Is Batman a state actor? The Dark Knight's relationship with the Gotham City Police Department and the Fourth Amendment implications.

• Author: Lisk, Joshuah

CONTENTS INTRODUCTION I. THE FOURTH AMENDMENT II. IS BATMAN A STATE ACTOR? A. State Actor Doctrine B. Batman's Relationship with the Gotham City Police Department C. Batman's Intent D. Applicability of the Exclusionary Rule E. Exceptions to Exclusionary Rule: Exigent Circumstances III. MODERN VIGILANTES CONCLUSION INTRODUCTION

It is a dark night in Gotham City, but an even darker time for crime. Gotham's criminal underworld is at its pinnacle and there is no justice to be found. But one man takes on the injustice that plagues the city by night ... the Batman.

Sitting on the roof of the Gotham City Bank, forty stories above the snowy streets of Gotham City's uptown district, Batman stares directly across the street into Carmine "the Roman" Falcone's thirty-eighth-floor penthouse. Batman watches as the Joker and the Roman meet and appear to make some deal. After the Joker leaves, the Roman writes something down in a notebook and places it in the safe behind his desk.

Batman waits until Falcone leaves and watches him as he drives down Fifth Avenue towards the opera. Observing that no one is left in the room Batman leaps and glides from the roof onto the Roman's study window. Silently Batman cuts a hole through the glass and stretches his arm inside to open the lock. Once inside, Batman locates the safe hidden behind the Roman's desk. Cracking the safe code proves easy, but the silent alarm is an unexpected surprise. As Batman snatches the ledger the Roman's henchman burst through the door. Gunfire erupts and tears apart the vases and priceless works of art on the study walls. Batman disarms the first two thugs, tosses his smoke grenade and leaps out the window. In a feat of acrobatic heroics, Batman fires his grappling hook and pulls himself back to the rooftops of Gotham.

Safe on the roofs, Batman heads stealthily back to the alley where the Batmobile is hidden. As the clouds roll in, Batman's gaze catches a brilliant light cast upon the incoming black clouds. His symbol is calling him.

On the roof of the Gotham City Police Department (GCPD), Commissioner Jim Gordon and District Attorney Harvey Dent stand next to the GCPD's newest toy, the Bat Signal. "How long does he usually take to get here?" Dent asks as he paces around the roof.

"We never have to wait too long." Gordon's face is solemn as he puffs on his pipe. No later than Gordon can finish his sentence, Batman emerges from the shadows and stands in front of the signal. While it is not the first time Dent or Gordon have met with the Batman individually, it is the first time all three have been together.

Dent states, "I've ... come to appreciate our mutual friend. And how he crosses a line we can't."

"It's still a line," Gordon replies.

"Judging by your clothes Dent, it looks like you've been working on the Roman case again." Batman interrupts the two in their thoughtful exchange.

"Someone has to nail the SOB," Dent says through his teeth. "The police haven't been able to provide me with anything."

The three protectors of Gotham begin discussing the problems caused by Gotham's organized crime, and how the Roman's deep pockets and wide reach have made it impossible to secure enough evidence to bring him down. Soon after, the three agree that putting the Roman behind bars is the top priority.

"We all know what must be done," Batman growls.

As Batman turns to walk away, Gordon, in a stern voice states, "We can let you bend the rules, but we cannot break them. Otherwise, what makes us any different? Promise me, Batman.... Give me your word."

"... Agreed."

Batman disappears into the night. As Gordon and Dent head towards the stairs, Dent notices a notebook on the ground. It is the Roman's personal ledger; the ledger lists names, dates, transactions, and dollar amounts. (1)

Months later, during the Roman's prosecution, defense counsel moves to suppress the ledger based on Batman's relationship with the police. Defense counsel contends that Batman's ongoing relationship with Commissioner Gordon, Harvey Dent, and the GCPD makes him a state actor, and, thus, the evidence seized from the penthouse constitutes an unreasonable search and seizure in violation of the Roman's Fourth Amendment rights. This constitutional violation requires that the evidence must be excluded.

Batman's legal status in the universe of superheroes provides an interesting illustration of the state actor doctrine in Fourth Amendment search and seizure situations. The idea of vigilante justice, the actions of private citizens attempting to prevent and punish crime through their own ends, has been around throughout U.S. history and private citizens have long attempted to take the law into their own hands. (2) The depiction of vigilantes in entertainment, and popular culture through television shows, movies, and comic books is a reflection of the relative politics concerning criminal justice. (3) Today, many communities establish their own private citizen community watch programs, in order to ensure the safety of their community and to prevent crime by working with local law enforcement officials. (4) Millions of Americans are part of an active neighborhood watch program (5) and millions more live in areas with a community watch program designed to assist the police in local crime prevention. (6) The use of private citizens to aid the government in combating crime can create certain problems when it comes to the use of evidence obtained by private citizens. Community watch groups and private citizens that act outside the scope of government authority are often overlooked as being purely private citizens. But when these private actors maintain a relationship with government agencies and officials to prevent crime they risk falling under state action and thus must act within constitutional constraints.

This Comment will use the hypothetical world of Batman to discuss the state actor doctrine as applied to a private citizen's vigilante quest to prevent crime. In this Batman hypothetical, whether the judge should exclude the evidence obtained by Batman will depend on his relationship with the police. While Batman's ongoing relationship with the GCPD may lead to the conclusion that he is a state actor, the analysis is not so cut and dry. (7) The facts of each case will depend on whether Batman is operating with police approval at the time of the search and whether the exclusionary rule would prevent Batman from violating the Fourth Amendment's protections. Part I of this Comment will describe the background and development of an individual's rights under the Fourth Amendment. Part II will examine the state actor doctrine and analyze whether Batman would qualify as private or state actor for search and seizure purposes. Whether Batman is a state actor depends not only on Batman's ongoing relationship with the police, but the relationship at the specific time the search occurs as well as the applicability of the exclusionary rule. Courts, and the government, have a duty to prevent vigilantes from breaking laws, even if they are acting with the intent to aid the government. This obligation, however, should not prevent the police from using evidence that was obtained by a private citizen without the government's approval or support. Part III will draw the analysis back to real world vigilantes and provide a test to determine when private actors should fall under state action. Finally, this Comment will conclude that Batman is not a state actor in the posed hypothetical, and while it is possible for a court to determine that Batman acts under police authority at certain times, the police overall rarely have any knowledge Batman's ongoing actions.

1. THE FOURTH AMENDMENT

   The U.S. Constitution places limits on what the government or state can do during criminal investigations and prosecutions. Looking back to the above hypothetical, if Batman is a state actor, or a police officer, his actions must be conducted within the constraints of the Constitution. (8) Batman's above actions of gathering the ledger from the Roman's penthouse, if conducted by a police officer would implicate the Fourth Amendment, which states:

   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. (9) There are two parts to this rule: first, a person is protected against unreasonable searches and seizures; and second, only a warrant justifies a search into a protected area. (10) Warrants are based on probable cause, requiring a written affidavit to be approved by a Magistrate. (11) The Magistrate will examine a warrant application and determine that it is supported by substantial evidence, that the items sought are connected with particular, criminal activity; and that it is probable the items will be found where the police want to search. (12)

   Traditionally, the Fourth Amendment protected individuals from searches on private property. (13) But in Katz v. United States, (14) the Supreme Court expanded the rule to protect against government intrusion upon a person's legitimate expectation of privacy. (15) The Court held that what a person "seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." (16) This means that the Fourth Amendment is not limited to protecting only property, but protects the person. (17) The greatest evil of a violation of the Fourth Amendment is the government's unauthorized intrusion into an individual's right to privacy. (18)

   Assuming Batman was a police officer, his actions and the unauthorized entry into the Roman's penthouse would constitute a violation of the Fourth Amendment. In order for such actions to be deemed a violation, the first question is whether the Roman had a...