Today we take a step back in time both in comic book history and the law. While reading some classic Silver Age Superman comics, I found Superman #153, which contains a couple of great stories: “The Day Superman Broke the Law!” and “The Town of Supermen!” Today’s post is about the second of these; don’t worry, though, we have a post planned for the first one.
I. The Set-up
The DC Wiki article has a good synopsis of the plot of “The Town of Supermen!” but here’s the executive summary: A group of Kryptonian criminals escape the Phantom Zone and set up in the western ghost town of Deadwood Gulch, where they challenge Superman to a fight using Phantom Zone projector guns. Superman accepts the challenge and wins by melting their guns with his heat vision and sending the criminals back to the Phantom Zone.
You might be wondering, “well, that sounds like standard Silver Age silliness, but what’s the legal issue?” It turns out there are several, including some that involve old common law crimes with goofy names, which are always fun to talk about.
Note that the location of “Deadwood Gulch” is not specified in the story, so I refer to the law of various states in this post.
II. Dueling
One might guess, as I initially did, that the problem here is that Superman wasn’t acting in self-defense but rather voluntarily engaged in a duel. It’s true that he wasn’t acting in self-defense or defense of others (the Kryptonians hadn’t directly threatened anyone yet), but in the eyes of the law this wasn’t a duel, despite Superman calling it “a showdown duel”:
The word “duel” bears a fixed, definite signification, not only colloquially, but juridically. Webster’s Dictionary defines a “duel” as a “combat between two persons, fought with deadly weapons, by agreement.” This definition is, as stated, the common—in fact, we may truthfully say the universal—understanding of the word. It indeed, is its intrinsic signification, and as so defined has been invariably adopted and used in the law and followed by the courts.
People v. Morales, 77 Cal.App. 483, 487-88 (1926). Also see, e.g., Colo. Rev. Stats. § 18-13-104(2) (“Persons who by agreement engage in a fight with deadly weapons, whether in a public or private place, commit dueling, which is a class 4 felony.”).
In this case the parties used Phantom Zone projector guns, which certainly aren’t deadly weapons. In fact, they wouldn’t even necessarily qualify as firearms in many jurisdictions, which avoids a lot of “criminal use of a firearm” type offenses. See, e.g, Cal. Penal Code § 16520(a) (“As used in this part, “firearm” means any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.”).
As is often the case in the criminal law, the lack of one essential element of a crime doesn’t necessarily mean the act is legal. Instead, it’s just a different crime, usually a lesser one. In this case, the lack of deadly weapons turns it from a duel into an affray.
III. Affray
Affray is a very old common law offense, dating back to the late 15th century or so. In fact, it’s so old that it originated from a French word, effrayer, meaning “to affright,” back when court business was still conducted in French following the Norman Conquest. See State v. Huntly, 25 N.C. 418, 421 (1843). (Etymological side-note: the word “afraid” is the past-participle of affray and is essentially the only surviving remnant of the word in everyday English.) As Edward Coke defined it in 1669:
But albeit upon the single combate no death ensue nor blood drawn, yet the very combate for revenge is an affray, and a great breach of the kings peace, an affright and terrour to the kings subjects, and is to be punished by fine and imprisonment … An affray is a publique offence to the terrour of the kings subjects, and is an English word, and so called, because it affrighteth and maketh men afraid …
Despite these ancient origins, affray is still very much alive in many US jurisdictions. See, e.g, Hickman v. State, 193 Md.App. 238 (2010) (“we hold that common law affray continues to be a viable offense in the State of Maryland”); In re May, 357 N.C. 423 (2003); D.J. v. State, 651 So.2d 1255 (Fla. App. 1995).
As the court in May observed, “the essential elements of affray have proved remarkably durable, surviving through the ages without substantive change. … An affray is defined at common law as a fight between two or more persons in a public place so as to cause terror to the public.” In re May, 357 N.C. at 426.
That definition fits this case quite well. The fight was between Superman and eight Kryptonians, which is two or more people. It took place on the main street of Dry Gulch, which is certainly a public place. And the fight terrorized “the public,” namely Lois Lane, Perry White, and Jimmy Olsen, who made comments such as “I–I c-can’t look!”, “Jeepers! How can even Superman beat eight super-powerful foes to the draw?”, and “Poor Superman is doomed! *sob*”
So it looks like Superman may have broken the law by consenting to an affray rather than fleeing the scene, contacting the authorities, or waiting until self-defense or defense-of-others were available defenses.
IV. Conclusion
I suspect Jerry Siegel intended for the Phantom Zone projector guns to be both a way to dispose of the Kryptonian criminals at the end of the story and a way to make the fight non-lethal, fitting with Superman’s Silver Age morality. Unfortunately, it was still a crime, albeit probably a less serious one than actual dueling. This has implications far beyond this obscure story, however. Affray, dueling, and related offenses could apply to many pre-arranged, public fights between superheros and supervillains. That kind of open confrontation is much harder to legally justify than the standard self-defense, defense-of-others, and lawful arrest scenarios.
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