Is Batman a State Agent?

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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 loopholes.

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.
In 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 limitations.” Evans 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?

This article is from the archive of our partner The Wire.