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Batman: A Fourth Amendment Analysis

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I am a lawyer so you have to listen to me.

Photo by Harmony Gerber/Getty Images. Banner Society Illustration.

As a former attorney, my legal education has three present uses:

1. Nodding thoughtfully when a coworker asks me a question and saying “you know, I really don’t remember that area of law in the slightest.”

2. Explaining to new acquaintances that yes, I did used to have a real job, and now I do whatever this is, and I also find this development confusing and alarming.

3. Thinking about whether or not Batman’s violating the Constitution.

Today, I’ll be tackling the third item. Please note: Others have already hit upon this topic elsewhere, so I am but one humble contributor to the thriving field of Bat Law.

First, let’s review a few core concepts.

THE CONSTITUTION SAYS THAT YOU/YOUR STUFF CANNOT JUST BE ARBITRARILY MESSED WITH

That’s a broad enough summary to cover several Amendments (Third through Eighth, at the very least), but we’re going to focus this discussion on the Fourth Amendment, which states the following:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Over time, the subparts of the Fourth Amendment – what makes a search reasonable, when does a seizure actually take place, what kind of particularity is necessary for a warrant – have been litigated and relitigated. It is a fascinating body of law, especially since the circumstances it applies to have gone from “can the government put a listening device on a public phone?” to “what happens if the government uses a thermal imaging device to see if you’ve got grow lamps in your garage?”

We’re not going to get into the weeds of that here. If that’s what you’re looking for, you can always pay a lot of money to go to law school.

THE FOURTH AMENDMENT DOES NOT USUALLY APPLY TO PRIVATE CITIZENS …

The Supreme Court has consistently held that Fourth Amendment restrictions do not apply to actions taken by private individuals, even if their actions are unreasonable. Take United States v. Jacobsen, for example. FedEx employees inspected a package that had been damaged by a forklift and discovered a bag with a powdery substance inside. They contacted the DEA, who tested the powder (without obtaining a warrant), determined it was cocaine, and then arrested the addressees. In a 7-2 decision, the Court found the actions of the FedEx employees, “whether they were reasonable or unreasonable … did not violate the Fourth Amendment because of their private character.”

… BUT PRIVATE ACTIONS CAN VIOLATE THE FOURTH AMENDMENT WITH SUFFICIENT GOVERNMENT INVOLVEMENT

Who conducts a search or seizure doesn’t solely determine whether the Fourth Amendment applies, however. If the DEA had called FedEx ahead of time and said “Hey, go get this package, check it for anything suspicious, and call us back,” the employees then wouldn’t really be acting in a non-governmental capacity.

One of the seminal cases on this topic that also sounds like a Simpsons episode is Skinner v. Railway Labor Executives’ Association, in which the Federal Railroad Administration required railroad companies to collect urine and blood tests from railway employees after major accidents, and authorized similar tests for safety rule violations. Technically, the government wasn’t conducting any searches or seizures here – the railroad companies were – but the Court found the Fourth Amendment still applied because “the Government did more than adopt a passive position toward the underlying private conduct.”

There is no simple test to determine whether a private action becomes subject to the Fourth Amendment. Courts are supposed to weigh governmental participation in the private party’s activities in light of the surrounding circumstances, and mere knowledge of those activities doesn’t usually amount to enough.

THERE IS ONE REMEDY FOR A FOURTH AMENDMENT VIOLATION

If a defendant successfully argues that certain evidence was acquired via government behavior (or private action with sufficient governmental participation) in violation of their Fourth Amendment rights, the evidence will be excluded from the ensuing trial, along with any evidence that was discovered because of that intrusion. If a defendant lost that argument at trial but wins on appeal, they may have their conviction overturned.

Ok, so let’s get to the Batman part of all of this.

BATMAN IS A PRIVATE CITIZEN

Bruce Wayne is not on the Gotham City Police Department payroll or organizational chart, and is not employed by the City of Gotham as a contractor. He was not elected or appointed to the position of Batman. Even if he wanted to, Batman could not ask a magistrate judge to issue him a search warrant, though this courtroom scene would be very amusing and I would very much like to see it in a comic book. We therefore cannot assume his actions are subject to Fourth Amendment limitations.

IS BATMAN AN AGENT OR INSTRUMENT OF THE GOVERNMENT?

Because this is a necessarily fact-intensive inquiry, we can’t reach a permanent conclusion here. If Batman receives a message from Riddler, and uses it to follow a pattern of clues that lead to evidence that Riddler’s committed a crime, he can probably deliver that evidence to the police without any issue. Batman acted entirely on his own, without the police assisting or even knowing about his investigation. This is even more true of early Batman; the GCPD believes him to be a vigilante they want to stop, not a partner in law enforcement.

But then there’s the Bat-Signal, which, for Constitutional purposes, might as well swap Batman’s logo out for HEY BATMAN COME DO SOME COP THINGS FOR US THANKS BUDDY. In criminal investigations with extensive communication and strategizing between Batman and Commissioner Gordon, it’s hard to argue the government of Gotham takes a passive position towards the Caped Crusader’s actions.

Even if the Fourth Amendment applies to Batman’s actions in certain cases, we still have to weigh whether his actions infringe on the privacy rights of others.

DOES BATMAN’S CONDUCT VIOLATE THE FOURTH AMENDMENT?

This is also a difficult question, in which we must weigh the circumstahahahahahahahaha no I’m joking, of course they do, pretty much all of them, all of the time. Batman is constantly sneaking into hideouts and hacking computer systems and wiretapping conversations. If you are a suspected criminal, Batman will respect none of your privacy boundaries. Batman will watch you poop if he think it’ll lead to evidence against you. [Batman voice] WHY ARE YOU EATING SO MUCH CORN, PENGUIN?

What does that ultimately mean? In the cases where Batman’s collaborated with the police, defendants likely have a strong argument that any evidence Batman acquired should be excluded. All those mobsters and hoodlums Bruce Wayne’s rounded up while wearing scuba gear and a cape? Back out on the streets, while the District Attorney’s office undergoes a massive overhaul.

… There’s one more interesting question to ask here.

IS BATMAN’S POLICE RELATIONSHIP SO PERVASIVE THAT ALL OF HIS ACTIONS SHOULD BE ATTRIBUTABLE TO THE STATE?

Fourth Amendment jurisprudence should evolve to meet the changing facts of our time. No federal court has yet been asked to consider the facts of Batman, however. Consider the following:

  • Unlike a mall cop, Batman’s self-appointed jurisdiction is limitless.
  • Unlike a neighborhood watch captain, Batman does far more than observe and report.
  • Unlike a private detective, Batman chooses his own targets and does not do so as part of a regulated business.

Batman is an extrajudicial police officer, and his entire stated goal is to fight crime in ways the police cannot or will not. Even when he does not work directly with the GCPD, he has their support and encouragement. Given the unique nature of these facts, there is an argument for a new branch of Fourth Amendment law: the Batman test. Here’s one possible articulation of it:

If a private entity cooperates with the government in searches and seizures so regularly as to be reasonably considered as an extension of the government’s authority, that entity’s actions may be considered Batmanlike and are presumed to be subject to the limitations of the Fourth Amendment.

Anyways, I’m happy to take the open Supreme Court seat.