Category Archives: Batman

Guest Post: The End of The Dark Knight Rises

Today we have a guest post from Mike Lee, who wrote an analysis of an issue from the end of The Dark Knight Rises.  Just describing the issue is a pretty big spoiler, so I’ll save the description for after the jump.

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Batman and the Unavailable Declarant

Today we have a post based on a question from David, who asks:

I just watched Batman: Year One on Netflix, and there was an interesting issue presented that I thought I’d share. Toward the end of the movie, the corrupt Detective Flass is under indictment for involvement in a big drug scheme. Commissioner Gordon (through Batman’s intimidation) gets one of the crooks involved in the scheme, Jefferson Skeevers, to agree to testify against Flass.

Upon hearing this, Flass tells Gordon something along the lines of “he won’t testify if I have something to say about it…” The scene cuts to Skeevers unconscious in a hospital bed. Assuming Skeevers has confessed in a police statement out of court, wouldn’t this still be admissible against Flass under the forfeiture exception to hearsay as long as the prosecutor can show Flass had something to do with Skeevers hospitalization?

The Batman: Year One movie David mentions is a faithful adaptation of the classic Frank Miller graphic novel of the same name, several elements of which were integrated into the Christopher Nolan Batman films.  The book or animated version are well worth checking out.  We even gave away five copies of the book to celebrate our own year one.

Anyway, back to David’s question.  Before we worry about whether any hearsay exceptions or exemptions apply we have to decide whether Skeevers’s statement would be hearsay in the first place.  We don’t know what rules of evidence apply in a local criminal case in Gotham, but we’ll use the Federal Rules of Evidence, since many state rules are based on or are very similar to the FRE.

I. Is It Hearsay?

Under FRE 801, hearsay is an out of court statement (i.e. an oral, written, or nonverbal assertion) offered to prove the truth of the matter asserted in the statement.  In this case, we’re supposing that Skeevers made an oral or written assertion that Flass was involved in the scheme, Skeevers did so out of court, and the prosecution would offer Skeevers’s statement in order to prove that Flass was, in fact, involved in the Scheme (i.e. as proof that what Skeevers said was actually true).  It doesn’t matter whether the prosecution did this by offering a recording, a signed statement, or the testimony of a police officer who interviewed Skeevers.  All of that would be hearsay.

You might think about the exemption for statements “made by the party’s coconspirator during and in furtherance of the conspiracy”, but although Skeevers and Flass may have been coconspirators at one time, these statements were not made during or in furtherance of the conspiracy.  Indeed, they were probably made as part of some kind of plea bargain or immunity deal.  Without any applicable exemptions, the statements are indeed hearsay, which is ordinarily inadmissible.

Normally this could be overcome by having Skeevers simply testify in person, which would give the jury a better opportunity to judge the truthfulness of his statements, and it would give the defense an opportunity to cross-examine him.  But Skeevers is lying unconscious in the hospital, apparently because Flass or someone acting at his behest put him there.  So now what?

Now we turn to the hearsay exceptions, of which there are several.  Some of them apply whether the declarant is unavailable or not and some of them only apply if the declarant is unavailable.  That said, it appears that only the latter will apply in this case.

II. FRE 803 and Recorded Recollections

You might think that if Skeevers had made a written statement for the police that his statement could be introduced as evidence under the recorded recollection exception of FRE 803(5).  After all, FRE 803 states that “The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness” (emphasis added).  And such a written statement would seem to fit the bill for 803(5):

A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
(C) accurately reflects the witness’s knowledge.

Skeevers clearly once knew about Flass’s involvement but also clearly cannot now recall it well enough to testify fully and accurately: he is unconscious.  The statement was made when the matter was fresh in his memory, before the incident that caused his injuries.  And we’ll assume that it is an accurate statement.

But despite the phrase “regardless of whether the declarant is available as a witness“, the courts have been uniform in holding that 803(5) only applies when there is a witness available to testify that they can’t recall the matter reflected in the record.  See, e.g., Steinberg v. Obstetrics-Gynecological & Infertility Group, P.C., 260 F.Supp.2d 492 (D.Conn. 2003) (the argument that 803(5) applies to an unavailable declarant “borders on frivolous”); Jacobson v. Deutsche Bank, A.G., 206 F.Supp.2d 590 (S.D.N.Y. 2002).

None of the other 803 exceptions are likely to apply in this case, so let’s move on to the heart of the matter: exceptions that apply only when the declarant is unavailable.

III. FRE 804 and the Unavailable Declarant

Declarants can be unavailable for a lot of reasons, one of which is when they “cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness”.  FRE 804(a)(4).  That definitely describes Skeevers.

Once a declarant is unavailable, there are some special exceptions that can apply to statement they made before they became unavailable.  Two might apply in this case.  David alluded to one of them (804(b)(6)) in the question:

The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: … A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

If the prosecution can prove that Flass caused (and that includes indirectly causing via an agent or conspirator) Skeevers’s injuries, then it’s pretty much a slam dunk to introduce Skeevers’s statements against Flass.  After all, we already have Flass indicating his intent: “he won’t testify if I have something to say about it…”

Another possibility is 804(b)(3), statements against interest:

A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it … had so great a tendency … to expose the declarant to civil or criminal liability

This exception might apply if Skeevers made the statement before he struck an immunity deal.  If he spilled the beans about his role in a criminal conspiracy in which Flass also played a part, confessing to multiple crimes in the process, then that would definitely be a statement against interest.  But if he signed an immunity deal first and then talked, then his statements wouldn’t actually be exposing him to criminal liability and so the exception wouldn’t apply.  If this did apply, however, it could be a useful backup in case the prosecution couldn’t prove Flass’s involvement in Skeevers’s unavailability.

IV. Conclusion

Apart from the issue of proof, this is a classic example of 804(b)(6), which is a rule that meshes very well with most people’s intuition about fairness—and gives criminals a disincentive to intimidate or kill witnesses.

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.

Batman: Dark Victory I: Violations and Remedies

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

I. Violations

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

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

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

II. Remedies

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

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

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

III. Immigration

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

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

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

IV. Conclusion

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

The Dark Knight Rises: Bankruptcy

Without going into too much detail above the fold (spoilers ahead!), a key plot point of The Dark Knight Rises concerns bankruptcy law.  Today we’re going to talk about a couple of aspects of that.

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The Dark Knight Rises III: Nuclear Shenanigans

Last week we mentioned that there are some… problems with the way the law is handled in The Dark Knight Rises. Specifically, the corporate angle doesn’t make any sense, and there are some real unresolved issues pertaining to Bane’s occupation of Gotham.

This time, we’re going to look at something mentioned by a few commenters, i.e., how the heck did Wayne Industries build a fusion reactor immediately below Gotham City?

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The Dark Knight Rises II: Now What?

Yesterday, we looked at some of the problems with the way The Dark Knight Rises handles corporate law. Today we’re looking at, not so much problems with the movie, as issues the movie raises that are going to be problems for somebody, almost right away. We’re going to be doing some speculation here, but it’s all in good fun.  Major spoilers ahead.

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The Dark Knight Rises I: Corporate Shenanigans

The latest and presumably last installment in Christopher Nolan’s epic Dark Knight Trilogy, beginning with Batman Begins, continuing through The Dark Knight and now culminating in The Dark Knight Rises, came out on Friday. The reviews are generally positive, but as always, we’re more interested in how the film handles the legal side of things.

Unfortunately… there are some problems.  Major spoilers follow.

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CBS Seattle

Yesterday, James and Ryan did an interview with a reporter from CBS. The conversation served as part of the basis for an article currently featured at CBS Seattle: Suit Up: Becoming Batman on a Budget.

Thanks to Peter Milo for getting in touch!

The Dark Knight: Embezzlement

On Friday we talked about legal ethics in The Dark Knight. Now we’re going to take a look at an issue with consequences beyond the movie’s version of Batman. Specifically: does being the CEO or majority shareholder of a corporation give you the right to use corporate assets for personal projects? In the movie, Bruce Wayne (majority shareholder) goes to Lucius Fox (CEO) whenever he needs another cool toy, and Coleman Reese’s discoveries suggest that he’s not just buying them from the company but is actually using corporate resources to develop and manufacture his stuff. Is this okay?

I. Wayne Enterprises in The Dark Knight

In the Christopher Nolan movies, Wayne Enterprises is portrayed as a publicly traded company. It’s got a board of directors. It’s got institutional and private shareholders. Bruce Wayne has a controlling interest and therefore gets to call a lot of the shots, but the corporation is not, in fact, his personal plaything.

Though you wouldn’t know it from the way he treats it. Turns out that Fox has probably committed what amounts to embezzlement, i.e., the fraudulent conversion of the property of another over which one had lawful possession. It’s also often a felony, particularly when it involves large amounts of money.

Here’s the deal. Fox, as the CEO of Wayne Enterprises, has lawful possession of all of Wayne Enterprises’ assets by dint of the fact that he has lawful control over those assets.  Note that possession is separate from ownership; Fox controls the assets but he does not own them.  Generally speaking, the CEO of any given company is just that: the chief executive officer.  He or she has complete and inherent authority to commit corporate assets to any lawful purpose for the benefit of the corporation, except as limited by the corporate charter. For example, if Lucius decides one day that Wayne Enterprises isn’t going to sell X-type widgets anymore, he can sell off or shut down that division of the company overnight, unless the Wayne Enterprises charter requires a more complex procedure, such as a vote by the board of directors.

But if he’s acting against the orders of the board or without the board’s permission, he exposes himself to a charge of embezzlement. CEOs of major corporations have disputes about business strategy with their respective boards of directors all the time, and while it frequently leads to people getting fired (either the CEO or the board, depending on who does better with the shareholders), it isn’t generally criminal. But using corporate assets for personal purposes is something else entirely. Coleman Reese discovers that the R&D department is “burning through cash” on a project purported to be “cell phones for the Army.” If such a contract had actually existed, Fox could commit the company to it. But it doesn’t. It’s a pretext for fitting out Bruce Wayne with a really cool if ethically and legally problematic surveillance system. Fox doesn’t have the authority to divert corporate assets for those sorts of personal projects. So he is fraudulently converting the property of the company over which he has lawful possession to his own use, namely, giving it to Wayne.

Why? Because the fact that Bruce Wayne is the majority shareholder doesn’t actually give him an ownership interest in any corporate assets in particular. He can’t walk up and say “Hey, I own half of the company, so I get to use the corporate jet half the time.” That’s not how that works. The business owns its assets, and an interest in the company does not transfer to an interest in the company’s assets as such. The distinction gets a bit blurrier in closely-held corporations, particularly when there is only one owner—as is frequently the case in small businesses—but the mingling of corporate and personal assets is a pretty big no-no in the area of corporate law, and one of the things that courts look to when they consider piercing the corporate veil. We actually talked about that here.

Wayne himself wouldn’t be guilty of embezzlement, as he never had lawful possession of the property, but he would be guilty of conspiracy to commit embezzlement—as would Fox—which is almost as bad. Conspiracy is distinct from the underlying crime, and one can be guilty of conspiracy even if one does not or could not commit the underlying crime. Even if Fox turned him down, Wayne would still be guilty of solicitation for even asking. Also, being in possession of the goods probably counts as receiving stolen property. This is just bad all around.

II. Billionaire industrialists generally

Note that things would be different if Bruce Wayne were using his own assets to fund his projects. Wayne is independently wealthy, and much of this income is presumably in the form of dividends on his Wayne Enterprises stock. This is money he can use for absolutely anything he wants (within the ordinary bounds of the law, of course). Compare this to the way Tony Stark is portrayed in Iron Man. Stark, too, is the CEO of a company he mostly owns, in this case Stark Industries. But Stark develops the Iron Man technology entirely on his own and doesn’t use corporate assets to develop or manufacture it. He has a lab and fabrication equipment in his mansion. He may then have Stark Industries use some of this technology for other purposes, e.g., developing the Arc reactor for commercial and industrial power generation, but as far as the movie goes, no corporate assets are devoted to his activities as Iron Man.

This is entirely okay, at least as far as corporate law is concerned. Stark is free to use his own fortune in any way he wants. So is Bruce Wayne. So in a sense, the way the comic books portray Batman is actually a bit more realistic than the way the movies do. In the comic books, Wayne has a situation far closer to Stark’s position in the movies, i.e., the billionaire industrialist who has a superhero alter ego but who mostly uses his own inventions, manufactured by himself, financed by his personal fortune. Ironically, in the comic books, Stark is generally portrayed as mixing his corporate and Iron Man activities in much the same way as Bruce Wayne does in the movies. Quite the reversal.

III. Alternatives

Still, Wayne is a very rich man. Why couldn’t Wayne simply buy anything he needed from Wayne Enterprises? Fox is certainly capable of authorizing such a transaction. Wayne could even enter into a contract with Wayne Enterprises wherein the latter could be paid by Wayne personally to develop and manufacture Batman gear for Wayne’s use. That would be okay. If done right it could even result in a profit for the company. The problem is that for such a setup to be legally okay, some bits would need to be public, or at least known to the board of directors and its accountants and auditors.  It would be very hard to keep something like that secret.

Similarly, why couldn’t Fox arrange things such that Wayne simply received his Batman gear as part of some kind of compensation package? Two reasons. For one thing, Wayne isn’t portrayed as an employee of the company in The Dark Knight. He’s a shareholder, but not an employee or officer. So there isn’t really any obvious way he could get any compensation apart from regular dividends. And setting up some kind of cushy straw position wouldn’t necessarily work either. The Batman gear is presumably ludicrously expensive. Receiving that as compensation would almost certainly make Wayne one of the most highly-compensated people in the company. Not only would the board of directors need to approve that, but it would probably need to be filed with the SEC. So the choice would either be completely blowing the secrecy angle or violating a lot of laws about corporate filings, executive compensation, and taxes. Again, no good.

And obfuscating things to try to disguise Wayne’s Batman activities is also no good, as it would involve falsifying all sorts of official corporate documents. Part of the Sarbanes-Oxley Act, a corporate reform law passed in 2002, imposes personal, individual responsibility for corporate filings upon both executives and directors, so as soon as anyone figures out that there’s funny business going on—and if there’s one thing about the movie that is accurate, it’s that a halfway-decent auditor will figure things out eventually—Fox and Wayne are going to be in huge trouble.

IV. Conclusion

So really, as far as corporate law goes, the version of Batman/Bruce Wayne depicted in The Dark Knight trilogy is actually quite problematic. Fox is likely guilty of embezzlement, and Wayne would be guilty of conspiracy and receiving stolen property. Further, the most obvious ways of “fixing” the problem are themselves problematic, mostly because they’d make Wayne’s identity as Batman that much closer to public knowledge. Tony Stark has a much better way of going about this: use one’s personal fortune, founded upon but distinct from the corporation, to finance his toys (though he also has the benefit of not worrying about a secret identity). Considering that this is generally how it’s depicted in the comic books, and that in those stories Batman frequently invents most of his own gear, the way things are written in The Dark Night trilogy is surprisingly bad, if unintentional, or puts Wayne in a very grey area, if it’s intentional.