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June 14, 2006

Superheroes And The Law

Note: This is what I'm reduced to on a slow news day. This is, like, the stupidest thing I've ever written. But once I started, I just couldn't seem to stop. I had to complete the stupidity.

Actually, the whole Marvel storyline doesn't make much sense, when you consider the way the law works. Because "superheroes" would, under normal rules of law, be constantly sued and sought after for questioning by police, or subpoenaed to testify in open court -- without their masks; who the hell is ever allowed to testify with a mask on, under an alias? -- unless there was some positive law passed immunizing them from such legal process.

And that sort of special law would be just that -- special, exceptional -- and, as it was granted by a legislature or a court, it could be taken away at any time.

Making superheroes ordinary citizens in the eyes of the law, and subject to all the normal legal hassles and procedures that every other citizen must suffer.

So what is Captain America bitching about? Being permitted to maintain a secret identity, immune from subpoena and lawsuit, is not a "civil right." If a right like this exists at all, it is a special right, granted in the interest of the public good, and, when it no longer seems to serve the public good, it could quite lawfully be taken away.


Most superhero comics wisely ignore the actual law in telling their stories. It's assumed, most of the time, that there is some warrant out for Electro or The Shocker, or that they're escaped fugitives, and that superheroes need only to make a citizen's arrest -- usually, by knocking them unconscious -- and then the authorities can cart them back to prison without any need for the superhero in any subsequent legal proceedings.

But there are a lot of questions left open. And when a superhero book tries to addres legal questions, they open up a big ass can o' worms.

Material Witness Law. This is a big one for detective heroes like Batman. Batman spends a good amount of his time trying to "get the evidence" to put Two-Face away. Something about his plot to poison Gotham's water supply with a binary toxin (get it?). And yet, a lot of times, one wonders why Batman is trying so hard to prove a case against Two-Face.

Because, three or four times in an issue, Two Face will attempt to murder Batman. Which, last time I checked, was a crime.

So really, all the "evidence" Batman needs to get Two-Face arrested is his own testimony that the maniac has tried to kill him, oh, 222 times so far.

And there'd be other witnesses and evidence to these crime. But Batman would be the chief witness, and the DA would certainly like to have him on the stand to testify against Two-Face.

Now, Batman has a reason to want to prove other crimes against Two-Face, rather than those 222 murder attempts. Batman would like not to appear in court, where he'd be required to give up the cowl and testify as Bruce Wayne. (How else could the truthfulness of the witness be established?) So there's a reason Batman would treat those attempted murders as "freebies," and would seek to prove other crimes, crimes for which is testimony is less necessary.

That may be Batman's desire, but the State may feel differently. Why screw around? Why not just compel Batman/Bruce Wayne to testify, and put Two-Face away for 2,222 years?

Batman is a material witness to a whole host of crimes committed by his enemies. And the state can generally compel material witnesses to testify, or even jail them if they won't comply.

How would Batman avoid this? Well, he can flee from the police, of course, which he tends to do anyway. And as they don't know who he is or where he can be found on any night, he can probably avoid this by just being sneaky and stuff.

But he's breaking the law but not complying with a lawful order to give testimony. Which probably doesn't bother Batman too much, as he tends to break a lot of minor laws in his nocturnal quests for justice. Breaking and entering. Assault. False imprisonment. Theft, burglarly.

The occasional torture.

It's possible that a court or legislature could make an exception for crime-fighters who prefer to work with their identities hidden, as the public interest would support such an exception-- the Gotham City Police Department is utterly incompetent, and never seems to be able to figure out, for example, that the Joker is hiding out in one of Gotham's sixty-three bazillion abandoned toy shops, playing-card compaines, circuses, or candy factories. So they need Batman, and they don't want to pass a law that would force him to stop crime-fighting.

But, again, even assuming such a law is on the books, it creates a special, privileged legal status, and there's hardly any major civil liberties breach if it is replealed.


Need for Authentication of Evidence. A photograph doesn't just get introduced at a trial. A witness, preferably the one who took the picture, needs to testify the picture accurately represents what he saw that day. Courts sometimes dispense with this requirement if there is no witness to authenticate the picture, calling the picture "self-authenticating," proving its accuracy by its very nature.

But still-- as a general rule, when Batman collects evidence against someone, it can only be introduced as evidence if he, as a witness, vouches for its authenticity.

If he steals a computer's hard drive that notes all of The Penguin's shady financial dealings-- well, who's to say Batman didn't just make all that stuff up and type it in himself? Chain of custody and the need for authentication by a credible witness are important considerations. In a lot of cases, all that "evidence" Batman collects will never be allowed to be used in court, for his failure to stand as a witness at trial.

One imagines that Jim Gordon does a lot of lying -- claiming he himself collected the evidence -- but surely the man can't claim this every time.

The court will want Batman to testify in major cases. In minor cases, maybe they'll just not use the evidence, figuring it's better to have Batman out there collecting often shaky and unusable evidence rather than forcing him to give up his career as amateur Scourge of Criminals. But when the key evidence against a mass murderer and arch-terrorist like the Joker swings on a piece of evidence that requires authentication, well, some DA is going to decide that it's more important to put the Joker away for good than to protect the secret of the Batman.

Lawsuits. This is a big one. Superheroes do a lot of property damage in taking down their foes. Even though few people ever seem to be killed during super-brawls, we do see people get hurt. And they'll want to sue someone for damages. Real damages, economic damages, emotional trauma damages, and yes, punitive damages.

Firefighters do propety damage, too, in fighting fires. But they're generally immune from suit, either because of sovereign immunity or because of special legislation immunizing them/indemnifying them. It's not hard to imagine that a prudent government or court would similarly give superheroes a general immunity/indemnity for damages caused when attempting to restrain an "extraordinary threat to the public peace and safety," but... the thing is about the law -- especially in modern law -- there's always an exception. And there's always a judge willing to let a lawsuit go forward.

Any such law would require a superhero to act "reasonably" given the threat faced. Did Luke Cage really have to throw that beer-truck at the Rhino? Or was that just wanton and unresonable destruction of property and endangerment of civilian lives? Some judges may be willing to dismiss most such suits before they get rolling, but a lot of judges won't be eager to deny an innocent, truly harmed civilian his day in court.

And of course the lawsuits will be directed at the heroes. Deep pockets and all that. Sure, Rhino may have been ultimately responsible, but Luke Cage hardly had to make matters worse. And you have to figure that Luke Cage, owner and CEO of Heroes for Hire, has more cash on hand than a criminal like the Rhino who's spent half of his life in jail and the other half attempting spectacularly unsuccessful bank robberies.

Given that hearings will be ex parte, with only the complaintant testifying (as the heroes are usually not going to respond in court), it's hard to imagine that many of these won't be allowed to proceed.

COUNSEL: And then what happened?

WITNESS: Well, then Spider-Man showed up. And that seemed to enrage Electro.

COUNSEL: Enrage? You mean Spider-Man provoked him?

JUDGE: Please let the witness respond in his own words.

COUNSEL: I'm sorry, your honor.

WITNESS: Well, yes, he did seem to provoke him. Before Spider-Man showed up, he was content to simply attempt to electro-magnetically levitate the armored car. But when Spider-Man came, he started blasting everything around him with electric-bolts. Including me.

COUNSEL: Let the record reflect the witness has second-degree burns on his neck and face, caused by high-energy electric bolts.

JUDGE: So noted. Go on.

COUNSEL: Do you think Spider-Man acted reasonably to restrain Electro?

WITNESS: No, I don't. He seemed to be just having fun out there, not caring who got hurt in the process. Like, a couple of times he could have ended the fight early, but he seemed to be more interested in trading puns with Electro.

COUNSEL: Puns?

WITNESS: Yeah. Everything with them was an electricity pun. "Don't give me any static." "An electrifying performance." "You're conducting yourself badly." That sort of thing. I can't imagine that Spider-Man was focused on defeating Electro with as little collateral damage as possible when he obviously had so much time to say things like, "Watt's up, Ohms!"

COUNSEL: So, Spider-Man was making clever patter while you were being electrified?

WITNESS: Yes. They say I'll never have my eyebrows back, and I'll never fully recover full movement and dexterity.

COUNSEL: Your Honor, I move that that the complaintant's suit be allowed to go forward.

Sure, Spider-Man is poor, but that fact's not generally well-known. You're not going to know his net worth until you unmask him and take a look at his books.

Any superhero in the business for more than a month is going to have hundreds of thousands of dollars' worth of judgements entered against him when he fails to respond in court. Any superhero with a long history like Spider-Man is going to have tens of millions of outstanding judgments against him.

Making superheroes some of the biggest scofflaws and deadbeats in the world.

And Batman? Sure, he's generally on the side of right, but he does occasionally resort to "torturing" a subject. Low-rent criminals would have huge suits against him. And the pressure from anti-torture bloggers like Andrew Sullivan might sway the public, after his six thousandth hysterical essay about the "Rogue Crimefighter" Batman.

Again, it's not unreasonable to assume that someone doing the obvious public good Spider-Man does might get a little protection against such suits. But that protection wouldn't be absolute -- it would be guided, as 90% of law is, by the requirement of "reasonableness" -- and it wouldn't constitute a loss of civil liberties to take that protection away.

The storyline does have a kind of unintended resonance, though.

Because just as it would require "special rules" to protect superheroes, so too does it require "special rules" to compel the release of Al Qaeda fighters. Al Qaeda fighters are both criminals and combatants; they can be held under either basis. If as a criminal, they're subject to penal incarceration or even execution after trial. If as a combatant, they can be lawfully held until the end of hostilities, as all captured combatants can.

It's only idiotic liberals like Andrew Sullivan and, I'd guess, the Marvel editorial staff who think there should be a special rule for terrorists that they, unlike any other combatant in any war previously fought in human history, have a "right" to a prompt trial by jury or else must be released to fight American troops anew.

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posted by Ace at 03:37 PM

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