Stop Asking Marvel To Keep Cops From Wearing Masks With 'The Punisher' Skull On It

from the policing-isn't-supposed-to-be-commerce dept

Regular readers here will certainly know that movie-sequel maker and occasional comic book producer Marvel is quite notorious for protecting its intellectual property in a rather heavy-handed way. Some of the examples of its protectionist actions are, ironically, cartoonish. Such as when it used copyright to crush the creator of Ghost Rider. Or refusing to allow copyrights for some of Marvel's most famous characters to revert back to the folks who actually created them through termination rights. Add to this that Marvel is now a part of Disney, a company nearly as famous for its forays into shaping copyright law as it is for anything else. With all of the above, perhaps it was understandable when people saw a whole bunch of cops in the news for all the wrong reasons adorned in face masks imprinted with the logo for The Punisher that those same people wondered aloud why Marvel wasn't suing the police over it.

You tend to see it in articles like this, where members of the public and/or other comic creators beg Disney or Marvel to sue police who wear the logo while they're out proving the point of the protesters.

The Punisher is one of the most brutal, violent characters in comics. Yet, somehow, his iconic skull logo has been co-opted by some police officers who use the symbol to show their support for "Blue Lives Matter." Now, certain comic creators are urging Disney to take legal action against police forces who have used the logo without permission.

So, first thing first: the fact that officers of the law are taking on the logo of a vigilante that operates brutally and specifically outside the law should tell you everything you need to know about the officers who wear those masks. These imbeciles seem to take great pleasure in proving the point of the current movement for whatever reason.

But as to any legal action Marvel could take against them, as this post points out, there's likely very little that can be done specifically with the police.

However, while many fans would love for Marvel to tell the cops that they cannot use the trademarked skull logo of the Punisher, Marvel is likely stuck without a whole lot of legal recourse for achieving a ban like that.

The key problem with enforcing the use of the trademark with police officers, though, is found in the word trademark itself. A trademark, simply put, is a mark that is used in trade. This means that the intellectual property is being used in commerce. If the intellectual property is not being used in commerce, there is not a whole lot that the owners of the trademark can do about people using the trademark.

And, aside from the happy pilfering of society via civil asset forfeiture, not to mention police unions that aggrandize the danger of the average cop in order to continue siphoning tax money to buy better weaponry toys, policing is just a racist enterprise, not a commercial one. Legal action against the police would be tossed out of court quickly.

Which tends to move the public onto different targets out of a desperate sense that someone somewhere needs to do something. That's when they begin to scream, "Why is Marvel refusing to enforce its trademark on the logo among those selling those masks?"

As protests against police brutality go global and enter their third week, Marvel Comics has faced increasing calls to get the Punisher skull off of police gear. The skull is often added to bootleg tactical merchandise used by police and the military (both at home and abroad), as well as, occasionally, official police gear. When pressed on the matter, though, a Marvel spokesperson told io9 precisely nothing. The spokesperson affirmed to io9 that they were taking the issue very seriously, referred readers to a page from a recent issue of the Punisher’s comic, and pointed to the company’s prior statement on social media.

Disney, Marvel’s parent company, is notoriously litigious enforcing its trademarks. Before purchasing Marvel Entertainment and all its comic characters, the company once sued three Florida daycare centers for painting likenesses of Mickey Mouse and other Disney characters on their walls. And Disney refused to grant permission for a child’s Spider-Man gravestone, telling his grieving father that they wanted to protect the “innocence” and “magic” of its characters. There are more than 1,000 results for “thin blue Punisher” gear on Amazon.

So, a couple of things. First, the use of the Punisher logo is so widely prevalent that this likely explains how police are finding them and wearing them. Certainly, it's not as though Marvel or Disney, rich enterprises though they may be, could pay enough lawyers to fill up enough courtrooms to go after all of these people all of the time. Second, Marvel most certainly does police the Punisher trademark. It's done so on companies that have used similar logos on gun products, all kinds of merch and apparel, and elsewhere.

As for the masks the police are using like some kind of dumb superhero symbol that couldn't be more tone-deaf, Marvel actually has made its stance pretty clear.

“We stand against racism. We stand for inclusion. We stand with our fellow Black employees, storytellers, creators and the entire Black community. We must unite and speak out.”

The spokesperson also referenced the Punisher's own stance against police using their logo to io9 as their own stance. In Punisher #13 by Matthew Rosenberg, Szymon Kudranski, and Greg Smallwood, the Punisher isn't pleased to see cops using his logo. The Walt Disney Corporation earlier this week pledged $5 million towards nonprofit organizations that advanced social justice, including $2 million going to the NAACP.

Bottom line: there is no world in which Marvel wants to see its character symbols resting on the faces of cops brutalizing peaceful protests. Stop asking them to sue the police; they can't. And if you're upset that they haven't sued rogue apparel makers using the logo as of yet... give it time. It is Disney/Marvel, after all.

Filed Under: police, punisher, trademark, use in commerce
Companies: disney, marvel

Court Says No One's Responsible For Detainee Who Committed Suicide While Jailers Crafted 'Punisher' Posters

from the just-another-day-in-the-life-of-carceral-America dept

Via the Fifth Circuit Court of Appeals comes a depressing tale about how cheap life is in jail, even for those who haven't been convicted of a crime.

It starts with a family argument. Jose Luis Garza was intoxicated and arguing with his brother. His mother expressed her fear for his safety to the Donna police officers she had called, stating she "feared for his life" and was "afraid he would hurt himself." The officers provided the only assistance they knew how to give: they arrested Garza, charging him with "assault by threat."

Garza was taken to the PD's holding facility -- not a prison or jail but somewhere for cops to stash arrestees until they were moved to an actual prison/jail. Garza was placed in a cell with a camera, but soon after being put there, he blocked the camera. The person monitoring the cameras did not notice it had been blocked. This DPD employee claimed watching the cameras wasn't her job once the jailers started their shifts.

The jailers started their shift at 8 a.m. They were required to check on detainees every hour. These officers -- Esteban Garza and Nathan Coronado -- may or may not have heard Jose Garza banging on his cell door to get their attention. The record simply doesn't show. The jail log shows a cell check was performed at 8:10 a.m., but there's reason to doubt this check was ever performed. More on that in a bit.

When the jailers arrived, they began the important work of… making posters. From the decision [PDF]:

After that point, the jailers worked on signs that DPD’s police chief, Ruben De Leon, directed them to put up in the jail. One read “Welcome to Donna Hilton,” and another showed the logo of the Punisher, a comic-book character known for carrying out vigilante justice.

This is what the jailers were doing instead of being jailers and paying attention to their detainees. This is the result of their poster-making efforts.

Occupied with the signs, the jailers missed that Garza had hanged himself, and it took the chance arrival of agents from U.S. Immigration and Customs Enforcement (ICE) for Garza’s suicide to be discovered. The ICE agents had arrived at 8:40 AM and found him at 8:49 AM. It was unclear how long he had been hanging.

Let's just pause for second and marvel at how awful you have to be at your job for ICE agents to be the nominal heroes of this tragic story. These would be ICE agents, employed by ICE of #AbolishICE fame. ICE agents aren't known for their warmth, competence, or ability to treat anyone they come into contact with as human beings. Fortunately for these ICE agents, the detainee was already dead, preventing them from having to dip into their minuscule reserves of empathy.

But if ICE hadn't shown up, Garza may have been left hanging for hours. Sure, jailers were required to perform hourly cell checks, but the chief wanted posters made, and that took obvious priority. The most important thing was to let detainees know they were being mocked ("Welcome to the Donna Hilton") and in the custody of law enforcement officers who view a comic book vigilante killer as role model.

And about that hourly welfare check… here's what actually happened. A footnote in the decision indicates the jailers never checked on Garza and their first encounter with him occurred after ICE agents showed up and discovered his dead body.

Jailer Garza added the 8:10 AM check to the jail’s cell-check log after Garza’s death and after the Texas Rangers concluded their post-incident investigation. The actual occurrence of the check is thus a sharply contested fact issue.

This indifference to the condition of their detainee naturally resulted in a lawsuit. But, according to the Fifth Circuit, there's nothing in it for the plaintiffs. They pointed to the posters -- the ones being crafted while Garza hung himself -- as indicative of the Donna PD's official stance on the mistreatment of detainees. This is too much of a stretch for the court.

Appellants’ conditions theory centers on the signs that Ruben De Leon, DPD’s police chief, ordered installed in the jail. Those signs, as noted, bore the message “Welcome to Donna Hilton” and the Punisher logo, respectively, and Jailers Garza and Coronado were assembling them at the critical time on February 19. Appellants view the Donna Hilton sign as “mockingly invok[ing] the torture of POWs.” Donna officials venture a positive interpretation of the sign. De Leon said he “wanted buy in from the jailers and the staff to remember that we’re here to serve – the people who come in, some people call them prisoners. I call them customers.” Robert Calloway, a Texas Ranger who investigated Garza’s death, saw it as a reference to the Vietnam POW camp, as Appellants do.

Appellants view the Punisher logo as “favorably advocat[ing] vigilante violence.” At summary judgment, Appellants argued at length for a “link between Punisher imagery and abusive police behavior.” Among other sources, they relied on a dissenting opinion in a recent Eighth Circuit case, which, citing Wikipedia, explained that the Punisher was an “antihero” figure “created by Marvel Comics in 1974 as an antagonist to Spider-Man,” who “considers killing, kidnapping, extortion, coercion, threats of violence, and torture to be acceptable crime fighting tactics.”

In Appellants’ view, the signs, taken together, announce an “official policy of prisoner mistreatment” or “official encouragement of intentional mistreatment of detainees.” They argue that the signs should thus be categorized as a “condition” of the confinement to which Garza was subjected. The signs “served no valid governmental purpose,” and their installation caused Garza’s constitutional deprivation because it preoccupied Jailers Garza and Coronado to the detriment of their core duties.

The signs certainly aren't helpful and do little to assure detainees they'll be taken care of properly during their stay, but the appeals court agrees with the lower court: the signs the jailers crafted while allowing a detainee to hang himself are not indicative of inhuman conditions.

Appellants’ conditions theory is an effort to fit a square peg into a round hole. Prior conditions cases have concerned durable restraints or impositions on inmates’ lives like overcrowding, deprivation of phone or mail privileges, the use of disciplinary segregation, or excessive heat. See Yates v. Collier, 868 F.3d 354, 360 (5th Cir. 2017) (heat); Scott, 114 F.3d at 53 & n.2 (collecting other examples). The import of the Donna jail’s signs is too nebulous to amount to an official rule or restriction, and the signs do not operate as a continuing burden on inmate life in the way that dangerously high temperatures or overcrowded cells do. As such, the district court was correct to reject Appellants’ conditions theory.

The signs are also not indicative of official policies either. The appeals court does find that the jailers' actions -- making posters rather than checking on detainees -- could be construed as deliberate indifference, but decides the case can be dismissed on other grounds, rather than allowing that argument to develop.

Appellants do not attribute the actions of the arresting officer, Silva, or the senior officers who performed CPR, Rosas and Suarez, to any particular policy or custom. What they argue for Silva, Rosas, and Suarez is that De Leon’s order to post the “Welcome to Donna Hilton” and “Punisher” signs announced an official policy of detainee mistreatment. The import of the signs is too general and inexact for the signs to constitute the sort of specific directive required for municipal liability, and it is too nebulous to constitute a moving force. The episodic acts or omissions of these employees therefore cannot be attributed to the City.

And, since the police chief was unaware a prisoner was busy hanging himself, his decision to task his jailers with making posters cannot be seen as deliberate indifference either.

Nothing in the record indicates that De Leon was aware of Garza’s presence at the jail, much less that he instructed the jailers to disregard Garza in favor of installing the signs. It thus cannot be said that De Leon’s directive was deliberate in the sense meant by Pembaur or that it was tailored to the particular situation of Garza’s confinement. Consequently, it is apparent that the record cannot support municipal liability on this basis.

So, an indifferent deed goes unpunished. True, the jailers may not have deliberately decided to ignore a suicidal detainee in favor of making posters, but the record shows they were far from attentive. It wasn't until ICE showed up and interrupted the arts-and-crafts project that anyone specifically tasked with keeping an eye on detainees actually started to pay attention to the detainees. By that point, it was too late for Jose Luis Garza. And, as far as the courts can tell, this sucks for Garza but they don't have anything to offer his survivors.

Filed Under: 5th circuit, donna police department, esteban garza, ice, jose luis garza, nathan coronado, punisher, responsibility, ruben de leon, suicide