Category Archives: criminal law

Superman: Grounded Vol. 1

Superman: Grounded is a twelve-issue story written by J. Michael Straczynski which took up Superman # 700-712. Issues 700-706 have been released in hardcover, with 707-712 scheduled to be released next month. The basic premise of the story is that in the aftermath of the 100 Minute War, in which New Krypton is destroyed, Superman is feeling disconnected from the average American, and really just Earth in general. He gets… uncharacteristcally mopey and philosophical, and the series raises a number of the most interesting and pervasive philosophical and ethical issues with the concept of superheroes, though it fails to come up with anything like adequate answers for any of them.

This isn’t going to be a particularly long post, but there were a number of minor legal issues, most of which we’ve talked about previously, that come up in the course of the story. Continue reading

Psych: The Amazing Psych-Man & Tap Man, Issue #2

Psych is a great TV show, but we haven’t had a good chance to talk about it because the bad guys are regular crooks and the main character isn’t actually psychic.  But the plot of this week’s episode—like a recent episode of Castle—pushed things into our territory by introducing a “real-life superhero” into the mix.  Significant spoilers ahead!

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Holy Terror

Frank Miller’s latest work, Holy Terror (not to be confused with Batman: Holy Terror) is… problematic. We’ll leave aside the fact that it is self-described propaganda with perhaps the least nuanced view of Islamic terrorism on record. Other people have covered that.

And we’re not even talking about the things which the book knows are illegal, e.g. having the police commissioner assassinated or shooting down medevac choppers with heat-seeking missiles. Remember, where a story knows something is illegal and says so, we basically give it a pass.

No, what’s really problematic for our purposes here is the fact that we’ve got individual citizens engaging in not just vigilante justice, which is a problem for pretty much all comic books which involve superheroes, but vigilante geopolitics, which is actually kind of unusual. Sure, politics exist in other comics stories, e.g. the whole Genosha storyline, the possibility of war with Atlantis or the Inhumans (or both at once), the emergency of Wakanda on the world scene, and Reed Richards’s (inadvertent?) conquest of Latveria. But most of those involve superheroes dealing with supervillains or the unique problems caused by superpowers or the existence of beings like Mutants. What we don’t usually see, and indeed, what several stories have actually gone to fairly great lengths to avoid, is superheroes—or, at least, masked adventurers—from intervening on their own authority into mundane politics.

It’s worth mentioning that Captain America and Dr. Manhattan don’t count, as both of them were acting on behalf of sovereign governments in their respective stories. What we’re talking about here is a masked adventurer essentially inserting themselves into an otherwise mundane geopolitical situation and pursuing their own agenda. This is problematic for two reasons.

First, though it goes without saying that the nation against whom a superhero is fighting is likely to be kind of upset, so is the nation who purportedly benefits. In one of the one-off stories in Action Comics #900, Superman complains that he’s tired of his every action being construed as part of US foreign policy. But you know what? The State Department was probably just as pissed about that! Here they are, trying to present something like a coherent face to the world, a unified and consistent policy position, and Superman’s running all over the place doing Bob-only-knows what, only to have his actions, over which the US government has absolutely zero control, interpreted as representing the American take on a particular event. So when he goes and maybe violates Iran’s sovereignty, Tehran gets pissed at Washington, which can’t even promise that it won’t happen again.  One of the problems with having powerful people running around who aren’t accountable to voters is that the people who are accountable to voters are likely to wind up with the responsibility for it. This is bad for representative governments, as it makes it inestimably harder for them to respond to world events.

This is basically what Fixer and Natalie are doing here. They decide they’re going to save Empire City on their own, independent of the state forces which are responsible for that job. Sure, Miller makes it seem like only they can do it, because the government is some undesirable combination of corrupt and incompetent, but the proposed solution basically makes it impossible for an honest, competent government to exist, so even if we were to admit that ends can justify means, these ends don’t.

Second, having loose cannons with apparent sovereign authority is really, really bad for geopolitical stability. One of the biggest concerns in the Persian Gulf right now is that junior officers in Iran’s Revolutionary Guard Corps Navy, in command of small gunboats, might inadvertently—or deliberately—set off a conflict which could escalate out of control without general officers on either side having any say in the matter. In this story, Fixer winds up doing… something to a huge, Saudi-funded mosque in downtown Empire City. Not entirely clear what, but it’s probably biological and definitely No Fun At All. It’s not totally clear whether it’s actually an embassy, which would raise issues we’ve talked about earlier, but even if it isn’t, we’re still likely looking at the deaths of dozens if not hundreds of Saudis and just Muslims in general who were on site. Even if this isn’t an actual act of war, it’s still going to be a major diplomatic incident, involving countries with which the State Department doesn’t really need anything else going on at the moment. We’ve got two major military operations ongoing in the Middle East, both of which require significant cooperation from neighboring governments. If they decide to protest our actions by limiting access to their airspace, even temporarily, that’s just going to suck. But even if the wars were over, the fact that OPEC hasn’t declared an oil embargo recently doesn’t mean they couldn’t, and the last time that happened was pretty terrible all around.

So, in general, the existence of masked adventurers running around fighting crime on the domestic front is going to be hard enough for governments to deal with, and even superheroes taking care of superhero-related international crises is potentially manageable, but masked adventurers intervening in otherwise-mundane political events? Really, really problematic.

Of course, the main problems with Holy Terror is that it’s boring and hard to read. So consider this something less than a ringing endorsement.

Law and the Multiverse Holiday Special – Halloween Edition

Today is Halloween, so to mark the occasion we’re doing a post on Batman: The Long Halloween, a great series that was a major influence on the Christopher Nolan Batman films (or at least the first two).  Without giving too much away, the story concerns an enigmatic serial killer named Holiday, who kills on, well, holidays, beginning on Halloween.  That’s about all we’ll have to say about the story, since the legal issues presented in the series don’t revolve around the plot as such.  Nonetheless, there may be spoilers.

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Batman: No Man’s Land, Part 6

The main legal issues in No Man’s Land ended with the legal separation of Gotham from the United States—after all, if there’s no legal system there can’t be much in the way of legal issues.  But there are a few loose ends to address, including some that our readers asked about.

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Mailbag for October 27, 2011

Today we have another mailbag question.  Joe writes:

What if a hypothetical protester had powers that prevented the police from carrying out their duties? How would this legally break down, and to what degree could authorities enjoin or do anything to them?  [For example:] the Blob … decides to protest Wall Street. Literally no cop or a thousand cops will be moving him, if he decides to plop down in the middle of Wall Street. They can try to arrest or cite him, but being physically unable to remove him or execute the law, what legal recourse would they have?

[I]n-universe these folks could presumably be stopped by someone more powerful strolling along, but … What plausible legal end game could this be escalated to?

This is an interesting and timely question.  Just what are the limits of the legal sanction for someone who is only under arrest and has not yet been tried?  As we see it, there are a few different approaches the authorities could use.  We’ll assume that the Blob has done something to prompt a lawful arrest (e.g. obstructing traffic), since demonstrating peacefully is usually legal.

I. Resisting Arrest

One of the first things the authorities could try to do is tack on a charge of resisting arrest.  In New York (this is a Wall Street demonstration, after all), resisting arrest is defined by Penal Law § 205.30:

A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer … from effecting an authorized arrest of himself ….
Resisting arrest is a class A misdemeanor.

In New York there is an important distinction between undertaking an affirmative action with the intention of preventing an arrest and merely refusing to cooperate.  See People v. McDaniel, 593 N.Y.S.2d 154 (App. Term. 1992). “[T]here has been no citation to this court of any statute, rule or ordinance that requires a defendant to cooperate once that defendant is arrested and so long as the defendant does not affirmatively act to resist the arrest then there is no independently unlawful act that the defendant is committing.”  McDaniel, 593 N.Y.S.2d at 156-57.  So whether the Blob is guilty of resisting arrest depends a great deal on whether he uses his power before or after being arrested.  In the McDaniel case, for example, the defendant had chained herself to a door before being arrested, and the court held that to be insufficient evidence of intent to prevent arrest.

II. Non-lethal Force

The police could also try to use non-lethal force to obtain compliance (e.g. using Tasers and the like).  The courts have held that Tasers can be used to subdue suspects who are resisting arrest, at least when it is reasonable to do so.  See, e.g., Crowell v. Kirkpatrick, 400 Fed.Appx. 592 (2d. Cir. 2010); Hardy v. Plante, 2009 WL 249787 (N.D.N.Y. 2009).  Given the Blob’s resistance to injury, attempting to Tase him is unlikely to succeed, but it is also likely to be reasonable.  In fact, given the special circumstances, it’s not clear what the limit might be, so long as the police limited themselves to reasonable and non-lethal force.

III. Contempt

Another commonly used method to induce defendants to cooperate is contempt, and the Blob could be held in criminal contempt for his failure to appear in court.  In New York a person may be held in criminal contempt for “disorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority.”  N.Y. Jud. Law § 750(A)(1).  Although the Blob would be outside the court, the fact of his absence would occur in the court’s “immediate view and presence,” thus justifying the charge of contempt.  Waterhouse v. Celli, 336 N.Y.S.2d 960 (Sup. Ct. 1972).  Criminal contempt is also available in cases of disobeying or resisting a lawful mandate of the court, which could apply if the Blob refused to appear for a line-up.

So far we’ve just racked up additional charges.  Let’s move on to the big guns.

IV. Trial in absentia

The Sixth Amendment guarantees criminal defendants a right to be present in the court (via the Confrontation Clause), but this may be waived by disorderly conduct.  Illinois v. Allen, 397 U.S. 337 (1970).  The Blob’s refusal to appear could result in such a waiver, and he could be tried (and convicted) in his absence.

Interestingly, we’re not sure if he could be charged with anything new at this point, since the usual charge for avoiding going to prison (escape from custody) requires escaping.  Since the Blob remains motionless in this hypothetical, he can’t really be said to have escaped.

As a matter of speculation, a final option could be to build an ad hoc prison around the Blob, but that could be difficult depending on where he sat down (e.g. the middle of a major street).

V. Conclusion

There’s a lot that the police and courts could try when dealing with a particularly difficult suspect like the Blob, but there are limits.  Furthermore, it’s not obvious that they would actually want to go all the way to trying him in absentia.  Once he’s a convict, the government might suddenly find itself liable for his care and feeding, making it that much harder to ever dislodge him.

Dollhouse

Dollhouse was the 2009 Joss Whedon sci-fi (horror?) show starring and produced by Eliza Dushku. As with some other Whedon projects, it’s also a comic book series.  The basic premise is that a major pharmaceutical corporation has developed (but not perfected!) the technology to basically scoop out a person’s personality and memories and then write a new personality and set of memories in the brain. Repeatedly, and at will. This is at least as horrific as it sounds.

As it turns out, there isn’t a whole ton of legal analysis to be done here, as the show and its writers are entirely aware that what’s being done here is both morally repulsive and illegal (though they don’t go into specifics), and the main arc of the show is the efforts of a few characters to try to bring down the Dollhouse. But there is one really interesting issue that touches on something we talked about a few weeks ago with Castle, namely the definition of “death” used in the legal system. There aren’t really any spoilers inside, as we won’t be talking about many plot details beyond the basic premise, but you have been warned. Continue reading

Batman: No Man’s Land, Part 4

In this post we continue our coverage of the No Man’s Land story arc.  The subject today is a twist on the trope of cannibalism in a dire situation.

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Castle: “Heroes and Villains”

Last week’s episode of Castle featured a new twist for Rick and Kate: a real, live, caped crusader!

Or, well, someone dressed up as one, who goes around fighting crime. This is another instance of pop culture taking a more-or-less serious look at the real phenomenon (apparently with its own website) of people putting on costumes and patrolling the streets, basically looking for trouble in which they can get involved. We talked about the implications of real life superheroes when we reviewed Kick-Ass a while back.

It sounds like about as good an idea as it turns out to be. There really isn’t any way to talk about this one without some pretty major spoilers, so here goes. Continue reading

Batman: No Man’s Land, Part 2

This is our second post on the No Man’s Land story arc.  The subject this time is a little more serious than the first post in this series.

Following the earthquake and fire, Gotham City hospitals were quickly overwhelmed.  Unable to adequately care for many patients, there was talk of euthanizing the terminally ill.  In the end that plan was not put into effect because of a shortage of the necessary drugs.  We’re not too sure how much sense that makes, medically-speaking, but it raises a question: could doctors or nurses legally end a terminally ill patient’s life if it was clear that care could not be continued following a disaster?  In this case the comics were prescient, since that’s what happened in the aftermath of Hurricane Katrina.

In that case, one doctor was charged with murder but the grand jury did not return an indictment (there were, however, several civil suits filed).  Furthermore, the doctor maintained that she lacked the intent necessary for a charge of either murder or euthanasia.  This is true as far it goes, but there are lesser crimes that do not require an intentional killing, including involuntary manslaughter or even assault.

In any case, three laws were subsequently passed in Louisiana that give healthcare workers additional immunity during disasters.  First, healthcare workers are immune from suits for ordinary negligence (though not gross negligence or willful misconduct) in the provision of medical care during a disaster even if they are compensated for their work.  La. Rev. Stat. § 37:1731.1.  Second, healthcare workers are immune from suits for ordinary negligence and gross negligence during an evacuation following a “disaster medicine” protocol (i.e. evacuating the sickest patients last).  La. Rev. Stat. § 29:735.3.  Third, a “Disaster Medicine Review Panel” will review issues of medical judgment during a disaster, further protecting—although not immunizing—healthcare workers from both criminal and civil liability so long as “good faith clinical judgment” was exercised under the circumstances.  La. Rev. Stat. § 40:1299.39.3.

In the absence of such laws, however, there is little protection for doctors or nurses who euthanize patients in a disaster situation.  After all, necessity is generally not a defense to murder.  R. v. Dudley & Stephens, 14 QBD 273 DC (1884).  And no competent doctor or nurse could argue that they didn’t know that the patient’s death would be accelerated by the administration of the drugs, which makes it hard to avoid lesser included offenses.  The medical community has embraced the doctrine of double effect as an ethical rule that may permit euthanasia in these situations, but it is only an ethical rule, not a legal one.

We conclude, then, that it’s just as well that Gotham’s doctors did not attempt the proposed plan.  There is no statute of limitations on murder, and they may have found themselves at the mercy of a jury once Gotham was rebuilt.

(A side note: Oregon’s Death with Dignity Act would be of little help in a disaster, as the protocol that must be followed requires, among other things, a 15 day waiting period.)