Legal Evaluation
Dec. 13th, 2010 10:24 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
stickmakerI have a very complex and complicated question for folks who know more about the law in the US than I do.
In my Masks series of online stories ( http://www.dcr.net/~stickmak/Transformation/ links about halfway down the page) I have established that costumed heroes or adventurers have certain legal protections. In these stories the Masks are not (with rare exceptions) law enforcement; they are more like volunteer emergency workers. Their self-appointed task is not to bring criminals to justice, but to stop crimes and help with other emergencies. There is a long history of such activities (one character is descended from Le Rapier Rouge, inspired by the Scarlet Pimpernel) long enough that the legal system has taken at least some official notice.
In general, the costumed identity is like a writer's or actor's nom de plume (or an online nickname) only moreso. Most who have them are more interested in having some privacy from the press or fans than in protecting their loved ones or hiding from the government. There are some showboaters, but most actual heroes (as opposed to superhuman celebrities) are primarily people who feel a civic duty and have the ability to fulfill it.
I made the assumption that in the US the right of privacy means that disguised adventurers may not be legally asked to identify themselves except by a law enforcement officer who has witnessed them committing what appears to be an illegal act, or by an officer of a court on official business. What happens if they decline varies by jurisdiction, but usually results in arrest in the costumed ID. Some states allow known costumed heroes to have a legal means of identification - such as a driver's license or weapon permit - in their public ID, in part to help avoid such confrontations.
There is a federal law (and some state and local laws) prohibiting the involuntary public revelation of a known costumed hero's private ID until after they have been convicted of a felony. (How many times have superheroes been framed?) If a costumed hero is arrested, they may not be unmasked or forced to have their fingerprints taken until after the conviction. (There are exceptions for such circumstances as strong evidence that the arrested person is not actually the public figure.)
I'd like opinions of folks versed in US law on this setup. Yes, costumed heroes have been around long enough that the background is somewhat different, but I'd like to keep as close to existing law as I can.
In my Masks series of online stories ( http://www.dcr.net/~stickmak/Transformation/ links about halfway down the page) I have established that costumed heroes or adventurers have certain legal protections. In these stories the Masks are not (with rare exceptions) law enforcement; they are more like volunteer emergency workers. Their self-appointed task is not to bring criminals to justice, but to stop crimes and help with other emergencies. There is a long history of such activities (one character is descended from Le Rapier Rouge, inspired by the Scarlet Pimpernel) long enough that the legal system has taken at least some official notice.
In general, the costumed identity is like a writer's or actor's nom de plume (or an online nickname) only moreso. Most who have them are more interested in having some privacy from the press or fans than in protecting their loved ones or hiding from the government. There are some showboaters, but most actual heroes (as opposed to superhuman celebrities) are primarily people who feel a civic duty and have the ability to fulfill it.
I made the assumption that in the US the right of privacy means that disguised adventurers may not be legally asked to identify themselves except by a law enforcement officer who has witnessed them committing what appears to be an illegal act, or by an officer of a court on official business. What happens if they decline varies by jurisdiction, but usually results in arrest in the costumed ID. Some states allow known costumed heroes to have a legal means of identification - such as a driver's license or weapon permit - in their public ID, in part to help avoid such confrontations.
There is a federal law (and some state and local laws) prohibiting the involuntary public revelation of a known costumed hero's private ID until after they have been convicted of a felony. (How many times have superheroes been framed?) If a costumed hero is arrested, they may not be unmasked or forced to have their fingerprints taken until after the conviction. (There are exceptions for such circumstances as strong evidence that the arrested person is not actually the public figure.)
I'd like opinions of folks versed in US law on this setup. Yes, costumed heroes have been around long enough that the background is somewhat different, but I'd like to keep as close to existing law as I can.
![[identity profile]](https://www.dreamwidth.org/img/silk/identity/openid.png){kind=small}
no subject
Date: 2010-12-14 06:01 am (UTC)There are places they won't let you enter without "valid ID", and if you are driving a car or flying a plane or the like, they can demand to see your operating license.
But if you are just on the street, there's no requirement whatsoever to even *carry* ID. As cops get reminded of the hard way every few years.
Refusing to ID yourself carries with it some penalties, as annoying cops is never a good idea.
Fingerprints (and DNA and other things) are going to be a real problem though. If things get to the point where you are arrested, they *need* a way to unambiguously ID you if you get away or the like.
So they have to do *something*. And it cuts both ways. It may be the only way to prove that the guy they captured *isn't* [well known super].
Only things I can think of are either maintaining seperate supper and "civilian" fingerprint databases (and we all know how well *that* would work) or doing something like using foot prints for supers and fingerprints for norms.
As a *practical* matter, it's likely not that workable.
no subject
Date: 2010-12-14 03:39 pm (UTC)Thank you for your comments. They actually address concernt of mine about my setup, and even mention some details I haven't considered. Please let me know if the additional details below answer your concerns adequately.
The law has been around for decades and always been known to have problems. Some of these are mentioned in the stories. It was passed as a stopgap, with the intent that it would be replaced or modified later. While there have been clarifications, it essentially stands as originally passed. (Just like so many in real life. :-)
The original assumption was that since the public ID is how the person is known, that was what would be arrested. Since early on there were so few people who appeared in public in costume, it was decided that if the person arrested wore a costume connected with a certain public ID and had the same size, build, voice and powers and identified themselves as the public ID it was reasonable to assume this was the person publicly known as The Crimson Roach (or whatever) and that was how they would be identified for arrest and trial.
Note that powers are important in the identification. Few supers had the same power set in those days, though with more around today there is growing overlap. When the law was originally passed, powers could often be used to reliably identify a costumed super.
A slight digression: The tradition in this world is: If you are a normal and want to help you put on a uniform (police, military, etc.) and if you have powers and want to help you wear a costume. The primary motivation in the Thirties - when the modern costumed super hero was "born" - to wear a disguise was in large part due to not wanting to be treated as freaks in their private lives. (Note that powers are independent of "race," gender or sexual orientation.) Today there is also an international treaty preventing the use of supers in the military.
The powers part noted two paragraphs above is significant. For normal police, arresting a super who doesn't want to be arrested is very difficult. Holding one is even harder. (In one story, Template - who can juggle tanks - is arrested on trumped-up charges. When the attorney for the team she works with visits her in jail she flicks a bar with a file-hard fingernail and notes the only thing making this tolerable is the knowledge she can leave whenever she wants.) If a known superhero is cooperating with police and allowing himself to be arrested and held, if he wants to do this as his public ID and keep his private ID secret, smart law enforcement will go along through simple pragmatism. The law originally was a way to legitimize this, while also placating those who wanted costumed "miscreants" outed by allowing for that once a felony conviction was obtained.
no subject
Date: 2010-12-15 11:05 am (UTC)no subject
Date: 2010-12-15 02:20 pm (UTC)True. That's why some states allow costumed ID driver licenses and such. It's still something which needs to be addressed. Any suggestions?
One thing used in some Marvel comics, such as _The Avengers_ is retina scans. Unlike fingerprints, these can't be picked up casually, and are unlikely to be recorded already.
Heh. Now I'm envisioning the tinfoil hat group marketing masks - or goggles - which foil retina scans. :-)
no subject
Date: 2010-12-15 09:32 pm (UTC)Retinal scans might be ok. Though common use of retinal scanners has some health issues. Mostly having to do with avoiding cross-contamination of people.
BTW, an issue you might want to have a character bring up at some point is that *no* ID is actual proof of identity. Not even with biometrics.
All *any* ID does is "prove" that the *issuing authority* thinks that's who you are. A very different thing.
Actually, something that may be workable is the same sort of thing that's used with anonymous tips/informants. A sort of challenge/response setup.
The super has a password which they will give if the LEO type gives the right password/challenge/whatever. Of course, this is only good as a check in addition to other things. And will need to be changed just like any other password setup.
Hmm. Wonder if supers do "challenge coins"? :-)
no subject
Date: 2010-12-15 10:22 pm (UTC)"Challenge coin"?
no subject
Date: 2010-12-16 12:47 am (UTC)For supers add elements of the Lone Ranger's silver bullets.
no subject
Date: 2010-12-18 12:34 am (UTC)https://secure.wikimedia.org/wikipedia/en/wiki/Stop_and_Identify_statutes
no subject
Date: 2010-12-18 03:04 am (UTC)That is a very interesting and useful link. Thank you for posting that. It gives me a lot of fodder for story background. :-)
no subject
Date: 2010-12-18 03:37 am (UTC)http://www.cracked.com/article_18385_7-bullshit-police-myths-everyone-believes-thanks-to-movies.html
My friend
no subject
Date: 2010-12-14 03:51 pm (UTC)I wonder if this could be expanded into a more general discussion of the effects of powers on the legal system, as they do at:
http://lawandthemultiverse.com/
Such problems were also dealt with in the Wildcards series.
Several of my Masks stories mention legal ramifications. The first school for supers actually has classes on how powers interact with laws. Using certain powers is illegal in some nations. Simply being a super is illegal in a few. (Yeah, yeah; mutants are gays. It's become a bit of a cliche, but it's still a valid way to examine the situation without overtly pressing some folks' hot buttons.)
provides access
Date: 2011-01-16 09:55 pm (UTC)