Was it Robbery when Scott Lang took the Ant-Man suit?

Ant-Man starts with Scott Lang just getting out of prison. Scott owes back child support (Incarceration alone doesn’t stop child support), which we assume he was unable to pay while in prison. He tries to go straight so he can make up those payments, gets fired from Baskin-Robbins, and his ex-wife threatens to withhold visitation of their daughter, Cassie, until it’s all paid. So, Scott breaks into a house, steals the Ant-Man Suit, tries to return it, gets arrested for burglary, ends up in jail, escapes, goes on the run, saves the day, and it all gets worked out at the end of the movie. But did he actually commit burglary?

Scott likes to point out in the movie that he went to jail for burglary, and not robbery, because robbery involves threat where burglary does not. But what are the elements?

What are the elements:
Under the California Penal Code (459), Burglary consists of
1) Entering
2) A structure specified by the code, such as a house,
3) With the intent
4) to commit a felony once inside.

What actually happened:
1) Scott entered Hank Pym’s house through a window, which satisfies element one.
2) A house is a structure specified by the code, satisfying element two.
3) Scott intends to steal whatever is in the safe: gold, jewels, money before he enters, satisfying elements three and four.

Verdict? GUILTY! Right? Maybe not.



It looks like an open and shut case, except that Hank Pym wanted Scott to go into his house and take the suit. Which means the Scott has a common law defense to burglary that he can assert, because it’s not stealing if they wanted you to have it.

And this is actually the case in Ant-Man because Hank Pym goes through an elaborate ruse so that Scott will take the suit, which he then tells him to keep. As he says at one point to Scott, “I go to all the effort to have you steal my suit and then Hope has you arrested.”

In other words, Scott spent over half the movie on the run from the police for taking an item that Hank Pym wanted him to have and, on acquiring, Hank told Scott to keep it. And, Hank Pym could cleared everything up with one phone call to the police saying, “I gave him the item he took from my house.”

And the second time he broke in, when Hope called the police, was not burglary because he had no intent to commit a felony. He may be guilty of other offenses, such as trespass, but he wouldn’t be guilty of burglary.

Sidenote: Can Maggie withhold visitation because Scott is behind on child support? 

The catalyst for the entire burglary is the idea that Maggie won’t let him see his daughter, Cassie, until Scott catches up on child support.  But child support and parent time/visitation are independent obligations. Parent time is not contingent on whether child support is paid. And child support cannot be withheld just because someone isn’t receiving parent time/visitation. And Paxton can’t arrest him for being behind on child support without a court’s approval. So….