Batman: Dark Victory I: Violations and Remedies

Batman: Dark Victory is the 1999-2000 fourteen-issue limited series which picks up where Batman: The Long Halloween left off, which is in turn a continuation of Frank Miller’s Batman: Year One story. It deals with the aftermath of the Holiday murders. Specifically, some of the legal aftermath of the Holiday murders. We’re going to take a look at one of the major legal plot points here—spoilers within, regarding both The Long Halloween and Dark Victory—and one of the tangential issues that comes up in that setting. Specifically, we’re going to look at allegations of the violation of the civil rights of a criminal defendant and potential remedies for such violations.

I. Violations

The new District Attorney, Janice Porter, says that she’s going to reopen the Holiday file. Alberto Falcone, son of the crime lord Carmine Falcone, was arrested, tried, and convicted for the Holiday killings. But during the arrest, Batman severely beats him, to the point that his right hand becomes essentially useless, permanently. Porter suggests that this is a violation of Falcone’s civil rights.

She’s almost certainly correct. The Supreme Court discussed excessive force by police officers in Graham v. Connor, 490 U.S. 386 (1989). It held that the determination as to whether an officer’s use of force is “reasonable” is a Fourth Amendment question—not a Fourteenth or Eighth Amendment one, as had been suggested—and that the analysis is objective. First of all, for us even to get to this question, there has to have been some kind of state action. There are two possible routes here. One could argue that Batman was a state actor. He was working very closely with Commissioner Gordon at the time, so this is plausible. One could also argue that Gordon standing by and letting Batman hand out the beating amounts to tacit police approval of Batman’s actions, making that a state action regardless of any prior relationship.

Assuming state action and given the severity of the beating, saying that Falcone’s civil rights have been violated seems patently obvious. But what happens next is… not.

II. Remedies

So Falcone’s civil rights have been violated. In real life, most of the time what happens in these cases is that the criminal defendant gets to sue for damages. The Civil Rights Act of 1871 contains a provision, now codified as 42 U.S.C. § 1983, which creates a private cause of action for violations of one’s civil rights by state or local officials.  This means a suit against both the officials and potentially also the state or local government.  Monell v. Dept. of Social Servs., 436 U.S. 658 (1978).  Notably, the suit can be both for damages and for an injunction designed to prevent future harm of the same type.  One wonders whether Falcone could have sued to prevent the Gotham City Police Department from working with Batman in the future.

But damages and possibly an injunction to prevent future harm are pretty much it. Unless the beating lead to the discovery of evidence which was critical in procuring the conviction (e.g. a forced confession), the conviction itself will stand. And in the absence of any change about the defendant’s guilt, any modification or reduction in a convict’s sentence is unlikely. Or rather not just unlikely, but pretty much unheard of. In the story, Porter reopens the Holiday file and somehow gets a Gotham City judge to modify Falcone’s sentence from incarceration in Arkham Asylum to house arrest in the custody of his brother. In real life, it’s difficult to see how something like this might work. Falcone is guilty. There were no irregularities with his prosecution. He got the snot beat out of him during his arrest, but as far as criminal procedure goes, there isn’t anything all that interesting going on.

So this part of the story just doesn’t work. DAs rarely reopen cases, and usually only when there’s new evidence suggesting the defendant’s innocence. But we’re not sure there’s even a mechanism whereby a DA could seek a reduction in a convict’s sentence just because he was maltreated prior to prosecution. If the prosecution wants a lighter sentence, they can ask for that during sentencing. But later prosecutors don’t get to go back and muck about with prior prosecutors’ convictions.  It is possible that a prosecutor could request that the governor commute the prisoner’s sentence, but there’s no sign of that here.

III. Immigration

As an aside, the judge, Judge Harkness of Gotham City, says that if there is any funny business with Alberto Falcone after he is released to house arrest that “I will make it my personal business to see that immigration takes another look at you, sir,” meaning Mario Falcone, who is trying to take his family legitimate. Are there any teeth to this threat?

One is reminded of the ongoing controversy in Arizona and elsewhere about state efforts to get involved in immigration activities. The federal government is, to put it mildly, not amused. The Supreme Court recently struck down parts of Arizona’s SB 1070 law as unconstitutional encroachments on an area of law reserved for Congress. The outcome, while disappointing to some, wasn’t all that surprising to anyone, as immigration is an explicitly federal subject under Art. I, sec. 8, cl. 4.

But that isn’t really what’s going on here. This isn’t an example of a state government making explicit and systematic moves to affect immigration policy. Rather, it’s an example of a state official saying he’s going to use what influence is his to wield to affect the outcome of a particular case for what are arguably legitimate reasons. If a state court judge in a state and community not really known for its immigration problems were to call up his local U.S. Attorney or regional ICE office, he might well be able to get some attention. Not as a matter of law, mind you, but as the sort of consideration that governmental agencies frequently show each other. So while the judge doesn’t have the authority to deport Mario, the story doesn’t suggest that he does, merely that he might be able to make a few phone calls. And he just might.

IV. Conclusion

Dark Victory is absolutely right that Alberto Falcone’s civil rights have been violated. But how that’s supposed to add up to him being released from Arkham Asylum—where he was sent after a successful insanity plea—into his family’s custody is far from clear. And Judge Harkness’ little threat to Mario, while not necessarily describing a formal legal process, may actually have teeth. Informal teeth, but not necessarily any less real.

12 Responses to Batman: Dark Victory I: Violations and Remedies

  1. Do you guys plan on reviewing the court room scenes featured in The Dark Knight? Specifically, how Harvey Dent’s en masse arrest of the mobsters is supposed to work?

    • I believe the mobsters were tried and convicted of racketeering. There was a post already that dealt with the issue of whether members of a superhero team could be charged with crimes committed by the team: http://lawandthemultiverse.com/2010/12/13/rico-and-the-legion-of-doom/ The relevant laws (the RICO Act) was intended to convict mobsters and not supervillains so they would be even more relevant in this case.

      The question becomes then what the “Dent Act” is. It isn’t made clear what they meant by the “Dent Act” because Dent would was able to convict people using the existing RICO Act. My guess is that the Dent Act was supposed to be reminiscent of the Patriot Act where mobsters were equated with terrorists. I’m not entirely sure how that would work: the Joker, for instance, would have already been subject to the Patriot Act because he bombed a hospital and put bombs on boats. Also, the Patriot Act is a federal law so maybe the Dent Act was also a federal law and it was just named after Dent posthumously. As Batman was believed to have been the one who had killed Dent, I would imagine the Dent Act would have been specifically targeting costumed villains. One might imagine all of Batman’s rogue gallery showing up one by one and getting promptly arrested under the Dent Act. Batman and Catwoman may have been in violation of the act too.

      • I think the idea was that in the aftermath of TDK, the RICO case was on shaky ground. The two lead prosecutors (Harvey and Rachel) were both dead; the judge was dead; many of the suspects (the mobsters Maroni, the Chechen, Gambol) were dead; the key witness (mob accountant Lau) was dead; the key evidence (the mob money Lau was handling) has been set on fire; and possibly, it emerged that (at least) two of the (dead or missing, presumed dead) cops who were involved in the case were corrupt and implicated in the murder / attempted murder of Harvey and Rachel. Plus the criminals on the barge at the end of the movie were predominately suspects in said RICO investigation, so the fact that while in police custody a costumed maniac very nearly murdered them all can’t look too good either (since it could be argued that the police failed to adequately protect them while in custody).

        Basically the Dent Act sounds like some measure of ensuring that even after all that happened, they still get locked up. It sounds like a legally dubious Act that makes it easier to prosecute criminals (or these criminals) and give them harsher sentences with less chance of parole or appeal or concern for some of their rights (which is why the prisons are so overcrowded. hence Selina getting locked up with the men).

        It certainly did not target costumed criminals because in the Nolan-verse there are only a handful of such criminals to begin with, the only two on hand being Scarecrow and the Joker. Scarecrow is already locked up and the Joker is going down too. It was definitely targeted at more mundane criminals, probably mainly mobsters and their associates.

  2. Since I’ve never read the Long Halloween can I ask how the hand got crushed? Was it in the middle of a fight involving guns or legitimate reason to think that bystanders were in danger or was it more casual violence?

    • Batman (disguised as a SWAT team member) and Commissioner Gordon were escorting Sal Maroni to someplace. They were ambushed by Holiday, who shot and killed Maroni. Batman then proceeded to incapacitate Holiday, who, unfortunately, received permanent injury to his arm.

  3. Would an injunction in a 1983 action really do anything to stop Batman’s future actions? The injunction would be for the police force, and Batman as some sort of adjunct member, to stop beating the crap out of people. But since Batman isn’t officially on the force, couldn’t he take steps to distance himself from the police, thereby proving himself a private citizen (rather than a state actor) and ultimately not open to litigation under a 1983 cause of action? That would still leave him open to the possibility of a tort action for battery and the rest, but that’s really all just in a days work for Batman.

    • James and I discussed this a few days ago and came to the conclusion that a 1983 injunction might have the rather counter-intuitive effect of making Batman not a state actor–as a matter of law! The injunction would simply say that the police aren’t allowed to cooperate with Batman anymore. But Batman, not being the police, isn’t really subject to a 1983 injunction. His ability to around beating the crap out of people is no worse off than it was before, only now it’s going to be very, very difficult to sue him for the violation of anyone’s civil rights. Which paradoxically makes him better off.

      So it’s not so much “steps to distance himself from the force”–the cops would be the ones required to do that–that’s the problem here, it’s that we’d basically have a federal court ordering the GCPD to stop working with Batman. In light of that, it’s really hard to see how any of Batman’s future actions could be construed as state actions.

      • In that case wouldn’t the police be required to arrest him with the kind of activities he does on a regular basis without any protection of being a state actor?

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