Law & Comics: She-Hulk #10 (“I Married a Man-Wolf!”) and the Superhuman Registration Act.

faked by Thursday, August 17th, 2006

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.


mallory1.jpgmallory3.JPG

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.

PrettyFakes legal disclaimer.

5 Responses to “Law & Comics: She-Hulk #10 (“I Married a Man-Wolf!”) and the Superhuman Registration Act.”

  1. Good stuff yet again! You know, I find it hard to believe that there aren’t outstanding warrants for GG and others of his ilk, in Europe if not in the US. And didn’t he escape from the Raft way back in New Avengers #1?

  2. hud says:

    I have at least two questions.

    1. “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.” it sounds here as if you are suggesting that vigilante-ism would, if not accepted, be ignored by the police. The SRA notwithstanding (I know pretty close to nothing about it) the police don’t seem to take too kindly to civilians “taking things into their own hand.” Maybe I’ve watched too much Law and Order but “the evil DA” (as my grandfather lovingly calls Jack McCoy) pursues this stuff all the time.

    2. This question is, for me, more interesting. Considering that we are talking about super-heroes and super-villians is attacking someone with a hammer really the same kind of assault as me attacking you with a hammer. I can kill you with a hammer but me hitting She-Hulk or Thor-Girl or X-Chromosome Green Lantern Queeny doesn’t really carry the same threat of harm. I am not asking if, specifically, that there should be a differenet set of laws concerning super-human battles but rather if the law is flexible enough to reconize that one super-human throwing another super-human off a building is not attempted murder. Basically, it seems that a fight between the Grey Gargoyle and Thor-Girl is nothing more than fairly innocuous bar fight. Sure, bar fights can go bad and sure, hitting somebody is still assault, but is it really anything other than a misdeanor?

  3. gorjus says:

    Hud, interesting points. I am making the assumption that the heroes (even second or third tier ones) are welcomed by the police, or that their conduct is explicitly or implicitly sanctioned. Now, with the SRA (which purports to move them away from being straight-out vigilantes), the heroes have some sort of legitimacy. It would be comparable, possibly, to a police officer deferring to a federal marshal (or working together).

    On your second point, I’d say that the law would treat the criminal act itself the same, but different defenses might be in play. With more detail: let’s say I’m the vigilante the Punisher, and I have conspired and admittedly attempted to kill a person known as Impervio. The police bring me up on charges of attempted murder.

    However, a defense that my attorney (the ubiquitous Matt Murdock!) might employ is that my actions would have been frustrated by Impervio’s invulnerability, and he was never in any real danger.

    That’s likely the most cost-effective way of dealing with the issue of people who have differing levels of strength and invulnerability. Note, too, that the “eggshell head” rule would still be in play. That is, just because Agent ZX thinks I’m vulnerable when she punches me in the stomach doesn’t excuse her from being criminally and civilly liable if that punch kills me.

    The defense there would be “a punch in the stomach of a normal superhuman wouldn’t kill him!” The general rule is, though, that one takes the victim/plaintiff as one finds them—invulnerability or eggshell skull, one will have to deal with the consequences of one’s actions.

  4. Polly says:

    pretty dead on…i’d have added a few “HELL NO! I WON’T TAKE THAT CASE!” comments. as for your ‘access to NY State/US Federal Courts’ issues…is Thor Girl european? does that have an effect? i can’t recall that far back right now, but some combination of this (i think) can leave you without access to the courts.

  5. gorjus says:

    Um, as far as I can tell, she’s an alien from another world. If she were European, she might have had a forum non conveniens argument that New York was too remote a forum for her, and I suppose she might have a very cosmic one regarding her home planet.

    Again, though, I think that because the transactions and occurrences happened in NYC, and the witnesses and all the evidence are centered there, it should likely stay in that jurisdiction.