Gotham Central is the critically-acclaimed, 2003-2006 book focusing on officers in the Gotham City Police Department, i.e. the cops who live and work “in the shadow of the Bat.” It’s basically a police procedural, which makes it a little unusual for a DC or Marvel book in that while supervillains are still in play, superheroes are largely fringe characters. It’s definitely worth the read, and it’s uniquely suitable for our purposes here at Law and the Multiverse because it has so much to do with normal, everyday life in a world populated by larger than life figures. We’re not going to do much in the way of plot summary here, so as to avoid spoilers, and we’re only partway through the series* but we are going to take a look at the legal issues raised as we go. This post is about “In the Line of Duty,” the story which takes place in issues # 1-2.
I. Is Batman a State Actor?
This was one of the first posts we ever did, but here it comes again. The question is whether Batman, given his relationship to the GCPD and Mayor’s Office, counts as a state actor for constitutional law purposes. Given the way Gotham Central is written, the answer in this story is “Almost certainly.” We need not rehash the argument made in the earlier post, but it should be noted that Batman is going to count as a state actor under at least two possible theories: “public function” theory and governmental influence theory.
First, “public function.” The leading case is Marsh v. Alabama, 326 U.S. 501 (1946), in which the Supreme Court held that a privately-owned company town could not use a private trespassing ordinance to restrict the distribution of religious literature because even though the company was not actually a governmental entity, the fact that it was performing basically all the functions of a municipal government was enough to subject it to the limitations of the First Amendment.
Here, Batman is engaging in what amounts to police work, and the GCPD and Mayor’s Office treat him like what amounts to an extra-special SWAT team. They know they can call for his help—more on that in a bit—and he is absolutely engaging in what would be a job for the SWAT team if the perp in question wasn’t packing a diamond-powered freeze ray. The mere fact that the government views Batman as constituting a part of their law enforcement activities is probably sufficient to tip the scales.
Second, governmental influence over Batman’s activities. Now we get to the Bat Signal. The Commissioner—not Gordon—says at one point, “The G.C.P.D. can’t officially touch the Bat-Signal, or in any way acknowledge the existence of Batman.” A nearby cop’s response is “So we’re calling him in to take down Mister Freeze, but we can’t admit he’s real?” The answer is “It’s a fine line, I know.”
It’s not just a fine line, it’s no line at all. We talked about this the first time around: just because the person who pulls the lever is a temp doesn’t make her any less a state actor for these purposes. If the state is deliberately asking for Batman’s help, playing games with who pushes the button isn’t going to fool a judge for a minute.
But the real question then becomes… so what? What if Batman is a state actor? Should he care? Should anyone else? In “In the Line of Duty,” it doesn’t seem to matter. Batman doesn’t seem to do any investigation—the cops do all of that—so Batman didn’t even have an opportunity to violate anyone’s Fourth Amendment rights. And when Batman arrived on the scene at the climax, Mister Freeze was attempting to kill an entire room full of people at an academic ceremony and had just killed two cops. At that point, the GCPD was entirely justified in using any force necessary to stop him, up to and including outright shooting him if he wouldn’t go quietly. We don’t get to see what Batman does here, but Mister Freeze is implied to be both alive and incapacitated. Even if Batman roughed him up a bit in the doing, tt’s going to be really hard for anyone to prove that this wasn’t a necessary part of making the arrest. In this particular instance, it doesn’t seem that Batman being a state actor would matter.
II. Police HR Procedures
This next one is sort of a quasi-legal issue. In # 1, Charlie Fields and Marcus Driver, both detectives in the GCPD Major Crimes Unit, are investigating an anonymous tip about a kidnapping case. They think it’s nothing, so they show up by themselves, without backup, at the end of their shift. This is something that happens, so no problems so far. Unfortunately, the officers stumble on Mister Freeze, who kills Fields and assaults Driver before making his escape.
This is where things start to get a little off. I am not aware of a police department in the country that would permit an officer whose partner had just been killed in front of him, who hasn’t even recovered from injuries received while on duty, to do anything but take mandatory administrative leave. And there’s just no way he’d be permitted to investigate his own partner’s murder. Some of this is simple wisdom, and it’s the reason that surgeons don’t usually operate on or lawyers represent close family members. The professional is just too close to the situation to operate objectively, and the possibility for lasting feelings of guilt if things don’t work out is real.
But more than that, Driver was injured, rather significantly. His hands are in bandages for the next four issues, and there’s no mention of a psychological evaluation or weapons certification. Most police departments are pretty careful about this sort of thing, for two reasons. First, they want their officers to be at their best, as an officer who is slow—or quick!—on the trigger is a danger to himself and others, both his fellow officers and civilians. We’re talking about people that are authorized to use physical force, even deadly force, pretty much on their own discretion.** A department that does not take care to ensure that its officers are not acting under some kind of impairment can be subjected to liability if something bad happens. Second, police departments are pretty much entirely union shops. Sick time in the aftermath of an injury received in the line of duty is going to be pretty much mandatory, and the Department, for the reasons above, may not choose to permit Driver to waive those rights.
This sort of thing isn’t exactly a staple of portrayals of police departments either. Sometimes the writers do get it right. For example, in the fourth season of Castle, Detective Beckett only returns to the force after three months away, recovering from her shooting at the end of season three, and she had to both undergo psychological evaluation and recertify with her service weapon. The show even alludes to why, as her ability to perform her duties is affected, at least temporarily, by her experience. Similarly, in the first season of The Wire, Detective Greggs is shot, and not only takes significant time off, but winds up going back to a desk job rather than her previous position as a front-line officer. So while it may be something of an expected break with reality, it’s far from a universal one, as other works have dealt with it successfully.
All in all though, “In the Line of Duty” is a promising start to one of the most critically-beloved and commercially-disappointing series of the last decade. The most interesting part so far isn’t even a legal issue at all, it’s the discussion of the effect of supervillains and superheroes on the morale of the GCPD, something which doesn’t generally get a lot of attention in other books. We’re looking forward to seeing how this plays out.
*A word to the wary: Gotham Central is currently in its second print run in TPB, but the volumes do not line up with the original 2007 release. Buying volume 1 and 3 of the 2010 run—the design is mostly black with yellow print—and volume 2 of the 2007 run—black with blue print, if memory serves—will not permit you to read straight through, as you’ll find both duplicated and missing issues. The 2007 run is not currently being printed, but there are still copies on the shelves, so be careful.
**There are, of course, legal limits to the use of force by police officers, but the ultimate decision about whether to use force in a particular instance is almost always that of the officer on the scene. A cop may not be allowed to use a taser or a gun in certain circumstances, but that doesn’t mean he has to ask anyone’s permission before deciding to do so.