Your tax-dollars at work?

by on Jul.24, 2009, under Criminal Law

Superman stands for truth, justice and the American way, but does that include the protections of the Constitution? Some superheros are treated better by the cities they protect than those hunted as criminals themselves. At what point does acceptance by the government amount to a sanction to engage in quasi-legal behavior? Any discussion of “superhero law” begins with the classification of crime-fighters as vigilantes or government actors. This classification will determine the extent of protection their actions receive under the law as well as the standard by which those actions are judged.

Government Actors

This class of crime-fighter naturally includes any person directly working for the governemnt. Superheros like Captain America (who was created by government scientists), members of the X-Factor (a team of mutants assembled by the government) and Hellboy (a demon raised from a baby, and employed, by a secret sector of the government). As a government actor these superheros stand in the place of the government and are granted broader powers in areas such as arrests, forgiveness for violating certain laws and limited immunity from civil action. However, with great power comes great responsibility, and acting for the government comes with greater restrictions for things like searches, violations of privacy and confessions.

Some heros don’t work for the government directly but their actions are sanctioned by the State bestowing the same rights and responsibilities as government employees. Under the Civil Rights Act of 1871:

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

These de facto government agents pose a special problem for the officials who embrace them and probably take on more legal responsibility than is desirable for someone taking the law into their own hands. By condoning their actions the state is allowing these superheros to act under “color of law.” By so clothing these individuals with state power they are also transferring the need for due process else a criminal be deprived of “rights, privileges, or immunities secured by the Constitution.” This due process requirement can require things like warrants, Miranda rights, knocking and announcing before breaking down a door, or any number of other un-superhero-like activities depending on the situation.

There are some superheros that governments willingly associate themselves with. A simple example is Superman, the favorite son of Metropolis. He works alongside Metropolis Police Department and the city’s elected officials and has even appeared in court to testify against criminals he apprehended. By its acceptance of the Man of Steel, Metropolis has elevated Superman to the level of government actor. However, while Superman is at the end of the spectrum more respectful of criminal procedure even he breaks the rules. One of his most effective powers is using his x-ray vision to look inside a criminal’s house or belongings. Discussed at greater length in an upcoming post, this amounts to a search by a government actor without a warrant and a violation of the 4th Amendment.

On the other end of the criminal procedure spectrum is Batman. Often considered a criminal himself Batman is nevertheless a government actor every time that Bat Signal goes up into the air over Gotham. When Commission Gordon turns on that beacon he is asking for Batman’s help and willingly associating with a self-proclaimed vigilante. To avoid legal recourse against the city, and Gordon himself, the two of them should find a more discrete means of contacting one another than a bright light on top of a government building powered by city-purchased electricity.


Vigilantes represent the remainder of all other superheros not working directly for the government and whose actions have not been sanctioned. While they may have to deal with some complications with the police they also gain all the powers and protections of a private citizen. These protections will be fleshed out when we discuss searches and arrests, and invasions of privacy.

Next time we’ll see how these classifications come into play when dealing with the issue of superhero invasion of privacy. What is your remedy when Superman uses his x-ray vision to look into your house or when Professor Xavier gets a confession by reading your mind? Find out next time!

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