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I love getting questions and comments from readers! This page is for people who take me up on my offer to analyze their superhero related questions and scenarios. Feel free to send me one of your own (contact@superherolaw.com).

Greetings:

Recently I and some fellow super heroes fell victim to a death trap placed by a notorious super villain.

In this trap, the heroes were trapped in one room and a supposed unconscious known murderous villain in another. It appeared that the rooms were separated by “Questenite” glass.

We awoke from a severe beating at the hands of some of this Super Villains minions, very groggy and feeling the effects of a poisonous gas. The said super villain appeared on a view screen, delivered his monotonous soliloquy in which he gave us a choice to push one button to release the antidote to our room which would route the poison gas only to the other room or push a different button which would do the exact opposite, thereby killing 4 out of the 5 heroes (one of the heroes had life support and was feeling no effects from the gas).

The hero with the life support opted to push the button to save the heroes, his argument being one of a pure numbers game, saving 4 people instead of just one. I was about to push the same button for a slightly different reason, that of saving the lives of heroes that protect the innocent on a daily basis in lieu of a known murderous villain.

As should have been expected, the “villain” in the other room was not the “villain” we expected, but the recently acquitted brother of one of the present heroines. The brother had been genetically altered into a demon like creature that killed several people, but it had been successfully argued that once he was rid of the genetic mutation he was not liable for the actions committed by his altered self. I personally suspect super powered influence on this acquittal decision as it had been witnessed to be done on a previous court hearing.

What legal grounds do the heroes have for self defense/preservation in this circumstance?

Thank you.

Falcon

Falcon,

Thanks for following my blog and for sending me your question.

There are a number of legal theories that serve to immunize an actor from liability for otherwise criminal or tortious conduct when the actor is presented with a situation completely outside their control. An individual must still act reasonably under such circumstances but the threshold for “reasonable” behavior is lowered to the conduct that would be expected of someone faced with a similar exigency and with similarly limited time to act. Immunity provided under these theories is not without limitations and somewhat strict requirements for qualification.

Emergency Doctrine:

When an actor is presented with an emergency and provided insufficient time to exercise the same level of care and prudent decision making as is ordinarily required of a reasonable person, this doctrine can excuse the actor from the liability normally associated with a failure to exercise due care. As with most other legal theories associated with danger, for someone to avail themselves of the benefits and protections of the theory, they must be in danger through no fault of their own. Some jurisdictions may view the act of fighting crime to be an invitation to dangerous situations. Certainly other such ultra-hazardous activities have been shown to fall outside the limit of protection for emergencies. Also at issue in the present situation is the particular poison gas used, specifically as it relates to the time it requires to cause harmful effects to the superhero prisoners. The greater the amount of time provided to your group to make your decision, the less likely it is that the emergency doctrine would apply. Although you may still have been in a dangerous and stressful situation, sufficient time to make a conscious, thought out decision, would negate the rationale for not finding negligence in situations where snap decisions are required. Actual danger is not required, however the apprehension of danger must be reasonable in light of an actor’s subjective mental state and an objective look at the situation.

Ultimately, this theory could protect you and your companions depending on what you perceived to be the risk at the time the decision was made to push the button. Additional facts regarding how you found yourselves in that situation, and at odds with that particular villain, could weigh heavily against an excuse for your actions. With respect to your colleague on life support, as I discussed in my post on self-defense, actors are often afforded the same privileges to protect a third party as they are to protect themselves. (It should be noted that self defense is inapplicable because the force exerted by pushing the button was against a third party rather than the party placing you in danger.)

Duress:

Duress is a defense to unlawful or tortious activity predicated upon involuntary behavior. An actor making a claim of duress admits to committing the act(s) in question but claims that there was no reasonable alternative to their actions. The threat involved to trigger duress must be of certain and imminent serious bodily injury or death, and must involve a harm greater than the harm caused by the resultant crime. Similar to the emergency doctrine, the harm threatened must have come about through no fault of the actor claiming the defense. In the present scenario your superhero team faced serious bodily harm, and most likely death, as a result of the poison. However, as discussed above, that threat’s imminence is undetermined. Also discussed above is the degree to which the team placed itself in a situation of undue influence through their activities as vigilantes. Ultimately, however, there can be no argument that the harm threatened was greater than the harm caused by rerouting the gas because both options lead to death. The difference in the number of lives ended by a choice lies in the sentencing, not in the balance of harm. For this reason duress cannot be used as a defense for murder.

Necessity:

The rationale that you expressed regarding killing a villain to save heroes most closely resembles the theory of necessity. Under this defense an actor argues that their wrongful conduct was necessary to prevent a greater harm e.g. the death of a criminal to protect 3 crime fighters. For the theory to apply, the harm avoided must be greater than the harm imposed and the situation must have been created through no fault of the actor’s. These two elements, as discussed above, probably could not be met by you and your friends. Additionally there must also be no reasonable alternative to the cause of action taken and the conduct must have been carried out for no longer than was required to abate the danger. Both of these elements are easily satisfied by the team of heroes at hand.

The scenario you outlined is a great example of the dangers a superhero must accept, both physical and legal, when deciding to fight crime. You may also want to review my post on vicarious liability to determine what effect a member of your team pushing that button had on the rest of you.

I should also mention that with respect to your defense in this scenario the identity, or criminal background, of the victim is irrelevant (the fact that he was a relative of someone present could, however, be relevant to a claim on behalf of his sister). The law treats the life of everyone the same and reserves the role of executioner for the State.

I hope this information helps, keep fighting the good fight!

Zack
Superhero Law

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