- [Devin] Thanks to Indochino
for keeping LegalEagle in the
air and helping me look fly.
(eagle screeching)
- How 'bout a smile for me, huh?
- A smile?
- Yeah, I'm offering to help you,
least you could do is give me a smile.
- Crucially, he makes contact with the map
that Captain Marvel is
holding, pulls it down
and says something that might
be interpreted as a threat.
"How 'bout a smile for me?"
This guy is not a particularly nice guy,
and crucially here, he has
invaded Captain Marvel's space.
(gentle music)
Hey Legal Eagles, it's time
to think like a lawyer,
and I really mean that this time
because there are a lot of people
engaging in quasi-legal analysis
and really messing it up.
Would you believe that the
men who are complaining
about Captain Marvel again
are wrong about the law?
I know it's crazy, but stick with me here.
By the way, since we're
dealing with a Marvel property,
as always, there will
be a post credits scene
at the end of this video.
So a little background
about Captain Marvel
before we dive into the
current ridiculous controversy
that is surrounding this franchise.
Captain Marvel came out last summer,
it had slightly more
controversy than normal
because as far as I can tell,
and I wasn't following this closely,
the lead superhero is a
woman, and the lead actress,
Brie Larson, said some
semi-controversial things
about racism and sexism in Hollywood.
- I do not need a 40-year-old white dude
to tell me what didn't work for
him about A Wrinkle in Time.
I don't hate white dudes, I'm just saying
we need to be conscious of our bias
and do our part to make sure
that everyone is in the room.
- That led some people, predominantly men,
to boycott the film,
which appears to have had no real effect
because the movie did fine
when it came out last summer.
Fast forward to last week when
the producers of the movie
released a deleted scene
where Captain Marvel
more or less beats up
a guy on a motorcycle.
- Take it!
(cries out)
- What, no smile?
- This led to a reaction on
certain parts of the internet.
Some called Captain Marvel a villain.
- I just see a villain.
I see Captain Marvel
written as a villain here.
- [Critic 1] The scene's awful,
portrays Carol as a (bleep)
villain, that's why they cut it.
- [Critic 2] Carol
Danvers is supposed to be
the charismatic, endearing and
likable heroin of the film,
but she behaves here like you'd
expect a villain to behave.
Apparently, feminist believe that women
encounter guys like this all the time,
and it's such a hardship.
- And even conservative
commentator, Ben Shapiro,
gave this theory a signal boost.
- [Ben] Does she actually
think that alienating people
like me is going to be big box office?
Of course not.
She knows that, she's not completely dumb.
- It's that like a personal
attack or something?
- The argument, as far as
I can tell, is as follows.
The deleted scene shows
that a man on a motorcycle
is rude to Captain Marvel.
In a totally unprovoked attack,
Captain Marvel effectively
beats the hell out of the guy
and steals his motorcycle.
Instead of using her words,
Captain Marvel engages
in violence and is therefore the villain.
The problem with this argument is that
it is legally and morally incorrect.
I don't begrudge these
commentators too much.
It's a clever attempt at being contrarian.
It's just that the evidence
doesn't really support this argument,
and the attempts to shoehorn this movie,
and in particularly this deleted scene
into a particular conservative narrative
just doesn't really work.
Now I'll note on the side that I'm not
in a habit of commenting on
this kind of popular minutia
but it just so happens
that I was in the process
of writing a practice
exam for law students,
a law school hypothetical,
that involved a very similar fact pattern
to what is portrayed
in the deleted scenes.
And as a second aside, I'm
going to go through this clip
in what some might consider
excruciating detail
because that's what you do in law school.
Legal analysis is mostly factual analysis,
and so since this particular
fact pattern was so close
to what I was already working on
I thought it would be a great opportunity
to talk about some of the legal analysis
that law students and lawyers go through
on an everyday basis.
But let's examine the clip.
Alright, clearly a Los Angeles strip mall.
I would recognize that architecture,
or lack there of, anywhere.
- Nice scuba suit.
(motorcycle running)
You need a ride, darling?
(paper crinkles)
- Okay, so clearly here,
Captain Marvel, Carol Danvers,
is reading a map or a newspaper,
she's minding her own business,
and some guy on a motorcycle
has parked his motorcycle
at the strip mall,
and he has made an unwanted overture.
Not the most polite thing to do,
but not illegal either.
And of course, I guess I have to point out
that Captain Marvel is
fully within her rights
to completely ignore this gentleman
and not engage with him
in anyway, shape or form.
That is also perfectly legal.
(paper crinkles)
(ding)
- How 'bout a smile for me, huh?
- A smile?
- Yeah, I'm offering to help you,
least you could do is give me a smile.
- Okay, this the crucial
act that takes place
that really changes
the narrative entirely.
The man on the motorcycle
has parked his motorcycle,
he's taken his helmet off, he stood up,
he walked over to Captain Marvel,
he put his hand on the
map that she was holding,
and is clearly right next to her.
You can see that his
arm is sort of angled,
which means that the distance
between Captain Marvel
and himself must be
just a matter of inches
because it's not like he was reaching out
with his hand in an extended fashion.
He's reaching out his hand in a way
that makes it seem like the map
is directly in front of him,
and crucially, he makes
contact with the map
that Captain Marvel is holding,
pulls it down, and says something
that might be interpreted as a threat.
"How 'bout a smile for me."
This guy is not a particularly nice guy,
and crucially here, he has
invaded Captain Marvel's space.
This is a crucial distinction
that we'll talk about in just a second
because in my opinion, I think that
that beats the statutory
definition of assault and battery.
- I'm offering to help you,
least you could do is give me a smile.
(paper rustles)
So, his hand has left the map,
he is still standing very close to her,
but it appears that his
arms are at his side,
and Captain Marvel has taken
the map, put it to the side,
and she's about to confront this man.
(paper rustles)
- How 'bout a handshake?
I'm Veers.
- People call me "The Dawn."
- Wow.
(clothes rustle)
(he gasps)
- Alright, so they both engage in what
could be considered a consensual handshake
at which point Captain
Marvel then begins to squeeze
and I guess, electrocute this guy.
I actually didn't see the movie,
so I don't know exactly
what her powers are,
but he is clearly in pain
as a result of this grip
that Captain Marvel has
put on in this handshake.
- Here's a proposition for you.
You're going to give me
your jacket, your helmet
and your motorcycle, and in return
I'm going to let you keep your hand.
(whimper)
- Take it.
(gasp)
- What, no smile?
- Okay, so why do I think
that this may qualify
as assault and battery?
Well, battery is a
criminal offense involving
the unlawful physical
contact, or touching,
of another person, which is either
considered harmful or offensive.
And battery is distinct from
the separate crime of assault,
which is the act of creating
the apprehension of contact
or unlawful touching.
There are two flavors of
battery in most jurisdictions.
There is the crime of battery,
which is prosecuted by the state,
and there's also the tort of battery,
which is what you would accuse someone of
if you wanted to sue them for
civil damages in a lawsuit,
but most of this discussion
is share appliance of both.
By way of example, California
Penal Code section 242,
defines battery as "Any willful
and unlawful use of force
or violence upon the person of another."
To meet this criteria the
prosecutor has to be able
to prove that the defendant intentional
and unlawfully touched another person
in a harmful or offensive
manner, and the second element,
which is that the defendant
did not act in self-defense
or in the defense of someone else.
As any law student will tell you,
even the slightest touch
can be enough to satisfy
the battery statue if
it's done without consent
or in a harmful or offensive way.
In fact, you learn very
early on in law school
about the so call "Eggshell Skull Theory",
which is that if you
make contact with someone
who has a skull that is
as thin as an eggshell,
you're liable for those damages
even if the kind of touching that you do
would not even hurt another person,
but if it's enough to hurt someone
with a very unusual condition,
what we call the eggshell skull,
I don't actually know if that is
an actual medical condition or not.
(logo whooshes in)
That's enough to make you on the hook
for the damages that you cause
as a result of your
unconsented to touching,
or battery in this case,
and almost as important is
that the contact requirement
with another person is satisfied
even if it's just touching their clothing,
or if you touch something that
is immediately connected to that person.
So if you punch someone, you
punch them through their shirt
now technically you haven't
made contact with that person,
but because the shirt is
so connected to the person
punching them through
a garment of some kind
is enough to satisfy the touching
of the person requirement,
and crucially that extends to things
that are immediately connected
outside of the clothing as well.
So for example, if someone
was walking down the street,
and they were holding a
cellphone in their hand,
if you went up to that person,
and smacked the cellphone
right out of their hand
well, even if you don't
actually make contact
with the person's hand or their forearm,
the fact that they were
holding the cellphone,
and it fell out of their hand,
that's enough to qualify
as battery for the person,
and if the victim saw you coming
and was in apprehension of that contact
then you would also be guilty of the crime
and torte of assault as well.
That's the apprehension
of the physical contact.
So not only would that count
as destruction of property,
it would also qualify as potentially
the crime of assault and battery.
We see that in the clip,
the man on the motorcycle
invades Captain Marvel's physical space.
There was no reason for him to
stand up from his motorcycle
and walk the 10 to 15 feet
away from the motorcycle
into Captain Marvel's physical space.
There was no reason for
him to place his hands
on the map or the newspaper that
Captain Marvel had in her hands.
Now, of course, no one's
going to argue that
Captain Marvel was physically
harmed by this interaction,
but that's not a requirement
to the crime of battery.
All that is required is
the touching of something
that is immediately
connected to Captain Marvel,
and I think makes the statutory
definition of assault,
and the fact that he has
invaded her personal space,
that he's standing only
inches away for her
saying something that could arguably
constitute threat against her,
I think that qualifies as assault as well.
So this guy's actions, I
think, constitute the harmful
or offensive touching of Captain Marvel.
She is effectively the
victim of being battered
by this guy on the motorcycle,
and the thing about being the
victim of effectively battery
and the apprehension of battery, assault,
that gives you access to
the legal justification of self-defense.
Arguably she was partially justified here.
Now those are of course
the legal arguments,
but even if we're going
to talk about philosophy,
I think morally speaking
it's the motorcycle guy
who initiates force,
and under almost any
conception of morality,
once someone has initiated
force against you,
you are privileged enough to use
the defense of force against that person
so long as you don't escalate
from using normal force
into using deadly force,
which it doesn't appear that
Captain Marvel did here.
Was Captain Marvel justified
in taking this (beep)
motorcycle and jacket?
No, probably not.
But Mr. (beep) Motorcycle Rider
committed battery in the first place,
and deserved some of what came to him,
and we can argue about how
much force was justified
and what kind of apprehension
Captain Marvel was in,
and what kind of fear
she faced from this guy,
but certainly it is not as clear cut as
Captain Marvel is the villain,
or the motorcycle guy
was completely innocent.
It's never black and white.
The legal reality is always gray.
My guess is that some,
but not all of the force was justified.
At the end of the day,
this tempest and teapot
was really about a select few people
who wanted to have a
very idiosyncratic view
of this deleted scene,
and really, all of those mansplainers
who wanted to make a clever point
about Captain Marvel being the villain
ended up becoming the thing
that they hate in this world.
They are wrong on the internet.
(dramatic instrumental)
And as an aside, everyone
recognizes that this scene
is basically an ohmage to
what happens in Terminator 2, right?
This scene is shot for
shot exactly what happens
to Arnold Schwarzenegger in T2.
- I need your clothes, your
boots and your motorcycle.
(groans and bones crunch)
(screams)
- No one called Arnold Schwarzenegger
a villain in this scene.
Everybody knows he's the hero.
I mean, obviously he was the
villain in Terminator One,
but he's the good guy in Terminator 2,
and this scene from Captain Marvel
is basically exactly the
same scene over again.
- Take it!
(gasps)
- Take it.
(grunts and keys jingle)
- But I guess it's different
if this superhero has a vagina.
(gentle piano music)
Now that Mr. Motorcycle Douchebag
lost his jacket and helmet,
he could really use a
whole wardrobe make over.
Black leather is so five years ago.
He could really us a
slim-cut, fully custom suit
from Indochino, which
he could even ware to
his arraignment for
battering Carol Danvers.
All of my suits are now
custom made by Indochino,
including this three piece
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(ding and whoosh)
Captain Marvel is not a
villain because she beats up
on a guy who batters her,
but she is a villain because she didn't
put the friggin' Infinity Gauntlet on.
She had it in her hand.
She was carrying it like a football.
Why didn't you just put
the gauntlet on, Carol?
Just snap your fingers.
