Is Batman a State Actor?

Constitutional limitations on things like censorship, discrimination, and search and seizure do not apply to private individuals but rather to the federal government and, in some cases, to the states.  (The Thirteenth Amendment is a rare exception that applies to individuals).  As a result, evidence that a superhero obtains by breaking into a villain’s headquarters is admissible even though it was obtained illegally.  See, Burdeau v. McDowell, 256 U.S. 465 (1921).  And since it doesn’t invoke the fruit of the poisonous tree doctrine, any additional evidence obtained via the original evidence would also be admissible.

But what about superheroes like Batman who work in close cooperation with the police?  Could they fairly be described as state actors, thus triggering a whole spate of Constitutional protections?  I think the answer may be yes.

In Lugar v. Edmondson Oil Co. the Supreme Court gave a two-part test for whether the conduct of a private party could be fairly attributable to a state, thus implying state action:

First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible….Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).

In Batman’s case, Commissioner Gordon is certainly a person for whom the State is responsible, and Batman often acts together with Gordon and obtains significant aid from Gordon in the form of information and evidence.  Batman’s conduct is also otherwise chargeable to the State because the Gotham Police Department has worked with Batman on numerous occasions (and thus knows his methods) and operates the Bat Signal, expressly invoking Batman’s assistance in a traditionally public function.  This suggests state action under the public function theory: “when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations.”  Evans v. Newton, 382 U.S. 296, 299 (1966).

In the real world, this would cause significant problems for Batman and Gotham.  Batman’s rough and tumble style would lead to a rash of Section 1983 claims for damages and probably also for an injunction against Batman’s future cooperation in police investigations.  As discussed earlier, most evidence that Batman collects would be inadmissible, and police use of that evidence might bar the use of additional evidence collected during a subsequent police investigation.

Now, clearly none of this is the case, so there are three possibilities.  Either all of the criminals in Gotham have incompetent attorneys, the state action doctrine in the DC universe is weaker than it is in the real world, or Gordon has actually managed to keep his reliance on Batman a secret.  I’m going to opt for the second explanation.  Superheroes like Batman are simply too effective for a court to shackle them with the Constitutional limitations of the state, especially with supervillains running around.  Perhaps the DC universe courts have developed a public emergency or necessity exception to the state action doctrine whereby private individuals pressed into public service in an emergency are not held to the same standards as ordinary state actors.

86 Responses to Is Batman a State Actor?

  1. Will "scifantasy" Frank

    You know, relatedly, I’ve been wondering for years whether the Keene Act (cf. Watchmen) was constitutional, as a violation of federalism…

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  3. David T.G. Riches

    Actually I think if you dig into the past there was an issue of Vigilante in the late 1980′s early 1990′s where Vigilante and Robin break into some mobsters home and the mobster says something along the lines of you can’t arrest me you would have to identify yourself in court and the Vigilante says Robin is fully deputized Federal U.S. Marshal and doesn’t have to worry since he’s an agent of the law.

  4. are you not very familiar with the comics? this specific issue has been addressed. there is a person who has worked in the gotham city mcu for years contracted from a temp agency who is basically a permanent employee, except that because of the very issue you bring up, no representative of the state is allowed to turn on the bat signal. so they have her do it, as she does not work for the state. and they do their best to keep the connection between batman and the gcpd pretty quiet. most people don’t even think batman actually exists.

    • Just because Brubaker and Rucka “addressed” this issue in Gotham Central does not mean they addressed it well or sensibly. The idea that someone’s status as a temporary employee could somehow shield the GCPD from liability or shield Batman from the requirements of the state actor rule was laughable to anyone who thought about it for half a second and knows anything about employment law. The temp acts at the direction of the GCPD. The temp is therefore an employee of the state, for purposes of the state action doctrine.

  5. The Bat Signal Temp gives a nod to the issue, but it wouldn’t solve it, at least in the real world. A contract worker, even a temporary one, would definitely be a state actor. See, for example, cases regarding privately operated prisons.

  6. Christ, I Need A Drink

    What if the contract worker was not hired by the state, but by Wayne Enterprises? Would that make a difference?

    • I don’t think so. The worker may be paid by Wayne Enterprises, but he or she would be acting as an agent of the state because he or she would still take his or her orders from the police regarding the use of the Bat Signal. And even beyond the lighting of the signal there’s still the issue of Batman’s close cooperation with the police with information shared in both directions and actions coordinated between Batman and the police. The Bat Signal is only the most visible sign (heh) that Batman is working on behalf of the state.

    • Why would Wayne Enterprises want to do that though? It would be a good PR move for sure. But I have to think that any ties between Batman and Bruce Wayne that didn’t have to be there would get shot down by Wayne.

  7. It’s been years since I read comics regularly, so I can’t quote the specific issue or even creative era, but the major Batman titles have addressed this issue, at least indirectly. Batman would experience frustration that evidence he obtained could not be used to convict criminals, and he would regularly perform pre-arranged raids with the cooperation of Commissioner Gordon and the DA. Batman would first ascertain what evidence existed, and where it could be found, and then time his overt attack to provoke or disable the criminals so that the police could follow up promptly with a legal search. The desired result was to so orchestrate Batman and the police’s joint participation in the raid that the police would have legal grounds for search and seizure, and the DA would simply fail to file any charges against “Batman” for his illegal role.

    (Comics fans: continuity-wise, didn’t this cooperation with the DA’s office occur during the period when Harvey Dent was DA?)

    Of course, for the majority of the cases Batman handles, the above approach wouldn’t be practical, even if it were legally effective solution to the state action problem. And Batman’s perennial effectiveness suggests it doesn’t need to be… but it’s a very interesting question. I like your hypothesis that the state action doctrine is weaker in the DC Universe. After all, I don’t remember any Gotham DA being harassed for perpetually failing to file any charges against Batman…

  8. I’m more inclined to believe that Gordon keeps his association with Batman a secret. In “Dark Knight”, Nolan has Gordon declare Batman a fugitive. While the courts may still rule that he is a state actor, his outlaw status precludes this; in other words, Gordon can always point to having personally placed Batman on a list of public enemies. The catch, of course, is that Gordon is highly complicit in the actions of Batman and takes no serious steps to locate him or publicly uncover his identity.

  9. I never bothered with the comics, much preferring the wonderful 1960s TV series.

    Given that everyone in that Gotham knows of Batman’s relationship with the police, this issue may be the reason the supervillains are regularly released from prison after serving only a few weeks.

  10. I’m pretty sure Batman operates outside national legal boundaries.

    I mean, he has ties to Gotham police, and all. But it’s not like he’s gonna call the Russian embassy for airspace clearance before the Batwing trails Mr. Freeze into the Urals.

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  12. Any evidence/fruits of the poisonous tree obtained by Batman and used against a defendant WHILE law enforcement used the Bat-Signal could arguably be excluded. The Bat-Signal is good evidence of cooperation between the state and Batman.

  13. I like the argument that the DCU version of the State Action Clause is weaker. That or perhaps in a world with a large number of Superheroes, not just Batman, that there have possibly been court cases in the past that may have created percident where costumed heroes are excluded from it.

  14. First, I agree with you in terms of criminal prosecutions: Batman is a state actor, and so evidence that he obtained unconstitutionally is not admissible in the subsequent prosecutions.

    Second, though, the claims for damages are distinct, and I can see two possible explanations (for this issue the Batman writers likely never thought of).

    The simple explanation is that, in the Batman world, Congress has recognized that Gotham has an endemic crime problem, and so has amended Section 1983 to exempt “any claims for money damages arising from operations of, or relating to, the Gotham Police Department or the individual referred to as Batman.” That would nicely and neatly destroy all such claims.

    The long explanation is that Batman might destroy a lot of property in the course of his operations, but the bulk of those claims — e.g., the Batmobile ran over my car during a chase, the Bathook tore up the wall of my building, Batman smashed my window to climb through, et cetera — would not be Section 1983 claims but rather state law tort claims. Gotham might retain sovereign immunity for claims of those damages (a lot of states only waive sovereign immunity up to a figure like $250k) or, if they have enacted a state law analogy to the Federal Tort Claims Act, then they have partially waived sovereign immunity for those claims but also retain the right to substitute themselves as a party in the case and thereby keep Batman out of the proceedings entirely.

    • Was this amendment established during the “No Man’s Land” arc? If so, then I believe that it may have been revoked since then.

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  16. Maybe this explains why so many of Batman’s enemies end up in Arkham Asylum rather than jail. The prosecutors and courts realize they cannot succeed in a criminal charge, and instead seek to have the villains removed from society through plea bargains that result in successful insanity pleas.

  17. Is there any legal ground for CoGo’s explanation that the Bat Signal is merely a psychological tool to discourage criminal behaviour and that the GCPD does not acknowledge the Batman? Obviously this does not apply to any era wherein there is a direct line between the Batcave and Police HQ ie the 1960s Batman show.

    • This would tie in with the retcon I recall, where Batman is considered an urban legend by the average Gothamite … a story that the police and others spread in an attempt to intmidate criminals. That would definitely remove Batman as a state actor unless someone could turn up definitive evidence of his existance and the GCPD’s knowing collaboration. Otherwise, it’s like suggesting that Jim Gordon collaborates with the Tooth Fairy.

  18. What about this analysis?

    Private Party with a Public Function: If a private party is at issue, they are subject to the Fourteenth Amendment if there is a “company town” (Marsh v. Alabama) issue or a “white’s only park” (Evans v. Newton). Even if the private action has a predominantly municipal character, Jackson v. Metropolitan Edison 419 U. S. 345 (1974) significantly cabins the analysis, even though these cases are still good law. Jackson v. Metropolitan “found state action present in the exercise by a private entity of powers traditionally [and] exclusively reserved to the State.”

    I would say that policing is a power traditionally and exclusively reserved to the State under Jackson and therefore Batman is a state actor.

    I don’t think the Lugar analysis works because Lugar was confined to officers of the court, which would not include Batman. Evans was significantly limited by Jackson and the Jackson standard would apply.

    • I like that analysis. I think it may help to add a bit explaining that Batman is in fact engaged in policing because he’s cooperating and coordinating with the police to achieve the same goals. That level of really close cooperation is necessary because otherwise anyone who performs a citizen’s arrest or engages in certain forms of legal self-help (e.g. a merchant detaining a shoplifter, etc) might be considered a state actor since those are also police functions.

  19. I should say that Lugar was confined to actions by officers of the court. The United States Supreme Court has used differing analyses over the years – the Jackson standard being a private entity with a public function analysis.

    The category of cases at issue include the nexus between the private and the public function (Burton, Moose Lodge, Jackson, Blum, Rendell-Baker, Brentwood Academy, etc.)

    I agree that the cooperation and coordination between Batman and the Gotham police is essential. It may constitute and “entwinement” of public and private functions in a single organization. One could argue that Batman is not only a part of, but an integral part of, the Gotham police force. This combination of private and public actors may constitute “entwinement” under Brentwood Academy v. Tennessee Secondary School Athletic Association 531 U.S. 288 (2001).

  20. In the “No Man’s Land” storyline of 1999, the US government cut Gotham off, and no longer treated its residents as American citizens. The Feds blew up the bridges and restricted travel to and from Gotham. No one was allowed in, and no one was allowed out.

  21. I’m not sure a court would even need to find that Batman was performing police functions. I think a court could easily find that Batman was acting as a private investigator (or even as a nosy neighbor), who are not subject to the Fourth Amendment. There are many private investigators who either share their results with the police, or who have friends in the force: indeed, many P.I.s are ex-police, and they are certainly not required to give up their friends or stop from sharing ideas and theories and yet are not subject to Fourth Amendment constraints. (See generally Harry Wingo, Dumpster Diving and the Ethical Blindspot of Trade Secret. Law, 16 YALE L. & POL’Y REV. 195 (1997).) Simply because Batman is his own client and he does it for deep-seated psychological reasons doesn’t really change the analysis. Obviously, Batman would then lose any claim of (quasi-)sovereign immunity or whatnot, but I can’t imagine he had it anyway.

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  24. In most cases Batman’s foes do not end up in the penal system but in Arkham Insane Asylum, as nuts and not as criminals.

    • They may be in Arkham because they were found not guilty by reason of insanity, or they may be there because they are indeed incarcerated but need mental health treatment that the regular prison system can’t provide. Certainly Batman is still working the police, and even if the end result is involuntary commitment rather than a criminal trial Batman may still be a state actor. It would side step some of the problems but not others.

  25. How about this thought? For the same reason you say that batman could not testify in court, Batman is not an agent of the state. There is no way to prove the same person is always in the costume.

    • For that to work there would have to be at least two apparent Batmen: one that works with the state and one that doesn’t. Since we don’t know which one did any given bit of superheroing, we can’t call him an agent of the state. It’s an interesting theory, but I don’t think it would stand up to proof by a preponderance of the evidence. Without actual evidence of two Batmen (e.g., a photo or witnesses describing both at the same place at the same time), a judge or jury would probably accept the simpler explanation that it’s always the same guy.

      Of course, in cases where there have been more than one Batman–at least one of whom didn’t play ball with the police–then that may have some merit. That has definitely happened after Batman’s “death,” with a violent impostor taking up the costume, which lead to Dick Grayson doing the same in order to protect Batman’s image. In general, however, there has been only one Batman at a time.

      • And how would this change inthe wake of Batman, Inc., in which Batman is now an international franchise? At this point there will definitely be a number of “Batmen”, all identifiably different yet obviously related.

        Also, what of Bruce Wayne’s “revelation” that he ha been funding Batman throughout the years? Does this corporate tie-in change the Batman’s staus as state agent?

      • Ryan Davidson

        Actually, the corporate funding might run afoul of state and federal statutes which permit non-legislative funding of government agencies. I mean, imagine the potential for agency capture of industry was allowed to fund regulators. Wouldn’t change whether or not Batman was a state actor, but it could get a bunch of people in trouble for other reasons.

  26. Why are batman villains being constantly rereleased into the world after years of killing and other extremely serious federal offenses?

  27. In the Batman TV series, Commissioner Gordon once stated explicitly that Batman and Robin are “duly deputized officers of the law”. Of course, the TV Dynamic Duo rarely acted in a fashion that might have tended to call the legality of their action into question, notwithstanding their many trips up the sides of buildings courtesy of Batarang/Batrope, which might have constituted criminal tresspass.

  28. So then, if you could get the court to rule in that case that there is only one batman, couldn’t batman then testify as the court has already established that there is only one?

    • You could, but I’d imagine that the first question on cross would be something to the effect of “what’s your real name.” This would likely end, one way or another, with his testimony being struck.

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  30. The real problem with Batman, at least in the movies, is the illegal machinations involved in his power struggles over Wayne Industries, a problem I addressed in a 2005 blog post.

    Great site. Plan to keep reading it.

  31. Batman is also not the only hero whose MO raises questions. When Spiderman, for instance, leaves a criminal or supervillan trussed up in webs for the police to find, the evidence of actual wrongdoing is often sparse at best. Or does apprehension by Spiderman (or any other costumed hero) constitute evidence of the perpetration of a crime? I would argue that it does not, but the broader question is whether it is sufficient grounds for arrest, a search warrant, or other means of investigating the apprehended person.

    • I would appreciate more detail here. I am a deep thinker, but not as much a student of comic books as I would like (and even less so of most aspects of law, but I suspect that is less relevant). I would rather think that the evidence would be rather available, either from eye-witnesses (a person who was saved from a mugging) or simply looking around the area (a broken window to a jewelry store). Now in the second case a defense attorney could attempt to claim that Spiderman caught the wrong guy, or, in an extreme gambit, that Spiderman had brought the accused to the nearest crime-scene to frame them for some personal reason. However I would think that being a “pinata” would soon have enough historical precedent (IE usually a criminal, based on previous cases with independent verification) to at least constitute enough probable cause to check the individuals finger-prints against the nearby crime-scene and such things.

    • They’ve already done a Spider-Man story where a cop bluntly says they have to let a bunch of the criminals Spider-Man stops go afterward since they have no way to prove they were engaged in a crime. But fortunately Spider-Man is by no stretch of the imagination a state agent for a good 95% of his career.

  32. Julian Ferguson

    I have a question: You say early on that evidence obtained by private individuals is admissible, but is there an issue when the police have to explain where it came from? Does it become a problem when Batman finds some vital piece of evidence and Gordon can’t verify where it was obtained without revealing some cooperation with Batman?

    • I don’t actually recall a lot of situations where Batman finds actual physical evidence which needs to be used in court. But of course the police can use evidence dropped into their hands by Batman just by saying “it was dropped into my hands by Batman”. The defense would have to establish that the means by which Batman obtained the evidence violated the accused’s rights, and that Batman had actually been asked by a policeman to take part in the case. The regular cops, the ones who testify at trial, aren’t the ones who ask Batman for his help.

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  35. Chalk one up for Carl Jung and Synchronicity.

    I was havign similar thoughts the other night. Strange considering I have never given Batman a second thought before.

    I also seem to remember Batman actually being deputized for some reason.

  36. I wonder if the actions of superheros could be compared to the letters of marque and reprisals in the Constitution?

  37. I’d say Gordon keeps his work with Batman a secret. As you’ll note in Batman the Animated Series (from the early 90′s) you very rarely see Gordon and Batman talking face to face and never in the presence of another person. You always see Gordon talking while facing away from Batman while Batman is in the shadow’s or on a ledge and when they do talk face to face it’s alone in a dark alley or in the commisioner’s darkened office.

  38. Batman would be a state actor. I think I recall earlier cases in the state action line addressing people formally or informally “deputized” by the police or state’s attorneys – posses, basically – who would be state actors on the specific rationale that law enforcement can’t hide behind private citizens to get around the Bill of Rights. So notwithstanding that Batman is mostly a vigilante acting outside the law, the fact that he trades info with Commissioner Gordon and has that working relationship would probably make him a state actor, and therefore exposed to Section 1983, compensatory damages, punitive damages, attorneys fees, and injunctive relief.

  39. I remember an issue of Batman from the early ’80s, I think, where he is battling, of all things, a band of cigarette smugglers. There is a moment where he open up the cases in front of Commissioner Gordon. I believe the dialogue made the issue that since he wasn’t an agent of the state, he didn’t need a search warrant. However, once the materials were in plain view, Gordon and the GPD could act. I doubt the writer considered all the legal permutations above but at least he did consider it.

  40. There’s also the issue of ‘which Batman.’ Comic canon (and then pre- or post-Crisis and which guy in the Bat-suit)? Animated? TV show? B&R? Nolan’s version? etc. It’s an interesting question, though. I run a Batman Begins-based rpg and hadn’t really considered it (though I certainly will now, and with plenty of food for thought).

    • Almost all of them have that working relationship with Gordon that would make Batman a state agent, although in a few cases it’s a secret.

  41. Batman is often considered or described as a highly-competent detective. That must mean he has significant awareness of the law. So like other above, I tend to think of him as a rough-and-tumble PI privately employed by Bruce Wayne. The problem is of course, nobody can catch the Bat, to ask him where the money comes from.

    So Batman neutralizes the bad guy, leaves out the evidence where the cops have an easy time to find it, sends a tip to the police, and bugs out. The trick is to leave clues in such a way as to prevent the Joker from claiming that the Batman planted bogus evidence: the evidence to be found is incontrovertible and unassailable, even though it looks like the cops got lucky: dang, there just happens to be this surveillance video that we found that shows the dirty deed.

  42. …and it’s not just Batman! I’ve never seen anything about Superman passing a civil service exam or going through the police academy. Worse than that, he’s an illegal alien! He can’t be a police officer and make arrests!

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  44. House UnAmerican Activities Committee vs “Captain Invincible” AKA “Legend in Leotards”, “Caped Contender”, “Man of Magnet” is precedent. The defendant, who refused to deny he was a card-carrying communist, was charged with violating U.S. airspace by flying without a proper license, and wearing underwear in public. He skipped the country to avoid prosecution.

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  46. I’ve always wondered about chain of evidence and probable cause hearings vis-a-vis Batman. Take “Batman Begins” and his first appearance: He trusses up all those guys unloading the drugs in the toys at the port, including Falconi. Cops show up and take them into custody – now what? They get public defenders or Falconi gets his $500/hr consigliere to show, and the preliminary hearing for probable cause, isn’t the first person to testify the arresting officer? What’s the chain of custody tieing the contraband to the individuals present in the courtroom? When it comes down to it, isn’t their an arrest report that begins the criminal prosecution, and is the foundational document? Wouldn’t Batman have to testify, and sign that report and swear to it, providing appropriate details about his name etc. under oath? And in a probable cause hearing, wouldn’t he have to take the stand and be subject to cross-examination, as well as at trial?

    Just wondering, have been wondering for some years. Still like the Batman and all, Superman too – in the 1st Christopher Reeve film, it ends with Superman flying into prison with Lex and Otto, and turning him over to authorities – but did they get a trial? Did Superman testify? Did he have to reveal his Clark Kent identity? If the arresting office can’t testify, can a criminal prosecution proceed?

    • There seems to be some sort of law in the DC Universe that allows Superman to testify without being asked about his secret identity. Or at least there was in the Silver Age. I remember a comic where it was some Kryptonian holiday celebrated by telling the truth at all costs, someone found out, and he was asked for his secret identity in court. The judge told him he didn’t have to answer, but he was still required by Kryptonian tradition to do so, so he agreed to write his name on a blackboard but wrote it at super speed, causing the blackboard to instantly catch fire.

    • If asked his name, Superman could say his name is Kal-El without perjuring himself and keeping his Clark Kent alias a secret.

  47. Very recently, Bruce Wayne (having returned from the dead, but fortunately no one noticed, as an impostor took over his secret identity) has announced that he funds Batman (and the associated superheros of Gotham, which include both himself and an adult Dick Grayson both as Batmans. Batmen?). Look up “Batman Incorporated”.

    That would seem to open him up to lawsuits.

  48. I’ve always assumed the police denied their association with Batman, and no one could every really prove otherwise. There’s that line in Dark Night when Dent confronts Gordon and demands to meet Batman, when Gordon describes the Bat-Signal as a maintenance problem.

    Consider this analogy. Two gangs start shooting at each other during a drug deal at a warehouse, and the shots attract police who arrive to find most of the criminals either dead or wounded. All of them surrender in the face of dozens of armed police officers. The police will still have to collect evidence, interview suspects, and probably get some to turn on the others. Even if all of the members of one gang were to escape, that wouldn’t change any of that, and charges (possession, RICO, etc.) would still be brought against everyone the police caught that didn’t die. When it’s Batman that helps, the prosecutors always take the position that he’s a criminal vigilante who is not legally a state actor. GCPD are diligent about all of their records stating as much, and there is some detective with good connections in the Union whose job it is to go into court and testify he’s looking for Batman.

    Even if Batman was a state actor, you’d be hard pressed to collect under a 1983 suit. First, I wouldn’t envy the process server whose job it is to try to serve Batman with process. Even if you did get good process, I don’t imagine he’d show up to court. Collection becomes virtually impossible (unless Batman decides to make a settlement offer, and pay it out of Bruce Wayne’s considerable wealth).

    The question (arguably the most interesting one) then becomes whether someone (be it a criminal or injured bystander) could bring a 1983 case against Gotham City. Under Monell v. City of New York Department of Social Services, 436 U.S. 658 (1978), municipalities are not liable under a respondeat superior theory. Monell requires a finding of policy by the municipal entity. This can come in the form of a formal policy, a custom, a failure to train, and failure to screen. As stated above, the official policy of Gotham and the GCPD will undoubtedly be not to cooperate with Batman, even if they are actively doing so. And even if their cooperation can be proved, Batman’s individual unconstitutional acts will no doubt violate the Department’s written policies. Failure to screen will also not be the source of a claim; the city never hired Batman, he set off on his own.

    One possible theory of a 1983 suit against the city would be that of custom. If after having actual or constructive knowledge of Batman’s unconstitutional methods the city continued to work with him and to aid him in his efforts, then it could be argued that the city has ratified his behavior. Such knowing ratification must be carried out by a municipal policymaker. A policymaker is someone who makes decisions on behalf of the municipality that are not reviewed by a superior (although decisions that are ratified for the same reason also count as having been made by a policymaker). Whether or not Commissioner Gordon is a policymaker is a fact-specific question would probably vary between and even within continuities.

    The second theory is a failure to train. This seems like a pretty strong argument. Here, when a policymaker makes a conscious choice regarding training that demonstrates disregard that an employee of a municipality will violate people’s civil rights, that constitutes a policy. Here, although Batman is not an employee, his work with the GCPD probably make Gordon’s failure to insist he educate himself in proper police procedure a municipal policy.

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  59. Jennifer Esther

    In the tv drama Elementary the consultant Sherlock Holmes claims he is nota cop and is nto paid so can do things like kick in the door of a suspect without a warrent and question a person who the cops cannot interogate. I know not technicallya comic question but it seems to me from this at a consultant called in by the police would be a state actor. Am I wrong?

    • It all depends on the details of Holmes’s relationship with the police: the extent to which they coordinate, whether the police can give him orders, whether he’s been asked to gather information about that particular suspect, whether the police give him information and access to evidence, whether he knows the police will use information and evidence that he collects, etc. As you suggest, there’s a lot more to it than just whether he’s paid or not.

      I haven’t seen the show yet, so I can’t say for sure, but my guess would be that Holmes would qualify.

  60. Thanks, I wasn’t expecting an official reply. It’s a show I enjoy but probably not one for the ages. The police call him in to consult so it’s more official than a nosy neighbor mystery solver. The police do give him info and access to evidence, he examines the crime scenes too. He expects the police to use evidence he provides. I can’t remember him collecting forensic evidence without the police being present.

  61. In Episode 3 (forgot which season, though *_*) he took a piece of dirt from the ground that was left there by a suspect’s shoe in front of the police and ran it thru the lab to see what chemicals/soil types/etc he could get out of it. That’s one example at least.

    I’m reckoning that Batman operates like Sherlock Homes (“World’s Greatest Detective” and all that) who finds himelf in a much darker and more corrupt city than 19th century (or, 21th century) London, facing more dangerous criminals than Moriarty could ever hope to be; and therefore has to use more drastic measures than SH to level the field; no sitting-on-5-pillows-and-consuming-1-ounce-of-shag for him.

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