Ahoy, comic-law fans! It’s time for a new installment of “Law & Comics,” wherein we examine the legal world through the eyes of the best thing in the world, comics. This isn’t intended as nit-picking, but to provide a richer background (or somtimes, needed explanation) for the stories.
In She-Hulk #10, star lawyer Mallory Book (who was graduated summa cum laude from J. Reuben Clark Law School at BYU) is interviewing a potential client, the Gray Gargoyle. She’s become known lately for representing super-villains against the superheroes that punch them in the mouth.
Query: Can Mallory do for her potential client what she has suggested?
There’s several things going on here, and I’ll try to address them in the most logical order. First, the Gray Gargoyle tells us what predicated his confrontation with Thor Girl:
It is an outrage, I tell you. Had I committed a crime? No! I was casing the diamond exchange. Since when is casing . . . ?
The Gargolye is probably about to say “since when is casing illegal?” “Casing” in and of itself isn’t necessarily illegal. However, it may be the basis of probable cause to search a person; yet standing alone, just “acting weird” may not be enough. People v. Burton, 848 N.E.2d 454, 458-59 (N.Y. 2006) (“accused can raise a factual issue simply by alleging that he or she was standing on the street doing nothing wrong when the police approached and searched and discovered contraband in the process”) (internal quotations and citation omitted).
What casing can do, added with other facts, is to provide the basis for a warrant to arrest a suspect or begin police surveillance of them. See People v. Seney, 316 N.E.2d 335, 335 (N.Y. 1974) (eavesdropping warrant proper for suspected member of burglary ring when, among other facts, suspected burglar “was also observed by police cruising in his automobile in a neighborhood of estates, driving repeatedly over the same courses, suggesting that he was ‘casing’ the homes”).
What’s a tough call here is that supeheroes, unlike the cops, can just go on in and whomp folks in the mouth, and that’s what Thor Girl did. The Gargoyle is using the time-honored criminal defense of “I weren’t doin’ nothin’,” even though he does implicitly admit to Ms. Book that he was contemplating a crime.
Let’s assume for our purposes that Thor Girl (who we know is licensed under the Superhuman Registration Act, or “SRA,” that has been adopted by the U.S.A. in the Marvel Universe’s so-called “Civil War“) observed this behavior. Let’s further assume her registration under the SRA allows her to act in some manner as a law enforcement official (although this may not be the case). I think it would be a close call at this point to determine if Thor Girl acted without probable cause to whomp the Gargoyle up in the mouth.
If she did act with probable cause, the SRA likely has a type of “hero immunity” in it which will shield her from civil liability, much in the way police officers and firefighers, among others, enjoy “qualified immunity.” This means Thor Girl may not be liable for whomping, and it would be a tough case to push.
Ms. Book also says that she thinks she can get Thor Girl to serve time. Unless she has some high-placed friends in the D.A.’s office, this is not going to happen. There seems to be a confusion between the two systems at work within our legal system: the civil world, where plaintiffs sue defendants for money and other damages, and the criminal world, where the state or government prosecute individuals for criminal acts.
The confusing thing is that sometimes people can sue in a civil context for a criminal action. For example, let’s say you’re at your local restaurant one night, and in the parking lot you’re attacked by a criminal. In some jurisdictions, you may have a civil suit against the restaurant if they knew of the criminal or knew there was a lot of criminal activity.
However, you can’t sue to have somebody put in jail. You can request the police pursue the issue, but in a crowded place like Marvel’s New York, I found it unlikely that the folks in blue are going to go after a hero for simple assault on a known super-criminal.
What about Ms. Book’s next assertion—that they might be able to “out” Thor Girl? Again, I haven’t read the text of the SRA (um, because it’s not real, although I’m debating inviting Professor Fury to write one with me). But I highly doubt that it would provide for the exposure of secret identities that were revealed to the government. In fact, I would expect that as a counterbalance to disclosure and as a further incentive the government would take strong steps towards protecting that information.
Ms. Book’s analogy to the “overzealous policeman” is also inapposite. She’s likely talking about civil requests through interrogatories, requests for production, or depositions for information about an unknown assailant. That is information that is not protected by any privilege that I know of (although sometimes it is used in the national security context), and those persons also do not act in secret.
Thor Girl does have an interest in the non-disclosure of her identity and she does work in secret. Again, I think the SRA would prohibit disclosure. In fact, I find it doubtful that a lawyer might even discover that information through any conventional legal means, as it is likely deeply classified information.
You might say, man, this academic stuff is boring! How much money would GG get if he did sue?? Ultimately, the Gargoyle may have a suit against Thor Girl, if he can jump through the hoops to prove there was no probable cause. However, his suit is only going to be predicated based upon the intentional tort of battery. He doesn’t look too busted up on-panel, and again, if can even jump through the hoops to maintain suit, there’s not going to be a lot of damages offered before the jury—not to mention that a jury is going to be unlikely to award money to a supervillain who was beat-up by a super-hero. (I also doubt they’d look favorably on an emotional distress claim).
There’s no way Ms. Book should take this case on a contingency contract, which most personal injury actions use, because it’s unlikely there would be a good recovery (since there’s no real damages), and the cost of litigation through the uncharted waters of the SRA could be high. Any award could certainly be appealed, as the SRA is brand-new and any decisions based upon it would certainly be open to appellate scrutiny.
Conclusion: It’s a loser, Mallory! Be nice to the Gray Gargoyle, refer him down the street, and get to work on some real cases.
Bonus Query pt. I: The Gray Gargoyle is French; does that mean he can’t sue Thor Girl in America?
Without going into insane detail, no, the suit is likely fine in at least New York district court (the federal court), and probably in the state court (since the issue in question happened on New York soil, and all the witnesses and evidence are likely in New York).
Bonus Query pt. II: Is Ms. Book treading into awkward ethical territory by suggesting an unrealistic outcome to her client?
This is a sticky one, and I’m going to punt and address it on another day. While there may not be explicit prohibitions on communicating unrealistic goals to the client, it is another to base a lawsuit on them (there are often multiple ethical, rule-based, and statutory prohibitions on bringing lawsuits with little merit, no matter what you hear from Congress). The one thing I’ve always found is that artificially inflating the expectations of clients can really bite you in the rear later on, as the results you procure for them may be out of line with a long-time expectation.
And when the client can turn you into stone with a mere touch? I would counsel great caution in suggesting the result of a case!
No-Prize!: Mallory Book is a highly competent lawyer, but she is dealing with three traumatic events that are likely influencing her judgment. First, she was terribly injured in a metahuman battle. Secondly, her injuries have left her in a wheelchair, and she has expressed great anger towards the costumed “heroes” she blames for her injuries. Third, it seems that a few issues back Starfox put a “spell” on her that has seriously impeded her actions.
So in her fervor to destroy heroes, she’s going overboard and overreaching.
Previous Law & Comics entries: She-Hulk #9 and Jonah’s fraud case against Spidey.