Monthly Archives: December 2010

“Gadget” Superheroes and Federal Arms Control Laws

Posted on December 21, 2010 by | 40 comments

At least two major superheroes, Batman and Ironman, are the alter egos of  billionaire “industrialists,” Bruce Wayne and Tony Stark respectively. Both are the at least titular heads of their respective corporate empires, Wayne Enterprises and Stark Industries. Both are major defense contractors, i.e. arms merchants. Wayne Enterprises is generally described as a multi-industry conglomerate with significant revenues in a number of unrelated businesses, while Stark Industries is primarily in the arms business, but both appear to derive a significant portion of their revenues from selling weaponry of all sorts.

This raises two interesting issues. First, how exactly do these companies get the money for these sorts of secret projects? And second, do our various heroes break any laws when they leave the country or provide this equipment to others?

I. Arms Revenue

Weapons, particularly exotic and/or large and/or expensive ones, aren’t exactly for sale at Wal-Mart. Nor are they typically sold in much volume. Lockheed Martin Aeronautics, the division of Lockheed Martin responsible for the F-22 and F-35, sells somewhere in the neighborhood of a few hundred planes a year. Wal-Mart probably sells more items than that every second, even at 2:00AM.

That’s because Wal-Mart is selling to the consumer market, i.e. the hundreds of millions of customers their stores reach around the world. Lockheed Martin probably only has a handful of actual customers, because legal issues aside, only sovereign governments can afford to drop $150 million on a plane that seats one person, let alone a hundred of them.

In just about every comic book story, the conventional military does not seem to have access to the technologies used by Batman, Iron Man, etc., either explicitly or implicitly. I mean, there’s a reason the US government was pressing Tony Stark so hard in the beginning of Iron Man 2: the Pentagon wanted what Stark had, clearly implying that they did not, in fact, have it, i.e. Stark Industries wasn’t selling Iron Man technology to anyone. And they can’t be selling them to foreigners, because in addition to there being no indication of that in the stories it would be completely illegal without government authorization (see section II), and the federal government isn’t terribly likely to license the sale of weapons to foreign governments that it does not have itself.

Which raises the question: if the export of the really cool toys that our gadget-based superheroes like Batman and Ironman are using is restricted, how exactly is Stark Industries making any money? Wayne Enterprises is perhaps an easier case, as a company the size of Wal-Mart can probably misplace a billion dollars without too much difficulty, but a company that makes all of its money selling weapons has to sell weapons to someone. And if it isn’t to the government, the general public or to foreigners, where’s the budget come from?

The answer seems to be that these companies appear to be intended to replace existing defense companies, not exist in addition to them. It’s probably no mistake that the Stark Industries logo looks a lot like the Lockheed Martin logo. So Stark Industries presumably makes most of its money selling entirely mundane weapons to the government instead of, say, Lockheed Martin or Boeing. Wayne Enterprises makes a ton of money in its other business ventures, in addition to providing conventional arms to the government, so it is also probably intended to replace a number of other companies. This is a convenient and understandable substitution. Comic book authors probably don’t want to be bothered with the hassle of getting permission from actual companies to use their name and logos, and it’s doubtful that said companies would have given permission if asked. The replacement is made easier by the fact that most of the companies being replaced don’t have much in the way of public exposure.  For example, before it became linked to the Bush presidency, most people had probably never even heard of Halliburton, an $18 billion a year company.

Even then, defense contractors live and die on Defense Department funding, and wild conspiracy theories aside, it’d be pretty hard for one of them to secretly develop a weapons platform that the government didn’t directly fund and therefore know about. Black budgets may not be known to the public or to Congress, but someone at the Pentagon or CIA sure knows about them. But replacing an existing company with a fictional one permits us to attribute the profits of entirely mundane weaponry like jets, tanks, and firearms, all of which are significant profit centers for their respective manufacturers, to our fictional companies and their R&D departments.

II. The United States Munition List

But there actually are legal issues here. Specifically, the International Traffic in Arms Regulations (ITAR) 22 CFR parts 120-130, specifically the United States Munitions List, codified at 22 CFR part 121 (amendments). This is where the federal government lays out in great detail the restrictions placed on the export of weapons and related technologies. So, for example, it is illegal to export a gas turbine specifically designed for use in a ground vehicle. The regulation probably has in mind things like the M1 Abrams tank, but hey, isn’t the Batmobile (at least sometimes) powered by a gas turbine? And just about everything in one of Iron Man’s suits is going to find its way on the list somewhere, from the armor itself down to the micro-controllers in the servo motors: almost everything specifically designed for a military application, and even some things that aren’t, is on the export list. The ITAR even apply to civilian-developed software encryption, so they’d obviously apply to something as kick-ass as the arc reactor.

So what about S.H.I.E.L.D.? The general international law issues of S.H.I.E.L.D. will be the subject of a future post, but how does all this apply to what is sometimes portrayed as an organization under the control of the United Nations, clearly a “non-US person” under the terms of the USML? Again, if the Department of Defense doesn’t have access to S.H.I.E.L.D. gadgetry, it seems unlikely that State would authorize such a transaction. It gets better/worse. It is a violation under 22 CFR § 127.1(a)(1) to export any item on the USML without a license, and “export” is defined in 22 CFR § 120.17 as “Sending or taking a defense article out of the United States in any manner, except by mere travel outside of the United States by a person whose personal knowledge includes technical data.” So Iron Man’s little jaunt to Afghanistan in the first movie? That almost certainly constituted a violation of federal arms control laws. And even assuming that Bruce Wayne or Tony Stark invents their weaponry completely using their own funding and resources, the ITAR do not limit themselves to weapons developed with federal money: they apply to everything that fits into one of the categories on the USML.

Here we actually run into some difficulty trying to make the legal system in the real world sync up with the legal system in the comic book world. It is highly unlikely that the federal government would either 1) decide to scale back arms control laws when faced with gadget-based superheroes or 2) decide to give those superheroes a pass, especially if they wouldn’t share. So the question becomes: why doesn’t the US Attorney attempt to prosecute Tony Stark for this violation of federal law? More to the point, why is Congress messing around with hearings when they can simply send Stark to jail?

Well, probably because having Tony Stark do ten years (22 U.S.C. § 2778(c)) for arms control violations would be a pretty boring story.* And because fining Tony Stark the $1 million penalty there wouldn’t really make him think twice. Ultimately, this may just be one of those places where we have to pull out the mantra and remember that if we’re okay with a world where guys can shoot laser beams out of their eyes or turn into metal, we can probably handwave this too.

III. Conclusion

So really, we’re one for two. We can probably see how a company like Stark Industries or Wayne Enterprises could find the resources to develop weapons like the ones used by Batman and Iron Man, but actually using them, particularly in international contexts, seems to run up against a federal prerogative the government seems unlikely to abandon.

*Of course, this could be a great premise for Iron Man 3, where Stark is sent to prison, only to be released when the government realizes that it simply can’t get on without Robert Downey, Jr. Which is at least as plausible as some other things speculative fiction authors have tried to sell us.

40 Comments

Posted in administrative law, Batman, criminal law, international law, Iron Man, superheroes

The Takeaway

Posted on December 21, 2010 by | 5 comments

Co-author Ryan Davidson was featured on this morning’s edition of The Takeaway.

5 Comments

Posted in interviews and podcasts

Superhero Privacy Rights, Part One

Posted on December 20, 2010 by | 35 comments

In the real world comic book characters and their likenesses have been made into toys, video games, movies, television shows, lunchboxes, bed sheets, and innumerable other things.  All of these secondary uses are mediated through intellectual property rights, particularly copyright and trademark rights.  But if Superman were a real person, how might the situation be different?  Could just anyone slap his image or iconic S shield on a lunchbox?  What about uses that suggest that Superman endorses a product or service?  (“Try Metropolis Brewery Beer, the choice of the Man of Steel!”)  Or worse, what about revealing a superhero’s secret identity?

I. The Rights of Publicity and Privacy

Future posts will address copyright and trademark, but first we must address something that real people have that fictional characters do not: the rights of publicity and privacy. Unlike copyright and trademark, these rights are not  intellectual property rights per se but rather rights derived from common law torts. In the United States the rights of publicity and privacy are primarily matters of state law.  As you might imagine, much of the law is driven by the interplay between celebrities and the media, and the two states with the most well-developed case law are California and New York, although those are not the only states with right of publicity statutes.  Nineteen states have general right of publicity or privacy statutes (CA, FL, IL, IN, KY, MA, NB, NV, NY, OH, OK, PA, RI, TN, TX, UT, VA, WA, WI).  J. Thomas McCarthy, 1 Rights of Publicity & Privacy § 6:8 (2d ed.).  Arizona has a specialized statute that applies to active and former members of the US armed forces, which may be useful for the many superheroes that are or were part of the military.  Ariz. Rev. Stat. § 12-761.

The states that lack privacy or publicity statutes at least recognize the common law torts related to the right of privacy.  McCarthy § 6:2.  Usually this takes the form of Prosser’s four privacy torts of intrusion, disclosure, false light, and appropriation.  See William Prosser, Privacy, 48 Calif. L. Rev. 383 (1960).  This post will consider intrusion, and the others will be addressed in future posts.

For this series we will primarily consider the common law of privacy.  Only a minority of states have statutes, and they vary widely in their nature and scope.  Even the six states that modeled their statute after New York’s refer to it only loosely.  See, e.g., Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 747 (1980) (noting that “The statutory scheme of Massachusetts differs from that of New York.”).  Since fully addressing the patchwork of privacy laws around the country could fill a book (and has), the common law approach lets us speak in general terms.

II. Intrusion

Prosser described intrusion as “intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.” Prosser at 389.  This has been described as “the right to be left alone.”  Humphers v. First Interstate Bank, 298 Or. 706, 714 (1985) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 117, at 851 (5th ed 1984)).  For a more precise definition we can turn to the Restatement (Second) of Torts, which gives three elements: (1) an intentional intrusion, physical or otherwise, (2) upon the plaintiff’s solitude or seclusion or private affairs or concerns, (3) which would be highly offensive to a reasonable person.  See Mauri v. Smith, 324 Or. 476, 483 (1996) (applying the Restatement definition).  Note that “intrusion into solitude appears to be based on the manner in which a defendant obtains information, and not what a defendant later does with the information, which is covered by the public-disclosure-of-private-facts branch.” Fernandez-Wells v. Beauvais, 127 N.M. 487, 491 (Ct. App. N.M. 1999).

From a superhero’s point of view, the main issues here are intrusion into his or her secret identity and secret headquarters, if applicable.  The latter case is squarely within the scope of the tort (physical intrusion into a home or office is a classic example of the tort), so let’s focus on the issue of secret identity.  In particular, does a superhero’s secret identity fall under the scope of the second element?  And when we say “reasonable person” do we mean a reasonable regular person or a reasonable superhero, or does it matter?

The answer to the first question is probably yes.  Courts have held that the right to privacy includes psychological & emotional solitude and the intrusion can occur in a public place.  See, e.g., Phillips v. Smalley Maintenance Svcs, Inc., 435 So.2d 705, 711 (Ala. 1983) (holding “one’s emotional sanctum is certainly due the same expectations of privacy as one’s physical environment.” and “the ‘wrongful intrusion’ privacy violation can occur in a public place, when the matter intruded upon is of a sufficiently personal nature”).  As the definition states, the intrusion need not be directly physical and can include demands and threats.  Phillips, 435 So.2d at 711.

The answer to the second question is that the offensiveness of the intrusion is judged by the standard of an ordinary, reasonable person, not a superhero.  Prosser at 397.  Further, “the intrusion must be of such a character as would shock the ordinary person to the point of emotional distress.” Roe ex rel. Roe v. Heap, 2004-Ohio-2504, 2004 WL 1109849 (Ohio Ct. App. 10th Dist. Franklin County 2004).

Taking all of that together, I think we can see that the intrusion would have to be pretty severe.  Merely asking about or even forcifully demanding to know a superhero’s identity would probably not “shock the ordinary person to the point of emotional distress.”  However, things like ripping off a superhero’s mask or demanding the answer at gunpoint likely would qualify, even if the superhero was impervious to bullets (remember the ordinary person standard). One way to consider it is: would an ordinary, reasonable person feel coerced into giving up his or her secret identity?  Given the danger posed to a superhero and his or her family by exposure, such coercion would cause severe emotional distress.

Or consider the situation in The Dark Knight, where the Joker puts pressure on Batman to reveal his true identity by threatening not only Rachel Dawes, but random civilians. It is not hard to argue that a public figure of the sort that Batman had become in the film would reasonably feel coerced–Wayne would have revealed himself if Dent had not stepped in–by a threat like that one. So if anything, the unusual situation most superheros find themselves in, particularly those who are more-or-less explicitly dedicated to public service, the range of potential coercion adequate to ground such a tort would appear to be quite broad.

Even more, the scope of this tort is not limited to supervillains. A sub-plot of the movie involved a consultant threatening to go public with Batman’s real identity. While the Joker probably wouldn’t care all that much about being served with a civil lawsuit (Any volunteers for that job? No?), trying to blackmail someone like Bruce Wayne by threatening to go public is a spectacularly bad idea even aside from the “do-you-really-want-to-blackmail-Batman?” bit.

However, even if the assailant did not learn the secret identity or, if it were learned, did not disclose it, the elements of the tort would still be met because intrusion is distinct from disclosure.  And even if the acts occurred in public, they would still be tortious because intrusion is not limited to particular physical places.

III. Conclusion

The intrusion form of invasion of privacy likely protects superheroes from highly offensive intrusion into their secret identities and headquarters, but not from more casual inquiries.  Villains should think twice before demanding that Batman take off that mask.

35 Comments

Posted in intellectual property, torts

The New York Times

Posted on December 20, 2010 by | 6 comments

We have been featured in an article in The New York Times!  Look for it in tomorrow’s print edition.  A big thank you to all of our readers and the Times!

We’d also like to thank a few of the many sites that have featured us, including MetaFilter, Slashdot, Boing Boing, The Volokh Conspiracy, and Fark.  Another thank you to our readers for sharing this site around the web!  We look forward to bringing you more analysis and discussion of these critical legal issues, and we hope you have as much fun reading the posts as we do writing them.

6 Comments

Posted in interviews and podcasts

Supervillains and Insurance: Who’s Gonna Pay for That?

Posted on December 17, 2010 by | 33 comments

Breaking News! Superman is fighting an unidentified person in downtown Metropolis!

…again.

Didn’t this happen last week? And isn’t this all getting a bit expensive?

Most of the time when property is damaged, the property owner has insurance that will pay to restore their property to approximately the state it was in before the loss occurred. But when Doomsday goes on a rampage of destruction across at least three states or the Joker blows up half of downtown Gotham, insurer’s aren’t actually going to want to pay for that, and there is reason to believe that under the terms of standard insurance contracts, they wouldn’t have to. The reason has to do with the way insurance policies are written, which is a matter of contract as much at it is a matter of law.

So the focus of this post is not whether supervillains can get insurance, but whether standard insurance policies will pay for damage that they cause.

I. Insurance Policies and the DICE Method

First of all, insurance policies are only written for insurable risks. Generally speaking, an insurable risk is one where both the probability and magnitude of a particular kind of loss are measurable, where the occurrence of that loss is truly random, and where it is possible to transfer that risk to an insurer for an economically-feasible premium. A common example of an insurable risk is one’s house burning down. We know how often houses in a particular zip code burn down (this is what actuaries do for a living; some fun, huh?), we know what a particular house is worth, houses don’t burn down at any predictable frequency, and as it turns out, it’s possible to insure against the risk of fire for a premium which is both acceptable to the insured and profitable for the insurer. Flood is an example of an uninsurable risk. Floods do occur at random, and we know basically how often, but the magnitude of losses caused by flood are such that it is impossible to offer flood insurance at any price a homeowner can afford (more on this particular exposure later). Floods are considered “catastrophic” losses, because they cause both a high amount of damage to individual properties but also a high amount of damage to entire regions, making it impossible to adequately spread the cost to other property owners. The same is true of war, terrorism, civil unrest, revolution, etc., which is why all of those are considered uninsurable risks. Discharge of nuclear weapons, intentional or accidental, is also uninsurable. Uninsurable risks are generally excluded from insurance policies.*

When a loss occurs, the claims adjuster is going to walk through the DICE method: Declarations, Insuring agreement, Conditions, Exclusions. First, look to see if there is coverage for this kind of loss on the declarations page, i.e. coverage scheduled for this particular policy. Then, check the insuring agreement to see if the loss results from a covered peril. Then, check to see if there are any relevant conditions in the policy which are applicable. Finally, see if there are any relevant exclusions.

Take the Doomsday example again, and let’s assume that he has just leveled a private residence insured by ABC P&C by throwing Superman through it. ABC’s adjuster is first going to look at the declarations page for the insured’s homeowner’s policy. The house is insured for $100,000. So far so good. Then, he’s going to look at the insuring agreement to see if there is anything of interest there. This policy is a special perils form, which covers everything not specifically excluded, so again, so far so good. Then he’ll check conditions. The homeowner is current on his premium, gave timely notice of the claim, and is cooperating with the adjuster, so again, probably okay there.

But what’s this? Terrorism is excluded? And you didn’t buy the terrorism endorsement? Hmm. That’s going to be a problem.

It’s going to be pretty easy to argue that Doomsday is a terrorist, but even if he isn’t, it isn’t going to be difficult to fit this into either the war or civil unrest exclusions, both of which are part of every insurance policy. Any insurance defense attorney worth his salt would certainly make that argument, and it’s hard to see why it wouldn’t win. Heck, if Superman is a state actor, it might be excluded under the “civil authority” exclusion.

So sorry, Mr. Homeowner, your insurance policy isn’t going to pay for this.

II. Uninsurable Risks and Residual Pools

So what’s to be done? If we’re talking about a universe where superheros and supervillains exist and unstoppable monsters do level significant sections of town every other Tuesday, it seems probable that the legal system and/or insurance industry would take this into account. But because the magnitude of losses caused by superhero battles are so great, it seems likely that the states would have to resort to residual market mechanisms. This is how flood insurance is currently offered on a national level: the FEMA National Flood Insurance Program NFIP is pretty much the only way to buy flood insurance anymore. States have set up residual markets for both high risk drivers and properties with significant windstorm (Mississippi, South Carolina, Texas, etc.) and earthquake exposures (California) too. Basically, state legislatures have decided that even though certain kinds of risk are impossible to insure against on the open market, we want people to take those risks anyway, for a host of possible reasons. We want high-risk drivers to be insured both for their protection and for others, and denying someone permission to drive because they cannot buy mandatory insurance seems unjust. People really want to live in earthquake– and hurricane-prone areas, and those people vote, so we’re going to find some way of making that work, no matter how silly it is.

Residual markets can work in one of a number of ways. One is “assigned risk,” an approach frequently used to ensure that high risk drivers have access to at least the state minimum liability limits for personal auto insurance. Basically, every insurer that participates in the market is required to take their fair share of high risk drivers–for a high premium–as a cost of doing business in the state. They can then spread this cost to their other insureds, keeping the companies profitable. But it seems more likely that the states would create their own “Supervillain Pool” similar to the windstorm pools active in Gulf and coastal states. The way these work is that every insurance policy is charged a tax based on the premium which goes into the residual pool. The pool then reimburses property owners for damages caused by supervillain rampages, etc. Property owners would need to buy “Superhero/Supervillain Insurance” from the pool, and that premium would help too, but because this truly is an uninsurable risk, the pool will probably need to be supported by taxpayer revenue. The idea is that all but the biggest losses will be at least mostly absorbed by the pool but that the government will step in if things get really out of hand. The pool can theoretically up its rates in the years following a big loss to ensure that the government gets its money back, but this rarely happens.

Of course, while we’re modifying the law to account for superheros, it would probably also be the case that insurance companies would include some kind of “superhero/supernatural/paranormal” exclusion, shifting that exposure more directly to the residual pool, as has been done with flood, earthquake, and windstorm exposures.

III. Conclusion

A world with recognized and regular supervillain rampages would probably develop a way to insure against that sort of thing, but traditional property insurance would probably exclude such losses. States would need to create residual pools, much like the way they have for earthquake and hurricane losses.

*”Speculative risks,” i.e. risks where there is a possibility of gain and a possibility of loss–investments, basically–are also uninsurable, because the cost of insuring them would more than erase the potential gain from the transaction. These aren’t excluded by insurance policies because they wouldn’t have been covered anyway; insurers simply don’t write policies for those kinds of risks.

Commentary by James Daily:

I agree with my co-author that comic book worlds have likely developed a way to insure against attacks by supervillains and collateral damage from the response by superheroes.  However, even if the cost is evenly distributed among the risk pool, the question of net social cost remains.  In other words, are superpowers a net social good or a net social cost?  I think that, on balance, superpowers are either neutral or slightly positive.

Empirically, it seems that most versions of the DC and Marvel universes are broadly similar to our own in terms of the standard of living and technology level.  If superpowers were a net social cost we would expect one or both to be lower relative to the real world.  Indeed, if anything the technology level is sometimes higher in comic books, although advanced technology is often confined to superhero and supervillain labs.  Whatever the reason (superheroes fighting regular crime, inventions from Batman, Tony Stark, and Reed Richards), superpowers do not seem to be a net social cost.  This fact supports the civil rights claims of superpowered individuals.

33 Comments

Posted in contracts, insurance

Superpowers and the ADA

Posted on December 16, 2010 by | 25 comments

On this blog we have considered several ways in which superpowers, particularly innate superpowers, could be legally protected under the Constitution.  But there’s more to civil rights than the Constitution.  Congress and the state legislatures have also passed laws that go beyond the constitutional minimums.  One of the most important of these is the Americans with Disabilities Act.  Could the ADA be applied to superpowers?  As is so often the case, the answer is mixed.

I. The Scope of the ADA

The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” 42 USC 12102(1)(A).  Perhaps equally importantly, a disability can also simply consist of “being regarded as having such an impairment.” 42 USC 12102(1)(C).  In other words, even if you aren’t actually impaired, it’s sufficient that you are discriminated against in violation of the ADA because you are regarded as being so impaired. (More on this later).  Both of these definitions depend heavily on the meaning of phrases like ‘major life activity.’  Luckily, the statute goes on to define those terms as well in 42 USC 12102(2)(A-B):

“[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working….[A] major life activity also includes the operation of a major bodily function….”

Furthermore, all of these terms are intended to be construed broadly:

“The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter….An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability….An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active…The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures…” 42 USC 12102(4)(A,C-D) and (E)(i).

Armed with a sense of the scope of the ADA, let’s analyze whether it might apply to innate superpowers.

II. What Superpowers Qualify?

Right off the bat we can see that, in general, voluntarily controlled superpowers generally will not qualify as disabilities.  It’s pretty hard for, say, the ability to fly to substantially limit a major life activity if you can simply choose not to use it.  But not all superpowers are voluntary, and whether the power is continuous (like Rogue’s pre-Messiah Complex, involuntary power) or only poorly controlled (like Bruce Banner’s transformation into the Hulk) doesn’t matter because an episodic impairment still counts.

Rogue’s original, involuntary, lethal power probably qualifies because touching others seems like a major life activity.  Certainly it is a common part of communication and many jobs (e.g., handshakes, receiving money from customers and returning change).  Bruce Banner’s power definitely qualifies as it also frequently interferes with work and communication (“Hulk smash!”).  Scott Summers’s power may also qualify.  A slightly less serious example along the same lines is Moist from Dr. Horrible’s Sing-Along Blog.

Although Hank McCoy’s and Kurt Wagner’s physical appearances might not be considered outright disabilities, they may be discriminated against because they are perceived as being impaired, which fits 12102(C).

III. The Protections of the ADA

The ADA offers many legal protections to disabled individuals.  In general, discrimination on the basis of disability is prohibited in employment, provision of public services, and in public accommodations and services provided by private entities.  For the purposes of this blog post we will focus on employment discrimination.

The general rule is given by 42 USC 12112(a):

No [employer] shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

Straightforward and complete.  However, there are important defenses to charges of discrimination.  Most important are when discrimination is “job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation” and when a qualification standard includes “a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.”  42 USC 12113(a,b).  Reasonable accommodation is a broad term, but it’s basically anything that isn’t an undue hardship (“an action requiring significant difficulty or expense”).

Since there are defenses, the natural question is “what can employers get away with?”

IV. Reasonable Accommodation and Undue Hardship

Two examples of powers that can almost certainly be reasonably accommodated are Rogue’s power and Cyclops’s power.  For most jobs, Rogue could simply be allowed to wear gloves and other appropriate clothing.  There are very few jobs for which Rogue could not be reasonably accommodated.  Similarly, Cyclops could be allowed to wear his glasses or other appropriate headgear.  He probably couldn’t be reasonably accommodated as an actor in a commercial for eyedrops or the like, but that’s about it.

Other cases are less clear.  Bruce Banner would probably not be so well protected.  His power would definitely raise the issue of “a direct threat to the health or safety of other individuals in the workplace.”  Any work environment that involved close interaction with other employees, customers, or other sources of stress would pose a significant challenge if it could not be made into a telecommute position.  In many cases there simply may be no reasonable accommodation for someone who turns into a rampaging giant at the drop of a hat.

V. Conclusion

Although most superpowers are not impairments, many superpowered individuals (particularly mutants in the Marvel universe) face discrimination despite the fact that they are not actually impaired.  In addition, there are some superpowers that do impair their possessors.  As a result, the ADA would protect many superpowered individuals from discrimination in several important areas of life.

25 Comments

Posted in civil rights

Shapeshifting and Trial Testimony

Posted on December 15, 2010 by | 21 comments

A number of superheros and supervillains–Mystique, Amalgam, Everyman, etc.–have the ability to change shape into the appearance of other people. This is used variously for heroic purposes or nefarious deception, but what would the legal system need to do to account for the possibility of a shapeshifter impersonating a witness in a legal proceeding?

The implications are startling. A key witness could be replaced with a shapeshifter to introduce or conceal critical evidence at trial. Heck, one can imagine a supervillain making a decent living impersonating witnesses for a fee!

But surprisingly enough, this is something that the legal system is already pretty well equipped to deal with.

I. Verification

One can perhaps think of technical means that a court could impose to verify the identity of witnesses given the possibility of a changeling impersonating them. Certain superheros might even find some side work this way, and enterprising inventors could too. But even aside from the potential cost and inconvenience, this is not something the court system would probably impose.

Why? Because juries are already tasked with evaluating the credibility of witnesses. No special care is taken to make sure that witnesses aren’t lying, so why should special care be taken to ensure that they are who they appear to be? Indeed, witnesses must already identify themselves, and we trust juries to tell if a witness is lying about their identity.  Perjury is also already a crime–and impersonating another to give testimony under oath is certainly perjury. So if we already trust juries to weigh the credibility of testimony, including the witness’s claimed identity, it would seem that the problem of shapechangers is an issue of degree rather than kind.

II. Cross-examination

The reason that the legal system puts such faith in juries and takes so few preventive steps to prevent perjury is the system’s reliance on cross-examination.

Cross-examination is the part in a trial where a witness is questioned by the opposing attorney, a process which witnesses universally report is No Fun At All. The attorney is deliberately attempting to catch and exploit inconsistencies, however minor, in the witness’s testimony, and even an entirely truthful, honest witness can be made to appear pretty silly by a skilled trial lawyer. A good discussion of how this works and the ways in which a cross-examiner can accomplish his or her objectives can be found in the Ten Commandments of Cross-Examination.

The reliance placed upon cross-examination is so great that it underpins one of the most fundamental rights in criminal procedure: the right to be confront witnesses. If an attorney is not able to convince a jury through cross-examination that a witness is either lying or unreliable, that’s basically just too damn bad.

This is because testifying in court is different from having a discussion with friends over a few beers; there are stringent rules for what can be said and what cannot be said, and the attorney not doing the questioning has every interest in seeing that they are enforced. Remember how in all those law shows attorneys are always yelling “Objection!” That’s because they’re trying to draw the judge’s attention to what they believe (or would like the judge to believe) is a violation of the rules of evidence (although in the real world the reason for the objection also has to be given).

And again, even an honest witness can be tripped up by a skilled attorney. How much more a witness who does not actually have first-hand knowledge of the testimony being offered? Even a shapeshifting telepath is going to have a really hard time slipping one past an attorney who knows what he’s about. By the time a witness appears on the stand, particularly in a case of any significance, both attorneys pretty much know what their respective witnesses have to say. They will all have given extensive depositions, and the trial process is less a revelation of new evidence than it is a formal way of entering that evidence into the record. Any deviation from a deposition is likely to be noticed by the examining attorney and immediately pounced on. It will quickly become clear to the judge and the jury that something fishy is going on, and at that point the gig is up: either the doppelgänger will be revealed, or the damage to the case intended by the shapeshifter will be avoided.

At this point, other laws come in to play. Subornation of perjury is itself a crime, so a party or attorney that solicited the shapeshifter to replace a witness is in big trouble, and tampering with evidence in this way could well be a violation of discovery rules. Rule 37 permits a judge to impose a variety of sanctions on a party that does not cooperate with the discovery process, up to and including both contempt of court and ruling that the record treat the issue in question as conclusively established for the opposing party.  The attorney may also be sanctioned directly under Rule 11.

III. Conclusion

So here it would seem that the legal system is already pretty well set up to deal with the possibility of shapeshifters in court.

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Posted in civil procedure, criminal procedure, evidence

Healing Factors, Indestructability, and Murder: Factual Impossibility Gets A Workout

Posted on December 14, 2010 by | 29 comments

Wolverine is one of a number of comic book characters who is extremely difficult to kill. It has been theorized that it would take decapitation followed by immediate removal of his head from the vicinity of his body to effectively kill him. Similarly, though Superman has died, he can survive far, far more punishment than a standard Homo sapiens sapiens.

Which raises the question: if it is impossible for a given action to kill a potential target, does it constitute a crime? And if so, which crime?

I. Mens Rea

The question has to do with the way crimes are defined at law. Crimes are made up of elements, all of which must be present for the crime to have been committed and proven by the prosecution for a defendant to be found guilty. One of the elements of most crimes is an appropriate “mens rea,” i.e. an appropriately guilty mind.* The great American jurist Oliver Wendell Holmes, Jr. is said to have remarked, “Even a dog knows the difference between being tripped over and being kicked.” In short, the law recognizes a distinction between things which are done on purpose and things which are done by accident, and intentional acts are generally treated more seriously.

The Model Penal Code sets up five types of mens rea: purposeful, knowing, reckless, negligent, and strict liability. To be convicted of murder in a state which has adopted some version of the MPC (i.e. virtually any state), one must kill another either purposefully, knowingly, or recklessly. That is to say, one needs to have either 1) actively intended for the person to die, 2) known that a particular course of action was practically certain to lead to a person’s death and engaging in said course of action anyway, or 3) known that there was a substantial risk that a particular course of action will lead to a person’s death and engaging in said course of action anyway. Killing another negligently, i.e. engaging in a course of action which one should have known was likely to lead in the death of another, is only good enough for manslaughter, and killing someone completely innocently isn’t a crime at all. I mean, good luck convincing a jury of that one, but if you do, you walk.

So far we’re basically only talking first year Criminal Law. Where things get interesting is when the intended victim is someone like Wolverine or Superman. Say, for example, Pyro lights Wolverine on fire. Wolverine is going to be pissed, and it’s going to hurt like hell, but he’s going to be okay in a minute. (Superman might not even notice, depending on when and in what continuity said ignition occurs.) If Pyro had targeted a non-mutant (or most mutants other than Wolverine), said target is going to have a pretty unpleasant final few minutes. Pyro is clearly guilty of assault, as he deliberately inflicted harm on Wolverine (though Wolverine’s civil damages are going to be nominal), but not of murder, as Wolverine is still around. The question is whether he can be convicted of attempted murder.

Attempted murder requires that you act intending to kill someone but somehow fail to do it. Knowing or reckless activity will not suffice, because the legal system is only willing to punish inchoate offenses of the most serious sort. On first blush, it would seem that yes, Pyro would be guilty of attempted murder, as he tried to kill Wolverine and failed. But what if this isn’t Pyro’s first rodeo and he knows damn well that burning Wolverine is just going to make him mad? That Pyro can’t actually kill him, or, at least, that lighting him on fire isn’t going to do it? Now the picture gets a little murkier, as it would seem that the requisite mens rea is missing. Again, he’s still obviously guilty of assault, as he did intend to harm Wolverine, but it seems at least questionable as to whether doing something that you want to kill someone but that you know won’t work does not constitute the mental state necessary to ground attempted murder.

II. Factual impossibility with a twist

There is another question here: does the fact Pyro can’t kill Wolverine this way make a difference? In other words, does factual impossibility operate as a defense here? In general, factual impossibility is not a defense to any crime, but these aren’t normal facts.

Consider an analogy: A man is trying to kill his neighbor. So he sneaks into his neighbor’s home after midnight, fires three rounds into the bed, and leaves. It turns out that the neighbor was at his girlfriend’s house and the bed was empty. Clearly, we have no murder charge. But do we have an attempted murder charge? If the man fired the shots believing the neighbor to be in his bed, then the fact that he was not does not change the fact that the man took an action he believed was going to kill his neighbor. This constitutes an intentional attempt to kill another, which is all you need for an attempted murder charge. The intended victim being in actual danger is not, in fact, an element of attempted murder. So whether the neighbor survived because the man was a bad shot and only winged him, or because the neighbor was in a difference house entirely is irrelevant: the man’s guilty mind and actions are enough to convict him.

But if the man saw that his neighbor was gone but shot the bed out of frustration, wishing that he was there so that he would die, this is another matter entirely. Here, the most he can be convicted of is probably some combination of unlawful discharge of a weapon, destruction of property, and burglary. But because he knew that the man would not die, he lacks a guilty mind with respect to attempted murder.

So it would seem that if Pyro attacks Wolverine and is surprised that he survives, an attempted murder charge will stick: the fact that the attack couldn’t have killed him is irrelevant if Pyro believed that it would. But if Pyro attacks Wolverine, intending to kill him but knowing that the attack will not succeed, factual impossibility may actually serve to defeat a charge of attempted murder. Pyro certainly had the intent to kill, but did not commit an act which produced a substantial risk of death and knew this to be the case at the time.

This would seem to be in keeping with the classic case on the subject, State v. Mitchell, 71 S.W. 175 (Mo. 1904), which held “it is no defense that the defendant could not succeed in reaching his goal because of circumstances unknown to him.” The implication is that it would be a defense if the defendant knew he could not succeed. An excellent discussion of intent in criminal law can be found in People v. Joseph, 172 N.Y.S.2d 463 (County Ct. of N.Y., Kings County 1958) (with apologies to those without access to legal research tools; that case is not available freely online).

III. Serious bodily injury

But what about a slightly different case: what if the person truly only intended to hurt Wolverine, not kill him? And what if, knowing that Wolverine is one tough bastard, they used force which would have completely obliterated a normal person? Again, no attempted murder charge, but intent to inflict “serious bodily injury” (defined in federal law at 18 U.S.C. 1365(h)(3)) is something the law recognizes. If we were talking about a normal person, intent to inflict serious bodily injury is good enough to ground a murder charge if the victim does die, because recklessness, i.e. disregard for known risk, will work for murder. So if Pyro lights someone on fire and they die, it doesn’t matter whether or not he actually intended them to die, because he would have completely disregarded an obvious risk that they might. The legal system is pretty comfortable imputing intent to defendants who display extreme disregard for human life.

But intent to inflict “extreme physical pain” coupled with the knowledge that death will not result will not seem to ground an attempted murder charge, which is a specific intent offense. But even if the intent was only to inflict “extreme physical pain,” intent to do that coupled with the knowledge that it will not result in death will still turn the crime from simple assault, which is normally a misdemeanor, into aggravated assault, a felony. This would be true regardless of the intended victim: doing something which is going to cause a lot of pain is a serious crime. Wolverine being Wolverine does, however, mean that you can dish out a lot more pain and still only get stuck with an aggravated assault charge. Which kind of sucks for Wolverine, but hey, nobody said having a mutant healing factor was an unmitigated good. Most people I know would probably be willing to give up potential attempted murder charges against them in exchange for, you know, being invincible.

Superman is an interesting case here. Lighting him on fire may or may not even be possible, but assuming that it even works, it’s an open question as to whether or not he’ll notice. Probably depends on who’s writing the story in question. Attempted aggravated assault is, in fact, a crime, but that one’s going to be difficult to actually get to. If Pyro has run into Superman before–yay, crossovers!–then he knows that Superman isn’t going to die, so we’ve got no attempted murder charge. But he might not know whether Superman is going to feel it. If he knows, then we’ve probably just got a simple assault: Pyro was attempting to do something to Superman, and he did something, but he knew that it was futile. But if this was their first meeting, there doesn’t seem to be any room to argue that Pyro was only trying to burn him a bit, not kill him, Pyro having reason to believe that fire is really, really bad for people. Factual impossibility being no help to defendants not aware of the impossibility, it would seem that we have an attempted murder charge.

IV. Conclusion

Thus, whether an attempted murder charge will stick when the victim is basically indestructible essentially depends on whether the attacker knew beforehand that the target would survive. If they did know, then it’s going to be very difficult if not impossible to convict them of attempted murder. But if they didn’t, then an attempted murder charge should stick, because factual impossibility is no defense for the unwitting defendant.

*There are a few exceptions. Statutory rape, for example, does not require one to know that the person with whom one is having sex is underage. It is a “strict liability” offense, i.e. one for which the commission automatically brings liability, regardless of one’s state of mind. Speeding is similar: one need not have intended to speed to be guilty of doing so, even though one does need to be on notice as to what the speed limit actually is. But as intent is such a basic part of almost every ethical system, strict liability is reserved for offenses society deems to be either so serious as to be worth punishing at any cost, or so minor that the efficiency gain of disregarding intent is worth including some involuntary infractions.

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Posted in criminal law, superheroes, supervillains, X-Men

RICO and the Legion of Doom

Posted on December 13, 2010 by | 13 comments

Comic book supervillains, like real world criminals, often form groups and work together to advance their nefarious schemes.  The Legion of Doom, the Brotherhood of (Evil) Mutants, and the Evil League of Evil are examples of organized supervillain teams.  With organization comes a price, however.  Participating in these groups makes their members more vulnerable to criminal prosecution and civil claims under the federal Racketeer Influenced and Corrupt Organizations Act, or RICO (there are also similar state laws).  But before discussing RICO and its applicability to supervillain teams, let’s first consider why other theories of criminal liability may not be the best fit.

I. Aiding and Abetting

Aiding and abetting may be a route to prosecution of members of a supervillain organization that “aid, abet, counsel, command, induce or procure” the commission of a crime by another, presumably another member of the organization. 18 USC 2 (state laws are similar).  The problem is one of proof.  Unless someone (perhaps whichever villain was caught in the act) testifies as to the nature of the scheme or some physical evidence ties a given supervillain to the crime (e.g. a diabolical device with Lex Luthor’s fingerprints all over it) the prosecution may have difficulty proving that a particular member of the organization aided or abetted the commission of the crime.

II. Conspiracy

At first glance conspiracy seems a better fit, but like aiding and abetting it has problems in practice.  Under US federal law, conspiracy generally requires an agreement between two or more people to commit an illegal act as well as for at least one member of the conspiracy to “do any act to effect the object of the conspiracy.”  18 USC 371.  However, at common law conspiracy did not require an overt act, and some states and specific federal conspiracy statutes do not have that requirement; mere agreement is sufficient.  See, e.g, United States v. Shabani, 513 U.S. 10 (1994).  It may seem like conspiracy is a fairly easy charge to run afoul of, but that low bar is justified by a strong public policy against conspiracy, probably because agreement makes it more likely that the crime will actually be committed and because cooperation can make possible more heinous crimes than could be committed by a single person.

But although the bar is low, evidence of agreement is still necessary.  Ordinarily this can be accomplished through informants, sting operations, surveillance, and plea deals that encourage conspirators to testify against each other.  In the case of a supervillain organization, however, it may be difficult to arrange surveillance or a sting operation without a superhero’s assistance (e.g. The Invisible Woman’s invisibility or Superman’s X-ray vision), and that kind of close cooperation with the police raises other concerns.  Informants are a possibility, but it may be difficult to offer a supervillain something valuable enough to warrant betraying his or her organization.  And plea deals only work if a supervillain is willing to testify in exchange for something.  A well-run supervillain organization may be able to enforce a ‘no snitching’ policy.

Conspiracy is most useful if the entire organization agrees to cooperate on a particular criminal scheme, but that agreement may be difficult to prove if not all of the members actually participate directly in the scheme (remember the problems with relying on other members’ testimony).  If not all of the members participated in the conspiracy, or if their participation cannot be proven, then the organization can live on minus a few members, and in most comic books that means the roster will be filled out again within a couple of issues.  What’s needed is a way to take down the entire organization at once, particularly the leadership, even if direct involvement in a given criminal act cannot be proven.

III. RICO

The problems with conspiracy and aiding & abetting are problems in the real world, too, especially when dealing with organized crime.  For example, it can be very difficult to prove that a mob boss ordered a hit, especially if the members of the organization won’t testify.  This was the inspiration behind the RICO Act.

In a nutshell, RICO allows prosecutors to charge members of an organization  with racketeering if the organization has committed 2 crimes out of a list of 35 within 10 years (exhibited a ‘pattern of racketeering activity’).  The individual members charged with racketeering must also have done at least one of the following (this is a broad paraphrase of 18 USC 1962):

  • have invested income derived from racketeering activity in an organization engaged in or affecting interstate or foreign commerce
  • acquired or maintained an interest or control in such an organization through a pattern of racketeering activity
  • conducted or participated in the affairs of such an organization, directly or indirectly, through a pattern of racketeering activity
  • or conspired to do any of the first three

As you can see, conspiracy has raised its head here as well, and in this context it is very useful as it stretches the already broad reach of the statute.  Whichever way it is accomplished, racketeering is a serious charge carrying up to a 20 year prison term as well as the possibility of treble damages in an accompanying civil suit.  For example, a member of the X-Men who was kidnapped by the Brotherhood of Evil Mutants could file a civil RICO claim.

Many of the crimes covered by RICO are inapplicable to a typical supervillain group (they don’t usually engage in bankruptcy fraud, for example), but several are likely to apply, including murder, kidnapping, arson, robbery, bribery, terrorism, and (federal) theft.  For some of the underlying crimes (e.g. murder, kidnapping), it is sufficient for the crime to be threatened.  Supervillain organizations frequently engage in many of those crimes.

It should be noted that in practice RICO is sometimes used against what you might think of as ‘proper’ organized crime groups or gangs, but it’s also sometimes used against more nebulous, loosely affiliated groups.  In those cases it can sometimes be difficult for prosecutors to prove the existence of a criminal enterprise.  That’s definitely not the case with groups like the Brotherhood of Evil Mutants or the Evil League of Evil.  Not only are they a well-defined organization with a leadership structure and a headquarters, they’ve got ‘evil’ right in their names!  It’s a prosecutor’s dream.

IV. Conclusion

RICO is clearly a danger to any traditionally-organized supervillain team.  A few successful convictions for kidnapping or robbery by less capable members could lead to racketeering charges and civil suits against the entire membership.  Forward-thinking supervillains might consider adopting a cell organizational structure that is more resistant to legal tools like RICO (and to infiltration by meddling superheroes)–or at least changing the group’s name to something a little less suspicious.

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Posted in criminal law, supervillains

Superpowers and the Second Amendment

Posted on December 10, 2010 by | 52 comments

Although some superheroes and villains have powers that are harmless or at least not directly harmful to others (e.g., invulnerability, superintelligence), many have abilities that have no or only limited uses apart from harm (e.g., Cyclops’ optic blasts, Superman’s heat vision).  Although the government may be limited in its ability to discriminate on the basis of mutant status or innate superpowers, could the federal government or the states regulate superpowers as weapons without running afoul of the Second Amendment?  I think the answer is a very qualified yes.

(Before we begin, note that I’m limiting this to innate powers; it seems obvious that superhero gadgets could be regulated just like mundane weapons.)

The Supreme Court has relatively recently addressed the Second Amendment in two cases: DC v. Heller, 554 U.S. ___, 128 S.Ct. 2783 (2008) and McDonald v. City of Chicago, 561 U.S. ___ (2010).  The first case dealt with the District of Columbia’s ability to regulate firearms, and broadly speaking the second case applied the same limits to the states via the Fourteenth Amendment.  In particular, Heller held that the District of Columbia’s ban on the possession of usable handguns in the home violated the Second Amendment.  From those decisions we can get a sense of how a comic book universe court might address the issue of superpowers-as-arms.

I. The Scope of the Second Amendment

First, let us begin with the text of the Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  Here is how the Court defined the individual terms.

“The people” refers to the people individually, not collectively, and not only to the subset of the people that could be a part of the militia.  128 S.Ct. at 2791.  “Arms” refers broadly to “weapons of offence, or armour of defence” and “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another,” and it is not limited to weapons in existence in the 18th Century.  Id. at 2791-92. Interestingly, this suggests that defensive powers may also be protected by the Second Amendment, but for the sake of brevity I will limit the rest of this post to a discussion of offensive abilities.

“To keep and bear arms” means “to have weapons” and to “`wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.'” Id. at 2793 (quoting Muscarello v. United States, 524 U.S. 125 (1998) (J. Ginsburg dissenting)).  Taken together, the Second Amendment guarantees “the individual right to possess and carry weapons in case of confrontation,” but the right does not extend to any and all confrontations–there are limits. Id. at 2797-99.

The Court first addressed limitations established by past precedents: “the Second Amendment confers an individual right to keep and bear arms (though only arms that ‘have some reasonable relationship to the preservation or efficiency of a well regulated militia’).” Id. at 2814 (quoting United States v. Miller, 307 U.S. 174, 178 (1939).  Further, “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”  Id. at 2815-16.

Beyond that, there are lawful limits on concealed weapons as well as “prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”  Id. at 2816-17.  Perhaps most importantly for our purposes, there is a valid, historical limitation on “dangerous and unusual weapons.” Id. at 2817.

With the scope of the right established, let us now turn to whether the government could regulate superpowers under the Second Amendment.

II. Analysis

We may start with the presumption that a superpower may be possessed and  used for lawful purposes such as self-defense.  The question is whether a given power fits into any of the exceptions that limit the Second Amendment right.

A. Concealed Weapons

First, many superpowers could be considered ‘concealed weapons.’  Before the Human Torch shouts ‘flame on!’ and activates his power, he appears to be an ordinary person.  Could the government require a kind of Scarlet Letter to identify those with concealed superpowers?  I think the answer is a qualified yes.  I do not think the Constitution would tolerate requiring innately superpowered individuals to identify themselves continuously.  That would seem to violate the constitutional right to privacy and the limited right to anonymity.  Furthermore, simply keeping concealed weapons is allowed (e.g., a hidden gunsafe in a home).   The real objection is to concealed weapons borne on the person in public.

Thus I believe the calculus changes when a superhero sets out to bear his or her powers against others in public (e.g. goes out to fight crime).  Luckily, many superheroes already identify themselves with costumes or visible displays of power (e.g. Superman, the Human Torch).  Beyond that, most states offer concealed carry permits to the public, usually after a thorough background check and safety & marksmanship training.  It may well be that the Constitution requires that if a state will grant a concealed carry permit for a firearm then it must do the same for an otherwise lawful superpower.

B. “Typically Possessed by Law-Abiding Citizens for Lawful Purposes”

Whether this limitation encompasses a given superpower may depend on the number of superpowered individuals in a given universe and the balance of lawful superheroes to unlawful supervillains.  If superpowered individuals are relatively common, which seems to be the case in the Marvel Universe, for example, and superpowered individuals are generally law-abiding and use their powers for lawful purposes then superpowers would seem to be protected by the Second Amendment. If, on the other hand, superpowers are very unusual or if they are typically used unlawfully, then the government may be able to regulate such powers.

It seems to me that in most comic book universes powers are both relatively common and normally used for good, suggesting that they do not fall under this exception.  However, if certain kinds of powers are more commonly associated with law-breaking, then perhaps those powers in particular may be regulated, though in my experience powers of all kinds seem evenly distributed between heroes and villains.

C. “Dangerous and Unusual Weapons”

Here we come to the catch-all.  Superpowers are certainly unusual in an historical sense (not counting the Marvel 1602 continuity), and they are unusual in the sense that in most comic book universes superpowered individuals are a minority.  But perhaps it is the nature of the power that counts.  If a superpowered individual is approximately as powerful as a normal individual with a handgun (though perhaps one with unlimited ammunition), is that really so unusual?

Wherever the line is drawn, it seems clear that at least some superpowers would qualify as dangerous or unusual weapons (e.g., Cyclops’ optic blasts, Havok’s plasma blasts).  These are well beyond the power of weapons allowed even by permit, and their nature is unlike any weapon typically owned by individuals or even the police and military.

III. The Nature and Scope of Regulation

Given that some powers are likely to fall outside the protection of the Second Amendment, how could the government regulate them?  We’ve already discussed the issue of concealed powers, but what about powers that fall into the other two exceptions?

I believe the government would take a page from the way it regulates mundane firearms.  First, all possessors of potentially harmful powers could be subject to a background check if they did not have the powers from birth.  If they failed the background check, they could be forbidden to use the power (although use in self-defense might still be allowed by the Constitution).  A registration scheme would be likely (Note, this likely would not run afoul of the Constitution because it does not apply to all mutants or superpowered individuals, just those with potentially harmful powers).

Second, exceptional powers could be subject to a permitting system including more thorough background checks and training requirements.  Some powers could be expressly prohibited outside police or military use.

Third, superpowered individuals who committed crimes–with or without their powers–may be forbidden from using them or even required to have their powers deactivated, if possible.  Following the decision in United States v. Comstock it may even be permissible to indefinitely detain a superpowered criminal after their prison sentence was completed if it was not otherwise possible to prevent future criminal acts.

What about uncontrolled powers, for which merely forbidding the use isn’t enough?  I think this falls outside the scope of the Second Amendment and is closer to the law of involuntary commitment.  If a superpowered individual is a danger to himself or herself or others, then he or she could be required to undergo de-powering treatment or be incarcerated for their own protection and the protection of society.

IV. Conclusion

The Supreme Court’s current view of the Second Amendment, though politically contentious, would give superpowered individuals greater protection to keep and use their powers largely free from government regulation or interference, with some important limitations.

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Posted in constitutional law, superheroes, supervillains