Monthly Archives: November 2011

Grimm Round-Up

Grimm is a new TV series inspired by Grimm’s fairy tales (which have also been adapted into an unrelated comic book series).  The premise is that Nick Burkhardt, a Portland homicide detective, is a descendant of the Grimms, a line of monster hunters who fight the various monsters that inspired the original fairy tales.  The show’s intersection of police procedural and the supernatural is a good fit for us, and some readers have asked about it, too.  Since Grimm is a procedural, there aren’t too many legal issues on any given show, but we’ve picked up a few to discuss from the first three episodes.  Spoilers ahead for anyone who hasn’t seen them.

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Texas: The Worst State for Superheroes?

We’ll admit that the title to this post is a little incendiary, and actually Texas has several features that recommend it to superheroes, particularly of the gun-wielding variety.  But we happened across a law that, especially in light of its history, might make a superhero think twice about moving to the Lone Star State.  That law is Texas Code § 38.23(a) (emphasis added):

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

“Or other person” is the clincher here.  Effectively, Texas applies the exclusionary rule to everyone, not just state actors, and it broadens it to cover not just Fourth Amendment-type privacy violations but violations of all state and federal laws and constitutional rights.  This means that, in Texas, it doesn’t matter whether Batman or other crime-fighting superheroes work with the police or not.  Heck, they can even be actively opposed by the police, à la the Punisher.  If they break the law while collecting evidence, that evidence is inadmissible.  In fact, if there’s even reasonable doubt that the evidence was obtained lawfully, that’s enough for the jury to disregard it.  Given how often superheroes break or at least bend the law, that’s a big problem.

The application of this law to superheroes is especially interesting in light of its history, summarized in Miles v. State, 241 S.W.3d 28, 34-35 (Tex. Ct. Crim. App. 2007) (emphasis added):

The Texas Legislature enacted an exclusionary rule broader than its federal counterpart precisely because of … the widespread problem of vigilante-type private citizens acting in concert with the police conducting illegal searches for whiskey.  Long before national Prohibition laws were enacted, Texas had created its own local-option liquor and prohibition laws.  Enforcement of these local-option laws led to the formation of various citizen groups, including the “Law and Order League,” whose members pledged to aid officers to enforce the laws, especially local-option laws, and to clean up their town and county of crime.   

Presumably, the Legislature foresaw that, if the exclusionary rule applied only to government officials or their agents, these “Law and Order League” members might well continue their illegal search-and-seizure operations without the participation or supervision of police officers.  Then these vigilante members would hand over the illegally seized evidence, on a “silver platter,” to government officers for use in criminal trials.  To avoid the prospect of implicitly encouraging or condoning vigilante action by these citizen groups, the Legislature applied its statutory exclusionary rule to both law-enforcement officers and private persons.

If you replace “Law and Order League” with “Justice League,” you can see just how closely that history fits many superhero stories.  If superheroes were common, many states would likely follow Texas’s example and pass similarly expansive exclusionary rule statutes.

We should note that there is a glimmer of hope.  With the responsibilities imposed by § 38.23 come additional privileges.  The Texas courts have held that “a private person can do what a police officer standing in his shoes can legitimately do, but cannot do what a police officer cannot do.”  Miles, 241 S.W.3d at 39.  Thus, a private person can invoke doctrines such as exigent circumstances and the reasonableness standard of the Fourth Amendment as a defense to, for example, violating traffic laws while pursuing a suspect in order to make a citizen’s arrest.  Id. at 45-46.  Nonetheless, the rule remains significantly stricter in Texas than in other states.  Maybe that’s why there are so few Texan superheroes.

As an historical side-note, there was a brief period in Montana history where the Montana Supreme Court held that the state Constitution extended the exclusionary rule to private citizens.  The rule was articulated in State v. Helfrich, 183 Mont. 484 (1979), affirmed in State v. Hyem, 193 Mont. 51 (1981), and finally overruled in State v. Long, 216 Mont. 65 (1985).  The rule was derived from the Montana Constitution’s affirmative right to privacy, which is unusual among state constitutions.  Extending the exclusionary rule to the acts of private citizens at the constitutional level is even more unusual, and Montana was the only state to ever take that approach.  As far as we can tell, Texas is the only state to do so by statute.

Superman: Grounded Vol. 1

Superman: Grounded is a twelve-issue story written by J. Michael Straczynski which took up Superman # 700-712. Issues 700-706 have been released in hardcover, with 707-712 scheduled to be released next month. The basic premise of the story is that in the aftermath of the 100 Minute War, in which New Krypton is destroyed, Superman is feeling disconnected from the average American, and really just Earth in general. He gets… uncharacteristcally mopey and philosophical, and the series raises a number of the most interesting and pervasive philosophical and ethical issues with the concept of superheroes, though it fails to come up with anything like adequate answers for any of them.

This isn’t going to be a particularly long post, but there were a number of minor legal issues, most of which we’ve talked about previously, that come up in the course of the story. Continue reading

Psych: The Amazing Psych-Man & Tap Man, Issue #2

Psych is a great TV show, but we haven’t had a good chance to talk about it because the bad guys are regular crooks and the main character isn’t actually psychic.  But the plot of this week’s episode—like a recent episode of Castle—pushed things into our territory by introducing a “real-life superhero” into the mix.  Significant spoilers ahead!

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Holy Terror

Frank Miller’s latest work, Holy Terror (not to be confused with Batman: Holy Terror) is… problematic. We’ll leave aside the fact that it is self-described propaganda with perhaps the least nuanced view of Islamic terrorism on record. Other people have covered that.

And we’re not even talking about the things which the book knows are illegal, e.g. having the police commissioner assassinated or shooting down medevac choppers with heat-seeking missiles. Remember, where a story knows something is illegal and says so, we basically give it a pass.

No, what’s really problematic for our purposes here is the fact that we’ve got individual citizens engaging in not just vigilante justice, which is a problem for pretty much all comic books which involve superheroes, but vigilante geopolitics, which is actually kind of unusual. Sure, politics exist in other comics stories, e.g. the whole Genosha storyline, the possibility of war with Atlantis or the Inhumans (or both at once), the emergency of Wakanda on the world scene, and Reed Richards’s (inadvertent?) conquest of Latveria. But most of those involve superheroes dealing with supervillains or the unique problems caused by superpowers or the existence of beings like Mutants. What we don’t usually see, and indeed, what several stories have actually gone to fairly great lengths to avoid, is superheroes—or, at least, masked adventurers—from intervening on their own authority into mundane politics.

It’s worth mentioning that Captain America and Dr. Manhattan don’t count, as both of them were acting on behalf of sovereign governments in their respective stories. What we’re talking about here is a masked adventurer essentially inserting themselves into an otherwise mundane geopolitical situation and pursuing their own agenda. This is problematic for two reasons.

First, though it goes without saying that the nation against whom a superhero is fighting is likely to be kind of upset, so is the nation who purportedly benefits. In one of the one-off stories in Action Comics #900, Superman complains that he’s tired of his every action being construed as part of US foreign policy. But you know what? The State Department was probably just as pissed about that! Here they are, trying to present something like a coherent face to the world, a unified and consistent policy position, and Superman’s running all over the place doing Bob-only-knows what, only to have his actions, over which the US government has absolutely zero control, interpreted as representing the American take on a particular event. So when he goes and maybe violates Iran’s sovereignty, Tehran gets pissed at Washington, which can’t even promise that it won’t happen again.  One of the problems with having powerful people running around who aren’t accountable to voters is that the people who are accountable to voters are likely to wind up with the responsibility for it. This is bad for representative governments, as it makes it inestimably harder for them to respond to world events.

This is basically what Fixer and Natalie are doing here. They decide they’re going to save Empire City on their own, independent of the state forces which are responsible for that job. Sure, Miller makes it seem like only they can do it, because the government is some undesirable combination of corrupt and incompetent, but the proposed solution basically makes it impossible for an honest, competent government to exist, so even if we were to admit that ends can justify means, these ends don’t.

Second, having loose cannons with apparent sovereign authority is really, really bad for geopolitical stability. One of the biggest concerns in the Persian Gulf right now is that junior officers in Iran’s Revolutionary Guard Corps Navy, in command of small gunboats, might inadvertently—or deliberately—set off a conflict which could escalate out of control without general officers on either side having any say in the matter. In this story, Fixer winds up doing… something to a huge, Saudi-funded mosque in downtown Empire City. Not entirely clear what, but it’s probably biological and definitely No Fun At All. It’s not totally clear whether it’s actually an embassy, which would raise issues we’ve talked about earlier, but even if it isn’t, we’re still likely looking at the deaths of dozens if not hundreds of Saudis and just Muslims in general who were on site. Even if this isn’t an actual act of war, it’s still going to be a major diplomatic incident, involving countries with which the State Department doesn’t really need anything else going on at the moment. We’ve got two major military operations ongoing in the Middle East, both of which require significant cooperation from neighboring governments. If they decide to protest our actions by limiting access to their airspace, even temporarily, that’s just going to suck. But even if the wars were over, the fact that OPEC hasn’t declared an oil embargo recently doesn’t mean they couldn’t, and the last time that happened was pretty terrible all around.

So, in general, the existence of masked adventurers running around fighting crime on the domestic front is going to be hard enough for governments to deal with, and even superheroes taking care of superhero-related international crises is potentially manageable, but masked adventurers intervening in otherwise-mundane political events? Really, really problematic.

Of course, the main problems with Holy Terror is that it’s boring and hard to read. So consider this something less than a ringing endorsement.