The Coen Brothers, “FoxTrot,” and Malum in Se vs. Malum Prohibitum

In a lawsuit that could only have been filed in latetwentieth-century America, a newly minted millionaire has filedthis defamation action against the producer of a seven-and-a-halfminute satirical videotape that in fifty-nine film clips spoofsthe transaction in which the plaintiff acquired his riches. In order to test the legal viability of plaintiff’s claim, asdefendant invites us to do, we must view the video with care against the screen of its public exhibition. Karl v. Donaldson, Lufkin & Jenrette Securities Corp., 78 F.Supp.2d 393 (E.D.Pa. 1999).

Would it surprise anyone to learn that the offending clip came from a Coen Brothers movie? 

 I first became aware of the Coen Brothers in the late 1980s, via my favorite comic strip: Bill Amend‘s “FoxTrot.” If I remember correctly, Paige was asking Peter why he had rented “Raising Arizona” yet again, and his response was something along the lines of “Holly Hunter‘s a babe.” The next time I was at the Video Express, I plucked a copy of the crime comedy and was blown away. It quickly became apparent that the Coens make movies like no one else, and it’s clear that the nation’s jurists agree.

As noted, the Karl case actually involved a Coen Brothers film. My first one, actually: “Raising Arizona”:

Karl claims that he was defamed when the videotape narrator’s statement, “RTC’s General Counsel, Tom Karl, exercised his modest severance package”, was heard over footage from Raising Arizona showing an Old West-style bank robbery. 

Courts have actually cited  “Raising Arizona”* in numerous opinions, including the recent opinion of the Court of Special Appeals of Maryland in Singleton v. State, 2016 WL 3002474 (Md.App. 2016):

This case involves four convenience store robberies in Washington County during August and September 2014. Although they bore characteristics common to convenience store robberies generally,[FN1] each occurred at a different location and involved different combinations of individuals, clothes, and facts.

FN1. “Wake up, Son. [aims gun at the clerk ] I’ll be taking these Huggies and whatever cash ya got…. Better hurry it up, I’m in dutch with the wife.” H.I. McDunnough, Raising Arizona (1987).

This is the most common usage of Coen Brothers movies in court briefs and opinions: comparing the crime at issue to one of the crimes in their films. The Appellant’s Opening Brief in State v. Arnold, 2012 WL 8898067 (Or.App. 2012), noted that

There is a critical flaw in the state’s argument that the sequence of events in this case represents a pattern or method of procedure habitually followed by defendant: much of what occurred in this case was defendant’s attempts to escape the police. To the extent that any of the above might represent defendant’s plan, that plan was surely limited to the intention to steal a car in Pendleton, item one on the state’s list. It is difficult to imagine that defendant intended to be spotted by the police driving a stolen car or intended to ultimately crash that car and flee on foot. The actions in this case are less evocative of the Zorro leaving a mark and more suggestive of the protagonist of a Coen Brothers film, whose simple plan goes critically awry and spirals out of control.

Meanwhile, in State v. Grijalva, 183 Wash.App. 1021 (Wash.App. 2014), Judge Fearing noted in his concurring/dissenting opinion that

The facts behind this appeal lend themselves to a Coen brothers movie. A band of transgressors beat the system, one woman played the field with unending boyfriends, a recording device caught inane conversations, authorities legitimately worried about a dangerous criminal enterprise being conducted from inside a jail, and no one was harmed except a lawyer who lost her professional license by befriending the misfeasors.

In my Criminal Law class, I use the same Coen Brothers example used by the United States Bankruptcy Court for the Western District of Michigan in In re Checker Motors Corp., 495 B.R. 355 (2013)

The difference between malum per se (or in se) and malum prohibitum is also illustrated in this exchange between Mattie, Rooster, and an inebriated LaBoeuf in the Coen brothers‘ version of TRUE GRIT:

LABOEUF: Azh I understand it, Chaney—or Chelmzhford, azh he called himself in Texas—shot the shenator’zh dog. When the shenator remonshtrated Chelmzhford shot him azh well. You could argue that the shooting of the dog wazh merely an inshtansh of malum prohibitum, but the shooting of a shenator izh indubitably an inshtansh of malum in shay.

ROOSTER: Malla-men what?

MATTIE: Malum in se. The distinction is between an act that is wrong in itself, and an act that is wrong only according to our laws and mores. It is Latin.

The nice thing about this exchange is that it both illustrates the dichotomy and allows room for debate. Clearly, homicide is malum in se because the killing of another human being is wrong in itself.  As Matt Damon‘s LaBoeuf notes, the killing of a dog could be seen as malum prohibitum, meaning that it is wrong only according to our law and mores, like gambling and marijuana use. Of course, many can and do respond that the killing of a dog is malum in se because dogs have dignity and consciousness, meaning that the killing of a dog is also wrong in itself.

_____________________

*I almost named this article “Raising Arizona.”

-CM