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| | ==WORKING NOTES== | | ==WORKING NOTES== |
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| − | Costumed Identities are recognized as legal identities so heroes can testify in court, open bank accounts and charities in under their code name, and stuff like that. You'll probably want an amendment says if the costume identity commits a crime, the protection is forfeit.
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| − | The use of powers is assault, except in cases of self-defense and stopping crimes. Depending on the setting and tone, the hero might be picked up for excessive force.
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| − | Perhaps a protection from civil, so heroes don't get sued for damage during a super fight. Except of course when the hero is willingly negligent (shooting through a hostage, for example).
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| − | Superheroes are exempt from reading the Miranda warning, warrants and such because they aren't official law enforcement.
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| − | Basically, it depends on what kind of feel you want. If you want a more realistic legal system or supers are a recent phenomenon you probably just want real laws, but supers have a lot of hoops to jump through and probably have to be official law enforcement agents to actually do anything. If it's a traditional "supers have always been around preventing crimes" story then I would just assume everything they do is legal and laws have been passed throughout the years, because the world knows that superheroes are needed to protect everyone from alien invaders and giant robots that governments are not necessarily equipped to handle.
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| − | What is a Citizens Arrest?
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| − | By: Collin McKibben, Attorney at Law & Ariella Rosenberg
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| − | Everyone is familiar with the term citizens arrest: we have seen it on TV, read about it in books, and even heard about it in social circles. Surprisingly, however, almost nobody really understands what a citizens arrest is, or legally, what it represents.
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| − | A citizen's arrest is an arrest performed by a civilian who lacks official government authority to make an arrest (as opposed to an officer of the law). An arrest, as defined by Black's Law Dictionary, is "The apprehending or detaining of a person in order to be forthcoming to answer an alleged or suspected crime." Ex parte Sherwood, (29 Tex. App. 334, 15 S.W. 812).
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| − | Although generally the person making a citizens arrest must be a citizen, in certain states, a citizens arrest can be carried out by a civilian who is not a citizen (for example, an alien or illegal immigrant). A citizens arrest does not necessarily mean an arrest made by a single individual who happens to witness a crime. For example, a department store may also carry out a citizens arrest in the course of apprehending a shoplifter.
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| − | Legal Requirements for Making a Citizens Arrest
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| − | The right to making a citizens arrest goes back to our roots in English common law. Historically, before the modern infrastructure of police departments, citizen's arrests were an important part of community law enforcement. Today, citizens arrests are still legal in every state, although state laws pertaining to citizens arrests are not uniform. In general, all states permit citizens arrests if a criminal felony (defined by the government as a serious crime, usually punishable by at least one year in prison) is witnessed by the citizen carrying out the arrest, or if a citizen is asked to help apprehend a suspect by the police. Variations of state law arise in cases of misdemeanors, breaches of the peace, and felonies not witnessed by the arresting party.
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| − | For example, California Penal Code mandates:
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| − | A private person may arrest another: 1. For a public offense committed or attempted in his presence. 2. When the person arrested has committed a felony, although not in his presence. 3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it. (C.P.C. 837).
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| − | In contrast, New York State Consolidated Laws hold that:
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| − | Any person may arrest another person (a) for a felony when the latter has in fact committed such felony, and (b) for any offense when the latter has in fact committed such offense in his presence. (N.Y.C.L. 140.30).
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| − | Unlike the California statute, which only permits citizens arrests in cases of felony, New York law extends the possibility for making a citizens arrest to any offense committed in [ones] presence. Additionally, in cases where the citizen has not necessarily witnessed the crime being committed, California law allows citizens arrests when a citizen has reasonable cause for believing the person arrested to have committed [a felony], whereas New York law applies only to situations in which person has in fact committed a felony. Distinctions such as these are importantunwarranted citizens arrests can result in repercussions (such as law suits) for well-meaning citizens who attempt to make arrests without understanding local laws. It is important to be familiar with the laws in your particular state should you want to carry out a citizens arrest, or should a citizen try to unlawfully detain you.
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| − | Anatomy of a Citizens Arrest
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| − | Once a person has committed an offense meriting a citizens arrest (under the applicable state law), the arresting party must follow certain guidelines to detain and deliver to authorities the suspect in question. Acceptable guidelines for carrying out a citizens arrest also vary by state. In general, the arresting party must notify the suspect as to why he or she is being arrested, and may enter the building or private residence where the suspect is residing, using a reasonable amount of force to apprehend the suspect. In California, for example, To make an arrest, a private person, if the offense is a felonymay break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing the person to be, after having demanded admittance and explained the purpose for which admittance is desired. (C.P.C., 844). In New York, A person may arrest another person for an offenseat any hour of any day or night. 2. Such person must inform the person whom he is arresting of the reason for such arrest unless he encounters physical resistance, flight or other factors rendering such procedure impractical. 3. In order to effect such an arrest, such person may use such physical force as is justifiable pursuant to subdivision four of section 35.30 of the penal law. (N.Y.C.L. 140.35).
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| − | Once the suspect has been taken into custody (by the citizen), it is the citizens responsibility to deliver the suspect to the proper authorities in a timely fashion. In California, A private person who has arrested another for the commission of a public offense must, without unnecessary delay, take the person arrested before a magistrate, or deliver him or her to a peace officer. (C.P.C. 847). In New York, a citizen must also act without unnecessary delay to deliver a suspect to an officer of the law. (N.Y.C.L. 140).
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| − | Dangers of Making an Erroneous Citizens Arrest
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| − | Making a citizen's arrest maliciously or with insufficient evidence of wrongdoing by the arrested individual can lead to civil or criminal penalties. Additionally, it is in violation of a suspects rights for a citizen making an arrest to use unnecessary force, to intentionally harm the suspect, to hold the suspect in unsafe conditions, or to delay in turning the suspect over to authorities. A citizen making an arrest is acting in the place of an officer of the law, and as such, is required to uphold the same rights and civil liberties as an officer of the law must uphold.
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| − | A citizen who violates a suspects rights, or who violates the applicable state law in detaining the suspect, (for example, arresting a suspect for a misdemeanor when the state statute requires a felony for a citizens arrest), risks being sued or even charged with a crime. Additionally, if it is found that the arresting party did not meet the pertinent state requirements for a citizens arrest, any contraband found on the suspect will have been found illegally, and charges may be dropped entirely.
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| − | If you feel that you have been unfairly arrested by a citizen, or if you have been charged with illegally detaining a suspect during an illegitimate citizens arrest, it is important to seek the counsel of an experienced attorney. A good attorney will demonstrate familiarity with state laws, and as such will help you to ensure the best possible outcome of your case.
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| − | It may also be possible to set up a superhero identity as an agent of a corporation (e.g. Iron Man is Tony Stark's bodyguard), in which case the corporation can represent the super in court. This mostly covers civil liability, not criminal liability, as far as I know, and it generally requires the corporation to have quite substantial legal and financial assets, and thus it only works if the super is either independently wealthy, or has a wealthy patron.
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| − | serious physical injury or death, either of one's self or another. Moreover, many states impose a duty to retreat, claiming that if the aggresively-defending party had the option of retreating without risk but chose not to do so, that they were not truly in fear of injury or death.
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| − | Versus supervillians, this statute pretty much goes away. If you're in a Silver Age comic, then the villians aren't inducing fear of serious physical injury; on the other hand, you're not about to go killing them, either. However, the law is clear; if the villian is threatening innocents, then you can kill him, with full legal sanction.
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| − | However, in addition to crooked DAs and ambiguous acts of violence, there are also civil cases to consider. Private citizens have no protection against civil judgement for either self-defense or citizen's arrests; even if they act completely in accord with the letter of the law, they can still be sued.
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| − | Plot hook I've used: There exists the Super-Villian's Civil Liberties Union, who specialize in (and are very highly paid to) getting superheros in legal hot water over their perfectly legimate acts of civic duty. Although their funding comes from morally-questionable sources, they are legitimate about their purpose. More than a few superheros have suggested that when the monsters come, if they happen to start their rampage at the SVCLU, they'll just be a few minutes late. However, the most ethical supers will and have fought to preserve the lives of lawyers that will sue them for acts of destruction of property and assault committed in the very act of saving said lawyers. As these supers say, if you're not willing to fight your hardest to save the people you most disagree with, you're not really for saving humanity. (Notice: In case my paraphrase didn't tip you off, such an organization would be the evil opposite of the ACLU.)
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| − | Being more (or less) than human.
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| − | OK, let's get one thing clear. In a world without angels, reincarnated souls, undead, sentient robots, mutants, aliens, talking animals, creatures from the dawn of time, elemental spirits, nonsentient robots that can pass Turing tests, and the like, we still have no legal definition of humanity. In a world with said confounding factors, it is reasonable to assume that the laws defining what constitutes a person will be tangled and muddled beyond comprehension, leaving the question of personhood in any specific questionable case permanently open.
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| − | Plot Hook I've Used: Following the trend started with the golem Emet, the nation of Israel has embarked on an extraordinary policy of super-human immigration. Many non-human or questionably-human supers, in return for agreeing to a mutual non-aggression pact and general statement of goodwill, are granted naturalized citizen status, with accompanying implied personhood to any nation with diplomatic ties to Israel. When asked about the moral questions raised by such a policy and whether or not such open pronouncements of personhood could be a mistake, a prominent rabbi replied, "I'm pretty sure that if we're to make a mistake, God would prefer it to be one of too much acceptance and openness rather than not enough." Critics of Israel say that the policy is nothing but a naked excuse to build up a superhuman paramilitary force; however, they've been saying things like this for so long, no one's listening now that it might have a slight chance of being true.
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| − | Costumes and Masks:
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| − | Superheros start with a fair amount of legal sanction to be vigilantes; doing so anonymously takes it all away. Simply being out in public in a full-face mask is considered evidence of criminal intent in many jurisdictions, and in no jurisdiction is doing so and then beating people up considered a private-citizen best practice. Refusing to legally identify one's self and testify at a villian's trial could throw doubt on the certainty of the villian's conviction, and would certainly weaken the evidence the hero presented. All in all, if you want to have your heros have a slightly scruffy relationship with the law, you'll have better luck doing it over the masks than actual beating up of the super-villians.
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| − | How do superheros and supervillians enforce their trademarked images? This is actually a very serious issue; a supervillian with illusion, morphing, or even just tailoring ability can quickly ruin a hero's image by aping that hero and sinning in public. Moreover, what's to stop smart-alecs from getting their own costumes and masks and trying (and failing) to join the ranks of the super-powered?
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| − | Plot hook I've used: Hero fights. Every so often, heroes get together and have their own competitive event, with any number of special categories, and terminating in a gigantic brawl at the end. It lets the paragon heros get out their athletic urges without shaming Olympic athelets, lets newcomers to the hero scene showcase their abilities, and finally, serves as a reminder to all of the heroes present why the organizers of said event (who win a lot of the events) are the ones making global-spanning decisions about super-heroism.
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| − | Section 35.00 Justification; a defense
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| − | In any prosecution for an offense, justification, as defined in sections 35.05 through 35.30, is a defense.
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| − | Section 35.05 Justification; generally
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| − | Unless otherwise limited by the ensuing provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offense is justifiable and not criminal when:
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| − | 1. Such conduct is required or authorized by law or by a judicial decree, or is performed by a public servant in the reasonable exercise of his official powers, duties or functions; or
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| − | 2. Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. Whenever evidence relating to the defense of justification under this subdivision is offered by the defendant, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense.
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| − | Section 35.10 Justification; use of physical force generally
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| − | The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances:
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| − | 1. A parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one or an incompetent person, and a teacher or other person entrusted with the care and supervision of a person under the age of twenty-one for a special purpose, may use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.
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| − | 2. A warden or other authorized official of a jail, prison or correctional institution may, in order to maintain order and discipline, use such physical force as is authorized by the correction law.
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| − | 3. A person responsible for the maintenance of order in a common carrier of passengers, or a person acting under his direction, may use physical force when and to the extent that he reasonably believes it necessary to maintain order, but he may use deadly physical force only when he reasonably believes it necessary to prevent death or serious physical injury.
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| − | 4. A person acting under a reasonable belief that another person is about to commit suicide or to inflict serious physical injury upon himself may use physical force upon such person to the extent that he reasonably believes it necessary to thwart such result.
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| − | 5. A duly licensed physician, or a person acting under a physician's direction, may use physical force for the purpose of administering a recognized form of treatment which he or she reasonably believes to be adapted to promoting the physical or mental health of the patient if (a) the treatment is administered with the consent of the patient or, if the patient is under the age of eighteen years or an incompetent person, with the consent of the parent, guardian or other person entrusted with the patient's care and supervision, or (b) the treatment is administered in an emergency when the physician reasonably believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.
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| − | 6. A person may, pursuant to the ensuing provisions of this article, use physical force upon another person in self-defense or defense of a third person, or in defense of premises, or in order to prevent larceny of or criminal mischief to property, or in order to effect an arrest or prevent an escape from custody. Whenever a person is authorized by any such provision to use deadly physical force in any given circumstance, nothing contained in any other such provision may be deemed to negate or qualify such authorization.
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| − | Section 35.15 Justification; use of physical force in defense of a person
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| − | 1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:
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| − | (a) The latter's conduct was provoked by the actor with intent to cause physical injury to another person; or
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| − | (b) The actor was the initial aggressor; except that in such case use of physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or
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| − | (c) The physical force involved is the product of a combat by agreement not specifically authorized by law.
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| − | 2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
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| − | (a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is:
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| − | (i) in his or her dwelling and not the initial aggressor; or
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| − | (ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter's direction, acting pursuant to section 35.30; or
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| − | (b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or
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| − | (c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.
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| − | Section 35.20 Justification; use of physical force in defense of premises and in defense of a person in the course of burglary
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| − | 1. Any person may use physical force upon another person when he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of a crime involving damage to premises. Such person may use any degree of physical force, other than deadly physical force, which he or she reasonably believes to be necessary for such purpose, and may use deadly physical force if he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of arson.
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| − | 2. A person in possession or control of any premises, or a person licensed or privileged to be thereon or therein, may use physical force upon another person when he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of a criminal trespass upon such premises. Such person may use any degree of physical force, other than deadly physical force, which he or she reasonably believes to be necessary for such purpose, and may use deadly physical force in order to prevent or terminate the commission or attempted commission of arson, as prescribed in subdivision one, or in the course of a burglary or attempted burglary, as prescribed in subdivision three.
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| − | 3. A person in possession or control of, or licensed or privileged to be in, a dwelling or an occupied building, who reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon such other person when he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary.
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| − | 4. As used in this section, the following terms have the following meanings:
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| − | (a) The terms "premises," "building" and "dwelling" have the meanings prescribed in 140.00;
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| − | (b) Persons "licensed or privileged" to be in buildings or upon other premises include, but are not limited to:
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| − | (i) police officers or peace officers acting in the performance of their duties; and
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| − | (ii) security personnel or employees of nuclear powered electric generating facilities located within the state who are employed as part of any security plan approved by the federal operating license agencies acting in the performance of their duties at such generating facilities. For purposes of this subparagraph, the term "nuclear powered electric generating facility" shall mean a facility that generates electricity using nuclear power for sale, directly or indirectly, to the public, including the land upon which the facility is located and the safety and security zones as defined under federal regulations.
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| − | Section 35.25 Justification; use of physical force to prevent or terminate larceny or criminal mischief
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| − | A person may use physical force, other than deadly physical force, upon another person when and to the extent that he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of larceny or of criminal mischief with respect to property other than premises.
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| − | Section 35.27 Justification; use of physical force in resisting arrest prohibited
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| − | A person may not use physical force to resist an arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer or peace officer when it would reasonably appear that the latter is a police officer or peace officer.
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| − | Section 35.30 Justification; use of physical force in making an arrest or in preventing an escape
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| − | 1. A police officer or a peace officer, in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he or she reasonably believes to have committed an offense, may use physical force when and to the extent he or she reasonably believes such to be necessary to effect the arrest, or to prevent the escape from custody, or in self-defense or to defend a third person from what he or she reasonably believes to be the use or imminent use of physical force; except that deadly physical force may be used for such purposes only when he or she reasonably believes that:
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| − | (a) The offense committed by such person was:
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| − | (i) a felony or an attempt to commit a felony involving the use or attempted use or threatened imminent use of physical force against a person; or
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| − | (ii) kidnapping, arson, escape in the first degree, burglary in the first degree or any attempt to commit such a crime; or
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| − | (b) The offense committed or attempted by such person was a felony and that, in the course of resisting arrest therefor or attempting to escape from custody, such person is armed with a firearm or deadly weapon; or
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| − | (c) Regardless of the particular offense which is the subject of the arrest or attempted escape, the use of deadly physical force is necessary to defend the police officer or peace officer or another person from what the officer reasonably believes to be the use or imminent use of deadly physical force.
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| − | 2. The fact that a police officer or a peace officer is justified in using deadly physical force under circumstances prescribed in paragraphs (a) and (b) of subdivision one does not constitute justification for reckless conduct by such police officer or peace officer amounting to an offense against or with respect to innocent persons whom he or she is not seeking to arrest or retain in custody.
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| − | 3. A person who has been directed by a police officer or a peace officer to assist such police officer or peace officer to effect an arrest or to prevent an escape from custody may use physical force, other than deadly physical force, when and to the extent that he reasonably believes such to be necessary to carry out such police officer's or peace officer's direction, unless he or she knows that the arrest or prospective arrest is not or was not authorized and he may use deadly physical force under such circumstances when:
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| − | (a) He reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or
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| − | (b) He is directed or authorized by such police officer or peace officer to use deadly physical force unless he knows that the police officer or peace officer himself is not authorized to use deadly physical force under the circumstances.
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| − | 4. A private person acting on his or her own account may use physical force, other than deadly physical force, upon another person when and to the extent that he or she reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom he or she reasonably believes to have committed an offense and who in fact has committed such offense; and he or she may use deadly physical force for such purpose when he or she reasonably believes such to be necessary to:
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| − | (a) Defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force; or
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| − | (b) Effect the arrest of a person who has committed murder, manslaughter in the first degree, robbery, forcible rape or forcible criminal sexual act and who is in immediate flight therefrom.
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| − | 5. A guard, police officer or peace officer who is charged with the duty of guarding prisoners in a detention facility, as that term is defined in section 205.00, or while in transit to or from a detention facility, may use physical force when and to the extent that he or she reasonably believes such to be necessary to prevent the escape of a prisoner from a detention facility or from custody while in transit thereto or therefrom.
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