The Flash
Season 1, episode 5: Plastique

In The Flash Season 1, episode 5, Bette, also called Plastique, makes an appearance. It was a fun episode to watch. There’s a showdown between Eiling and Plastique; the villain essentially gets away; and we get to see The Flash run on water. However, at the end of the episode Barry says he watched Eiling murder Plastique. Eiling shot Plastique, but was it murder…or self-defense?

In this corner: Plastique
Plastique turns anything she touches into a bomb. Briefcases. Steelies. Even the clothes the Flash was wearing. She is Away Without Leave (A.W.O.L.) from the her unit, having absented herself from her unit, organization, or place of duty as required at the time prescribed. (Uniform Code of Military Justice, Article 86. Absence Without Leave).

In this corner: General Eiling
Eiling is Plastique’s commanding officer. As a commissioned officer on active duty, has the authority to apprehend her. (Rules for Courts-Martial 301 (Hereafter R.C.M.)) Further, an apprehension is made by clearly notifying the person to be apprehended that they are in custody, although it can be implied. (R.M.C. 302(d)(1)) Any person authorized to apprehend “may use such force as is reasonably necessary under the circumstances to effect the apprehension. (R.M.C. 302(d)(3))

Did Eiling provoke her into attacking?
No.

General Eiling is a superior officer, so he has authority to apprehend her. Plastique knows she is A.W.O.L. and even says “I’m here to turn myself in.” This is an acknowledgment that she is going to be taken into custody. And Eiling, as an individual authorized to apprehend can use whatever force is reasonable necessary to bring her in.

In an attempt to apprehend her he has used non-lethal tranquilizer darts and flash-bangs up to this point. He also tries to talk her into coming peacefully, by telling her she can save lives if she’ll come back. Plastique responds with “The world will be a safer place once you’re no longer in it” and then she throws six steelies (three from each hand) she has charged to explode towards Eiling and his men. On impact Eiling and his men are thrown to the earth. We don’t know how many are hurt or killed.

Too-much-talk-not-enough-explosions

 

U.S. Code §1114 says that killing or attempting to kill an officer, employee, or member of the uniformed services while they are engaged in their official duties will be punished as murder or attempted murder.

Did she actually attempt murder?
Yes. Unlawfully killing a human without justification or excuse through a premeditated design to kill, or the intent to kill or inflict great bodily harm, counts as murder under the R.M.C.

Plastique intentionally threw explosives at Eiling and his men. It was an unlawful act because she has no legal justification, such as self-defense, for using that kind of force. It was premeditated because she: 1) went out to get the steelies, 2) knew once she touched them that they would explode, 3) intentionally weaponized them, 4) let Eiling know where she was and then waited for him, and 5) concealed the weaponized items in her hands, instead of keeping them in something like a bag in case they weren’t necessary. Finally, once Eiling and his men were thrown to the ground by the explosions she didn’t retreat, instead she advanced towards him with arms outstretched to finish the attack.

The show doesn’t resolve what happens to those soldiers, we just see them lying on the ground and not moving. Because she has the intent to kill, or inflict great harm, on Eiling, if they were killed in the process she will be guilty of murder based on transferred intent. For now, let’s give Plastique the benefit of the doubt and assume none of the soldiers were killed.

Unimportant-characters-should-die-over-there

 

When she throws the balls as General Eiling and the soldiers under his command, that is an overt act intending to inflict grevious bodily harm or kill. She reinforces this with the threat “The world will be a safer place when you’re no longer in it.” An “act, done with specific intent to commit an offense…amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense.” (R.M.C. part 4, Article 80) Finally, she doesn’t just make the balls explosive she actually throws them at Eiling and his men. And it’s an act intended to effectuate a certain result, his death or serious bodily injury.

When Eiling shot Plastique was it self-defense or murder?
Self-defense, probably.

Self-defense is a defense to homicide if an individual: (1) reasonably apprehends death or grevious bodily harm is about to be wrongfully inflicted on them; and (2) they believe they used the necessary force to protect themselves from death or grevious bodily harm.(R.C.M. 916(e)(1).

This is a two part test.

1) Objectively, would a reasonably, prudent person have been under the apprehension they were about to die. It considers height, weight, if you can safely retreat, if your attacker can they blow you up just by touching you. You know, the usual. Plastique knocking Eiling to the ground through an explosive blast, then approaching him while he’s helpless qualifies as apprehension, assuming Eiling has enough awareness to understand Plastique is intent on killing him.

2) Subjectively, how much force was actually necessary to repel the attack? This takes items like intelligence and education into account. Eiling is in a good position to determine what an individual under his command is capable of, as shown by his speech on how she can keep others from dying through her powers. He knows what is necessary to stop her in the event she turns hostile. He knows Plastique can make things explode by touching, he knows she just threatened to kill him, he knows she intends to kill him.

Anything that would disqualify his defense?
Let’s take a look.

Was he the agressor?
Under normal circumstances, drawing a gun on someone makes the person to draw the aggressor. However, here she’s a known fugitive whose very touch is dangerous, and he’s been given the lawful authority to bring her in using whatever force is reasonably necessary.

Even assuming he did not have the authority, he seemed intent on talking her down. And “an initial aggressor” he can still “regain the right to act in self-defense if the other party escalates the degree of force, or if the initial aggressor or the mutual combatant withdraws in good faith and communicates that intent to withdraw.” (United States v. Behenna, 12-0030 (C.A.A.F. 2012) Here, it went from non-lethal talking by Eiling to escalated lethal action by Plastique who threw explosives.

We’re they engaged in mutual combat?
No. He could legally use force, but opted to talk instead. She was not not in a legal position to use lethal force and still threw the first bomb, literally.

Did he provoke the attack?
No, even though no one likes a gun pointed at them.

She was A.W.O.L. and he had the authority to apprehend her using whatever force was reasonably necessary. Although the soldiers with Eiling moved forward at his command they did not make a move to attack. She also knew from the encounter with the doctor they were using non-lethal means of attack. She also listened long enough to know Eiling wanted her to return to duty willingly.

Did he have a duty to retreat?
No.

He was under no duty to lawfully retreat, because he had the necessary authority to try and apprehend her after she went A.W.O.L. And, after she attacked and approached he was not in a position to retreat, he got one shot off and then fell unconscious.

Run-Away

 

Was he allowed to use lethal force?
Yes, if he determined that she was going to kill him.

A death threat, followed by an attack using explosives, followed by an apparent approach to turn something on him into an explosive counts. That allows him to use force appropriate to the circumstances, even if it is deadly force. (See United States v. Lewis, 65 M.J. 85, 88 (C.A.A.F. 2007))

Was Eiling justified in shooting Plastique?
Probably yes.

After she threw explosives at Eiling and his team, and they were injured and knocked to the ground, Plastique then approached Eiling with her hand out as if she would touch Eiling or the soldiers with him, thereby causing another explosion. He tried to talk her down, she escalated by attacking with explosives then approaching to finish the job, he shot her in defense of his own life and in defense of the lives of others. Seems open and shut case of self-defense, except…

Does the Flash intervening between Plastique’s approach and Eiling shooting her matter?
Yes, if voluntary abandonment occurred.

Voluntary abandonment occurs when a person stops the intended crime because their conscience kicks in. (They can still be guilty of a lesser offense.) It doesn’t occur if they stop the crime for another reason, like they’re unable to complete because something else interferes.

In between the time Plastique approached Eiling, and the time Eiling shot her, the Flash showed up, and tried to talk her down telling her that “You’re not a murderer. Don’t become one now,” (We’re still pretending the soldiers didn’t die) and that’s when Eiling shoots her.

Here Flash appeals to her conscience, and her momentary hesitation would suggest that abandonment has occurred. This is further implied by her statement of “I’m glad you stopped me” after she gets shot but before she dies.

However, because she had made no overt motions, signs, or statements to let Eiling, or others, know she had voluntarily abandoned her course of action, it would probably still be considered self-defense in a court of law. And, it could be argued it wasn’t true abandonment because she only stopped her attack when The Flash intervened to prevent her from completing her crime.

Flash_Speed_Plastique

 

Did Plastique act in self-defense when she attacked Eiling?

No.

She had no reason to think she would be killed or suffer grevious bodily harm in the moment where General Eiling was trying to talk her into coming back. Further, although the soldiers had weapons drawn, they had previously used non-lethal attacks and there was no reason to suspect that had changed.

Even if Eiling was the aggressor, she escalated the situation from words to lethal attacks when she used the explosives, which would disqualify her from a self-defense as an actual defense. Further, he was within his legal rights to attempt to apprehend her based on her being A.W.O.L.

And Dr. Well’s, who put Plastique up to the attack, just rolls away?
No. Talking someone else into committing a crime doesn’t mean your innocent of the crime.

The night before the confrontation occurs, Plastique seemed like she was going to walk away from the fight when she was at S.T.A.R. Labs. Dr. Wells rolls in, gives her the sheep dog speech and, says “Kill Eiling. One last mission and then you go home.” Based on that, she decides that she is going to kill General Eiling so that he will stop “attacking her flock.”

Here’s the thing, “Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” (R.M.C. part 4, Article 77(1)).

What is a principal? That’s any actor who is primarily responsible for the crime being committed.

Dr. Wells counseled her to go out and kill Eiling. Eiling is an active, commissioner officer in the U.S. Military, on military business (tracking down an A.W.O.L. soldier). When Dr. Wells puts the idea in her head, using language she’ll understand, and she then acts upon it, he has induced her into action. When Plastique then acts on that inducement, Dr. Wells can likely be held responsible as a principal in the commission of the act. He didn’t directly try to kill Eiling but he talked Plastique into doing so, and you’re not allowed to do that.

So, Barry’s wrong. It wasn’t murder. Eiling acted in self-defense. But if he’s looking for someone to finger for murder he might want to look a little closer to home.

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Brad Blanchard

Brad Blanchard is a Utah based attorney whose practice focuses primarily on legal compliance, although his employer occasionally sets him lose to do litigation and trial work to help him keep his sanity. Outside of work he has several independent researchers (ie. children) who keep him updated on geek culture (ie. they argue over obscure facts and speculate on new content with one another at the dinner table).

2 COMMENTS

  1. Was General Eiling Already A Criminal When He Killed Plastique?‏

    Playing devil’s advocate here… Did General Wade Eiling’s (and Harrison Wells’) inhumane experiments on a lab animal (Grodd) as well as further implied unnecessary experimentation (and attempted weaponization of) upon Plastique herself already make Eiling a criminal when he killed her? If yes, did he still have legal authority to attempt to apprehend an AWOL soldier?

  2. Great questions! Personally, I like to think he was already a criminal when he killed Plastique, because he’s so much fun to hate. Legally, it’s not so clear.

    The experiments on Grodd probably aren’t criminal, because Grodd is an animal, and animals are considered property. That narrows the list down of war crimes to wantonly destroying property and they basically own Grodd, so that one’s a hard sell. It’s possible he could be subjected to discipline under article 134 of the UCMJ for Abusing a Public Animal. Even here, assuming a tribunal found that General Eiling was guilty of conduct that was to the prejudice and good order of the armed forces or was of a nature to discredit the armed forces, the maximum punishment for this is 3 months jail time and reduction in pay by 2/3rds for up to 3 months.

    The weaponization of Plastique is a closer call. They didn’t intentionally weaponize her, however they did conduct experiments on her. Whether those experiments were illegal would probably depend on whether or not fully informed express consent that was obtained in advance. (10 USC 980(a)) However, The Secretary of Defense could waive the prohibition for Plastique if they thought it would advance a medical product that would benefit her, and was carried out in accordance with applicable laws. (See 10 USC 980(b))

    Ultimately, we just don’t have enough information on her to make the call. ie. informed consent, or if there was a waiver by the Secretary of Defense based on the nature of the experimentation. Maybe they were trying to figure out how to turn her power on and off, which would certainly benefit her; however, it’s more likely Eiling was probably trying to duplicate her power which might not benefit her. We just don’t know. What we do know is that she later came to regret the experimentation.

    If she came to regret it and then they continued to experiment that would be unauthorized. Assuming it was unauthorized (and personally I’d like to think it was because it makes her more sympathetic, and him more calculating), that would make General Eiling a criminal when he killed her. However, I can’t find anything that says that would retroactively invalidate his actions in trying to apprehend her. It would only invalidate his actions going forward.

    If he had been discharged from the military before the encounter then he would no longer be on active duty (R.C.M. 302(b)(1)) and would have no authority to apprehend.

    If a trial just resulted in a demotion then they matter becomes iffy, and would depend on what his rank was relative to hers when he attempted to make the apprehension.

    So, we’re not sure if he was a criminal when he killed her. But, assuming he was, if he hadn’t been brought before a tribunal on the matter that stripped him in some way of his right to apprehend, he probably still had authority to bring her in.

    Think I missed something? Or got something wrong? Let me know!