Batman--the belted vigilante who stops criminals only when Bruce Wayne
isn't doing something else--doesn't just unnerve stick-up men, penguin
people, and girls Bruce Wayne has a crush on. Even America's sharpest
constitutional scholars (on the Internet) don't know what to make of the
bat man. Particularly troubling to the folks at Law
and the Multiverse
is Batman's relationship to the Gotham City
police department. If Batman was operating with GCPD approval when he
blew up ten city blocks rather than allow Gotham's newly-faceless,
newly-insane district attorney die in peace on a crate, his reckless
behavior compromised the investigation's integrity. If he wasn't working
with the authorities, Master Bruce was just a serial killer sanctioned
by the Gotham chamber of commerce. Can such things be? These are the
questions that keep superheroes' lawyers' paralegals up at night. A
survey of the real-world law, and how it accounts for the DC Comics
Constitutional limitations on things like
censorship, discrimination, and search and seizure do not apply to
private individuals but rather to the federal government and, in some
cases, to the states. (The Thirteenth Amendment is a rare exception that
applies to individuals). As a result, evidence that a superhero obtains
by breaking into a villain’s headquarters is admissible even though it
was obtained illegally.
But what about superheroes like
Batman who work in close cooperation with the police? Could they fairly
be described as state actors, thus triggering a whole spate of
Constitutional protections? I think the answer may be yes.
Batman’s case, Commissioner Gordon is certainly a person for whom the
State is responsible, and Batman often acts together with Gordon and
obtains significant aid from Gordon in the form of information and
evidence. Batman’s conduct is also otherwise chargeable to the State
because the Gotham Police Department has worked with Batman on numerous
occasions (and thus knows his methods) and operates the Bat Signal,
expressly invoking Batman’s assistance in a traditionally public
function. This suggests state action under the public function theory:
“when private individuals or groups are endowed by the State with powers
or functions governmental in nature, they become agencies or
instrumentalities of the State and subject to its constitutional
v. Newton, 382 U.S. 296, 299 (1966).
Now, clearly none
of this is the case, so there are three possibilities. Either all of the
criminals in Gotham have incompetent attorneys, the state action
doctrine in the DC universe is weaker than it is in the real world, or
Gordon has actually managed to keep his reliance on Batman a secret. I’m
going to opt for the second explanation. Superheroes like Batman are
simply too effective for a court to shackle them with the Constitutional
limitations of the state, especially with supervillains running around.
Flawlessly argued, so much so that we're moving on to our next superhero legal quagmire: Does the Human Torch's
arson conviction violate the Americans with Disabilities Act?
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