The second chapter of Powers is called “Ride-Along,” and comprises just one issue. It involves a fictional Warren Ellis, the author of an in-universe comic book called Powers, essentially a meta-version of the real Powers book, going along with Walker for a ride-along. Which is interesting enough, particularly for the meta-textual entertainment value, but neither that nor anything else that happens in that issue is of any particular legal interest.

So we’ll move straight into chapter three, “Role-Play”. We’ll be talking about two more legal issues this time: the expanding discussion of the state of superhero regulation and the interesting possibility of being a conspirator in one’s own homicide. As always, spoilers within.

I. Costumes, Registration, and the First Amendment

The case this time involves a batch of serial murders. The victims are all dressed as superheroes, but none of them seem to have any powers. They’re just a bunch of college students, but someone is taking them down, targeting them as if they were superheroes. Clearly, this is murder, and we’ll talk about the criminal law aspects of the case in a bit. But at the first crime scene, it comes out that wearing costumes like this is apparently illegal unless one is a registered superhero. Is this sort of regulation permissible?

Probably. We discussed the First Amendment implications of restricting costumes in the comments to our post about the Keene Act, and observed that while the wearing of costumes is potentially “expressive conduct” protected by the First Amendment, content-neutral time/place/manner restrictions on such conduct are generally permissible. So there are several ways a ban like this could work. There could be a ban on unregistered “costumed adventuring,” which it seems likely that a court would recognize as being a compelling government interest, and the ban could be narrowly tailored to actually achieve that interest. Or there might be a ban on wearing an identity-concealing costume/mask while committing a crime (almost certainly permissible), or even a ban on groups of people wearing masks in public. “Mask laws” of this latter sort already exist to discourage groups like the KKK, though they’re currently being challenged. Lastly, given the presence of a registration requirement, there might simply be a law banning unregistered persons from wearing costumes associated with registered persons. That would be the narrowest kind of restriction and the easiest to pass First Amendment muster, akin to a prohibition on impersonating a police officer or member of the military. Any of these could serve to make wearing superhero costumes without registering first at least presumptively illegal in most circumstances, the First Amendment notwithstanding.

II. Conspiracy and Felony Murder

A. Conspiracy

But we’ve also got another issue, this one potentially more interesting. The victims in the story are all part of a club of sorts that dresses up as superheroes and runs around basically role-playing. This is probably illegal, given the regulatory environment in the story. So not only are they all guilty of breaking whatever law bans the activity itself, they’re also probably guilty of conspiring to do so.

Conspiracy consists of the agreement of two or more persons to commit a crime at some time in the future. Conspiracy is an independent crime in its own right. Whether or not the crime which is the subject of the agreement is ever committed is irrelevant: the agreement to commit that crime is, in and of itself, a crime. Thus one may both be convicted of crime A and for conspiring to commit crime A. The theory is that while crimes are bad, people working together to commit crimes is worse, so we punish the “working together” part independently of the actual crime part. So the victims in this case are all guilty of violating the costume ban and conspiring to do so.

But here’s where things get tricky. The killer in the story was actually hired by the group to chase them around. The kids had apparently gotten bored with just running around to no purpose, and they decided to spice things up by getting a villain involved. None of them wanting to play the villain themselves, they hired someone else to do it. Except that, entirely by accident, they hired an actual villain, who proceeded to knock most of them off. Messy.

Question: is the group guilty of those murders as well?

This is not as silly a question as it sounds. All of the participants in a conspiracy are guilty of conspiracy. They are all also guilty of the target crime, once committed, under a theory of accomplice or vicarious liability, even if only one member of the conspiracy commits the target crime. This makes a certain amount of sense. But here’s the thing: co-conspirators are not only vicariously guilty of the committed target offense, but all committed offenses that are committed in the furtherance of the conspiracy and are a reasonably foreseeable consequence of the target crime.

So the analysis becomes whether the players getting killed was (1) in furtherance of the conspiracy and (2) a reasonably foreseeable consequence of the conspiracy. Given these facts, conspiracy liability for the murders would be difficult to prove, at best. The prosecution needs to prove both the “in furtherance” and “reasonably foreseeable” elements beyond a reasonable doubt. The target crime was to run around like hooligans in violation of the applicable ban on costumes. It’s going to be pretty hard to argue that killing the players was done in furtherance of the conspiracy. Now, if we were talking about property damage or trespassing, or even bodily injury to a third party, those could all be conceivably brought within the scope of liability for co-conspirators. But none of the conspirators ever intended for anyone to get hurt, let alone themselves, so the prosecution is going to have a really tough time convincing a jury that there should be co-conspirator liability for murder here.

B. Felony-Murder and Misdemeanor-Manslaughter

That being said, there is another potential avenue to finding the co-conspirators all guilty for the deaths in question: the felony murder and misdemeanor-manslaughter rules. The general rule here is that if a defendant is involved in the commission of a crime, and someone dies as a result, the defendant can be held liable for the victim’s death, whether or not it was intentional or even a part of the original plan. The most common example is a bank robber shooting a guard or bystander while robbing a bank or fleeing the scene. That’s automatically going to be first-degree murder in most jurisdictions, and any of his accomplices (e.g. a getaway driver who was nowhere near the shooting) can be charged with the murder just as much as they could be charged with bank robbery. There are some limits on sentencing for the people who didn’t actually pull the trigger, but that’s the basic rule. Some states also have a misdemeanor-manslaughter rule. If a person commits a misdemeanor, or a felony not on the felony-murder list, and someone dies, that’s automatically involuntary manslaughter.

Felony murder seems a stretch here. Even if wearing costumes illegally is a felony, and we don’t know that it is, felony murder is generally limited to “dangerous” felonies, like robbery or burglary, and sometimes even to a specified list of crimes. We’re talking rape, arson, kidnapping, and sometimes drug dealing, but not, for example, embezzling or other kinds of fraud. The illegal use of a costume seems more likely to end up on the latter list than the former, so felony murder is unlikely. Further, some states have created an exception for the deaths of co-conspirators. The idea is that we want to punish people for killing innocent bystanders. Getting yourself killed while committing a crime isn’t something we want to punish anyone for, let alone spend the time and money involved in prosecution and incarceration. So the fact that the people getting killed were involved in the crime means that they might not even be eligible victims for a felony murder charge.

Misdemeanor-manslaughter also seems somewhat unlikely. Those states that do have the rule–and not all do–tend to limit it, not to a specified list of crimes, but at least to those which pose an inherent risk of serious bodily injury. So, for example, Indiana has made “timber spiking,” i.e., a form of environmental protest involving putting metal spikes in trees to interfere with logging operations, a felony, but it’s not on the “dangerous” list, so if someone dies, it’s involuntary manslaughter, not murder. Many states characterize killing someone while driving under the influence as manslaughter. But running around with a costume on doesn’t seem to be the sort of thing which poses an inherent threat to anyone. Even hiring someone to make the game more interesting, without criminal intent beyond the costume bit, seems pretty benign. It seems doubtful that a court would bite on a prosecutor’s attempt to charge either felony murder or misdemeanor manslaughter here.

C. Wrongful Death

There doesn’t even seem to be much room for civil liability for wrongful death. All of the group seems to have been equally involved in planning and participating in their activities. They all agreed to hire the perpetrator. And none of them intended for anyone to get hurt. So a likely outcome there is for most of the fault to be apportioned to the actual killer, and each of the victims being more responsible for their own deaths than the others’, and each being roughly equally responsible for the others’ death’s. Result: no recovery, as the fault that any given victim bears towards the other victims is canceled out by the fault they owe to him. The perpetrator is broke—and dead—so no recovery there either. And given that the group had agreed to break the law, it’s going to be very difficult to find a third party responsible for their activities. A wrongful death claim seems futile.

III. Conclusion

We learn a little more about the registration regime in Powers this time, and it seems to include some sort of ban on civilians dressing up in costume without registering first. If we assume that this has some kind of reasonable limitation that would permit Trick or Treat, filming television shows or movies about superpowered people, etc, but prohibit “costumed adventuring,” this is probably okay. And though every member of the group is guilty of conspiracy based on their mutual agreement to break the costume laws, finding them guilty for their own deaths, or the deaths of the others involved, is implausible. Conspiracy liability won’t apply, as it wasn’t the point of the conspiracy to hurt anybody, so those acts wouldn’t be in “furtherance” of the conspiracy. And the accomplice-type liability theories for felony murder and misdemeanor manslaughter don’t seem to work in this case.