Tuesday, March 23, 2010


[Part of Law & Lawlessness Week]

Illustration by David Beyer, Jr.

Imagine the scene- a somber looking judge, a confused looking jury box, an evidence table piled high with ray guns and bat-a-rangs. On the witness stand is the latest lunatic to escape from the Arkham Asylum, or an eccentric gadget builder. And at the defense table, a caped crusader, clearly annoyed he has to sit through days of courtroom trial examining the property damage he caused in a high speed chase after criminals through the city, or a race around the world with the Flash.

Any superhero in this situation would probably want Zack Levine as representation. Zack started a blog called SUPERHERO LAW that examines comic book situations in a real world legal system. Although some of these are out of this world (like examining what kind of permits you’d need for a secret lair in space), several are relevant to “real life superheroes” out on the street today. Zack was kind enough to answer my questions in an e-mail interview posted in its entirety below.


Could you explain what Superhero Law is, how the idea developed, your background in law, and your interest in superheroes?

Superhero Law is a blog that analyzes the legal issues that comic, TV, and movie superheroes would face if they were subject to real-world laws. As the site develops I intend to include more discussions of the real laws that directly impact the recent "real life superhero" movement.

The idea started when I was in my first year of law school. I used comic book characters and situations to remember the analysis for intentional torts and criminal law. When I was studying for the California bar I found a number of topics that I had analyzed in class notes and outlines and decided to start a blog to organize the idea.

I manage a transactional law firm in Glendale, CA that handles contracts and intellectual property concerns primarily for new and small businesses. My job definitely has nothing to do with superheroes, but I have been a long-time fan of comics and cartoons. My father was an avid collector of comics in the '50s and '60s and passed his passion on to me.

Let’s start with anti-mask laws. I heard some compare these to the “Keene Act,” the law banning costumed crime fighters in Watchmen. My understanding, though, is that many of these laws on are the books because of the Ku Klux Klan. Could you explain?

I've heard the comparison of anti-mask laws to the Keene Act as well and plan to do a post in the future on the constitutional challenges such an act would face if the government actually tried to implement one.

You are correct though that none of these mask laws were actually drafted to address superheroes. Quite the contrary, most are rooted in efforts to thwart organizations like the Ku Klux Klan from holding public meetings. The theory was that if these groups were unable to hide their identity in public that their activities and membership would be curbed.

Some more modern anti-mask laws are focused more on public safety and law enforcement efforts. For example, many states have laws forbidding drivers from covering their faces while driving or from entering a bank with a mask on.

When researching my post on anti-mask laws for Halloween, I found laws in the following states: California, D.C., Florida, New York, North Carolina, Virginia and West Virginia. Violations of these laws range from misdemeanors, which carry small fines, to class 6 felonies, which can land you in jail for a few years and cost a few thousand dollars in fines.

A few RLSH have copyrighted their names and image. How much protection does this give them from being featured in media? I’ve heard of at least a couple journalists being told they couldn’t write about someone because they had copyrighted their name.

Copyright law protects an original expression of an idea that is fixed in a tangible medium. So while a superhero's persona could technically be registered under copyright law it would have to be "fixed" such as in a graphic novel or movie. Regardless of whether these persona could even be registered, writing about a superhero is almost certainly not an infringement of the copyright protection. All intellectual property protection carries certain exceptions for things like news reporting because the government, which grants protection, balances the benefits
to society of reporting the news against an individual's right to exclusively use an artistic work and determines that the dissemination of news is more important.

When it comes to taking pictures (in a journalism/news context) you're free to take pictures of pretty much anyone who is out in the open, with or without their consent. When you are in public you have almost no expectation of privacy and have to accept that someone can take your picture. Modern privacy law is actually an outgrowth of the development of modern cameras in the 1890s. The analysis is slightly different if you're using the pictures you take for something other than news reporting but there is still very little that someone can do if the picture was taken in public.

A production company was working on a reality show about RLSH. Their subjects had to sign a release form, and some of these RLSHs signed with their superhero alias names. Are contracts signed with superhero aliases valid?

Most contracts do not have to be in writing to be enforceable, in fact, the physical document that most people refer to as a "contract" is actually just a written memorial of the true contract, which is the intent of the parties to bind themselves to certain terms.

That being said, a contract that is signed using a pseudonym, or even not signed, is still enforceable against the party as long as that person intended to enter into an agreement. Absent some other evidence that the parties did not agree on specific terms of an agreement, it doesn't matter whether the superhero or his/her alter-ego signed the contract, it is still enforceable.

There seems to be some debate on what separates legal behavior from vigilante behavior.

Let's say one of the RLSH is out on patrol and he (or she) sees a man angrily yelling at a woman and slapping her. The hero makes the right first step and calls the police. What next? Can they physically intervene? Is it possible they will be breaking the law if they do?

The line between legal behavior and vigilante behavior is definitely unclear and is not only different in every state, it is constantly changing. Using your fact pattern as an example I will explain some of the more universal rules, but the details still vary from state to state.

After calling the police, if the hero witnesses the woman still being accosted, he/she may be privileged to physically intervene. While the altercation is still taking place, the woman is entitled to protect herself (self-defense), which includes taking action that is reasonably necessary to protect herself and stop her attacker.

The determination of what is "reasonable" in the self-defense context takes into consideration things like relative size, the level of aggression used, and even statements made by the attacker. If the woman were to overstep what is reasonable then the roles would reverse and she would be the new attacker and the former villain would have a right to defend himself against her. So for example, if the man is yelling at her and slapping her and she pulls out a gun and shoots him, that response may not have been proportional to his attack and if he survived the first shot he is probably privileged to take physical action to stop her from shooting him again.

Similarly, if she were to use physical force after he had stopped and there was no need for self-defense then she would be seen as the aggressor.

As a third party, the superhero watching these events unfold is able to step in and exercise whatever actions she could have taken on her own behalf. So, if she could have wrestled him to the ground as a reasonable response to his yelling and slaps, then the superhero could do the same.

The hero is also subject to the same limitations about taking action after the aggression and need for self-defense has come to an end (basically you can never chase a criminal down and lay a hand on them after the fact).

Additionally, I have been using the word "privileged," which comes into play when responding to your next question of whether they would be breaking a law. Technically, any use of physical force against another person is a criminal act, but in the case of self-defense or defense of a third party, the acts are privileged meaning they are excused under the law. Raising a self-defense or defense of others defense if you are charged with a crime such as battery is essentially an admission that you committed the crime but that you had a right to do so based on an exigent circumstance.

About the illustration- David Beyer, Jr. is a Milwaukee illustrator and cartoonist who actually had a brief stint as a courtroom sketch artist. You can see more of his work on his LiveJournal. The people depicted in the illustration are not based on actual RLSHs, lawyers, or judges.

Tomorrow- Oh boy, a whole lot of talk about vigilantes.


  1. Wow Tea, this is amazing information, especially the last part about the RLSH as a third party intervening to stop a crime such as one you described. You are really doing your homework and I am enjoying the read very much.

  2. Thanks, Mr. Jingles! Legal stuff tends to go over my head, so a lot of this info was really informative and interesting to me, too.

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  4. Very interesting in the basic idea of generic law applied to a unique situation.

    Any intervention by a third party has it's own elements that will be taken under consideration by the police officers at the scene. Of course this all depends on what state these actions are taking place in, as laws vary from state to state.

  5. Zack is a cool guy and has told me I can return with more questions in the future, so I'll probably try to compile a second round of questions for him.

    Zetaman- This is exactly something I'm going to bring up with tomorrow's write up and hopefully open a good dialog on.

    PK- Yeah, I think he wanted to make sure to note he was speaking on general terms and made that same point, that laws vary quite a bit depending on where you are.

    So if you're in, say, Colorado don't take your buddy from California's word on what the law is.

  6. All the information I provided for the interview and on my blog is definitely "generic" and not specific to any state. As far as I know though, there is no requirement in any state to make a statement before an engaging a criminal as long as you are within the confines of your rights to defend a third-party.

    You also don't HAVE to be willing to testify for the DA but if you do you will have to use your real name; the rules for pseudonyms discussed in the interview are only for contract law. In very very extreme and limited cases people have been allowed to testify under seal but the constitutional rights involved in confronting your accuser are almost always too strong. You can, however, give an anonymous tip, which can be considered in a resulting criminal case as long as the tip was ultimately corroborated by a police officer.

  7. The law is always secondary to justice.

  8. Zetaman, if you've ever actually had someone prosecuted due to a patrol I'll eat my fucking hat.

    And yeah, an anonymous tip always works. They just need the info to move forward with prosecution, and the arresting officer is usually pretty willing to corroborate.

  9. 1- I don't call myself a hero nor think of myself as one. I don't want anyone else calling me that neither. Call me Tothian.

    2A- When I see a woman being beaten, I don't stand there wasting moments calling the cops, I physically intervene. Let the victim call the cops, if they can't then you can but do it after you've ensured their safety. Who cares whether or not that's legally right if you saved a life.

    2B- Too many newcomers think it's not a patrol unless they're walking around in their uniforms, which is really a retarded way of thinking because patrols aren't about you nor about feeding your egos, they're about taking the necessary steps to protect your communities, in uniform or not. Usually better to conceal your uniform and/or armor, if you can.

    2C- If you do want to walk around calling the cops on criminals (being a "snitch" as the gangs will refer to you as, in their saying "snitches get stitches") don't do it in uniform. You'll draw too much attention trying to send the message that you think you're a badass and are looking for action when you might not be.

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  11. Zeta, not sure why you take pride in that, but ok. I suppose it's easy to resort to baby talk when logic always has you beat. I've seen you do this a lot, so go for it.

    Tothian is giving some good advice here, despite his reprehensible character, he certainly knows how to formulate a working theory about actually working in the real world. Ignore the fact that he recently made a terroristic threat against another RLSH, a good friend of his... and just listen to his advice.

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  13. No, I want this community to succeed. You make it easy to find the holes in your logic.

    You talk to anyone, ANYONE, and they'll tell you... I have no problem with being civil when the other person isn't being ridiculous. You, on the other hand, don't operate with logic. It's a constant battle with the bullies that gave you wedgies in high school. I keep saying this (and maybe it'll get through now that you can't censor it), but I'm NOT THE BULLY THAT PICKED ON YOU IN HIGH SCHOOL. So wake up, and stop trying to reclaim what they took from you.

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  15. I'm not going to put you down anymore, Zeta (unless you do something REALLY fucking crazy), but I have to say that I still think that you're maybe continuing your fight with your past in your current situation. I think if you just let that shit go, none of this would have happened.


  16. I would have to agree here with both Z and Tothian (can't believe that just came out of my mouth), there is a lot that goes into the grey areas in the real world. Regardless of what is perceived as black and white, it is better to look outside of that. If my life was endangered, I wouldnt want some guy across the street to call the cops and stand there reporting the incident while im being beat to death. I would rather they come and help, shit ill be the witness to the man/woman that helped me, and tell the cops what happened. I would not be concerned with proper operating procedure. Leave that bullshit to the cops.

  17. Thanks, as usual, to everyone commenting. Zack, thanks for the interview and I hope you stop by from time to time, it's good to hear your thoughts on legal matters.

    Tothian, thanks for the comment. It's well worded.

    People wonder why I use the word "movement" to describe what I'm writing about. A simple definition of the word is "a group of people with a common ideology." In a very general sense, most people in this scene are in it for a common reason- because they want to improve the world they live in and make it better and safer. After that, the method of the way of achieving that varies greatly.

    As we see here in the exchange between Z and Zetaman this leads to disagreements (which is common whenever you look at any group of people). Since people reading this might have no idea what's going on, I'm going to try to some up who these two people are.

    ZETAMAN is from Portland, OR. I would say his main focus is raising money for charity events and he has been succesful in this endevour. He also does street missions, handing out food and supplies to homeless, and safety patrols, which is much like something a neighborhood block watch would do.

    I think he feels media(both of his own creation and of existing outlets) is a good way to promote his causes. People reading about him will then be led to donating money or participating in charity events.
    * * * *
    Z is living in NYC and there he is working on getting a crew of RLSH and non-RLSH working together to mobilize and work on crime detection, prevention, and if need be, intervention.

    If he does charity work, he doesn't do it in his "Z" persona. His involvement with media is a limited number of projects he feels comfortable with.

    I'm sorry, guys, I know that this is a very short summation of who you are.

    That being said, I'd like to invite both of you to correct me if I've gotten it wrong, and explain a little bit more about who you are and why you've chosen to follow the methods that you do.

    And feel free to list your blogs/websites so people can read or see more about what you're all about.

  18. That pretty much nails it.

    Sorry about the back and forth, it's part of a longer history. It won't happen again.

    As far as websites, I just started one called The Initiative (www.tr1b3.webs.com) for the express purposes of uniting Help Resources. It's more of a human endeavor than an RLSH one, but RLSH are invited to join either in their persona or without. It's pretty dead right now, honestly, but that's fine with me. As long as it's there, I don't have to keep linking people to the HN or the RLSH (no offense) to try and get people on board with helping people. Some just don't like the RLSH angle.

    I invite anyone that wants to help in any capacity to come be a part of it, and help me brainstorm ideas and content for the site.

  19. This is really goos stuff Tea. You should go to the MPD citizen academy to learn more about this stuff and all about cops from the inside. Ask Groschopf about it.

    After reading your stuff and your sources/links, I think if RLSHs really want to be effective against crime, then they should organize more or less conventional neighborhood watches and safety walks. They should not use masks and secret identities when they are doing anything where there is a moderate likelihood of seeing crimes in progress. If they want to ratchet up the aggressive tactics some more, then the unmasked, trained, paramilitary RLSH are a good model for that. Those people should keep it on the down low, try to earn a wink and a nod from the local POs, and just focus on discretion.

    If anyone wants to wear masks, then they should only do it when they go to give toys to kids, or during the day at ball games and parades and other contexts that promote safety and community cohesion against crime. Build relationships with police, let them know who you are as a watch group.

    You could still have a secret identity and public superhero persona--nobody would know which neighborhood watch members do this. It would draw more positive attention to the real valuable work that gets no media attention: people working together with police and elected officials to secure their streets.

  20. I mean good stuff.

  21. Anonymous! I figured out who you are by your well thought out, critical responses. Thank you much for sharing. What you say has much wisdom, and I'm glad to hear what you have to say.

    I agree, media often is eager to tell you how terrible everything is, and very slow to show people working together to do something good. That is a case for RLSH bringing attention to good programs.


  23. Just to be clear, DC's law does not prohibit masks in a blanket manner. 22-3312.03 bans masks when used to hide the identity of someone when violating the law or if the person has the intent of intimidating people.