Powers: Introduction

Powers is the ongoing police procedural comic written by Brian Michael Bendis and drawn by Michael Avon Oeming. It started in 2000 at Image Comics, one of the more significant “independent,” i.e., “non-Marvel/DC”, houses, before moving to Icon Comics, a Marvel imprint that focuses on creator-owned titles. Powers was its first title. Similar to Gotham Central, about which we’ve written before (1, 2, 3, 4), the series is divided into more-or-less discrete stories, forming the equivalent of episodes in an ongoing TV show. The stories are grouped together into “volumes” akin to seasons. Speaking of which, Powers is currently being adapted into a TV series for FX, but the network ordered a reshoot and retool after the initial 2011 pilot was finished, so while the project is still greenlit, there’s no word on an air date. This time we’re going to take care of some introductory matters and talk about the first chapter, “Who Killed Retro Girl?”, which is available in the first hardcover collection. Spoilers do follow, and will throughout this series.

I. Introduction

Powers is, like Gotham Central, a police procedural starring officers in a mundane police department in a universe where superpowers exist. At the beginning of the series, powers have existed for some time, and the federal government has passed some kind of registration act. We discussed how these might work in several previous posts, and our overall conclusion has been, and continues to be, that some form of registration would likely be required, particularly if it is tied to using those powers in public rather than simply having them. The registration act in effect at the beginning of Powers isn’t given all that much fleshing out—which isn’t necessarily a bad thing_but it’s pretty clear that registration is required to operate as a superhero.

It’s also pretty clear that not everyone does this. Villains certainly tend not to, though a lot of them wind up in prison, so registration is presumably enforced at that time. But there also seems to be a rather healthy contingent of characters who don’t seem to be precisely heroes or villains, and their registration status is. . . murky. There’s one character who seems to have been registered at one point, but also seems to have let his registration lapse and has gone more-or-less “off the grid,” so to speak. This would seem to be an unavoidable feature of any registration regime that doesn’t involve mandatory employment by the government. That doesn’t seem to be in view here, and we’ve suggested previously that this might be problematic. Can the federal government draft people? Yes. Can it draft only superheroes? Probably. Could it draft just a single person? Maybe. But it can only draft people for use in the armed forces, and Congress doesn’t seem particularly likely to relax existing statutes restricting the use of federal military forces on US soil. So the idea of a super-powered federal law enforcement agency staffed by conscripts doesn’t seem to work.

But again, that isn’t really in view here. All we’ve got is the basic idea that superheroes need to register. It’s not even entirely clear that they need to register with the federal government—it could be with the states—which eliminates a lot of constitutional and federalism issues. So far, so good. But this issue is going to develop as the series progresses, so we’ll revisit it as details emerge.

II. “Who Killed Retro Girl?”

The first chapter has two issues we’re going to look at. The main plot is about the investigation of the murder of one “Retro Girl,” a leading superhero with a fantastic reputation. She’s a symbol of all that is Good and Right with America, up there with grandma and apple pie. She seems to be your standard flying brick, and at the end of the first issue, her corpse is found in an alley. Cause of death? Gunshot wound. Of course, the medical examiner needs a blowtorch to conduct the autopsy because he can’t penetrate her skin with standard tools. The trail ultimately leads to a nutcase who assassinated her to “preserve her reputation,” i.e., kill her while she’s at her peak so she goes out with a bang rather than a whimper. Better to keep her as a shining example, tragically cut down, than turn into a “cautionary tale.” Could there be an insanity defense here?

The other issue has to do with the custody of juveniles. The main character is Christian Walker, a homicide cop on detail to investigate cases involving powers. In the beginning of the first issue, he finds himself stuck with babysitting Calista, a girl perhaps eight or ten years old, that is found at the scene of another crime. He calls social services to hand her over, the mother being out of the picture, and social service basically tells him that she’s his problem for the moment. Is this how that would work?

A. The Insanity Defense

We’ve discussed the insanity defense in comic books before. Our basic conclusion then, and our conclusion in this case, is that this defendant could not mount a successful insanity defense. In this case, it doesn’t even matter which test we use. The M’Naghten test employed in most US jurisdictions requires the defendant to have been affected by a “disease of the mind” or “mental delusion” such that he could not appreciate the “nature and quality of the act” or did not have substantial capacity to appreciate that it was wrong. Here, it’s not even clear that there’s any kind of mental disorder going on. The defendant is certainly depraved, but there’s a certain sick rationality to his thinking. But even if there were, it wouldn’t help him. He does understand the nature and quality of his act. He thinks he’s killing Retro Girl. He understands that Retro Girl is a person. He understands that death is permanent. He understands that, if he does this thing, that she will die. So no good there. And he also understands that the action is wrong. Note that being wrong about thinking one’s action is justified does not count as “insanity” here. He certainly understands that what he’s doing could be illegal. That’s all we need. The other tests don’t really work either. He certainly had “substantial capacity” to appreciate the criminality of his conduct and conform his conduct to the law, so the Modal Penal Code definition won’t help him, and it’s not clear that he has a mental disorder at all.

This guy’s guilty of murder, just an unusually motivated one.

B. Children and Police Investigations

Normally, when the police find an unsupervised child in the course of an investigation, they try to hand it off to its parents (or legal guardians) right away. This normally happens pretty quickly. The child may spend an hour or two in the station, but in most cases, someone comes to take the child soon. If the parents can’t be located, then they’ll give social services a call. But these situations are significantly handled on a case-by-case basis. The police don’t really want to act as babysitters, but they’re not about to just release minors on their own recognizance.

That being said, it may sometimes happen that a police officer winds up looking after a child very temporarily. This probably isn’t the sort of thing that an officer can be ordered to do as part of his job, but it’s probably also the sort of thing that, if the right circumstances arose, they might volunteer to do. In this case, those circumstances seem to have arisen, as it seems like social services is in the middle of dealing with its building being. . . exploded. . . So yeah, they might not be able to deal with an extra case just this minute. But a situation like this going on for more than a day or two isn’t going to work. The officer has neither legal nor even technically physical custody of the child, and thus isn’t going to be able to do things like enroll her in school, take her to the doctor, etc. It will take some kind of court order to do that, and in the absence of such an order, the officer can’t actually take care of the child properly. And sure enough, Walker indicates at the end of the story that he’s going to find Calista a place to stay, and she is presumably turned over to child services.

So yes, things could go down that way.

III. Conclusion

We’ll be returning to Powers in upcoming weeks. Like Gotham Central, this series has the potential to be a rich mine of interesting legal issues to discuss. So far, things have been handled pretty well.

5 Responses to Powers: Introduction

  1. I haven’t read the series, so I don’t know the circumstances, but the situation with Calista sounds a bit like that of the movie, “Cop and a Half”, where Burt Reynolds character had to hold onto this one kid in protective custody because he was a witness. I assume that doesn’t apply here?

    • Well I haven’t seen the movie, so I can’t really say. But in this story, Calista is basically just in the wrong place at the wrong time. She’s not in protective custody, and the cops don’t really need her to testify about anything. Walker is the cop investigating the scene at which she’s found, and that unexpectedly makes him the Responsible Adult most closely connected to her. It’s not a very close connection, but it’s not like he can just turn her loose either, so he has to babysit until something can be worked out.

  2. Terry Washington

    I really don’t know what to say- not least because US law on what constitutes legal insanity has diverged so far from the original 1843 M’Naghten case in the UK- esp since the so-called “Hinckley laws” passed in the wake of the attempted assassination of President Ronald Reagan by John Hinckley in 1981!

  3. 1) It is absolutely awesome that you’re covering Powers; I’m deeply looking forward to it. There are some really interesting potential legal issues involved in later strips, and as a police procedural it’s actually paying attention to some of them.

    2) I’m inclined to agree with @Ryan Davidson: Callista’s legal status in this strip is pretty much “we don’t know where to put her so hang on to her while we get child services sorted out”. Unacceptable usually, but social services are… a little overwhelmed… at the time of the comic. (Later issues are going to have to revisit this, so we can have a deeper discussion then.)

    3) The superhero registration issue is interesting, and more cleverly handled than, say, Marvel’s Civil War stuff. I’d always assumed from the context in the strip that it’s like a driving license: technically you can own a car anyway, but you’ve got to have the permit to use it in public. Similarly, lab accidents with gamma radiation don’t give you any legal obligation by themselves, but if you want to use the powers in a way that affects the public, you have to register.

    It’s possible, however, that this is informal… maybe a law has been passed that requires all powers to register, but in practice nobody’s bothering to enforce it unless someone uses their power in public.

  4. The police are in a no-win situation over Callista. Without legal custody, they don’t have the authority to legally handle any of the issues that might arise. However, they may be liable for any harm that comes to her. If Child Services cannot take their responsibility, I would suggest that somebody at the PD see if they can get a judge to temporarily assign custody to a volunteer until a more permanent arrangement can be made.

    Also, I’m so glad you guys are looking at Powers. It’s an awesome title, and with just thinking back I can think of several questions that come up during the series. I’ll have to dig out my graphic novels.

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