In a dark alley behind a theater a wealthy couple is walking with their son. Two figures emerge from the shadows; one man with a gun demands money and jewelry while the other stands watch by the street. There’s a struggle; two shots ring out and the couple fall to the ground. Just as the robber is about to pull the trigger on the boy a costumed superhero intervenes deftly subduing the man with the gun. After making sure the boy is alright he gives chase to the lookout and apprehends him a few blocks away. In situations like these there is no question that our hero saved a life but what right did he have to do so? What amount of force was he privileged in using, and can the criminal now bring a lawsuit against him for assault or battery?
Some superheroes are revered for their heroics while others are shunned as criminals themselves. “You can’t take the law into your own hands” is the rallying cry against such figures as Batman, Spiderman, and the Punisher. In some situations, however, the law empowers ordinary citizens to act on their own when proper law enforcement is unavailable; citizen’s arrests (covered in a future post) and self-defense are two well-known examples. While people are generally not required to avail themselves of this self-help approach (also a topic for a future post), generally what someone can legally do for themselves can be done by a third party for their benefit.
When someone is presented with an imminent threat to their person1 and they cannot safely retreat2 they are able to use whatever reasonable level of force is required to repel the attack. In such a situation, the theory of self-defense acts as an affirmative defense meaning the individual admits to committing acts that would ordinarily constitute a crime but claims immunity from criminal liability3 based on the aggressor’s actions.
When a hero witnesses a crime they can step into the shoes of the victim and use force to stop the attack without criminal liability so long as they abide by the same restrictions imposed on an individual engaging in self-defense. The two requirements for immunity most problematic to superheroes are the proportionality of the response and imminence.
Under self-defense jurisprudence if an attacker is unarmed you can’t pull out a knife to defend yourself; if they use a knife you’d better not pull out a gun; should you escalate the attack you become the aggressor in a brand new exchange and the criminal is now privileged in any defense against you! For ordinary citizens this is rarely a problem, however if a mugger accosts an old woman and Batman shows up armed with gadgets, or Superman – a living Kryptonian weapon – swoops in, the response is not likely to be proportional. Superheroes must walk a very fine line in their use of force when they severely out-gun a criminal. If they escalate the situation the criminal is then privileged to use a reasonable proportionate level of force and in the case of a superhero what reasonable person would begrudge the use of almost limitless force (including deadly) when faced with such a hopeless situation.
A superhero must catch a criminal in the act for self-defense to apply. If they arrive a split-second after the victim is out of danger there is no immunity. Another reason the imminence requirement poses a problem for crime fighters is that once an attacker stops the attack, as they tend to do when a hero arrives on the scene, or attempts to run away, self-defense as a privilege ceases; someone engaging in self defense cannot give chase. All a criminal has to do is present evidence at trial that Superman’s heat vision or Batman’s batarang hit him in the back while he was running and its a slam dunk case for battery.
Hero beware, you can take the law into your own hands but don’t exceed the privilege of the victim you’re trying to save.
IN THE NEXT EXCITING INSTALLMENT
Next time we’ll look at superheroes not only as crimefighters but as professionals using secret identities. What ethical rules and responsibilities attach to these jobs and what potential violations occur while fighting crime in a cape and a mask?
1 – Many jurisdictions allow force in defense of property in limited situations, but never the use of deadly force. The defense of property must be made by an individual as opposed to a mechanical device (no booby traps), which cannot discriminate the culpability of the intruder. See People v. Ceballos, 12 Cal. 3d 470 (1974).
2 – The Castle Doctrine – in states that apply this doctrine there is no duty to retreat if you are attacked in your home. A defender’s actions are also generally immune from civil liability if they state their intent to use force in defense of their home.
3 – An ordinary self-defender may be liable in a civil suit for harm inflicted on an attacker, especially if their actions were not reasonable to the situation.