Both Arrow and The Flash have the good guys imprisoning super-villains from meta-humans to highly skilled assassins in secret prisons. There are strong arguments these civil rights violations are born out of necessity, because trials for meta-humans can be problematic if jails and the court system cannot contain people who can teleport, control the weather, or shoot energy out of their eyes.
The Flash actually addressed this issue in the penultimate episode of the season. Joe West challenged Barry about moving meta-humans from one black site to another. West further went to the District Attorney for help, only to have her expression best be described as an ulcer exploded while speaking with Detective West about unlawfully imprisoning super-villains.
Here is what is wrong with both Green Arrow and The Flash holding people prisoner in a secret prison: the heroes commit a total denial of due process of law in total violation of the Constitution. This is actually worse for Barry Allen, since he works for the police department.
Let’s explore the different legal challenges for our heroes.
False Imprisonment
Assuming Starling City is in Northern California and Central City is somewhere in Oregon (thus 600 miles apart and coastal cities), we will use both California and Oregon law.
For the Arrow, False Imprisonment is “the unlawful violation of the personal liberty of another.” Cal Pen Code § 236. Furthermore, the law does allow for private citizens to make arrests, however the private citizen must take the arrested person before a magistrate or turn them over to a peace officer without “unnecessary delay.” Cal Pen Code § 847.
The Arrow (and those on Team Arrow) have turned criminals over to the police, but super-villains still end up on Lian Yu without a trial. There is no legal way to justify false imprisonment committed by the Arrow.
The Flash has a similar issue with imprisoning meta-humans at S.T.A.R. Labs. Oregon has very similar laws on citizen’s arrests based on probable cause; however, Barry Allen’s job a forensic examiner for the police makes him a peace officer. ORS § 133.225. Those imprisoned at S.T.A.R. Labs could sue Barry Allen on a 1983 Action for depriving them of their civil rights, including the right to counsel, Miranda warnings, a speedy trial, and all other protections offered by the Constitution.
Kidnapping
Everyone taken to a secret prison has been kidnapped. The Arrow committed kidnapping by taking Slade Wilson by arresting him in Starling City and then transporting him to Lian Yu. See, Cal Pen Code § 207(a).
Barry Allen has committed kidnapping because in the second degree because he intentionally took multiple meta-humans to S.T.A.R Labs with the intent to “interfere substantially with another’s personal liberty, and without consent or legal authority” and secretly confined them where they would not likely be found. ORS § 163.225(1)(b).
Legends of Civil Rights Violations
There is no question that Green Arrow and The Flash are the good guys. However, their knowledge of Constitutional Criminal Procedure has a lot of room for improvement. If only they knew a District Attorney who could give them pointers on the law.
