Category Archives: constitutional law

Law and the Multiverse Mailbag X

In today’s mailbag we have questions about ‘Batman, Prosecuting Attorney’ and supervillain jury tampering.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

I. Batman, Prosecuting Attorney?

Christopher writes with two questions.  First: “I was watching the 60’s Batman episode ‘The Joke’s on Catwoman.’ … Batman captures the Joker, Catwoman, and her henchmen. Presumably he arrests them, as he seems to act as a law enforcement officer in this show. Then he acts as prosecutor at their trial (no doubt he is a member of the bar). Seems pretty strange, but is this actually allowed? I started wondering whether the sheriff in a Wild West town might do this if there were no one else around to prosecute the case.”

There are three main problems with this arrangement.  First off, it’s pretty unlikely that Batman is an admitted member of the bar because he would have to be admitted as Batman, not Bruce Wayne lest he give away his secret identity. While attending law school is not a necessary prerequisite of becoming an attorney in some states (actually, quite a few states didn’t require this in the 1960s), it is doubtful that Batman found the time to “read law,” i.e. work as an apprentice in a law firm for a few years before taking the bar exam.  While a frontier town might have employed a non-lawyer as a prosecutor out of necessity, the frontier era also preceded the relatively modern era of professionalization and standardization in legal education and licensing.  And the exigent circumstances of a frontier town hardly apply to Gotham City.

Further evidence that Batman wasn’t admitted is found in his questionable conduct of the trial (e.g. asking witnesses to testify regarding ultimate issues of guilt).  Of course, the defense attorney didn’t object, and some judges are happy to let such things slide if there’s no objection, so we won’t go into detail on that except to say that, were they found guilty, the defendants might have an ineffective assistance of counsel argument on appeal.  Normally such arguments are long shots, but this was pretty bad.

Second, Batman would be unable to serve as prosecutor because generally an attorney cannot be an advocate in the same case in which he or she is likely to be a necessary witness.  Since the defense could call Batman as a witness even if the prosecution did not, this is a problem.  ABA Model Rule 3.7, which has been adopted in almost every state, provides:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

(1) the testimony relates to an uncontested issue;

(3) disqualification of the lawyer would work substantial hardship on the client.

Presumably the defendants would contest the issues that Batman’s testimony relates to, so exception (1) is out.  And I have a hard time believing that the government couldn’t come up with a competent substitute prosecutor, so there goes exception (3).  The second exception, which deals with testifying about the value of legal services, is inapplicable here.

(For the pedants in the audience: the episode long predates the Model Rules and even the predecessor Model Code, but a rule against lawyer-witnesses was a part of the ABA Canons of Professional Ethics, which dates to 1908.  The result under the Canons would have been much the same.)

Third, Batman could have been disqualified because of his clear conflict of interest in the case.  There is a “broader consideration of whether on the facts of a particular case, the adversarial nature of the judicial process has resulted in such enmity toward the defendant on the part of the prosecutor that it will overbear his professional judgment in seeking fairly and impartially to see justice done.”  Powell v. Commonwealth, 267 Va. 107 (2004).  Batman’s long and acrimonious history with the Joker and Catwoman likely rises to that level.

Thus we can fairly safely conclude that Batman should not have acted as prosecutor, and in fact the defense attorney could have successfully challenged Batman’s appointment for cause.  That he didn’t shouldn’t be too surprising, however, since he knew the case was a lock because he tampered with the jury, which brings us to the second question.

II. Supervillain Jury Tampering

Christopher also asks “At the end of the trial, it is absolutely obvious to the judge and everyone else that the defendants have been proven guilty, but the jury returns a verdict of not guilty, leading everyone to suspect the jury has somehow been tampered with. The judge can’t do anything but make a statement upbraiding the jury for their outrageous behavior. What would actually be done at this point? Later, it is discovered that the defendants managed to infiltrate the jury with accomplices. What would the law do at that point?”

Here the law is pretty clear.  “A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal.”  United States v. Scott, 437 U.S. 82, 91 (1978).  This is a core part of the prohibition against double jeopardy, and it is an absolute bar, even if the jury was clearly acting contrary to the law and the facts.

So what’s to be done in a case like this?  The answer is that the State (as represented by Batman) had a full opportunity to challenge potential members of the jury during voir dire (i.e. jury selection).  The prosecution could even have moved for a mistrial when the jury refused to retire for deliberation; that should have been a sure sign something was up.  But if the State falls down on its job and a guilty defendant goes free, them’s the breaks.  The Constitution does not allow the State to try again until it gets it right.

All is not lost, however.  The jurors are probably guilty of perjury or the like, since during voir dire they were almost certainly asked if they knew any of the defendants.  So the jurors at least could be punished for their part in the scheme.

As for the defendants, as is so often the case their own foolishness lead to their downfall.  After Batman tried to move for a new trial they started a courtroom brawl and were recaptured, so they would at least face charges of assault and probably conspiracy to commit murder (the jury foreman pulled a gun on Batman at Catwoman’s order).  But if they had stayed quiet they would’ve gotten away it.  Maybe they should have gotten a better attorney than “Lucky” Pierre.

Note that this is not the case in civil trials. The right against double jeopardy only applies in the criminal context; judges routinely order new trials in civil matters when there has been some uncorrectable foul-up. They don’t like doing it, because it’s viewed as a waste of time and resources by just about everyone, but they will do it if necessary. In addition, judges are not so strictly bound to jury verdicts in civil cases and are entirely capable of entering judgment notwithstanding the verdict, known as a “JNOV” if the jury refuses to return a verdict consistent with the evidence. So just because the Joker could have objected to the above trial doesn’t mean he couldn’t be sued on civil charges, and as new trials are possible in civil cases, jury tampering isn’t nearly as effective a device as it is in criminal cases.

Bonus: One of the charges against the defendants was “mayhem.”  Mayhem is a felony descended from the common law, and a typical modern definition is “unlawfully and maliciously depriving a human being of a member of his body, or disabling, disfiguring, or rendering it useless, or cutting or disabling the tongue, or putting out an eye, or slitting the nose, ear, or lip.”  Cal. Pen. Code § 203.  A bit gruesome for an Adam West Batman villain!

That’s all for today!  Keep your questions and ideas coming in!

Superheroes and Contempt

A few dozen issues into Iron Man’s original Tales of Suspense run, Senator Harrington Byrd (presumably R-NY, weird as that now sounds) made Tony Stark’s life a living hell. Byrd didn’t approve of Stark’s “playboy” lifestyle and was uncomfortable having so many defense contracts going to Stark Industries. His main threat to get what he wanted out of Stark was threatening him with contempt of Congress.

This, as it turns out, is a real thing, associated with Congress’s ability to compel people to appear before congressional committees and subcommittees to answer questions and provide documentation. The Supreme Court first recognized this as an inherent power of Congress in 1821 with Anderson v. Dunn, 19 U.S. 204 (1821). The common law form was replaced by statute in the middle of the nineteenth century, and the current statute is 2 U.S.C. § 192, which provides that a person who refuses to cooperate can be fined up to $1,000 and spend up to a year in jail.

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Non-Human Intelligences III: Categories

Now, at last, we get to the good stuff. We’ve laid the foundation and talked about existing law, now it’s time to talk about specific types of non-human intelligences and how the law might treat them.

From the main comic book stories, we can identify three main types of non-human intelligences. The first are individuals from animal species who become intelligent for one reason or another. Gorilla Grodd would be a good example here, but there are also Gorr and the New Men. Then there are genuinely alien intelligences, like the Skrull and Shi’ar, i.e. species we’ve never encountered before. Finally, there are machine and non-biological intelligences like Bastion or one incarnation of The Thinker. Unsurprisingly, the law is likely to treat these categories differently.

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Non-Human Intelligences II: Existing Law

Last week we started the conversation about non-human intelligences, mostly by examining the historical reasons why humans have been treated differently by the legal system for pretty much as long as it’s existed. We also looked at some of the philosophical problems involved in coming up with some kind of bright-line rule for deciding what gets counted as a person and what doesn’t.

This time we’re going to look at some of the law that would probably get a workout if a non-human ever sued for the violation of its alleged civil rights (or someone brought suit on its behalf).

Before we start, we’ll again set the parameters of the problem we’re examining. A fictional legislature could, in its wisdom, simply pass a law granting various rights to, e.g, Kryptonians, at least as far as the Constitution would allow. Or a constitutional amendment could be ratified that says Kryptonians count as people for all legal purposes. Thing is, it’s all well and good to pass a law giving a certain species (e.g. Kryptonians) status as persons, but what if the legislature or the constitutional convention wanted to draft a more all-encompassing rule so they wouldn’t have to do it every time we ran across a new intelligent species? Then we’re back to square one. So that’s not the issue here. The issue here is whether there is a judicially workable way to include non-human intelligences in our concept of a person without invoking the political branches, i.e. the executive and the legislature.

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Non-Human Intelligences I: Introduction

One of the most common questions we get is how the law would treat a genuinely non-human intelligence. Such characters appear with regularity in most of the major comics universes. The DC universe has Superman and various other Kryptonians as well as Gorilla Grodd, etc. Marvel has described entire galactic empires, including the Shi’ar and Skrull. Both universes include intelligent machines of various kinds.

This is a big subject, and as there is currently no law on the books which would directly answer this question, finding an answer is going to involve at least as much philosophy and history as it will law. But it is an important question, so we will consider it here.

This is likely to be the first in a series of posts. Most of the consideration of actual examples will be in later posts; this one attempts to set the stage for such questions by examining the reasons for and history of human beings’ rather unique status in the legal system.

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Costumes and the Confrontation Clause

One question that we get frequently here on Law and the Multiverse is whether superheroes that wear identity-concealing costumes could wear them in court.  A closely related question is whether a superhero could testify under his or her alias and refuse to answer questions about his or her secret identity.  In the US, these are important issues because of the Confrontation Clause, which is where our analysis will focus. We briefly discussed this issue as part of the alter ego post from Dec. 2010; this is a fuller treatment of the specific question of the legal issues related to testifying while disguised.

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Supers and the Eighth Amendment

The Eighth Amendment to the United States Constitution reads as follows:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The last phrase, “cruel and unusual punishment,” has a long jurisprudence extending back even before ratification of the Constitution. The phrase appears in the English Bill of Rights which was a key legal step in effecting the Glorious Revolution, and the Eighth Amendment in particular has been a major cause of the gradual reduction in the physical severity of judicial punishments in American history. Today, no state inflicts direct corporal punishment other than capital punishment, whereas as recently as the twentieth century, states were sentencing convicts to hard labor.

All of this may be interesting in its own right, but we’re only talking about it because we want to know whether it would be “cruel and unusual” to, say, sentence an immortal being like Apocalypse to life without the possibility of parole (LWOP).

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Superpowers and the Second Amendment

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.

Federalism and the Keene Act

The Keene Act is a federal law in the Watchmen universe that prohibits “costumed adventuring.”  But it would it actually pass Constitutional muster?

The United States Congress does not have what is called a general police power; its powers are specified in the Constitution and anything not so specified is reserved to the states and the people by the 10th Amendment.  So for the Keene Act to be constitutional, there must be some justification for it in the Constitution.  Let’s take a look at the options.

First, let’s dispose of some powers that definitely don’t fit.  The spending power can be used to force states to pass laws that the federal government couldn’t pass itself by threatening to withhold federal funding.  South Dakota v. Dole, 483 U.S. 203 (1987).  The spending power is general enough that it could address this issue, but the Keene Act seems to be a self-contained piece of federal legislation, not a coercive act designed to prompt action by the states.  So while Congress could use the spending power to require the passage of state-level costumed adventuring bans (by, e.g., threatening to withhold law enforcement funding), that doesn’t seem to be the approach used in the Watchmen universe.

One route to making something a federal crime is to limit it to cases involving federal land, property, employees, etc, but the Keene Act seems too general for that.  No, we must go big, and that means the Commerce Clause.

The Commerce Clause is the mainstay of modern congressional authority.  Although it does have some limits (see, e.g., United States v. Morrison, 529 US 598 (2000)) the scope of the Commerce Clause has expanded greatly over the past century.  I think it could form the basis of the Keene Act.

The Commerce Clause is limited to interstate commerce, but there is an interstate market for crime prevention and investigation services (e.g., private security firms, private investigators, bounty hunters).  Firms and individuals involved in this market routinely work across state lines.  The Keene Act could be based on requiring, for example, that anyone working in such a market do so under their real identities.  The legitimate government interest would be the safety of consumers of such services; it is valuable for consumers of such services to know who they are dealing with.  Thus the Keene Act could satisfy rational basis review under the Commerce Clause.

It should be noted that the fact that costumed adventurers actually provide their service for free and often without contracting with clients is of no account, as is the fact that they may work only within one state.  The Commerce Clause extends to non-commercial transactions and even intra-state activities as long as doing so is necessary to make the interstate regulation effective.  Gonzales v. Raich, 545 U.S. 1 (2005).  If the local or non-commercial activity affects the interstate market, the Commerce Clause can reach it.  545 U.S. at 19.  The existence of costumed adventurers no doubt affected the market for regular security firms, private investigators, and bounty hunters.  If the aggregate impact on the market was substantial or significant, then that is enough.  Id. at 19-20.

This may seem like an extreme take on the Commerce Clause, but let us recall that this is the same universe in which Richard Nixon essentially became President-for-Life.  The federal government of the Watchmen universe is likely to be very powerful indeed, and that means a broad Commerce Clause.

[Credit: This post was inspired by this comment by Will Frank.]