Category Archives: mailbag

The Incredibles

Posted on January 4, 2012 by | 24 comments

In today’s mailbag we have a question that several people have asked about, most recently Thomas, who wrote: “In The Incredibles, Mr. Incredible is sued for foiling a suicide attempt. Would a superhero be liable for something like that? Aren’t suicide attempts illegal?”

(If you haven’t seen The Incredibles, you should check it out.  Like most Pixar movies, it’s pretty great.)

This is an interesting question with significant ramifications for the story.  If the suicide attempt was a crime, then arguably Mr. Incredible had an airtight defense: he was justified in using reasonable force to prevent the commission of a crime.  And if the lawsuit was bogus, then maybe the supers wouldn’t have been driven into hiding in the first place.  It’s not clear what state The Incredibles takes place in, so rather than give an exact answer we’ll have to look at the broader history of the issue.  It’s also not clear to what extent Mr. Incredible was acting as a government official with the benefit of qualified immunity.  For simplicity, we’ll assume he was acting as a private citizen.

I. Common Law History

At common law suicide and attempted suicide were both crimes: suicide was a felony and attempted suicide was a misdemeanor.  Since a “successful” suicide can’t be punished in the usual way, a more creative sanction was developed: the deceased was given an ignominious burial and his assets were forfeited to the crown.  The burial usually took the form of driving a stake through the body and burying it at a crossroads (i.e. not a proper Christian burial).  This was the law in the early American colonial era, but by the time of the American Revolution the states had generally moved away from the common law punishments, although suicide was still technically a crime, just an unpunished one.  See Washington v. Glucksberg, 521 U.S. 702, 711-13 (1997).

II. Attempted Suicide and Modern Developments

Most courts held that once suicide itself was no longer punishable, attempted suicide could likewise no longer be punished.  May v. Pennell, 101 Me. 516 (1906); Com. v. Dennis, 105 Mass. 162 (1870).  At least one court took a different view, however, holding that attempt was still punishable.  State v. La Fayette, 15 N.J. Misc. 115 (Ct. Com. Pleas 1937).  A few states, such as New York (though it has since repealed it), made attempted suicide a crime by statute even as they rejected the common law crime of suicide.  See Darrow v. Family Fund Soc., 116 N.Y. 537 (1889).  This makes a certain amount of sense, given that the attempter can be sentenced to jail or fined, whereas punishing a suicide only punishes the innocent (and likely grieving) survivors, which was the main reason for abolishing the common law punishments in the first place.

Coming somewhat closer to the modern era we have State v. Willis, 255 N.C. 473 (1961).  This North Carolina case followed the logic of La Fayette. Suicide was a common law crime and is therefore still a felony under North Carolina law, which defines a felony as, among other things, “a crime which was a felony at common law.” Similarly, attempted suicide was still a misdemeanor.  The fact that suicide had no punishment was immaterial because North Carolina had a catch-all statute that said “All misdemeanors, where a specific punishment is not prescribed shall be punished as misdemeanors at common law.”  In this case, that means fines and imprisonment were theoretically possible, although the court recognized that “This, of course, does not mean that the court may not place offenders on probation, or make use of other state facilities and services in proper cases.”

Interestingly, Willis has not been overturned or distinguished, and the relevant North Carolina laws are essentially still in place.  If The Incredibles took place in a similar jurisdiction, a court could agree that attempted suicide was still theoretically a crime and so Mr. Incredible was justified in stopping it.

But what about something more straightforward: are there any jurisdictions left that still criminalize attempted suicide by statute?  As far we can tell, no U.S. state still has a statute criminalizing attempted suicide.  The Willis / La Fayette approach would seem to be the only way for it to remain a crime.

III. An Alternative Approach

Even if it isn’t a crime where The Incredibles takes place, that doesn’t mean Mr. Incredible couldn’t be justified in stopping the attempt.  As the Minnesota Supreme Court held in 1975: “There can be no doubt that a bona fide attempt to prevent a suicide is not a crime in any jurisdiction, even where it involves the detention, against her will, of the person planning to kill herself. Had defendant seized complainant as she was about to leap from a building, and had he kept her locked in a safe place until the authorities arrived, it is clear that a conviction for the crime of false imprisonment could not be sustained.”  State v. Hembd, 232 N.W.2d 872, 878 (Minn. 1975).  That case was decided in the criminal context, but a civil court could come to the same conclusion.

IV. Conclusion

Regardless of the law of the jurisdiction, Mr. Incredible probably could have beaten the case.  Would it have been enough to keep the supers from retiring?  Maybe, maybe not, but at least one of the sillier lawsuits in cinema history could have been thrown out.

24 Comments

Posted in criminal law, mailbag, movies, torts

Magneto’s Scheme in the X-Men Movie

Posted on December 16, 2011 by | 24 comments

This is a question we got a while back from Christopher, who wondered about Magneto’s evil plot in the 2000 X-Men movie.  In the movie, Magneto devises a plan to win respect for mutants by turning the world’s leaders into mutants, starting with a particularly anti-mutant U.S. Senator, which would force them to see things from the mutant perspective.  But what if the plan backfired, and anti-mutant sentiment led to an effort to remove the leaders from office?  In particular Christopher wanted to know about the President.*  There are four ways we can think of for getting rid of the President: two might actually work, one is tenuous for legal reasons, and one is tenuous for practical reasons.

* If you’re wondering, Senator Kelly could have been removed by expulsion by the Senate itself, impeachment, or constitutional amendment (more on those last two later).  The Senate, like the House, has the power to decide whether its members meet the constitutional requirements for election but may not do so in order to discipline its members.  Powell v. McCormack, 395 U.S. 486 (1969).

I. Impeachment

Strictly speaking, impeachment refers to charging an official with misconduct, not the resulting trial or getting kicked out of office.  It’s basically an indictment.  At the federal level, the President can be removed from office on impeachment for and  conviction of treason, bribery, or other high crimes and misdemeanors.  U.S. Const. art. II, § 4.  Getting the ball rolling requires a simple majority in the House, but conviction requires a two-thirds vote in the Senate.  The conviction cannot be reviewed by the federal courts.  Nixon v. United States, 506 U.S. 224 (1993) (NB: this was a case about a federal judge named Nixon, not former President Nixon, who was almost-but-not-quite impeached before he resigned).  Nor can the new President (i.e. the former Vice President) use the pardon power  to reinstate the ex-President.  U.S. Const. art. II, § 2, cl. 1 (impeachment is expressly excluded from the pardon power).

On the one hand, it’s unlikely that being a mutant would qualify as a “high crime or misdemeanor.”  The phrase is misleading to modern ears, and it encompasses more than just criminal acts and includes maladministration and subversion of the Constitution.  But even these broader terms require some kind of overt act or omission; simply existing as a mutant wouldn’t seem to qualify.  On the other hand, no one is perfect, and some trumped-up charge could probably be dug up.  Besides, the impeachment and conviction aren’t reviewable by the courts: once you’re out, you’re out.

The major downside of the impeachment route is that it’s still a trial, and since the Chief Justice of the Supreme Court would preside over the case, it’s unlikely that Congress could make a complete mockery of the proceedings.  The President would have the opportunity to present evidence and call witnesses, which buys a lot of time for building public support against removal.

II. The 25th Amendment

The 25th Amendment addresses the problem of Presidential succession.  This includes not only what to do if the President dies, resigns, or is removed from office (the Vice President takes over) but also what to do if the President is nonfatally disabled (the Vice President takes over as acting President).  This second option can be voluntary (e.g. for a planned surgery during which the President will be incapacitated) or involuntary (e.g. an unplanned incapacitation).  It’s the involuntary option that interests us because it can effectively be used to stage a coup, albeit one that needs considerable Congressional support.

The way the process works is that the Vice President and the majority of the Cabinet transmit a written declaration of the President’s disability to the President pro tempore of the Senate and the Speaker of the House.  This makes the Vice President the acting President.  The President can then challenge this declaration.  Ultimately, Congress decides the issue: if two-thirds of both houses vote that the President is indeed disabled, then the VP remains acting President.

The advantages here are that there’s no need for trumped-up charges, the executive branch can start the process, there’s no intervention by the judicial branch, the VP immediately assumes power, and Congress only has 21 days to decide the issue, so there’s a limit on how much time the President has to gather public support.  The downside is that it requires a majority of the Cabinet, who presumably are fans of the President, and two-thirds of both houses, which is a higher bar than impeachment.  And it’s probably still pretty difficult to sell mutant status as such a disability that the President couldn’t discharge his or her duties, although some mutations come close, particularly dangerous, uncontrolled ones.

III. Adding a Qualification for Office

Now we come to the legally tenuous approach.  Congress could try to force a new qualification for office on the President, but we don’t think it would work without a constitutional amendment.  The Constitution specifically lists the qualifications to be President and doesn’t provide for adding any new ones.  It’s also not one of Congress’s specifically enumerated powers.  The houses of Congress are explicitly empowered to judge the qualifications of their own members, which suggests they are not empowered to do so for the Presidency.  Finally, Powell v. McCormack and U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) suggest that the qualifications to be President, like those for federal legislators, are constitutionally fixed and cannot be altered by Congress or the states (except by amendment).

Besides, the President would assuredly veto the bill, and overriding it would require a two-thirds vote in both houses.  It would probably be easier to go the impeachment route.

IV. Constitutional Amendment

And here we come to the wildly impractical but guaranteed effective nuclear option.  There’s no reason the President couldn’t be removed by amendment, either explicitly (“Amendment 28: John Smith, currently President of the United States, is hereby removed from office.”) or implicitly by barring mutants from holding office, notwithstanding all that stuff about equal protection and due process.

The downside is that it would be completely impractical unless virtually the entire country were rabidly anti-mutant.  The upside is that an amendment could affect all mutant office-holders at once, which the other three methods could not.

V. Conclusion

Magneto’s plan, though criminal and insane, would probably not have backfired.  Removing mutant politicians from office would have been difficult, fairly slow, and politically divisive at best and effectively impossible at worst.  It’s more likely that the mutant politicians, if they refused to resign, would have stuck around at least to the end of their terms.

24 Comments

Posted in constitutional law, mailbag, movies, X-Men

Mailbag for December 2, 2011

Posted on December 2, 2011 by | 15 comments

In today’s mailbag we have a question from Steven, who asks about the first Addams Family movie (Spoiler Alert!):  “Did Uncle Fester commit a crime? He was a conman pretending to be Fester, but unbeknownst to him [because of amnesia suffered in the Bermuda Triangle], he actually was Fester.”

(We consider this question fair game for the blog because the Addams Family actually started as a series of New Yorker cartoons, which are close enough to comics in our opinion.)

I. The Setup

First we have to consider the crimes Fester might be accused of.  There are several possibilities in New York (where The Addams Family takes place), but a reasonable choice is second degree criminal impersonation, which is a class A misdemeanor:

A person is guilty of criminal impersonation in the second degree when he:

1. Impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another;

N.Y. Penal Law § 190.25.  Since Fester (who believed himself to be a man named Gordon) thought he was impersonating someone with the intent to gain access to the Addams Family’s wealth, this seems to fit.  The question is whether Fester’s real identity is a defense despite his belief that he was committing a crime.  We think the answer is that he may not be guilty of impersonation but he is likely guilty of attempted impersonation.

II. Impersonation

The New York courts have held that impersonation requires falsely identifying oneself as a specific, real person. “It is evident that the gravamen of the offense is holding oneself out as some other specific individual.”  People v. Danisi, 449 N.Y.S.2d 874, 875 (Dist. Ct. 1982) (emphasis added).  Even though Fester had the necessary mental state for the crime (i.e. he thought he was lying), he did not perform the prohibited action of holding himself out as some other individual because he was, in fact, who he said he was.

One might be tempted to argue that Fester has a defense of mistake of fact, but we don’t think it would apply here.  Ordinarily mistake of fact is invoked because the defendant believed he or she wasn’t committing a crime because it negates the mental state required by the crime.  For example, if an unrelated man named Gordon suffered memory loss and came to believe he was really Uncle Fester, then he could claim mistake of fact in that he reasonably believed he was entitled to part of the Addams Family fortune and so could not have intended to defraud them.

But here Fester’s mental state was exactly what was required by the crime.  He fully intended to commit a crime and even believed that what he was doing was a criminal act.  His factual mistake actually gave rise to the guilty mental state and so can’t be claimed as a defense.  His only defense is that he simply did not commit the act prohibited by the crime.  But he certainly tried to, and that leads us to the next section.

III. Attempted Impersonation and Factual Impossibility

A person is guilty of an attempted crime in New York when “(1) … the defendant had the intent to commit a specific offense; and (2) … the defendant engaged in some affirmative act to carry out that intent.”  People v. Coleman, 74 N.Y.2d 381, 383 (1989).  In this case Fester definitely had the required intent, and he did engage in various acts to carry out the intent (e.g. showing up at the mansion, claiming to be Fester, trying to find the Addams’s money).

So does it matter that Fester couldn’t actually be committing a crime because he was actually telling the truth about himself even though he thought it was a lie?  Perhaps surprisingly, no, he can still be guilty of attempted impersonation even though he couldn’t be guilty of impersonation.  This is the doctrine of factual impossibility, which we’ve discussed here before.  New York has even codified the doctrine in N.Y. Penal Law § 110.10:

If the conduct in which a person engages otherwise constitutes an attempt to commit a crime pursuant to section 110.00, it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be.

So Fester likely has no defense to attempted impersonation.*  The good news is that attempted second degree impersonation is only a class B misdemeanor, which carries a maximum sentence of three months imprisonment, so at least it’s a lesser offense.  Given the extraordinary nature of the case, though, and the fact that the Addams welcomed him back with open arms once they learned the truth, we doubt a prosecutor would pursue the case.

* He could argue insanity, but while Fester is more than a bit weird we don’t think he qualifies as legally insane.  He could also argue something like duress, since the woman who claimed to be his mother certainly threatened and badgered him, but she really only did that once he started having second thoughts about conning the Addams family.  He was initially a more-or-less willing participant in the scheme.

15 Comments

Posted in criminal law, mailbag, movies

Mailbag for October 27, 2011

Posted on October 27, 2011 by | 9 comments

Today we have another mailbag question.  Joe writes:

What if a hypothetical protester had powers that prevented the police from carrying out their duties? How would this legally break down, and to what degree could authorities enjoin or do anything to them?  [For example:] the Blob … decides to protest Wall Street. Literally no cop or a thousand cops will be moving him, if he decides to plop down in the middle of Wall Street. They can try to arrest or cite him, but being physically unable to remove him or execute the law, what legal recourse would they have?

[I]n-universe these folks could presumably be stopped by someone more powerful strolling along, but … What plausible legal end game could this be escalated to?

This is an interesting and timely question.  Just what are the limits of the legal sanction for someone who is only under arrest and has not yet been tried?  As we see it, there are a few different approaches the authorities could use.  We’ll assume that the Blob has done something to prompt a lawful arrest (e.g. obstructing traffic), since demonstrating peacefully is usually legal.

I. Resisting Arrest

One of the first things the authorities could try to do is tack on a charge of resisting arrest.  In New York (this is a Wall Street demonstration, after all), resisting arrest is defined by Penal Law § 205.30:

A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer … from effecting an authorized arrest of himself ….
Resisting arrest is a class A misdemeanor.

In New York there is an important distinction between undertaking an affirmative action with the intention of preventing an arrest and merely refusing to cooperate.  See People v. McDaniel, 593 N.Y.S.2d 154 (App. Term. 1992). “[T]here has been no citation to this court of any statute, rule or ordinance that requires a defendant to cooperate once that defendant is arrested and so long as the defendant does not affirmatively act to resist the arrest then there is no independently unlawful act that the defendant is committing.”  McDaniel, 593 N.Y.S.2d at 156-57.  So whether the Blob is guilty of resisting arrest depends a great deal on whether he uses his power before or after being arrested.  In the McDaniel case, for example, the defendant had chained herself to a door before being arrested, and the court held that to be insufficient evidence of intent to prevent arrest.

II. Non-lethal Force

The police could also try to use non-lethal force to obtain compliance (e.g. using Tasers and the like).  The courts have held that Tasers can be used to subdue suspects who are resisting arrest, at least when it is reasonable to do so.  See, e.g., Crowell v. Kirkpatrick, 400 Fed.Appx. 592 (2d. Cir. 2010); Hardy v. Plante, 2009 WL 249787 (N.D.N.Y. 2009).  Given the Blob’s resistance to injury, attempting to Tase him is unlikely to succeed, but it is also likely to be reasonable.  In fact, given the special circumstances, it’s not clear what the limit might be, so long as the police limited themselves to reasonable and non-lethal force.

III. Contempt

Another commonly used method to induce defendants to cooperate is contempt, and the Blob could be held in criminal contempt for his failure to appear in court.  In New York a person may be held in criminal contempt for “disorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority.”  N.Y. Jud. Law § 750(A)(1).  Although the Blob would be outside the court, the fact of his absence would occur in the court’s “immediate view and presence,” thus justifying the charge of contempt.  Waterhouse v. Celli, 336 N.Y.S.2d 960 (Sup. Ct. 1972).  Criminal contempt is also available in cases of disobeying or resisting a lawful mandate of the court, which could apply if the Blob refused to appear for a line-up.

So far we’ve just racked up additional charges.  Let’s move on to the big guns.

IV. Trial in absentia

The Sixth Amendment guarantees criminal defendants a right to be present in the court (via the Confrontation Clause), but this may be waived by disorderly conduct.  Illinois v. Allen, 397 U.S. 337 (1970).  The Blob’s refusal to appear could result in such a waiver, and he could be tried (and convicted) in his absence.

Interestingly, we’re not sure if he could be charged with anything new at this point, since the usual charge for avoiding going to prison (escape from custody) requires escaping.  Since the Blob remains motionless in this hypothetical, he can’t really be said to have escaped.

As a matter of speculation, a final option could be to build an ad hoc prison around the Blob, but that could be difficult depending on where he sat down (e.g. the middle of a major street).

V. Conclusion

There’s a lot that the police and courts could try when dealing with a particularly difficult suspect like the Blob, but there are limits.  Furthermore, it’s not obvious that they would actually want to go all the way to trying him in absentia.  Once he’s a convict, the government might suddenly find itself liable for his care and feeding, making it that much harder to ever dislodge him.

9 Comments

Posted in criminal law, mailbag

Mailbag for October 24, 2011

Posted on October 24, 2011 by | 24 comments

We haven’t done a mailbag feature in a while, and we’ve built up a little bit of a backlog of questions.  Today’s question comes from Caleb, who asks “Under the Constitution, would RoboCop be considered a person or property?”

This is an interesting question!  As we see it, the answer hinges on whether James Alex Murphy was legally dead before he became RoboCop.  Michigan has adopted the Uniform Determination of Death Act as MCL 333.1033:

(1) An individual who has sustained either of the following is dead:
(a) Irreversible cessation of circulatory and respiratory functions.
(b) Irreversible cessation of all functions of the entire brain, including the brain stem.

Notice that it allows for someone to be declared dead if either are true.  In Murphy’s case, all that was left were parts of his digestive tract, most of his brain, several organs and his left arm, though the arm was later amputated.  Depending on what exactly “several organs” refers to, this could well mean that there was irreversible cessation of circulatory and respiratory functions (i.e. that he no longer had a heart or lungs).  In that case, the fact that his brain function could later be restored wouldn’t necessarily matter. (Though we’re sure that the law would be changed in a world where people’s brains could be maintained separately from the rest of their bodies).

So supposing Murphy was properly declared legally dead despite the advanced technology of the RoboCop program, then RoboCop could be considered property rather than a person.  (There might still be difficulty overcoming laws regarding the disposal of human remains, but maybe Murphy made a legal gift of his organs for research purposes.)  But if he never died then he would still be a person.

An interesting side-effect of RoboCop not being a person is that he (or maybe ‘it’) could arguably no longer use lethal force in self-defense.  While a person may use lethal force to defense himself or herself, lethal force may not be used to protect property.  Thus, a robot can’t use lethal force to defend itself.

It also raises the issue of whether RoboCop can lawfully use lethal force at all.  The law frowns on automated lethal devices in other contexts, for example using lethal booby traps to protect a home from trespassers.  See, e.g., Katko v. Briney, 183 NW 2d 657 (Iowa 1971) (“the law has always placed a higher value upon human safety than upon mere rights in property”).  Even a remotely-operated drone is at least controlled by a human, and it’s not clear that a police force could legally employ a lethal automated robot.

24 Comments

Posted in mailbag, movies

Mailbag for June 27, 2011

Posted on June 27, 2011 by | 8 comments

Today’s mailbag is a grab bag of questions from astute reader Jessica.  We have questions about rogue superheroes, more on the Negative Zone and the Eighth Amendment, and personal jurisdiction and The Dark Knight.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

I. Rogue Superheroes and RICO

For the first question, Jessica asks “[A]re the X-Men or the Avengers complicit or in any way culpable if [Wolverine kills someone or uses excessive force] while out with a team, given that they know he does this?”

This is a great question and one we’ve been thinking about for a while.  We’ve talked about how RICO statutes could be used against supervillain organizations but we haven’t considered how the laws might apply to a superhero organization with rogue members.

First, a brief summary of RICO (Racketeer Influenced and Corrupt Organizations) laws.   The original RICO law is the federal version, 18 USC 1961-1968, although many states have passed their own similar laws.  The general pattern of the law is that a person who is a member of an organization that has committed any two of a list of 35 crimes within a 10 year period can be charged with racketeering, which is a serious felony.  To be charged with racketeering the member must have done at least one of the following (paraphrased from 18 USC 1962):

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

It’s important to note the phrases “derived from racketeering activity” and “through a pattern of racketeering activity.”  Merely investing income derived from an organization doesn’t count: it has to have come from racketeering activity (e.g. counterfeiting, theft, drug trafficking, securities fraud).  Similarly, merely controlling or participating in an organization doesn’t count: the control or participation has to be accomplished through a pattern of racketeering activity (e.g. extortion, bribery, murder).  These requirements prevent innocent members of an organization from getting swept up in a RICO action.

The practical upshot of this is that even if a member of an organization (Wolverine, for example) commits the required crimes (e.g. murder), the other X-Men may not be criminally liable under RICO if their own activities (investment, control, or participation) were unrelated to racketeering activity.  It’s not like Professor X routinely asks Wolverine to murder people or the other X-Men routinely assist Wolverine in committing murder.  Perhaps the biggest issue is if any of Wolverine’s unlawful activities brought money into the organization.  X-Men who invested those ill-gotten gains could find themselves facing charges (and a civil suit) under RICO.

Basically, RICO doesn’t work very well if applied to a fundamentally law-abiding organization, and this is by design.

II.  The Negative Zone and the Eighth Amendment Revisited

The second question is about the emotional effects of the Negative Zone: “Would [the effects] be a factor in determining the conditions for the purposes of Eighth Amendment compliance?”  In other words, does imprisoning someone in the Negative Zone violate the Eighth Amendment because of the Zone’s effects on people’s emotions and mental health?

In short, we think the answer is no.  The fact is that even regular prisons are seriously depressing, so it’s already going to be difficult to prove that a prison in the NZ is worse enough to be considered cruel or unusual punishment.  As the Supreme Court has said:

“The unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment. We have said that among unnecessary and wanton inflictions of pain are those that are totally without penological justification. In making this determination in the context of prison conditions, we must ascertain whether the officials involved acted with deliberate indifference to the inmates’ health or safety.”  Hope v. Pelzer, 536 U.S. 730, 737-38 (2002) (holding that handcuffing an inmate to a hitching post outdoors for several hours with inadequate water and restroom breaks violated the Eighth Amendment) (quotations and citations omitted).

Furthermore, “a prison official’s act or omission must result in the denial of the minimal civilized measure of life’s necessities.”  Farmer v. Brennan, 511 U.S. 825, 834 (1994).  Prison officials “must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates.”  Id. at 833.

In the Negative Zone case the emotional effects are not really part of the punishment but just a side effect of the place.  Because the Negative Zone is the only suitable prison for many supervillains, the side effect is arguably necessary.  Further, the side effects are not controlled or intentionally inflicted by anyone.  Thus, the effects are not inflicted wantonly (i.e. deliberately and unprovoked).  A charge of deliberate indifference could probably be eliminated by offering the inmates adequate living conditions and mental health care to offset the effects of the Negative Zone.  Finally, it would be difficult to argue that imprisonment in the Negative Zone denies the minimum civilized measure of life’s necessities.  “The Constitution does not mandate comfortable prisons,” as the Farmer court noted, only humane ones, and the Negative Zone is probably not bad enough to run afoul of the Eighth Amendment under the circumstances.

III. The Dark Knight and Forcible Personal Jurisdiction

The last question is about The Dark Knight (spoilers if you haven’t seen the movie yet, which you really should).

“In the Dark Knight, a Chinese national commits crimes on American soil, or at least against American citizens (even if they were all money-related crimes), and then returns to China knowing he won’t be extradited.  Batman follows him, kidnaps him, and dumps him back in America in police custody.  What are the basic legal repercussions of this, given Batman’s pseudo-status with the police?  What if it had been a completely free agent instead of Batman?”

As it turns out, the Chinese national is out of luck, assuming the prosecutor wants to file charges against him.  The Supreme Court has consistently held that “the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a forcible abduction.”  Frisbie v. Collins, 342 U.S. 519, 522 (1952).  This is true even if the abductors were government agents (in the Frisbie case the defendant Collins was allegedly abducted by police officers and taken to another state to be tried).  This rule, known as the Ker-Frisbie doctrine, has been upheld quite recently at the circuit level.  See, e.g., United States v. Arbane, 446 F.3d 1223 (11th Cir. 2006).

However, the abductor may still be liable under the Federal Kidnapping Act, 18 USC 1201.  And if the abductor were a state actor (or at least seen to be one politically), then China would likely take a very dim view of it, to say the least.

That’s all for today’s mailbag.  Keep your questions coming in!

8 Comments

Posted in constitutional law, criminal law, criminal procedure, mailbag

Mailbag for June 17, 2011

Posted on June 17, 2011 by | 7 comments

In today’s mailbag we have a follow-up question about the legal ramifications of psychic powers.  We’ve discussed some of these issues already, including hearsay, Fourth, and Fifth Amendment issues; liability for and the unintended consequences of causing amnesia; and more recently liability for causing others to commit crimes.  Astute reader Tim had three questions about some areas that we haven’t addressed yet, or at least not fully.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

I. Surface Thoughts

Tim first asks “Is picking up the ordinary surface thoughts of another person a form of illegal intrusion?”  It’s important to emphasize that we’re talking about a private actor here.  A government psychic would generally need a warrant in order to read even someone’s surface thoughts (i.e. what they are thinking of right then) because if there is anywhere a person has a reasonable expectation of privacy it’s their own thoughts.  But what about a private actor like Professor X?  If X-Men: First Class is anything to go by then he does it all the time to chat up women in bars.  Is he breaking the law or just slightly sketchy?

First, let’s define some terms.  Since by “surface thoughts” we mean what the person is thinking of at the moment, the psychic isn’t causing any changes in the subject’s brain or body by reading those thoughts.  In other words it’s non-invasive.  It’s more like a very precise long-distance EEG.  The best real-world comparisons might be eavesdropping, which is generally legal—if impolite—although the eavesdropper may be breaking the law in other ways, such as trespassing.

Taking our cue from eavesdropping we can turn to the law of privacy, which we’ve talked about before in a four part series.  The best fit seems to be intrusion, discussed in the first part of the series.

Intrusion can be summarized as follows: (1) an intentional intrusion, physical or otherwise, (2) upon the plaintiff’s solitude or seclusion or private affairs or concerns, (3) which would be highly offensive to a reasonable person.  Moreover, courts have held that the right to privacy includes psychological & emotional solitude and the intrusion can occur in a public place.  See, e.g., Phillips v. Smalley Maintenance Svcs, Inc., 435 So.2d 705, 711 (Ala. 1983) (holding “one’s emotional sanctum is certainly due the same expectations of privacy as one’s physical environment.” and “the ‘wrongful intrusion’ privacy violation can occur in a public place, when the matter intruded upon is of a sufficiently personal nature”).  Finally, most reasonable people would probably consider having their mind read to be a highly offensive intrusion, especially if the thoughts read were personal or private.

II. Deeper Thoughts and Memories

The second question was about deeper thoughts (i.e. actively plumbing the depths of the subject’s mind or forcing them to recall memories).  This is probably just a more intense form of intrusion, particularly in the case of forced recall (i.e. the subject is not just being passively scanned but rather actively experiencing the memories).  That begins to enter the next category.

III. Mind Control and Memory Alteration

Now we shift gears from mere intrusion to outright assault or battery.  Because of the way the brain works, anything a psychic does that actually affects the mind of the subject must necessarily affect the subject’s physical neurons.  That’s definitely the way it works in the DC universe, as well, as Doctor Mid-Nite testified in Manhunter vol. 3.

If the alteration is harmful or even merely offensive then that’s a battery in tort terms because battery only requires an intentional harmful or offensive contact, which does not have to be a literal touching of the defendant’s body to the plaintiff’s.  For example, many jurisdictions have held that intentionally blowing tobacco smoke at a person can be a battery.  See, e.g., Leichtman v. WLW Jacor Communications, Inc., 92 Ohio App.3d 232 (1994).  Even something as incorporeal as a laser is also capable of touching a person.  Adams v. Commonwealth, 534 S.E.2d 347 (Ct. App. Va. 2000) (Adams is a criminal assault and battery case but the principles are applicable to tortious battery).

And speaking of criminal assault and battery, as we discussed in the comments on the amnesia article, these kinds of psychic attacks may qualify.  In the comments we discussed Missouri law, but it is not unique.  In Virginia, for example, “battery is the actual infliction of corporal hurt on another (e.g., the least touching of another’s person), willfully or in anger, whether by the party’s own hand, or by some means set in motion by him.”  Adams, 534 S.E.2d at 350.  Affecting even a single neuron would seem to qualify as “the least touching of another’s person,” and a psychic attack is definitely “some means set in motion by [the psychic].”

These kinds of psychic attacks may also be grounds for a claim of intentional infliction of emotional distress, especially if the forced actions, forcibly recalled memories, or implanted memories are extreme or outrageous.

IV. Conclusion

Psychics should be careful of how they use their powers.  There are many possible defenses, including consent, necessity, and self-defense and defense of others.  But intruding into another person’s private thoughts or reaching out and touching their mind is not something to be undertaken lightly.

That’s all for this week!  Keep your questions coming in!

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Posted in criminal law, mailbag, torts

Mailbag for May 13, 2011

Posted on May 13, 2011 by | 10 comments

Today we have a question about superheroes who work for the military and the Posse Comitatus Act.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

Repentinus asks about the Posse Comitatus Act and its effects on superheroes serving in the military (e.g. Captain America) or in quasi-military organizations like S.H.I.E.L.D.  First, a bit of background about the act.

Posse comitatus dates back to the common law era and has been defined in the US as “The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases, as to aid him in keeping the peace, in pursuing and arresting felons, etc.” United States v. Garcia, 672 F.2d 1349, 1368 n. 32 (11th Cir. 1982) (quoting Black’s Law Dictionary).  The Act prohibits the willful use of “any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws” except “in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” 18 USC 1385.  Note that although the Act specifies the Army or the Air Force, “the Posse Comitatus Act applies to the Navy through section 375 and 32 C.F.R. § 213.10.”  United States v. Kahn, 35 F.3d 426, 431 (9th Cir. 1994).  The Naval Criminal Investigative Service (NCIS) also falls within the Act despite being primarily staffed and run by civilians. See United States v. Chon, 210 F.3d 990 (9th Cir. 2000).  As a result, Congress granted the NCIS explicit authority to execute warrants and make arrests.  10 USC 7480.  Note, however, that the Act does not apply to the Coast Guard, partly because of the Coast Guard’s historical dual role as a law enforcement agency.  Jackson v. State, 572 P.2d 87 (Alaska 1977).

The final thing to note is this part of the Act: “or otherwise to execute the laws.”  This broader language means that the Act prohibits not just conscription into a posse but also prohibits the military from doing anything “which is regulatory, proscriptive or compulsory in nature, and causes … citizens to be presently or prospectively subject to regulations, proscriptions, or compulsions imposed by military authority” (without explicit Congressional or constitutional approval).  United States v. McArthur, 419 F.Supp. 186, 194 (D.N.D. 1975) (aff’d by 541 F.2d 1275 (8th Cir. 1976)).  Examples of such prohibited acts include “arrest; seizure of evidence; search of a person; search of a building; investigation of crime; interviewing witnesses; pursuit of an escaped civilian prisoner; search of an area for a suspect and other like activities.”  United States v. Red Feather, 392 F.Supp. 916, 925 (D.S.D. 1975).

That’s pretty much a laundry list of typical superhero activities.  However, note the key phrase “imposed by military authority.”  As the court in Chon held, “[Department of Defense] personnel may participate in civilian law enforcement activities in their private capacities, [but] they may not do so under the auspices of the military.”  Chon, 210 F.3d at 993.  As the Chon court explained, civilian NCIS agents “represented and furthered the interests of the Navy, and were delegated the same authority to do so as military NCIS agents. When the civilian world is confronted by agents of the Navy, it is unlikely to make the fine distinctions asserted by the government between military and civilian NCIS agents.”  Id.

Thus, superhero members of the military may engage in law enforcement activities so long as it is clear that they are doing so as private citizens (or to have explicit Congressional approval).  Luckily, most superheroes are quite adept at maintaining multiple identities, so it should be easy to separate out the civilian and military roles via a quick costume change.

That’s it for this week.  Keep your questions coming in!

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Posted in mailbag

Thor

Posted on May 6, 2011 by | 26 comments

So Thor is out. And it’s pretty good. I mean, it’s no Dark Knight, or even Iron Man, but neither is it The Fantastic Four (which, let’s face it, just sucked).

But you aren’t here for a review of the movie as a movie. You’re here for a review of the movie as it pertains to the legal system! At first glance, one might wonder exactly how a movie about an Asgardian major deity might have anything whatsoever to do with the American legal system. You’d be surprised! Spoilers, as always, follow after the break.

Continue reading →

26 Comments

Posted in constitutional law, contracts, insurance, mailbag, movies

Mailbag for April 29, 2011

Posted on April 29, 2011 by | 24 comments

[Be sure to read the update to this post in Law and the Multiverse Retcon #1!]

We have another intellectual property question this week, this time about gene patents and Spider-Man.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

@MrCrumley on Twitter asks: “Have you dealt w/ Spider-Man’s genetically modified dna & the similarities to Monsanto’s suits regarding GM corn?”  Here, MrCrumley is asking about Spider-Man’s origin in the 2002 film, in which he gains his powers from a genetically engineered spider’s bite rather than the traditional radioactive one.  There are a few different issues to consider here, including the patentability of genetically engineered organisms and the nature of gene patents.  First, a brief bit of factual background.

I. Monsanto and GM Crops

For those who don’t know, Monsanto is a large agricultural biotechnology company.  (As it happens the company’s headquarters is about two miles from James’s house).  In particular, it manufactures a wide variety of genetically engineered crops, herbicides, and especially crops that are resistant to those herbicides, thus allowing farmers to spray the herbicides on the crops, killing only the undesirable weeds.

Monsanto requires farmers who buy its seeds to sign an agreement that the farmers will not save and replant seeds from the patented crops, and Monsanto is not afraid to sue farmers who violate that agreement.  The company has sued 145 farmers in the United States, and 11 of those suits went to trial, each time ending in Monsanto’s favor.  This is somewhat unusual because patent infringement cases are generally filed against businesses rather than individual end users.

Perhaps the most controversial Monsanto case occurred in Canada: Monsanto Canada, Inc. v. Schmeiser, 1 S.C.R. 902 (2004).  In that case, the defendant farmer alleged that genetically engineered canola seeds had simply blown onto his fields, and so his subsequent saving and replanting of seeds should not be considered patent infringement.  Specifically, he argued that planting the seeds did not amount to an infringing use of the patented cells and genes.  The Supreme Court of Canada held otherwise.  However, we will focus on US law here.

The question, then, is this: assuming that the genetically engineered spiders were covered by one or more patents, could Spider-Man infringe those patents?

II. The Patentability of Genes and Genetically Modified Organisms

A threshold question is what, exactly, do we mean when we say that the spiders are covered by one or more patents.  People often talk about “gene patents,” but what exactly are they?  In the United States there are two main kinds of claims in gene patents: claims to genetically modified organisms and claims to DNA or proteins produced by DNA.

We should first note that the patentability of DNA sequences is currently the subject of a federal lawsuit, Ass’n for Molecular Pathology v. USPTO, 702 F.Supp.2d 181 (S.D.N.Y 2010) (presently on appeal to the Federal Circuit).  The suit could potentially invalidate all patents claiming an unaltered genetic sequence (i.e. a sequence as it appears in nature, even if the patent claims isolated, purified DNA).

The validity of claims to genetically modified organisms was first recognized in the landmark case Diamond v. Chakrabarty, 447 U.S. 303 (1980).  Although the Chakrabarty case involved a genetically modified bacterium, the Patent Office and the courts have subsequently recognized the validity of patents claiming multi-cellular organisms, including animals.  So presumably a genetically modified spider could be patented.  However, a human couldn’t infringe claims to a genetically modified spider, since, well, a human is not a spider.

So what about claims to the DNA itself?  Claims to DNA generally take the form of “Purified and isolated DNA, wherein the DNA molecule has a nucleotide sequence as set forth in Fig. 1” or “A purified and isolated protein, as an expression product of a transformed host cell containing a DNA molecule coding for the protein, the DNA molecule having a nucleotide sequence as set forth in Fig. 1.”  As you can see, these kinds of claims require a purified, isolated form of DNA, which is not the natural state for DNA in the body, and so Spider-Man wouldn’t infringe such a claim.

Even the second example, a purified and isolated protein (such as the proteins that make up spider silk), wouldn’t apply because spider silk is made up of several proteins.  But one could imagine a patent claiming spider silk produced by a genetically modified organism having a particular DNA sequence.  In fact, a patent application claiming a genetically modified silkworm that produces spider silk was filed in 2010.  So could a patent like that spell trouble for Spider-Man?

We think not.  The patent would likely have to claim a genetically modified spider or another specific organism (e.g. a silkworm or, believe it or not, a goat), which of course would not apply to a human.  A patent that tried to claim a broad class of organisms (e.g. mammals) modified to produce spider silk would be invalid for lack of enablement unless the patent “contain[ed] a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same.”  35 USC 112.  Since genetic engineering is a fairly complex and difficult process, it is unlikely that a patent could describe a general process for modifying organisms to produce spider silk.

The only way Spider-Man could infringe the patent, then, is if it specifically claimed and described a genetically modified human that produced spider silk.  There is no evidence, however, that the scientists in the movie had developed a way to modify a human in that way, and furthermore it is likely that the Fifth and Fourteenth amendments would forbid claims that covered genetically modified humans.  Just for starters, a patent could not grant someone the right to exclude another human from reproducing because the Constitution protects “personal decisions relating to … procreation.”  Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992).  There would be other problems with, e.g, the unavoidability of infringement, since it would be difficult or impossible to cease infringing.

III. Conclusion

Spider-Man is almost certainly safe from a patent infringement suit.  Either the patents simply wouldn’t cover him or, if they did, they would be invalid for doing so.  This same analysis applies to pretty much any superpowered character whose abilities come from genetic mutations or modifications.  While gene patents may be controversial for many reasons, the threat of lawsuits against superheroes isn’t one of them.

That’s it for this week.  Keep your questions coming in!

24 Comments

Posted in intellectual property, mailbag, patents