Arkham Asylum and Liability for Private Prisons

In February 20th’s post regarding Knightfall, a number of commenters wondered if the fact that Arkham Asylum is presented as a private entity in some stories might affect its liability for escaping prisoners. This is actually a really good question, and one that’s becoming increasingly important as more and more states experiment with privatized prison systems. Arizona is something of a leader here, and its practices have come under pretty intense criticism on a number of fronts. But here, we’re going to look solely at whether private prisons can be sued for damages caused by escaped prisoners.

As discussed in the first post, for our purposes, it really doesn’t matter whether we’re talking about a jail, prison, or mental institution, provided the inmates are there as the result of a court order. That order could be a sentence for a crime or simply protective custody. The fact is that they’re there at the requirement of the state and not allowed to leave, so escape would be a crime. The question is whether the operator of a private prison would be more or less liable for actions an inmate takes after escaping than the state would be.

I. Do Private Prisons Enjoy Sovereign Immunity?

Probably not. Under the state actor doctrine, which we’ve discussed previously, it seems pretty clear that private prisons would be state actors for the purpose of constitutional law. When the state hires or otherwise directs a private person to do the state’s bidding, that person becomes subject to all the strictures of constitutional law with regard to their job. It doesn’t matter whether the person is technically a government employee or not as far as that goes.

State-run prisons generally can’t be sued if a prisoner escapes because states and their political subdivisions can’t be sued unless the state says they can. Most states have passed some version of a tort claims act permitting the state to be sued under certain circumstances for certain things. But as we observed last time, these acts generally do not waive sovereign immunity in the context of escaped prisoners. The state simply can’t be sued for that.

But private prisons, even if they are state actors, aren’t actually part of the government. The fact that a person is a state actor does not necessarily entitle them to sovereign immunity. Otherwise every single company that does business with the state would suddenly become entitled to sovereign immunity. Clearly, that can’t be right.

A similar but related question was actually discussed in a very recent Supreme Court case: Minnceni v. Pollard, __ U.S. __ (2012). In that case, a prisoner sued a privately run prison in California for damages, alleging that the prison’s employees had denied him access to medical care in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. The Supreme Court. . . basically punted, rejecting the plaintiff’s claim on some pretty technical grounds. The lawsuit was a so-called “Bivens” action, a cause of action created by the Supreme Court in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). The Supreme Court held that the plaintiff in that case could sue government actors directly for damages for the violation of constitutional rights where there was no other available remedy. Applying Bivens jurisprudence to this case, the Court held in a 8-1 ruling (Ginsberg dissenting) that there was no permissible Bivens action here, because there was an available state tort law remedy, and 2) the defendants weren’t a state, state political subdivision, or government employee. There was thus no obvious reason why the plaintiff couldn’t seek damages in state court. The Court noted that California has explicitly held that the operators of private prisons can be sued in negligence for failing to provide adequate medical care.

So the implication, though the Court never spells it out, is that the operators of private prisons are not immune from lawsuits based on the escape of prisoners. Arizona seems to have taken this into account in its code, requiring the operators of private prisons to maintain insurance, contribute to a fund used to pay for recapturing escapees, and indemnify the state for any liability which might result from an escape. Arizona seems to be a bit weird as far as its sovereign immunity goes—the Arizona Supreme Court actually abolished it in the 1960s, but the legislature took some corrective action since then—but even in more traditional states, private prisons, like any other contractor, don’t seem to automatically receive sovereign immunity based on the nature of their services. It may be that some states have created such immunity statutorily, or that they will do so in the future, but we could not find any such statutes off the bat. The law is still developing here, and there continues to be much ink spilled in law journals on this subject. The Department of Justice has actually published a lengthy report on prison privatization, and liability is discussed in detail.

II. Does Tort Law Support Liability?

So it seems that Arkham Asylum probably wouldn’t be immune from these sorts of lawsuits. The question then becomes whether it even matters. As last time, criminal acts by a third party can serve as superseding causes which break the chain of causation. Further, as with any tort, the injury must be a foreseeable result of the negligent act. The longer it is between the time that the prisoner escapes and the crime is committed, the less likely the crime would be considered “foreseeable.”

Turning specifically to the Knightfall example, there’s something else to consider. This seems to be the one and only time that the operators of Arkham didn’t actually do anything wrong! Bane assaults the facility with heavy weapons from a helicopter. The prison certainly has a duty to exercise reasonable care in keeping its inmates confined, but there’s an excellent argument to be made that reasonable care does not include installing surface-to-air missile batteries or some kind of anti-missile screen, both of which would have been needed to deal with Bane’s assault. In the absence of any failing of reasonable care, there’s no negligence.

Strict liability might not even work either, as strict liability does contemplate superseding causes. Now we’re not talking about the inmates, we’re talking about Bane. If an inmate just sort of escapes, then one might argue (and we’re not going to address that argument here) that Arkham should be strictly liable, i.e. liable whether or not they deviated from the applicable standard of care. Same goes for manufacturers and products liability most of the time, in that if a product is defective, it doesn’t really matter if the manufacturer did its best to avoid that. But borrowing from the products liability scenario, it’s a defense to a strict liability products liability claim if the product was modified or altered between the time it left the factory and the time the consumer was injured. In other words, the manufacturer is strictly liable for all those things in its control, but not the actions of others. Similarly, while Arkham may well be strictly liable for letting the Joker check in and out like he’s doing shift work, they probably wouldn’t be liable if a third party, namely Bane, decided to blow up the building.

Under more “normal” circumstances though, it’s likely that Arkham would be liable to the state for any money the state had to spend in rounding up escaped inmates. Batman probably helps keep costs down here somewhat, but police overtime and workers compensation adds up pretty quickly. This is why Arizona (and presumably other states) require private prison operators to put up money for this sort of thing, including the purchasing of insurance, in advance.

III. Conclusion

So, viewing Arkham as a species of private “prison,” it seems that its operators would be required to abide by constitutional restrictions about care of prisoners, but would not enjoy immunity from liability, as they would not actually be state entities. If the contractual relationship, by itself, made them such, anyone who sold anything to the state would gain sovereign immunity for losses related to those transactions, and that’s obviously not the right result. But even in the absence of immunity, it might be hard to hold them liable, as there are number of theories which, depending on the facts of the story, might preclude it. That certainly seems to be true in Knightfall, where Bane attacks the facility with heavy weapons, something the operators of Arkham probably had no duty to guard against.

15 Responses to Arkham Asylum and Liability for Private Prisons

  1. there’s an excellent argument to be made that reasonable care does not include installing surface-to-air missile batteries or some kind of anti-missile screen“…in Gotham, but?

  2. I’m actually interested in the “what if an inmate just escapes?” liability situation, so if you do another blog post on that topic, I’d appreciate it. Is a manufacturer really responsible for a defective product even if the defect was something no reasonable person could have foreseen and which resulted from no negligence of any reasonable standard? e.g. “by freak accident, a shipment of gray crafting clay and a shipment of C4 were swapped, and so 10 modeling kits sold by ModelCo Inc. exploded when somebody’s kid brother tried to make a bouncy-ball out of it and threw it on the floor?” (best freak accident I could think of; sorry if the example itself is lame. ^^; )

    I’m also interested in how this would change of Bane escaped from Arkham, and then immediately went to steal the assault chopper and perpetrate the crimes in Knightfall as fast as was possible for a villain of his caliber.

    • I don’t know if your hypo really applies, as there is no defect in the product – the C4 seems to work perfectly fine. Whoever switched the shipments would be negligent, but that party isn’t clearly identified in the facts. Now, if the manufacturer happens to manufacture both the crafting clay AND the C4 and made the unfortunate switch, that may work a bit better. This isn’t a strict liability problem but rather a straight negligence problem.

      • James Pollock

        Even negligence doesn’t apply, because C4 doesn’t explode unless you try to make it explode. Like all military-grade explosives, it has to be a ble to take rough handling without problems.

        The defective products case is for the OTHER guy, the one who wants the modeling clay to explode but can’t get it to.

      • Iggy Cosplay

        Ahhh, touché. Good point.

    • Completely off topic, you’ve got me wondering now what the liability would be (and who would be liable for damages) if someone tried to make a fake bomb out of the “modeling clay” and ended up destroying something, thinking that the “bomb” wouldn’t actually do any damage other than scare people when the detonator popped.

      • James Pollock

        I imagine it would be analyzed similarly to the guy who points an “unloaded” gun at somebody and pulls the trigger. Since blasting caps are dangerous in and of themselves and tightly controlled, I think you’d be in plenty of trouble for misusing one.

  3. What LookBeyond said. Arkham makes the Florence Supermax look like Andy Griffith’s jail in Mayberry. It’s entirely foreseeable that somebody who’s been committed to the facility may have automatic contingency plans, like a giant prison-breaking robot helicopter or a special-forces henchman squad, which will retrieve them if they are committed. In fact, with some of them, it’d be the way to *bet.* I’m sure Arkham is paid in accordance with the fact that it houses superhumans and people with MHD*. It would behoove its operators to plan accordingly.

    The question arises, though, whether any reasonable person could be expected to keep the inmates of Arkham from escaping in the first place. At what point does impossibility become a defense?

    There was a Superman novel called “Last Son of Krypton” which dealt a lot withe Lex Luthor and his proclivities and motivations. At one point, it’s noted that the warden of the prison Luthor is usually incarcerated in treats him with a great deal of respect, and in exchange Luthor is polite to the guards and tries to minimize the amount of damage and/or loss of life when he decides to leave the prison. (He likes being in prison for short periods of time: it is like a retreat for him.) I particularly recall that the warden always allows Luthor to have a pen – he doesn’t like pencils – and a legal pad of paper to take notes on, even though it’s against the rules. (Presumably he does this in some nigh-unbreakable cypher, although I don’t recall that being expressly mentioned.) Luthor expo-thinks that he’s discovered a way to use the paper, the ink in the pen, and various other things to make an explosive powerful enough to blow the door off his cell, but he would never even *dream* of doing it, because if he did, the next time, the warden wouldn’t let him have his pen and paper.

    Compare and contrast the usual treatment accorded to Arkham inmates.

    *Malign Hypercognition Disorder.

    • Two later additions:

      1) Obviously this treatment wouldn’t work for people who are just out and out delusional and to whom kindness and respect might not even be recognizable, let alone engender the same in return. But depending on the current thinking there are quite a few people who spend time in Arkham who, while they might be insane, aren’t generally irrational.

      2) To expand on the warden’s treatment of Luthor, he does not not because he is a kind person, but because he is a rational man who knows that when Luthor wants to leave the prison, he is going to leave the prison. While he does do his reasonable best (he doesn’t just leave Luthor’s cell door unlocked, etc) he is under no delusion that he can prevent it. Rather than try to play tough guy and use every possible means to delay the inevitable, he has come to a gentleman’s arrangement which has the best choice of minimizing damage to the prison and injury or death to his guards.

    • James Pollock

      This brings up an interesting side point, though it probably relates more to Marvel’s Ryker’s Island than to Arkham.

      Given the superhuman abilities possessed by some supervillains, it would take extraordinary measures to keep them restrained inside the prison. But, to the extent these extraordinary measures work, aren’t they by definition “unusual”? Juggernaut, for example, cannot be stopped once he starts moving, meaning he has to be held motionless. Toad can’t be allowed anywhere near the wall… probably, he can’t be allowed outside at all. Quicksilver would probably need to be hobbled. I don’t even know what they could do about the Scarlet Witch… keep her sedated 24/7? Any Eighth amendment issues?

      • James Pollock

        And that made me think of ANOTHER side question. Say you arrest, try, and convict Multiple Man. How can you be sure that the Jamie Madrox in the jail is the original?

      • Iggy Cosplay

        My guess is a play on semantics; it’s cruel AND unusual punishment. Yes, the restraints on Juggernaut are unusual given his unique ability, but as far as we know, it isn’t cruel (unless you have to go to the bathroom – see X3). Your restraint on Scarlet Witch by sedation may fall under the “cruel” label, I’ll give you that. If you’re looking for an equal-opportunity incarceration structure in the Marvel Universe, there’s always the Negative Zone.

        Your Jamie Madrox hypo is a stumper, though, haha.

      • James Pollock

        Iggy, prison 23 IS in the negative zone, but strictly speaking, being sent to the negative zone is less like being sent to prison and more like being exiled to a prison colony.
        Plus, there are consequences to that, too. See, e.g., the storyline for Marvel Ultimate Alliance 2. (which is based, loosely, on the Civil War storyline.)

  4. “My guess is a play on semantics; it’s cruel AND unusual punishment. Yes, the restraints on Juggernaut are unusual given his unique ability, but as far as we know, it isn’t cruel…”

    An interesting interpretation, but it has a disturbing implication if you flip it the other way: does the Bill of Rights allow cruel punishment so long as it isn’t unusual? (Although one could argue that this pretty much defines the normal state of the American penal system right now.)

    To clarify a couple of other points:

    1) On Lex Luthor in Superman: Last Son of Krypton, this was the Silver/Bronze Age version of Luthor (or Elliot S! Maggin’s interpretation thereof), who was rather ethical in his own way and would never kill anyone. So the risk of death to prison guards isn’t really an issue in the context of the novel.

    2) On the topic of the dangers posed by the misuse of C4, not only can it not be set off by impact, but the Mythbusters recently confirmed that C4 won’t even explode if you set it on fire (although it will give off toxic fumes; it’s rather poisonous stuff). The whole idea behind C4 was to create an explosive so stable that it wouldn’t go off unexpectedly even in combat conditions. So if it did end up labeled as modeling clay by mistake, it could work just fine as modeling clay, with the only potential hazard being toxicity if you ingested any of it.

    (And while we’re on the subject, why would anyone try to bounce a ball made of modeling clay? It would just deform and sit there.)

  5. Arkham is such a ‘cardboard prison’ that the citizens of the state where Arkham is located would be suing the prison around the clock and possibly calling for on-the-spot executions of super-powered criminals.

    When the Batman (a vigilante, not a sworn law enforcement officer) has to break Joker’s legs (a crazy guy whose only power is wearing that ugly face paint) to keep him from breaking out of jail right away, then it’s time to shut the place down or start fast-tracking executions. Either way, the writers at DC will be required to come up with better story-lines.

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