Powers: “Role-Play”

The second chapter of Powers is called “Ride-Along,” and comprises just one issue. It involves a fictional Warren Ellis, the author of an in-universe comic book called Powers, essentially a meta-version of the real Powers book, going along with Walker for a ride-along. Which is interesting enough, particularly for the meta-textual entertainment value, but neither that nor anything else that happens in that issue is of any particular legal interest.

So we’ll move straight into chapter three, “Role-Play”. We’ll be talking about two more legal issues this time: the expanding discussion of the state of superhero regulation and the interesting possibility of being a conspirator in one’s own homicide. As always, spoilers within.

I. Costumes, Registration, and the First Amendment

The case this time involves a batch of serial murders. The victims are all dressed as superheroes, but none of them seem to have any powers. They’re just a bunch of college students, but someone is taking them down, targeting them as if they were superheroes. Clearly, this is murder, and we’ll talk about the criminal law aspects of the case in a bit. But at the first crime scene, it comes out that wearing costumes like this is apparently illegal unless one is a registered superhero. Is this sort of regulation permissible?

Probably. We discussed the First Amendment implications of restricting costumes in the comments to our post about the Keene Act, and observed that while the wearing of costumes is potentially “expressive conduct” protected by the First Amendment, content-neutral time/place/manner restrictions on such conduct are generally permissible. So there are several ways a ban like this could work. There could be a ban on unregistered “costumed adventuring,” which it seems likely that a court would recognize as being a compelling government interest, and the ban could be narrowly tailored to actually achieve that interest. Or there might be a ban on wearing an identity-concealing costume/mask while committing a crime (almost certainly permissible), or even a ban on groups of people wearing masks in public. “Mask laws” of this latter sort already exist to discourage groups like the KKK, though they’re currently being challenged. Lastly, given the presence of a registration requirement, there might simply be a law banning unregistered persons from wearing costumes associated with registered persons.  That would be the narrowest kind of restriction and the easiest to pass First Amendment muster, akin to a prohibition on impersonating a police officer or member of the military. Any of these could serve to make wearing superhero costumes without registering first at least presumptively illegal in most circumstances, the First Amendment notwithstanding.

II. Conspiracy and Felony Murder

A. Conspiracy
But we’ve also got another issue, this one potentially more interesting. The victims in the story are all part of a club of sorts that dresses up as superheroes and runs around basically role-playing. This is probably illegal, given the regulatory environment in the story. So not only are they all guilty of breaking whatever law bans the activity itself, they’re also probably guilty of conspiring to do so.

Conspiracy consists of the agreement of two or more persons to commit a crime at some time in the future. Conspiracy is an independent crime in its own right. Whether or not the crime which is the subject of the agreement is ever committed is irrelevant: the agreement to commit that crime is, in and of itself, a crime. Thus one may both be convicted of crime A and for conspiring to commit crime A. The theory is that while crimes are bad, people working together to commit crimes is worse, so we punish the “working together” part independently of the actual crime part. So the victims in this case are all guilty of violating the costume ban and conspiring to do so.

But here’s where things get tricky. The killer in the story was actually hired by the group to chase them around. The kids had apparently gotten bored with just running around to no purpose, and they decided to spice things up by getting a villain involved. None of them wanting to play the villain themselves, they hired someone else to do it. Except that, entirely by accident, they hired an actual villain, who proceeded to knock most of them off. Messy.

Question: is the group guilty of those murders as well?

This is not as silly a question as it sounds. All of the participants in a conspiracy are guilty of conspiracy. They are all also guilty of the target crime, once committed, under a theory of accomplice or vicarious liability, even if only one member of the conspiracy commits the target crime. This makes a certain amount of sense. But here’s the thing: co-conspirators are not only vicariously guilty of the committed target offense, but all committed offenses that are committed in the furtherance of the conspiracy and are a reasonably foreseeable consequence of the target crime.

So the analysis becomes whether the players getting killed was (1) in furtherance of the conspiracy and (2) a reasonably foreseeable consequence of the conspiracy. Given these facts, conspiracy liability for the murders would be difficult to prove, at best. The prosecution needs to prove both the “in furtherance” and “reasonably foreseeable” elements beyond a reasonable doubt. The target crime was to run around like hooligans in violation of the applicable ban on costumes. It’s going to be pretty hard to argue that killing the players was done in furtherance of the conspiracy. Now, if we were talking about property damage or trespassing, or even bodily injury to a third party, those could all be conceivably brought within the scope of liability for co-conspirators. But none of the conspirators ever intended for anyone to get hurt, let alone themselves, so the prosecution is going to have a really tough time convincing a jury that there should be co-conspirator liability for murder here.

B. Felony-Murder and Misdemeanor-Manslaughter
That being said, there is another potential avenue to finding the co-conspirators all guilty for the deaths in question: the felony murder and misdemeanor-manslaughter rules. The general rule here is that if a defendant is involved in the commission of a crime, and someone dies as a result, the defendant can be held liable for the victim’s death, whether or not it was intentional or even a part of the original plan. The most common example is a bank robber shooting a guard or bystander while robbing a bank or fleeing the scene. That’s automatically going to be first-degree murder in most jurisdictions, and any of his accomplices (e.g. a getaway driver who was nowhere near the shooting) can be charged with the murder just as much as they could be charged with bank robbery. There are some limits on sentencing for the people who didn’t actually pull the trigger, but that’s the basic rule. Some states also have a misdemeanor-manslaughter rule. If a person commits a misdemeanor, or a felony not on the felony-murder list, and someone dies, that’s automatically involuntary manslaughter.

Felony murder seems a stretch here. Even if wearing costumes illegally is a felony, and we don’t know that it is, felony murder is generally limited to “dangerous” felonies, like robbery or burglary, and sometimes even to a specified list of crimes. We’re talking rape, arson, kidnapping, and sometimes drug dealing, but not, for example, embezzling or other kinds of fraud. The illegal use of a costume seems more likely to end up on the latter list than the former, so felony murder is unlikely. Further, some states have created an exception for the deaths of co-conspirators. The idea is that we want to punish people for killing innocent bystanders. Getting yourself killed while committing a crime isn’t something we want to punish anyone for, let alone spend the time and money involved in prosecution and incarceration. So the fact that the people getting killed were involved in the crime means that they might not even be eligible victims for a felony murder charge.

Misdemeanor-manslaughter also seems somewhat unlikely. Those states that do have the rule–and not all do–tend to limit it, not to a specified list of crimes, but at least to those which pose an inherent risk of serious bodily injury. So, for example, Indiana has made “timber spiking,” i.e., a form of environmental protest involving putting metal spikes in trees to interfere with logging operations, a felony, but it’s not on the “dangerous” list, so if someone dies, it’s involuntary manslaughter, not murder. Many states characterize killing someone while driving under the influence as manslaughter. But running around with a costume on doesn’t seem to be the sort of thing which poses an inherent threat to anyone. Even hiring someone to make the game more interesting, without criminal intent beyond the costume bit, seems pretty benign. It seems doubtful that a court would bite on a prosecutor’s attempt to charge either felony murder or misdemeanor manslaughter here.

C. Wrongful Death

There doesn’t even seem to be much room for civil liability for wrongful death. All of the group seems to have been equally involved in planning and participating in their activities. They all agreed to hire the perpetrator. And none of them intended for anyone to get hurt. So a likely outcome there is for most of the fault to be apportioned to the actual killer, and each of the victims being more responsible for their own deaths than the others’, and each being roughly equally responsible for the others’ death’s. Result: no recovery, as the fault that any given victim bears towards the other victims is canceled out by the fault they owe to him. The perpetrator is broke—and dead—so no recovery there either. And given that the group had agreed to break the law, it’s going to be very difficult to find a third party responsible for their activities. A wrongful death claim seems futile.

III. Conclusion

We learn a little more about the registration regime in Powers this time, and it seems to include some sort of ban on civilians dressing up in costume without registering first. If we assume that this has some kind of reasonable limitation that would permit Trick or Treat, filming television shows or movies about superpowered people, etc, but prohibit “costumed adventuring,” this is probably okay. And though every member of the group is guilty of conspiracy based on their mutual agreement to break the costume laws, finding them guilty for their own deaths, or the deaths of the others involved, is implausible. Conspiracy liability won’t apply, as it wasn’t the point of the conspiracy to hurt anybody, so those acts wouldn’t be in “furtherance” of the conspiracy. And the accomplice-type liability theories for felony murder and misdemeanor manslaughter don’t seem to work in this case.

24 responses to “Powers: “Role-Play”

  1. So when my friends and I say, “Hey we should do some urban exploration at the old mill next weekend.”, which almost always involves some sort of trespass, we’re guilty of conspiracy even if we don’t end up going? Interesting.

    • Well. . . maybe. Here’s the thing: a conspiracy is an agreement to commit a crime. This matters in this case because trespass is both a tort and a crime, but there are plenty of torts which are not crimes. Agreeing to do something which might or might not turn out to be a crime probably wouldn’t cut it. For instance, an agreement to defame someone would not be a conspiracy, because defamation is not a crime, just a tort.

      The tort of trespass simply involves being on someone else’s property without permission. Doesn’t matter whether you knew you were on their property or not, or whether your belief was reasonable one way or the other: It’s a strict liability tort. Mere presence is sufficient. But criminal trespass tends to involve something a bit more and normally has some kind of mens rea requirement. For instance, in Indiana, trespass (other than in dwellings) is generally only criminal if one enters or refuses to leave the property of another after ignoring appropriate signage or being asked to leave. So if there are no signs up and no one asks you to leave, it’s not criminal trespass. More to the point, if the property is officially vacant, it’s only a crime if one refuses to leave after one is asked to do so by a law enforcement officer. Signs won’t cut it.

      So if you agree to go over and enter someone’s house without permission, that’d be a conspiracy whether the trespass happened or not, because simply being in someone’s house without permission is trespassing. But that old mill? Unless you specifically agree to remain on the property after the cops ask you to leave, there’s no agreement to commit a crime, because your mere presence on the property wouldn’t be criminal.

      Obviously, statutes vary from state to state. But the point is that conspiracy is what’s called a “specific intent” crime. There must be a specific agreement to do something which is illegal. Unlike “general intent” crimes, a mistake about the legality of a particular action can serve as a defense to a specific intent crime, including conspiracy. So if you all agreed to do something you thought was–or arguably even could be–legal, there’s no conspiracy.

      • [Trespass is] a strict liability tort

        Trespass is not a strict liability tort. It is an intentional tort. The intent is not an intent to trespass, but rather an intentional entry onto the land of another (or intentionally remaining there). Two common examples are illustrative.

        A person intentionally walks through some woods behind their house, reasonably and in good faith believing that the woods are their own. In fact, the woods belong to their neighbor. The person has committed the tort of trespass because they intentionally entered the land of another.

        A person is walking along their own property near the property line with their neighbor. Through no fault of their own, they slip and slide down a hill onto their neighbors property. They immediately leave the property and return to their own, causing no damage. The person has not committed the tort of trespass because they did not intentionally enter the land of another or intentionally remain there.

        Unlike “general intent” crimes, a mistake about the legality of a particular action can serve as a defense to a specific intent crime, including conspiracy. So if you all agreed to do something you thought was–or arguably even could be–legal, there’s no conspiracy.

        This is absolutely incorrect. Ignorance of the criminal nature of the objective of the conspiracy is not a defense, nor does the prosecution have to prove knowledge of it . “The mens rea [of conspiracy] does not include, however, a corrupt motive or an awareness of the illegality of the criminal objective.” Model Penal Code § 5.03, editors’ notes.

        A conspiracy is not literally an agreement to commit a crime (i.e. “let us go and commit the crime of robbery, which is a felony”). It is an agreement to commit criminally prohibited conduct (i.e. “let us go and take property by force”). Under the federal conspiracy statute, for example, “a conspiracy to commit [an] offense is nothing more than an agreement to engage in the prohibited conduct.” US v. Feola, 420 U.S. 671, 687 (1975). Ignorance of the law is generally not a defense to a charge of conspiracy, just as it is generally not a defense to any other charge.

      • Isn’t there a difference between ignorance of the law and not knowing that a specific act is illegal? Say, for example, you ask your friends if they want to go camping in the woods and the woods turn out to be private property: you are all charged with trespass but are you charged with conspiracy to trespass? You know that trespass is illegal so it is not a question of ignorance of the law but seeing as how nobody in the group knew that the land was private there was no conspiracy to trespass: even if one person did know the land was private there was no conspiracy because he didn’t tell the others the land was private and the others did not agree to commit trespass (and may have refused had they known).

      • I’m afraid this sort of real-world issue is very much not what we’re about on this blog, and we won’t be discussing it further. I only responded to correct an earlier misstatement of the law. Had I caught it sooner I would have simply edited it, but enough people had seen it already that a correction was warranted.

        For clarity, I will reiterate our disclaimer:

        On this blog we discuss fictional scenarios; nothing on this blog is legal advice. No attorney-client relationship is created by reading the blog or writing comments, even if the authors write back. The authors speak only for themselves, and nothing on this blog is to be considered the opinions or views of the authors’ employers.

      • Okay. So if Batman and Robin were wandering in the forest and they wandered onto land that, unbeknownst to them, was owned by Lex Luthor and Batman and Robin were both rightly charged with trespass could they also be charged with conspiracy to trespass?

      • Ryan Davidson

        So this is what happens when you rely on studies for the bar exam. I sat for the PA bar this past week. The MBE generally uses common law definitions for crimes and torts. At common law, trespass was a strict liability tort. But James is correct: it hasn’t been that way in the American legal system for quite some time.

  2. I guess the city that Powers is set in doesn’t host any pop culture conventions (Supanova, Comic-Con, etc.). Or at least, if they do, they don’t permit cosplay.
    Technically, dressing like a cop or soldier is not illegal. It’s the attempt to pass oneself off as genuine that is. If that were not the case, most paintball games would be illegal, as would every cop show ever.

    • I considered adding a line about conventions, especially given the meta nature of the second chapter. In any case, the mention of “impersonating” was meant to convey what you are getting at: the distinction between merely wearing a uniform versus actually trying to convince others that one holds the authority or rank symbolized by the uniform. An actor on a set may wear a police uniform, but few would think he or she was actually an officer, especially since he or she would presumably flatly deny it if asked.

  3. Regarding “furtherance”; couldn’t you construct the argument that the reason the villain was hunting down the role-players was because they wanted to increase the “reality” of their role-play? And isn’t the “conspiracy” a conspiracy to make the fiction a reality? They may not have predicted the actual murders, but it seems to me that hiring the villain was an extension of the conspiracy they were committing at the time.

    I guess the question is: in order to prove “furtherance” beyond a shadow of a doubt, does the motive of the act have to further their conspiracy, or does the act itself have to further the conspiracy?

    • does the motive of the act have to further their conspiracy, or does the act itself have to further the conspiracy?

      In general, “A conspirator is liable for an act of a coconspirator not only when such act was a part of the original plan but also when it was a natural and probable consequence of a carrying out of the plan.” 4 Wharton’s Criminal Law § 685. The analysis twofold: did a coconspirator commit a criminal act? if so, was that act a natural and probable consequence of a carrying out of the conspiratorial plan? If the answer to both questions is yes, then all of the conspirators are liable for that crime.

      Here, a coconspirator certainly committed a criminal act (murder). But was the murder of the faux-superheroes a natural and probable consequence of a carrying out of the plan to dress up as superheroes (plus a supervillain) and run around town? The faux-superheroes did not realize they were hiring a real villain, and presumably they very much did not want to be murdered, so I don’t think their murders could be said to be a natural and probable consequence of a carrying out of the plan. To say so is to make the plan into an elaborate suicide, which it wasn’t.

      • In general, “A conspirator is liable for an act of a coconspirator not only when such act was a part of the original plan but also when it was a natural and probable consequence of a carrying out of the plan.” 4 Wharton’s Criminal Law § 685. The analysis twofold: did a coconspirator commit a criminal act? if so, was that act a natural and probable consequence of a carrying out of the conspiratorial plan? If the answer to both questions is yes, then all of the conspirators are liable for that crime.

        Okay, now I’m genuinely confused. It is possible to commit a crime (such as trespass) without knowing you are committing a crime. My first instinct is to say that it is impossible for people to be conspirators if they don’t know that you are committing a crime, not unless it is simply a question of ignorance of the law which is never a defense, at least not for a sane adult. (“Murder is illegal? Really?” is not going to work.) In general, I would have thought that you could not be charged with conspiracy if you committed a crime by accident, such as vehicular manslaughter, but maybe I would have been wrong about that. I mean, if Batman and Robin went out drinking together and then ran someone down in the Batmobile I could see how Robin might be charged along with Batman even though it was an accident and he wasn’t behind the wheel, because when you are drunk and you are driving then vehicular manslaughter might be “a natural and probable consequence”. If I have read the quote above correctly then actually running someone down need not be something they had planned to do together: it seems as though it’s either one or the other condition that needs to be met; that is that they actually planned to commit a crime or it was a natural consequence of what they were doing and it is not necessary for both conditions to be met simultaneously, only one or the other.

        Seriously though, even when Batman is sober he exceeds the speed limit and that is both a violation of traffic law and a danger to public safety. And he does engage in a lot of breaking and entering, although I suppose it is a moot point if the Joker doesn’t actually own the building he’s hiding out in. Ah but Robin is almost always a minor in the comics. Can minors be charged for conspiring with their legal guardian? Aren’t minors supposed to obey their parent or guardian? If Batman tells Robin to do something illegal and he does it then who is charged, Batman, Robin or both Batman and Robin and does it matter how serious the crime is? Are minors expected to know the law or is ignorance of the law an acceptable defense for minors?

        Now I’m really confused. People are can claim the insanity defense only when their mental illness makes it incapable of distinguishing right from wrong. So ignorance of the law sometimes is a defense: if you can be proven to be mentally ill then, in effect, you really could claim that you didn’t know it was not alright to kill somebody and that would be a defense. By the same token, a person’s age might also be taken into consideration, although I suppose Robin never was quite young enough while he was working with Batman that he wouldn’t have known right from wrong.

      • Ryan Davidson

        A defendant is only chargeable with conspiracy where there has been an agreement to commit a crime. If two people are just bumming around and one of them does something illegal, that’s not conspiracy unless they had agreed for one of them to do it.

        Further, while DUI is a strict liability offense and vehicular manslaughter only requires negligence, conspiracy is a specific intent crime. Take a look at the discussion in this case. It’s clear that intoxication can serve as a defense to a conspiracy charge. The defendant wasn’t entitled to an instruction in that case because the conspiracy lasted for three days. But if two guys met at a bar, got drunk, and then decided that one would drive the other home, voluntary intoxication would seem to be a defense to a conspiracy charge.

        But let’s assume for the purposes of argument that two people, while sober, agree to get drunk and then drive. Unlikely, but what the hell. In that case, there’s no obvious reason why they couldn’t all be charged with conspiracy and then liable as a conspirator to the target offense, DUI. As to whether a vehicular manslaughter charge would follow, that’s a harder call. Conspirators are all liable for the commission of the target crime, and for all crimes “in furtherance” of the conspiracy. Whether something is “in furtherance” of a conspiracy is dependent upon whether it’s reasonably foreseeable from the agreement and its relation to the target offense.

        So, for example, if two people agree to steal a painting from a house, and they do so, they’re guilty of theft, conspiracy to commit theft, and if the facts support it, burglary as well, because that’s pretty closely related to the target offense. But if one of them, unbeknownst to the other, sees a package of heroin in the house and grabs it on the way out, it’s going to be hard to find the conspirator liable for possession with intent to distribute. Drugs weren’t any part of the agreement, and there’s a good argument that that wasn’t reasonably foreseeable from the nature of the agreement.

        The question is, given that kind of analysis, whether hitting and killing someone while driving drunk is “in furtherance” of the target offense of DUI. I’m tempted to say “No.” Is that sort of accident reasonably foreseeable? Yes, definitely. Is it related to the conspiracy to commit the target offense? Doesn’t seem to be. The offense consists of getting drunk and hitting the road, nothing more. There’s no sense in which hitting someone in the process makes the crime any easier to commit.

        Regardless, my original conclusion was that because killing the members of the group was neither the target offense nor could it reasonably be construed as “in furtherance” of the target offense, that a conspiracy charge won’t lie.

  4. “The theory is that while crimes are bad, people working together to commit crimes is worse, so we punish the “working together” part independently of the actual crime part. ”

    So is conspiracy to commit X not a lesser included offence? It seems that a conspiracy must have happened at some point if two or more people commit a crime.

    • The elements of the lesser included offense must be a subset of the elements of the greater offense.

      The elements of conspiracy are an agreement to commit a crime (and, in some jurisdictions, some overt act in furtherance of the conspiracy). Apart from some jurisdictions that have higher degrees of conspiracy, it would be a very unusual offense that had those elements plus some additional element(s).

      • So, the conspiracy to commit robbery isn’t a lesser included offense because individuals can commit most crimes… therefore the elements of the crime don’t involve planning with others to commit them.

        But… if a person was convicted of a crime and of conspiracy to commit that crime, would the sentences run concurrently (thus making the charging of the conspiracy largely a waste of prosecutorial and judicial resources)?

  5. Oddly enough, a similar scenario played out a decade or two ago in Kentucky, at least according to my misty memories. My mother brought us kids an article regarding some kids who were charged with conspiracy to commit armed robbery on the basis that they were on a hill overlooking a bank and discussing how their characters would rob it. At the time, they were dressed as their characters and had no equipment that would have allowed them to perform their made-up plan, but they were charged with conspiracy and threatened with some pretty severe penalties. No idea what the outcome was because that was a long time ago and my Google search skills are failing me.

    At the time, she told the story to us to discourage us from playing D&D, so I have it in my mind that the characters were dressed up as warriors and wizards, which makes the charge somewhat ridiculous, along the lines of a writer being arrested for “intent to murder” for researching poisons for his novel, but in retrospect, they might have been dressed in something considerably more suspicious like black suits and balaclavas and carrying plastic guns and bearing rope.

    The chief difference here, of course, is that in the show, the role-players are actually committing a crime by the act of their role-playing versus the real life case where they were being charged for a more imaginary act. Of course, I can also see it from the police’s perspective. What would keep an inventive group of robbers from claiming all of their plans and equipment were part of a LARP (Live Action Role Playing) and they’d had no intent to actually rob a bank?

    • This is why you want an “overt act” requirement for conspiracy. A group of people sitting around talking about how a particular bank might be robbed might be mystery fans, bank security consultants, or just idle conversationalists, but a group of people who break into the adjoining offices with sledgehammers are conspiring to rob the bank.
      Not to say that “overt act” requirements don’t create their own problems. For example, suppose that the FBI successfully infiltrates a group that wants to commit a terrorist act? On the one hand, we’d like them to prevent the terrorist act, but on the other hand, if you have an “overt act” requirement, they aren’t guilty of conspiring until one of them does something to get ready to carry out the plan.

      • And, at that, while entrapment doesn’t work the way Hollywood portrays it, and the defense is one that seldom succeeds, said law enforcement agents need to avoid seeming to have been standing there, chanting “Do it… do it… do it…”

  6. Just reading this, aren’t Batman and Robin trespassing every time they loom on a rooftop of a building that isn’t owned by Wayne Industries?

    • The short answer would be “yes”. But then you move to the next question, which is “and what are the damages?” The answer to that question is “nominal”.

      • Ken Arromdee

        What if Batman trespasses on a building, not to catch a crook that happens to be on the building, but for reasons having to do with the building’s owners? For instance, he trespasses on the building so that he can eavesdrop on a conversation involving the company owner. Batman then overhears something that’s embarrassing (but not evidence of a crime) and makes it public in order to shame the company; would any losses to the company be considered damages due to trespassing?

      • Ryan Davidson

        Unlikely. Wrong kind of damages.

        But there are other torts that cover that, e.g., invasion of privacy. The corporation probably wouldn’t be able to sue–corporations generally can’t make use of that particular tort–but the people involved would.

      • Until, I’m guessing, a villain spots them there, attacks them, and damages the rooftop.

        Then, wouldn’t their trespass have brought the harm to the building and made them liable?

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