Batman: Knightfall is a major Batman story arc from the early 1990s in which the Caped Crusader faces off against Bane, the villain who will reportedly be featured in the upcoming Dark Knight Rises. The series is available in a collection of recently reprinted trades: Knightfall, Knightquest, and KnightsEnd. The story opens in Batman # 491, when Bane and his accomplices break open Arkham Asylum. The inmates go on to cause general havoc for the next dozen-odd issues. In this post, we’re going to look at just how much of that Bane is going to be liable for.

I. Is Escaping from Arkham a Crime?

Breaking out of prison is a crime, as is breaking someone else out of prison. So no real issues there. But as we discussed about a year ago, many inmates at Arkham might not actually be convicts. They might have been found not guilty by virtue of insanity and then involuntarily committed as representing a danger to themselves and others. Is it a crime to break someone out of a psychiatric facility who isn’t actually serving a prison sentence?

It’s an issue of state law, but the answer seems to be somewhere between “Absolutely” and “Probably” depending on where you are. In New Jersey, for example, which is one traditional location of Gotham City, 2C N.J. Code 29-5 defines “escape” as:

A person commits an offense if he without lawful authority removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.

“Official detention” is also a defined term:

“Official detention” means arrest, detention in any facility for custody of persons under charge or conviction of a crime or offense, or committed pursuant to chapter 4 of this Title, or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes

It’s that “committed pursuant to chapter 4 of this Title” bit which is important: that’s the place where the New Jersey Code deals with the insanity defense and related commitments. So if you’ve been put away because of a mental condition, you are explicitly subject to “official detention,” and thus breaking out, or helping break someone else out, is a crime.

The law isn’t quite as explicit in some other states, but it could certainly be made to work. For example, New York makes it a crime to escape from any place where one has been detained by order of a court. This would clearly include mental hospitals. Indiana simply makes it a crime to flee from “any lawful detention.” Which would also work.

So it looks like breaking the inmates out of Arkham is a crime for which Bane could be guilty. This would also mean he’d be liable for anyone they killed on the way out—eleven guards and six cops, according to the comic—via felony murder. Oh, and there’s a whole host of weapons control violations going on too. Stingers aren’t something you can just go out and buy.

II. Is Bane Guilty for the Inmates Subsequent Crimes?

But is Bane guilty for the other crimes that the escaped inmates commit? The Scarecrow, the Joker, Firefly, all of these guys go on to commit multiple crimes over the next few days or weeks. If Bane is criminally liable for helping them escape, is he also liable for the crimes they commit once they’re out?

The felony murder rule says that if a defendant or any accomplice kills someone while the defendants are committing a felony, that killing counts as murder, for all of them. So Bane is guilty of felony murder for the guards killed during the escape. He probably killed some of them himself, but even those that were killed by others were killed as part of his overall felony. So here’s the question: escape is sort of an ongoing offense, so why isn’t Bane liable for all of the deaths that the inmates cause once they make it out? And why limit it just to deaths? Why isn’t he somehow guilty of causing all of their subsequent crimes?

Because the law recognizes some limits to the rule. The felony murder rule doesn’t apply to crimes committed once the felony is basically complete, i.e. once the defendants have reached a “place of safety”. So once the inmates make a clean getaway, shooting someone would potentially be “murder,” but not “felony murder.” So if Bane is going to be liable for anything that the escaped prisoners do after they get out, it’s going to have to be under some other theory.

Unfortunately, it doesn’t seem like the obvious theories, accomplice liability and conspiracy, will actually work, as both of them are specific intent offenses. You can’t negligently be an accomplice to a crime or negligently enter into a conspiracy. You have to do those things on purpose. The way the story is told, the inmates never really learned who let them out until after they had escaped, and Bane never offered to help them with anything. He just turned them loose and let them do their thing. So because Bane didn’t actually have anything to do with any of the inmates once they got out, it’s going to be really, really hard to hold him liable for the crimes they commit.

The same goes for tort liability too, by the way. Bane’s actions are a “but for” cause of the inmates subsequent crimes, but because those crimes are intentional acts, they almost certainly count as superseding causes.

III. Is the Government Liable?

More generally speaking, is the government liable when a criminal gets out of jail or an asylum? They’ve accepted custody for these people, after all, shouldn’t there be some accountability for places like Arkham?

There is, but it’s in the voting booth, not the court. State and local governments enjoy sovereign immunity, and while most states have passed some version of a Tort Claims Act, waiving sovereign immunity in certain cases (e.g. car accidents), they mostly retain their immunity with respect to injuries caused by escaped prisoners. For example, 59 N.J. Code 5-2 specifically retains immunity for

any injury caused by:
(1)an escaping or escaped prisoner;
(2)an escaping or escaped person;
(3)a person resisting arrest or evading arrest;
(4)a prisoner to any other prisoner

Other states have substantially similar language. If the citizens of Gotham are upset that Arkham Asylum is somewhat less than effective, their remedy is to vote out the bums who let it be that way. The stories strongly suggest that the local government is corrupt to the point that this wouldn’t help, but the courts don’t generally care about that.

IV. Conclusion

So in just the first issue of Knightfall, we got to take a pretty serious look at some situations where one might be liable for the actions of others. Even though it seems like Bane ought to be liable for the mayhem that results from his functional destruction of Arkham, it turns out that he probably isn’t.

25 responses to “Knightfall

  1. You mention Bane can’t be liable for negligently being in a conspiracy or an accomplice to a crime. But negligence doesn’t seem to describe Bane’s actions here. My interpretation was that Bane knew they were likely to commit further crimes, hoped they would do so, benefitted from them doing so, and released them at least partially for that reason. He just had no influence over any specific crime they might commit.

    • My interpretation was that Bane knew they were likely to commit further crimes, hoped they would do so, benefitted from them doing so, and released them at least partially for that reason. He just had no influence over any specific crime they might commit.

      Conspiracy is a specific intent crime. That is, each conspirator must have the specific intent to commit the substantive offense. See, e.g, People v. Ozarowski, 38 N.Y.2d 481, 489 (1976). If you don’t know what that crime might be, it’s not possible to intend it.

      In this case, not only did Bane not have any influence over the specific crimes, he didn’t even know what specific crimes they might commit because there was no communication between Bane and the inmates. At most the prosecution might be able to prove a conspiracy to commit firearms violations, since leaving the weapons where the inmates would find them could be seen as circumstantial evidence of a conspiracy. After that, though, things become too diffuse to prove beyond a reasonable doubt that Bane was conspiring with the inmates to commit particular crimes.

  2. Since Arkham is a private institution, couldn’t somebody just sue them for damages? (the Kopski family is trying to do this in popular fan-made web series The Joker Blogs)

    • That’s actually an interesting question, and one which is tangentially related to a Supreme Court case, Mincinni v. Pollard, which came down last month. We’ll be looking at this in more detail soon!

      • Excellent! This was my question, as well, since privately owned or run prisons/asylums/etc. likely don’t have the same immunities as a government.

  3. Pingback: For Law Nerds (Who Are Also Batman Fans) Only: Is Escaping from Arkham Asylum a Crime? « The Rhetorican

  4. Arkham isn’t a prison. The prison where Batman’s “ordinary” criminals and various henchmen land in is Stonegate.

    Also (although I can’t cite any sources) I had always understood Gotham City to be located in the state of Gotham.

    • Yep, in case it isn’t clear, the post is talking about psychiatric institutions and the like, not prisons. It wasn’t obvious to us that the laws criminalizing escape from prison would also apply to involuntary commitment.

      As for Gotham’s location: it varies. Some sources place it squarely in New Jersey, some use a fictional state (e.g. “Gotham”), others put it in an unnamed state (usually one that bears a striking resemblance to New York). I often use New York law when discussing Gotham because there’s a lot of material written about New York law, which makes it easier to write about.

      • Arkham is where people go because they are too insane to be tried for their crimes… can you be tried for escaping from the custody you were placed in because you couldn’t be tried for your crimes? I mean, is there a point in making a statute on this in the first place? If the confinees at Arkham were competent to stand trial, they wouldn’t be in Arkham in the first place… so are they competent to be tried for escaping from Arkham? Is there an intent element to escape that could be satisfied by a person otherwise incompetent to stand trial? (That’s assuming there is an intent element to escape, which seems common-sense to me… but common-sense and law don’t ALWAYS go together…

        I’m not so sure that superseding cause applies to the question of Bane’s tort liability, either. If I throw 4 rocks from a freeway overpass, intending that at least one hits a car, but without looking to see if a car is coming, I’m liable no matter which of the 4 actually hits a car, even though I didn’t know which, if any would hit a car. If I release 4 accused criminals from Arkham, intending that at least one causes some kind of havoc to tie up law enforcement resources, how is it different?
        I think your analysis would be correct if Bane had released random convicts from Stonegate, as the convicts, despite being convicted of crimes, are each individually capable of deciding for himself if he wishes to commit other crimes. But the confinees at Arkham are not free to decide this, and in fact, some of them are incapable of self-control and cannot refrain from committing (violent) crimes… again, if they were NOT a threat to themselves and others, they wouldn’t be in Arkham.

      • First, as discussed above, the state statutes, though they vary, would cover the situations you describe. They prohibit flight “from lawful detention,” or from confinement at the order of a court, or from being confined because one is insane, regardless of whether the confinement is because of a defense of criminal insanity or mental incompetence. And no, there generally isn’t an intent element to escape.

        The difference between throwing rocks and releasing prisoners is that rocks are not people. For starters, we’ve already concluded that most of the inmates in Arkham don’t meet the definition of “insanity” for criminal law purposes. But second, the intentional acts of others are almost always viewed as breaking proximate causation. Once you throw the rock, nothing else besides gravity needs to happen for it to hit a car. But when Bane releases the inmates, they each need to make choices about what’s going to happen. They could have decided to stay put. They could have decided to just go home and stay there. But some of them decided to commit crimes. and again the fact that some of them may be not entirely right in the head doesn’t matter. It’s our opinion that saying that he’s just generally responsible for whatever they did, regardless of the fact that he himself had no further input into the situation, is too attenuated to support proximate causation.

      • To be fair, some states take a fairly expansive view of a jailer’s liability for the acts of an escaped prisoner, even intentional crimes. They take the view that liability extends as far as foreseeability allows, and that it’s foreseeable in many cases for an escaped person to commit a crime. See, e.g., Bradley Center, Inc. v. Wessner, 250 Ga. 199, 202 (1982) (“The general rule that the intervening criminal act of a third person will insulate a defendant from liability for an original act of negligence does not apply when it is alleged that the defendant had reason to anticipate the criminal act.”).

        This follows the Restatement view: “The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.”

        Foreseeability only goes so far, however. Consider this case: “This case turns on whether the criminal actions of Richard Payne were or should have been foreseeable to defendant Coleman. Appellants argue that Payne’s actions were or should have been foreseeable to Coleman because of Payne’s extensive criminal record. Coleman argues, however, that due to the span of time and space between Payne’s escape and the subsequent murder of Abelardo Sosa [2-3 days after the escape and three states away], Payne’s actions could not possibly have been foreseeable.” Sosa v. Coleman, 646 F.2d 991 (5th Cir. 1981). So time and distance can, at least in theory, lead to unforeseeability even when the escapee has a record of violent crime.

      • No intent element to escape? So it’s possible to be guilty of escape by accident? (Say, a roadside litter crew, if the guard watching him/her had a fatal heart attack, would be an escapee)

        Stonegate prison is the name in the animated series, which is the best depiction of Batman, in my opinion (YMMV).

        As for Bane’s civil liability, how about a strict liability theory? He created an inherently dangerous situation, and people and property were damaged thereby. (Although if I could get a judge to let me do it, I’d still argue that releasing the inmates of Arkham is more like unleashing inanimate objects than like unleashing people (because people are capable of rational thought and exercise control over themselves, but the inmates of Arkham are not so capable… again, with respect, distringuishing the cases of escaped prisoners which make up the existing case law. Prisoners are adjudged capable of self-restraint, but we are not talking about escaped prisoners here.)

        Finally, don’t be so quick to dismiss whether or not Bane is responsible for the insanity of the Arkham confinees… Think of it not as “he busted them out” but “he caused them to miss their scheduled medications.” This wouldn’t apply to all of them, of course, but at least some of them are likely (I don’t know the full list of who bane broke out, but the Scarecrow is perfectly fine when medicated properly.)

      • “Say, a roadside litter crew, if the guard watching him/her had a fatal heart attack, would be an escapee”

        No, he wouldn’t. He didn’t actually flee from custody. If he just stayed put, or turned himself in, there’d be no crime.

        And you seem to be basically accepting the “insanity” description as it’s given in the comic books. We’ve specifically disagreed with that assessment. The Joker isn’t insane in a way that would preclude criminal liability. He’s just evil. Same goes for most of the rest of the Arkham crew. We’ve already linked to that post here. Twice, actually.

      • Well, to be fair, it’s worth considering the result if the law is either different or routinely misapplied in Gotham such that the inmates in Arkham really are legally insane.

        Unfortunately, not a lot of people get broken out of mental hospitals and then go on to commit crimes, so it’s hard to say whether the law is any different in that situation versus a regular inmate being broken out of prison.

      • Ryan said:
        “you seem to be basically accepting the “insanity” description as it’s given in the comic books. We’ve specifically disagreed with that assessment. The Joker isn’t insane in a way that would preclude criminal liability. He’s just evil. Same goes for most of the rest of the Arkham crew.”

        Actually, as I noted, I’m using simple logic: Arkham isn’t a prison; people who are adjudged culpable for their crimes are sent to prison; ergo, Arkham confinees were judged not culpable for their crimes in a way that still allowed them to be involuntarily confined to Arkham. Alternatively, there could be some Randle McMurphy-types mixed in… (I.e., they got convicted, didn’t like prison, and therefore got themselves committed instead) but surely not the entire rogue’s gallery. Note that in an early Batman, the Animated Series episode, Joker is, in fact, in prison (and not in Arkham).
        I suppose they COULD be using a variant of Marvel’s approach, which is to have a special jail (Ryker’s Island, and later Prison 42) just for super-criminals, but Arkham is “Arkham Asylum” and not “Arkham Supermaximum Security Prison” (and is substantially less secure than a prison… look how often people escape from it) so I don’t think that is a safe assumption.
        So… either the variant of Earth that contains Gotham City has a different definition of “insane” with regards to criminality (perhaps some variant of the “irrestible compulsion” test), or the state of Gotham (assuming it exists) does, or, as noted, the judges in Gotham are sufficiently corrupt and/or incompetent as to have a comic-book writer’s level of understanding of the law. Perhaps all three are at work here.

        We certainly know that at least some detainees in Arkham are sufficiently bound by compulsion that they were easily apprehended… the Riddler, for example, and his compulsion to leave clues, or Two-Face’s compulsion to plan his capers around the number 2. Surely, amongst the many Arkham detainees, there must be SOME who are insane in a manner sufficient to deter criminal liability…

        All that said, does Bane have assets worth sufficient value to justify pursuing a civil case? I’m pretty sure he’s not insured.

  5. Thank you so much for explaining felony murder and superseding causes! It all makes sense now!

  6. While he doesn’t have direct knowledge of what specific crimes will be committed, Bane broke the Arkham inmates out for the stated purpose of having them commit crimes to wear down Batman. It feels like some kind of liability should apply. If one can be sued for yelling fire in a crowded theater because a ‘reasonable man’ would know that was likely to cause a panic, surely it’s reasonable to expect that when you break a pyromaniac like Firefly out of a mental institution he’s going to start some fires. Bane might not have known what specific crimes would be committed, but he knew it was Arkham Asylum for the Criminally Insane. Many of the inmates he released had known compulsive tendencies and he released them specifically so they would act on them. I mean it’s certainly possible that he’s managed to slip through a legal loophole, but it feels like releasing compulsive criminals for the expressed purpose of having them commit crimes should carry some liability.

    Also, complete nitpick, but it’s Blackgate Penitentiary, not Stonegate.

    • The problem is that other people’s crimes and intentional torts are generally superseding causes that break the chain of causation.

      Now, one might question whether the actions of an insane person can be a superseding cause. In general, if someone renders another insane, then the insane person’s actions cease to be an intervening or superseding cause. For example, “when an injured person becomes insane, even temporarily, and that insanity prevents one from realizing the nature of one’s act or controlling one’s conduct, a resulting suicide is regarded either as a direct consequence of the injury and not an intervening force or as a normal consequence of the injury inflicted.” Lenoci v. Leonard, 21 A.3d 694, 700 (Vt. 2011). But Bane didn’t cause anyone in Arkham to be insane (assuming that they are actually legally insane, which we don’t necessarily think they are), so that theory wouldn’t apply. I couldn’t readily find any authority on whether the acts of an insane person can be a superseding cause in general. I would be very interested to know the answer to that.

      More importantly, some cases involving the liability of jailers for the acts of escaped prisoners have held that their liability only extends as far as acts that occur during the escape. See, e.g, Edwards v. State, 556 So.2d 644, 649 (Ct. App. La. 1990) (“The proper question, regardless of foreseeability and of time and distance, is whether the offense occurred during, or as an integral part of, the process of escaping.”). This suggests that Bane’s liability would only extend as far as the escape. Once the villains perfected their escape, his liability would cease.

      (It was Stonegate in Batman: The Animated Series, so I think that was the source of the confusion.)

  7. Would people have any better luck going after Bane in a civil case, for damages resulting from the actions of the escapees? I know civil cases don’t require the same level of proof as a criminal case, but would “You released these people expecting them to hurt someone, they hurt someone, so pay up” fly in a lawsuit?

    • Again, not really. From the post: “The same goes for tort liability too, by the way. Bane’s actions are a ‘but for’ cause of the inmates subsequent crimes, but because those crimes are intentional acts, they almost certainly count as superseding causes.”

    • Yes, it would be much easier to find him civilly liable than criminally liable. See some of my comments above for a discussion of the limits of negligence liability in a case like this. The executive summary is that “it depends on when, where, and what kinds of crimes were committed, but it’s possible Bane could be civilly liable under a negligence theory.”

      Criminal liability is a different matter, however. Probably the closest Bane could get to criminal liability would be on an accessory theory. An accessory before the fact is someone who “aids, abets, procures, commands, counsels, or otherwise encourages another to commit a crime, but is not present when the crime is committed.” 1 Wharton’s Criminal Law § 32 (2011). It’s not completely clear to me, but I believe that “a crime” means “a particular crime.” An accessory must have some knowledge of the intended crime or else someone who innocently sells, say, a kitchen knife to a person who later uses it to stab someone would be an accessory. Bane is no innocent shopkeeper here, but that doesn’t automatically make him a party to whatever scheme the Arkham inmates cook up.

      Even New York’s criminal facilitation law, which carries a very low bar in terms of intent, still seems to require that the defendant have a particular crime in mind and that the person receiving the aid intend to commit the crime at the time the aid was given. People v. Johnson, 66 N.Y.2d 398, 404 (1985) (“To establish facilitation, the People rely on Abreu’s conduct in assisting others to trade a rifle for the revolver used to kill Alcantara. … Neither it, nor the other crimes mentioned in the statement, could support a charge of facilitation because nothing indicates that at the time Abreu and the others procured the revolver … that Abreu knew they intended to use the revolver for those robberies.”).

      • Then if he wanted them to wear down Batman so he could commit some specific crime of his own, can’t that crime count as the particular crime in mind and all the crimes committed by the inmates were part of that scheme?

  8. @Ara: I wouldn’t think so, for one big reason — Bane never brought the other villains into his plan. He never specifically instructed them to wear down Batman, he just assumed they’d follow their natures and planned accordingly. Likewise, the various villains of Arkham never brought Bane into their plans, either. If I’m understanding our expert attorneys correctly, in order to “aid and abet,” both of you have to know what specific act is being aided, yes?

  9. Pingback: Arkham Asylum and Liability for Private Prisons | Law and the Multiverse

  10. James Pollock: “Actually, as I noted, I’m using simple logic: Arkham isn’t a prison; people who are adjudged culpable for their crimes are sent to prison; ergo, Arkham confinees were judged not culpable for their crimes in a way that still allowed them to be involuntarily confined to Arkham.”

    This may not be the case with Arkham. As has been commented on before, it may house those who are also “Guilty but insane”. That is, those who have been found guilty but are too mentally ill to be in the care of a regular prison. In Texas, North Texas State Hospital Vernon handles that duty. They have one ward that is specifically dedicated for the function (Skyview Maximum Security Unit).

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