Tagged: Duty to retreat

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #331: HE AVENGERS TAKE A.I.M. AT DIPLOMACY

Advanced_Idea_Mechanics_(Earth-616)_from_Secret_Avengers_Vol_2_3_001_(cut)I’ve been avoiding this one like the plague. Or The Stranger. Or other existential novels by Albert Camus. Read them in high school. Didn’t understand them. But, then, I didn’t understand some aspects of Avengers Assemble v 2 21, either. So I guess it’s onward.

Here’s what I can tell you. Spider-Girl, the Anya Corazón version– and don’t even ask about the May Parker Spider-Girl, who is the daughter of Peter Parker in either an alternate future or an alternate universe whose timeline started fifteen years before the main Marvel timeline, so May’s backstory is even more confusing than a Camus novel – came to the Avengers for help. New York had just experienced the Inhumanity event, when the Terrigen bomb exploded over Manhattan. The bomb’s mutating Terrigen mists covered New York and then, by way of the trade winds, covered the world even better than Sherman-Williams paint. The mist’s mutagenic properties either turned people who were latent Inhumans into super-powered Inhumans immediately or they formed Terrigenesis Cocoons around the latents where they would gestate and emerge with super powers later. (Terrigen Mists? Terrigen Bombs? Terrigenesis Cocoons? Gods, this is more confusing than Camus channeling Jean-Paul Satre.)

Anya’s social studies teacher, Mr. Schlickeisen, was one of the latents who went into a cocoon. Mr. Schlickeisen was taken to a hospital for observation. But someone stole both his cocoon and the cocoon in the bed next to him. Now Anya wanted the Avengers’ help in tracking down her missing teacher.

Most of the Avengers were busy battling Inhumans’ Inhumanity to man, but Spider-Woman and Black Widow went to help Spider-Girl find her teacher. Black Widow eschewed the suggestion that they go to the hospital where Mr. Schlickeisen had been. Somehow she knew – maybe it was her spy-der sense – that A.I.M. had taken the cocoons and where they had taken them.

Trouble is that A.I.M. wasn’t the Advanced Idea Mechanics of old. They were no longer the R & D branch of the terrorist organization Hydra. They were no longer a group of brilliant scientists who wore silly yellow beekeeper costumes and are dedicated to overthrowing all governments by technological means. At least not overtly. Seems a while back A.I.M. bought the Caribbean island of Barbuda and formed an internationally recognized government there. So now A.I.M. is a sovereign nation of scientists who still wear silly yellow beekeeper costumes and are dedicated to overthrowing all governments by technological means, but covertly. And that caused complications for the Avengers.

A.I.M. claims diplomatic immunity and officially the Avengers can’t approach them. Fortunately for the purposes of this story, Black Widow was a former spy who specialized in unofficial missions. So she and her Arach-Pack went to an A.I.M. temporary lab somewhere in the Meatpacking District in Manhattan’s lower West Side. They broke in and incapacitated most of the beekeepers they found. But this wasn’t some A.I.M.-less operation, the Arach-Pack kept one A.I.M. flunky conscious so they could interrogate him.

Which they were doing, when some twenty-one other A.I.M. operatives in the facility arrived, all aiming high-tech weaponry and took our heroines captive. Things looked bad for the Arach-Pack, especially when the A.I.M. leader showed up.

No the leader wasn’t A.I.M.y Semple McPherson. It was Kashmir Vennema, But is that name really any less silly? Kashmir Vennema? Who’s her brother Khamilhare Kolonic?

Kashmir told her underlings to kill the Avengers. She wasn’t worried about any consequences for killing three Avengers, because, A.I.M. has “diplomatic status,” and because under “castle law, the minute [the Avengers] busted in here I was entitled to confront [them] with lethal force.”

Things looked bad for the ladies. Did they escape? Were they killed? Well, that’s another story. Okay, it’s the same story, but it’s the story of another issue, because this issue was only the first part of a five-part story and it pretty much ended on this cliffhanger. So, in keeping with the story, I’m going to leave you hanging and go into the legal analysis stuff. (Okay, the Avengers weren’t killed. Duh.)

First, the castle doctrine. We discussed it last week and here it is again. You may remember, and if you don’t here it is again, the castle doctrine says people who are in their own house don’t have a duty to retreat before using deadly force to repel trespassers; as long as they reasonably fear the trespassers pose an immediate threat to inflict death or serious bodily harm. But unless the A.I.M. operatives were also living in this temporary lab somewhere in Manhattan’s Meatpacking District, this building was a place of business, not a dwelling. The New York castle doctrine found in PL § 35.15 limits application of castle law to one’s dwelling and doesn’t extend it to one’s place of business. So, the A.I.M.-moral bad guys didn’t have the right to use lethal force as soon as the Avengers trespassed into this not-a-dwelling. Moreover, as the Avengers were bound to chairs and seemingly helpless – so didn’t pose an immediate threat of death or serious bodily harm to anyone – lethal force was off the table even if some of the beekeepers did call it hive, err home.

Now how about the other claim, “diplomatic status?” Well, Ms. Vennema pronouncements of immunity law may have been as expansive as maternity pants.

Yes, ambassadors from foreign countries have diplomatic immunity, so can’t be arrested or prosecuted. Nor can members of the ambassador’s administrative or technical staff. But other members of the diplomatic mission – the service staff, the consular officers, the consular employees, and the like – don’t enjoy such diplomatic immunity. They can be arrested and prosecuted for crimes.

The story didn’t give us any indication of Ms Vennema’s status Or of the gunmen serving under her. We don’t know whether she and they were part of the diplomatic mission of Barbuda. But we do know is that they were engaged in some illegal activities – kidnaping people encased in Terrigenesis Cocoons and selling those cocoons to other interested parties. And they were doing it out of a nondescript building in the Meatpacking District of Manhattan.

If A.I.M. has a Barbudan embassy, it clearly ain’t a nondescript building in the Meatpacking District of Manhattan. So the people found inside this facility were not the embassy staff and I doubt they were part of Barbuda’s diplomatic mission. So they probably didn’t have diplomatic immunity.

Why do I conclude that these less-than-A.I.M.-iable individuals aren’t part of the diplomatic mission? Well think about what they were doing. They were stealing Terrigenesis Cocoons and the Inhumans who were inside said cocoons and selling some of those cocoons, and the Inhumans inside them, to other interested parties. In New York those acts would constitute kidnaping and, depending on what those other interested parties wanted to do with the cocooned people after they hatched, human trafficking. (Or would it be Inhuman trafficking?) It’s unlikely that A.I.M. would have anyone so obviously engaged in such obvious criminal as part of its diplomatic mission. Why? Because, if they were part of the diplomatic mission and were doing such obviously illegal things and got caught, it would be embarrassing for the government of Barbuda. Governments tend not to put the obvious criminals on their diplomatic missions.

So, if Ms. Vennema or her staff isn’t part of A.I.M.’s and Barbuda’s diplomatic mission, and they probably aren’t, they have neither “diplomatic status” nor diplomatic immunity. New York would be free to prosecute them to the fullest extent of the law for murdering the Avengers.

Hey, Kashmir, next time you want to cl-A.I.M. diplomatic status, you might want to check on your actual situation. If you don’t, you might find out your bosses have left you hanging out to dry. Like your sweatery namesake.

The Law Is A Ass


Batgirl_Annual_Vol_4-2_Cover-1_TeaserIt’s a strange power. Almost a mutant ability. Being right for the wrong reason.

Ask anyone who’s played a round of trivia with me, they’ll tell you. I frequently figure out the correct answer by making logical deductions from a known fact. Then, when I give my reasons for my answer, I’m told my “known” fact was incorrect. Still, I came up with the right answer. For the wrong reason.

Oh it’s a thing, all right. It exists. And for proof you have to look no farther than Batgirl Annual v 4 # 2.

In the story, Batgirl and Poison Ivy were investigating a large, fenced-in medical research compound in Kane County somewhere on the mainland just outside of Gotham City. Why they were there isn’t really important to this column. So I’m not going to bother explaining. That way I don’t have to write another spoiler warning.

What does matter to this column is that Batgirl and Poison Ivy cut through the chain link fence and forcibly trespassed in the compound. And what is even more important to this column is that the compound’s security guards came running out brandishing their weapons and warned, “You’re trespassing on private land. We have the legal right to use lethal force.”

Which is wrong. But it’s also right; just for the wrong reason. Oh, let’s see if I can make it easier.

Doe, a deer, a female deer.

Oops, sorry. Wrong simplification. Although maybe I should stick with it. I’m trying to explain self-defense law. And that’s a long, long way to run. See, self-defense has more twists, turns, and convolutions than a mountain road, a plate of spaghetti, and your small intestine. Combined.

When someone attacks you, you have the right to defend yourself and you have the right to use the same amount of force as is being used against you. So, if you’re being attacked with lethal force, you can use lethal force to defend yourself. You can even use a force that’s more potentially lethal than the lethal force being used against you. That’s why, in the words of Sean Connery, you can bring a gun to a knife fight. As long as you have a reasonable fear of imminent death or serious bodily harm, you can use deadly force.

But, and self-defense law has more buts in it than all the port-a-potties at a rock concert, there are exceptions. Biggest? You can’t claim self-defense, if you violated your duty to retreat.

The duty to retreat is not the battle strategy of the Cowardly Lion. Rather, it’s a legal principle that says, before you can claim self-defense, you must be able to show that you tried to avoid the confrontation by retreating. If, for example, you’re in a bar and a drunk tries to pick a fight with you. If you can walk away from the fight without endangering yourself, you must do so. You can’t just stay there, let the fight happen, then claim self-defense. You must first try to retreat from the situation. And you’re not absolved of the duty to retreat because someone called you chicken, so Marty McFly is SOL.

But, and like I said navigating self-defense is like playing a round of but-but golf, there is an exception to the duty to retreat. The Castle doctrine.

The castle doctrine is not: Castle will first come up with some screwball conspiracy theory solution to the murder before he and Beckett figure out who the real murderer is. Rather it says that when you are in your own home, and a man’s home is his castle, there is no duty to retreat. You can use deadly force against trespassers at your home without retreating.

Some jurisdictions even extend the castle doctrine to other places such as one’s car or place of business. So if you’re in your car or place of business, you don’t have to retreat before using self-defense. Other jurisdictions have taken the castle doctrine even farther by passing a stand-your-ground law. Stand-your-ground laws extend the castle doctrine to anywhere. Under stand-your-ground laws, if you are in a place where you have a legal right to be, there is no duty to retreat and you may use deadly force if you believe you face a real and imminent threat of serious bodily harm or death, no matter where you are.

But – remember self-defense law has more buts than the ashtrays outside a Nicotine Anonymous meeting – not even the castle doctrine gives you full and free range to open fire on all trespassers. The castle doctrine – and even stand-your-ground laws – requires that in order to use deadly force, the actor have a reasonable belief that the trespasser intends to inflict serious bodily harm or death on someone, and the actor must not have provoked the intrusion.

So if you’re the neighborhood curmudgeon and you have a “No Solicitors” sign prominently posted on your house, you still can’t use the Castle doctrine to justify shooting the local Girl Scouts. No matter how much you hate Thin Mints.

Now having set the parameters, could the security guards in Kane County assert the castle doctrine against Batgirl and Poison Ivy to justify the use lethal force against the trespassers? The short answer is no.

And as much as I’d like to leave it at the short answer, you know I can’t. Gotham City is in New Jersey. New Jersey does have a castle doctrine on its books – it’s here. But New Jersey’s castle doctrine only applies to one’s house. New Jersey did not extend its castle doctrine to a car or an occupied place of business. The security guards at the medical complex could not rely on the castle doctrine and deadly force did not flow automatically from the fact that Batgirl and Poison Ivy were trespassing on private property.

So the security guards were wrong. But – and I think we’re up to at least But-terfield 10 by now – they were still right. If the security guards honestly believed they faced an immediate threat of serious bodily harm or death, they could use deadly force, just so long as they didn’t violate their duty to retreat.

Did the security guards violate a duty to retreat? No. They were, after all, security guards. They were hired to repel forcible trespasses. The guards wouldn’t be able to do their jobs very well, if every time there was a trespasser, they had to back away to comply with a duty to retreat.

The duty to retreat is suspended for armed security guards. But they still don’t have the right to use deadly force against any trespasser; like some really ambitious Girl Scouts who were trying sell cookies at a remote medical research complex. But they could use deadly force against trespassers whom they feared were about to inflict serious physical harm or death.

These security guards didn’t have Girl Scouts. They had Batgirl, a masked vigilante whose usual modus operandi is to resort to physical force. Hell, during the fight scene Batgirl’s internal dialogue caption even said she was “pretty good at force.” They also had Poison Ivy, a known super villain who was even quicker to use serious physical force, and sometimes even deadly force. I don’t think the security guards would have had much of a problem proving they had a reasonable fear of serious physical harm or death.

So, the guards were right, they did have the legal right to use deadly force against Batgirl and Poison. But for the wrong reason. They couldn’t claim the castle doctrine, but they could invoke standard self-defense.

Gee, armed security guards in Gotham City actually did something right. It’s almost enough to make you start believing that armed, uniformed authority figures in Gotham City are actually good at their jobs.

But only almost. Let’s not get carried away or anything