Defending the Invisible Man

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October 3, 2019

The 1933 Invisible Man is the story of Dr. Jack Griffin who had been turned invisible by an experiment involving a rare drug named monocane. Unbeknownst to Dr. Griffin, monocane had a side effect of turning subjects mad. When the audience first is introduced to Dr. Griffen, he is invisible, wrapped in bandages, curt, rude, and clearly under stress. He rents a room with a sitting room for a makeshift laboratory at a tavern and inn named the Lion’s Head. Life goes downhill from there.

Griffin eventually is evicted for being a week late in rent. He slammed the door on one of the owners of the inn, followed by assaulting the other by pushing him down the stairs. At that point, Griffin goes full super villain. His rampage included:

Straggling a police inspector to death;

Taking his colleague Dr. Kemp as a hostage for assistance;

Forcing Dr. Kemp to assist in recovering Dr. Griffin’s notebooks;

Assaults a room full of people by throwing beer steins;

Threatens to kill Dr. Kemp the next night at 10:00pm;

Causes a train derailment that resulted in 100 deaths;

Kills two volunteers searching for him;

Kills Dr. Kemp; and

Trespasses in a barn

Dr. Jack Griffin did A LOT of harm. He had a death toll over 100, plus a long list of people he assaulted. Defending him would not be easy, but he does have one defense: insanity.

The insanity defense requires the defense to prove by clear and convincing evidence that Dr. Griffin was unable to appreciate the nature and quality or the wrongfulness of his actions because of a severe mental disease or defect. 18 U.S.C.S. § 17. This requires expert testimony and evidence that Dr. Griffin suffered from a mental illness and did not understand murdering people was wrong. The defense could actually be successful with testimony from Dr. Cranley (played by Henry Travers, who would later play the guardian angel Clarence Odbody in It’s a Wonderful Life). Dr. Cranley knew the dangers of monocane from published German research. Additional evidence could be offered from the German publication on the dangers of the drug and Dr. Griffin’s notes to show he had treated himself with the drug.

It is worth noting that Dr. Griffin not knowing the harmful effects of the drug should be entered into evidence. While there is no doubt risk from trying to turn oneself invisible, the fact the research he had was prior to the publication of the German research, shows he did not knowing take a drug that could drive him mad.

The Invisible Man has one of the largest body counts of any of the Universal Monsters. He also has a legitimate claim to the insanity defense. Does that excuse the deaths? No, but it would be unjust to simply call him a monster without giving him a fair trial.

Were the Clone Soldiers of the 501st Legion Correct to Disobey General Krell?

By

Steve Chu

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September 30, 2019

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Star Wars: The Clone Wars presented many memorable story arcs that explored the lives and challenges facing clone soldiers of the Galactic Republic. During a 4-episode arc: Darkness on Umbara, The General, Plan of Dissent, and Carnage of Krell, Republic Clone soldiers are faced with a tall challenge when they are assigned to the command of a General who seems to care little for their lives and treats them only as assets on a battlefield. General Pong Krell repeatedly orders the men under his command to undertake dangerous missions that seem to make little sense. Some of the Clone soldiers begin to question the wisdom of the General’s orders, which prompts a discussion among the clones about what they should do. The soldiers had a duty to follow orders, but how far does this go?

We can look to our own world history for some examples. Different countries have different military traditions. Under the American military system the general rule is that an order can only be disobeyed if it is unlawful. This standard provides enough room for interpretation that courts have trended in different directions over the years, with some courts emphasizing the individual over the military, and others siding with the military over the individual.

One oft-cited example is the My Lai massacre during the Vietnam War, in which 504 people were killed, including young women and children. The incident involved a cover up, and ultimately 14 men were charged, and one person convicted. This incident is often looked to as an example of an illegal order which a soldier would not have to obey.

Other cases have emphasized that one cannot simply rely upon the defense that they were simply following orders. In one well-known American case, during the War of 1812 crew members of an American privateer were tried for stopping and searching a neutral Portuguese vessel on the high seas, when during the stop the American crew assaulted the Portuguese captain and crew and stole valuables. The court rejected the defense advanced by the crew in which they argued that they had simply been following orders. The justice wrote:

This doctrine . . . . alarming and unfounded, is repugnant to reason, and to the positive law of the land. No military or civil officer can command an inferior to violate the laws of his country; nor will such command excuse, much less justify the act. Can it be for a moment pretended, that the general of an army, or the commander of a ship of war, can order one of his men to commit murder or felony? Certainly not.

The crew was found guilty.

The German military system emphasizes the individual over the military, following a standard whereby a military order is not binding if it is not “of any use for service” or cannot reasonably be executed. German military rules, mindful of history, now forbid the use of the German military to do anything other than defend Germany itself. The German military system emphasizes a military experience built around the inner conscience of each individual. German soldiers can refuse combat assignments or disobey orders with relatively little consequence. This standard has been upheld repeatedly in civil courts.

Most symbolic is the fact that new German soldiers swear their oaths to defend Germany at the Benderblock, a Berlin building where participants of a failed attempt to assassinate Hitler were executed in 1944. Today the building is a museum to German resistance. It is a powerful reminder that new German soldiers are sworn to their oaths not in a place of military obedience, but in a place of military resistance.

This brings up the question, what form of military system would the Old Republic have in place? Given that the Clone Wars aided Palpatine’s consolidation of power, it would seem likely that even if there were some rules to allow for limited judgment by the individual soldier, much of the power would be placed in the hands of the military commanders. By the time of the Galactic Empire, when we see Darth Vader summarily execute officers for alleged incompetence without so much as a trial, there would seem to be very little room for individual judgment. If a soldier objected, it would likely be best to remain quiet rather than risk becoming the victim of a Force choke.

Back to the clone wars episode, after a difficult debate, the clone soldiers continue to follow orders until a fateful confrontation in which it is revealed that they are in fact fighting against another Republic clone trooper regiment. In the heat of battle, Captain Rex senses that something is amiss and discovers the his men are in fact fighting against their own clone brothers. Armed with this knowledge, the clones confront General Krell, who reveals himself to be a traitor, intent upon joining the enemy after first destroying Republic assets. Several clone troopers are killed in the ensuing conflict until General Krell is rendered unconscious. A difficult question now confronts the soldiers: what do they do with the traitorous general?

There is little time for a court martial, and ultimately one soldier cannot bear the betrayal and executes the former General. Ironically, the soldier pulling the trigger is the same soldier who had vigorously defended the General earlier in the story, and could not cope with the idea that their commanding officer had betrayed them. Insubordination, mutiny, and treason. All heavy issues touched upon during this story arc.

False Impersonation, Larceny, and Data Breaches in The Clone Wars

By

Josh Gilliland

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September 25, 2019

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You don’t need a holocron to see all of the legal issues in The Clone Wars arch Holocron Heist, Cargo of Doom, and Children of the Force. In this season two story, Cad Bane was retained by Darth Sidious to steal a Jedi Holocron from the Jedi Temple in order to access a kyber crystal with all of the personal information of children strong in the Force, and then to go kidnap children. There is a lot to unpack in these episodes.

Holocron Heist

Cad Bane retained the shape shifter Cato Parasitti to assume the identify (and shape) of Jedi Ord Enisence, who was murdered by Bane. Cad Bane and Cato Parasitti both committed trespassing in the Jedi Temple, which is entering property without the owner’s consent, which is why Parasitti’s shape shifting abilities were needed for the heist. Cal. Penal Code § 602(m). Once inside the Jedi Temple, Parasitti assumed the identify of Jocasta Nu. Parasitti assisted Bane by providing operational support from inside the Jedi Temple by accessing the Jedi computer system. The unauthorized computer access would be a computer crime under California law, because Bane and Parasitti were in a conspiracy to use the Jedi computer system both deceive through impersonating a Jedi and to wrongful control Jedi property by stealing a Holocron. Cal. Penal Code § 502(c)(1).

The law does not specifically address shapeshifters, but it does address false impersonation of another person:

Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d).

Cal. Penal Code § 528.5(a).

Parasitti impersonated both Ord Enisence and Jocasta Nu using electronic means (the computers in the Jedi Library) for the purpose of defrauding the Jedi of property (the aforementioned holocron). Without impersonating a Jedi, Parasitti would not have had access to the Jedi’s computer system.

If this was simply a case of taking library property, the fine for taking the holocron would be a fine of at least $50 but not more than $1,000. Cal. Penal Code § 490.5. However, this case is not one of simply taking a library book. The holocrons were kept in a vault with limited access only to the Jedi Counsel. The value of the holocron should exceed $950, making the criminal action grand theft. Cal. Penal Code § 487(a).

Cad Bane gained entrance to the Jedi Temple using stolen codes to get past a security shield. At a minimum, this is a trespass. However, since the Jedi Temple is inhabited by the Jedi (many live there), the elements for burglary are met, because the Cad Bane entered the Temple with the intent to commit grand or petit larceny. Cal. Penal Code § 459.

Cargo of Doom

The second episode in this three-part story opens with Jedi Bolla Ropal being held onboard a Separatist warship in energy bonds. Bane ordered Droids to inflict pain upon Ropal to compel him to open the kyber crystal containing personal identifiable information of Force sensitive children. This would meet the legal definition of torture, which is when a person (Bane) caused extreme pain for the purpose of persuasion of Ropal. Cal. Penal Code § 206. Bolla Ropal died from being tortured which would be first-degree murder. Cal. Penal Code § 189.

Cad Bane ultimately gained access to the kyber crystal, which allowed him to access an untold number of Force-sensitive children. If the Republic, or planet within the Republic had a data breach law like California’s, things would get messy fast. The fact Bane was able to access encrypted personal identifiable information, means that an unauthorized person accessed the data, which would require the Jedi to inform those whose data was breached. Cal Civ Code § 1798.29.

There was just one problem: the Jedi did not have the list of the Force-sensitive children within their control. They literally had to use the Force to figure out children who were potentially at risk.

Children of the Force

Darth Sidious is really bad with Younglings. Cad Bane’s scope of work was expanded to taking Force-sensitive children from their parents. Bane posed as a Jedi and took two children from their families. This is kidnapping, which is when any person who takes another person into another country, state, or county. Cal. Penal Code § 207.

Mustafar would be high on the list of where NOT to take a child under any circumstance.

The children were kidnapped in order for Darth Sidious to conduct medical experiments upon them (foreshadowing what ultimately would be Inquisitors in Star Wars Rebels). There is no way these experiments would have been legal. In order for any medical experiments to be authorized, the parents would have needed to give their informed consent, which would have needed to include the a) nature and purpose of the experiment; b) an explanation of the medical procedures; c) a description of the risks reasonably expected from the experiment; d) explanation of the benefits of the experiment; e) explanation of alternative procedures; f) be informed of the avenues of medical treatment, if any, available to the subject after the experiment if complications should arise; g) Be given an opportunity to ask any questions concerning the experiment or the procedures involved; h) be instructed that consent to participate in the medical experiment may be withdrawn at any time and the subject may discontinue participation in the medical experiment without prejudice; i) Be given a copy of the signed and dated written consent form; and j) be given the opportunity to decide to consent or not to consent to a medical experiment without the intervention of any element of force, fraud, deceit, duress, coercion, or undue influence on the subject’s decision. Cal. Health & Safety Code § 24172.

The parents of the Force-sensitive children had no such opportunities, because their children were KIDNAPPED! Moreover, Darth Sidious took the position that if the children died, he lost nothing.

That is not the sort of guy you want as a babysitter.

The entire story arch of Darth Sidious retaining Cad Bane to murder, steal personal identifiable information, and kidnap children for medical experimentation, shows how “dark” the Dark Side is for achieving universal domination at any cost. These are great episodes and worthy of re-watching.

Recovering from the Federal Government for Injuries Sustained from Dinosaur Attacks While Camping

By

Josh Gilliland

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September 16, 2019

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The Jurassic World short Battle at Big Rock tells the story of campers who are attacked by an allosaurus at Big Rock National Park in California. Since the attack happened in a National Park, could the family recover from the Federal Government under the Federal Tort Claims Act?

The issue on whether the family could recover depends on if the National Parks Service knew there were dinosaurs in the National Park. An argument for recovery can be made based on cases with campers attacked by bears.

In one case, a camper who was attacked by a bear at night in his sleeping bag could recover where the park ranger told the camper there was no danger of bear attacks, even though there had been a bear attack a few days before. As such, there was a danger of attack and the park ranger failed to warn the camper. Claypool v. United States, 98 F. Supp. 702 (D. Cal. 1951).

In another case, a bear injured a camper while the camper slept in his car with his window rolled down and his arm on the sill. In that case, there were not any acts of negligence by the government for a case under the Federal Tort Claims Act, because the bear that attacked was not known for violence unless provoked. Ashley v. United States, 215 F. Supp. 39 (D. Neb. 1963), aff’d, 326 F.2d 499 (8th Cir. 1964).

In a case in Yellowstone Park, a camper was given specific warnings about bear attacks, nevertheless, was attacked by a bear in his tent. The bear had placed its paw on the camper’s chest while he slept, which ended in a mauling after the camper woke up startled. The attack was in the most populated part of the campgrounds that included the fire station, gas station, store, ranger’s office, and lighted restrooms. The court found the attack was completely unforeseeable, thus there was no negligence on the park staff, because they had duty to warn of an unforeseeable attack. Rubenstein v. United States, 338 F. Supp. 654 (N.D. Cal. 1972), aff’d, 488 F.2d 1071 (9th Cir. 1973).

What does this mean for our family of campers? The issue for them is foreseeability. The campers themselves were surprised to see dinosaurs in the national park, which implied that dinosaurs were not known to be in that part of California. As such, if the National Park service did not know about the presence of dinosaurs, they had no duty to warn about an unforeseeable attack. Alternatively, if the park rangers knew about dinosaurs and did not warn the campers about the risk of encountering a dinosaur, the campers could recover under the Federal Tort Claims Act, because the rangers were negligent in not warning about dinosaurs.

Based on the end credits of the short, an aggressive dinosaur remediation plan would need to be enacted by the Federal and State Governments to protect human life.

Riding the Liability Train at Smugglers Run in Galaxy’s Edge

By

Josh Gilliland

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September 10, 2019

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Smugglers Run in Galaxy’s Edge at Disneyland is a dream come true for any fan of Star Wars. It is a wicket good time, regardless if the first time you saw the Millennium Falcon was at a drive-in theater, VHS tape, DVD, Blu Ray, or Streaming. We live in an age of wonder where entering Galaxy’s Edge is like walking into a Star Wars movie.

It is also a great lesson in to break all sorts of laws.

The ride’s story is as follows: Hondo Ohnaka (from Clone Wars and Rebels) has formed Ohnaka Transport Solutions, which is based the Black Spire on Batuu, which is operating the Millennium Falcon on loan from Chewbacca. The “job” from Ohnaka Transport Solutions is to intercept a First Order train shipment of Coaxium on Corellia. Let’s jump to lightspeed over the legal issues with such an endeavor.

Are We Space Pirates or Privateers?

Traveling through space to “appropriate” hyper-fuel from the First Order sounds a lot like piracy. The law defines piracy as, “Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed.” 1958 U.S.T. LEXIS 31, Article 15, section 1 (The Convention of the High Seas).

The Millennium Falcon is a private aircraft that was used to shoot down First Order Tie Fighters in order to shoot at a train for the goal of capturing its cargo. That meets the textbook definition of piracy. However, such a reading of the law ignores the fact the First Order was a political movement that destroyed the Republic with Starkiller Base. That is not the basis for forming a government, to say nothing about the consent of the governed. The First Order at its core is a terrorist group that was successful in committing genocide of Hosnian Prime. They are nothing but war criminals that murder civilians by the billions.

From a certain point of view, Ohnaka Transport Solutions could be viewed as employing privateers with the Millennium Falcon. The early definition of a “privateer” is a vessel owned by one or by a society of private individuals, armed and equipped at his or their expense, for the purpose of carrying on a maritime war, by the authority of one of the belligerent parties. Bouvier, 1853, PRIVATEER, war. It is worth noting that privateers are now banned under the Hague Convention VII of 1907, the Convention Relating to the Conversion of Merchant Ships into War.

In our case, Chewbacca is a member of the Resistance, the presumptive legal owner of the Falcon (there is a chance it could belong to Leia, but certainly not Kylo Ren after killing Han Solo, because murdering a parent would cut off his inheritance). Chewbacca loaned the Falcon with the express purpose of a military operation against the First Order. The First Order’s destruction of the capital of the New Republic was the first shot in a war over freedom verse tyranny. This makes anything for the First Order’s war effort a legitimate military target. As such, the Falcon being sent on a mission to harm the war effort of the First Order would make Ohnaka Transport Solutions engaged in privateering.

There are some imperfections to the argument; given there is no longer a government for the New Republic. However, given every nation does have a right to self-defense, no one has to bow down to the First Order.

Train Wrecking

The only way to steal the Coaxium on the train carrying the fuel was to shoot the train, causing one of the cars to derail. This is the black letter law definition of “train wrecking.” California Penal Code § 218 defines the law as follows:

Every person who unlawfully throws out a switch, removes a rail, or places any obstruction on any railroad with the intention of derailing any passenger, freight or other train, car or engine, or who unlawfully places any dynamite or other explosive material or any other obstruction upon or near the track of any railroad with the intention of blowing up or derailing any such train, car or engine, or who unlawfully sets fire to any railroad bridge or trestle, over which any such train, car or engine must pass with the intention of wrecking such train, car or engine, is guilty of a felony, and shall be punished by imprisonment in the state prison for life without possibility of parole.

Flying the Falcon behind the train, shooting at train cars, and harpooning the Coaxium, is the use of explosives to blow up the train, causing a derailment. Flight crews could be charged and convicted of train wrecking, if this was an ordinary crime not committed as a war time measure against the First Order.

Smuggling

Since the name of the ride is Smugglers Run, it is illegal to smuggle goods into or out of the United States. See, 18 U.S.C.S. §§ 554 and 545. The relevant issue for the independent contractors employed by Ohnaka Transport Solutions, is the Falcon is being used to transport hyper-fuel. Ironically there is not much in trying to conceal the fuel in the heist, because it is an armed attack on a First Order train. That aside, the ride Smugglers Run does live up to the legal definition of smuggling.

Thoughts on Smugglers Run

Smugglers Run sets a new gold standard for amusement park rides. The line experience takes attendees through passageways that look like the halls of Hoth or Yavin IV. The attention to detail is mindblowing. Highly recommend visiting Galaxy’s Edge, preferably with friends and family.

Can You Have Werewolf Traps in Your Front Yard?

By

Josh Gilliland

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September 3, 2019

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What We Do in the Shadows is wicked fun if you have an offbeat sense of humor and enjoy comedy-horror shows. In “Werewolf Feud,” S1, E3, the vampire Lasslo Cravensworth placed werewolf traps in the front yard of the vampire house after he has discovered a werewolf has been urinating on the front lawn. Would these traps be legal?

This raises a sticky issue: is a werewolf an animal or human being?

Rules if Werewolves are Human

When it comes to human beings, nonlethal physical force can be used to prevent larceny or criminal mischief with respect to property other than premises. N.Y. Penal Law § 35.25. A trespass is committed when someone knowingly enters or remains unlawfully in or upon premises. N.Y. Penal Law § 140.05 A person commits criminal trespass in the third degree when they knowingly enter fenced real property. N.Y. Penal Law § 140.10.

The law does not favor traps set out for children. In cases where a property owner has set out traps to deter children for trespassing, a child trespasser could only recover damages if “a dangerous condition was maintained upon the premises with the intention of inflicting injury on anyone trespassing thereon or with what is the equivalent of intention, reckless and wanton disregard of the consequences.” Brzostowski v. Coca-Cola Bottling Co., 226 N.Y.S.2d 464, 469-70 (App. Div. 1962)

Rules if Werewolves are Animals

New York law on cruelty to animals applies to anyone who intentionally causes serious physical injury to a companion animal with justifiable purpose. N.Y. Agric. & Mkts. Law § 353-a(1). However, the law does not prohibit dispatching rabid animals or ones that are a threat to human safety or other animals. N.Y. Agric. & Mkts. Law § 353-a(2).

There Wolf Lies the Problem

Those suffering the curse of the werewolf are both human and animal potentially at the same time. If those who turn into wolves have no control or intellect, they would appear to be more of an animal. However, if they retain intellect while in their wolf form, they could be more human than animal. Given the fact combat with a werewolf was settled with a squeaky toy, someone who is a werewolf has diminished capacity at best.

If a werewolf is a “companion animal,” then Lasslo could face cruelty to animal charges for his trap in the front yard. However, given the threat that werewolves pose, they would not be classified as a companion animal. However, Lasslo is not someone who has a permit or is acting under color of law to remove werewolves with traps.

A werewolf is certainly not a child, but Lasslo’s traps clearly were intended on inflicting injury on anyone trespassing on the front lawn. Given the harm caused by the traps, a werewolf suing for injuries likely would prevail, if a judge would give both a werewolf and vampire a day in court.

Holy Courtroom Conundrums Batman

By

Jordon Huppert

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August 29, 2019

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During the average night for the Caped Crusader, when he’s not fighting super villains, stopping world ending crises, or hanging out with a starfish in a jar, he spends his time stopping crimes around Gotham City. In almost all of the iterations of Batman, we see him working alone or with the GCPD to stop various muggings, robberies, and terrorist acts by (relatively) normal citizens. But after the Bat ropes them to a lamp post and Commissioner Gordon arrests them, what happens then? Assuming that the Gotham legal system works similarly to our legal system (and there is ample evidence that it does), then the next step after the arrest would be the criminal charge brought by the District Attorney, then the Defense investigation, then the plea bargaining or trial. But where does Batman fit into all that legal stuff?

Can Batman be called as a witness?

Sure, why not? In order to prove their case the DA will likely have to call Batman as a witness to testify that the Defendant was indeed robbing the store, snatching the purse, or what have you. Since all the cops usually see is a suspect tied to a tree, connecting that guy to the crime can get a bit sticky without the testimony of the Caped Crusader to fill in the blanks. Take the trial of King Tut/Professor McElroy from Batman vs. Two Face for example. (As an aside, there is so much wrong with this trial scene it almost deserves its own post to go over, but we’ll stick to Batman’s part here.)

At the trial Assistant District Attorney Harvey Dent calls Batman to testify about how he solved the caper of the stolen biplane and to help prove that Professor McElroy is responsible for the crimes of his alter ego King Tut (since they are your classic Hollywood split personality). Batman takes the witness stand in full costume to testify and, although he tries to help explain that the Professor personality has no idea what the Tut personality is doing, Harvey twists his words and the Jury convicts poor Professor McElroy. All everyday run of the mill stuff for the Gotham City Courtroom I’m sure.

However, Harvey has made the classic prosecutor blunder and forgotten about the US Constitution. Cue Robin: “Golly Batman of course (punches his palm), it’s the Sixth Amendment1 which guarantees (among other things) the right to face all the witnesses against you.” This means more than just getting the opportunity to see the person for the first time on the witness stand. Combined with the Prosecution’s burden of disclosure it means the Defense has a right to know all the witnesses that the Government will call and to see all the evidence that the Government will offer in advance of trial so that they can properly prepare to cross examine those witnesses. The Prosecutor isn’t allowed any surprises. (There’s a really good scene in My Cousin Vinny that covers this surprisingly accurately. If you haven’t seen it go watch it, it’s a fantastic legal movie.)

So, before trial Harvey Dent would have had to disclose his witness list to Professor McElroy’s attorney, including that he would call Batman. However, since Batman isn’t a real person, Dent would need to turn over Batman’s real name, which runs into an issue. Harvey doesn’t know Batman’s real name. Luckily for all of us, the Constitution doesn’t care. Since McElroy has a right to face his accuser and since he has a right to be able to put on a defense, he has a right to Batman’s true identity if Batman is going to testify and if Bats wants on the stand he’s got to do it without the mask, placing him in a Courtroom Conundrum. Think about it this way, what qualifies Batman to talk about split personalities to begin with? Does he have a doctorate? From where? Has he performed research in the field prior to positing that if you pummel King Tut on the head he switches personalities? These are all questions that the Defense gets to investigate so they can question the veracity of Batman’s conclusions (seriously, go watch My Cousin Vinny). The defense also gets to dig into Batman’s history for anything that gives him a bias in the case or any ways to impeach his testimony. So, if Batman wants to testify he’s got to do it as Billionaire Bruce Wayne. Funny to think of how much money Joker and the dastardly fiends of Gotham’s underground were going to pay Two-Face when all they needed was one moderately competent public defender. Makes you think.

So, how does the GCPD rely on Batman to do their job for them… I mean… help them do their job? In theory, the Bat could be a confidential reliable informant (or CRI). For a long time police have relied on informants to provide tips or to help them investigate crimes. One very common example of how police use CRIs is what’s called a controlled drug buy. It goes something like this: the CRI tells the officer that s/he knows about a drug dealer and can buy drugs from them. The police set the CRI up with a set amount of money, search them to make sure they don’t have any illicit substances, and send them off to the drug dealer’s place to make a purchase. The officers watch the CRI as much as possible to make sure that they limit as many variables as they can, and once the CRI gets back the police search them again, take the drugs and use the CRI’s information to get a warrant from a judge for a search of the drug dealer. Now, if the police can’t actually observe the drug transaction itself then they’re relying on circumstantial evidence and the statements of the CRI to make their case.

As you might imagine, this comes with some problems for all parties. Without editorializing (at least trying really hard no to editorialize): for the Government, they want to protect their CRI from reprisals should their identity be made known and perhaps disguise or minimize the potential problems with their source, and for the Defendant dealing with information from a source you don’t get to know can cause all kinds of issues, including those described above like base of knowledge and reputation. Courts have tried to balance these two competing interests and have largely allowed the use of CRIs with few restrictions[1] (ok, I editorialized a little there). Among the requirements are that the Government must inform the defense of a CRI’s basis of knowledge (i.e. how do they know what they say they know) and information on their reliability (i.e. do we know anything like that they have prior convictions, are they providing information in exchange for some consideration, have they provided reliable information in the past, etc.). However, Courts have made it extremely difficult for the Defendant to compel the Government to turn over the actual identity of the CRI.

There’s nothing in real life that quite matches up with Batman, but doing our best to apply the rules associated with CRIs to the Caped Crusader it doesn’t look good. The requirements that the Government provide some basic information to Defendants means that the police officers need to know whether Batman has any prior convictions or other information which might reflect on his credibility (which while the Batman of ’66 probably doesn’t, other versions of Bruce/Batman have a bit rougher history and relationship with law enforcement and might have convictions or at least warrants) and to disclose the basis of Batman’s knowledge, which is typically a bit more complicated than I knocked on someone’s door and asked them to sell me drugs, and is often not something the police themselves understand. To boil it down, in order to run a CRI the officer has to know who that person is. There’s a very fine line between allowing the police to keep a source a secret and the police using an unknown vigilante (yes, I know the ’66 Batman was once deputized but let’s overlook that for now) to do their work for them. Imagine a Judge ordering the District Attorney to disclose their source and the DA says “It’s Batman your honor”, it wouldn’t work out well there would probably be some laughter in the Courtroom. Of course, the DA always has the option to dismiss the case rather than disclose the name of the CRI but that’s just embarrassing (I editorialized a little there too).

The other issue with the GCPD using batman as a CRI is that it makes him a state-actor, subject to all the constitutional limits that brings with it. Imagine if people could sue Batman for unreasonable force, or if Batman had to take time out of an investigation to get a warrant before he searches the Joker’s hideout: that’s how you lose a Robin (sorry, is that too soon?). Batman is able to do what he does because he can operate outside of the law and in a lot of ways Batman exists to do just that, act outside the normal rules and do things the police can’t. While that makes for good comic books, it doesn’t work well in real life.

1 The Sixth Amendment reads “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” https://www.law.cornell.edu/constitution/sixth_amendment

[1] In Oregon we have these rules written into a statute, ORS 133.545 (6): … If an affidavit is based in whole or in part on hearsay, the affiant shall set forth facts bearing on any unnamed informant’s reliability and shall disclose, as far as possible, the means by which the information was obtained.