I’ve recently been reading The Law of Superheroes by James Daily and Ryan Davidson, and have been considering its ramifications in the Victorious Earth. It’s an ongoing process, so forgive me if I make several posts as I move through the book.
The first main point is the right to Confront an Accuser as noted in the 6th Amendment to the US Constitution (U.K. law will be different.) To note, that a mask will not be considered applicable to confronting the accuser as the criminal’s defense lawyer will insist on knowing the hero(ine)’s actual identity. This isn’t a problem for characters with Fame, but Secret Identities will be in jeopardy. Modern law has exceptions to screen children while testifying in crimes against minors, but the 1890s is too far back for this to be a precedent.
The Minutemen of New York City, being semi supported by the city, state and even some Federal resources are considered “State Actors” and thus parallel the rights and responsibilities as police officers. But what about lone heroines? Or groups not supported by the state such as Chicago’s Society of the Golden Sextant?
My rationale is that the law will see these people as “acts of God”. That is, if Trinity or Glut subdue a villain and drops them off at the local police station, this is equivalent to a criminal running from the scene of the crime and being hit by a man on horseback while trying to cross the street. The criminal is caught by serendipity, and the criminal cant’ sue the man on horseback for improper arrest; whatever THAT means in 19th century America! Consequently, the villain’s attorney cant’ demand to cross-examine the horse or confront the man riding said equine; it was simply a act of fortune. This neatly covers the confrontation clause.
Now, could this be abused? You bet! It would require that costumed vigilantes be considered something that just happens occasionally, like a thunderstorm or earthquake. What then keeps the heroic types from just beating up anyone they wish for jaywalking or taking a pencil from a blind seller without paying for it?
That’s where “State Actor” comes in. As noted earlier, vigilantes are considered state actors in American law, and thus are hampered by some of the limits on police officers. Now, this is an era without the concept of police brutality or Miranda rights; but civil suits can still happen. Granted it’d be tough to subpoena a masked vigilante, but it could be a nuisance, and not appearing could lead to a criminal Contempt of Court charge.
So, heroes…enjoy your status under American Law…while you can!
PS: If anyone would like to weigh in on British Common Law, feel free.