Jessica and I loved Marvel’s Luke Cage on Netflix. Here is our first podcast discussing the first three episodes of the show. We focus on Luke’s duty to warn attackers, RICO, Pop’s barbershop, and our impressions of the show. We also discuss the final issue of the original Heroes for Hire comic about Luke Cage and Iron Fist.
The Doctor Strange story in the 1987 Strange Tales series by Peter Gillis, saw Doctor Strange killing an innocent person with black magic to defend the Earth. Stephen Strange has to compromise his soul in order to defend humanity with a significant body county.
The comic picks up with Doctor Strange’s life going into free fall after defeating Urthona. Strange had to destroy most of his white magic artifacts in order to save his friends Rintrah, Topaz, Wong, and Sara Wolfe. This left the Earth open to attack by ancient evils that had been held at bay by the now destroyed talismans.
A Water Elemental that once ruled the Earth with other ancients attacked Doctor Strange at his mansion. This demon had unleashed a storm that was having extreme effects on New York City, a farm in Ohio with giant worms, and a fishing vessel that had a giant hole ripped in its nets.
The Water Elemental claimed his storm would cause New York City to stop within a day, within a week drown, and within a month, an unstated horror. The demon effectively was threatening a new Great Flood on humanity. Strange Tales, volume 2, issue 2, page 9.
The demon possessed a man named Martin Fein. The Elemental told Strange how it possessed Fein and that all of humanity would “scream like poor Martin,” unless Strange stopped the demon. Strange Tales, volume 2, issue 2, page 10.
The problem: the only way for Doctor Strange to stop the Water Elemental, thus protect humanity, was to kill Martin Fein.
This…was bad.
New York allows for the physical force on another person if a “defender” reasonably believes force is necessary stop the harm caused by the other person. N.Y. Penal Law § 35.15.
The Water Elemental posed an active threat to all of humanity. New York was flooding, giant worms on the slither, and one soggy demon was beating up Doctor Strange while threatening to drown New York City. These facts objectively show Doctor Strange would be legally justified in destroying the Water Elemental.
This would also mean killing Martin Fein. While the Water Elemental was the clear and present danger to humanity, Martin Fein was just a person who was possessed. Perhaps if Doctor Strange had been at full power he could have expelled the demon from Fein. However, Strange was not at full power.
The law is silent on the legality of killing a demonically possessed person in order to save humanity. One could argue that Fein was “dead” the moment he was possessed. Moreover, if the Water Elemental was not stopped, everyone in New York City could have died, including Martin Fein.
The legal analysis is further complicated by the use of “black magic.” According to the Water Elemental, it was originally stopped by bloody human sacrifice. Doctor Strange would have to stray from “the path of purity” to stop the demon. Strange Tales, volume 2, issue 2, page 9.
The law does not allow human sacrifices. Doctor Strange was faced with a mystic “trolley problem,” that would require killing Martin Fein in order to stop demonic trolley from harming others.
A wrongful death case likely would find in favor of Doctor Strange, because of the impossibility of saving Martin Fein from the Water Elemental. On one level, if Fein was already “dead” because of the possession, destroying Fein’s body was like using a corpse to stop a runaway trolley. This is substantially different than using a live person to stop a runaway trolley.
Stopping the Water Elemental by killing Fein could be legally justifiable under the circumstances. However, this is still morally wrong. As the story continued in later issues, Doctor Strange’s “white magic” powers continued to weaken as he increased his use of black magic. Strange paid a price, which we will explore in future blog posts.
The Spirit of Vengeance is on Agents of SHIELD burning up a body count with hellfire. The new Ghost Rider is Robbie Reyes who drives a flaming 69 Dodge Charger. Besides murdering people by ripping out spines, or burning their very souls into nonexistence, we need to discuss a bigger issue: Reckless driving.
Ghost Rider cruises the streets of Los Angeles in search of the guilty to punish. This quest has included driving in excess of the speed limit, even with Daisy Johnson hanging onto the roof of the car.
Reckless driving under California law is when someone “drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property.” Cal. Veh. Code § 23103(a). If someone who is driving recklessly is the proximate cause of bodily injury to another person, they can be imprisoned in county jail for at least 30 days, but not more than six months. Cal. Veh. Code § 23104(a).
To prove someone committed reckless driving, the State must prove that the defendant “intentionally did something with knowledge that injury to another was probable or acted with a wanton and reckless disregard for the safety of others and in reckless disregard of the consequences of his acts.” People v. Schumacher, 194 Cal. App. 2d 335, 338-39 (1961).
The Ghost Rider drove his Charger with the knowledge that Daisy was on the roof of the car. This would be reckless conduct in disregard for Daisy’s safety. Moreover, Daisy flying off the car, due to the Ghost Rider’s driving, caused Daisy’s injuries. There would be additional charges that could be filed against Robbie, including attempted murder.
The law is silent on reckless driving cases with cars that shoot flames. Many juries would think a car shooting flames would be in willful disregard of the safety of people and property if in a residential neighborhood. Moreover, courts have found that excessive speed, along with time of driving, road conditions, and surrounding circumstances, can demonstrate willful conduct. People v. Nowell, 45 Cal. App. 2d Supp. 811, 812 (1941). As such, a flaming speeding car could be proven to be done in the willful disregard of safety of others.
Ghost Rider’s 1969 Charger likely would fail a SMOG inspection for acceptable emissions standards. Cal. Health & Safety Code § 44012(c). The Charger would definitely fail the visible smoke test. Cal. Health & Safety Code § 44012.1 Moreover, most inspections would refuse to inspect the vehicle, because it is unsafe, causing either burns or eternal damnation. Cal. Health & Safety Code § 44012(i). However, the California DMV website states that gasoline powered vehicles from the year model 1975 or older are exempt from SMOG inspections. The DMV website is silent on whether a car older than 1975 powered by hellfire is also exempt.
Ghost Rider arguably is driving the Charger without a driver’s license in violation of California law. Cal. Veh. Code § 12500(a). Robbie is arguably not driving the vehicle, because he turns into the Ghost Rider, who is a separate entity. If Robbie is someone in control and not an alter ego, there is a strong argument Robbie’s driver’s license could be suspended for road rage. Cal. Veh. Code § 13351.8.
Marvel’s Luke Cage on Netflix is excellent. The series has perhaps the most Easter Eggs from other Marvel stories, including Avengers, Iron Man 2, Jessica Jones, and Daredevil. There are wonderful homages to the Power Man and Heroes for Hire comics of the 1970s and 80s.
Henchmen learned the hard way that Luke Cage has unbreakable skin. In the first episode, one enforcer doing a shakedown for money from a small business owner landed a successful punch on Luke’s face. This resulted in a slow motion shattering of his fist with a compound break of his radius (and possibly the ulna).
Does Luke Cage have a duty to warn people who attack him that doing so can result in shattered bones?
The short answer: No. People should not try assaulting Luke Cage. That’s a crime. The thugs should expect criminal charges while they are in the emergency room.
New York’s law on the duty to warn does not specifically address human beings with extreme strength and bulletproof skin. Generally speaking, a landowner has no duty to warn of open and obvious danger, just dangers that a person would be unaware of on the property. Marangiello v Stop & Shop Supermarket Co. LLC (Sup.Ct.) 2011 NY Slip Op 31469(U), ¶¶ 3-4.
Applying this standard to a super-hero, Luke Cage is not obviously dangerous: Luke is just a person. Thus, having unbreakable skin would be considered “latent,” because the condition is not obvious. This would tend to support that Luke would have to tell people they could be injured if they have an impact with him. This would make sense if Luke was playing a contact sport, however, would not make sense with an attacker as a matter of public policy: Attacking people is a crime; playing a sport is not.
Golfers have no duty to warn other golfers on a fairway they are going to hit ball, unless they are in the intended line of flight. Rinaldo v. McGovern, 561 N.Y.S.2d 1006, 1007 (App. Div. 1990), citing Noe v Park Country Club, 115 AD2d 230. Golfers also do not have a duty to warn those driving by the golf course they will hit a ball. Id.
Suppliers of products with dangerous conditions have a duty to warn of latent defects. Young v. Elmira Transit Mix, Inc., 383 N.Y.S.2d 729, 731 (App. Div. 1976). In a case where purchasers of cement mix suffered third-degree burns when mixing the wet cement that came into contact with their skin, the supplier was found to have had a duty to warn the plaintiff of the risk. Id.
Luke is a lot like a golfer on the golf course, and not burn inducing cement mix. Luke would not have a general duty to warn people he is both strong and unbreakable. No one being assaulted has to warn an attacker, “I will hit you hard,” when defending himself or herself. The same standard should apply to Luke Cage’s bulletproof body when he was assaulted by Cottonmouth’s goons.
Marvel’s Luke Cage on Netflix looks amazing. The current Power Man and Iron Fist comic is a lot of fun. Let’s get ready for the premier of Luke Cage, by looking at the final issue of the original Power Man and Iron Fist comic, where Iron Fist was killed and Luke Cage was going to be prosecuted for murder.
Luke and Danny Rand were partners with their business “Heroes for Hire.” Danny tried saving the life of a child who could turn himself into “Captain Hero,” a super-hero adult with extreme strength. Danny was beaten to death by Captain Hero in one of the most tragic scenes in comics. Luke found his dead friend and we are left with the man with unbreakable skin slumped on the floor in grief. (See, Power Man and Iron Fist, Vol 1, issue 125, with excellent summaries on Comic Book Legacy and SuperMegaMonkey’s Marvel Comics Chronology).
The police detain Luke and the District Attorney lays into Power Man with the following allegations that would be an opening statement in court:
Iron Fist was killed by someone with super strength;
Luke and Danny had a very loud and public argument;
Danny named Luke as his sole beneficiary of his fortune;
“Heroes for Hire” was doing poorly;
Luke was an Ex-Con with a reputation for being a “hot head”; and
Bobby, the child, had disappeared;
The DA openly threatening Luke Cage with prosecution should make any lawyer Hulk-out. Luke clearly should have been apprised of his right to counsel under Miranda, because any defense attorney would tell the DA to charge Luke or let him go. An attorney would use language stronger than “Sweet Christmas.”
The first fact against Luke is that someone with super-human strength killed Danny Rand. There are many characters in Marvel Comics with enhanced strength, so that in and by itself is not enough to convict Luke Cage. There would still be substantial reasonable doubt on who killed Iron Fist.
Luke and Danny’s public argument would be an out-of-court statement offered for the truth of the matter asserted, thus hearsay. The District Attorney would likely focus on Luke yelling at Danny, “That’s it, man! I’ve had it! I’m sick of this junk, Fist! I’m out! It’s over, man – Heroes for Hire is finished!” Id.
As Luke would be the defendant, there is a hearsay exception for statements by a party. Staron v. State of N.Y., 993 N.Y.S.2d 646, 646 (Ct. Cl. 2014). However, there would be other challenges to exclude any testimony about the argument, namely that the prejudicial effect of the evidence outweighs its probative value. The state could argue that the probable value outweighs any prejudicial effect, because Luke’s statement would show intent to harm Danny. However, the statement itself merely shows a heated business argument, not any threats. Moreover, if the statement was admitted, multiple Avengers and the Fantastic Four could be called in as witnesses to testify as to Luke and Danny hugging after they believed the child to be saved.
Pro-Tip to Fictional Comic Book Attorneys: If the Defense calls Captain America to testify about loyalty, saving a child, and two heroes hugging, do not cross-examine Captain America. Your case is over.
The District Attorney was wrong to claim evidence of Luke’s past [false] conviction would come into court in the murder trial of Danny Rand. New York law states that, “Evidence of prior crimes or bad acts is not admissible to show a defendant’s predisposition to criminal conduct.” People v. McPhillips, 21 N.Y.S.3d 134, 136 (App. Div.), citing People v Molineux, 168 NY 264, 291-293, [1901]; People v Norman, 837 NYS2d 694 [2007]).
There is no way Luke’s past [false] conviction would be relevant to Danny’s death. Moreover, the probative value of the past convictions would not outweigh the potential prejudice. The DA was effectively trying to convict Luke because he was convicted before. That is both “bad character evidence” and “prior bad acts,” thus would not be admissible.
The District Attorney likely would have enough evidence to charge Luke Cage. However, convicting Luke would be an uphill battle. A good defense attorney could knock down each of the State’s “facts” forming the charges around Luke Cage.
The Star Wars Rebels season three premier episode, “Steps Into Shadow,” told a thrilling adventure about government surplus disposal. Yes, Kanan also met the Bendu, voiced by the legendary Tom Baker. The 4th Doctor now joins David Tennant as the second Doctor Who alumnus to appear on a Star Wars animated series (Tennant played the droid Huyang on the Clone Wars).
The story focused on Ezra leading a team to investigate Y Wing bombers from the Clone Wars being scrapped by the Empire. The mission quickly turned from one of reconnaissance to recovery, as the Y Wings were being destroyed in a massive shipyard.
By way of comparison, but in no way comparing the United States to the Galactic Empire, government surplus disposition is handled by the General Services Administration (GSA). 40 U.S.C. § 542. The Empire had a form of either allowing allies to purchase new or surplus Tie Fighters, as evidenced from the Mining Guild using yellow modified Tie Fighters. If the Empire had a GSA, the system for purchasing surplus Tie Fighters could have included simply making a contract for the ships. The US GSA can only authorize a contract for disposal of property after public advertising for bids on the surplus property. 40 U.S.C. § 545(a)(1). It is unlikely the Empire required public bidding for the Mining Guild and probably sold the Tie Fighters directly.
The Y Wings would have been government surplus of the Republic. The Empire as the successor-in-interest of the Republic would have been within their rights to control how the disposition of the surplus military bombers. Given the nature of the Empire, destroying old bombers so they would not fall into the hands of the Rebels made sense.
In the United States, it is a crime to steal government property. 18 U.S.C. § 641. The punishment for theft of government property is not more than ten years in prison. Id. Stealing a dozen Y Wings by an armed insurrection would warrant criminal prosecution, if the Empire were a legitimate government. As the Empire appears to prosecute all crimes as treason, punishable by death or being sent to the Spice Mines of Kessel, the Empire is clearly as fascist regime.
The Rebels have valid reasons to fight the Empire. Emperor Palpatine came to power through fraud with a faux war designed to erode civil rights in order to create a military state. Case in point was the revelation that Grand Admiral Thrawn was promoted after the Battle of Batonn, where insurrection was crushed at the expense of more civilian causalities then Rebel. A government that rewards war crimes is one that invites rebellion. While the theft of government surplus is a crime, the civil war to restore liberty is justified on Star Wars Rebels. Ezra just needs to avoid turning into Snoke.
The Marvel one-shot story of The Fallen is a Civil War II tie-in that featured the execution of Bruce Banner’s “living will.” The question presented is simple: was Banner’s will valid?
Matt Murdock was the executor of Banner’s estate and handled administering the distribution of property to Bruce’s friends and family. Bruce Banner appeared by recorded hologram to state his property distribution. Highlights of the will included:
Equal shares of Banner’s liquidated cash estate split 7 ways ($1,324 per person)
Each recipient was given a 1/7 share of the Benefit Corporation to administer Banner’s patents – ($234,484 per person, which would have tax liabilities).
Rick Jones was given Jimi Hendrix’s guitar
Everyone got an egg timer for anger management
It is also worth noting that Banner’s Benefit Corporation had anonymously paid out $230 million to the Hulk’s victims.
There is confusion over the use of the term “living will” to describe Banner’s will. State law generally defines a “living will” as regarding “life-sustaining treatment,” which is focused on patient treatment, “Do Not Resuscitate” orders, and other medical care to prolong the process of dying. See, Ohio Rev. Code Ann. 2133.01.
It is very likely Bruce Banner did have a living will. However, it is also likely he had a fully executed written will as well to manage his estate. As Bruce was buried in Ohio and his will read in that state, we will apply Ohio law on will construction:
Except oral wills, every will shall be in writing, but may be handwritten or typewritten. The will shall be signed at the end by the testator or by some other person in the testator’s conscious presence and at the testator’s express direction. The will shall be attested and subscribed in the conscious presence of the testator, by two or more competent witnesses, who saw the testator subscribe, or heard the testator acknowledge the testator’s signature.
For purposes of this section, “conscious presence” means within the range of any of the testator’s senses, excluding the sense of sight or sound that is sensed by telephonic, electronic, or other distant communication.
Ohio Rev. Code Ann. 2107.03.
It is possible that Banner’s will was prepared in a different state, such as New Mexico or Utah. Ohio would recognize an out-of-state will as valid, if the will was valid in the sister state. See generally, Bailey v. Bailey (1837) 8 Ohio 239, 241.
The reader does not actually see Bruce’s written will, so it is unknown if it is properly signed and had two witnesses. However, that would not be exciting for many comic fans. The holographic Bruce Banner is way cooler to explain a legal document.
For the record, Bruce’s holographic will would not be a valid holographic will just because Banner appeared as a recorded hologram. “Holographic wills” are a form of wills going back hundreds of years that are entirely handwritten and signed by the testator. Inheritance and Inconsistency, 57 Ohio St. L.J. 1057, 1071. These wills do not follow statutory will construction. Courts review the plain language of these instruments, because “the words employed should be given the meaning which would be imputed to them in common parlance.” Anderson v. Gibson (1927) 116 Ohio St. 684, 688.
Bruce Banner’s hologram listed the transfer of personal property and corporate shares with a value over $1.6 million and patents worth possibly millions of dollars. A written will would be necessary to properly execute Banner’s Estate. Given the fact Matt Murdock was the executor, that would not have happened without a will naming Murdock the executor or court appointment. As such, given the detailed intent by Banner to distribute his property, there had to be a written will. We can hope it was properly witnessed to be effective.