Tag Archives: Starke is not a lawyer

Q&A: Superheroes, Violence, and Detractors

Why do characters in fiction get mad at heroes like Superman when he is clearly not a threat? Why do ‘good serration laws’ not seem to apply? If I saw someone save a child from a burning building that firemen couldn’t get to, I don’t think I would feel upset or scared at all. You could argue superheroes often use violence, but so do the police and the military, and it wouldn’t be too hard for Superman to join either of those to become legal. Do people only argue against superheroes for conflict?

Without knowing what you’re referring to specifically, this could be kinda tricky.

So, Good Samaritan laws protect you from legal consequences if you try to help someone and some harm occurs to them in the process. So, for example, if you try to administer CPR and break their ribs, you’re not legally liable.

For a superhero, this could potentially protect them from legal repercussions for injuries suffered when they try to save someone from a burning building. I’m saying, “potentially,” because, rather obviously, case law involving superheroes is rather limited. (This isn’t a joke by the way, there is a little bit of case law because of the Phoenix Jones stuff.)

For the record: I am vastly oversimplifying how these work, so don’t take this as legal advice. Also worth remembering that Good Samaritan laws don’t always protect you.

As for why this doesn’t seem to appear in comics, probably because most comic writers don’t have a full understanding of the law. This isn’t really a criticism, the law is a pretty complex topic, and it does fall outside the range of most writers who don’t specialize in that. In fact, courtroom scenes are the frequent bane of Daredevil writers.

So, there’s one huge jump here, Good Samaritan laws do not permit you to use violence. These are designed to protect you from being sued because you broke someone’s ribs. They do not give you permission to attack someone else.

There’s also a minor irony here in that it’s impossible for Superman to join either the military or police because he can’t, really, undergo a physical. I’d stick this under trivia, rather than a serious issue though.

Police and military do have the ability to use violence in the course of their work, but that is not without significant restrictions. Just because you’re a cop doesn’t mean you have carte blanch to inflict violence as you see fit. In some ways, in spite of having more powerful weapons, their options are even more restricted. So, while you can have a cop who’s secretly a superhero, you can’t, really, have a police superhero who uses force indiscriminately.

Yes, I realize Robocop (1987) subverts that statement. It’s kinda the point of the film.

There’s also plenty of superheroes who are cops in their day job, but then moonlight as superheroes to do things they can’t normally. In the real world (and most superhero comics), that is illegal.

Police are granted more authority, but that authority comes with procedures which are designed to protect the rights of innocent civilians. While it’s easy to create hypothetical situations where a cop knows they have the guilty party, and elect to break the law to stop them, in the real world, that kind of behavior can also allow a lazy cop to target someone who is innocent, simply to make themselves look better to their bosses, or protect themselves from embarrassment.

A superhero who uses violence indiscriminately is no better than a criminal. Just because you have the power to kill someone doesn’t grant you the right to do so. In the event that you’re dealing with superheroes who are so powerful they cannot be constrained by conventional law enforcement, you do have a real problem.

Another problem is that fights between significantly powerful heroes can result in a lot of collateral damage. We’re talking about billions of dollars to repair the city’s infrastructure because an alien decided it was time to throw down with someone else from his home planet.

So, two kinds of “heroes.”

You have low power (or unpowered) characters who are basically humans with some extra perks going out and killing one another. There’s no magic way of saying, “oh, yeah, that one was the good guy.” Especially when you’re rolling up on a scene where one guy decided to kill dozens of people. Turns out the victims were drug dealers, but that doesn’t tell you that the person doing the killing was a good person and not just a new rival.

You have high power, godlike, characters like Superman who have a real danger of tearing the city apart. While characters like Superman tend to be pretty careful with their power, there are plenty of examples of superheroes in a similar weight-class who don’t pay much attention to how much damage they do when they’re punching each other through buildings. At that point, it doesn’t really matter from a practical stand point who’s good, or who’s bad, when both parties pose a significant threat to people going about their daily lives.

In both cases, you also have a real risk of a hero being mislead, either by deliberate misdirection, or simply jumping to the wrong conclusion and making a mess of a situation.

There are a few things that can help. A superhero who is more careful about their use of force can be viewed by the police in a more positive light. Characters like Superman and Batman enjoy strong relationships with the local police, and even characters like Daredevil have a respected status, because of their reputation. In the extreme example, because of his meticulous approach, even The Punisher is often viewed positively by police in his world, even though what he’s doing is extremely illegal.

It’s also possible to have a superhero like Hellboy or Nick Fury who is, officially, part of a governmental organization specifically tasked with handling threats that conventional law enforcement is unable to.

As for people hating superheros? That can be from a lot of different causes. The simplest answer may simply be that the superhero in question has a reputation. This could be they’ve made mistakes in the past, and jumped to conclusions, with tragic results. Could be their powers come from some, “evil,” source. Could be someone holds a grudge against them, or playing them as the bad guy just sells papers. It’s not a short list.

A superhero’s origins could have some significance in setting. One example is Lex Luthor: who views Superman as a threat to humanity. How coherent this is varies, but there is some logic to his position. Kryptonian refugees include some incredibly dangerous supervillains, and even Superman isn’t infallible, so Luthor’s position has some merits, even if he is a textbook supervillain.

When you’re writing antagonists for your superheroes, it’s important to parse out why characters might be opposed to your heroes. Rational grievances are better for your story.

If your superhero just killed a bunch of people without much provocation; that’s going to get some push back.

-Starke

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I have a question to followup your latest post. Would the situation change at all if there were original characters, in an original setting, writing a fanfic about a copyrighted work?

With the important reminder that, I’m not a copyright attorney, or any kind of lawyer, for that matter. I’m not saying this as some kind of waver, it’s important to remember, when it comes to the law, my opinions are basically one step above amateur. I took some pre-law classes in college, but opted out of “high school with alcohol poisoning.”

As with all copyright law, this kind of a thing is incredibly contextual, and I’m going to err on the side of caution with this.

If it’s just that you have a character who’s writing a fan fiction of something, then it should be fine.

If you’re intending to also write large excerpts of the fan fiction, include them in the story, and you’re writing professionally, then it’s a little dicier.

The status quo for fan fiction has been, it’s okay to write it, but you can’t sell it. This is entirely based on the whims of the rights holders, and a few are really touchy about fan fiction.

If you’re writing professionally, and this is a story you want to sell, my advice would be to create your own material for them to write a fanfic of. This means you need to do three things. Write the frame story, write the subject matter for the fanfic, and write the fanfic itself. Ironically, this isn’t legal advice, it’s strictly from a writing perspective.

When you’re writing a framed narrative, your themes and concepts need to move fluidly between the frame and the story inside. When you’re writing a fanfic based on a real property, you’re already partially confined by the themes intrinsic to that material. When you’re writing all three, you have full control over the thematic content.

While it might seem easier to write a fanfic for a show you love, it will actually be easier on you to create all three stories from scratch on the spot.

-Starke

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If a character were to fake their own murder (as in frame themself) would they be arrested after the ruse was discovered, or would there not be a good enough case against them? This is assuming that the person making the arrest is a model, law-abiding, cop and that the character hadn’t broken any/other laws.

Well, first, please keep in mind that I’m not a lawyer. But, I’m pretty sure framing yourself for your own murder while instead faking your own death is called “faking a suicide.” Or, more elegantly, “Psuedocide.” When you set out to kill yourself, that’s not generally called “murder.” I mean, the term kind of works, but not really.

Murder is where you kill someone else. Suicide is where you kill yourself. You can’t really murder yourself. (At least barring some kind of long-chain comedy of errors.)

Framing usually refers to setting someone else up for a crime they didn’t commit. In the modern world, for someone who is not directly involved in the investigation, they’re basically a fiction.

There’s two exceptions. It’s entirely possible to frame yourself for a crime you didn’t commit. By messing with the crime scene before the police get there, using the murder weapon on a wall before the cops get there, for example. Also offering a false confession is, unfortunately, a fantastic way to derail an investigation onto yourself. If your character’s goal is to take the (figurative) bullet for someone else, this is a real option.

If your character’s deception is exposed, they’d be subject to different criminal charges for obstruction of justice, filing a false police report, or even perjury, depending on the circumstances. They carry much lighter penalties than murder, but lying to the cops to interfere with an investigation is a crime.

The other exception is if the character doing the framing is formally involved in the investigation. If that’s the case, and they have an ulterior agenda, then they have a lot of leeway to manipulate the case towards a suspect of their choosing, and tragically, it works.

This ranges from steering the investigation initially, to unscrupulous actions in the courtroom. An unscrupulous ADA may withhold exculpatory
evidence in order to further pad their win record, or pressure plea
agreements out of innocent parties because they’re being graded on
winning, not on getting it right.

Juries are disproportionately trusting of presented forensic evidence. Even when those forensics really boil down to the expert on the stand presenting an opinion as fact. Which was the case with most of the FBI hair and bite matching forensics.

There was a major scandal back in 2013, where it was revealed that a chemist (Annie Dookhan) in a Massachusetts drug lab was faking drug test results rather than actually processing them normally, and reported false positives. In at least some cases, she actually added cocaine to samples to return positives. Very rough back of the napkin math suggests her evidence may have tainted over forty thousand cases.

On top of that, there’s research out there now, showing that drug and
bomb dogs are far better at responding to their owner’s non-verbal cues
then actually sniffing out, well, bombs or drugs. Which is incidentally
why they sometimes appear to be racist. It’s not the dog, it’s its
owner.

We even have what’s called “parallel reconstruction” where law enforcement officers will actually falsify evidence in order to convict someone because they “know” they have the right guy. Usually because of surveillance that originated with PRISM, Minaret or another intelligence operations. Until recently, the DEA operated a Special Operations Department (SOD) with the explicit purpose of taking surveillance from NSA operations and then constructing falsified cases around criminal activity that had been exposed.

What I’m saying is, today, in America, if you’re being framed for a crime, it’s going to be by the police, or someone in law enforcement. Not some random guy who pretended to die.

It’s probably worth stressing that this still isn’t the norm, nor is it intentionally malicious behavior (most of the time.) But, pressuring officers to deliver arrests (via quota systems), grading prosecutors on their win ratios, and evaluating everyone in Law Enforcement by how much work they do encourages people to apply their authority indiscriminately, rather than ensuring that justice is actually served.

But, it should illustrate how many tools a malicious cop, with an agenda, and some familiarity with the job, has to implicate the suspect of their choosing. If you haven’t seen James Duane and George Bruch’s Don’t Talk to the Police video you can find a copy here. Listen to what Bruch is saying, and keep in mind that all of this also applies doubly when dealing with an officer who has an agenda.

Also, keep in mind that an officer who is caught manipulating an investigation in this way will be crucified by their fellow officers. It’s easy to sit back and look at the state of law enforcement and say the blue shield protects all, but an officer who can’t pawn off their malicious actions as incompetence will not be accepted.

Now, someone who fakes their own death are going to be up for criminal charges. Those may range from wasting police resources to tax evasion. Which sounds a lot more amusing than the actual felony charge. Also anyone who claimed they saw the “victim” die could be charged with filing a false police report. Those will vary state to state, and it is possible in some states it’s illegal to fake your own death, (though, I know it’s not in California).

Unfortunately, overturning a murder (or any) conviction based on exculpatory evidence is not an easy process. So if your character was convicted for killing someone who later turned up alive and unharmed, it’s not as simple as saying, “well, clearly I couldn’t have done it, you should let me out now.” It’s going to take years bouncing in and out of appeals courts.

Worse, plea agreements actually preclude the possibility of appeal. So if your character pled to life in prison to avoid the death penalty, the part where the person they supposedly killed is up and alive won’t get them released.

At each step there is the possibility of the prosecutor and judge actually realizing how stupid the situation is and reversing their error, but in the case of a plea, the defendant actually can’t initiate that.

Anyway, as always, I’m not a lawyer, so take this with a grain or twenty of salt.

-Starke