Law and the Multiverse Holiday Special: Batman: Noel

For this year’s Law and the Multiverse’s Christmas post, we’re going to be taking a quick look at Batman: Noel, the graphic novel written and illustrated by Lee Bermejo that came out last month. It’s a sort-of retelling of Charles’ Dickens A Christmas Carol with Batman as Scrooge and various other characters as the ghosts of Christmas Past, Present, and Future. Well, maybe more like Batman’s Past, Present and Future. But it’s set on Christmas Eve, so hey. There you go. The main thing we’re going to be taking a look at is the legality of using wireless tracking devices without a warrant.

The story features a character named, appropriately enough, Bob Cratchit.  It’s not exactly clear what Bob Cratchit’s employment situation is, but the narration strongly implies that Cratchit works his day job for Batman, but never actually says as much, and it’s also possible that “working” for “Scrooge” refers to Batman sort of shanghai-ing Cratchit into acting as bait for the Joker. Or it could be that Cratchit works for the Joker. The story is kind of ambiguous.

Anyhow, the Joker has escaped from Arkham Asylum. Again. Batman has a lead that there’s going to be a drop, and catches Bob Cratchit picking up a package for the Joker. All Bob knows is that he’s found a letter telling him to pick up a package at the corner of Washington and Fifth. He does so, and Batman drops out of the sky, demanding to know where the Joker is. Bob doesn’t know, of course, so Batman lets him go, but not before tagging Cratchit with a tracer, hoping that Cratchit will lead him back to the Joker.

That’s probably not okay. The way this story is written, Batman has a pretty close working relationship with Commissioner Gordon. The two appear to share information as a matter of course, and it seems that Gordon is more-or-less explicitly relying upon Batman to bring in the Joker. This likely makes Batman a state actor for constitutional purposes. This may be a problem, because Batman tags him with a wireless tracking device without Cratchit’s knowledge or consent. The Supreme Court actually heard oral arguments on November 8, 2011 in U.S. v. Jones which addresses a very similar issue (warrantless tracking of vehicles). The Court has yet to issue a ruling, but signs point to this kind of thing being unconstitutional. The Justices seem likely to say that while there isn’t necessarily a reasonable expectation of privacy in one’s movements in public places, the police still can’t directly track your movements without either your consent or a warrant. The FBI and other law enforcement agencies are currently doing this by tracking GPS-equipped cell phones and planting GPS tracers on vehicles, and the challenges to these practices have finally worked their way through the system to the Supreme Court.

On one hand, there really isn’t anything from preventing the cops from following you around all the time. With or without probable cause, simply having an officer tail you 24 hours a day doesn’t necessarily violate your constitutional rights, especially if the officer doesn’t follow you on to private property. What, then is the difference between doing that and planting a GPS tracker? Well, in oral arguments, the Justices seemed concerned that GPS technology lets the cops do this pretty much at will with a minimum of effort or oversight rather than actually having to put in the legwork. The basic idea seems to be that while GPS doesn’t actually expose anything that wasn’t already available to anyone who wanted to watch, this lets the cops keep tabs on you without actually having to watch. The prosecution is relying on a thirty-year old case about trackers on cars, but technology has changed so dramatically that the Justices seem to be worried about further changes which might permit even more intrusive surveillance. The difference between agents on the scene being able to follow a car semi-remotely versus being able to check a database once a month to see every single place you’ve been in that last month seems pretty significant. In the former case, the cops are simply using technology to gather information about someone they already suspect of a crime. In the latter, it’s entirely plausible that the cops might suspect someone of a crime, and even potentially first suspect that a crime has been committed at all, based on the information gained in their surveillance dragnets.

That seems sort of intuitively incompatible with the way we tend to think about the Fourth Amendment. If the cops are already on to you, they can basically keep coming after you using whatever means are at their disposal. But they aren’t allowed to go on fishing trips just for the heck of it.

An opinion isn’t due until the spring, so we’ll revisit this when Jones is decided.

Oh, and one other thing: the rather unpleasant work environment described early in the story—Bob apparently had to really push to get Christmas Day off of work—may actually be okay. Just because Christmas Day is a federal holiday (and on a Sunday this year) doesn’t mean that employees actually have a right to the day off. The federal government doesn’t actually have the authority to prescribe national days off, and the fact that employers all seem to go along with certain federal holidays is a matter of practice and convenience, not law. Health care employees, for example, have to fight over which holidays they get off, since closing a hospital isn’t really an option, and frequently have to trade with people to get a schedule they want. And many employers completely ignore certain holidays, like Columbus Day or President’s Day. Legally speaking, Christmas is no different. So while whoever Bob’s employer is certainly looks like a Scrooge, he isn’t breaking any employment laws there.

That’s about all for this one. We hope you all enjoyed your holiday!

11 responses to “Law and the Multiverse Holiday Special: Batman: Noel

  1. This reminds me of another fictional setting, Christopher Buckley’s NO WAY TO TREAT A FIRST LADY, which involves a very secret surveillance program. The argument given in camera is that wiretapping protections do not apply to federal installations. The White House is a federal installation. So, if a person of interest is staying in the Lincoln Bedroom, nothing stops the FBI from planting a bug in his suitcase. And if he subsequently carries it away with him, well, that isn’t THEIR lookout. Would this hold up in real life?

    • Only kind of. It isn’t so much that the constitutional protections which restrict wiretapping don’t apply on federal installations as much as they wouldn’t apply to the White House, because no one there has a reasonable expectation of privacy. There are plenty of non-federal installations where people have no reasonable expectation of privacy–public transit, airport security, the middle of the street, etc.–and there are plenty of federal installations where people do have that, e.g. soldiers’ family homes on military bases.

      The analysis is whether the activity in question is something people would reasonably expect to be private. Staying in the White House isn’t one of those things.

      • Which leaves the other half of the question — if they plant the bug in the White House and the guy then takes it out of the White House, are they then obliged to stop monitoring?

      • And the scenario was expressly bugging the *bedroom*. It seems counterintuitive that two officials having a confidential discussion, or engaging in, ah, the kind of activities people in the novel are having in the Lincoln Bedroom, have “no expectation of privacy” just because they are IN the White House.

      • They would be obligated to stop listening, though bugging a person or his personal effects would probably be illegal without a warrant regardless of where the person happened to be located. Bugging a room is conceptually different than bugging a person.

  2. I actually do have one question in regards to this. Even if the courts decided the wiretap was illegal, and everything Batman found using it was disallowed in court, would it really matter? it might cause trouble if they try to prosecute him for anything he’s done since escaping, but the Joker is an escaped prisoner who’s presumably already been tried and convicted.

    Would there legally be a difference between escape from a prison and escape from a medical facility like Arkham? if whatever the Joker’s already been put away for plus the escape already has him contained for life, would unconstitutional actions recapturing him make it any harder to put him back in?

    • This is an interesting question. Your argument is good as far as it goes, but it turns out that the evidence wouldn’t be excluded in a trial with the Joker as the defendant. The exclusionary rule can only be invoked by the person whose rights were violated, and here it was Cratchit’s rights, not the Joker’s, that were potentially violated. The fact that the Joker was the real target of the investigation, not Cratchit, is immaterial. See Rakas v. Illinois, 439 U.S. 128 (1978) (no “target” standing for invoking the exclusionary rule); United States v. Payner, 447 U.S. 727 (1980) (no target standing even when the IRS deliberately abused the rule knowing that the target would be unable to object to the Fourth Amendment violation).

      But, the Gotham City Police Department could still be civilly liable under, for example, § 1983 for violating Cratchit’s constitutional rights. That’s what the Supreme Court had in mind when it decided Rakas:

      “There is no reason to think that a party whose rights have been infringed will not, if evidence is used against him, have ample motivation to move to suppress it. … Even if such a person is not a defendant in the action, he may be able to recover damages for the violation of his Fourth Amendment rights … or seek redress under state law for invasion of privacy or trespass.” Rakas, 439 U.S. at 134.

      • Say a court found in favor of Cratchit and awarded him damages for the violation of his Constitutional rights. What kind of damages would he be entitled to seeing as the bugging of his person didn’t cause any physical damage to person or property (I assume he wasn’t electrocuted or anything; I haven’t read the story). Seems to me the nominal damages the department might have to pay out would be an acceptable cost of business to put to Joker back in Arkham.

      • There may be some compensatory damages for having his privacy violated. More importantly, § 1983 actions allow for both attorney’s fees and punitive damages, which could be substantial, since this was a pretty flagrant abuse of a loophole in the Constitution.

  3. This reminds me a bit of early court battles over the legality of wiretapping. Also, in addition to the legal nature there’s also the political and social environment. Things that might not have been ruled constitutional in the 1980s or 90s might get more sympathy post-9/11.

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