Castle: “Heroes and Villains”

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

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

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

I. The Limits of Self-Defense

The basic plot is that the cops are called to the scene of a murder where the victim has actually been cut in two by what appears to be a sword. The only witness reports that the victim was actually about to rape her when this guy showed up dressed as a superhero, cut off the victims hand, and then cleaved him from stem to stern. The cops are, understandably, less than pleased with this. Which is actually both somewhat curious and the right response.

Here’s the thing: the right to defend others is pretty much co-extensive with the right to defend one’s self. So if a passerby saw a woman about to be raped, he would be entirely justified in intervening and perpetrating what amounts to a pretty significant assault on the would-be rapist, if necessary to prevent the attack. In New York (and many other jurisdictions) even lethal force is permitted to prevent a forcible rape.  N.Y. Penal Law § 35.15(2)(b).  So why do the cops even care? The victim was caught in the act of committing a particularly heinous felony, and the killing was quite possibly justified. Even his mother didn’t seem all that bothered by the victim’s untimely and unusual demise, though she did say she figured he’d get shot rather than bisected.

But here’s the thing: as with self-defense, when one is coming to the defense of another, one can only proceed so far as the person being defended is still in danger. If the assailant is driven off or otherwise manifests what a reasonable person would perceive as a withdrawal from the situation, there is no license to pursue and continue one’s attack. So once the attacker’s hand is cut off, that’s probably as far as our self-appointed hero is allowed to go. A person who kills an attacker who has been driven off is exposing themselves to a charge of homicide, definitely voluntary manslaughter if not murder.

II. Villain as Superhero

Of course, there’s another wrinkle here. The “superhero” who kills the victim was actually an enemy of the victim who deliberately followed him with the intent to kill. He then dressed up as a superhero to frame the actual person running around in that costume, who had interfered with his business doings on several occasions. Not a bad plan, when you think about it.

Of course, the fact that the killer deliberately set out to kill wipes out any claims of self-defense, defense of others, or even mitigating circumstances. This wasn’t done in the heat of passion, it was a carefully set-up scenario intended to kill one person and frame another for the murder. That’s first degree murder in many jurisdictions, although in New York it’s probably still second degree.  First degree murder in New York requires one of several specific aggravating circumstances, none of which likely apply in this case.  Either way, he’s going away for a long time.

III. Cop as Superhero

Then there’s the question of whether it matters that the actual superhero is a cop by day. Here we start to run into questions about state actors, which we talked about last year. At first glance, it may seem like even though the hero is a cop, she’s just moonlighting, so there’s no real conflict of interest or state action. But the way the story is told, the cop uses information gained from her day job to go out and fight crime off the clock. Because she’s using state resources to which she has access because of her position as an officer of the law, that may be enough to push her into state actor territory. On the other hand, this was entirely without permission and against all department regulations, so the state may be able to argue that while she violated various people’s civil rights, the state as such didn’t have anything to do with it and thus shouldn’t be liable for her actions. Of course, if the department does not hang her out to dry for her actions, that starts to look like tacit approval, which would keep the department in the case. Because the officer winds up getting off with a slap on the wrist, it’s pretty likely that if anyone did decide to sue, they could have a good shot at including the city in the suit.

IV. Conclusion

This was actually a pretty interesting episode, legally speaking. So far the season’s looking pretty good. Can’t wait ’til Monday!

Relatedly, the graphic novel adaptation of Richard Castle’s Deadly Storm was published by Marvel last week.  Look for a review of it soon.