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.
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.