Monthly Archives: March 2011

Law and the Multiverse Mailbag XI

This week we have a question about No Ordinary Family and reckless endangerment.  As always, if you have questions or post suggestions, please send them to and or leave them in the comments.

James asks “The ABC show No Ordinary Family aired a recent episode where the character Jim, who is invulnerable, deflects a bullet which ricochets off of a number of metal objects and winds up striking a teen bystander. … Jim feels responsible for what happens to the young man, especially in that he chose to confront the man whom he knew was armed.  How much responsibility would he truly bear? Does he have a duty to take this fight into a secluded area (which he did – the bystander was inside a nearby building)? Could he be charged with reckless endangerment, even though he didn’t know the boy was there, since he does seem to be showing off in front of the criminal?”

Although No Ordinary Family isn’t based on a comic book, it does feature a lot of superhero comic book tropes and—most importantly for us—it’s set in a world that shares our legal system.  This particular question is also interesting because it’s the kind of collateral damage that shows up in many comics.

So is Jim guilty of anything here?  Or perhaps liable in tort for the teenager’s injuries?  The first question we have to ask is “what law applies?”  When talking about Gotham or Metropolis there’s not always a definite answer for that, but in this case we know the show is set in a fictional town in California, so we’ll apply California law.  First, the criminal law.

I. Was It a Crime?

As it turns out, like many states California does not have a general offense of reckless endangerment.  California does have reckless endangerment-like laws regarding the discharge of firearms, but those don’t apply here since Jim wasn’t the one pulling the trigger.  But maybe a different offense fits.  Let’s consider the most generic one: simple battery, which is defined in Cal. Penal Code § 242 as “any willful and unlawful use of force or violence upon the person of another.”

As you can probably guess, the analysis here depends on what exactly “willful” means.  In California, the mental state or intent required for battery is the same as for assault because an assault is simply an attempted battery.  People v. Hayes, 142 Cal.App.4th 175, 180 (Cal. Ct. App. 2006).  “Assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.”  People v. Williams, 26 Cal.4th 779, 790 (2001).  Since Jim did not know that the bystander was there and since ricochets are highly unpredictable, Jim couldn’t have known that his actions would “probably and directly result in the application of physical force against another.”  So we don’t think Jim committed a crime in this case.

II. Was It a Tort?

If Jim isn’t criminally liable, what about a tort suit by the victim?  Here we can turn to the law of negligence.  In California the elements of negligence are a legal duty of due care and a breach of that duty that is the proximate (i.e. legally responsible) cause of the resulting injury.  This is also known as “duty, breach, causation, and damages.”  Conroy v. Regents, 45 Cal.4th 1244, 1250 (2009).  Here the damages are clear (the dude got shot), so let’s consider the first three elements.

A. Duty

As a general rule in California, everyone has a duty to use ordinary care to avoid injuring others.  Cal. Civ. Code § 1714(a).  However, this only extends to injuries that were reasonably foreseeable to the defendant at the time.  Dillon v. Legg, 68 Cal.2d 728, 739 (1968).  The analysis, however, is generalized to “whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.” Lawson v. Safeway Inc., 191 Cal.App.4th 400, 409 (Cal. Ct. App. 2010).  “Sufficiently likely” means “likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.”  Friedman v. Merck & Co., 107 Cal.App.4th 454, 466 (Cal. Ct. App. 2003).

So would a reasonably thoughtful person take into account the possibility of ricocheting bullets striking an unknown person?  Certainly many superheroes are concerned with the possibility of their actions harming bystanders (including bystanders that may not be readily apparent), and many go out of their way to avoid or prevent such harm.  On the other hand, ricochets are unpredictable, and we’re not sure the reasonably thoughtful person would spend much time contemplating physics while getting shot at.  We could see a court going either way with this, but let’s assume the court says there’s a duty here so we can continue the analysis.

B. Breach

In general, a duty has been breached when the defendant has displayed less than ordinary, reasonable care or prudence.  See Mosley v. Arden Farms Co., 26 Cal.2d 213 (1945).  So how do we judge that?  California, like many states, follows the Learned Hand formula of negligence, named for the famous Judge Learned Hand.  Crane v. Smith, 23 Cal.2d 288, 298-99 (1943).  Basically, you multiply the likelihood of the harm by the magnitude of the harm, then compare the result to the cost of preventing the harm.  If the cost to prevent the harm is less than the average cost of the harm, then not preventing it is unreasonable.  In other words, spending a $1 to prevent $2 worth of harm is reasonable, but spending $2 to prevent $1 worth of harm is not.  It’s a kind of reductive view of rationality, but the law is like that sometimes.

In this case it’s hard to put a number to either the harm or the cost.  Instead, we can simply consider the circumstances and ask what a normal person would do if someone pointed a gun at their face.  Most normal people would do exactly what Jim did: throw a hand up in a—for most people futile—effort at self-defense.   And the ricochet might have occurred even if it had been an ordinary person; bullets can ricochet off of rings, watches, and even bones.

In fact, it was actually self-defense in Jim’s case, since a high-powered bullet fired at close range is capable of hurting him, so he tends to deflect bullets with his hands rather than his face.  Since an ordinary person would probably have done exactly what Jim did under the circumstances, we don’t think there was a breach of duty here.  There’s no negligence without a breach, and so Jim wouldn’t be liable and the analysis ends there.  Thus, we don’t actually have to consider causation (although if people are interested we think there’s a sort of flimsy argument to be made there as well).

(NB: The fact that it was a lawful act of self-defense is not itself a defense to negligence.  “No purpose, however benevolent, excuses negligence.”  Woodhead v. Wilkinson, 181 Cal. 599, 602 (1919).  What matters is that an ordinary person would have done the same thing under the circumstances.)

III. Conclusion

We don’t think Jim is criminally or civilly liable for the victim’s injury.  By contrast, the attacker is at a minimum guilty of attempted murder (of Jim) and grossly negligent discharge of a weapon.  He would also be liable in tort.

That’s all for this week!  Keep your questions and post suggestions coming in!

Superpowered Minors, Part Four

This is a continuation of our earlier series on superpowered minors.  The first three parts of the series dealt with the criminal, contract, and tort liability of young superheroes and supervillains.  Now we come to the legal issues facing the parents, legal guardians, and adult team members of those precocious crime-fighters and ne’er-do-wells, which many of our readers and commenters have asked about.

There are three major areas of concern.  First, child welfare laws.  Second, employment and child labor laws.  Third, vicarious liability for the minors’ crimes and torts.  We’ll look at the first two areas today and the third in a future post.

I. Is Robin a Victim of Child Endangerment?

All states have laws against child abuse, although the specifics vary.  In the case of superheroes we are not terribly concerned with laws against intentionally or willfully harming children.  See, e.g., Cal.Penal Code § 273d.  As far as we know, intentional child abuse by superhero parents and guardians is rare to non-existent.  Nor are we concerned with child superheroes who keep their activities a secret from their parents.  As long as those parents aren’t neglectful  or turning a blind eye, they’re probably in the clear.  Instead, we are concerned with child endangerment or indirect abuse.

Consider, for example, Cal.Penal Code § 273a(a): “Any person who, under circumstances or conditions likely to produce great bodily harm or death … willfully causes or permits [a] child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment….”  Cal.Penal Code § 273(a)(b) covers the same thing except without the “great bodily harm or death” part, which makes it a misdemeanor.

Note that “likely to produce great bodily harm or death” does not mean “more likely than not.”  Instead, it means a substantial danger or a serious and well-founded risk. People v. Wilson, 138 Cal.App.4th 1197, 1204 (Cal. Ct. App. 2006).  So just because Batman and Robin usually escape without harm does not mean that great bodily harm or death is not likely for purposes of the law.

California courts have held that in cases of indirect abuse (i.e. where the child is not harmed by the caretaker directly) criminal negligence on the part of the caretaker is required.  People v. Valdez, 27 Cal.4th 778, 789-90 (2002).  California defines criminal negligence as “‘aggravated, culpable, gross, or reckless … conduct … [that is] such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life.”  Id. at 783.  So now we come to the crux of the issue: is taking Robin along to fight crime such a departure from the conduct of an ordinarily careful person under the same circumstances as to be incompatible with a proper regard for human life?  We think the answer may be “no” for two reasons.

The first reason is the crucial phrase “under the same circumstances.”  In the case of Batman and Robin, the circumstances are a highly trained, highly equipped, highly experienced guardian working with a highly trained, highly equipped, and (eventually) highly experienced assistant.  Fighting crime under those circumstances does not seem incompatible with a proper regard for human life.  Batman has also demonstrated care for Robin by preventing him from working with him on numerous occasions when the circumstances have been too dangerous, eventually stopping his collaboration with the first Robin (Dick Grayson) altogether after Robin was shot in the shoulder by the Joker.

The second reason is that indirect abuse is usually characterized as a crime of “extreme neglect.”  Id. at 784.  Batman is a lot of things but neglectful is not one of them.  He is in many ways a very active and engaged guardian to Robin. This simply doesn’t seem to be the kind of behavior the statute is meant to address.  One might compare this to other dangerous activities undertaken by parents and children, including driving, which injures about 250,000 children each year and kills about 2,000.

So at least in the case of Batman and Robin, child endangerment does not seem to be an issue.  Not all parent-child superhero teams fit their mold, however. For example, Big Daddy and Hit Girl in Kick-Ass would probably run afoul of child endangerment laws.  The evidence against Big Daddy would include the much greater degree of danger and (consistent with traditional neglect) Big Daddy giving Hit Girl cocaine, even if it is ‘only for emergencies.’

II. Should Robin At Least Be Getting Paid?

Also of concern are child labor laws.  There are both federal and state child labor laws.  The main federal child labor law is a part of the Fair Labor Standards Act of 1938, which prohibits “oppressive child labor.” 29 USC 212(c).  The definition of oppressive child labor given in 29 USC 203(l) is a little complicated, but we’ll try to break it down:

  1. As a general rule, no employees under 16 are allowed
    1. except a child employed by a parent or guardian (subject to part B, below)
      1. except if the occupation is manufacturing, mining, or an occupation found by the Secretary of Labor to be particularly hazardous for 16-18 year olds or detrimental to their health or well-being
    2. except if the Secretary of Labor says that it’s okay for 14-16 year olds so long as it’s confined to periods which will not interfere with their schooling or their health and well-being
      1. except mining and manufacturing are still out
  2. As a general rule, employees from 16-18 are allowed
    1. except if the Secretary of Labor has declared the occupation to be particularly hazardous for 16-18 year olds or detrimental to their health or well-being

Whew.  Got all that?  So we can see that the rules depend a bit on the child superhero’s age and their relationship to their adult superhero-supervisor.  In Robin’s case it looks like he’s in the clear to work with Batman so long as the Secretary of Labor doesn’t declare “crime-fighting” to be a particularly hazardous occupation.  However, many state child labor laws have “catch-all” provisions that prohibit employing children in dangerous occupations of any kind, no special pronouncement from the Secretary of Labor required.  If Gotham is in such a state, then things could get a bit dicier.

Of course, none of this matters if the superhero kid isn’t considered to be working in the first place.  You might think “well, they aren’t getting paid, so it must not be work, right?”  That can’t be the only thing to consider, though, otherwise it would be a great incentive not to pay one’s child employees.  As a result, many states have laws that make the presence of a child in a business presumptive evidence that the child is employed there.  See, e.g., Mo. Rev. Stat. 294.100; La. Rev. Stat. § 23:233.  But the Batcave doesn’t seem to be a place of business, so that’s not an issue.  All things considered, Robin and most other sidekicks are probably not employees.

So are there any cases where a child superhero might be considered an employee?  We think it would probably require an adult superhero who was in it for the money (e.g. collecting rewards or working as a mercenary or professional government agent).  Such superheroes definitely exist, but they don’t tend to have teenage sidekicks.  If any of our readers can think of an example, please let us know!

III. Conclusion

Child endangerment laws should be a concern for any superhero with a minor sidekick.  Absent pretty extraordinary (e.g. Batman-level) evidence of competence, safety measures, and general carefulness, fighting violent crime is probably dangerous enough to qualify as endangerment.  We suppose sidekicks could stick to fighting white collar crime, but “The Adventures of Securities Regulations Enforcement Boy” are unlikely to make for a very gripping read.

On the other hand, child labor laws are probably not a big issue, particularly for superheroes who act out of altruism and take care of their sidekicks.  But if a superhero is in it for the money, then giving a sidekick a cut is probably called for.

Pro Bono Radio Redux

Law and the Multiverse has inspired another episode of Pro Bono Radio, a program of CFRC, the radio station of Queen’s University.  The episode can be downloaded here.  Interspersed between law-themed superhero radio show parodies, the hosts discuss mind control, the necessity defense, and indestructibility and factual impossibility.  We think you’ll enjoy hearing about the Canadian perspective on these issues.  The radio show parodies are pretty funny, too.

Bonus: Canadian superhero team Alpha Flight gets a mention this time around, particularly Murmur.

Abnormal Use Interview

Attorney Jim Dedman, co-author of the Abnormal Use law blog, interviewed us about Law and the Multiverse. We think you’ll enjoy the interview, and thanks to Jim for talking with us.

Of interest to our readers: in addition to being a blog about products liability litigation, Abnormal Use also features legally-themed comic books covers on its Friday posts as well as interviews with law-related pop culture personalities such as Fairly Legal creator and show-runner Michael Sardo.

Superheroes and Citizen’s Arrest

This post is about a fundamental issue for superheroes: when can they arrest the bad guys?    The answer is clear enough in some situations: a superhero working for the police can arrest someone whenever a police officer can, and when a villain is threatening a superhero or another person with physical harm then the superhero can act in his or her own defense or in defense of the third person.  But what about regular superheroes who see a non-violent crime being committed or know it’s about to happen?  For example, in the movie Batman Begins, Batman uncovers local mobsters receiving a shipment of drugs in a cargo container.  Can he arrest them and leave them for the police to find?

Before we go into detail, we should say that by “arrest” we mean to restrain or confine; this is the arrest of “false arrest” and doesn’t include things like reading the suspect his or her rights.  Those are issues for the police, not private individuals acting as superheroes.  It’s one of the many benefits of not being a state actor.

I. The Law of Citizen’s Arrest

At common law, both police officers and private individuals could arrest someone without a warrant for a felony or breach of the peace committed in their presence (i.e. they had to actually see it happen).  However, police arrests and private arrests differed if it turned out no crime had been committed.  As long as the police officer was acting reasonably, he or she was protected, but a private individual acted at his or her own risk (e.g. there might be a false arrest claim).

These days, citizen’s arrest is typically addressed by statute rather than common law rules.  Many states essentially codified the common law approach, but other states have broadened the law a bit, such as New York’s statute, N.Y. Penal Law §35.30(4) :

A private person acting on his or her own account may use physical force, other than deadly physical force, upon another person when and to the extent that he or she reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom he or she reasonably believes to have committed an offense and who in fact has committed such offense; and may use deadly physical force for such purpose when he or she reasonably believes such to be necessary to:

(a) Defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force; or

(b) Effect the arrest of a person who has committed  murder, manslaughter in the first degree, robbery, forcible rape or forcible criminal sexual act and who is in immediate flight therefrom.

There’s a lot going on here, so let’s break it down a bit.

The general rule in New York is that a private person may use reasonable non-deadly force to arrest someone that the person reasonably believes has committed an offense and who has in fact committed that offense.  It might seem strange to require both reasonable belief and actual commission of the offense, but this belt-and-suspenders approach covers the case of someone falsely arresting a person who, by sheer happenstance, has committed an offense.  In other words, lucky coincidence is not a defense to false arrest.

Note, though, that reasonable belief is required, not that the private person  witnessed the crime being committed.  This is a significant difference from the common law.  However, actual commission is still required, so if the private actor gets it wrong, they’re on the hook.

The statute also gives two exceptions allowing the use of deadly force when reasonably necessary.  First, self-defense and the defense of others while carrying out the arrest, which is sensible enough.  Second, to arrest someone who is in immediate flight from the commission of a serious violent crime: murder, manslaughter in the first degree, robbery, forcible rape or a forcible criminal sexual act.

II. How Does This Work For Superheroes?

Right off the bat it’s apparent that superheroes had better know their criminal law.  Since they’re risking criminal and civil liability if they arrest someone who hasn’t actually committed a crime, they need to be sure of the situation before swinging into action.  And this is probably a good thing; we wouldn’t want superheroes smashing heads or tying people up in webs on a hunch.

What’s more, superheroes need to know what kind of crime has been committed, what evidence is required, and what kind of force they can use.  The New York law is very broad, covering all offenses (i.e. anything punishable by imprisonment or a fine), but other states only allow citizen’s arrest in cases of a felony.  See, e.g., Ind. Code Ann. § 35-41-3-3.  Some states (e.g. Colorado) require, like the common law, that the crime actually be committed in the arresting person’s presence. C.R.S.A. § 18-1-707.  The rules for the use of deadly force also vary from state to state.

Practically speaking, citizen’s arrest isn’t very practical in the real world because it’s so dangerous to try, criminals aren’t likely to respect a private individual’s attempt to arrest them, and because the police and the courts generally frown on ‘self-help.’  The first two issues aren’t problems for superheroes: they can handle themselves and criminals will respect them one way or the other.  But staying on the good side of the police and courts is important for most superheroes.  That’s another reason it’s so important for superheroes to get it right when they arrest people: too many screw-ups and the police will be after them instead.

Of course, most of this only applies when superheroes are dealing with more-or-less regular criminals.  When Doomsday or Darkseid come to town, all bets are off.

As for the Batman example from the beginning of the post: Falcone and his men were clearly in the middle of committing numerous felonies, so Batman was justified in using non-deadly force to arrest them.  Since this meets the restrictive common law standard, it would work in just about any state.

III. Conclusion

Citizen’s arrest is an effective legal justification for a lot of what superheroes do, but it has some important limitations that often vary from state to state and superheroes should definitely think before they arrest.  This is one area where the legally-educated superheroes like Daredevil, She-Hulk, and Manhunter are at a distinct advantage.

Law and the Multiverse Mailbag X

In today’s mailbag we have questions about ‘Batman, Prosecuting Attorney’ and supervillain jury tampering.  As always, if you have questions or post suggestions, please send them to and or leave them in the comments.

I. Batman, Prosecuting Attorney?

Christopher writes with two questions.  First: “I was watching the 60’s Batman episode ‘The Joke’s on Catwoman.’ … Batman captures the Joker, Catwoman, and her henchmen. Presumably he arrests them, as he seems to act as a law enforcement officer in this show. Then he acts as prosecutor at their trial (no doubt he is a member of the bar). Seems pretty strange, but is this actually allowed? I started wondering whether the sheriff in a Wild West town might do this if there were no one else around to prosecute the case.”

There are three main problems with this arrangement.  First off, it’s pretty unlikely that Batman is an admitted member of the bar because he would have to be admitted as Batman, not Bruce Wayne lest he give away his secret identity. While attending law school is not a necessary prerequisite of becoming an attorney in some states (actually, quite a few states didn’t require this in the 1960s), it is doubtful that Batman found the time to “read law,” i.e. work as an apprentice in a law firm for a few years before taking the bar exam.  While a frontier town might have employed a non-lawyer as a prosecutor out of necessity, the frontier era also preceded the relatively modern era of professionalization and standardization in legal education and licensing.  And the exigent circumstances of a frontier town hardly apply to Gotham City.

Further evidence that Batman wasn’t admitted is found in his questionable conduct of the trial (e.g. asking witnesses to testify regarding ultimate issues of guilt).  Of course, the defense attorney didn’t object, and some judges are happy to let such things slide if there’s no objection, so we won’t go into detail on that except to say that, were they found guilty, the defendants might have an ineffective assistance of counsel argument on appeal.  Normally such arguments are long shots, but this was pretty bad.

Second, Batman would be unable to serve as prosecutor because generally an attorney cannot be an advocate in the same case in which he or she is likely to be a necessary witness.  Since the defense could call Batman as a witness even if the prosecution did not, this is a problem.  ABA Model Rule 3.7, which has been adopted in almost every state, provides:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

(1) the testimony relates to an uncontested issue;

(3) disqualification of the lawyer would work substantial hardship on the client.

Presumably the defendants would contest the issues that Batman’s testimony relates to, so exception (1) is out.  And I have a hard time believing that the government couldn’t come up with a competent substitute prosecutor, so there goes exception (3).  The second exception, which deals with testifying about the value of legal services, is inapplicable here.

(For the pedants in the audience: the episode long predates the Model Rules and even the predecessor Model Code, but a rule against lawyer-witnesses was a part of the ABA Canons of Professional Ethics, which dates to 1908.  The result under the Canons would have been much the same.)

Third, Batman could have been disqualified because of his clear conflict of interest in the case.  There is a “broader consideration of whether on the facts of a particular case, the adversarial nature of the judicial process has resulted in such enmity toward the defendant on the part of the prosecutor that it will overbear his professional judgment in seeking fairly and impartially to see justice done.”  Powell v. Commonwealth, 267 Va. 107 (2004).  Batman’s long and acrimonious history with the Joker and Catwoman likely rises to that level.

Thus we can fairly safely conclude that Batman should not have acted as prosecutor, and in fact the defense attorney could have successfully challenged Batman’s appointment for cause.  That he didn’t shouldn’t be too surprising, however, since he knew the case was a lock because he tampered with the jury, which brings us to the second question.

II. Supervillain Jury Tampering

Christopher also asks “At the end of the trial, it is absolutely obvious to the judge and everyone else that the defendants have been proven guilty, but the jury returns a verdict of not guilty, leading everyone to suspect the jury has somehow been tampered with. The judge can’t do anything but make a statement upbraiding the jury for their outrageous behavior. What would actually be done at this point? Later, it is discovered that the defendants managed to infiltrate the jury with accomplices. What would the law do at that point?”

Here the law is pretty clear.  “A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal.”  United States v. Scott, 437 U.S. 82, 91 (1978).  This is a core part of the prohibition against double jeopardy, and it is an absolute bar, even if the jury was clearly acting contrary to the law and the facts.

So what’s to be done in a case like this?  The answer is that the State (as represented by Batman) had a full opportunity to challenge potential members of the jury during voir dire (i.e. jury selection).  The prosecution could even have moved for a mistrial when the jury refused to retire for deliberation; that should have been a sure sign something was up.  But if the State falls down on its job and a guilty defendant goes free, them’s the breaks.  The Constitution does not allow the State to try again until it gets it right.

All is not lost, however.  The jurors are probably guilty of perjury or the like, since during voir dire they were almost certainly asked if they knew any of the defendants.  So the jurors at least could be punished for their part in the scheme.

As for the defendants, as is so often the case their own foolishness lead to their downfall.  After Batman tried to move for a new trial they started a courtroom brawl and were recaptured, so they would at least face charges of assault and probably conspiracy to commit murder (the jury foreman pulled a gun on Batman at Catwoman’s order).  But if they had stayed quiet they would’ve gotten away it.  Maybe they should have gotten a better attorney than “Lucky” Pierre.

Note that this is not the case in civil trials. The right against double jeopardy only applies in the criminal context; judges routinely order new trials in civil matters when there has been some uncorrectable foul-up. They don’t like doing it, because it’s viewed as a waste of time and resources by just about everyone, but they will do it if necessary. In addition, judges are not so strictly bound to jury verdicts in civil cases and are entirely capable of entering judgment notwithstanding the verdict, known as a “JNOV” if the jury refuses to return a verdict consistent with the evidence. So just because the Joker could have objected to the above trial doesn’t mean he couldn’t be sued on civil charges, and as new trials are possible in civil cases, jury tampering isn’t nearly as effective a device as it is in criminal cases.

Bonus: One of the charges against the defendants was “mayhem.”  Mayhem is a felony descended from the common law, and a typical modern definition is “unlawfully and maliciously depriving a human being of a member of his body, or disabling, disfiguring, or rendering it useless, or cutting or disabling the tongue, or putting out an eye, or slitting the nose, ear, or lip.”  Cal. Pen. Code § 203.  A bit gruesome for an Adam West Batman villain!

That’s all for today!  Keep your questions and ideas coming in!

Superheroes and International Law II: Unusual Sovereignties

A little while ago we talked about some international law issues related to S.H.I.E.L.D. This time we’re going to talk about the stories where superpowered characters wind up actually running countries, and some of them quite peculiar countries at that.

The basic question here is “What constitutes a sovereign state?” The answer is basically “What other sovereign states recognize to be sovereign states.” If that seems a little circular it’s because it is: as a defined legal concept, sovereignty dates back to the Peace of Westphalia in 1648, which ended the Thirty Years’ War between just about everybody in Europe. Still, this is definitely know-it-when-you-see-it territory. In fact, territory, literally speaking, is probably something that’s required. Sovereign states may hem and haw over whether or not they recognize a particular institution or set of institutions as being sovereign over a particular piece of real estate, but it’s very, very unlikely that sovereignty is going to be recognized in a government that has no exclusive physical control over a discrete land area. Indeed, having that exclusive control is basically all you need to be a de facto state.

I. “Normal” States

With that said, there are a number of comic book stories that involve sovereign states of one sort or another. Some of these are pretty unremarkable, legally speaking. Latveria, ruled by Doctor Doom, is a fictional nation in the Marvel universe carved out of Romania and Serbia, mostly the former. During Dr. Doom’s rule it was a dictatorship/absolute monarchy, a form of government which, while increasingly unfashionable today, does still exist. Latveria, for all intents and purposes, is just another small European nation unfriendly to US interests. It stands with half a dozen or so other nations in that respect, including Serbia and some of the former Soviet republics, depending on how the winds are blowing on any given weekday. But Latveria is presumably official recognized by the United States and other modern governments, and if Neil Gaiman’s 1602 is any indication, it’s been around as an otherwise normal sovereign state for at least four centuries. So far, there isn’t much to say here. Latveria does not present any legal issues the State Department doesn’t already handle every day. The whole mad-dictator-using-supernatural-powers thing is a bit unusual, but it isn’t a strictly legal problem. This also probably goes for the dozen or so fictional African nations in various Marvel continuities: they may as well be a real country for all the difference it makes.

II. “Hidden” States

But what about Wakanda, the fictional, technologically advanced African nation ruled by T’Challa, aka the Black Panther?  Wakanda is also called “The Hidden Land,” and it is largely closed off from the rest of the world.  The fact that the country has existed for thousands of years without regular contact with the outside world is… problematic because recognition is a big part of what makes a state sovereign.

If Wakanda exists inside the putative borders of at least one other country, then there is a potential for conflict, possibly even war, with those nations if Wakanda’s existence becomes known to the wider world.  Not that the other countries are likely to be able to win that war, but states don’t readily let go of territory where possible, and antagonistic neighbors are inconvenient even if they aren’t a military threat. Even the weakest of countries can make things diplomatically and logistically difficult for their neighbors (see, e.g., Somali pirates).

Alternatively, Wakanda might exist outside the borders of other countries, though that supposes some extraordinary method of concealment to avoid the “hole in the map” problem.  That’s especially hard in the era of satellite mapping.  But if Wakanda reveals itself under those circumstances, then unless some powerful countries promptly recognize Wakanda’s sovereignty, there might be a land grab by neighboring countries fighting over the new territory and its rich natural resources (e.g. vibranium).

Again, this would hold true for almost any state which has hidden its existence from the outside world. As long as they stay hidden, which will require an increasing amount of effort in today’s world of satellite surveillance, they’ll be okay. But as soon as someone learns about them, there could be all sorts of problems.

III. Underwater States

Things are different still with underwater nations. Aquaman and Namor occupy their respective universes’ instantiations of Atlantis, which somehow survived its submersion thousands of years ago. In addition to the problems facing hidden states in general, these pose the additional problems of not actually being on dry land. International waters are a rather fraught issue in international diplomacy, as they represent access to the world’s shipping lanes, an invaluable economic and military resource. Territorial waters, i.e. waters where states exert the full force of their sovereignty, extend twelve miles from the low-tide mark, while contiguous zones, where states may exert some limited authority mostly related to border protection and customs activities, extends twelve miles beyond that. the exclusive economic zone goes all the way out to two hundred miles from shore, and in that range a state may exert exclusive control over economic activities like drilling, fishing, etc., but it may not prohibit or interfere with transit or just hanging around.

But all of these definitions are based on the low-tide mark. What are the territorial waters of Atlantis, which has no low-tide mark, being completely underwater? Even if one were to simply grant the same sorts of rights as land-based nations, where do the borders of Atlantis start and stop? The edge of the city? Some distance beyond? There isn’t exactly a natural feature—on the surface anyway—where one could draw an obvious line, nor are there going to be other countries with which to define a border. Even if a ship were trying to respect the borders, without GPS or a really good navigator, it would be almost impossible to tell when you were trespassing, even by hundreds of miles.

It’s possible that other nations might not recognize that Atlantis has territorial waters at all, as it would be pretty inconvenient to do so. States are accustomed to having pretty much free reign in the Atlantic, so a huge hole in the map defined solely by law created to respect Atlantean territorial claims might not be of much interest to other states. One could always make the argument that Atlantis is free to do whatever it likes on the ocean floor provided it does not interfere with surface traffic, but even then 1) why would Atlantis agree to that, and 2) what about submarine traffic? And given that Atlantis would probably need to be willing to go to war to get what it wants, would it? Could it? Namor has certainly launched an attack on more than one occasion, but that never seems to go very well. No, it would probably be best for all involved if the undersea kingdoms kept to themselves and did not advance any territorial claims. International disputes like this one have historically been solved with armies.

IV. Conclusion

A lot of the fictional nations in comics stories don’t present any particular legal problems: redrawing territorial lines happens with some regularity even in the real world. Even since the Peace of Westphalia, one is hard-pressed to come up with a decade when national boundaries didn’t change somewhere. But adding in the possibility of countries that have been hidden for long periods of time or, even worse, exist under the surface of the ocean, makes things a lot more complicated.

Mother Jones Interview

We were recently interviewed by Mother Jones magazine.  Many thanks to our interviewer, Tim Murphy, who came up with a lot of very interesting questions and scenarios to explore.  We think you’ll really enjoy reading it.