Category Archives: superheroes

Mayor Jameson’s Eminent Domain Problem

Posted on May 2, 2012 by | 30 comments

We’ve picked on Spider-Man a bit recently, so in interests of fairness we’re going to pick on J. Jonah Jameson, who is currently the mayor of New York in the Marvel Universe.  Recently, Jameson has focused his ire on Horizon Labs, a research and development company that happens to employ Peter Parker in his capacity as a scientist.

The particular issue in today’s post comes from a question from Christopher, who writes:

[In Amazing Spider-Man #682] Parker and other Horizon Labs employees witness a confrontation between HL owner Max Modell and Mayor Jameson in which the Mayor says “As Mayor of this city, I am ordering all of you to vacate these premises immediately!” He has arrived to bully HL into shutting down and gives various reasons [, listed below]. Later in issue 683 he comes back with “Chief Pratchett” presumably some ranking officer in the NYPD and shuts off the company’s power supply: “You’re not getting a single amp out of Con Ed!” He then orders “Chief Pratchett, have your men clear the building, after that, no one gets in or out, understood?” Chief Pratchett accedes to the request but we cut away from the confrontation and don’t return this issue.

This is obviously an ongoing storyline which will play out over another 4/5 issues but surely Jameson is overstepping his authority to clear out a private building without any kind of court order. And isn’t Pratchett wrong to comply?

At various points in #682 and #683 Jameson gives some reasons for wanting Horizon Labs shut down, including:

1. “This man has access to spider-jammers that could control Spider-man! Yet he refuses to turn them over to the city!” (see Spider-Island 667-673)
2. “One of your people built a time machine that did destroy the city.” (678-679)
3. “And now I hear you have a monster holed up here?!” (679.1 The “monster” is Dr. Morbius)
4. “Two days ago, you almost got my son killed.” (680-681)

So, is any of this sufficient to justify cutting power and ordering the police to clear the building?

As Horizon’s lawyer, who was present for the first confrontation with Jameson, argues, probably not.  The spider-jammers have been destroyed, the EPA cleared Horizon regarding the alternate universe incident (who knew that the EPA had jurisdiction over time travel and alternate futures?), and Dr. Morbius isn’t a monster but rather suffers from a poorly-understood medical condition.  Jameson isn’t satisfied and vows to return, which leads to the second confrontation (the one with the power-cutting and the police).

But suppose Jameson’s allegations were correct.  Could the mayor really do that?  And if not, what is the potential liability for Pratchett and the other police officers?

I. Eminent Domain

The most likely source of Jameson’s power to order Horizon shut down is eminent domain, which allows the taking of private property for public use in exchange for just compensation.  New York has a statute, the New York Eminent Domain Procedure Law, that is just what it sounds like.  It sets out “the exclusive procedure by which property shall be acquired by exercise of the power of eminent domain in New York state.”  N.Y. Eminent Domain Proc. Law § 101.  Unfortunately for Jameson, it doesn’t look like he has complied with the procedures.

A. Public Hearing

Ordinarily the eminent domain process begins with a public hearing.  § 201.  However, there are some exemptions, one of which is when “because of an emergency situation the public interest will be endangered by any delay caused by the public hearing requirement in this article.” § 206(D).  I suppose it’s arguable that Horizon presents such an extreme danger to the city that a public hearing can be avoided.

However, Horizon labs could file suit to challenge the City’s determination that it is exempt under § 206(D).  “Where, however, a condemnor proceeds under one of the exemptions provided in EDPL 206, and therefore claims that it is not required to comply with the foregoing notice, hearing, and determination requirements, a condemnee may, unless otherwise provided by statute, challenge the applicability of the claimed exemption in the Supreme Court … .” Steel Los III, LP v. Power Authority of N.Y., 33 A.D.3d 990, 990-91 (2006).  The reviewing court would almost certainly issue a temporary restraining order or preliminary injunction preventing the City from shutting down Horizon until it had reviewed the case.  Given that Horizon appears to be represented by competent legal counsel, I think it’s likely Horizon would go to court once Jameson threatened to take the building.

B. Negotiations

The eminent domain law also requires the condemnor (i.e. the City) to “make every reasonable and expeditious effort to justly compensate persons for such real property by negotiation and agreement” “at all stages prior to or subsequent to an acquisition by eminent domain.” § 301.  This includes making at least one written offer representing the just compensation for the property.  § 303.

In this case, we don’t see any discussion of compensation, much less negotiation or a written offer.  Instead, Jameson seems to think he can simply take the building outright.  There is a lot more to eminent domain, but I think that’s enough to establish that Jameson wasn’t doing it right.

II. Consequences

Assuming the City can’t legally take the building through eminent domain, what are the possible consequences for cutting power and forcibly evacuating the building?  The most likely result is a § 1983 suit alleging a violation of Horizon’s constitutional rights, specifically their rights under the Fourth Amendment.  If successful, this could result in an award of actual damages, punitive damages, and attorney’s fees.  Given the expensive equipment and experiments that may have been lost or damaged by the sudden loss of power, that could be a pretty significant bill for the city.

Importantly, the City and officers could claim qualified immunity under § 1983.  “The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  Pearson v. Callahan, 555 U.S. 223, 231 (2009).  “The protection of qualified immunity applies regardless of whether the government official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.”  Id.

So, for example, if the officers were told that the City had a court order to shut down Horizon, then the officers might not be liable because they were operating under a mistake of fact.  Jameson, however, clearly knew what was up, and I think it would be hard for him to claim qualified immunity, at least if he thought he was exercising the power of eminent domain, since a reasonable person would have known about the proper procedure for doing so.

III. Conclusion

There are other possible ways that the City could try to shut down Horizon (e.g. alleging violations of the law and arresting everyone or suing the company), but the way it’s depicted in the comics really suggests eminent domain to me.  I think it’s reasonable to assume that if the City had a good claim to criminal or illegal activity then it would have simply called in the cops or sent in the lawyers.  Jameson’s approach is so vague that eminent domain is the only thing that I can think of that fits the bill.  Alas, his failure to follow proper procedures is likely to get him (and the City) sued.

30 Comments

Posted in civil rights, constitutional law, mailbag, property law, Spider-Man

The Day Superman Broke the Law?

Posted on April 25, 2012 by | 10 comments

(Note from May 8, 2020: Subculture for the Cultured is no longer online, so the links in this post have been changed to use the Internet Archive Wayback Machine.)

Fantom Comics has just launched a new site for comics commentary and criticism called Subculture for the Cultured, and we’re proud to announce that we will be contributing a monthly column alongside Ecocomics, The Patron Saint of Superheroes, and many other fantastic blogs.  Our inaugural column discusses a classic Silver Age Superman story, “The Day Superman Broke the Law” (reprinted in Showcase Presents: Superman, Vol. 3)  After the surprisingly strong reader reaction to our recent suggestion that Peter Parker may not have been entirely on the level in his dealings with the Daily Bugle, we think this one will go over a bit better.  So head over to SftC and check it out!

10 Comments

Posted in criminal law, sftc columns, Superman

Peter Parker, Con Artist?

Posted on April 19, 2012 by | 126 comments

The inspiration for today’s post comes from Greg, who asks:

During the Civil War storyline, for a brief time Peter Parker “outed” himself as Spider-Man. … J. Jonah Jameson wanted to sue Peter for fraud because he sold pictures of Spider-Man to the Daily Bugle under  what [Jameson] claimed were false pretenses. My question is, would that hold any water?

The facts for this question come from Amazing Spider-Man #533 (which you can buy reprinted in The Amazing Spider-Man: Civil War).  Specifically, a lawyer for the Bugle tells Parker that the Bugle is suing him for “misrepresentation, fraud, breach of contract and several other related charges” and they are seeking both compensatory and punitive damages of at least five million dollars.  So, how worried should Parker be about this?  Pretty worried, in our estimation.  Let’s take a look at each charge in turn.

(Before we get started, we’ll mention that there would have to have been a contract between Parker and the Bugle for the photographs because, as an independent contractor, Parker owned the copyright in his photos and would need to license or sell the copyright to the Bugle via a contract before they could be printed.  See this post for more on that.)

I. Misrepresentation

Because both breach of contract and fraud are also listed, we think that misrepresentation is being used in the contract law sense rather than the tort law sense.  In the contract law sense, misrepresentation is also known as fraud in the inducement (i.e. a misrepresentation made in order to induce the other party to enter into a contract).  This should not be confused with the tort of fraud, which we’ll get to shortly.

In New York, “To recover under a theory of fraudulent inducement, the plaintiff must prove: (1) misrepresentation of a material fact; (2) falsity of the representation; (3) scienter; (4) reasonable reliance; and (5) damages.” Creative Waste Mgmt., Inc. v. Capitol Env. Servs., Inc., 429 F.Supp.2d 582, 607 (S.D.N.Y. 2006).  “Scienter” is a fancy legal word for “knowledge,” and in this case means the defendant has to make the misrepresentation knowingly.

So, has the Bugle likely got a case for fraud in the inducement here?  Let’s go through the elements.

(1) Misrepresentation of a material fact.

Right off the bat we run into a small snag: did Parker ever explicitly claim that the photos were unstaged photos of a different person?  Maybe, maybe not.  But even if he didn’t, his silence may be enough.

“[W]hen dealing with a claim of fraud based on material omissions, it is settled that a duty to disclose arises only when one party has information that the other party is entitled to know because of a fiduciary or other similar relation of trust and confidence between them.” Creative, 429 F.Supp.2d at 607.  Such a relation can be imputed by the “special facts doctrine,” under which “the courts impose a duty on a party with superior knowledge of essential facts to disclose those facts where nondisclosure would make the transaction inherently unfair. For this doctrine to be applicable, the plaintiff must prove that (1) one party has superior knowledge of certain information; (2) that information is not readily available to the other party; and (3) the first party knows that the second party is acting on the basis of mistaken knowledge.” Id.

Clearly, Parker had superior knowledge of Spider-Man’s identity.  Jameson had no clue who Spider-Man was and certainly didn’t suspect Parker.  The information was not readily available, as demonstrated by the fact that quite a few people, Jameson included, had tried and failed to determine Spider-Man’s identity.  And it can reasonably be assumed that Parker knew that Jameson wouldn’t have bought the photos if he knew they were staged and being sold to him by Spider-Man.

So Parker’s misrepresentation by omission will suffice.  It’s also definitely a material misrepresentation (i.e. it would have made a difference in whether a contract was agreed to) because Jameson would not have bought the photos if he knew the truth.

(2) falsity of the representation

This one is pretty easy.  At the very least the photos were falsely presented as genuine news photographs and not a semi-staged photo-op for Spider-Man.

(3) scienter

No question here; Parker definitely knew he wasn’t being honest about the photographs.

(4) reasonable reliance

Another easy one.  It was entirely reasonable for Jameson to believe that Parker was not Spider-Man and that the photos were genuine.  Unlike some superheroes (*cough* Superman *cough*), Spider-Man does a believable job of keeping his identity secret, and there was nothing incredible about the photos.

(5) damages

This one is also straightforward.  The Bugle paid Parker money for the photos, per the contract, and so there are damages.

So that’s misrepresentation established.  What does it get the Bugle?  The likely result is rescission of the contract and restitution of any money paid to Parker for the photographs.  So the Bugle gets its money back and no longer owes Parker anything under the contract.

II. Breach of Contract

This one is a little harder to write about, since we don’t know what the terms of the contract were.  It’s extremely likely, however, that the contract included a representations and warranties section in which Parker affirmatively represented that the photos were genuine, unmodified, unstaged, etc.  By trying to pass off the (effectively) staged photos, Parker would have breached the contract.

The practical upshot of the breach of contract claim is the remedy.  Breach of contract remedies are a little complicated, but the main damages here will be the loss of value due to lost reputation.  What it definitely doesn’t get the Bugle is punitive damages, as damages in contract cases are almost always compensatory. Even in cases of a fraudulent breach of contract, punitive damages are not available unless the fraud was “malicious, vindictive or morally reprehensible [demonstrating the] intent of wanton and reckless behavior.” Reinah Development Corp. v. Kaaterskill Hotel Corp., 59 N.Y.2d 482, 487 (1983).  Parker was not trying to scam the Bugle, so we don’t think his conduct rises to that level.

Because the damage due to lost reputation is so hard to measure, it’s possible that Parker’s contract with the Bugle included a liquidated damages clause.  A liquidated damages clause lets the parties agree to a particular amount of damages in advance.  Parker could thus be on the hook for whatever that amount is times the number of photos the Bugle printed (or, less likely, the number it purchased).

III. Fraud

“Generally, in a claim for fraudulent misrepresentation, a plaintiff must allege a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.” Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 178 (2011).  As you can see, that’s remarkably similar to the elements of fraud in the inducement.  The difference in this case is in the remedy.  Whereas the remedy for fraud in the inducement is to undo the contract, the remedy for tortious fraud covers all of the damages stemming from the Bugle‘s reliance on Parker’s misrepresentations and omissions.

But wait a minute, that sounds a lot like the breach of contract damages.  And that’s right: the damages for fraud would be essentially identical to the damages for breaching the representations clause of the contract.  But you don’t get to recover twice for the same injury, so even if the Bugle proved both claims it wouldn’t get twice as much money.  So why bother suing for both?  First, because it might not be able to prove both claims and second, because the contract might not include a representations section (though this is unlikely)

IV. Conclusion

All told, Parker is looking at a pretty serious lawsuit.  As well he should, since passing off staged or manipulated photographs is a serious journalistic no-no, even if it’s done for the best of reasons.

126 Comments

Posted in contracts, mailbag, Spider-Man, torts

Superman: Grounded (# 707): Theft, Necessity, Insurance, and Mitigation of Damages

Posted on March 26, 2012 by | 39 comments

The second hardcover volume of Superman: Grounded came out in December, and the very first issue, Superman # 707, contains a doozy of a legal conundrum.

Here’s the setup. Superman is in Des Moines, Iowa, saving people and basically doing his thing. He’s on his cell phone (Yes, he’s using a cell phone. No, it doesn’t make any sense for him to be doing so.) with Lois, when the chemical plant she’s at has a fire. He hears it and flies over. He puts out the fire with water from a nearby creek, but notices that the fire has caused structural damage to the plant, which is likely to collapse and possibly even reignite. So, seeing a passing truck full of steel bars, he ganks a bunch of them and uses them to shore up the building. The driver of the truck says, and I quote, “Hey, Superjerk, you can’t just take those!” Which is probably true. Superman’s response is “I assure you, sir, it’s for a good cause.” Which is as may be, but doesn’t change the fact that Superman has likely stolen at least several thousand dollars worth of goods. Continue reading →

39 Comments

Posted in criminal law, insurance, superheroes, Superman, torts

Superman, Duels, and Affray

Posted on March 22, 2012 by | 61 comments

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.

61 Comments

Posted in criminal law, Superman

Xavier’s School for Gifted Plaintiffs

Posted on March 9, 2012 by | 12 comments

Xavier’s School for Gifted Youngsters (aka the Xavier Institute) has existed in several most versions of the X-Men as a place of safety for young mutants, a training ground for future X-Men, and a private school.  These purposes are somewhat in tension, however, and students are sometimes injured either in the course of instruction or because of attacks on the school.  That leads to today’s question from Frank, who asks: “Is Professor X responsible for minor students in a parental capacity? What happens when one of them is injured or killed while at school?”

There are a few different aspects to this question.  First there’s the question of the school’s institutional liability, and second there’s the question of Professor X’ (and the teachers’) personal liability.

I. Institutional Liability

Xavier’s School is a private school in New York.  It’s usually written as a charitable school.  In some states this would entitle it to a certain degree of immunity, but New York (unlike, e.g., New Jersey) rejected the doctrine of charitable immunity several decades ago.  Bing v. Thunig, 2 N.Y.2d 656 (1957). So if the school can be sued, what could it be sued for?

The most likely cause of action is negligence: negligently allowing students to take part in dangerous activities, negligently failing to prevent superpowered students from harming one another, negligently failing to protect the students from outside threats, etc.

Normally one isn’t liable for failing to protect someone else from harm, but certain special relationships (e.g. parent/child) can create a duty to rescue, protect, or supervise.  Schools have such a relationship with students:

Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.  Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable for every thoughtless or careless act by which one pupil may injure another.  A teacher owes it to his or her charges to exercise such care of them as a parent of ordinary prudence would observe in comparable circumstances.  The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians.

Mirand v. City of New York, 84 N.Y.2d 44, 49 (1994).  So while a school may not be liable for every injury caused by a student, it will be liable if the injury was the result of inadequate supervision.  What’s more, since Xavier’s is a residential school, this duty is basically continuous, because “Ordinarily, the duty of care imposed on a school district, and in this case a private school, terminates upon a student’s release from their physical custody.”  David XX v. Saint Catherine’s Center for Children, 699 N.Y.S.2d 827, 830 (App. Div. 1999).

So the school’s liability will ultimately come down to whether the teachers and staff acted reasonably and whether the injury was foreseeable.  If the teachers follow all the right protocols but a superpowered delinquent blows up the school, well, that’s tough.  Similarly, a random attack by evil mutants may be unforeseeable, so it doesn’t really matter whether the school took reasonable precautions to protect the students from such an attack or not.

II. Personal Liability

“A school district, like any other employer, may be held vicariously liable under the doctrine of respondeat superior for a tort committed by an employee in the course of the performance of the employee’s duties.”  Mary KK v. Jack LL, 611 N.Y.S.2d 347, 348 (App. Div. 1994).  Of course, the employee is also still liable (and the employer can turn around and seek compensation from the employee for any damages the employer has to pay out), but most plaintiffs prefer to sue the party with deeper pockets.

But as the quote suggests, the employer is only liable under certain circumstances.  As the Mary KK court said, “What constitutes the scope of employment is generally a jury question, but” there are some guidelines.  “An act falls within the scope of an employee’s duties when the employee is doing his master’s work, no matter how irregularly, or with what disregard of instructions. On the other hand, there is no respondeat superior liability for torts committed for personal motives unrelated to the furtherance of the employer’s business.”  Murray v. Watervliet City School Dist., 515 N.Y.S.2d 150, 152 (App. Div. 1987).  More specifically, courts and juries look at factors such as:

the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated

Riviello v. Waldron, 47 N.Y.2d 297, 303 (1979).  Sometimes the school might be vicariously liable, but it won’t be liable for the actions of “rogue” (no pun intended) employees.

III. Conclusion

We certainly hope Xavier’s has a serious insurance policy (or three).  Not only could it be sued, but it’s a magnet for serious injuries.  Waivers can help for voluntary activities, but not there are limits to what can be waived.  Of course, if the school goes beyond negligence and into the realm of gross negligence or intentional misconduct then its insurer may not cover it at all.

12 Comments

Posted in insurance, mailbag, torts, X-Men

Superman, Kryptonite, and Treason

Posted on March 7, 2012 by | 31 comments

Today we’re continuing to clear out the mailbag, this time with a question from Jon, who asks about the 2008 Superman/Batman story arc “The Search for Kryptonite” (now available as a trade paperback):

[In the story], a Kryptonite meteorite has landed, making the element common all over the world. People are putting it in jewellery, using it as paperweights – it’s everywhere. Superman decides that the only way he can be effective as a hero is to gather it all up and get rid of it, arguing that people die when he’s incapacitated. “I can only save as many people as I can be there for.” What right does Superman have to do this?

Aquaman calls it arrogance, when Supes and Batman are collecting a large chunk of green K from the seabed – “You do as you will, and expect people to thank you for it”. Amanda Waller calls it treason, when they break into a government facility to take K-based weapons (a multi-billion dollar facility specifically created to stop Superman, should he go rogue) – “You boys justified the need for this facility the minute you broke into it”.

There are two aspects to this question: first, does Superman have any right to go rounding up kryptonite and second, did Superman and Batman really commit treason?

I. Self-Defense?

The answer to the first part is “no,” for two reasons.  First, Superman isn’t in any imminent danger from the vast majority of the kryptonite, so self-defense doesn’t apply (and thus defense-of-others doesn’t apply to Batman’s actions either).  Second, like everyone else, Superman doesn’t have a general duty to prevent crime or rescue others.  Thus, although an abundance of kryptonite may be unfortunate for both Superman and the general public, it isn’t interfering with a legal obligation and so Superman can’t really claim a legal right to remove the kryptonite.  Even if he could, his remedy would be in court, not taking matters into his own hands.

II. Treason?

The answer to the second part is also “no and yes.”  While Superman and Batman no doubt broke multiple federal laws by breaking into the Last Line facility, it couldn’t have been treason for Superman, though it might conceivably have been for Batman.

In the US, treason is defined by the Constitution thus: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” U.S. Const. art. 3 § 3 (emphasis added).  That ‘only’ means that Congress has no power to redefine treason.  “This definition is meticulously exclusive and that it was so intended is indicated by the use of the adverb ‘only.’  The Constitution has left no room for constructive treason and Congress could not and has not undertaken to restrict or enlarge the constitutional definition.”  Stephan v. United States, 133 F.2d 87, 90 (6th Cir. 1943).

Arguably, neither Superman nor Batman has levied war against the United States.  Levying war requires that “a body of men be actually assembled for the purpose of effecting by force a treasonable purpose.”  Ex parte Bollman, 8 U.S. 75, 126 (1807).  I’m not sure how many men it takes to make “a body,” but I suspect it’s more than two.  Otherwise any two people who committed or intended to commit a violent crime against the United States could be charged with treason.

That leaves adhering to and giving aid and comfort to the enemies of the United States.  The problem is that the only possible enemy aided or comforted here is Superman himself.  And if Superman is an enemy of the United States, then it stands to reason that he cannot owe the United States a duty of loyalty and thus cannot commit treason.  If there were some larger entity that Superman was assisting (e.g. a Kryptonian separatist group), then that would be different, but as it stands he appears to be the only direct beneficiary, which makes it difficult to call him a traitor rather than a run-of-the-mill self-interested criminal (albeit one with superpowers).

The same cannot necessarily be said of Batman, however.  If Superman is an enemy of the United States (as proven when he broke into a military base), then Batman is arguably committing treason by helping him.  “Aid and comfort” are read very broadly, and includes “an act which weakens or tends to weaken the power of the [sovereign] and of the country to resist or to attack the enemies of the [sovereign] and the country.” Cramer v. United States, 325 U.S. 1, 29 (1945) (quoting Lord Reading in the Casement trial).  Since the Last Line was created specifically to defend against a possible rogue Superman, helping Superman destroy that facility seems like a pretty clear example of “weakening the power of the United States to resist or to attack the enemies of the United States.”

Superman’s citizenship is not an issue, by the way.  One does not have to be a citizen to commit treason; even a resident alien owes the United States a kind of loyalty, and Superman is definitely at least a resident alien (if not necessarily a lawful one).  See Carlisle v. United States, 83 U.S. 147, 154 (1872) (“The alien, whilst domiciled in the country, owes a local and temporary allegiance, which continues during the period of his residence.”).

III. Conclusion

So is Superman just completely hosed here if he wants to follow the law?  Not necessarily.  At a minimum, he could keep his Clark Kent alter ego safe by claiming to have developed a kryptonite allergy.  This would probably qualify as a disability under the Americans with Disabilities Act, with the result that the Daily Planet (or at least the part of the office where Kent works) would become a kryptonite-free zone.  Since there’s no real need for kryptonite there, that seems like a reasonable accommodation.

This may seem like a pretty poor consolation, but on the other hand Superman’s kryptonite-resistant “K-suit” managed to survive a pretty severe beating before giving out, so he’d probably be able to continue fighting crime effectively.  He’d just have to be a bit more careful.

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Posted in Batman, constitutional law, criminal law, mailbag, Superman

Arkham Asylum and Liability for Private Prisons

Posted on March 5, 2012 by | 15 comments

In February 20th’s post regarding Knightfall, a number of commenters wondered if the fact that Arkham Asylum is presented as a private entity in some stories might affect its liability for escaping prisoners. This is actually a really good question, and one that’s becoming increasingly important as more and more states experiment with privatized prison systems. Arizona is something of a leader here, and its practices have come under pretty intense criticism on a number of fronts. But here, we’re going to look solely at whether private prisons can be sued for damages caused by escaped prisoners.

As discussed in the first post, for our purposes, it really doesn’t matter whether we’re talking about a jail, prison, or mental institution, provided the inmates are there as the result of a court order. That order could be a sentence for a crime or simply protective custody. The fact is that they’re there at the requirement of the state and not allowed to leave, so escape would be a crime. The question is whether the operator of a private prison would be more or less liable for actions an inmate takes after escaping than the state would be.
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Posted in Batman, constitutional law, torts

Ultimate Comics: Spider-Man

Posted on February 23, 2012 by | 22 comments

The new run of Ultimate Comics: Spider-Man from Brian Michael Bendis is getting rave reviews.  There haven’t been a ton of overt legal issues, but a scene from the recent issue #6 caught my eye.  Spoilers ahead!

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Posted in criminal law, criminal procedure, Spider-Man

Law and the Multiverse Retcon # 4: Batman: Noel (Revisited)

Posted on January 23, 2012 by | 10 comments

On Christmas Day, 2011, we discussed Batman: Noel, mentioning that one of the issues present was actually the subject of a then-pending Supreme Court Case, U.S. v. Jones.

Well, the Court has just handed down its opinion in that case. SCOTUSblog has an excellent analysis of the opinion, which was only unanimous to the extent that all the justices agreed with the appellee’s contention that the use of this wireless GPS device to track his vehicle violated his Fourth Amendment rights.

The justices disagreed, however, on exactly what “Fourth Amendment rights” meant in this case. The majority opinion (Scalia, Roberts, Kennedy, Thomas, Sotomayor) was the narrowest and seems to mostly stand for the proposition that law enforcement agencies would be well advised to get a warrant before doing this sort of thing, but it stops short of holding that a warrant is categorically necessary. They essentially held that the physical intrusion of the device on the car was a “search” but punted on the use of the technology. The four-justice concurring opinion (Alito, Ginsburg, Breyer, Kagan), wanted to talk more about whether or not there was a reasonable expectation of privacy with respect to the use of GPS tracking and suggested that the longer the tracking goes on, the more of an expectation there is. Sotomayor also filed her own concurring opinion which actually criticizes the majority opinion—which she joined—suggesting that if the cops try to get too funky with warrantless, wireless tracking, she may well side with the other bloc of justices and opt for a ban.

While we certainly didn’t predict how this was going to play out in terms of the justices voting patterns, this is basically what we predicted would happen overall.  As we said, “The Justices seem likely to say that while there isn’t necessarily a reasonable expectation of privacy in one’s movements in public places, the police still can’t directly track your movements without either your consent or a warrant.” So ultimately, the Court didn’t decide the former issue but suggested that the latter is probably true. At the very least, using a physical device attached to one’s person or property now constitutes a “search” under the Fourth Amendment.

So this isn’t precisely a “retcon” as much as it is an update. The original post suggested that Batman probably needed a warrant to use that tracer on Bob Cratchit, and today’s opinion in Jones says that this is correct.

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Posted in Batman, constitutional law, criminal procedure, retcons