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Footnote Comics: Gotham Central
Written by Greg Rucka and Ed Brubaker. Art by Michael Lark. Published by DC Comics.
Panels from Gotham Central #7: Most states do not bar discrimination based on sexual-orientation
Gotham Central #5: Miranda recitation of rights
Gotham Central #2: Why can't the GCPD acknowledge Batman's existence?
All art copyright DC Comics.
What is this comic about? (last updated July 7, 2003) (back to top)
Put NBC's "Homicide : Life on the Street" into the grittiest city in comic books, and you have Gotham Central, an excellent crime-drama that people who don't ordinarily read comics should nevertheless enjoy immensely. Batman may fight crime his own way, but it's the Gotham City Police Department and its Major Crimes Unit (MCU) that fight crime by the books and without any near-superhuman powers or skills.
The MCU's first shift is commanded by Captain Maggie Sawyer, and her top detectives are Renee Montoya and Crispus Allen; the second shift is commanded by Lieutenant Probson (aka "the Probe") and some of his detectives include Marcus Driver and Romy Chandler. Greg Rucka and Ed Brubaker, the series' two writers, co-write some stories but often tell the stories of their particular shift; Rucka has Sawyer's and Brubaker has the Probe's. For more information on the very large cast, go here.
Gotham Central is published monthly by DC Comics. Earlier stories featuring various detectives, especially Montoya and Allen, were published in Detective Comics issues written by Greg Rucka, and many are collected as trade paperbacks such as Batman : Evolution, Batman : Officer Down, and Batman : Bruce Wayne Murderer.
In Gotham Central issues #1-2, the MCU dealt with a "red ball" case: the murder of one of their own by one of Batman's enemies, Mr. Freeze. In issues #3-5 (written by Brubaker), the second shift worked an arson and a murder. In issues #6-10 (written by Rucka), Detective Renee Montoya's biggest secret is revealed as an enemy sets her up for a murder. Issue #11 is a stand-alone issue telling the story of the civilian secretary who is the only one allowed to activate the "bat signal," and #12 begins a new storyline involving a sniper.
The Cast of "Gotham Central" (last updated July 8, 2003) (back to top)
The Gotham City Police Department is headed by Commissioner Michael Akins, who replaced longtime Batman ally Jim Gordon after Gordon was shot by a traitorous cop and then retired. The GCPD has many units, but the stars of Gotham Central are the detectives of the GCPD's Major Crimes Unit, which is divided into two shifts. Some of the detectives featured thus far include :
- First Shift
- Captain Maggie Sawyer. Formerly the head of the Metropolis Special Crimes Unit, where she was friends with Superman and Lois Lane, Sawyer came to Gotham to replace Lieutenant Harvey Bullock as shift commander. She is a lesbian and is involved with Toby Raines, a newspaper reporter still in Metropolis. She has a young daughter Jamie from a former marriage.
- Detective Renee Montoya. Born and bred in Gotham, Montoya has been a detective for several years. Her family is originally from the Dominican Republic. She has a sort of friendship with Harvey Dent, better known as Batman's enemy Two-Face, and was recently "outed" as a lesbian. This character first appeared in Batman: The Animated Series and then became a regular character in the Batman comic book series afterwards.
- Detective Crispus Allen. An African-American homicide detective in Metropolis who transferred to Gotham City, Allen is partnered with Montoya.
- Detective Josie MacDonald. An African-American detective who got transferred from missing persons to the MCU. The first MCU detective not to be selected personally by the now retired Commissioner James Gordon. Has a low-level psychic ability that works only on objects, but hides the ability.
- Former Lieutenant Harvey Bullock. Formerly the first shift's commander, Bullock resigned amidst an investigation into whether he conspired to kill a bad cop who had tried to kill Commissioner Jim Gordon.
- Second Shift
- Lieutenant Probson, the "Probe". Commander of the second shift and bitter about Sawyer's promotion.
- Detective Marcus Driver. Not Batman's biggest fan. Driver's partner Charlie Fields was killed by Batman's enemy Mr. Freeze in #1, and Driver teamed up temporarily with Romy Chandler to solve an outstanding murder case in #3-5.
- Detective Romy Chandler. Normally partnered with Detective Nate Patton, Chandler was temporarily partnered with Marcus Driver in #3-5.
Discrimination based on Sexual Orientation (last updated July 7, 2003) (back to top)
Detective Renee Montoya has been forced out of the closet and she believes, apparently quite correctly, that she now will face a much harder time on the job and that she would not have become a detective had her previous partner known. Even though her commanding officer, Captain Maggie Sawyer, is also a lesbian, Montoya has quickly found herself the victim of taunts by fellow detectives and police.
If these incidents were based on her race or on her being a woman and if they persisted, they could eventually amount to grounds for a harassment lawsuit based on a hostile work environment. However, federal law and the law in most states do not prevent harassment based on sexual orientation, leaving people like Montoya without any enforceable legal protection.
Panels from Gotham Central #7: Not enough (yet) to bring a lawsuit, but not illegal in most states in any event
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As of July 2002, 12 states and the District of Columbia had enacted laws that prohibit employment discrimination on the basis of sexual orientation. These jurisdictions are California (law effective 1993), Connecticut (1991), the District of Columbia (1977), Hawaii (1991), Massachusetts (1989), Minnesota (1993), Nevada (1999), New Hampshire (1998), New Jersey (1992), Rhode Island (1995), Vermont (1991) and Wisconsin (1982). These states (except for Hawaii) are shown in red in the map below.
Some cities, such as New York City, have also included sexual orientation under their own anti-discrimination laws.
Anti-Discrimination Law
Under federal law, specifically Title VII of 42 U.S.C. 2000e-2(a), employers cannot discriminate on the basis of an individual’s sex, race, religion, or national origin. Sexual harassment can constitute such a violation in two general situations:
- "Quid pro quo" harassment, when unwelcome sexual conduct is used as the basis for employment decisions affecting an individual (i.e., a person must either have sex with a supervisor or be fired or demoted). This kind of harassment was that originally contemplated in the federal regulations implementing Title VII.
- "Hostile environment" harassment, when unwelcome sexual conduct or statements are so severe or pervasive that they alter work conditions and create an abusive environment (i.e., lewd comments directed against individuals in the workplace). This kind of harassment was first recognized by the Supreme Court as violating Title VII in the 1986 case of Meritor Savings Bank v. Vinson, 477 U.S. 57, and led in part to a dramatic rise in the number of harassment claims filed each year. The standard for proving such harassment was clarified by the Supreme Court in the 1993 case Harris v. Forklift Systems, Inc., 510 U.S. 17.
Hostile environment claims are not evaluated from the standpoint of the person actually making the complaint, but from the objective standpoint of a reasonable person under similar circumstances. As one federal court once put it, Title VII does not serve "as a vehicle for vindicating the petty slights suffered by the hypersensitive." Zabkowicz v. West Bend Co., 589 F.Supp. 780 (E.D. Wis. 1984).
Recent years have seen the Supreme Court address the outskirts of these kinds of harassment. In 1998, for example, the Supreme Court held that same-sex harassment wherein men harassed another man in sex-related conduct was recognizable under Title VII. The Supreme Court has also wrestled with employers’ liability for the actions of supervisors.
Federal anti-discrimination law explicitly prohibits discrimination on the basis of race, sex, national origin, and other factors, but federal courts have generally held that such laws do not prohibit discrimination on the basis of sexual orientation. Thus, would-be plaintiffs must look to relevant state law in order to bring a claim.
Procedures
Even if your claim is valid, you cannot simply sue your employer for sexual harassment out of the blue. Under federal law, you must first file your complaint with the Equal Employment Opportunity Commission and allow the EEOC to investigate the charges. Many state laws have similar agencies and follow similar procedures before allowing a private lawsuit.
Upon receiving a charge, the EEOC conducts an investigation that looks at the record as a whole and at the totality of circumstances. You enhance your credibility with the EEOC if you make your complaints contemporaneously, rather than long after the fact. You are not obligated to make a complaint to your employer before filing a charge, but the EEOC will investigate why you did not and seek an explanation.
If the EEOC determines that the charges show reasonable cause, then the EEOC will try to resolve the situation through conciliation efforts. If such efforts fail, the EEOC will either file suit itself or issue a right-to-sue letter. You can also demand a right-to-sue letter if the EEOC is taking too long to investigate the charge.
Each year, the EEOC and cooperating state and local agencies altogether receive about 15,500 sexual harassment complaints (about 80 percent from women, 20 percent from men). Of the 16,383 complaints resolved in 2001, more charges are deemed insufficient than found to show reasonable cause (44.6 percent compared to 10.7 percent). The remainder were dismissed due to procedural problems (26.2 percent), settled (9.6 percent), or withdrawn by the complainant after receiving some benefits (8.9 percent).
Judicial Relief
Until the 1990s, you could only recover equitable remedies designed to put you back where you were before the abuse began. Thus, you could only recover lost wages, back pay, and reinstatement as soon as there is a new vacancy (courts will not displace a present jobholder, though you can sometimes get “front pay" while you wait). A court also can order an employer to change its behavior.
Now, under the Civil Rights Act of 1991, you can also sue for compensatory damages such as emotional distress and for punitive damages, both of which have limits. Compensatory damages are specifically limited by the employer’s size (from $50,000 for employers with more than 14 and less than 101 employees, to $300,000 for employers with more than 500 employees), though the Supreme Court ruled in June 2001 that front pay did not count against this cap. Punitive damages can run into the hundreds of thousands, but are often reduced on appeal so that they do not "shock the conscience."
Sources: GAO report, Sexual Orientation-Based Employment Discrimination: States' Experiences with Statutory Prohibitions, July 9, 2002. Colorado's discrimination statutes are on-line here. Michael J. Zimmer, Charles A. Sullivan, Richard F. Richards, and Deborah A. Calloway, Cases and Materials on Employment Discrimination (Aspen Law & Business, 1997) (Fourth Edition). The Equal Employment Opportunity Commission is on-line here. Particularly useful were the EEOC’s “Policy Guidance on Current Issues of Sexual Harassment", and statistics. The caps on compensatory damages are in 42 U.S.C. 1981a, which can be found at Findlaw.com along with relevant Supreme Court cases.
The Miranda Recitation of Rights (last updated March 12, 2003) (back to top)
As anyone who has seen a modern cop show knows, you have the right to remain silent, and anything you say may be used against you in a court of law. You have the right to an attorney, and if you cannot afford an attorney, an attorney will be provided you.
That is the basic recitation of constitutional rights established in the case of Miranda v. Arizona (1966) as the absolute minimum necessary to ensure a constitutional police interrogation, and it remains the minimum despite a constitutional challenge that was rejected in 2000. But the rights against self-incrimination are not as broad as people generally think and the recitation is not always required when a suspect talks to police.
Basically, the Miranda recitation is designed to prevent coercion, not stupidity or gullibility. So, even if police think you're a suspect, they can still talk to you without reading you your rights, and they generally can trick you into admitting information that you probably shouldn't have revealed. What they cannot do is hold you in custody (which doesn't necessarily mean in jail, just that you're not free to go) and then question you without reading you your rights. But even if they did, all that generally means is that the police could not use any subsequent statements you make as evidence.
Gotham Central #5 (back to top of article)
In Gotham Central #5, for example, the police talk to three suspects. Yancy is in jail and is thus obviously in custody, so police presumably read him his rights while locking him up. Joey the former Firebug isn't in jail, but he was captured by police and must have been read his rights off-stage as well.
But Harlan Combs comes into the precinct thinking that he is just going to identify Yancy and leave. He doesn't think he is a suspect and he thinks he can leave freely whenever he wants. He is not in custody, so everything he says up until the second panel of page 17 is completely admissible and in keeping with the Fifth Amendment, even though he wasn't read any rights.
Panel from Gotham Central #5.
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The situation when Combs says he wants to leave but is not allowed to do so. From that point on, he almost definitely is in custody and the detectives should have read Combs his rights if they actually wanted to use anything he then said as evidence. Accordingly, Combs' response to Driver's accusation about being responsible for the death of Charlie Fields ("That – that wasn't my fault. I didn't … no – ") would probably not be admissible in court; Driver obviously had enough evidence by that point and was just looking to vent.
Finally, Combs' attempt to kill Driver would be admissible evidence because it was an action, not a statement. The action would be admissible in terms of the murder of Bonnie Lewis as it helps show that Combs knew he was guilty, and it would be directly admissible in terms of the new charge of attempting to kill a police officer.
How the Miranda Rights Evolved (back to top of article)
The Miranda recitation arose from a re-evaluation of police procedures in the 1960s by the Supreme Court led by Chief Justice Warren Berger. One problem was dealing with police brutality during interrogations. A report in the 1930s showed that the common police procedure was to assume a suspect's guilt and to beat a confession out of him; such procedures had softened by the 1960s but still occurred.
The Supreme Court tried to prevent such police behavior through rulings that confessions had to be voluntary and not coerced to be admissible in court. But this bogged down the courts with litigation over whether a confession was voluntary or not, forcing the courts to look closely at what occurred in the interrogation room. The Supreme Court thus revisited the issue with the Miranda case, and in 1966 came up with a bright-line rule that would be easy for police to follow and that would cut down on evidentiary motions by defense lawyers.
Basically, once a suspect has been taken into custody, he must be informed of his rights against self-incrimination if the police interrogation is to be used against him in court. At a minimum, the Court said, police must inform suspects of their rights under the Fourth, Fifth, and Sixth Amendments (see the full text of them here). The Supreme Court hoped that police would come up with additional, more effective safeguards, but set this baseline as a minimum.
The Miranda decision was criticized by police at the time, but actually became useful for law-enforcement, because it made showing that a confession was voluntary easier than before. Rather than having to explain the circumstances in detail each time, the police need only convince a suspect to sign a form indicating he had been told of his rights, and any subsequent statements were admissible. The main effect of Miranda and other court-imposed mandates in the 1960s was to force police culture to become more professional and regulated with new rules and requirements. Police adapted to those changes and some studies have shown that the number of confessions has, in fact, stayed the same or even increased since Miranda.
Attempts to Undo the Miranda Requirement (back to top of article)
Miranda remains the law of the land today, despite an attempt in the 1990s to argue that it had been superseded by Congress in 1968. In the wake of the Miranda decision, Congress passed a federal law that enabled the use in federal court of confessions that did not involve a recitation of rights and that would still be considered voluntary under the pre-Miranda case law. Law-enforcement did not invoke this provision for decades, but the issue arose in the 1990s and eventually reached the Supreme Court. In 2000, Chief Justice William Rehnquist upheld the Miranda requirements as a matter of constitutional law that Congress could not supersede in a 7-2 majority.
But what would have happened if the Supreme Court had overruled Miranda? As far as interrogations go, arguably not much. Years before Miranda, the Court found that confessions must be voluntary in order to be admitted; the Miranda decision in some ways simply set out a presumption that any statement in an interrogation is voluntary if made after a suspect hears and understands the warnings.
How Miranda Gets Applied (back to top of article)
There are some nuances to the Miranda rights, most of which are based on the principle that Miranda's only purpose is to prevent police coercion during an interrogation. It does not guarantee that you fully understand the consequences of your confession, it does not mean that police have to give you the warning each time they speak to someone, and it does not mean that you have a right not to be stupid.
For example :
- Miranda does not ensure that you are fully rational and properly motivated when you make a statement to the police. In the case of Colorado v. Connelly, 479 U.S. 157 (1987), a defendant was given the Miranda warnings and then confessed, but later claimed that he had been compelled by inner voices to give the confession. The Supreme Court ruled that the Fifth Amendment's privilege against self-incrimination is intended solely to prevent police coercion, nothing else, and the confession was admissible.
- Miranda only applies when a suspect is being interrogated. Interrogation is not the same as conversation, and the difference requires a determination by the courts. Did the police engage in express questioning or its functional equivalent? Should the police have known that their words or acts were reasonably likely to elicit an incriminating response from the subject? If the answers to these questions are no, then Miranda is not triggered. A leading case here is Rhode Island v. Innis, 446 U.S. 291 (1980).
- Undercover agents do not need to give Miranda warnings because the suspects are not being subjected to government coercion. Miranda simply prevents coerced questioning. The pressures of police-dominated atmosphere and government coercion do not exist when the undercover agent is maintaining his or her cover and thus has shown no authority.
- You can waive your Miranda rights without knowing the strength of the government's case against you or knowing of other circumstances. Your choice to waive your rights has to be voluntary and has to be made with a full awareness of the rights being waived, but it need not be fully-informed as to all relevant circumstances. See for example the Supreme Court case of Moran v Burbine, 475 U.S. 412 (1986). However, there is the possibility of a due process violation if extreme police conduct that transgresses against fundamental fairness.
- Even if police didn't give the Miranda recitation, they can use subsequent statements in some some ways. Usually, statements made after a Miranda recitation should have been given are inadmissible. But police can still use the statements to show that the suspect is lying at trial if he testifies and says something different. Police generally can still use evidence discovered as a result of the inadmissible statement (so-called "fruit of a poisonous tree"), and police can even get the confession into direct evidence if it was obtained in emergency circumstances.
Sources: Stephen A. Saltzburg and Daniel J. Capra, American Criminal Procedure : Cases and Commentary (Fifth edition) (West Publishing Co., 1996). Supreme Court Cases are available on-line via Findlaw.com : Miranda v. Arizona, 384 U.S. 436 (1966), is on-line here, and Dickerson v. United States (2000) is on-line here.
Batman as an Urban Legend (last updated February 16, 2003) (back to top)
Put aside the inconsistency in believing that people in the DC Universe still doubt Batman's existence while knowing of the Joker, Two-Face and even Superman. Why can't the Gotham City Police Department officially acknowledge Batman's existence?
Batman himself has said that an air of mystery and uncertainty is necessary for what he does. But that isn't the best or even most likely reason if Batman operated in the real world. Public acknowledgement of Batman's existence would make Batman a de facto agent of the police, thus making all his actions subject to the Fourth Amendment, which guarantees that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated." It might also make Batman subject to the Fifth Amendment, which prevents the police from getting coerced confessions.
Batman #584.
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If that happened, Batman would have to change his actions considerably to fit within constitutionally-allowed guidelines. If he did not, the GCPD would either be liable for his actions or would have to refuse to cooperate with him. The GCPD might even have to try arresting him.
The Fourth Amendment regulates how police investigate crimes by forcing them to justify their methods and procedures in each case. Police thus have to get warrants supported by "probable cause" or be under emergency conditions whenever they conduct a search or seize evidence; if their justifications are insufficient, courts exclude the resulting evidence from trial under the Exclusionary Rule adopted by the United States Supreme Court at the federal level since 1914 and at the state level since 1961. This hampers law-enforcement but preserves civil liberties; whether it's good or bad often depends on your personal view at the time.
(The Supreme Court adopted the Exclusionary Rule in order to give some meat to the Fourth Amendment. Without such a rule, the Court explained in the 1961 case of Mapp v. Ohio, constitutional protections against bad searches and seizures would be just words, "valueless and undeserving of mention in a perpetual charter of inestimable human liberties," "so ephemeral ... as not to merit this Court's high regard as a freedom 'implicit in the concept of ordered liberty.'" However, critics say that there are other ways of regulating police behavior.)
The Fourth Amendment normally does not apply to private individuals, but Batman could still be subject to it if courts recognized him as a de facto government agent. The standard for that is not so high; the United States Supreme Court held in 1989 that private railroad companies were subject to the Fourth Amendment when conducting drug tests because there were "clear indices of the Government's encouragement, endorsement and participation." Along those lines, Batman would probably be considered a government agent subject to the Fourth Amendment since he receives information and tips directly from the police.
But if the courts simply assume Batman is an urban legend or conspiracy theory, Batman can collect evidence that the police cannot. Under a 1914 Supreme Court case, Burdeau v. McDowell, the Exclusionary Rule does not apply to private individuals who are not acting as de facto government agents, so criminals can be convicted with evidence seized by Batman. He can break into people's apartments and homes, he can use advanced surveillance equipment to spy on people, and he can place tracking devices and use wiretaps, and he can then turn over the evidence to the police to use to build their own case (they probably cannot use the evidence directly, since they would have a hard time explaining the chain of custody in court without admitting Batman's existence).
Criminals, however, could try suing Batman for his violations of their civil rights. They would have a hard time serving him and bringing him to court given his secret identity, but the Supreme Court did acknowledge in Burdeau v. McDowell that criminals had a right of action against the private individuals who stole the papers that the government used as evidence against the criminals. Maybe that's why billionaire Bruce Wayne should never reveal his identity.
As for the Fifth Amendment, it prevents police from coercing people into confessing. The Miranda rule, adopted by the United States Supreme Court in the 1966 case of Miranda v. Arizona, helps prevent police from doing so by making sure that police inform suspects held in custody of their rights before conducting an interrogation. But the Fifth Amendment does not apply if the suspect thinks he is talking to a private individual and it does not apply if the suspect is not in police custody, which means that Batman can get away with interrogations that would be clearly impermissible under the Constitution.
Sources : Mapp v. Ohio, 367 U.S. 643 (1961). Miranda v. Arizona, 384 U.S. 436 (1966). Burdeau v. McDowell, 256 U.S. 465 (1921). Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602 (1989). Stephen A. Saltzburg and Daniel J. Capra, American Criminal Procedure : Cases and Commentary (Fifth edition) (West Publishing Co., 1996). For more on Batman as an urban legend, see Batman #584, as well as Gotham Central #2 and #5, and go here.
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All art is copyright their respective owners.Footnote Comics is a service mark of Stephen Lee. Newsaic and FootnoteTV are registered service marks of Stephen Lee.
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