This story was just a one-shot, written basically as a letter from the office receptionist, Stacy, to a friend on the West Coast. There isn’t a crime to be solved here as such, but it’s the most in-depth exploration of the relationship between Batman, the Bat-Signal, and the GCPD we’ve got on record. This implicates the state actor doctrine we’ve been talking about for a while and the discussion we started in our post about “In the Line of Duty”. But it adds two little details which complicate the analysis.
I. The Setup
Here’s how the arrangement is described:
So, what is my job, exactly? Technically, I work for a civilian organization that temps me out to the G.C.P.D., so I’m not actually a city employee. But in reality, I work in the Major Crimes Unit, doing reception and computer work. . . and more importantly, I turn on the Bat-Signal. When it needs to be turned on, I mean. That’s really why I can’t be a city employee.A few years ago a case got thrown out because the perps claimed the police sicced Batman on them and violated their rights. See, the G.C.P.D. has never acknowledged Batman as anything other than an urban legend, and they claim the signal is just a deterrent. To scare the bad guys. But the judge on the case had actually seen Batman once, so he threw out the confessions, and since then, no one on the Force is allowed to touch the Bat-Signal. Because if the police turn it on, they’re saying Batman is their agent, and they can’t do that.
Funny how in a bureaucracy it’s not okay for the Police Commissioner to flip a switch himself, but it’s okay for him to tell me to. Just another reason the system is totally screwed-up, I suppose. So anyway, that’s my job. I call Batman (who is, in fact, REAL).
Stacy is right: that is totally screwed-up, because it won’t work. If it’s not okay for the Police Commissioner to do something, it’s not okay for him to tell someone else to do it either, civilian or no. We’ve gone over why not in earlier posts and talked about the tests employed to determine whether a given person is acting as a state actor in a given situation, so we won’t go over that again here. But this situation does present two interesting wrinkles we haven’t talked about before.
II. Batman’s Existence
This description suggests that the fact that Batman is not officially acknowledged to exist might make a difference. And, well… it might, actually. We’ve got a situation where the perp says that he was accosted by a masked man, the identity of whom is unknown and of whom the police deny all knowledge. The DA is going to respond to the constitutional claim by asking the defendant to identify which state employee or agent committed or authorized the constitutional violation. This isn’t precisely the same as Bivens v. Six Unknown Named Agents either, because in that case, even though the plaintiff didn’t know precisely which agents had accosted him—or even if they were federal agents at all—the raid had, in fact, been commissioned by the Bureau of Narcotics (a predecessor of the DEA) using regularly employed agents. Here, we’ve got a situation where the offending actor isn’t a government employee, but also isn’t something the plaintiff is going to be able to identify all that easily, and even the DA doesn’t have much to offer. Who is Batman? Where does he live? How does he operate? The DA doesn’t actually know any of those things, and if called to testify, neither would the police commissioner. Absent such testimony, the plaintiff may well have a difficult time establishing that the state had anything to do with Batman’s activities, and the existence of the Bat-Signal alone might not be enough to tip the balance.
III. Judicial Personal Knowledge
Unless, of course, the judge knows that Batman does, in fact, exist. According to the Rules of Evidence, the finder of fact is to consider only those facts which have been properly designated as evidence and which are otherwise admissible. In practice, finders of fact, both judges and juries, rely on their own experience all the time. Got a motorcycle accident case? A juror who rides a bike or has a relative that does will absolutely use their own experience and beliefs about the reasonable operation of motorcycles in forming an opinion about your case. This can be good or bad, because they may think either that bikers have a heightened duty to exercise care given the nature of their vehicles, or they may think that bikers are a persecuted minority that cars and trucks ignore or even actively target. But they will bring information to the jury room which the lawyers didn’t put there. Whether or not this is strictly legal, it’s unavoidable, and it’s one of the reasons voir dire is so important, and a major reason attorneys may move for a change of venue if they don’t like a particular judge.
So if the judge in question has seen Batman or has some knowledge of his activities that the general public doesn’t, for whatever reason, he will probably rely on that knowledge in issuing an order about the alleged constitutional violations. And there isn’t a lot that can be done about it. Findings of fact are very, very difficult to disturb on appeal, and unless the prosecution can prove that the judge was relying on improper evidence, i.e. personal knowledge, there’s little hope of getting this reversed. What we’ve got here is a situation where a judge needs to decide whether the use of the Bat-Signal by the G.C.P.D. makes Batman a state actor even if Batman doesn’t officially exist. A judge who doesn’t believe in Batman may well say “No,” and treat the defendant’s allegations as ultimately just bad luck on his part. But a judge who knows something about Batman may decide that there’s enough there to throw out the case. But given the Bat-Signal alone, it really could go either way, so the fact that personal knowledge or the lack thereof might tip the ruling one way or the other probably isn’t reversible error, as the issue is probably one within the discretion of a reasonable judge. Those decisions are almost never reversed.
Again, the issue is one we’ve gone over several times before, but the details provided in this story add layers of issues we haven’t discussed. This series continues to yield some great stories, and we’ll be looking at the next arc, “Soft Targets,” in an upcoming post.