The Uniques I: Registration

We discussed The Uniques on Monday, giving a sort of introduction to the authors, the estimable Comfort Love and Adam Withers, and the story itself. Very briefly, Comfort and Adam are awesome, and The Uniques is an unfolding story, still in its early stages, about a world where superheroes aren’t just a sort of bonus pack to reality that somehow doesn’t affect anything, but a vital, hugely important part of modern history. Which might be the most ambitious and fun thing that we’ve seen anyone try to do. So you should read it.

This week, we’re going to start looking at the way The Uniques deals with law and the legal system. And where better to start than with what has been the single most debated issue in any superhero setting: registration.

I. Registration in The Uniques

The Uniques is only nine issues in, so we’re still learning how this world works. But from what we can tell so far, uniques are required to register if they want to engage in superheroics in public. It’s not entirely clear whether this extends to any and all use of super powers, or just crime-fighting or rescue activities, but the way things are written it seems more like the latter. The core team of characters has had a few incidents with the Special Enforcement Corps (unfortunately abbreviated “SEC,” which to the legal eye suggests a significantly more boring real agency), and they’re becoming increasingly insistent that if the team wants to continue to operate that they need to register. It’s also unclear whether the SEC is with the state government or the federal government, but it seems to be the latter. There’s also mention of some kind of stipend for registered heroes, though again, we don’t know much about how that works.

II. Real Law

A. Registration and Due Process

So far, most of this actually looks pretty plausible. If superpowered individuals suddenly appeared on the world stage, regional and national governments would take about fifteen minutes before passing some kind of law about them, and sixty years is enough time for the administrative apparatus surrounding uniques to reach something like maturity. Some kind of registration scheme seems almost a foregone conclusion, but the authors, intentionally or not, seem to have avoided one of the biggest potential problems with registration acts generally. Because they’ve tied the need for registration to particular activities rather than simply having super powers, they avoid some pretty significant constitutional problems. For example, the main character is part of a family of uniques. Her parents were registered and part of a publicly-known team. But her younger sister doesn’t seem to be. She’s got a super power—think Mystique but normal-looking—but she doesn’t use it for crime-fighting or public safety purposes. No, she’s a body-double and stuntwoman in Hollywood films. The government doesn’t seem to notice or care, at least not so far.

This is important, because the Supreme Court has previously expressed skepticism about the regulation of physical conditions. For instance, in the 1960s, Los Angeles made it a misdemeanor to be addicted to narcotics. In Robinson v. California, 370 U.S. 660 (1962), the Supreme Court held that punishing someone for an involuntary physical condition violated the Eighth Amendment. The core holding is that in order to be charged with a criminal act, there must be some act. But the Supreme Court held just a few years later in Powell v. Texas, 392 U.S. 514 (1969) that there’s a difference between public behavior and physical conditions, when it upheld a law prohibiting public intoxication. So while the state can’t make it illegal to be drunk, they can make it illegal to be drunk in public.

Those cases were about criminal law, but the same distinction could easily be applied in a due process/equal protection context when we think about registering powers. One can certainly make an argument that certain powers are just so dangerous that the government has an interest in regulating them. But the idea that the government can regulate people who choose to use their powers in public is much, much easier sell, and doesn’t require one to even make that argument, particularly if those uses are confined to areas of traditional government activity like law enforcement or public safety. This also sidesteps a lot of secondary problems like deciding what constitutes a “super power.” In a world with lots of “super powers,” the line between “uniques” and “typics” could easily become blurry, particularly when we consider gadget-based heroes like The Uniques’s Dreadnaught, Marvel’s Iron Man, or DC’s Batman. Requiring registration of powers as such would potentially require the government to engage in a case-by-case evaluation of everyone who might have a power. This would be an enormous pain. Linking registration to activity is just a smart way of doing things.

B. Registration and Federalism

Further, it makes all kinds of sense that there would be some official government agency specifically tasked with dealing with super-powered individuals and super-powered crimes. This agency would be staffed by people with powers themselves, or at the very least access to all the coolest toys. Both seem to be true here. The implication is that this is a federal agency. We discussed registration acts and federalism both in reference to [amazon_link id=”0930289234″ target=”_blank” container=”” container_class=”” ]Watchmen’s[/amazon_link] Keene Act and the Superhuman Registration Act, and we concluded in both cases that a federal registration act would likely be a valid exercise of the Commerce Power. The question is why the federal government should be able to regulate uniques instead of state governments. States regulate physicians, lawyers, insurance companies, etc., so why shouldn’t they also regulate uniques? It’s not a bad question, and next month’s ruling in Florida v. HHS might cause us to re-evaluate our analysis. But for now, the law seems to support such a regime. This seems particularly true in The Uniques, as uniques are finally shown to have the significant impact upon national security and foreign policy that they would obviously have if they existed. Uniques seem to be involved in national security, military activities, and diplomacy, in addition to more traditional law enforcement activities. As such, it would stand to reason that Congress could invoke a variety of powers in addition to the Commerce Power in regulating uniques and their activities. While foreign policy may be shared between Congress and the President, it is an entirely federal power.

III. Conclusion

It’s still pretty early in the series, but so far, The Uniques has one of the most functional and sensible registration regimes that we’ve seen. Unlike Marvel’s [amazon_link id=”0785121781″ target=”_blank” container=”” container_class=”” ]Civil War[/amazon_link], registration is a normal and expected part of life, and seems to be implemented more reasonably than the SHRA seems to have been. Specifically, the registration requirement seems to be linked to using one’s powers in public, and possibly even using them in certain ways like crime-fighting or public safety. Unlike in Watchmen, “costumed adventuring” isn’t effectively banned, just regulated. We’ll take a look at some of the other issues presented by the series in future posts.

30 responses to “The Uniques I: Registration

  1. James Pollock

    There’s a couple of side issues to explore.
    First off, suppose a superhuman but non-superhero person (who is therefore unregistered) comes across a person who needs immediate help and, although they hadn’t intended to do anything superheroic that day, nevertheless steps in and provides super-assistance. Can they be prosecuted for non-registration? Presumably no, because they have a necessity defense… the unlawful act (using unregistered superpower(s) to rescue) being outweighed by the public good of providing assistance. OK. So, couldn’t a superhero decline to register on the claim that they never planned to use their powers, it just… happened (claiming necessity each time)?

    What happens when an unregistered superhuman acts to perform a rescue… that doesn’t involve use of their superpower? (I’m mutant Doug Ramsey, able to instantly understand any language… but, what happened was, I heard someone screaming in that burning building so I grabbed a fire extinguisher and…”

    How about the hero fortunate enough to have TWO superpowers (Susan Storm Richards, say) who only registers one of them?

    How would you punish someone whose talent allows them to easily extricate themselves from locked rooms? (Nightcrawler, Juggernaut, The Vanisher, Magik, Shadowcat) or makes them difficult if not impossible to take into custody in the first place? (Blob, Unus, Multiple Man, Proteus, Phoenix circa Uncanny X-Men #136)

    • Regarding repeated invocation of the necessity argument: I think it would depend on the unique’s level of knowledge or intention. If they are knowingly or intentionally putting themselves in situations where they have an excuse to use their powers, then the unregistered use of their powers isn’t really necessary under all the circumstances, is it? They could have registered in advance. But if they’re just phenomenally unlucky, then that’s probably okay.

    • TimothyAWiseman

      Re: “How would you punish someone whose talent allows them to easily extricate themselves from locked rooms? “

      That seems to be more of a technological than legal question, and the answer depends on the writer. However, in many continuities, there are ways to disable superhuman powers, at least the more common form. Marvel has repeatedly shown things like mutant-supression collars for instance. Alternatively, it is often possible to work around the powers present (Magneto is a lot less impressive when denied access to ferrous metals and objects subject to magnetism).

      Of course, where this could smack into the legal arena, is if the work-around might trigger the prohibition against Cruel and Unusual Punishment in the 8th Amendment. But that was discussed by the Supreme Court in Furman v. Georgia principles for determining what was forbidden. In short and to oversimplify, they banned things which were arbitrary and severe punishments that were unnecessary. If it could be shown that the punishment was the only practical way to punish that particular person, and thus necessary, the court would likely go along with it.

      • James Pollock

        “That seems to be more of a technological than legal question.”
        OK, but while we’re waiting for the engineers to invent “mutant-power inhibitor collars”, what do we do? Just because there’s a need for something doesn’t mean that there’s somebody to build it for us…

      • TimothyAWiseman

        When there is a need for something that is backed up by people willing to pay, there is generally someone trying to build it for us. I suspect that if superpowers became real, at least attempts at something like “inhibitor collars” would follow almost immediately.

        But in the meantime, they would have to be evaluated almost case by case. Someone with enhanced senses could probably be put in a normal prison with nothing but a note in their file. Someone with somewhat but not absurdly superhuman strength (say able to benchpress 1 ton, about twice the current record) might require a specially fortified cell and might be under closer watch from the guards than most, but could for the most part be treated like other prisoners, especially if he was at least moderately cooperating and not actively trying to escape.

        Things get more awkward with someone like Nightcrawler who, as you mentioned, that could easily escape any normal prison. For him, the prison would have to take extreme measures such as possibly keeping him routinely drugged to prevent teleporting or possibly confining him in solitary deep below ground so that it was beyond his ability to teleport out or perhaps (given other advances in technology) some form of stasis in lieu of traditional imprisonment. Any of these might be considered “cruel and unusual” if applied to a normal person, but given the reasoning behind the 8th amendment and the reasoning in Furman v. Georgia, a court would probably allow one of those so long as it was deemed necessary rather than done with the intent of increasing the punishment.

  2. Martin Phipps

    I’m in Taiwan so I don’t know how specific the law is. If I were to draft a law requiring superheroes to register I think I would require them to be wearing a costume and patrolling the neighborhood looking for trouble. I don’t think I would require a person to actually have powers because that would be discriminatory. It would be like arresting someone for prostitution. “Officer, I always dress like this when I go out. And I’m waiting under this street light until my boyfriend comes back to pick me up.” Okay, so maybe in practice the police would actually have to catch someone in the act of superheroing.

    The point is that the law should not prevent people from being a good Samaritan so Doug Ramsey (who, as far as I can recall, never wore a flashy costume) would have nothing to worry about.

  3. I too was going to bring up the unregistered good samaritan. It was the first thing I though of when reading this. Second, how would registration effect someone like Batman or some other non-state actor when it comes to crime fighting vigilantism? Would registration automatically make all super heroes state actors or are their more lax views on super heroes following police procedure when fighting crime in the Uniques universe?

    • This seems to suggest that it would be more that all ‘uniques’ who wished to combat crime in any fashion would have to register and probably pass some sort of test (obviously just having a power doesn’t mean you’re qualified to use it). Additionally a one-time thing or simply responding to an emergency you see before you might not run afoul of the law while consistently going out to look for crime and trying to stop it might.

  4. But the Supreme Court held just a few years later in Powell v. Texas, 392 U.S. 514 (1969) that there’s a difference between public behavior and physical conditions, when it upheld a law prohibiting public intoxication. So while the state can’t make it illegal to be drunk, they can make it illegal to be drunk in public.

    So even though the government can’t make it illegal to be addicted to narcotics, they can make it illegal to be addicted in public? That seems strange, since as being addicted doesn’t wear off, the government could say that such a person must never go out in public at all.

    • Ryan Davidson

      That’s an interesting interpretation, but I don’t think it’s the meaning of the case. I think the result would be more that it’s illegal to be high in public. Being addicted but not having drugs in your system doesn’t seem to be something the government is going to be able to do anything about.

      • John McSorley

        How about conditions where someone is not necessarily in control of there behaviour?

        The real world example that comes to mind is tourettes (or much more rarely Alien hand syndrome) swearing at people but in super world how about someone who in the presence of danger magically transforms into likely lad? He does not choose to be likely lad and wishes the universal forces of mystic balance would just leave him alone.

        You may have touched on criminal liability on earlier posts to do with mind control (assuming that the person cannot override the transformation) but would registration be dealt with diffrently perhaps.

      • Involuntary actions generally do not satisfy the act requirement of a criminal statute. However, voluntarily undertaking a certain activity knowing that an involuntary action might cause harm can be criminally negligent or reckless. The classic example is someone who has epilepsy. If they don’t know they have it, and have a seizure while driving a car, then they probably aren’t liable. If, however, they knew they had epilepsy, chose to drive, had a seizure, and killed someone in the resulting accident, then that could be negligent homicide or something similar.

        So in Likely Lad’s case it would depend on the extent to which he put himself into situations in which he would likely transform. But even that might not be enough, since I don’t think it’s a matter of having powers but rather using them to fight crime that provokes the registration requirement.

      • James Pollock

        “Involuntary actions generally do not satisfy the act requirement of a criminal statute.”

        But there ARE status crimes where intent is not an element. The ones that comes to mind involve a voluntary action… felon in possession of a firearm requires a person to commit a felony first, and statutory rape requires a person to choose to have sex voluntarily. Thus, I think that just having a superpower, even a highly dangerous one, probably can’t be made illegal (although, I suppose it could be one of those where if you’re dangerous enough, the President can order a drone attack type of things in a world where innocent people have been killed by inadvertent use of superpowers along the lines of the Marvel “Stamford incident”.)

  5. “The Uniques has one of the most functional and sensible registration regimes that we’ve seen.”

    But, (if you’ll pardon the pun) not a unique one. It’s functionally equivalent to the one that forms the background for City Of Heroes. See the entries on the Citizens Crime Fighting Act, the Might For Right Act, and the Federal Bureau for Super-powered Affairs at the COX Wiki.

  6. Remember the nuclear man in the show Heroes? His first known use of his power was to accidentally kill his wife’s doctor (although a case could be made the wife getting cancer was the first use – but still accidental as well). I’m not sure the public would be OK limiting registration to actions when there’s a decent chance of death just by being around the wrong, well-meaning, but uncontrollable unique.

  7. One other example of a Registration Act was in the short-lived Aztek comic, which I know about only b/c of In that series, it shows the titular character filling out a single page registration form (a single page -how fictional is that in our legal system?) This form has a line in it for Aztek to write in his secret identity, but in an interesting and chuckleworthy twist, he writes “the sheriff said I didn’t have to say,” which kind of defeats one of the purposes of registration, I would think.

    On the topic of Good Samaritans, though, is it true that helpful passersby are protected from criminal charges by Good Sam laws if something goes wrong, but a passerby who happens to be a trained professional would not be? Perhaps this would then be extrapolated to the Good Sam elements in the superhero registration: Clark Kent can happen to be nearby and catch debris falling off of a building and save someone’s life. He could avoid registration-related legal consequences by saying he happened to be there. But if he screws it up and someone dies, then perhaps if he is not registered he might be more likely to face criminal charges. [If all he does is help out while not being registered, he might be fined, depending on whether he is truly unlucky or he positions himself strategically. If people get hurt, then he would face criminal charges. Being registered might protect him from such charges, or at least make him eligible for Superhero Malpractice Insurance.]

    • Melanie Koleini

      Good Samaritan laws very state by state. I was told Good Samaritan laws apply to trained emergency workers as long as they are not currently on the job. My CPR instructor (in MO) explained the law’s protections and limitations this way: I don’t need to worry about being sued for helping someone (if something goes wrong) as long as:
      1. The victim didn’t tell me NOT to help them
      2. I don’t have a duty to rescue (it’s not my job)
      3. I’m not grossly negligent (I’m not a doctor. If I try to give a chocking victim a tracheotomy, I can be sued and/or charged with a crime.)

    • James Pollock

      Another “registration act” is in “The Tick”. Superheroes attend a super-conference where they are assigned a territory (city) to protect depending on their powers. (Of course, some aren’t ready for the majors yet, and get assigned as sidekicks.)

      Of course, there’s also the Silver-age system, wherein existing supers take on apprentices/sidekicks and train them. (See Titans, Teen, individual members). This system probably reached its apex in the original X-Men. By the time the New X-Men showed up in issue #94 , though, the “train the youngsters” ethos was being squeezed out as Charles recruited adults onto the team.

    • The Federally Authorized and Regulated Metahumans Act registration form, you mean? If memory serves, that was two pages…and I wish I could remember the issue number.

  8. Okay, so if superhuman individuals have to be registered in order to pursue careers and crimefighters, does that make them state actors by default? They just have to fill out a form? And if they are state actors, are they state actors for the federal government or for local government? That could get very out of hand very fast.

    • James Pollock

      You have to register with the state when you want to drive. Does that make drivers state actors? Some (probably most, possibly all) states regulate armed private security, too.

    • TimothyAWiseman

      To expand on James Pollock’s excellent comment, the government requires registration and licensing for the practice of many professions including law and medicine, but that does not make lawyers and doctors state actors without something more. Most lawyers are not state actors, but an assistant district attorney most certainly is.

      Licensing people as crimefighters might just step into a bit of a grey area since law enforcement is something traditionally associated with the State and non-state actors are normally explicitly discouraged from participating outside of providing information to law enforcement officiers. But then modern bounty hunters could be seen as somewhat analogous and they are generally not state actors.

      • Okay, that’s all well and good, but where does that leave neighborhood watch groups? When you think about it, most superhero teams are little more than glorified NWGs.

      • TimothyAWiseman

        I would have to beg to differ that superheros in the comics are like neighborhood watch groups. The most significant difference is that superheros are generally expected to intervene directly with the criminal, while NWG generally strongly discourage direct intervention and rather encourage reporting observations to actual law enforcement.

        Another major difference is armament. Most NWG discourage the carrying of weapons while acting as members of the neighborhood watch, while superheroes generally either have powers far more effective than mundane weapons or else carry (sometimes exotic) weapons.

        And, while NWGs normally work closely with and have an official or semi-official relationship with some law enforcement entity, they are very much independent entities who are not acting as state actors and are not directly controlled by the police.

        It is of course conceivable that a sheriff or other law enforcement officer could make a direct request to a person in the Neighborhood Watch to assist in an arrest or similar law enforcement activity. In that case, the NWG member would most certainly be acting as a state actor at that time, and the same would apply to a superhero or anyone else put in that position. But, while it used to be somewhat common in some places, it is now exceedingly rare (Wikipedia has a good discussion of it).

        Of course, such requests to a private citizen to assist in apprehensions might be far more common in a world with both superheroes and supervillains, but then if such supervillains were common law enforcement would probably just hire on a full-time basis its own superbeings or specially trained and equipped teams ready to deal with superbeins.

      • TimothyAWiseman

        You had me thinking about it, so I did a quick look for the reference. The current Neighborhood Watch Manual explicitly recommends observation only (non-interference with criminals) and recommends not carrying weapons on P 16-17 under the heading “Citizen Patrols”.

  9. Eric Nielson`

    Most Police Officers are “registered peace officers”, at least that’s what they state under oath in court when asked by the prosecutor to describe thier profession.

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