but the DA has presumably got charges all drawn up. If, as in Hancock’s case, the defendant doesn’t intend to contest the charges, even a little, one can go from indictment to prison pretty quickly.

Still, it may well take a few days, even if everyone’s trying to speed things along. The issue of bail would then come up. Hancock would seem to be the very definition of a “flight risk”. But his lawyer, whom we don’t meet, could point out that if Hancock decided he wanted to leave, all the king’s horses and all the king’s men couldn’t do jack about it. He’s there because he wants to be. Bail is specifically and solely intended to create an incentive for defendants not to flee before trial. Hancock doesn’t have any money, so it’s not like it’s going to matter to him. And the fact that the cops couldn’t really arrest him even if they wanted to might be good reasons to just let him out on his own recognizance. Then again, because Hancock is cooperating, he may just have waived any request for bail, which would get him into jail immediately.

So other than the fact that Hancock seems to start serving a sentence before he even pleads guilty to anything, the process seems more-or-less okay. Most of the legal stuff happens off camera, but the results are mostly plausible.

II. Necessity

The other thing the movie does really well is show the limitations of the “necessity defense.” We discussed this in the context of Superman stealing a bunch of iron bars to shore up a burning chemical plant in March.  Necessity is often described as a “lesser of two evils” defense.  The basic idea is that there are many actions which are tortious or even criminal which can be “justified” by the circumstances.

But however conceived, necessity isn’t going to work for Hancock in most of the property damage claims that have been leveled against him. Why? Because he didn’t really have to cause the vast majority of the damage he causes. He doesn’t need to shatter the pavement when he takes off or lands. He doesn’t need to crash into and through buildings when he flies around. And when he saves Ray from the train? He totally didn’t need to smash his car onto three others or cause a train wreck because he was too lazy to get out of the way.

This is something that more superheroes should probably take into account. Hancock is an obvious example because he’s a jerk about it, but even characters like Superman and the X-Men would be well-advised to take note. Just because you’re “fighting crime” or whatever does not automatically justify property damage. Nor is the fact that lives are in danger. It can serve as a justification, but there has to be some proportionality and connection with the underlying crime-fighting. At root, property damage has to be reasonably necessary to preclude liability. So if there is any less-destructive way of accomplishing the goal, a superhero could potentially be liable for any damage he causes, particularly if the damage is out of proportion to the threat. The movie really picks up on that, and the writers deserve credit for it.

III. Other Issues

The movie also raises several other issues which we’ve talked about previously. For example, Hancock is apparently immortal. We’ve done several posts on the subject. We’ve also done quite a few posts on insurance for superhero-related property damage. This seems like a situation where there probably would be coverage because Hancock’s activities would be really hard to characterize as war, civil unrest, nuclear-related, terrorist, or any of the other common exclusions found in property insurance policies. We’ve even got one on superhero spouses, which is not entirely unrelated.

IV. Conclusion

If you didn’t catch the movie the first time around, you really should. It’s one of the more under-rated superhero movies out there, and one of the very few that isn’t connected to either Marvel or DC. Its take on the relationship of superheroes to society is refreshing, and its mythology is compelling. It’s not a perfect movie, and the tone shifts rather abruptly in places, but in a genre that’s given us Green Lantern and Electra, it more than holds its own.

16 Comments

Posted in criminal law, criminal procedure, movies