Superman, Duels, and Affray

Today we take a step back in time both in comic book history and the law.  While reading some classic Silver Age Superman comics, I found Superman #153, which contains a couple of great stories: “The Day Superman Broke the Law!” and “The Town of Supermen!”  Today’s post is about the second of these; don’t worry, though, we have a post planned for the first one.

I. The Set-up

The DC Wiki article has a good synopsis of the plot of “The Town of Supermen!”  but here’s the executive summary: A group of Kryptonian criminals escape the Phantom Zone and set up in the western ghost town of Deadwood Gulch, where they challenge Superman to a fight using Phantom Zone projector guns.  Superman accepts the challenge and wins by melting their guns with his heat vision and sending the criminals back to the Phantom Zone.

You might be wondering, “well, that sounds like standard Silver Age silliness, but what’s the legal issue?”  It turns out there are several, including some that involve old common law crimes with goofy names, which are always fun to talk about.

Note that the location of “Deadwood Gulch” is not specified in the story, so I refer to the law of various states in this post.

II. Dueling

One might guess, as I initially did, that the problem here is that Superman wasn’t acting in self-defense but rather voluntarily engaged in a duel.  It’s true that he wasn’t acting in self-defense or defense of others (the Kryptonians hadn’t directly threatened anyone yet), but in the eyes of the law this wasn’t a duel, despite Superman calling it “a showdown duel”:

The word “duel” bears a fixed, definite signification, not only colloquially, but juridically. Webster’s Dictionary defines a “duel” as a “combat between two persons, fought with deadly weapons, by agreement.” This definition is, as stated, the common—in fact, we may truthfully say the universal—understanding of the word. It indeed, is its intrinsic signification, and as so defined has been invariably adopted and used in the law and followed by the courts.

People v. Morales, 77 Cal.App. 483, 487-88 (1926).  Also see, e.g., Colo. Rev. Stats. § 18-13-104(2) (“Persons who by agreement engage in a fight with deadly weapons, whether in a public or private place, commit dueling, which is a class 4 felony.”).

In this case the parties used Phantom Zone projector guns, which certainly aren’t deadly weapons.  In fact, they wouldn’t even necessarily qualify as firearms in many jurisdictions, which avoids a lot of “criminal use of a firearm” type offenses.  See, e.g, Cal. Penal Code § 16520(a) (“As used in this part, “firearm” means any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.”).

As is often the case in the criminal law, the lack of one essential element of a crime doesn’t necessarily mean the act is legal.  Instead, it’s just a different crime, usually a lesser one.  In this case, the lack of deadly weapons turns it from a duel into an affray.

III. Affray

Affray is a very old common law offense, dating back to the late 15th century or so.  In fact, it’s so old that it originated from a French word, effrayer, meaning “to affright,” back when court business was still conducted in French following the Norman Conquest. See State v. Huntly, 25 N.C. 418, 421 (1843).  (Etymological side-note: the word “afraid” is the past-participle of affray and is essentially the only surviving remnant of the word in everyday English.)  As Edward Coke defined it in 1669:

But albeit upon the single combate no death ensue nor blood drawn, yet the very combate for revenge is an affray, and a great breach of the kings peace, an affright and terrour to the kings subjects, and is to be punished by fine and imprisonment … An affray is a publique offence to the terrour of the kings subjects, and is an English word, and so called, because it affrighteth and maketh men afraid …

Despite these ancient origins, affray is still very much alive in many US jurisdictions.  See, e.g, Hickman v. State, 193 Md.App. 238 (2010) (“we hold that common law affray continues to be a viable offense in the State of Maryland”); In re May, 357 N.C. 423 (2003); D.J. v. State, 651 So.2d 1255 (Fla. App. 1995).

As the court in May observed, “the essential elements of affray have proved remarkably durable, surviving through the ages without substantive change. …  An affray is defined at common law as a fight between two or more persons in a public place so as to cause terror to the public.”  In re May, 357 N.C. at 426.

That definition fits this case quite well. The fight was between Superman and eight Kryptonians, which is two or more people.  It took place on the main street of Dry Gulch, which is certainly a public place.  And the fight terrorized “the public,” namely Lois Lane, Perry White, and Jimmy Olsen, who made comments such as “I–I c-can’t look!”, “Jeepers! How can even Superman beat eight super-powerful foes to the draw?”, and “Poor Superman is doomed! *sob*”

So it looks like Superman may have broken the law by consenting to an affray rather than fleeing the scene, contacting the authorities, or waiting until self-defense or defense-of-others were available defenses.

IV. Conclusion

I suspect Jerry Siegel intended for the Phantom Zone projector guns to be both a way to dispose of the Kryptonian criminals at the end of the story and a way to make the fight non-lethal, fitting with Superman’s Silver Age morality.  Unfortunately, it was still a crime, albeit probably a less serious one than actual dueling.  This has implications far beyond this obscure story, however.  Affray, dueling, and related offenses could apply to many pre-arranged, public fights between superheros and supervillains.  That kind of open confrontation is much harder to legally justify than the standard self-defense, defense-of-others, and lawful arrest scenarios.

61 Responses to Superman, Duels, and Affray

  1. I would argue this is more of a State Department issue, rather than something the criminal courts would deal with.

    As one of the last living Kryptonians, Kal-El could make the argument that he has a legal right to subdue, detain or even kill Kryptonian criminals and fugitives. At least as much right as Seal Team 6 had to go into Pakistan and kill Osama bin Laden. Or a better example might be Anwar al-Awlaki, a American citizen, who was killed by U.S. missiles in Yemen.

    If you think about, Superman actually has more legal justification for going after Kryptonians than he does all of the other bad guys he usually fights.

    • I don’t know that Seal Team 6 had a “right” to go into Pakistan…it’s more along the lines of “What is Pakistan going to do about it?” Might still makes quite a bit of right in international relations.

      Of course, we run into the same thing with Superman. What is the US Government going to do about him running around? It’s probably easier to just go along with it, the way the Pakis just decided to let sleeping dogs lie (at least publicly) about what was, quite frankly, and act of war by the US.

      • And that’s my point about why the State Department would be involved, rather than local, or even federal, law enforcement. Hillary Clinton would sit Superman down and give him a talking-to about following proper diplomatic protocol before pursuing fugitives on U.S. soil.

    • I would argue this is more of a State Department issue, rather than something the criminal courts would deal with.

      Only in a vague political sense, not a legal one.

      As one of the last living Kryptonians, Kal-El could make the argument that he has a legal right to subdue, detain or even kill Kryptonian criminals and fugitives.

      Where, exactly, would this legal right come from? The United States is not obligated to recognize the criminal law of Krypton within US territory. They don’t even have an extradition treaty, much less the kind of mutual assistance agreement that is normally necessary for extraterritorial arrests.

      Even accepting this: do we know that the law of Krypton authorizes private citizens of Krypton to make arrests and return fugitives to the Phantom Zone? Can we even legitimately say that they are fugitives, given that the Kryptonian government that sentenced them no longer exists and there is no successor government?

      The example of al-Awlaki isn’t entirely applicable because this story was set in the early 1960s, long before the law supporting al-Awlaki’s assassination had developed. But even so the argument was basically that the executive branch of the US government had found al-Awlaki guilty of United States crimes and executed him. Superman is not part of the executive branch of the Kryptonian government, not least because no such government exists.

    • Since Osama bin Laden was not a citizen of the U.S and those soldiers didn’t have any known permission by the Pakistani government to be there the legal strength of that operation is a bit more in doubt*

      As for Mr. Al-Awlaki, that still seems to be a confusing legal area. The U.S seems to have permission from the Yemeni government (or at least the previous Yemeni government) to carry out operations but I’m not sure that we (or even the site’s experts) would be qualified to judge whether or not the military and intelligence agencies did everything as legally as they could.

      However Superman might have some stronger defense, especially if he argued that he was one of the very few people on the planet physically capable of stopping eight Kryptonians. Of course then you get into issues of how legal it was for him to attempt to apprehend them at all.

      * And it helped illustrate differences between the U.S and Europe when European papers and politicians wondered about its legality while the U.S showed less concern.

  2. If the kryptonians had said, “show up at this duel/affray/whatever or we start killing people,” would that have been sufficient to make it a “defense of others” situation? There is no question that, even if these kryptonians had no people captured at this time, they could have flown off to the nearest city and started leveling buildings by throwing minivans full of innocent families at them.

    • Yes, that probably would have been sufficient, as would a threat against the three bystanders or even Superman himself.

      They did suggest that they intended to send Superman to the Phantom Zone, but that was part of the invitation to the fight more than a separate threat, in my view.

      • Could Superman claim that he was attempting to capture them for violation of immigration law?

      • Could Superman claim that he was attempting to capture them for violation of immigration law?

        No, because he didn’t arrest them and take them to or notify the proper authorities. The same is true of any other (US) crime they might have committed. Citizen’s arrest does not empower someone to imprison a suspect in the Phantom Zone.

      • Could he bootstrap a self-defense claim using the claim that he was attempting a citizen’s arrest? So he sees them. They are violating US law in all sorts of ways. He decides to perform a citizen’s arrest. That’s what the duel starting is. At that point, they have informed him that they will fight. They are now a credible threat. So, he uses the phantom gun in self defense. Can that work?

      • A threat to send him to the Phantom zone would be akin to a threat of kidnapping, or attempted kidnapping, should he fail to comply with their demand. Use of force, up to and including deadly force, is generally allowed to prevent kidnapping in most jurisdictions (maybe all?). I think that would be an easy case to argue, as 1.) The threat was viable- they had opportunity, capability, and he had reason to believe they were sincere in their statement, providing intent. 2.) The threat is by itself a felony, enabling a citizen’s arrest, as it was done in his presence, and LEO’s could not reasonably be expected to arrive at such a time and place as to prevent the escape of the suspects. His agreement to the arrangement would simply be the method by which he chooses to prevent the escape of the felony suspects.”Lesser Evil” defense might apply here as well. Secondly, do the Kryptonians involved qualify as persons under the relevant statutes?

  3. If Superman has the right to go after Kryptonian criminals on the grounds that Krypton has no other government and the authority vests in him, by the same reasoning once the criminals appear they can argue that they are the legal government and that Superman is a fugitive. The fact that they were convicted as criminals under the previous regime, of course, has no bearing on whether they are the current ruling government.

    Also, if Superman is a government, he’s clearly not one the US officially recognizes or has diplomatic relations with, so his status may not do him much good anyway.

    And Superman claiming to be a government may be construed as giving up US citizenship.

  4. How does combat using Phantom Zone projectors differ from, say, paintball? If we agree to settle a dispute by playing a game of paintball, does that count as an affray? What if it’s a game of chess?

    • Since a key part of the “affray” laws seem to be that they are meant to induce fear in “the public” (or maybe even doing so without meaning to would be enough?), I think anything that “the public” wasn’t going to be afraid of would stop it from being “an affray.”

      I do not think, barring gambling laws getting in the way, saying “I challenge you to a game of chess; whoever loses must leave the country/go to the phantom zone,” is illegal, nor would engaging in the contest be illegal. Though I don’t know how legal any attempt to ENFORCE the conditions of the bet would be.

      • Ken Arromdee

        But why would the public be afraid of a combat using Phantom Zone projectors any more than one using paintball?

      • But why would the public be afraid of a combat using Phantom Zone projectors any more than one using paintball?

        I suspect because they could get hit in the crossfire and banished to the Phantom Zone forever or because they were afraid for Superman.

        Although actually a paintball gun fight in public might well constitute an affray as well. Bystanders wouldn’t be wearing proper safety equipment, and injuries and property damage would be a very real possibility.

      • Ken Arromdee

        It’s a ghost town. No bystanders.

      • It’s a ghost town. No bystanders.

        Lois, Jimmy, and Perry were standing in the street only a few yards from the fight.

      • Ken Arromdee

        That would mean that if you settle a dispute by paintball but deliberately do it in a place with no people around, it can be affray anyway simply because you invited a few friends to watch (if Lois, etc. came with Superman’s consent) or if a few people sneaked in (if Lois, etc. came without his consent). That can’t be right.

      • That would mean that if you settle a dispute by paintball but deliberately do it in a place with no people around, it can be affray anyway simply because you invited a few friends to watch (if Lois, etc. came with Superman’s consent) or if a few people sneaked in (if Lois, etc. came without his consent). That can’t be right.

        Actually, the bystanders aren’t strictly necessary at all. It’s sufficient that the fighting is in a public place where members of the public could be terrorized if they were present. “As for ‘terror,’ it has been held that the fight need not create actual terror to constitute an affray, but such may be presumed from fighting in a public place. This is consistent with the common law notion of an affray as an attack upon the public order and sense of security which could lead to actual violence.” DJ v. State, 651 So.2d 1255, 1256 (Fla. App. 1995).

        But there must be actual fighting. State v. Freeman, 127 N.C. 544 (1900). So settling a dispute via a paintball match may or may not fit the bill, depending on the nature of the dispute and how heated the match was. If the match couldn’t be fairly described as a fight, then it probably wouldn’t fit.

        In this case it was definitely a fight, since the result was the assault and imprisonment of the losing party. Perry describes the parties as “combatants,” and the narrator calls it a “showdown street battle.”

      • Ken Arromdee

        If the result is affray because it involves “assault”, I could equally argue that a paintball gun is “assault”. A paintball is a physical object, after all.

        And while it seems like the result of the Phantom Zone battle is imprisonment, I don’t think it really is. Plenty of sports activities involve someone being “imprisoned” for a few moments. The only thing that changes a momentary imprisonment to a long-term imprisonment is the parties’ agreement that whoever loses stays in the Zone. Bystanders who got hit would simply be released.

        I also don’t see why a town with no people (except a few that sneaked in or were invited) is a “public place” in this context. If they had the battle on the moon, would it be a “public place” because *if* one of the dozen people in the DCU with space travel went to the moon, they would be terrorized? If not, how is being on the moon different from being in a ghost town, except in degree (one place is not expected to have people, one place is *really* not expected to have people?)

      • If the result is affray because it involves “assault”, I could equally argue that a paintball gun is “assault”. A paintball is a physical object, after all.

        Within the context of a friendly paintball game, the paintball hits are not assaults because they have been consented to. Again, affray requires actual fighting. But if some people started having a fight with paintballs by firing them at each other outside the context of a game and in a public place, that could be an affray.

        The only thing that changes a momentary imprisonment to a long-term imprisonment is the parties’ agreement that whoever loses stays in the Zone.

        But the parties haven’t agreed to any such thing. The imprisoned folks don’t stay in the Zone by choice. The criminals still very much want to leave, and Superman wouldn’t certainly try his hardest to escape had he lost the fight.

        I also don’t see why a town with no people (except a few that sneaked in or were invited) is a “public place” in this context. If they had the battle on the moon, would it be a “public place” because *if* one of the dozen people in the DCU with space travel went to the moon, they would be terrorized? If not, how is being on the moon different from being in a ghost town, except in degree (one place is not expected to have people, one place is *really* not expected to have people?)

        The definition of “public place” is a tricky issue in the context of affray. In fact, it was basically the sole issue in In re May, in which the North Carolina Supreme Court went to great lengths to figure out a definition. As the Court noted:

        Courts and legal scholars from around the globe have also struggled with the issue of establishing the elements of an affray. For example, in the United Kingdom, where the common-law crime has been recognized for nearly 500 years, vigorous debate over what constitutes a qualifying “public place” persists to this day. As in the instant case, much of the argument centers on developing a means for determining if a particular place was public and if witnesses to the altercation were subject to its terror. See, e.g., A.T.H. Smith, Metamorphosis of Affray, 136 New L.J. 521 (1986); Constituent Elements of Affray: Cobb v. DPP, 57 J.Crim. L. pt. 2, at 133 (Neil McKittrick ed., May 1993).

        The Court did not come up with a precise definition but rather held that there were two broad categories of public place:

        [E]xamples taken from our case law indicate that the offense may be committed in two distinct types of locales that qualify as “public places.” The first type includes places generally considered public by the nature of their use or intended use. Parcels and places owned and/or maintained by either a government entity or a private business and that are open to public traffic are included in this grouping. Examples include roads, streets, highways, sidewalks, shopping malls, apartment complexes, parks, and commons.

        The second type of “public place” for purposes of proving an affray is private property that is situated near enough to public thoroughfares that citizens using such thoroughfares could bear witness to the altercation. Although no precise definition of such qualification has emerged from our state’s case law, examples that have been held to satisfy the “public place” requirement include private property within view or earshot of a sidewalk or street.

        The main street of Deadwood Gulch would seem to qualify under the first category. The Moon, however, would not qualify under either category. It bears no resemblance to the examples of the first category and is not owned or maintained by a government or private business. It is also not so near to any public thoroughfare as to qualify under the second definition.

      • James Pollock

        The moon (site of an epic fight between the new X-men and the Shi-Ar Imperial Guard) will not be the site of an affray because it is not within the jurisdiction of a common-law nation.

      • Ken Arromdee

        If the moon doesn’t count on the technicality that nobody owns it, how about, say, a location 2 miles under the ocean (but within US territorial waters)? After all, someone could wander by if they’re an Atlantean or a deep sea diver. That would make it “open to traffic”.

        Of course it’s not *likely* that the “open to traffic” location will have any traffic, but I could say the same about the ghost town.

      • After all, someone could wander by if they’re an Atlantean or a deep sea diver. That would make it “open to traffic”.

        Leaving aside the jurisdictional issue: the bottom of the sea is not an example of “roads, streets, highways, sidewalks, shopping malls, apartment complexes, parks, and commons.” In fact, it’s sufficiently different that a court may not consider it public. Whereas the main street of a ghost town is a street, and any problem posed by the unlikelihood of bystanders being present is solved by the fact that there were, in fact, bystanders present.

      • If it had not been “the streets of a ghost town,” but instead had been “these coordinates, in the middle of a meadow surrounded by forest with no habitations within a mile and not within easy sight of a highway or the like, which are likely public land,” would it qualify as an affray?

        The area is assumed to be chosen to be as out-of-the-way as possible without actually having to have some big money landowner backing it by giving express permission to act on private land.

        Alternatively, what if the conflict were to be held in an abandoned warehouse?

        In both cases, the combatants might qualify for trespassing, but could “affray” be applied if they were avoiding commonly-trafficked public places that were not very clearly “streets or commons?”

      • If it had not been “the streets of a ghost town,” but instead had been “these coordinates, in the middle of a meadow surrounded by forest with no habitations within a mile and not within easy sight of a highway or the like, which are likely public land,” would it qualify as an affray?

        If the meadow and forest are public, then it just depends. The borderline cases are fuzzy and there aren’t always similar cases to analogize to.

        Alternatively, what if the conflict were to be held in an abandoned warehouse?

        Again, it depends. Even a privately owned building can count as a public place, such as “Private property that is situated near enough to public thoroughfares that citizens using such thoroughfares could bear witness to the altercation … [such as] private property within view or earshot of a sidewalk or street.” So if the abandoned warehouse is right against a sidewalk or has a bunch of windows such that someone on the street can see into it, then that might still count.

  5. Thanks for the quick reply to my first question. The mentions in other comments about “Superman as Krypton’s government” and “would that give up Clark’s US Citizenship” made me wonder, would it be a) possible and b) in the US’s interest for an Act of Congress to make Superman a special diplomatic envoy with the right to act as the recognized government of Krypton with authority over Kryptonian affairs (as far as the US is concerned), but otherwise subject to US law as if he were an honorary citizen? Would that protect Clark’s citizenship, even in the event the secret identity were one day revealed?

    • I’ve always thought it would be useful for Superman to essentially name his Fortress of Solitude a Kryptonian Embassy on Earth and then seek official recognition from the United Nations.

      • He’d more likely need the recognition of whatever country where the Fortress of Solitude is located. (I think it might have been in the Andes in some continuties, but I’m honestly not that big into the comic side of DC) The UN doesn’t have any territory to grant an embassy in.

        Even then, he’d still need to be granted immunity in every country he operates in. That doesn’t just happen because the UN makes somebody an ambassador to them. Bureaucratic nonsense still exists, even in international relations. Our embassies have to give host countries a list of who we want to have diplomatic immunity, and the host countries can say “no”. For another example, when our Secretary of State goes on an official visit to another country, the Air Force still has to submit paperwork for landing permission at the host country airport, just like they do for any other aircraft.

    • The power of the federal government to conduct foreign policy might be sufficient for that.

      However, a counter-argument would be that the Constitution would still apply and so the renegade Kryptonians would be entitled to due process and other constitutional protections so long as they were within US territory. For example, illegal immigrants are entitled to due process and other legal protections. In other words, the government can’t declare a certain class of people to be outside the law and allow Superman to have carte blanche in dealing with them.

  6. Did these Kryptonian escapees actually commit any crimes while in the U.S? Considering that whatever crimes they committed prior to being incarcerated were presumably on Krypton and the recognized government of Krypton was completely destroyed simply escaping from the Phantom Zone doesn’t sound like it would be enough to justify their pursuit by Superman or U.S authorities.

    • Possibly immigration violations, as mentioned above. Arguably trespassing, breaking and entering, etc, as well; Deadwood Gulch may be a ghost town, but I’m sure the land and buildings are still technically owned by somebody, even if it has escheated to the state. The Kryptonians were shown living in the town as part of the ruse to draw in Superman, but they had no right to do so.

  7. So a rail gun isn’t a firearm in California?

    • Admittedly I only understand the basics of rail guns but from what I understand they probably belong in an entirely different class of armaments. The word ‘gun’ is a bit misleading the same way the common civilian usage of the word ‘gun’ can mean any firearm but most soldiers would use it to mean artillery.

    • Disclaimer: I assume you are asking purely out of curiosity; this is not legal advice. If you are considering building, purchasing, owning, or using a railgun, please consult a competent attorney in your jurisdiction.

      It may not be a firearm, but that doesn’t mean it isn’t regulated in other ways. For example, depending on the caliber it could be a “destructive device.” Here is the relevant part of the federal definition, which is incorporated into the California Penal Code: “any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Director finds is generally recognized as particularly suitable for sporting purposes.” 27 C.F.R. § 479.11 (emphasis added). Presumably the electromagnetic propulsion used by a railgun would qualify as “or other propellant.”

      The Phantom Zone projectors wouldn’t qualify as a destructive device because they don’t expel a projectile but rather some kind of ray.

      • James Pollock

        I don’t think that magnetic force is a “propellant”. Encyclopedia Britannica has this:
        “any gas, liquid, or solid the expansion of which can be used to impart motion to another substance or object.” ( http://dictionary.reference.com/browse/propellant?s=t ) although the dictionary definitions are more vague and less conclusive. The defintion in the federal definition provided seems intended to capture firearms and compressed-gas weapons such as CO2 pellet guns and compressed-air weapons such as BB guns and spear guns.
        Which is not to say that it wouldn’t qualify as a “weapon” if used in conjunction with another criminal act, but I’m not convinced that it would be illegal to possess one without an accompanying criminal act.

        Now, phatom-zone projectors: how does the projector know to put the whole person (whether Earthling or Kryptonian) into the phantom zone? Wouldn’t the device be deadly if you could put only, say the upper torso and head into the phantom zone, while leaving the abdomen and legs here? Assuming some kind of safety interlock that either conveys the entire person to the phantom zone or leaves them intact here with each use, would this even be a weapon at all? (Obviously, using it unlawfully would be a tort (false imprisonment) but is it an assault and/or a battery, given that it would do no physical harm to the subject? Is it a kidnap?

      • I don’t think that magnetic force is a “propellant”. Encyclopedia Britannica has this:

        Courts rarely cite encyclopedias, but they do frequently cite dictionaries. The Oxford American Dictionary has this for the first definition: “a thing or substance that causes something to move or be driven forward or outward.” Admittedly it also gives examples of traditional propellants, but I could see a court taking a broad view.

        Now, phantom-zone projectors: how does the projector know to put the whole person (whether Earthling or Kryptonian) into the phantom zone?

        Comic book magic, more or less.

        Assuming some kind of safety interlock that either conveys the entire person to the phantom zone or leaves them intact here with each use, would this even be a weapon at all? (Obviously, using it unlawfully would be a tort (false imprisonment) but is it an assault and/or a battery, given that it would do no physical harm to the subject?

        The crime of assault or battery and the tort of battery require only touching, and it’s been held that something as insubstantial as the beam of a laser pointer can cause an assault. Adams v. Com., 534 S.E.2d 347 (Ct. App. Va. 2000). In the story Perry says that “the ray-blasts are so blinding w-we can’t see!” and Perry, Lois, and Jimmy shield their eyes. And that’s just the indirect effect of the ray, so I think using it on a person could constitute an assault.

      • James Pollock

        “Courts rarely cite encyclopedias, but they do frequently cite dictionaries.”

        I know. Look at the URL I cited to. The defintions of “propellant” offered by the dictionary section were, to me, inconclusive, but the Encyclopedia’s definition, offered on the same webpage, wasn’t.

      • The definitions of “propellant” offered by the dictionary section were, to me, inconclusive, but the Encyclopedia’s definition, offered on the same webpage, wasn’t.

        That’s as may be, but courts don’t cite to encyclopedias. For better or worse, they turn to dictionaries. If the dictionary has a broad definition (what you might call inconclusive), and there is evidence that the legislature intended the law to be broad, then a court likely won’t have trouble accepting the broad definition. Here, I think the law was meant to be broad, as evidenced by the first part, “any type of weapon by whatever name known.” (I say law here and not regulation because the regulation in question is just repeating 26 U.S.C. § 5845(f)).

        There are several cases in which dictionaries are cited for definitions of words used in that law, despite the fact that an encyclopedia or technical manual would have a more precise definition. This includes cases in which a broader definition was used rather than a narrower one specific to firearms. See, e.g., U.S. v. Carter, 465 F.3d 658 (6th Cir. 2006) (citing a dictionary in support of a broad definition of “trigger” to mean “anything, as an act or event, that serves as a stimulus and initiates or precipitates a reaction” rather than the narrower technical definition of “a small projecting tongue in a firearm that, when pressed by the finger, actuates the mechanism that discharges the weapon”).

  8. Given the destructive and terrifying nature of the average superhero / supervillain fight it’s amazing that most heroes aren’t perpetually in court defending themselves from this charge.

    • Sorry – I meant “Affray” in my previous comment

    • Self-defense is a defense to affray, so in many cases the superhero could claim that. Also, affray is not an offense in all jurisdictions, and some jurisdictions require that the parties to an affray consent to it. There was consent in this case, but that doesn’t apply in a lot of superhero/supervillain fights.

      • Martin Phipps

        I’m a bit confused.

        First of all, consider your average superhero. He/she is a vigilante: he/she puts on a costume and goes looking for trouble. It’s hard for Spider-Man to claim self defense because the villains typically don’t know who Spider-Man really is: they are looking for Spider-Man, not Peter Parker. All of his fights are affrays because he can avoid them simply by not putting on his costume. If Peter Parker were attacked by the Green Goblin and he chose to fight back rather than run away I think that would be different. Here Superman has an excellent defense: he doesn’t wear a mask and people don’t know he has a secret identity he can hide as. It may be seen as impossible for him to simply run away from a confrontation with people who can fly after him.

        In the case of Batman, there’s also the stated intent of “instilling fear in the hearts of criminals”. Whereas the police exist to “serve and protect” citizens, Batman’s stated goal is retribution against criminals. Is it a crime to simply be a vigilante? Wouldn’t neighborhood watch programs get into trouble if that were the case as the goal is to put the neighborhood under surveillance and arrest those who violate the law? I would imagine that when the police go after Batman it is for multiple counts of affray and not simply because he is putting on a costume and attacking criminals. Neighborhood watch programs are designed to make residents feel safer. Batman would have to over evidence that by going around attacking criminals he is making the public feel safer. Certainly Superman would have an easier time defending his actions because he spends more time saving people from natural disasters than actually rounding up criminals.

        Finally, can police be charged with affray? I mean, if they fail to follow procedure and properly identify themselves as police and people think that undercover or off duty officers are rival gang members could they end up in a lot of trouble? What exactly is the penalty for affray anyway? Where does it fall in the continuum between disturbing the peace and terrorism?

      • It’s hard for Spider-Man to claim self defense because the villains typically don’t know who Spider-Man really is: they are looking for Spider-Man, not Peter Parker.

        I’m not sure what you mean. If someone unlawfully attacks Spider-Man while he’s in costume, he can invoke self-defense. It doesn’t matter that he’s “really” Peter Parker and not Spider-Man.

        All of his fights are affrays because he can avoid them simply by not putting on his costume.

        Self-defense is a defense to affray, and self-defense is (basically) available as long as the defendant didn’t start the fight. It doesn’t matter that the defendant put himself into a situation where a fight was likely (e.g. walking into a bar frequented by villains or something).

        (Note that the situation is different with duress. “The defense of duress is not available if the defendant intentionally or recklessly placed himself in a situation in which it was reasonably foreseeable that he would be subjected to coercion.” 1 Wharton’s Criminal Law § 52.)

        Whereas the police exist to “serve and protect” citizens, Batman’s stated goal is retribution against criminals.

        The goal isn’t so important as long as his methods are legal. In this case, affray does not require an intent to create terror in the public. At his best Batman typically acts in self-defense, defense-of-others, or pursuant to a lawful citizen’s arrest. The fact that this might bother some members of the public doesn’t make it an affray.

        can police be charged with affray?

        If the circumstances were such that their various immunities did not apply, then I suppose so.

        What exactly is the penalty for affray anyway?

        It varies by jurisdiction. In Georgia it’s a misdemeanor. Ga. Code Ann., § 16-11-32.

        Where does it fall in the continuum between disturbing the peace and terrorism?

        About the same as disturbing the peace. In some states it has been subsumed under a general “breach of the peace” statute. See, e.g., Conn. Gen. Stats. Ann., § 53a-181(a)(1).

      • James Pollock

        “All of his fights are affrays because he can avoid them simply by not putting on his costume. ”

        A technicality: There was a period of time (starting in Amazing Spider-Man #252) when this was not true… the costume was literally taking Peter out during the night, when Peter was asleep, to swing around the city.

      • Martin Phipps

        What about assault then? If Batman drops through a skylight and scares everybody in the room he arguably hasn’t yet started an affray but the defendants’ lawyers can claim that they were assaulted by the flying glass and then there goes Batman’s own claim of self defense.

      • What about assault then? If Batman drops through a skylight and scares everybody in the room he arguably hasn’t yet started an affray but the defendants’ lawyers can claim that they were assaulted by the flying glass and then there goes Batman’s own claim of self defense.

        It depends on the circumstances. For example, necessity might come into play if getting the drop on the villain was essential and busting through the skylight was the only way to do it.

        And it also depends on the jurisdiction. In New York, for example, if the use of force is justified by, e.g., defense of others, then it is not criminal, regardless of the result. Put differently, it is the use that is justified, not the results. So if someone is justified in using force, unintentional injuries to bystanders are not criminal. See, e.g., People v. Pena, 641 N.Y.S.2d 794 (1996); People v. McManus, 67 N.Y.2d 541 (1986). So if Batman were justified in using force to subdue the villains and if that justified force included breaking a skylight in order to confuse or startle the villains, then unintentional injuries to bystanders wouldn’t be criminal, at least in New York.

  9. Surely the statute of limitations has run on this offense?

  10. One question for me is whether or not lois lane and co could legitimately be classified as the public. While members of the media still qualify as members of the public, there seems here to be a deliberate insertion of themselves into a private event (i.e. Going to a ghost town for no other purpose thanto observe this fight). Shouldn’t there be some sort of limitation via assumption of the risk, or perhaps they are not innocent bystanders but aiders/abettors or co-conspirators in this? As news media, they have a clear personal financial incentive as to the fight and it’s outcome and their willing xomplaince and coordination with suoerman tends to cut against their innocence.

    A second point i would like to clarify, more semantics than anything else. Admitting my total ignorance of laws of affray (never heard of it before today), the wording seems to imply that the fight itself is intended to incite fright among the public. This fight seems directed towards superman ala a personal grudge. Second, it was planned and located in a ghost town. But for the arrival of supermans companions, no members of the public (at least according to the summary above) were present, anticipated, or targeted. There was also apparently no reasonabecertainty that the public, absent at the fight, would be present to be terrified. If so, wouldn’t this fail to satisfy the elements of the offense? Far different from a paintball fight in the streets betweedn two or more people, a fightina secluded location involving only willingly present parties who should have reasonably expected what was about to haopen seems a far cry from meeting the standard of terrifying the public, intended effect or not.

    Again, i acknowledge my ignorance of the issue and would love to hear the answer.

    • “The public” basically just means “people who aren’t party to the affray.” I don’t think the fact that Lois is a reporter who went to Deadwood Gulch in search of a story makes her less a member of the public in this context.

      the wording seems to imply that the fight itself is intended to incite fright among the public

      No, it doesn’t have to be intended to incite fright. The terror of the people is the effect (or potential effect) of the fighting, which is what makes affray a kind of breach of the peace rather than a crime against a particular person. But the parties to an affray don’t have to intend to create terror.

      Far different from a paintball fight in the streets between two or more people, a fight in a secluded location involving only willingly present parties who should have reasonably expected what was about to happen seems a far cry from meeting the standard of terrifying the public, intended effect or not.

      That’s true as far as it goes, but actual terror isn’t required. “As for ‘terror,’ it has been held that the fight need not create actual terror to constitute an affray, but such may be presumed from fighting in a public place. This is consistent with the common law notion of an affray as an attack upon the public order and sense of security which could lead to actual violence.” DJ v. State, 651 So.2d 1255, 1256 (Fla. App. 1995). The law criminalizes fighting in public, even a very remote public place like the main street of Deadwood Gulch. To avoid affray they could have chosen a non-public space for the fight.

  11. If the projector guns were specifically built to send Kryptonians (not humans) into the Phantom Zone, and had no dangerous side effects (such as the blinding light), then there would be no reason for the bystanders to be “terrified” by the fight. Would that mean it was no longer an affray?

    The only other concern I saw listed was being afraid of Superman losing. Does that mean if there was no danger to the bystanders, and the fight was between two people that nobody present cared about, then it would no longer be an affray? And if concern over Superman getting hurt is enough to make it an affray, wouldn’t that also make boxing matches illegal if, say, the spouse of one of the participants is watching?

    • If the projector guns were specifically built to send Kryptonians (not humans) into the Phantom Zone, and had no dangerous side effects (such as the blinding light), then there would be no reason for the bystanders to be “terrified” by the fight. Would that mean it was no longer an affray?

      It’s hard to say, since there hasn’t been a case like that that I found. But if we take it as granted that there was no terror element present (bearing in mind that terror doesn’t require bystanders, just the potential for terror in a public place), then no, there wouldn’t be an affray, since terror is an essential element of the crime.

      Does that mean if there was no danger to the bystanders, and the fight was between two people that nobody present cared about, then it would no longer be an affray?

      Not necessarily. Actual terror is not required, only the possibility. I brought up the presence of the bystanders in this case in order to establish the terror element, but merely having a fight in public can be sufficient if the public would have been terrorized were they present. If the fight had been in an empty street in Metropolis that would have been an easy case, but since it was in a ghost town in the desert it’s harder to argue that there was even the possibility of terror if there weren’t any actual bystanders.

      And if concern over Superman getting hurt is enough to make it an affray, wouldn’t that also make boxing matches illegal if, say, the spouse of one of the participants is watching?

      No because an affray requires actual fighting. A boxing match, like a paintball match, is an essentially friendly sporting event. Even though the participants are trying to hurt one another, there are rules and safety regulations. In this case, by contrast, the parties’ sole objective was to harm the other by imprisoning them in the Phantom Zone, and both the onlookers and the narrator described it as a fight. This suggests that it was indeed a fight and not merely a quick-draw contest.

  12. @PrometheeFeu

    In general, no. You can’t deliberately pick a fight trying to provoke an attack so you can “defend” against it, nor can you consent to fight (an affray) then claim self-defense to defend your unlawful use of force.

    To the latter there is, in Alaska law anyway, an exception if you have “withdrawn from the encounter and effectively communicated your withdrawal to the other person” yet they persist. That can “reset” your right to self-defense, but self-defense is an affirmative defense so the burden is on you to prove that’s what happened,

    • Of course, news reports out of Florida are currently showing that you can disregard a 911 operators instruction to stop following a person, pursue them, engage in personal combat, and then use deadly force on an unarmed person, and remain un-arrested for a considerable period (and claim “self-defense” to the public.)

      • As far as a I know, a 911 operator has no legal authority to issue instructions that are obligatory to be complied with, though those same instructions could damage any defense relating to disproving an element of “knowing” or “willfully”. Secondly, we don’t know who actually engaged. Initiating a social contact, provided it was not overtly threatening or agressive, is not grounds for losing the self defense claim, and if (note I know no more about this case then anyone else in the media) Martin became belligerent and instigated the violence, there would be no duty to retreat at that point. It will be a matter for a jury to determine who intigated what and to what extent. So the claim of self defnse becomes a valid argument. As to why he wasn’t arrested and charges placed before a grand jury, god only knows (well, and the DA who decided not to press with charges).

  13. According to the synopsis I read, Perry, Lois and Jimmy summoned Superman. Is it reasonable to suppose then that Superman was in fact acting in their defense?

    • Not in this case. The criminals didn’t threaten Lois, Perry, and Jimmy, though they did reveal their plan to imprison Superman in the Phantom Zone once their generator was repaired.

  14. Let’s suppose that Superman and the Kryptonians decide to rent the Superdome and have their fight there and sell tickets to the event. For the safety of the crowd, a structure is built that absorbs errant phantom rays. Though, of course the tickets have a disclaimer warning of errant phantom rays and all the other legal disclaimer jargon. Also, everyone in attendance is given goggles to protect their eyes from any blinding light discharged from phantom rays. Would this sufficiently protect everyone from an affray charge as the only people of the public have consented to be in attendance and every effort has been made to protect them from harm?

    • The moment you start selling tickets and RESTRICTING access to the event, I do not think it can possibly meet the criteria for an “affray” simply based on the definition. The “general public” are not present (they had to go out of their way to get in) and they’re not likely to be more “afraid” than they planned to be by going.

      The rest of the disclaimer stuff isn’t there to stop it from being an “affray,” I imagine, so much as it is to protect against tort liabilities for “reckless endangerment” and various “negligence” charges.

      At least, that’s my layman’s analysis. ^^;

    • That’s tricky. Sports arenas are typically privately owned, but on the other hand you’re describing a situation in which any member of the public can gain entry for the price of admission—and to which tickets are marketed to the public. That really blurs the line between public and private places. Consider, for example, the federal government’s ability to regulate sports arenas as “places of public accommodation” whereas it probably can’t reach private clubs because of freedom of assembly.

      The setup you describe also begins to take it away from affray (i.e. a fight in public) and towards a sporting event. However, two remaining issues there are a) the purpose of the fight and b) the consequences of the outcome. If the fight is fundamentally about settling a dispute (e.g. “this town ain’t big enough for the two of us”) then that’s more like affray and less like a sport. Similarly, being trapped in the Phantom Zone potentially forever is not a typical outcome for a sporting event, to say the least.

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