Wednesday, June 12, 2013

Getting to Know: James Daily, Ryan Davidson and Law and the Multiverse Part 3

Please read Part 2 of the interview before reading Part 3

Comics and the Law

1. From looking through your book, you reference varies laws and cases, and it would be hard to bring in a superhero unmasked to a court room.

a. However, is it possible to have a superhero appears at any level of the court system or type of court, whether it be state, supreme, federal, civil, criminal, etc. if s/he became a defendant or a witness to a case?

JD: This is a complicated question. For example, the Confrontation Clause only applies to criminal cases, which means that it’s possible that superheroes could testify while masked in civil cases.

RD: As James says, that’s a really complicated question. But I will say that of the half-dozen or so judges to whom I’ve put similar questions, not a single one hesitated to say that they’d order the person in question to take off their mask as a matter of course. There is no general right to anonymity, so any interaction between a masked character and the judicial system is going to probably result in the mask coming off.

b. How would someone subpoena a superhero if they have an undisclosed location? Random sighting?

JD: It depends on the applicable rules of procedure, but for example the traditional view under Rule 45 of the Federal Rules of Civil Procedure was that subpoenas had to be literally hand delivered to the person being served. Recently, however, courts have upheld service by certified mail or other forms of what is called “substituted service” reasonably calculated to achieve actual notice of the subpoena. Usually the party has attempted regular service first and get permission to try substituted service. One form of “last resort” substituted service might be publication in several newspapers.

c. If the superhero can’t appear in court for any reason, would it be possible to get a deposition and present it as a witness’s testimony in court?

RD: The “unavailability” of a witness for trial testimony is a well-developed area in the law of evidence. Depositions are taken under oath, so in cases where a person who has given a deposition is somehow unavailable for trial, the deposition is usually admissible, especially if the deposition was taken in the same case. Trying to get a deposition from a different case admitted is harder, especially when the other party wasn’t a party at the other case. But many states will permit the admission of a deposition into evidence even when the witness actually has testified in trial, particularly when trial testimony contradicts earlier deposition testimony.

2. When it comes to “security” and “protection,” some officers only have jurisdiction in certain areas, like school guards can only protect the school that they are hired for or police officers can only work in their designated locations. Since superheroes like Superman can fly between states and cities, would they need a security or special license to serve in specific jurisdictions?

JD: Superman is a private citizen. The advantage of this is that he can do what he does anywhere in the US. The disadvantage is that he can only do what any private citizen can do. Similarly, a police officer can conduct a citizen’s arrest outside of his or her normal jurisdiction, just like any other private citizen. It is only within their jurisdiction that they have the additional powers and immunities of a police officer.

RD: This is one area of the law that I believe we both consider comic book stories cover poorly most of the time. It seems almost certain that there would be at least some regulation of superhero activities. We license private investigators, bail bondsmen, and notaries public, so why not “masked vigilantes”? As it’s likely that this regulation would be done on a state level, it’s entirely possible that a hero might find themselves in trouble if they crossed state lines.

3. Out of curiosity, does the Good Samaritan Law apply to any superheroes? I think this depends on which state you are in? For example, Spider-Man tries to save someone who is falling from a skyscraper, he catches the individual by the wrist with his hand, but accidentally pops their shoulder and now they decide to sue Spider-Man for their injuries.

JD: Good Samaritan laws are a state law issue. They are primarily a liability shield, but many only apply to licensed medical personnel (e.g. doctors, nurses, EMTs, etc). The specifics vary from state to state, but typically they protect someone who voluntarily renders aid from liability except in cases of gross negligence or intentional misconduct. Essentially it eliminates liability for ordinary negligence. But since most superheroes aren’t licensed medical personnel, many if not most Good Samaritan laws would not apply to them.

4. Let’s talk about Affirmative Action, Compliance and Diversity. You know how sometimes you have to fill out self-identification cards that ask for your ethnicity: Asian, Black, Hispanic, White and Native American. If you’re a “non-human,” like a mutant, for example Beast, who is blue and furry:

-Would the government recognize them as a separate “race” and create a new category or just simply a group of individuals that developed abilities that others do not have, but they can fit in an already the established one?

RD: This would likely be a hotly-disputed issue in whatever world we’re talking about. It could go almost any way the writer wants it to go. It’s entirely possible that the legal system could decide that only humans have civil rights, and it’s conceivable that this could be restricted to baseline humans, e.g., not mutants. But extending protections currently afforded to “people” to entities other than baseline humans (and things which used to be baseline humans but have been altered somehow) would probably require some kind of legislative intervention. The courts have proven pretty reluctant to impute human rights to non-humans.

© 2013 Linda Thai

Photography by Linda Thai

Stay tune for Part 4 of the Law and the Multiverse interview.

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