Category Archives: mailbag

Superheroes and Jury Duty

Posted on April 5, 2012 by | 62 comments

Today’s post was inspired by an email from Marcus, who asks “what would happen if a superhero was summoned for jury service in his/her secret identity, and the case turned out to be one where the character had been involved as a crimefighter and might even be expected to appear as a witness?”

As Marcus points out, this is more of a problem for some superheroes than others.  For example, Peter Parker often photographs Spider-Man in action, so he couldn’t serve as a juror in such a case, since he would be a potential witness.  But what about a case he didn’t cover as a photographer?  And what about other superheroes like Batman who generally maintain significant distance from their secret identities?  To set the scene here, let’s talk a little about jury trials and the jury selection process.

I. Jury Trials

Unlike most of the world, the United States is big on jury trials for both criminal and civil cases.  The Sixth Amendment gives criminal defendants the right to a trial by jury, though not all criminal charges qualify.  “Petty offenses” (i.e. misdemeanors with a maximum penalty of six months imprisonment) don’t qualify for a jury, at least under the federal Constitution.  Duncan v. Louisiana, 391 U.S. 145 (1968).  So superheroes who bust only very small time crooks wouldn’t have so much to worry about, but most superheroes go after serious criminals.

A defendant could also waive his or her right to a jury trial, but most criminal defendants don’t do that.  That is, they often waive their right to a trial entirely by a plea bargain, but if they do go to trial they usually go with a jury rather than a bench trial conducted by the judge alone.

The Seventh Amendment gives the right to a jury trial in civil cases, but that right is more limited than the Sixth Amendment right.

II. The Jury Selection Process

So, now that a jury has been called for, how do they get picked?  The answer is: it’s complicated and varies from jurisdiction to jurisdiction, but most states are modeled after the federal system.  Under the Federal Jury Selection and Service Act of 1968, each district court must develop a jury selection plan, which must

(1) either establish a jury commission (consisting of one citizen and the clerk of the court) or authorize the clerk to manage the jury selection process;

(2) specify whether the names of prospective jurors are to be selected from voter registration lists or the lists of actual voters of the political subdivisions within the district or division, and prescribe other sources when necessary to achieve the objectives stated above; 

(3) specify procedures for selecting names from those sources designed to ensure that each political subdivision is substantially proportionally represented in the master jury wheel;

(4) provide for a master jury wheel into which the names of at least one-half of one per cent of the names on the source lists are placed;

(5) specify those groups of persons or occupational classes whose members shall on individual request be excused from jury service because such service would entail undue hardship or extreme inconvenience;

(6) specify that active members of the armed forces, members of fire or police departments, and members of the executive, legislative or judicial branches of government who are actively engaged in the performance of official duties are barred from jury service on the ground that they are exempt;

(7) fix the distance beyond which jurors shall on individual request be excused from jury service on the ground of undue hardship in traveling to where court is held;

(8) fix the time when the names drawn from the jury wheel shall be disclosed to the parties and to the public; and

(9) specify the procedure for assigning persons whose names have been drawn from the jury wheel to jury panels.

Wayne R. LaFave et al., 6 Crim. Proc. § 22.2(a) (3d ed.).

Already we can see a couple of potential ways out for our superheroes.  First, they can decide not to register to vote, although that’s not very heroic, and it may not help if the district supplements the jury rolls with driver’s license records, utility company lists, and other sources.

Alternatively, superheroes could live and register to vote in a different district than the one they fight crime in.  For example, supposing Gotham is actually New York City, then if Wayne Manor were located on eastern Long Island then it would be in the Eastern District of New York rather than the Southern District, which is where the city is (here’s a map).  Thus, Bruce Wayne wouldn’t get called for jury duty in the Southern District, and presumably there are a lot fewer supervillains on the eastern half of Long Island than in the city, so the odds of him getting called up for a supervillain case in the Eastern District are slim. Alternatively, if Gotham is in New Jersey, then Wayne Manor could be in New York, or vice versa.  A similar approach can work for state courts.

Of course, this depends on cooperative geography and having enough money and resources to “commute to work,” so to speak.  Another possibility is to have an exempt occupation.  The federal courts exempt active duty armed forces, professional fire and police departments, and full-time public officers of federal, state, and local governments.  State jury exemptions vary, but most are similar to the federal ones.  Historically there were exemptions for attorneys, doctors, and other occupations, but those have mostly been done away with, which eliminates most of the easy outs for superheroes.  Most superheroes can’t juggle being a superhero with being an active member of the armed forces, a full-time cop or firefighter, or a full-time public officer, so this route probably won’t work.

As a last resort, a superhero (or in this case more likely a super-antihero) could intentionally incur a felony conviction.  Most states and the federal government permanently exclude convicted felons from serving on juries.  Obviously this is a drastic step, and very few superheroes would do such a thing just to avoid the possibility of jury duty, but some superheroes may have secret identities that have run afoul of the law already for other reasons, and they may not have to worry about jury duty, depending on where they live.  For the record, we do not recommend this approach, even to fictional characters.

But assuming our superhero hasn’t avoided being selected in the first place, what do they do once they’re called up?

III. Summoned for Jury Duty.  Now What?

At this point, we’re afraid there isn’t much to be done.  The superhero could try to plead hardship or inconvenience (e.g. by claiming that they are needed at work or by feigning illness), but that often results in a delay rather than an exception.  They could refuse to show up, but that’s a good way to get fined or worse, which hardly seems very heroic.

They do have one last way out, and that’s the voir dire process.  Voir dire is the process by which the parties (e.g. the prosecution and the defense) ask prospective jurors questions and, optionally, eliminate them.  Each side gets a certain number of “peremptory” challenges, which are prospective jurors they can dismiss for whatever reason they like.  After that they can challenge an unlimited number of prospective jurors “for cause,” but each challenge for cause requires the assent of the judge.  Exactly what constitutes adequate grounds is beyond the scope of this post, but it’s usually cases of serious bias (e.g. a belief that the defendant is guilty until proven innocent) or a refusal to follow the law (e.g. would refuse to find the defendant guilty even if the case was proven beyond a reasonable doubt).

If our superhero has an honestly held belief that might get them tossed out, then that could work.  The problem is that most superheroes clearly believe in the justice system, at least in theory.  They could lie, but again that doesn’t seem very heroic, and it’s a crime anyway, since prospective jurors are put under oath.  One possibility is to raise the point that they don’t believe that the police are capable of handling crime effectively.  This is clearly true, or else why would they be a superhero?  And it may show sufficient bias against the police that the superhero would get tossed out of the jury pool.

IV. Conclusion

Avoiding jury duty is difficult, even for a superhero.  Some may be able to avoid it by separating where they live and where they “work,” but those who do get called up may find it very tricky to get out of it.  Faced with a situation in which their secret identity may be called as a witness in the same case, feigning illness might be the least bad option.  The result would probably be a delay rather than an exception, but hopefully lightning wouldn’t strike twice.

62 Comments

Posted in constitutional law, criminal procedure, mailbag

Ghostbusters and the EPA

Posted on March 28, 2012 by | 18 comments

Today’s post is inspired by an email from Casey, who wondered about a couple of issues in the movie Ghostbusters.  Specifically, was Ray Stantz really a “duly-designated representative of the City, County and State of New York” with any kind of legal authority to order Gozer the Gozerian to leave the city?  And did the EPA have a legal basis for shutting down the Ghostbusters’ containment unit?

I. Were the Ghostbusters Duly-Designated Representatives of New York?

It’s pretty strongly implied in the movie that the mayor of New York authorizes the Ghostbusters to deal with the threat posed by Gozer.  That much covers the city.

Moving one level up, we turn to the county.  The five boroughs of New York City are each coterminous with a county.  For example, New York County covers the same area as Manhattan.  The New York County government is pretty vestigial, with most ordinarily-county-level functions handled by the city.  There are some borough-level officials, such as the Manhattan Borough President’s office, but it has a comparatively tiny budget and is mostly concerned with land use and zoning.  Still, there’s no reason to think that the Ghostbusters couldn’t be appointed to represent New York County as well.

Finally there’s the state level.  New York City obviously has a fair amount of clout in the state of New York, and we suspect the Mayor would have no trouble convincing the governor to give the Ghostbusters state authority in this situation, especially since it was geographically confined to New York City.

So what kind of authorization could there be?  One possibility is that the Ghostbusters could have been made emergency special deputies “for the protection of human life and property during an emergency.” N.Y. County Law § 655.  That would give the Ghostbusters the powers of regular police officers.  Not actually very helpful against an ancient Sumerian deity, but it’s something.  At the very least the qualified immunity would potentially prevent them from being personally liable for collateral damage.

Strictly speaking, all of this state authority would have little effect on the EPA’s jurisdiction (to the extent it has any) or the federal government’s ability to arrest the Ghostbusters or order the shutdown of their facility, but we can assume that the Regional Director of the EPA (actually titled the Regional Administrator), who was present at the mayor’s office, took care of all that.

II. Are Ghosts a Pollutant?

Walter Peck, from the EPA’s “third district,”* thinks the Ghostbusters are scam artists using dangerous chemicals to produce hallucinations and storing hazardous materials in their headquarters.  He alleges that they are in criminal violation of the Environmental Protection Act**, and for some reason, this leads him to shut off the containment grid, resulting in all of the captured ghosts being released.

* The EPA actually divides the country into regions.  Region 2 covers New York.

** There is no such federal law in the United States.  Federal environmental law is a hodgepodge of laws: the Clean Air Act, the Clean Water Act, and the Comprehensive Environmental Response, Compensation, and Liability Act, just to name some of the big ones.  There’s no Environmental Protection Act, though.

Peck is wrong about the Ghostbusters, but if they were storing and releasing hallucinogenic substances then that could qualify as pollution.  For example, under the Comprehensive Environmental Response, Compensation, and Liability Act (aka CERCLA aka Superfund) “pollutant or contaminant”

shall include, but not be limited to, any element, substance, compound, or mixture, including disease-causing agents, which after release into the environment and upon exposure, ingestion, inhalation, or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, will or may reasonably be anticipated to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological malfunctions (including malfunctions in reproduction) or physical deformations, in such organisms or their offspring

42 U.S.C. § 9601(33).  That’s pretty dang broad and would definitely include hallucinogenic gases.

One problem with Peck’s actions is that most of the enforcement mechanisms for pollution control are civil, not criminal, and even in the criminal case there would have to be a trial before any penalties could be assessed.  In fact, it would probably be easier and faster for the EPA to get a temporary restraining order or preliminary injunction in a civil case than to seek criminal penalties.

But we can gloss over all of those issues.  What we really want to know is whether ghosts could qualify as a pollutant.  Of course, for most purposes nothing is a pollutant unless it is discharged into the environment, and the Ghostbusters were doing a good job of preventing that.  But were the ghosts at least a potential pollutant?

I think they could be, at least under some environmental laws.  The fact that ghosts are, in some sense, living organisms doesn’t seem to matter.  For example, disease-causing organisms such as viruses and bacteria can be considered pollutants for purposes of the Clean Water Act.  33 U.S.C. § 1362(13) (defining “toxic pollutant” to include disease-causing agents that cause, among other things, behavior abnormalities); 66 C.F.R. 2960 (describing pathogens as a “leading pollutant” in bodies of water).  The Clean Air Act likewise defines “air pollutant” to include biological substances or matter that enters the air.  42 U.S.C. § 7602(g).

So it appears that the federal government could potentially regulate the release of ghosts into the environment.  Since the Ghostbusters never (voluntarily) released any ghosts, however, I’m not sure the EPA would have much standing to complain.

III. Conclusion

If the movie had been written so that a ghost or two escaped the Ghostbusters’ containment system, the EPA might have been on firmer legal footing.  Alternatively, the EPA might have been able to go after the potential discharge of radiation from the Ghostbusters’ proton packs.

Still, apart from some technical mistakes and omitted detail to keep the plot moving, the legal issues here were pretty minor.  The EPA is probably the right agency, to the extent any federal agency is the correct one, and we can forgive the writers for not wanting to get bogged down with administrative hearings and settlement talks.

18 Comments

Posted in administrative law, criminal law, criminal procedure, mailbag, movies

Xavier’s School for Gifted Plaintiffs

Posted on March 9, 2012 by | 12 comments

Xavier’s School for Gifted Youngsters (aka the Xavier Institute) has existed in several most versions of the X-Men as a place of safety for young mutants, a training ground for future X-Men, and a private school.  These purposes are somewhat in tension, however, and students are sometimes injured either in the course of instruction or because of attacks on the school.  That leads to today’s question from Frank, who asks: “Is Professor X responsible for minor students in a parental capacity? What happens when one of them is injured or killed while at school?”

There are a few different aspects to this question.  First there’s the question of the school’s institutional liability, and second there’s the question of Professor X’ (and the teachers’) personal liability.

I. Institutional Liability

Xavier’s School is a private school in New York.  It’s usually written as a charitable school.  In some states this would entitle it to a certain degree of immunity, but New York (unlike, e.g., New Jersey) rejected the doctrine of charitable immunity several decades ago.  Bing v. Thunig, 2 N.Y.2d 656 (1957). So if the school can be sued, what could it be sued for?

The most likely cause of action is negligence: negligently allowing students to take part in dangerous activities, negligently failing to prevent superpowered students from harming one another, negligently failing to protect the students from outside threats, etc.

Normally one isn’t liable for failing to protect someone else from harm, but certain special relationships (e.g. parent/child) can create a duty to rescue, protect, or supervise.  Schools have such a relationship with students:

Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.  Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another.  A teacher owes it to his or her charges to exercise such care of them as a parent of ordinary prudence would observe in comparable circumstances.  The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians.

Mirand v. City of New York, 84 N.Y.2d 44, 49 (1994).  So while a school may not be liable for every injury caused by a student, it will be liable if the injury was the result of inadequate supervision.  What’s more, since Xavier’s is a residential school, this duty is basically continuous, because “Ordinarily, the duty of care imposed on a school district, and in this case a private school, terminates upon a student’s release from their physical custody.”  David XX v. Saint Catherine’s Center for Children, 699 N.Y.S.2d 827, 830 (App. Div. 1999).

So the school’s liability will ultimately come down to whether the teachers and staff acted reasonably and whether the injury was foreseeable.  If the teachers follow all the right protocols but a superpowered delinquent blows up the school, well, that’s tough.  Similarly, a random attack by evil mutants may be unforeseeable, so it doesn’t really matter whether the school took reasonable precautions to protect the students from such an attack or not.

II. Personal Liability

“A school district, like any other employer, may be held vicariously liable under the doctrine of respondeat superior for a tort committed by an employee in the course of the performance of the employee’s duties.”  Mary KK v. Jack LL, 611 N.Y.S.2d 347, 348 (App. Div. 1994).  Of course, the employee is also still liable (and the employer can turn around and seek compensation from the employee for any damages the employer has to pay out), but most plaintiffs prefer to sue the party with deeper pockets.

But as the quote suggests, the employer is only liable under certain circumstances.  As the Mary KK court said, “What constitutes the scope of employment is generally a jury question, but” there are some guidelines.  “An act falls within the scope of an employee’s duties when the employee is doing his master’s work, no matter how irregularly, or with what disregard of instructions. On the other hand, there is no respondeat superior liability for torts committed for personal motives unrelated to the furtherance of the employer’s business.”  Murray v. Watervliet City School Dist., 515 N.Y.S.2d 150, 152 (App. Div. 1987).  More specifically, courts and juries look at factors such as:

the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated

Riviello v. Waldron, 47 N.Y.2d 297, 303 (1979).  Sometimes the school might be vicariously liable, but it won’t be liable for the actions of “rogue” (no pun intended) employees.

III. Conclusion

We certainly hope Xavier’s has a serious insurance policy (or three).  Not only could it be sued, but it’s a magnet for serious injuries.  Waivers can help for voluntary activities, but not there are limits to what can be waived.  Of course, if the school goes beyond negligence and into the realm of gross negligence or intentional misconduct then its insurer may not cover it at all.

12 Comments

Posted in insurance, mailbag, torts, X-Men

Superman, Kryptonite, and Treason

Posted on March 7, 2012 by | 31 comments

Today we’re continuing to clear out the mailbag, this time with a question from Jon, who asks about the 2008 Superman/Batman story arc “The Search for Kryptonite” (now available as a trade paperback):

[In the story], a Kryptonite meteorite has landed, making the element common all over the world. People are putting it in jewellery, using it as paperweights – it’s everywhere. Superman decides that the only way he can be effective as a hero is to gather it all up and get rid of it, arguing that people die when he’s incapacitated. “I can only save as many people as I can be there for.” What right does Superman have to do this?

Aquaman calls it arrogance, when Supes and Batman are collecting a large chunk of green K from the seabed – “You do as you will, and expect people to thank you for it”. Amanda Waller calls it treason, when they break into a government facility to take K-based weapons (a multi-billion dollar facility specifically created to stop Superman, should he go rogue) – “You boys justified the need for this facility the minute you broke into it”.

There are two aspects to this question: first, does Superman have any right to go rounding up kryptonite and second, did Superman and Batman really commit treason?

I. Self-Defense?

The answer to the first part is “no,” for two reasons.  First, Superman isn’t in any imminent danger from the vast majority of the kryptonite, so self-defense doesn’t apply (and thus defense-of-others doesn’t apply to Batman’s actions either).  Second, like everyone else, Superman doesn’t have a general duty to prevent crime or rescue others.  Thus, although an abundance of kryptonite may be unfortunate for both Superman and the general public, it isn’t interfering with a legal obligation and so Superman can’t really claim a legal right to remove the kryptonite.  Even if he could, his remedy would be in court, not taking matters into his own hands.

II. Treason?

The answer to the second part is also “no and yes.”  While Superman and Batman no doubt broke multiple federal laws by breaking into the Last Line facility, it couldn’t have been treason for Superman, though it might conceivably have been for Batman.

In the US, treason is defined by the Constitution thus: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” U.S. Const. art. 3 § 3 (emphasis added).  That ‘only’ means that Congress has no power to redefine treason.  “This definition is meticulously exclusive and that it was so intended is indicated by the use of the adverb ‘only.’  The Constitution has left no room for constructive treason and Congress could not and has not undertaken to restrict or enlarge the constitutional definition.”  Stephan v. United States, 133 F.2d 87, 90 (6th Cir. 1943).

Arguably, neither Superman nor Batman has levied war against the United States.  Levying war requires that “a body of men be actually assembled for the purpose of effecting by force a treasonable purpose.”  Ex parte Bollman, 8 U.S. 75, 126 (1807).  I’m not sure how many men it takes to make “a body,” but I suspect it’s more than two.  Otherwise any two people who committed or intended to commit a violent crime against the United States could be charged with treason.

That leaves adhering to and giving aid and comfort to the enemies of the United States.  The problem is that the only possible enemy aided or comforted here is Superman himself.  And if Superman is an enemy of the United States, then it stands to reason that he cannot owe the United States a duty of loyalty and thus cannot commit treason.  If there were some larger entity that Superman was assisting (e.g. a Kryptonian separatist group), then that would be different, but as it stands he appears to be the only direct beneficiary, which makes it difficult to call him a traitor rather than a run-of-the-mill self-interested criminal (albeit one with superpowers).

The same cannot necessarily be said of Batman, however.  If Superman is an enemy of the United States (as proven when he broke into a military base), then Batman is arguably committing treason by helping him.  “Aid and comfort” are read very broadly, and includes “an act which weakens or tends to weaken the power of the [sovereign] and of the country to resist or to attack the enemies of the [sovereign] and the country.” Cramer v. United States, 325 U.S. 1, 29 (1945) (quoting Lord Reading in the Casement trial).  Since the Last Line was created specifically to defend against a possible rogue Superman, helping Superman destroy that facility seems like a pretty clear example of “weakening the power of the United States to resist or to attack the enemies of the United States.”

Superman’s citizenship is not an issue, by the way.  One does not have to be a citizen to commit treason; even a resident alien owes the United States a kind of loyalty, and Superman is definitely at least a resident alien (if not necessarily a lawful one).  See Carlisle v. United States, 83 U.S. 147, 154 (1872) (“The alien, whilst domiciled in the country, owes a local and temporary allegiance, which continues during the period of his residence.”).

III. Conclusion

So is Superman just completely hosed here if he wants to follow the law?  Not necessarily.  At a minimum, he could keep his Clark Kent alter ego safe by claiming to have developed a kryptonite allergy.  This would probably qualify as a disability under the Americans with Disabilities Act, with the result that the Daily Planet (or at least the part of the office where Kent works) would become a kryptonite-free zone.  Since there’s no real need for kryptonite there, that seems like a reasonable accommodation.

This may seem like a pretty poor consolation, but on the other hand Superman’s kryptonite-resistant “K-suit” managed to survive a pretty severe beating before giving out, so he’d probably be able to continue fighting crime effectively.  He’d just have to be a bit more careful.

31 Comments

Posted in Batman, constitutional law, criminal law, mailbag, Superman

Person of Interest: Witness

Posted on March 2, 2012 by | 14 comments

We’ll be back with more comic book-inspired posts next week, but we’ve been clearing out the mailbag lately and we’ve had quite a few questions about television shows.  Today’s question comes from Brian, who asks about an episode of Person of Interest.  Minor spoilers ahead.

In the episode, protagonist John Reese is trying to protect a witness to a mob killing.  Unfortunately, the witness is shot in the shoulder.  With the mob still on their trail, Reese makes an attempt at first aid using topically applied cocaine and glue, without the witness’s prior consent.  Brian asks:

If/when the victim presents himself at the hospital and informs doctors of how it was treated, would the victim be in violation of any laws due to the presence of cocaine in his bloodstream and/or how would he be (legally) expected to handle the consequences of being given a highly addictive and illegal street drug as an analgesic?

There are several aspects to this question.  First, did Reese violate any laws?  Second, did the witness?  And third, how does the physician/patient privilege come into play?

First, a brief factual background: cocaine has legitimate medical uses, including as  a vasoconstrictor to control bleeding (that’s why it’s a Schedule II drug instead of Schedule I in the US).  Its use in that role is mostly limited to areas like the nose rather than large-scale trauma like a gunshot, but there’s at least some theoretical efficacy there.  Similarly, certain cyanoacrylate glues (e.g. Dermabond) are FDA approved for use in closing wounds.  The medically approved kind are not all that different from over-the-counter cyanoacrylate glues, so again there’s some vaguely reasonable basis for the treatment.

I. Reese’s Liability

The most obvious problem is that Reese purchased and possessed an illegal drug.  It’s hard to tell exactly how much he bought, but it was probably about a gram, which would make it fourth degree criminal possession of a controlled substance under N.Y. Penal Law § 220.09, a Class C felony, plus liability as a buyer.  Could this be excused under a necessity theory?  And even if that could be excused, what is his potential liability if his first aid actually made things worse?

A. Necessity

In New York, the defense of necessity is called “justification,” and is described by N.Y. Penal Law § 35.05:

… conduct which would otherwise constitute an offense is justifiable and not criminal when:

…

Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.

Basically New York follows a “choice of evils” theory: “the desirability and urgency of avoiding such injury [must] clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.”  Importantly, the choice is judged by an objective standard: the question is whether a reasonable person would agree that Reese’s conduct was necessary under the circumstances?  See People v. Craig, 78 N.Y.2d 616 (1991).

The word “necessary” must also be emphasized.  The statute “rules out conduct that is tentative or only advisable or preferable or conduct for which there is a reasonable, legal alternative course of action.”  Craig, 78 N.Y.2d at 623.

So, was there an imminent private injury?  Yes, the witness had been shot, was severely wounded, and there was no help on the way.  Was it Reese’s fault?  No, he was trying to protect the witness, who was shot by the mob.  Was Reese’s action necessary under the circumstances?  Quite possibly, but that issue would probably ultimately come down to expert testimony.  If a reasonable person would have thought that the witness was likely to die without the ad hoc medical treatment (and ordinary first aid would have been insufficient), then it was probably justified.

B. Good Samaritan Laws

So far, so good.  Reese may be off the hook for buying the cocaine.  But what if his unusual first aid actually made things worse?  Could the witness sue?

New York, like just about every state, has a “Good Samaritan law” that limits liability for people who render aid to others.  New York’s law is particularly strong, since it gives complete immunity to qualifying people who give aid:

… any person who voluntarily and without expectation of monetary compensation renders first aid or emergency treatment at the scene of an accident or other emergency outside a hospital, doctor’s office or any other place having proper and necessary medical equipment, to a person who is unconscious, ill, or injured, shall not be liable for damages for injuries alleged to have been sustained by such person or for damages for the death of such person alleged to have occurred by reason of an act or omission in the rendering of such emergency treatment unless it is established that such injuries were or such death was caused by gross negligence on the part of such person.

N.Y. Public Health Law § 3000-a.  So as long as Reese’s cocaine & Superglue first aid didn’t amount to gross negligence, he’s in the clear.  Of course, it’s easy to argue that cocaine is so often adulterated with toxic substances that it would be gross negligence to even try to use it in that situation.  It would all come back to what a reasonable person would think and whether Reese, knowing of an unreasonable risk, took it anyway.

So that’s Reese’s liability.  Now let’s turn to the witness.

II. Possession

If Reese’s use of the drug was justified, then the witness’s possession is also necessarily justified, but if Reese’s use wasn’t justified, then could the witness be in trouble?

In New York (as in most jurisdictions), possession requires knowledge of the possession of the controlled substance.  In this case, the witness was conscious as the cocaine was administered, so he certainly had knowledge.  And while he wasn’t asked for permission in advance, he seemed to consent during the procedure (“there’s a first time for everything”), so he can’t claim that he tried to divest himself of the drugs.

On the other hand, New York does not seem to recognize an “internal possession” theory of possession (e.g. using an elevated blood alcohol level as the sole evidence in proving that a minor had been in possession of alcohol).  I could not find a case specifically rejecting this theory, but the NIH agrees with this assessment.

So merely having cocaine in his bloodstream may not be enough to prove that the witness possessed cocaine.  Of course, the prosecution could impose immunity on Reese and compel him to testify, but that seems unlikely.

III. The Physician/Patient Privilege

New York, like many jurisdictions, privileges certain communication between a physician and a patient from disclosure.  N.Y. CPLR § 4504:

Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry, podiatry or chiropractic shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.

Knowing that the witness had potentially adulterated cocaine in his system would probably be necessary to enable a physician to attend to the witness in a professional capacity.  So given that, it’s difficult to see how the police would ever learn about what happened, assuming neither Reese nor the witness talked.

IV. Conclusion

We don’t typically follow Person of Interest, but this episode had a lot of interesting legal issues, even if some of them turned out to be moot points (if you’ve seen the episode or read the plot synopsis you’ll know what I mean).

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Posted in criminal law, evidence, mailbag, television, torts

Dollhouse: Haunted

Posted on February 17, 2012 by | 19 comments

We’ve written generally about the TV series Dollhouse before, but this is our first look at the legal issues raised by a particular episode from season one.  The show was recent enough that we’ll give a spoiler warning.

Continue reading →

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Posted in criminal law, estate law, mailbag, property law, television

Buffyverse Vampires and Criminal Liability

Posted on February 10, 2012 by | 78 comments

The inspiration for this post comes from an email from Will, who asked about vampires in Joss Whedon’s Buffy the Vampire Slayer and Angel.   Buffyverse vampires are a bit different from most mythological or fictional vampires.  For legal purposes, the biggest difference is that Buffyverse vampires retain their memories from mortal life but are possessed by a demon’s soul, so they tend to be evil.  This raises some interesting questions about vampires’ potential for criminal liability, especially for the character of Angel.

Note that I’m going to gloss over the issue of whether vampires are subject to the human justice system in the first place.  It’s arguable that, as non-humans, they lack legal rights.  From a legal perspective, the original human has died  because their cardiovascular functions have irreversibly ceased.  Cal. Health & Safety Code § 7180(a) (the California version of the Uniform Determination of Death Act).  Since they’re dead, they can’t be human.  That’s not very satisfying or interesting, though, so I’m going to ignore it.

I. Mental Capacity

Most vampires seem to be mentally competent, or at least as competent as they were in life.  Some of them aren’t very bright, but they aren’t anywhere near the level of mental incapacity required to be a defense under California law.  In California, the test for mental incapacity is the same as for insanity:  the accused must be incapable of understanding the nature of his or her act or distinguishing right from wrong. People v. Phillips, 83 Cal. App. 4th 170 (2d Dist. 2000).  Vampires seem mentally capable of understanding what they are doing, and they can distinguish right from wrong.  It’s pretty hard to revel in doing evil acts if you don’t understand that they’re morally wrong.

II. Insanity

For pretty much the same reason, it’s hard to argue that vampires are insane, at least under California’s M’Naghten test, which is defined by statute.  Cal. Penal Code § 25(b).  Under a different test, such as the irresistible impulse test, they might be found insane, but California does not recognize that test. People v. Severance, 138 Cal.App.4th 305, 324 (3d Dist. 2006).  The Severance case is actually surprisingly applicable: “The gist of defendant’s claim of insanity was that after he was hit on the head in January 2000, Satan took control of his mind and body and he did things he does not normally do—namely, rob two stores. In the words Flip Wilson playing Geraldine, “the Devil made him do it.” In essence, defendant’s claim of insanity was a claim he acted under an “irresistible impulse.” The irresistible impulse test, however, has long been discredited in California as a test for legal insanity.”  Severance, 138 Cal.App.4th at 324.

III. The Special Case of Angel

The character of Angel is (almost) unique among vampires.  Through various means throughout Buffy and Angel, his human soul is restored, lost, and restored again.  In his human-souled state, he is called Angel; his demonic form is called Angelus.  Angel feels remorse for the terrible deeds of Angelus and works to set things right.  Does this change anything?  From a legal perspective, I think not.  Essentially, he is akin to a person with a recurring mental illness that doesn’t quite rise to the level of insanity.

One might argue that Angel shouldn’t be punished for Angelus’s crimes.  After all, it’s not like Angel is likely to commit any of the same crimes.  But actually, incarcerating Angel would serve the function of incapacitation (i.e. preventing Angel from turning into Angelus and wreaking havoc).  So it wouldn’t solely be an exercise in (mostly pointless) retribution.  And arguably it would also serve a deterrent function for other vampires by showing that they can be caught and punished by humans.  They may be evil, but they’re not stupid.  Well, mostly.

IV. A Side-Note About Blood

Since the vampires in the Buffyverse can survive on animal blood, they can’t claim the defense of necessity for drinking human blood, at least non-consensually.  Angel generally drinks animal blood, so that’s not a problem for him, and California allows animal blood to be sold for human consumption. 3 CCR § 904.17.

V. Conclusion

Assuming the vampires are considered human (and thus capable of committing crimes in the first place), then their vampirism probably won’t save them from criminal liability.  In Angel’s case, that means he’s potentially liable for a couple centuries’ worth of killing, since there is no statute of limitations on murder.  The animal blood is probably legit, though, so I’m sure that’s a certain comfort.

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Posted in administrative law, criminal law, mailbag, television

Aquaman’s Citizenship

Posted on February 1, 2012 by | 28 comments

We’ve written previously about Superman’s U.S. citizenship (and his brief flirtation with renouncing it), but he isn’t the only superhero with potential citizenship issues.  Believe it or not, Aquaman has troubles of his own, even if they aren’t addressed explicitly in the comics.  As astute reader Frank asked, “[DC New 52] Aquaman is half-American, on his father’s side. As a citizen, can he hold a title of nobility, namely “King of Atlantis,” in a foreign country?”  As the question implies, there are two issues here: Can Aquaman be King of Atlantis while remaining a U.S. citizen?  And can a U.S. citizen hold a foreign title of nobility?

I. Renunciation

As discussed previously, 8 U.S.C. § 1481 provides several ways in which someone can lose their U.S. citizenship, if they are done “with the intention of relinquishing United States nationality.”  In Aquaman’s case, subsection (a)(4)(A) is the most likely route to renunciation:

accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state

Since Aquaman is an Atlantean citizen, assuming the office of King of Atlantis would seem to be sufficient.  Strictly speaking, he would also have to do so with the intention of relinquishing United States nationality, but intent can be inferred from actions.  Perkins v. Elg, 99 F.2d 408, 412 (D.C. Cir. 1938) (“expatriation is a matter of intent on the part of the person concerned, which intent must be shown by some express act or some other act from which it can be gathered”).  In fact, the State Department considers accepting a policy-level position in a foreign government to be prima facie evidence of intent to relinquish citizenship.  The fact that Aquaman remains a citizen of Atlantis means that he is not at risk of becoming stateless, which is one of the major policy reasons prohibiting the involuntary imposition of expatriation.  Tropp v. Dulles, 356 U.S. 86 (1958).

Notably, Aquaman later abdicated the throne to be a full-time superhero based in Boston.  Could this abdication signal that he never intended to relinquish his American citizenship?  Probably not.  “After an American citizen has performed an overt act which spells expatriation under the wording of the statute he cannot preserve for himself a duality of citizenship by showing his intent or understanding to have been contrary to the usual legal consequences of such an act.”  Grassi v. Acheson, 101 F.Supp. 431, 432 (D.D.C. 1951); see also Terrazas v. Muskie, 494 F.Supp. 1017, 1020 (N.D.Ill. 1980) (“plaintiff’s struggle to retain his citizenship is likely evidence of his realization of the gravity of his earlier decision to relinquish his citizenship”).

So is there any hope for Aquaman?  There is a slim thread.  Any doubts or ambiguities in these kinds of cases must be resolved in favor of retaining citizenship.  Dulles v. Katamoto, 256 F.2d 545, 548 (9th Cir. 1958) (“in construing § 401(d) as to such a dual national … the facts and the law should be construed as far as reasonably possible in favor of the citizen.”); Nishikawa v. Dulles, 356 U.S. 129, 133 (1958) (“when a citizenship claimant proves his birth in this country or acquisition of American citizenship in some other way, the burden is upon the Government to prove an act that shows expatriation by clear, convincing and unequivocal evidence”).  Unfortunately for him, the only issue is whether Aquaman intended to relinquish his citizenship: the fact that he voluntarily assumed the throne of Atlantis is established beyond doubt.

II. Titles of Nobility

The Title of Nobility Clause of the U.S. Constitution forbids both the federal government and the states from granting titles of nobility.  U.S. Const. art. 1 § 9 cl. 8; U.S. Const. art. 1 § 10 cl. 1.  Furthermore, “no person holding any office of profit or trust under [the United States], shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”  But these clauses do not prohibit private citizens from holding such titles,  so Aquaman is in the clear in that regard.  He could hold a title of nobility as long as he did not “accept, serve in, or perform the duties of any office, post, or employment under the government of” Atlantis.

By the by, the reason why U.S. citizens are granted honorary knighthoods rather than proper ones (e.g. Bill Gates, who is a KBE but may not use the title “Sir”) is not because of the Title of Nobility Clause but rather because proper knighthoods are only granted to British subjects.

There is a proposed constitutional amendment to prohibit private citizens from holding titles of nobility, on pain of expatriation, but it has not been ratified by three-fourths of the states.  Interestingly, the twelve ratifications it has received so far still “count,” and so if 28 more states ratified it then it would become part of the Constitution.  Such a long period between proposal and adoption is not unheard of: The Twenty-Seventh (and currently last) Amendment was adopted 203 years after its proposal in 1788.

III. Conclusion

Once again Aquaman has been overshadowed by better-known superheroes, even when it comes to fictional legal troubles.  Where was the Fox News outrage that the former King of Atlantis was allowed to roam the streets of Boston without being deported?  Where are the Republican candidates on this issue?  Superman merely threatened to renounce his citizenship in a non-canon side-story, whereas Aquaman actually went and did it, as far as the law is concerned, yet there is only silence.  Aquaman just can’t catch a break.

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Posted in constitutional law, international law, mailbag

Legal Responsibility for Insane Robots

Posted on January 19, 2012 by | 41 comments

Insane robots that turn against their creators or try to destroy humanity are a pretty common theme in lots of media, not just comics.  Of course, this is a blog primarily about comic books, so we’ll take an example from there, as inspired by a question from TechyDad, who asks about Henry Pym (aka Ant-Man) and his potential liability for the creation of the robot Ultron, which in its various incarnations has done all kinds of terrible things, including attempting to destroy the world.

I. The Setup

The first thing to consider is whether an intelligent robot could be criminally or civilly liable for its own actions.  As with all other intelligent non-humans, the answer seems to be no unless Congress explicitly allows for it.  Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004).  Since Congress doesn’t seem to have done so in the comics, we must now consider whether any of the liability falls to Pym, and for that we need the facts of a particular case.

The example TechyDad wanted to know about comes from the TV series The Avengers: Earth’s Mightiest Heroes, specifically the episode The Ultron Imperative.  In the episode, Ultron nearly destroys the entire world by launching S.H.I.E.L.D.’s nuclear arsenal.  Ultimately, Pym stops Ultron at the last second, but Pym is blamed for the incident, since a) he created Ultron and b) infused it with his own mental patterns, although it may have been corrupted by Kang the Conqueror and was definitely weaponized by Stark Industries, albeit with Pym’s help.  Pym accepts the blame and admits that it was his fault.

So, then, who is liable here and for what?  We’ll start with torts.

II. Tort Liability

There are three major bases for tort liability: intentional misconduct, negligence (and its close cousin, recklessness), and strict liability.  We can definitely weed out intentional misconduct, since Pym neither intended nor had knowledge to a substantial certainty that Ultron would turn violent and try to destroy the world.

Next we consider negligence.  The key question (although not the only question) is whether Pym used reasonable care in the design and deployment of Ultron (i.e. whether the cost of avoiding the incident was more or less than the expected value of the harm caused by the incident).  This is a complicated question.  On the one hand, Pym is a genius and seems to have tried very hard to make Ultron a force for good.  And before Ultron 6 showed up Pym was in the process of destroying every last Ultron component he had previously created.  On the other hand, the potential for serious harm caused by a nigh-indestructible, highly intelligent, weaponized robot is so high that it’s possible that even that level of care was not enough.  In fact, the potential for harm is so high that it might even fall under strict liability.

Strict liability (i.e. liability without regard to the level of care or fault) is rare in torts.  There are two main cases where strict liability is applied: abnormally dangerous activities (aka ultrahazardous activities) and some kinds of products liability.  Since Ultron wasn’t a product, that leaves abnormally dangerous activities.  Examples of abnormally dangerous activities include transporting gasoline, dynamite blasting, and the ownership of wild animals.  The Restatement (Second) of Torts defines abnormally dangerous activities thus:

In determining whether an activity is abnormally dangerous, the following factors are to be considered:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.

It seems that the creation and weaponization of Ultron meet all of these criteria.  There’s a high degree of risk of harm because robots are unpredictable.  The likelihood that the harm will be great because it was equipped with powerful weapons.  Pym couldn’t eliminate the risk despite (in the comics) decades of trying.  Such robots definitely aren’t common.  Ultron was meant to protect people, which necessarily means he would be close to bystanders, which doesn’t seem appropriate.  Ultron’s value to the community seems to have been pretty low since existing superheroes were capable of handling the threats Ultron was meant to help with.

So then, it may not matter whether Pym was blameworthy or not.  If strict liability applies then the rule is “you makes your insane robot and you takes your chances.”

III. Criminal Liability

Luckily for Pym, strict liability is even less common in the criminal law.  In fact, it’s usually only found when the stakes are very low (e.g. speeding), although there are exceptions (e.g. statutory rape).  It doesn’t apply to anything Ultron did, in any case.  Another thing we can say is that Pym wouldn’t be guilty of attempted murder (or attempted anything, for that matter) because attempt requires intent, and Pym clearly didn’t intend for Ultron to attempt to kill anybody.

That doesn’t clear Pym of wrongdoing, however.  There’s still criminal negligence (which is a higher standard than ordinary tort negligence).  For example, in New  York, criminal negligence is defined by N.Y. Penal Law § 15.05(4) this way:

A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

So, in New York criminal negligence requires a “gross deviation” from reasonable care.  Since Pym seemed to try very hard to avoid harm, he might escape criminal liability unless a reasonable person would say “there is no way to make this safe, so I won’t even try to make a robot like Ultron.”

IV. What About Other Defendants?

So that’s Pym’s potential liability, but what about the other people involved?  After all, it was Tony Stark and his company that weaponized Ultron in the first place, and Stark says that he is “just as responsible.”  That probably doesn’t take Pym off the hook, however, since Pym was involved with that work.  It might make Stark and Stark Industries liable, however.

V. Evidentiary Issues

Finally, we’ll note that Pym’s admission of responsibility could be used against him in court.  Ordinarily one cannot testify as to something someone else said out of court—that’s basically the definition of hearsay.  But a statement offered against the opposing party (i.e. Pym, as the defendant) that was made by that party is specifically excluded from the definition of hearsay in the Federal Rules of Evidence, specifically Rule 801(d)(2)(A), and many states have similar rules.  So Pym probably should have kept quiet until he talked to a lawyer; his invention did nearly destroy the entire world, after all.

VI. Conclusion

Creators and owners of robots, even intelligent autonomous ones, are (generally) responsible for injuries caused by those robots.  Between that legal rule and robots’ terrible track record of violent rebellion, it’s kind of surprising that so many comic book inventors keep making them.  Maybe Matt Murdock can lead a class action suit against Stark Industries for all the trouble Ultron has caused over the years, although the statute of limitations has probably run on some of the older stuff, since he first appeared in the late 1960s.

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Posted in criminal law, evidence, mailbag, torts

Minor Superheroes and Property Ownership

Posted on January 6, 2012 by | 20 comments

Today’s post will be a fairly quick one.  The topic comes courtesy of Frank, who asks, “Aliens gift the Power Pack children with superpowers, costumes and a sentient robot. Don’t their parents technically own these gifts?”  Perhaps surprisingly, the answer is no.

For well over a century, the common law doctrine has been this:

[A father] has no title to the property of the child, nor is the capacity or right of the latter to take property or receive money by grant, gift or otherwise, except as a compensation for services, in any degree qualified or limited during minority.  Whatever therefore an infant acquires which does not come to him as a compensation for services rendered, belongs absolutely to him, and his father cannot interpose any claim to it, either as against the child, or as against third persons who claim title or possession from or under the infant.  Hoblyn v. Johnson, 55 P.3d 1219, 1228 (Wyo. 2002) (quoting Banks v. Conant, 96 Mass. 497 (1867)).  

As the Hoblyn court explained, “this opinion still provides an accurate statement of the law.”  And it seems to be true in Virginia as well, which is where the group received the gifts.  Midkiff v. Midkiff, 201 Va. 829, 831 (1960) (“the common law is in force in Virginia, except where modified by statute” and “at common law an infant was entitled to his own property rights”).  Since the costumes and the sentient robot / spaceship were given as gifts, the children do indeed own them.

Now, you may have heard of the Uniform Gifts to Minors Act or the related Uniform Transfers to Minors Act.  The former covers deposit accounts, securities, and insurance; the latter covers property more generally.  These model laws, which have been adopted in many states, including Virginia, allow for property to be given to minors but held by a custodian until the minor reaches the age of majority (21 in the model version of the Acts, 18 in Virginia’s version).  VA Code Ann. § 31-37.  The primary purpose of the Acts is to avoid the hassle and expense of setting up trusts, not to allow gifts to be given that otherwise couldn’t be nor to be the only way to give a minor a gift.  Furthermore, in order to be a gift under the Acts, the gift has to be given in a particular way that specifically invokes the Act.  So if Aelfyre Whitemane wanted to give the costumes and robot to the children but didn’t think they could be trusted with them until they reached adulthood, the UTMA would be one way to accomplish that.  Even so, the custodian need not necessarily be the children’s parent but could be basically any competent adult who agreed to take on the job.

So to sum up: there are a lot of potential issues with superpowered minors, but gadget-based minor superheroes (and villains) can legally own their gadgets independently of their parents or guardians.

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Posted in mailbag, property law