This week NBC launched The Cape, a superhero series that follows the journey of a framed police officer who dons the hood of a vigilante. I have seen a number of posts criticizing the show for being an unoriginal adaptation of various existing comic characters, most obviously Batman, but personally I welcome the series. Even though the story is obviously heavily borrowed from the Batman origin story, and, like Heroes, will probably mirror other comics as it progresses, I think shows like The Cape bring a new audience to the genre who may not have tuned in for an actual Batman series1.
In addition to bringing additional media attention to our genre, The Cape has already provided me with new Superhero Law topics to write about. I will keep the details of this post fairly general in case reading this persuades any of my readers who missed the premier to catch one of the upcoming reruns.
The Defense of Duress
In the first episode of The Cape, Vince Faraday2 is framed for murder and narrowly escapes police capture. While on the run he is kidnapped by a gang of bank-robbing circus folk and agrees to join their gang in exchange for being allowed to live. Naturally, over time he is accepted by the gang and their leader teaches Faraday many of the skills that he will later use to fight crime. Before leaving to fight crime, however, Faraday does participate in a number of criminal acts. While some of these initial acts were under the pretense that the criminals would kill him if he did not participate, at some point any reasonable defense that situation would have provided began to fade.
In most jurisdictions, the defense of duress is available to someone facing criminal charges where they can show that they were subject to an imminent danger and that they broke the law to avoid some greater evil. The defense is also an admission of guilt as to the acts of a crime but not to the mental state, or intent, required. Also, in order to be eligible for this defense, the imminent danger imposed on the actor cannot be the result of any reckless or negligent behavior of their own.
When Vince is originally being held hostage it is safe to say that any actions he took immediately following his apprehension would have been excused due to duress. He had a reasonable fear that his life was immediately in danger and he was stealing (a lesser offense than murder3) to avoid that fate. As time progressed, however, he was presented with more and more opportunities to escape and his continued participation in criminal activities was less the result of a fear of imminent danger and more the result of a desire to stay with the group and continue to learn. Once the reasonable fear subsided, and more reasonable opportunities for escape presented themselves, Vince would have lost any excuse he once had based on duress.
There are quite a few superheroes who are known for their technological savvy, specifically their ability to infiltrate various computer systems (including those of the government). Heroes such as The Question and The Oracle4 have few other abilities to rely upon, but even Batman and the Red Tornado have been known to do some hacking. While this post will be restricted to laws relating to invasions of electronic privacy, I have previously covered more general privacy issues concerning government actors in Privacy Chapter I – Or why a phone booth is a terrible place to change clothes and against private actors in Privacy Chapter II – Your friendly neighborhood tortfeasor.
When The Question runs a program in order to intercept confidential emails being sent between government agents in real-time, or when Batman puts an unauthorized tap on a suspect’s phone, each would be liable for violations of Title I of the Electronic Communications Privacy Act of 1986 (ECPA).
The ECPA is a Federal statute that criminalizes the unauthorized interception and disclosure of wire, oral, or electronic communications. Anyone who even attempts to intercept these types of communications, attempts to use a device to intercept such communications, or who uses or discloses information that was received through interception, is liable under the law.
In addition to the acts covered above, Title II addresses electronic communications that are stored by a provider, which would be triggered when one of these heroes accesses a restricted database to read past communications or collect evidence of criminal activity. The final section of the ECPA, Title III, covers the use of pen registers and trap and trace devices, which gives a user information about who a person is calling or sending an email to in real-time, rather than the actual content of the communication.
While a government actor (see my first post, Your tax-dollars at work?, for a discussion of which superheroes may be considered government actors) is not even required to obtain a search warrant before applying a pen register, private superheroes and vigilantes face civil damages, punitive damages, and the possibility of paying a victim’s attorney’s fees for violations of the ECPA.
Throughout the premier of The Cape, the mysterious figure of “Orwell” is seen intercepting media transmissions and broadcasting his/her own message of “the truth,” Orwell is already in serious violation of statutes such as the ECPA and I suspect that his/her efforts throughout the series will continue this trend.
IN THE NEXT EXCITING INSTALLMENT
Next time we will be visiting the world of Real Life Superheroes (RLSH) in our first Superhero Law Case Study.
1 – Although I haven’t had a chance to write about it, No Ordinary Family also seems to be doing well with its ratings.
2- Given his last name, I would have expected the main character of The Cape to have some type of magnetism or electricity abilities (See Michael Faraday). Perhaps that was part of an earlier version of the plot?
3 – Many jurisdictions do not extend the defense of duress to homicide, however under the Model Penal Code section 3.02, the only restriction is that the crime avoided is greater than the crime committed, allowing for the possibility of a duress defense even in a case of homicide.
4 – The Oracle is actually Barbara Gordon, formerly Batgirl, who was shot through the spinal cord by the Joker. Now in a wheel chair, she uses her computer skills to detect and solve crime as well as provide aid to other superheroes.
“Mindy, no more homework, Babydoll. Time for Frank D’Amico to go bye-bye.
- Big Daddy to Hit Girl, Kick-Ass, 2010.
Comics and T.V. shows are filled with depictions of superhero minors. This is probably partially to appeal to a key demographic, and partially to add drama with characters dealing with balancing crime-fighting with homework, dating, and acne. This portrayal is so popular that many story-lines have been retconned1 to flesh out underage back-stories2. Essentially the genre of superhero minors breaks down into two categories: (1) Superhero Minor Protagonists who act on their own, such as the early adventures of Spider-Man and Impulse, and (2) Superhero Minor Sidekicks who work with an older superhero mentor, such as Robin and Speedy. This distinction also comes with legal significance with superhero minor protagonists liable for their own actions (but also possibly subjecting their parents or guardians to liability as well), and superhero minor sidekicks acting under the control and guidance of their mentors.
Superhero Minor Protagonists
At common law, minors were not considered to be capable of having the requisite intent to commit many crimes and intentional torts, and were similarly held to a lower standard for negligence-type torts. The rationale for this disparate treatment of children was that without a sufficient understanding of their actions, and the consequences, they could not be considered to have made a full and conscious decision regarding their actions, and, because they lacked life experience, they could not fully understand how to act properly to avoid dangerous consequences.
While the age of majority currently varies from state to state, some states have enacted statutes to hold minors to adult standards well below the age of majority, where certain enumerated laws are broken3. While a minor is usually held to the standard of care of a reasonable child of a similar age and capability, minors will be held to an adult standard where they engage in an “adult activity.” The reason for exacting a higher standard of care is related to the specialized skill required to engage in such activities and the danger that is imposed on the public.
In light of these rules and standards, it is not a difficult stretch to imagine all superhero minors being treated as adults with full responsibility for their actions. These heroes are regularly engaged in combative behavior that does, on occasion, lead to serious bodily injury or death, and an argument could be made that all crime-fighting activity constitutes “adult activity.” Clearly it takes a minor of unusual characteristics, and ability, to decide to take the law into his/her own hands, whether or not that vigilante activity includes the use of complicated gadgets and machinery.
Superhero Minor Sidekicks
Everyone is familiar with Batman’s sidekick Robin, but in my opinion, many of the X-Men (juveniles sent to Xavier’s School for Gifted Youngsters by their unwitting parents — See below for a brief treatment of Professor Xavier’s own liability for tricking parents into sending their children to his school4.) also fall into this category with Xavier, and his “professors” acting as the mentors of the children.
Adults who encourage minors, Superhero Minors included, to engage in dangerous and/or illegal behavior, ranging from skipping school to playing with volatile explosives, will likely run afoul state contributing to the delinquency of minors statutes5.
Superhero Parental Liability
At common law there was very little liability imposed on parents for the acts, or omissions, of their children. Because children themselves were not generally liable for their actions, any damages that were caused were simply written off (hence, “boys will be boys”). Under modern law, however, there is contingency of statutes that create what is known as “parental liability,” wherein parents are vicariously liable for certain acts of their children committed under specific circumstances.
- Negligent Supervision – Under a number of state statutes, if a parent is determined to have exercised negligent supervision over their children, they may be held liable for the effects of their child’s actions.
- Family Car Doctrine – Under this theory of liability, a parent is liable for any damage caused by the use of the family car by a family member if the parent was aware that the child was using said vehicle.
- Court Costs and Restitution – For certain criminal acts, a parent may be responsible for reimbursing the State for court costs and/or for paying restitution to the victim(s).
- Child Access Protection Laws – A number of states have “child access” laws relating to use or access to firearms and other deadly weapons. Under these laws, parents can be liable for simply allowing their child to have access to weapons, let alone, directly handing them over.
Consider Robin and Hit-Girl, who are Superhero Minor Sidekicks to their guardian and father, respectively. Both are given direct access by their guardian to various dangerous and deadly weapons (Hit-Girl is given a myriad of guns and knives, and while Batman and Robin don’t use guns, they have a number of incendiary devices, blades, billy clubs, and other regulated weaponry), both are given access to the “family” vehicle (both without a license) and it is no stretch to argue that training, encouraging, and accompanying a juvenile vigilante, would constitute “negligent supervision.” As such, both Batman and Big Daddy would certainly be liable for any damage caused by their ward-sidekicks.
- Curfew laws – 45.04 (a) LAMC “Daytime Curfew” It is unlawful for any minor under the age of 18, who is subject to compulsory education . . . to be present in or upon the public streets . . . during the hours of the day when . . . school . . . is in session. 45.03 (a) LAMC “Nighttime Curfew” Curfew laws restrict the rights of juveniles to be outdoors or in public places between the hours of 10:00 pm and sunrise.
- Furnishing a deadly weapon to a minor – Providing a minor with access to a deadly weapon is generally a misdemeanor, however, certain enumerated weapons can result in a felony charge. Weapons that are likely to lead to a conviction, and which are popular among superheros, include guns, explosive devices, and brass knuckles6.
- Driving/Flying without a license – California Vehicle Code 12500 a vc prohibits people from driving in California without a valid driver’s license subject to a misdemeanor conviction.
Considering all the potential pitfalls for liability relating to Superhero Minors, crime-fighting teams and superhero parents would do well to consider the following waiver:
PARENTAL WAIVER AND RELEASE
As the parent or legal guardian of the child named below, I hereby give my full consent and approval for my child to participate as a team member of The Justice League.
I understand that there are certain risks of injury inherent in fighting crime and I am willing to assume these risks on behalf of my child. I hereby certify that my child is fully capable of participating in The Justice League and that my child is healthy and has no physical or mental disabilities or infirmities (other than a mutation that has lead to super-powered abilities) that would restrict full participation in these activities.
I hereby agree to inform the Justice League immediately upon the discovery of any significant weakness or limitation of my child’s powers.
In addition to giving my full consent for my child’s participation, I do herby waive release and hold harmless The Justice League, it’s officers, sponsors supervisors and representatives for any injury that may be suffered by my child in the normal course of fighting crime, and the activities incidental thereto, whether the result of negligence or any other cause.
If my child is lost in another dimension or transported to another plane of existence I hereby agree to take whatever reasonable steps requested of me by the Justice League to return my child to his/her normal state of existence.
_______ _________________________ _________________________
(Name of Child) (Date of Birth)
________________________________ _______________ _______
(Street Address) (Town) (State)
Please list any physical limitation (allergies, weakness, aversion to kryptonite, etc):
1 – Retconned – A “retcon” or “retroactive continuity” is a situation where the previous facts in a story-line are rewritten in a later literary work.
2 – See Superboy, Justice League Unlimited, ….. — think Muppet Babies with superpowers!
3 – California Proposition 21 – A minor 14 years of age or older will be tried as an adult where he/she has committed First Degree Murder, Rape, or one of another listed sexual offenses.
4 – Professor Xavier travels the country identifying young mutants with the assistance of his brainwave-amplifying machine, Cerebro. Once he has identified a new mutant, Xavier approaches them, and their parents, about enrolling in his school. Many, if not most, of the parents who are approached are apprehensive about encouraging their children’s mutations but are drawn to the idea of sending their child off to a secluded school to avoid detection. What we rarely see, however, is Xavier giving full disclosure about his plan to train the children for the purpose of fighting for mutant equal rights.
Under California Penal Code Section 272 (and similar statutes in other states), it is unlawful for “[a]n adult stranger who is 21 years or older, who knowingly contacts or communicates with a minor who is under 14 years of age, for the purpose of persuading and luring, or transporting, or attempting to persuade and lure, or transport, that minor away from the minor’s home . . . for any purpose, without the express consent of the minor’s parent or legal guardian, and with the intent to avoid the consent of the minor’s parent or legal guardian, is guilty of an infraction or a misdemeanor . . .” Because Xavier is not giving parents all the information about his school, they are incapable of giving true “express consent.”
5 – California Penal Code Section 272
6 – 2010 Arkansas Code 5-73-109
The certainty of death is one constant not present in the lives of many superheroes. As stated by Professor Xavier, “in Mutant heaven there are no pearly gates, but instead revolving doors.” Does the existence of invulnerable beings, persistent resurrection, or time-traveling interceders mean the obsolescence of our system of laws, or is there some way that existing legislation can be redrafted to account for the incredible?
The original Superhero Law Blog has returned following the successful launch of WLF Lawyers, my California law firm. In addition to the continuation of our normal posts, I will also be introducing a few new twists (starting with this post). Like Jean Grey, Superman, Captain America, and many others1 before us, Superhero Law is back and better than ever.
For over a year, this blog has dealt with the numerous problems super heroes and super villains would, and sometimes do (See Heroes in the Night), pose to our legal system, but until now we have offered little guidance. Today I would like to introduce the Model Superhero Code (MSC) as a statutory text created for the purpose of creating order in the superhero world by proposing revisions and modifications to existing law.
What exactly is a “model code?” The American Law Institute (ALI) develops a number of restatements and model codes aimed at organizing and making sense of not only the legislation in the various states of this country, but also of the case law that interprets those statutes. The result is a set of restatements that provide the ALI’s interpretation of existing law, and model codes, which propose a new set of unified law to be adopted by the states.
In addition to all of the revisions to existing law that are needed to account for individuals with incredible powers, a unified system of law would be extremely valuable when trying to enforce order on the vastness of the multiverse. Consider, for example, the Guardians and the Green Lantern Corp. The Guardians were one of the first races of beings in the universe who also inadvertently created the multiverse. They have created the Green Lantern Corp. in an attempt to enforce order on the universe, however, “order” is a somewhat ambiguous term. Were the Guardians to adopt the Model Superhero Code, there would be a unified system of law and order and a set standard for all sentient beings to live by.
Because the theme of this post is resurrection, the first sections to the MSC will deal with the changes to homicide law that are needed to account for the seemingly impermanent nature of “death” when dealing with superheroes. There are some individuals in the superhero universe who are completely invulnerable and some where resurrection is actually a character trait2 (additional legal implications of immortality are covered in a previous post3). For these beings, conventional notions of “death” or “homicide” are either impossible, or only temporary. Not only is our current system of laws unable to deal with these types of beings, there are also circumstances in which an otherwise vulnerable character who is normally susceptible to “permanent death” is able to be revived, cloned, or rebooted, or where it is later discovered that the supposed death was only extreme injury4.
It seems reasonable that if someone shoots Superman with an ordinary bullet there is no way that can be considered murder or even attempted murder because even if Superman stood in front of the bullet (as he often does) it would do absolutely no damage. Unfortunately, the law recognizes two forms of impossibility, legal and factual. Legal impossibility occurs when the act(s) committed do not constitute a crime5 whereas factual impossibility occurs when something unknown to the defendant makes the completion of the crime impossible6. Legal impossibility is generally a defense to a crime while factual impossibility generally is not a valid defense. Shooting Superman, whether or not it actually will kill him, results in a factual impossibility and his invulnerability is not a defense. The analysis gets muddied, however, when we enter into the equation the prior knowledge of our villain that the superhero “victim” is either invulnerable, or susceptible to resurrection, or that we live in a universe where superheroes are frequently afforded extra lives.
In order to account for the possibilities of resurrection and invulnerability, allow me to introduce the first sections to the Model Superhero Code. Additional and future sections can be found on the main M.S.C. page here.
The Model Superhero Code
M.S.C. § 100 Homicide
An entity is guilty of criminal homicide under the Model Code if it unjustifiably and inexcusably takes the life of a sentient being purposely, knowingly, recklessly, or negligently.
M.S.C. § 2.01 Definition: Death
Death shall mean “brain death” of a sentient being, the complete destruction of a sentient being’s body, the capture of a sentient being’s soul, the unlawful disruption of a timeline resulting in the prevention of the creation of a sentient being, or the removal of a sentient being’s consciousness from its natural timeline, plane of existence, and/or dimension, where the resurrection and/or return from such state is not a characteristic of the sentient being, where all options to resurrect or return the sentient being to its natural state have been exhausted, or where ten (10) years and one (1) day have passed in the world of origin of the victim sentient being from the date of such altered state.
M.S.C. § 100.1 Murder
A homicide is murder if an entity intentionally takes a life, or prevents a life known to exist in the future from coming into existence, where that entity acts with knowledge that its actions will lead to the death of a sentient being, or if it acts with extreme recklessness.
M.S.C. § 100.2 Manslaughter
In general, an entity is guilty of manslaughter if it:
1) recklessly causes the death of a sentient being;
2) causes the death of a sentient being under circumstances that would ordinarily constitute murder, but which homicide is committed as a result of “extreme mental or emotional disturbance” for which there is a “reasonable explanation or excuse;” or
3) takes the life of a sentient being, where resurrection is not a characteristic of that sentient being, or where a likelihood of resurrection cannot be established by clear and convincing evidence, but that sentient being is returned to its original state within ten (10) years and one (1) day from the date of the life taking event.
All other forms of taking a life shall constitute “temporary homicide” and shall be commuted to a lesser charge.
M.S.C. § 1.01 Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act.
(1) An entity is not guilty of an offense unless its liability is based on conduct which includes a voluntary act or the omission to perform an act of which it is physically capable.
(2) The following are not voluntary acts within the meaning of this Section:
(a) a reflex or convulsion;
(b) a bodily movement during unconsciousness or sleep;
(c) conduct during hypnosis, while under the influence of magic, lycanthropy, or zombie infection, or resulting from the influence of the same;
(d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.
(3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
(a) the omission is expressly made sufficient by the law defining the offense; or
(b) a duty to perform the omitted act is otherwise imposed by law.
(4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.
Several notable changes have been made to existing homicide law, namely the following:
- “Person” has been replaced with “entity” such that an unconventional defendant (such as a robot or sentient star) can be charged with homicide, provided it meets the requirements of M.S.C. § 1.01 and is in control of its own actions.
- “Human” has been replaced with “sentient being” to include not only additional races and creatures, but to include animals7.
- The concept of death now includes going back in time to prevent someone’s birth, or altering their plane of existence or dimension. As a result, cloning or rebooting8 a dead hero does not change the status of dead.
- Where a victim is known to possess the ability to resurrect, where a criminal can establish that there is a high likelihood that a victim will resurrect, or where a victim actually resurrects within 10 years and 1 day from the date of “death” will result in a charge for a lesser crime. Under the common law a defendant could only be charged with murder if their actions resulted in the death of a victim within a year and one day from the date of their actions. With advances in medical science and the ability to maintain a person’s life on life-support for multiple years, this rule has fallen out of favor in many jurisdictions.
1 – Jean Grey, Superman, Captain America, Bucky, Jason Todd, The Flash, Hal Jordan, Optimus Prime, Spider-Man, The Thing, and the Green Arrow, were all proclaimed dead at one point, only to be resurrected, cloned, brought back to life by an all-powerful artist, or re-loaded from a backup on a floppy disc.
2- Solomon Grundy, Mister Immortal, and the aptly named Resurrection Man, were all capable of returning to life each time they were killed.
3 – See also Superhero Immortality and the Law, Superhero Law (Oct. 14, 2009).
4 – After the much publicized death, and resurrection, of Superman, the Kryptionian Robot caretaker of the Fortress of Solitude theorized that the laws of human death did not apply to Superman while he was under the effects of a yellow sun.
5 – Booth v. State, 398 P.2d 863 (Okl. Cr. 1964). A man stole but was apprehended by the police. The police set up a sting operation and brought the goods to the man in custody’s potential buyer. Because the goods had been intercepted they were no longer stolen so the buyer could not be charged with receipt of stolen property.
6 – State v. Haines, 545 N.E.2d 834 (1989). The conviction of two HIV positive inmates for attempted murder who tried to transmit HIV by biting guards was upheld. Even though HIV cannot be transmitted by biting that factual impossibility was not known to the prisoners at the time of the commission of their act.
7 – There is extensive treatment of anthropomorphic animal superheroes throughout comic books, movies, and television, such as Mighty Mouse, Teenage Mutant Ninja Turtles, and Dynomutt.
8 – A backup of Optimus Prime on a floppy disc was once used to create a new Transformer after his death.
Halloween is the one day that superheroes can walk around in costume without drawing extra attention. Some heroes have even participated in Halloween activities dressed as their alter-ego, my favorite of which is Peter Parker “dressing up” as Spiderman and going to a school carnival only to have the jocks call him “puny Parker” and say that he’s too small to be a crime fighter.
Superhero Intellectual Property – In brightest day, in blackest night, no infringer shall escape their sight
Superheroes have armor to protect their bodies, and gadgets to fight their enemies, but what protects them from impostors, what can they use to fight off infringers? A superhero’s intellectual property consists of everything from their insignia to their gadgets and even their catch phrases. In some cases intellectual property protection safeguards the means by which they obtained their powers and their very DNA.