Dr. Horrible – Gun Manufacturer

As already established, I love Joss Whedon.  While Buffy will always be my first love, I think everything he does is great, each in its own special way.  Dr. Horrible’s Sing-Along Blog is fantastic for so many reasons, including: (1) its inspiration in the 2007-08 Writers Guild Strike; (2) its music; (3) its use of Neil Patrick Harris; and (4) Joss’s classic move of turning convetion on its head, in this case, by making the hero an insufferable stuffed shirt. (Nathan Fillion is great as Captain Hammer but he’ll always be Johnny from Two Guys, a Girl, and a Pizza Place to me, while Ryan Reynolds will always be Berg.)


In addition to a reputation for excellence, Joss also has a well-deserved rep for killing off beloved characters.  In Dr. Horrible, of course, [SPOILER ALERT!] he killed the adorable, sweet, much loved Penny.  And while he killed her by impalement (a possible MO, per Josh, my partner in geekdom), it was as a result of the misfire of the Death Ray created by Dr. Horrible, although it was Captain Hammer who pulled the trigger.  Nevertheless, Dr. Horrible got the credit, in the eyes of the Evil League of Evil, for murdering Penny.  The question for The Legal Geeks, however, is what would the courts say about Dr. Horrible’s liability for Penny’s death?

In this situation, Dr. Horrible’s role would be similar to that of a gun manufacturer.  He created the Death Ray but he didn’t pull the trigger.  Indeed, he didn’t want Captain Hammer to pull the trigger, probably because the Death Ray was pointed directly at him at the time.  (Captain Hammer’s willingness to fire on a clearly-vanquished enemy can be compared to Captain Mal Reynold’s shooting of unarmed opponents.  This unusual willingness to have heroes act in morally grey ways is another Joss trademark, and one Josh and I discussed in comparison to George Lucas’s redo of Han Solo’s cantina gun shot.)

Death Ray

Dr. Horrible could argue that, as a gun manufacturer, he’s covered under the Protection of Lawful Commerce in Arms Act (the “PLCAA”), enacted by Congress in 2005.  This Act was passed in part to prevent lawsuits against manufactures of firearms “for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed or intended.”  This statute, which exempts manufacturers of legal, nondefective firearms from liability in products liability actions for criminal use of the firearms, would presumably not apply here for two reasons.  First, while semiautomatic assault weapons may be legal, a “death ray” is probably not a legal firearm.  Second, the death ray was presumably defective, as it misfired dramatically after a mere drop to the floor (Dr. Horrible wasn’t the best at making these weapons – the Freeze Ray didn’t work consistently either).

Assuming the PLCAA doesn’t protect him from liability, the question is whether Dr. Horrible can be held liable for the product he created.  Dr. Horrible lives in California, where the general rule is that a manufacturer can be held liable for dangerous products, although there is no duty to warn of a product’s known risks or obvious dangers.  With regard to the Death Ray, the dangers of firing it are obvious, although death by impalement would not be an obvious danger, so Dr. Horrible couldn’t use that general rule to protect him from a suit by Penny’s family.

A key question for the jury in a case brought against Dr. Horrible by Penny’s family would be whether the Death Ray failed to perform as safely as an ordinary consumer would expect when the product is used in an intended or reasonably foreseeable manner.  Firing the weapon at a bad guy (by a hero, no less) is arguably a reasonably foreseeable use of the death ray.  That same gun exploding into deadly shrapenel, however, would not be an example of a gun performing as safely as an ordinary consumer would expect, thereby making Dr. Horrible liable.

If a negligence claim was brought in addition to a products liability test, the issues would be the same, although Penny’s family would also have to prove that the defect in the death ray was caused by Dr. Horrible’s negligence.  Again, a death ray that explodes after being dropped once is a poorly designed death ray and Penny’s family would have a strong argument that Dr. Horrible was negligent in designing the death ray.

Of course, this entire discussion may be moot because, as a result of Penny’s death, Dr. Horrible became a powerful evil leader.  Captain Hammer, meanwhile, was reduced to many hours in intensive therapy and was unable to stop Dr. Horrible.  So the courts may not have the capability to impose a judgment against Dr. Horrible — making him truly judgment-proof.

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Jessica has been litigating business and IP disputes for the past decade. During that time, she’s dealt with clients, lawyers, and judges who have varying degrees of appreciation for the challenges of managing discovery in an electronic age. Until the fall of 2011, she was an attorney at a large, Texas-based law firm, where she represented clients in state and federal court nationwide. That fall, she made a long-desired move back to the Midwest and is now a partner at Hansen Reynolds Dickinson Crueger LLC, a litigation boutique based in Milwaukee, Wisconsin, where she continues to litigate while also consulting with business and law firms on e-discovery issues (before, during, and after litigation arises).


  1. Why no discussion of Captain Hammer’s guilt? (He’s still sane at the moment he pulls the trigger. Felony murder rule? Could he have taken Doctor Horrible into custody without it, or had Horrible demonstrated an ability to escape in the past?)

    Can Horrible be sued as a weapon supplier, given that the weapon was not intended for sale and was stolen? He could argue he would have known better than to fire it after it was dropped. (Attractive nuisance? Should he have known Hammer was unable to resist firing it if he got it?)

    I think this is a much more lucrative, er, complex case than you have implied.

    • You raise valid points. I think there are huge “provocative act doctrine” or “transferred intent” issues, because Dr. Horrible went to the opening of the homeless shelter with the intent to kill Captain Hammer.

      In People v. Gonzalez, 54 Cal. 4th 643 (Cal. 2012), a Defendant was convicted of first degree murder of her boyfriend, because they planned to kill another person, who in turn ended up killing the boyfriend. The Defendant’s actions included handing her boyfriend a loaded gun. However, the boyfriend ended up fighting the intended victim, who was able to get the gun away from the boyfriend. The intended victim killed Defendant’s boyfriend.

      A jury convicted, and the Court of Appeal upheld the finding, based on the record contained ample evidence to support a conclusion that defendant committed a provocative act that caused the intended victim to kill defendant’s boyfriend.

      A similar argument can be made for Dr. Horrible’s responsibility for Penny’s death, because he went to the homeless shelter opening armed with a “death ray” and the intent to kill Captain Hammer. The fact Hammer got the weapon away from Horrible should not excuse Horrible from criminal liability of Penny’s death based on the code sections defining murder and case law.

      However, there are civil and criminal liability issues for Captain Hammer’s actions as well, since he crossed the line from self-defense to an on-the-spot execution of Dr. Horrible. Hammer’s responsibility for Penny’s death would likely be on a “transferred intent” theory (and possibly a first degree murder conviction). There are of course other charges a fictional DA could bring against both Hammer and Horrible for Penny’s death, but those seem like the major theories.

    • Josh’s response is great, but I thought you made some good points that I wanted to respond to as well. First, I don’t believe the felony murder rule would apply to Captain Hammer as that would only apply if he had killed Penny during the commission, or attempted commission, of an inherently dangerous felony. Instead, if I were Captain Hammer’s attorneys I would argue the “Han Shot First” defense although that defense may not work (as he had already clearly defeated Dr. Horrible). Second, as Josh mentions, the prosecutor may try to argue that Captain Hammer is guilty for Penny’s death under the doctrine of transferred intent (which says that a person who acts intending to kill victim A but who accidentally kills victim B instead may be guilty of B’s murder). While such a doctrine doesn’t require an intent to kill the accidental victim, Captain Hammer’s attorney could argue that Penny didn’t die from a gun shot – she died because the defective weapon virtually exploded in Hammer’s hands. I haven’t been able to find any caselaw to support that idea (that a defective weapon can trump transferred intent) but I believe a jury would find that argument very convincing.

      As for Dr. Horrible, I’m not sure why you’re mentioned him being sued as a weapon supplier when he could clearly be held liable as the manufacturer of the gun, under the theory I presented in the post. The attractive nuisance argument doesn’t seem applicable as Hammer’s not a child and clearly understands the known and foreseeable risks of firing a gun.

      Thanks for the comments!

  2. Another issue, however, is that Dr. Horrible did not mean for the death ray to be obtained and used by anyone else. So all this talk of the “ordinary consumer” is moot because the gun was clearly a prototype and not intended for the ordinary consumer. The only reason it appeared in the hands of the ordinary consumer was that it was stolen.

    This gets into the issues of trespass. To what degree are land owners required to provide for the safety of trespassers? To what degree is the owner of a machine required to provide for the ability of those who steal it or use it without permission to do so safely? Would the owner of a nuclear power plant be held liable if someone broke in and pressed the wrong button, causing a meltdown? Perhaps, but not because of its failure to provide proper training to would-be thieves. The liability, in that case, would seem to be more about providing better security against someone breaking in. There is a level of responsibility, when working with dangerous things, to make sure that they don’t fall into the wrong hands. This means guards and good fences and locked doors for the control room of a nuclear facility. For a portable ray gun? A more difficult challenge, but certainly that challenge is a responsibility for the one bringing it into public, and if Dr. Horrible didn’t think he could reasonably guarantee that the gun would not be improperly accessed, he should not have taken it into public.