Quick Questions from the Mailbag

In today’s mailbag we have a couple of quick questions from a couple of Christophers.

I. Batman and Bats

The first Christopher had two questions about Batman and actual bats:

In Batman: Year One, and in the film Batman Begins, Bruce has that little gadget that essentially summons swarms of bats, which always looks really cool. But is he responsible for any of those bats dying? Because you just -know- some of them got smushed, or died somehow in the confusion. Also, if someone gets rabies or otherwise gets seriously injured by said bats, is that Bruce’s responsibility?

A. Injuries to the Bats

With regard to the bats themselves: it depends on the kind of bats and the laws of the state.  There are some federally protected bat species, and messing with an endangered species in that way would almost certainly run afoul of the Endangered Species Act, which  makes it a crime to “harass, harm, pursue, … trap, capture, or collect [an endangered species], or attempt to engage in any such conduct.” 16 U.S.C. § 1532(19).

Even if the bats weren’t endangered, state animal welfare laws may prohibit what Batman was doing.  If any of the bats were “unjustifiably injured”, for example, then under New York law that would constitute “overdriving, torturing, and injuring animals.”  N.Y. Agriculture & Markets Law § 353. Whether summoning a swarm of bats to confuse or evade criminals makes any resulting bat injuries unjustifiable is a difficult question to answer, but one has to wonder if someone has smart and well-connected as Bruce Wayne couldn’t have come up with a less risky alternative.

B. Injuries to Others

By ‘others’ I mean innocent bystanders.  We’ll assume self-defense, defense of others, or some other justification applied to any injuries inflicted on the criminals.

Ordinarily the owners of wild animals (such as bats) are strictly liable for injuries caused by those animals, assuming the injury is a result of the kind of danger that the animal poses.  Bites and rabies transmission from bats certainly fall into that category.  The trick is that Batman isn’t necessarily the owner of these bats.  There is a bat cave on the Wayne Manor property, but I don’t remember if it’s clear that these particular bats came from there.  Merely exercising some degree of control over the wild animal may not be enough to result in strict liability.

However, even if a more typical negligence standard were applied, Batman could still lose out.  He may be justified in using force against his attackers, self-defense will not necessarily prevent a negligence claim.  Would a reasonable person exercising ordinary care summon a swarm of wild bats in a crowded city?  I think a reasonable person might have opted for a less risky method.

II. Animal Transformations

The second Christopher had a question about the magician Zatanna turning people into animals:

I was reading Zatanna and she has a habit of turning people into animals (briefly, in one case, just to get rid of annoying guests.).  Later her father transforms someone into an inanimate doll?  This seems like assault … Can she be arrested and/or sued?

I think the answer is yes, such a transformation would be both a tort and a crime.  If the transformation were effectively permanent—it could not be treated and the responsible magician refused to undo it—it would be murder, particularly if the animal form was truly an ordinary animal and not the person’s mind trapped in an animal’s body.  From a legal point of view, the person would be dead.  Their cardiopulmonary and brain functions would have permanently ceased, since their body had been effectively destroyed.

In the case of a temporary transformation, that would be a very serious injury, albeit one that the victim recovered from.  That would affect the sentencing or damages, but it would still be a crime.  You might think: hey, she changed the victim back, no (permanent) harm, no foul, right?  But what if Zatanna had performed the transformation and then been killed or incapacitated?  Or if Zatanna and the victim had been separated?  We don’t want to encourage her to take the risk that she might not be able to change someone back.  This is similar to why factual impossibility is not a defense to an attempted crime: the defendant could not actually have committed the crime they were trying to, but we don’t want to let them off the hook just because they got lucky.

And then there’s the psychological harm of being turned into an animal, even temporarily.  So even a temporary transformation would be a criminal assault or battery (depending on the term the particular state uses) and a tortious battery.

36 responses to “Quick Questions from the Mailbag

  1. Melanie Koleini

    I have a technical legal question (inspired by the recent vampire glamour post): is it actually a crime to harm someone (by truing them into an animal) if nothing but insubstantial ‘magic’ touches the victim.
    ‘Magic’ often involves more, but let’s say all the spell caster needs to do is silently wish the victim turn into a lion and poof: they are a lion, with no obvious means for it happening. Do any state’s assault and battery laws require physical contact? I know some states use to have laws prohibiting witchcraft. Might those laws actually be necessary to prosecute magic users turning people into animals?

    • Well, it is assault if I shoot someone and “shooting someone” need not be with a gun: it could be with a sufficiently powerful laser or a microwave gun or a water cannon. I think pointing a magic wand and saying a magic spell would count as assault. I haven’t read the Harry Potter books but I believe in that universe one can always find evidence that a spell has been cast and trace it back to the person who cast the spell.

    • Assault, as defined as a tort (a few criminal codes use assault to describe what would be called battery as a tort), is about the apprehension of something that is about to happen and it is possible for it to occur with nothing bad actually happening at all. Pointing an unloaded gun at someone is assault. So, if she has to do something that the victim sees to cast the spell then she is probably liable for assault, possibly even if she stops before completing it. But if she can do it just by will then she might not be liable for assault even if something bad happens.

      Now battery is more complicated because it does require contact. But I think a court would have no problem finding that magical contact is contact. I do not think the fact that it is insubstantial would make it less of a contact. Otherwise, in the real world, you could do things like mess with prosthetic legs or any other implants that contains iron using powerful magnets and have no liability.

  2. Melanie Koleini

    I don’t agree turning someone into an animal would count as killing them. I agree a doll is not alive; therefore the victim would be technically dead. But a wolf is very much alive and has a functioning brain and circulatory system. IF the victim still had a human mind, I bet a good lawyer (in a universe that believed in shape shifters) could convince a judge the werewolf was still legally the same person. After all, they technically still have the same body they were born with, it has just been changed.

    • James said “particularly if the animal form was truly an ordinary animal and not the person’s mind trapped in an animal’s body” in which case the person is legally dead until they can be changed back.

      What I wonder is what happens if I’m in a car and I run over a cat and this turns out to be a person. There’s no way I would get charged with vehicular manslaughter: the blame would therefore fall on Zatanna; the original person is dead as a direct result of her actions.

      • Philo Pharynx

        I don’t think you can get Zatanna for manslaughter for the car killing the cat unless she specifically released the cat in a place with a lot of cars. She could be accused of the original transformation, but this stretches the chain a bit too far.

  3. Melanie Koleini

    Do you think it would be legal to change someone into an animal with their permission?
    I’m guessing transforming yourself into an animal would be legal. Would it be legal to teach someone (or give someone the means) to turn themselves into an animal? Would turning yourself into an in inanimate object be legal?

    • Depends on multiple things, most importantly your mind. Do you still retain any sense of being a human with higher awareness than the animal you now exist as? If so it still might be illegal, but if not then it might be ruled assisted suicide, which would almost definitely be illegal unless you could somehow argue that it should be one of those cases of physician-assisted suicides*.

      *And those (which aren’t even legal in all states) are legally complicated and probably not a place where magic can easily enter.

    • That also depends on the universe. Going along with the Harry Potter universe, people who are able to transform into animals are required to register with the government, saying that they have the ability and what animal they change into. So learning the skill isn’t necessarily illegal, but doing it underground can lead to legal consequences (or Hermione blackmailing you).

    • I also think the legal status would be related to what would happen if you tranformed back. In Zatanna’s case, transforming somebody back causes them to regain their previous memory and mindset. I would argue that this is more like putting somebody into a reversable coma than killing them. Still a very serious crime, but not murder.

    • Hard to say, but I suspect the answer is Yes to all. You can consent to have most things done to you, with the crucial exception of murder. You cannot consent to have yourself murdered. So, if such a permenant transformation was counted as murder (which it probably wouldn’t be, especially if temporary) then it would be illegal, but under just about any other intepretation it would probably be fine, especially if the mind is retained in the other form.

  4. With regards to the last one, haven’t most states expressly decriminalized witchcraft? (Yes, that still leaves the torts… but who’s going to bring the suit? Animals (and dolls) lack standing.)

    • Melanie Koleini

      Their relatives could sue

    • If the state decides that something is murder you don’t get off by saying “arresting me is an effort to persecute witches”. It’s probably safe to say that murder is going to be a serious crime in the eyes of the state (and public) for a long time to come.

      • James Pollock

        If the state has said “practice of witchcraft is not a crime”, then arrests and imprisons you for practicing witchcraft, I’d think you’d have a valid habeus complaint.
        The comparison I’m looking for would be if a state expressly enshrines castle defense into it’s statute books, decriminalizing use of deadly force to defend one’s home from an intruder, they can’t turn around and say, “yeah, you shot that guy dead just because he was breaking into your house, that’s murder!” In other words, if there are two different statutes, and one says that the action you have taken is a crime, and another one says (specifically) that it is not, you should not be convicted. Yes, you need a trial to ensure that the facts fit the law, and the law applies… and it would be ideal if legislators didn’t write laws such that they come into direct conflict like this… but, assuming the state has gone so far as to expressly decriminalize witchcraft, then use of witchcraft itself should not be criminal. (I suppose the true answer would depend on the wording of the statute criminalizing murder, the wording of the statute decriminalizing witchcraft, and the exact nature of the magic spell or spells used (particularly, whether the spell is reversable)
        off-topic (slightly) For a wonderful fictional (but not comics) treatment of law-enforcement activities in a world with magic, look for Randall Garrett’s Lord D’Arcy stories. Straight up murder mysteries in a world with fully operational magic; the detective’s assistant is a forensic magician.

      • It’s not a crime to practice martial arts, but it is a crime to beat someone to death (barring certain affirmative defenses such as self-defense). If you are arrested for magicking someone to death, you are not being arrested for witchcraft, you are being arrested for murder.

        Now I’m not so sure about transformation into an animal counting as death (I see the argument to some degree, but I’m not sure I agree with it, and I would expect it to be argued to death (pardon the pun) by a myriad of experts on both sides the first big trial it comes up in), but it’s much clearer if you consider the example of magicking someone’s internal organs to explode. The fact that you used magic to do it is complete irrelevant to the illegality of causing another person’s death.

    • In Ontario you can get standing in place of a person under a disability by acting in their stead; this usually how a child sues. A person under a disability appeals to the courts to act the guardian of the person for the purposes of the civil suit and that guardian handles all decisions for the suit. Its all reviewed by the Office of the Guardian to ensure decisions are in the best interest of the disabled person.

      Disability here just means the person is in no position to make decisions for themselves, either through actual physical or mental disability or the fact they legally are unable to do so (children for example). There’s no reason that this couldn’t apply. It also doesn’t take into account the fact the family of the now transformed person could sue for loss of companionship/familial relations.

      • James Pollock

        Here in the states, there have been a couple of attempts for animals to sue directly, most notably the attempts by the whales of SeaWorld to sue for their release under the 13th amendment. Thus far, these efforts have been unsuccessful. (It’s also not clear that an animal may have an agent, as animals are generally regarded as property, not as independent entities. So… when a talking, say, cat shows up in court and claims to be the transfigured person “x”, they’re probably going to be shown the door rather than have their claim(s) entertained, although I assume that people would talk about it for some time. This is, of course, a foregone conclusion when the NON-talking cat shows up.
        The ability to transform people into other animals also features prominently in Piers Anthony’s “Xanth” books; it is the magical talent of the villain in the first book.

  5. “one has to wonder if someone has smart and well-connected as Bruce Wayne couldn’t have come up with a less risky alternative.”

    Someone stable and sane wouldn’t be doing what Batman is doing in the *first* place.

    • Someone stable and sane wouldn’t be doing what Batman is doing in the *first* place.

      I disagree. It’s a fundamental premise of superhero comic books that you can dress up in a costume and fight crime and it’s not a sign of being mentally unbalanced. This isn’t realistic, but you can’t read superhero comics without it (unless the comic is deconstructing superheroes).

      So the fact that Batman puts on a cape and cowl and beats people up doesn’t mean he’s unbalanced. At most you could argue that the particular methods he use are those of an unbalanced person (but another superhero who did the same thing without using those methods would be okay). For instance, I’ve never seen comics try to depict Robin as unbalanced in the same way as Batman, even though he does fight crime alongside him (and it’s not depicted as being forced to fight crime by an insane mentor, either). So maybe he used a risky method such as bats because he isn’t stable, but you can’t argue that he wouldn’t be Batman if he wasn’t unstable.

      • There have been several to suggest that Batman isn’t the most mentally healthy of people.

      • James Pollock

        “It’s a fundamental premise of superhero comic books that you can dress up in a costume and fight crime and it’s not a sign of being mentally unbalanced.”

        I disagree most strongly. Superman fights crime because he’s, well, bulletproof; that’s one of the reasons Superman’s writers have had to come up with the rather incredible threats to the Earth for Superman to fend off. Reed Richards is noble and motivated by the desire to share his gifts with the world; his leadership guides the rest of the FF. Thor, also, fights evil because he’s a good guy and that’s what good guys do.
        Batman, on the other hand, is clearly insane, driven by a compulsion he cannot control. He tempers his risk by preparation, training, and careful planning, but he takes risks no sane man would. (Spider-Man, too, although his driving compulsion is subtly different. See the “Spider-Man no more!” story arc from the early ASM that was cobbled into the second movie.)
        You just need enough suspension of disbelief to say, “yeah, if that happened to someone, they might react that way”, and it doesn’t have to be sane to be plausible. Maybe in Gotham City, a hundred kids were orphaned by criminals killing their parents in front of them, and 99 of them did not become Batman; their stories don’t get illustrated.

        There’s a fairly long list of superheroes who probably aren’t sane (and a much longer list of supervillains, of course!), with Batman being the best-known. But Cloak (of “& Dagger” fame) or Dark Phoenix, or fan favorites Wolverine and Deadpool, and arguably the base-model Hulk would be on that list, as well.

        “you can’t argue that he wouldn’t be Batman if he wasn’t unstable.”
        The Hell you can’t. Start with the basic question: Is the guy Bruce Wayne, with Batman as a secret persona, or is he Batman, with Bruce Wayne as a secret persona? What happens when he tries to go without being Batman? (I can’t, off the top of my head, think of a storyline where he did, except for an animated series episode where he was trapped in a dream). Batman’s drive for vengeance (which can never be quenched, because Joe Chill is dead(Tim Burton notwithstanding)) consumes all other aspects of his life. When your mental quirks don’t interfere with your normal life, you’re eccentric. When they dominate your every waking moment, preventing you from leading your normal life, you’re mentally ill. Where would YOU put Batman on that scale? I say he’s nuts. He’s otherwise noble and fights for our side, so yay, but he is not entirely sane.

      • Ken Arromdee

        Spider-Man, too… There’s a fairly long list of superheroes who probably aren’t sane… with Batman being the best-known.

        Suggesting that Spider-Man is also insane is breaking the genre conventions in the same way that it is for Batman. Certainly anyone who acted like Spider-Man in real life, even if they had real powers, would be insane, but comic books aren’t real life. And the same argument could be made for Reed Richards. Being “noble and motivated to share his gifts” is no better a reason to punch bad guys in the face than “because I didn’t use my powers to save Uncle Ben”; in real life either one implies being nuts.

        It is true that Batman has been depicted as borderline insane, but that’s because of the way he goes about fighting crime and his obsession with it. Just the fact that he puts on a costume and beats people up isn’t itself a sign of insanity by comic book standards; only the fact that he overdoes it.

      • I don’t think Spider Man is insane. I think he might be obsessive compulsive though: he really doesn’t have to go out every night wearing a Spider Man costume: he’s not paid to do it. At least with Superman he leads a normal life: he can change from Clark Kent to Superman in literally the blink of an eye.

        In Amazing Spider Man #1, Spider Man tried to make money as Spider Man but he wasn’t allowed to cash a check as Spider Man. Eventually he was able to join the Avengers and that actually solved his problem: if he can show his Avengers ID to prove his identity then he can cash a check. Hell, for that matter nowadays he could just have money deposited directly into a bank account and then use an ATM card to take money out of a bank. I’m not sure if Spider Man is still an Avenger though under the current continuity in which he never married Mary Jane nor went to live in Stark Tower.

        I would say, in the comics, Spider Man is portrayed as a borderline case. Chris Claremont once said that Spider Man could easily have become a villain if not for the good influence of his aunt and uncle. You can see that in the early Spider Man comics: Peter Parker agrees to fight Flash Thompson and beats him pretty badly. In the Spider Man movie, this happened while Ben Parker was still alive so Ben Parker was able to tell him about how you don’t always do things just because you can. In the comics, Spider Man had to learn that he couldn’t use his powers to hurt people. It was a subtle change that occurred over the first few years of the comic as Parker learned that it was better for him to be perceived as a wimp by people he knew or else they would suspect he was Spider Man.

        One thing’s for sure, if you look at all the Spider Man adventures and then consider the time it took for him to finish high school, go to college, go to graduate school, quit, (not any more) get married and (not any more) join the Avengers and still be a young man after all is said and done you have to figure that maybe ten to fifteen years have passed and with all the adventures he’s had he must have been going out every single night. If you instead figure that the comics are happening in real time then he was a teenager fifty years ago and he’d be a senior citizen now but then at least all the time he has devoted to fighting crime seems more reasonable. It’s a hobby, after all.

        Batman, though, is plain nuts: he’s devoted a great deal of his personal fortune into building the batcave and the batmobile, etc. and he has a full time job as the CEO of Wayne Enterprises and yet he not only presumably goes out every night looking for trouble but is essentially at the beck and call of the Gotham Police and basically works for them for free. That’s pretty much how he has always been portrayed, although he did have a bit of a home life when they introduced Robin.

      • Philo Pharynx

        Ah, but Batman is not legally insane. (in most continuities) He’s very driven, but take a look at what Olympic athletes do to themselves. Spider-Man is the same way.

        Given what we know about the comic world, becoming a superhero is a logical reaction to having powers. There are villians out there threatening people and ordinary police can’t stop them. You do hear about the occasional person with powers who does something else, but many people choose to either be a hero or villain.

        While Batman doesn’t have powers, he does have capabilities far beyond the average person. He can deal with low-level superheroes even without his gadgets. There are other people who have similar skilled abilities. Given a world with the Joker and Two-Face, his choice is not completely irrational.

      • James Pollock

        “Batman is not legally insane” (Nor Spider-Man)

        Agreed. But “legally insane” is a fairly small subset of all things insane.

  6. “the same argument could be made for Reed Richards. Being “noble and motivated to share his gifts” is no better a reason to punch bad guys in the face than “because I didn’t use my powers to save Uncle Ben”; in real life either one implies being nuts.”
    Reed is more likely to build a raygun to pop a bad guy in the face, or to delegate the task to Ben Grimm. Reed leads scientific endeavors that happen to lead to him having to fight bad guys; Skrulls, Galactus, the entire Negative Zone, and so on. Reed doesn’t, to the best of my non-all-encompassing memory, go looking for gangsters.
    As for Spider-Man, what makes him insane isn’t the fact that he likes to dress funny and hang out in weird places, nor his tendency to get into fights with supervillains. What makes him insane is that HE CAN’T STOP DOING IT. It’s affected his work, his school, his relationships, and he can’t stop. That’s mental illness. He’s high-functioning, but damaged.
    Sorry if this news “breaks the genre conventions” for you, but there it is. As I said before, go read the “Spider-Man no more” story arc. If I remember correctly, it’s in ASM just after the (spoiler alert) death of Gwen Stacy.

    • The fact that Spiderman’s crimefighting affects his school doesn’t mean that his crimefighting is a sign of insanity. His crimefighting affects his school because he has more obligations than he has time to do them in, crimefighting being one of those obligations and school being another. Having so many obligations that they interfere with each other is not insanity, it’s just having a sucky life.

      The genre convention is what makes crimefighting an obligation at all, but once you grant that convention, it’s no different than, say, living on a farm, getting up at 5:30 to milk the cows every day, and finding that that interferes with his school.

      • I can see the argument both ways. In real life people have a family and a job plus hobbies and they don’t have time to do everything. Are we crazy because we get married and have kids? Shouldn’t we devote all our time to work and then come home and play video games and watch movies? That makes sense: we’d have a lot more money to spend on yourself, after all, but then people would accuse us of being immature. Spider Man started out being very selfish and it wasn’t until his uncle died that he realized that he had a responsibility to help people around him. I think this applies to all of us: if there’s a child in a park going “Mommy! Mommy! Where’s my mommy!” it would be selfish of us to ignore a child in need. To me, it is a question of degree: Peter could have had a decent career in science and maybe have gone on to teach at a university and, at the same time, been able to marry Mary Jane and have a family but he gave that up to be Spider Man.

      • James Pollock

        You keep avoiding the point.
        He’s not crazy because he does it.
        He’s crazy because he can’t stop doing it.

        Washing your hands doesn’t mark you as crazy. Washing your hands 100 times a day because of not being able to stop washing your hands marks you as crazy. There’s no end of things that aren’t crazy themselves, might be perfectly rational, but it’s the inability to change that marks the insanity. It’s entirely rational to avoid people who are sick and contagious… until you get into Howard-Hughes-near-the-end-of-his-life territory… that’s mental illness.

        Heck, if I had the strength and reflexes of Spider-Man, I might try a little bit of web-slinging and crime-fighting myself (the Scarlet Spider did, too) but… if it was interfering in my ability to carry out my daily life, causing me to fail in school, at work, in my relationships… I would stop. Because I’m not crazy. Peter CAN’T stop. Because he is.

      • You say that like Peter never takes the mask off. Is a soldier/sailor/marine/airman who reenlists despite his/her deployment putting stress on his/her personal and family life necessarily crazy? If so, there would be no such thing as competency to reenlist in the armed forces. Or for a closer analogy, what about a volunteer firefighter? The difference being, of course, that Peter can’t actually go around telling people he’s Spiderman, so he doesn’t get much in the way of accomodation from other people, but even so, he managed to graduate, he (usually) holds down a job, he has friends, and deals with the devil aside he had a quite successful marriage. There’s a difference between choosing to take on a responsibility knowing it requires sacrifices vs having a compulsion.

        Now you have a much stronger argument for Batman, who is more generally 24/7 Batman. Even when he’s appearing as Bruce Wayne, he’s usually just Batman in a Bruce Wayne disguise.

      • Ken Arromdee

        Spiderman “can’t stop” crimefighting because crimefighting is (by genre convention) an obligation. It would be wrong for him to stop it. Not being able to stop an obligation even when it interferes with your life isn’t insanity–it’s inherent in the nature of being an obligation!

      • James Pollock

        “Is a soldier/sailor/marine/airman who reenlists despite his/her deployment putting stress on his/her personal and family life necessarily crazy? If so, there would be no such thing as competency to reenlist in the armed forces”

        The military has different rules for this. See “Catch 22”.

        “Spiderman “can’t stop” crimefighting because crimefighting is (by genre convention) an obligation.”
        Tell that to the various superheroes who’ve taken time off, retired, quit, failed to provide their services for free, or actively tried to remove their super-powers. (examples of each category: Susan Storm Richards, Benjamin Grimm, and Johnny Storm all took time off. Mrs. Incredible retired quite successfully. Cyclops quit; Professor X quit AND left the planet; Phoenix quit in the most spectacular way possible. Luke Cage was a “Hero for Hire”, it said so right on the cover; the current X-Factor also charge for their services. Ben Grimm, the Hulk, and various X-Men have tried to have their powers permanently removed (Ben Grimm and the Hulk more than once, sometimes successfully).

        The actual genre convention, I would counter, is that the plot device presents a challenge that can only be met by the hero stepping up to face it again. The archetypical application of this convention is the plotline of Superman II. Superman is willing to give it all up and live a normal life as Clark Kent, and actually goes through with it. He only repowers because of the necessity of dealing with Zod.
        There’s no way Batman retires to just be Bruce Wayne… in the animated series, this is literally a nightmare for him.

      • Ken Arromdee

        The genre convention is different for different superheroes. It doesn’t make sense but that’s how it works.

        Spiderman runs on “with great power comes great responsibility”–if he has the powers he has to use them to stop crime. The fact that this implies that Luke Cage is shirking his responsibility by being a hero for hire is completely ignored by Spiderman comics.

      • ChristopherA

        With regards to Luke Cage, I don’t think that is really ignored by the Spiderman comics. There is just a sliding scale of virtuousness, where doing good deeds for free is at the top, doing good deeds and getting paid for it is still fairly virtuous, and using your superpowers just to earn money as a professional wrestler is shirking your responsibilities.

  7. It would be interesting to combine I and II above. Let’s say you transform someone into a lion, and the lion is (justifiably) confused/angered/feels threatened by the change, then mauls some random bystander, are you liable? If the transformee was a violent drunk and attacked because they were already fighting, would you have any liability because the injuries sustained by being attacked by a lion are worse than the injuries suffered by being punched? And when you turn them back human, could you be guilty of animal cruelty against the animal they had been?

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