General Talbot Should Not Grab a Major’s Face

Pretty sure General Talbot on Agents of SHIELD will be subject to an internal affairs investigation due to 1) rounding up all the female officers and enlisted service members and 2) unwanted facial touching of a servicewoman. Let’s discuss the legal issues from “Love in the Time of HYDRA.”

Cheek_JAG_7634The General likely would be cleared of charges, but his wife being angry for not being diverted away from a dangerous situation, followed by the General pulling a gun on her and told to lie on the floor with lunch, would seem mild compared to what the Air Force would do to him.

The face-changing Agent 33 had invaded General Talbot’s base. Talbot recognized his base had been compromised after waiving Agent 33 impersonating his wife passed security (a violation of National Security Protocol) and then being called by his wife on the phone.

Note to all spouses: If your life partner makes you realize a face-changing spy has invaded your office, warn them to stay away. No one should die on Taco Tuesday.

Talbot’s solution to a female spy being on base was to sequester all of the women in order to find the spy. After interrogating each woman in public, Talbot grabbed the cheek of a Major, thinking that Air Force officer was the spy.

Bad, bad, bad, idea.

Spy_Dude_7576The spy actually had killed a male soldier her height and taken his uniform. There was no reason to round up only women, when the search should have focused on height and weight of people: Agent 33 could change her face; she was not a shape-shifter would could increase or decrease her mass.

Could the Air Force Major prevail in a hostile work environment claims against General Talbot? She would have to prove the following:

(1) That she belongs to the protected group;

(2) That she was subject to unwelcome sexual harassment;

(3) That the harassment complained of was based on sex; and

(4) That the harassment complained of affected a term, condition, or privilege of employment in that it was sufficiently severe or pervasive to alter conditions of her employment and create an abusive working environment.

Maddin v. GTE, Inc. (M.D.Fla. 1999) 33 F.Supp.2d 1027, 1031, citing Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1557 (11th Cir.1987).

The Major could prove 1) she is a woman and thus belongs to a protected class based on gender; 2) she was subjected to unwelcome sexual harassment by the cheek grabbing (definitely battery); and 3) the harassment was because she was a woman.

The second element is somewhat problematic: the General definitely violated her person by grabbing her cheek, thinking it was a mask. Trying to unmask a spy is not on its face sexual harassment of a possible suspect, but it is definitely battery.

As one case explained, face touching “is not the type of physical conduct that is so egregious that even one instance would make a reasonable woman experience her workplace as hostile.” EEOC v. Int’l Profit Assocs. (N.D.Ill. 2009) 654 F.Supp.2d 767, 809.

It would appear the hostile work environment claims would fail because one incident of face touching (in order to unmask a spy) would not be egregious conduct to create a hostile work environment given the extreme situation.

This would not mean the General is safe from a Congressional Investigation. The military and Congress take a dim view on assault of service members, so the General better be prepared to explain how he was trying to find a spy that had killed two other military personnel.

Tony Stark Should Not Have Drones Taking Naked Photos

Tony Stark in Superior Iron Man is being very creepy with drones flying over San Francisco for “security.” The City by the Bay has become an Orwellian parable, thanks to the great story by Tom Taylor. While crime is low to non-existent, Stark states that because of the drone surveillance, people of San Francisco were “thinking up really creative ways not to be naked.”

Josh_IronMan_SF_0645San Francisco has a population of over 835,000 people. Tony Stark could be sued in the largest invasion of privacy case of all time.

Invasion of Privacy in California

California might be short on water, but we are rich in privacy laws. The California Constitution states that, “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Cal Const, Art. I § 1.

The state of California has enacted laws that would give anyone who is recorded by Stark’s drones a cause of action against him for invasion of privacy. Tony Stark has arguably subjected himself to civil liability suit based on the following:

A person is liable for constructive invasion of privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity, through the use of any device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the device was used.

Cal Civ Code § 1708.8(b), emphasis added.

What does this mean? A Stark Drone hovering outside your bedroom window recording your every moment would be an invasion of privacy.

Damages could be up to three times the amount of any general and special damages that are proximately caused by the violation of this section. Cal Civ Code § 1708.8(d). Moreover, punitive damages could be an option (and given the fact surveillance is constant AND naked photos of everyone, punitive damages should be a given). Id. Additionally, there is a civil fine of at least $5,000, but not more than $50,000, for each plaintiff. Furthermore, if Tony Stark commercialized the record images with a voyeur website, he would be subject to disgorgement of any profits. Id.

Tony Stark might be rich, but if he was fined $50,000 for each of the 835,000 people in San Francisco, Stark would likely be bankrupted.

Stark might argue the Terms of Service for his App gave him the right to record people. This likely would fail, given the severity of the intrusion. Moreover, no Judge will think, “Sure, you can click away all person freedom in an App Terms of Service Agreement.”

There is also the issue of recording naked children. For Tony Stark to be guilty of child pornography, the images would need to be of children engaged or simulating sexual conduct. Cal Pen Code § 311.11. Law enforcement can add that issue to the search warrant.

Tony Stark’s attorneys should strongly advise against the use of drones to record people in San Francisco. A very good [fictional] attorney could prove each element of the jury instructions for invasion of privacy:

That the people had a reasonable expectation of privacy in their homes;

That Tony Stark intentionally intruded into their homes to remotely record them with drones and technology in violation of Cal Civ Code § 1708.8(b);

That Stark conduct of recording each plaintiff at home is highly offensive to a reasonable person;

That each plaintiff was harmed, such as trying to find ways not to be seen naked; and

That Stark’s Drones were a substantial factor in causing the harm.

Tony Stark’s drones are creating significant civil and potentially criminal liability for the rogue super-hero. Stark’s attorneys should strongly recommend he cease all drone operations. Moreover, destroy all hard drives containing recorded images before Stark can reasonably anticipate litigation and be subject to the duty to preserve.

Can Supergirl Sue Power Girl for Identity Theft or False Impersonation?

Does Power Girl (Kara Zor-L) living on Earth 1 mean she is committing false impersonation or identity theft of Supergirl (Kara Zor-El)?

SuperGirl_PowerGirl_IKnowIn order to solve this “Identity Crisis,” we first must understand the legal flashpoints of false impersonation and identity theft. While further legal review might identify as many as 52 separate legal issues of the same individual from parallel worlds living in the same universe, we will focus on dueling dual Karas.

Assuming Supergirl is based in Kansas, the following laws control:

False impersonation “is representing oneself to be a public officer, public employee or a person licensed to practice or engage in any profession or vocation for which a license is required by the laws of the state of Kansas, with knowledge that such representation is false.” 2009 Kan. HB 2668(a).

Identity theft is obtaining, possessing, transferring, using, selling or purchasing any personal identifying information, or document containing the same, belonging to or issued to another person, with the intent to:

(1) Defraud that person, or anyone else, in order to receive any benefit; or

(2) Misrepresent that person in order to subject that person to economic or bodily harm.

K.S.A. § 21-6107(a).

The answer to whether Power Girl is infringing on Supergirl’s legal rights is odd, because they are the same person from two different universes. Moreover, the very fact that Kara Zor-L and Kara Zor-El should be the same down to the cellular level makes analysis strange to say the least.

As to the issue of false impersonation, Supergirl would have to be authorized by the Federal or state government to conduct law enforcement activities in order to meet the basic elements of false impersonation in Kansas.

Supergirl_Powergirl_KansasDriversLicenseIf Supergirl is not a state actor in her law enforcement actions, then she would not be covered by the Kansas statute. However, being a member of the Justice League, we can assume Supergirl has legal authority to conduct law enforcement activities, thus would be covered by the statute.

Even though Kara Zor-L has the same powers and name pronunciation as Kara Zor-El, Power Girl does not introduce herself as Supergirl. Moreover, the two have different uniforms, fighting styles, and dissimilar personalities. From an objective level, it would appear that Power Girl does not impersonate Supergirl.

Identity theft is somewhat tricky. If Kara Zor-L applied for a driver’s license in Kansas, it is safe to assume she would have the same fingerprints as Kara Zor-El (Plus, both have challenges with producing original or certified birth certificates, unless Kansas will accept documents from two separate Kryptons, or that they are lawfully present in the United States, giving a new meaning to “illegal aliens”).

SuperGirl_PowerGirl_FingerPrintsTheoretically, the physical similarities between Kara Zor-L  and Kara Zor-El would include everything from retina down to both Kryptonians’ DNA. Moreover, Kansas requires “mandatory facial image capture” (or as normal people call it, taking a picture), which should produce a conflict with facial recognition technology. K.S.A. § 8-1324(j). As such, the very act of getting a driver’s license would access Supergirl’s secret identity and personal identifiable information. Therefore, if Kara Zor-L were to get a driver’s license, that could be a “benefit” based on Kara Zor-El’s identity.

The issue would come down to intent and whether Kara Zor-L “knowingly” was trying to unlawfully gain a benefit based on Kara Zor-El’s personal information. However, when you have two individuals who are physically more like a clone and less like a twin, the law is not designed for such situations.

“One of Us” in the Great State of Wisconsin

Director Phil Coulson is not the only one from Wisconsin: Jessica weighs in on her home state appearing on Agents of SHIELD!

We discuss the AofS episode “One of Us,” focusing on Mr. Hyde’s team of “super” villains, the legality of Director Coulson’s SHIELD team, and why SHIELD would be a legally terrifying law enforcement/espionage/military agency. We also ask, just which SHIELD is the “real” one?

Reach_AofS

Did Not Providing Angar the Screamer Dental Care Violate the 8th Amendment?

Angar the Screamer in Agents of SHIELD was imprisoned below a mental hospital and wore a metal gag for years. Once the gag was removed, it was very clear Angar had damaged skin around his mouth and rotten teeth (also, did they feed him by IV? Feeding tube?). Did this treatment violate the 8th Amendment?

Yes, even with Angar’s super powered voice that attacked the central nervous system.

SHIELD_DentalCase law is clear that deliberate indifference by prison officials to a prisoner’s serious medical or dental need constitutes cruel and unusual punishment in violation of the Eighth Amendment.  Young v. McGill, 2011 U.S. Dist. LEXIS 140979, 5-6 (D. Conn. Dec. 8, 2011), citing Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976).

If Angar was to sue the Federal Government for his treatment, he would need to allege “facts demonstrating sufficiently harmful acts or omissions and intent to either deny or unreasonably delay access to needed medical care or the wanton infliction of unnecessary pain by prison personnel.” Id.

The Government would argue that Angar had to wear the gag, because his voice would kill anyone who could hear him. This is a valid point, especially considering someone had to somehow “feed” the prisoner (perhaps Angar had a peripherally inserted central catheter for nourishment). Despite the need to restrain Angar from speaking, a less restrictive violation of Angar’s person would be to incarcerate him in a sound proof room. All guards and medical professions would interact with him could wear protective hearing to avoid being injured by Angar. This effectively is what doctors do already by wearing surgical gloves or those who work in high noise areas.

Angar_SHIELD_RealEnemy_8812Another option besides wearing a gag would be drug therapy, so Angar could not speak. This would be akin to sex offenders who have to take a chemical to temporarily suppress their sex drive (chemical castration). State v. Christopher (1982) 133 Ariz. 508, 509 [652 P.2d 1031, 1032]. This would protect anyone treating the prisoner and not require Angar to wear a gag indefinitely.

Angar’s rotten teeth would speak for themselves that the prison had “deliberate indifference” to Angar’s dental needs. There is no way around the fact his teeth were a mess. God knows what sort of gum disease Angar would have had after years of not brushing. The damage to Angar’s mouth would strongly show the Government was indifferent to Angar’s health in violation of the 8th Amendment.

Now….did Angar kill all those football players and cheerleaders? Were the high school students knocked out and drooling for hours? The birds looked pretty dead. If Angar took out a field full of high school students it would be comparable a small-scale Stamford, Connecticut from Civil War. Public reaction would not be good. Angar and the JV Masters of Evil would have bigger legal issues then tooth decay.

Podcast: More Kree? Visits from Lady Sif? Prelude to Civil War?

Judge Matthew Sciarrino, Gerry O’Brien, and Joshua Gilliland, Esq., “go full geek” over the Agents of SHIELD episode “Who You Really Are?”

We discussed the history of the Kree in Marvel comics, whether Vin-Tak’s appearance is a means to introduce Captain Mar-Vell later, and thoughts on how the Captain America Civil War Registration Act could apply to Inhumans. Plus the super wild idea of whether Simmons could become Madam HYDRA because of her opposition to Inhumans.

Blue_Kree_4942

Kree Liability for Terrigen Mist

Is the Kree Empire financially responsible for the damaged caused by people exposed to the Terrigen Mist? Can those exposed to the Mist sue the Kree for damages?

Kree_Liability_Mist_4948The Agents of SHIELD episode “Who You Really Are?” set the stage for these questions with the Kree Vin-Tak’s visit to Earth. Let’s summon our Cosmic Awareness to answer can the Kree be sued on Earth?

Jurisdiction in the United States

The Commonwealth of Puerto Rico, a territory of the United States, would be the proper venue to hear any cases pertaining to Terrigen Mist exposure, because the Kree city is located below Puerto Rico. The fact the Kree used that area as a base for their experiments should meet jurisdictional requirements for damages resulting from exposure to the Terrigen Mist. Additionally, wherever an Inhuman or Deviant causes property damage or injuries people would be the proper place to sue the Kree based where that injury occurred.

However, suing an alien empire from another planet is legally untested. While litigation in the United States has been against foreign countries hostile to the United States, those normally end in frozen bank accounts or garnishing payments made to companies doing business with said hostile nation. The Kree not participating in the global economy, let alone any embassies on Earth, would make judgment enforcement extremely difficult.

Can the Kree Empire Even be Sued?

A human attorney retained by the Kree Empire, or a Kree lawyer seeking pro hac vice status in a US Court, would argue that the Foreign Sovereign Immunities Act protects the Kree Empire as a foreign state would be immune from the jurisdiction of the courts of the United States under 28 U.S.C.S. § 1604.

ForeignSovereignImmunitiesAct_KreeEmpireThere are exceptions to the Foreign Sovereign Immunities Act which could subject the Kree to jurisdiction in a US Court. The first is the rights in property in the United States acquired by succession under 28 USCS § 1605(4) or when money damages are sought against a foreign state for personal injury or death under 28 USCS § 1605(5).

The United States acquired Puerto Rico from the Spanish Empire after the Spanish-American War in 1898. The Kree had abandoned their outpost several hundred, or thousand, years earlier (which raises a question of whether the Kree have a document retention policy of only 7 years or if 5,000 year old Kree data could be translated into a reasonably useable form for a review application). An argument could be made that the Kree outpost is a toxic danger from how it can turn people into killing mind-controlled puppets; convert human with Inhuman DNA beings into non-humans; and the Terrigen Mist is fatal to humans without Inhuman ancestry.

Toxic tort cases can trace property ownership back for decades in order to determine liability for different insurance policies. In the case of the Kree, this would be a first going back for potentially to the time of the Pyramids, but causation could be traced back the Kree Empire’s experiments ages ago when the environmental damage was done to the soil in Puerto Rico. This would put Terrigen Mist in a similar position to Agent Orange, asbestos in shipyards, or toxic waste litigation, where individuals who suffered harm as an exception to foreign sovereign immunity.

The Foreign Sovereign Immunities Act specifically includes a terrorist act exception to immunity from suit.  28 U.S.C.S. § 1605(a)(7). It will be difficult to charge the Kree Empire with terrorism for abandoning Diviners on Earth, however the fact there has been loss of life from those transformed should be enough to meet the personal injury exception.

Superseding Events Limiting Kree Liability

The Kree have a strong argument that they left their outpost sealed and but for HYDRA locating the Diviners, there is nothing to subject the Kree to liability.

Engaging in ultra hazardous activities carry strict liability. As the Kree were turning humans into living weapons centuries ago, leaving devices that would either kill or transform humans into weapons is like a country denying liability for land mines left after a war.

A lawyer could argue the Kree violated the “Bombing Convention” which makes it a crime to bomb public places with the intent to cause death or serious bodily harm. Almog v. Arab Bank, PLC (E.D.N.Y. 2007) 471 F.Supp.2d 257, 277; 18 USCS § 2332f. However, the Kree lacked the intent to cause such harm after several thousand years, so the issue may turn to negligence, opposed to acts of terrorism.

Those who would be subject to charges of terrorism would be the humans using the Diviners and Terrigen Mist to kill or transform people. The best causes of action against the Kree would include toxic torts, environmental damage, and deaths resulting from negligence for leaving ultra-hazardous materials on Earth.

There is a strong argument that people who willingly enter the Terrigen Mist do so at their own risk and would excuse the Kree Empire from any liability for personal injury. Such individuals need to understand that they are making a “life long” choice that could turn someone who is a fashion model into a giant teleporting dog. Given the fact that the Mist is a real crapshoot that can turn a person into a giant fish, such individuals could not turn around to sue an Empire that purposefully stopped such experiments centuries ago.

The real question is who can effectively serve the Kree Empire? SETI might be able to provide alternative service of process.

So long, Sir Terry

(I was sad – surprisingly sad – when I heard today that Sir Terry Pratchett had passed away.  It wasn’t completely unexpected.  I’d been preparing for this day ever since he announced that he had Alzheimer’s — and he made clear his intention to die with dignity.

Discworld CollectionEven with that preparation, however, it was sad news to hear.  He’s been one of my favorite authors for many years (as seen from this photo of part of my Pratchett collection) and I’ve written about him and his work on this blog before.  I still remember the short story he wrote that made me fall in love with him: it was a story about a group of chickens just trying to cross the road…but that road was a busy LA highway (and the story included the greatest throwaway line about Captain Kirk ever!).

So to lose him — an author that not only meant so much to me but was also one of the world’s most poignant, insightful, and wittiest observers — is tough.  He took on everything from torture and religion (in Small Gods, the first Discworld novel I read), to removing a monetary system from the gold standard (in Making Money), to Death taking over for Santa Clause (in Hogfather).  And, of course, he took on the apocalypse with Neil Gaiman in Good Omens.  Along the way, he created witches who were special because they could see things as they actually were (Tiffany Aching), the funniest wizard ever (Rincewind), vampire lawyers, troll guards, and the best suitcase in the entire world (the Luggage).  Not to mention turning death itself into a lovable character that we often rooted for (although not in this case).  (Plus, he used footnotes — often and well.  And footnotes are the way to this legal geek’s heart!)

And he did all of this in a world very similar to ours, except it was flat, carried on the back of four elephants, all of whom rode on the back of a giant turtle swimming through space.  In addition to making me laugh and look forward to every page, Sir Terry also exemplified the idea that fantasy and science fiction are often the best tools authors have to hold up a mirror to the world — to show us who we really are.

Thank you, Sir Terry.  You will be missed.

 

What If Every Radio Shack was a HYDRA Outpost?

I have to say for the record that I always liked going to Radio Shack. However, what if the one line from Agents of SHIELD was true in the Marvel Cinematic Universe: Is every Radio Shack a HYDRA outpost? HYDRA_RadioShack_2854This would be a complex issue for the FBI. First off, there are approximately 4,297 Radio Shack stores in the United States, plus another 900 operated by independent owners in the US (according to Wikipedia).

How would law enforcement respond to a store chain with over 5,000 stores possibly being a technology support network for an international terrorist group?

That large number of Radio Shack locations certainly would explain the HYDRA “blimps” we saw on the global map in the first half of Agents of SHIELD.

If the MCU’s version of the FBI were to launch simultaneous raids at every Radio Shack in the United States, they would need to secure search warrants for each store. That is approximately 5,197 warrants (and a lot of busy Assistant US Attorneys and Magistrate Judges across the country). The probable cause would need to be more than Sunil Bakshi saying HYDRA uses Radio Shack, given the number of individuals who would be impacted. While that would be the first step, there would have to be surveillance of each store to build a case.

A national raid would take a significant amount of resources. Assuming each location is raided by only 10 FBI agents, that is over 50,000 Federal Agents who would seize property, files, computers, and smartphones (by way of comparison, the number of American forces at Normandy totaled 73,000). Conducting mirror images of hard drives and phones would be no easy task. The analysis could easily involve Petabytes or Exabytes of data. Predictive coding, visual analytics, and other search technology would need to be leveraged to identify HYDRA operations.

Lord knows how the criminal investigation would impact the Chapter 11 Bankruptcy (assuming the MCU Radio Shack is also in Chapter 11).

This would be an extremely complex law enforcement raid. Let’s hope HYDRA has not taken over Starbucks, because they have over 7,300 company-operated stores and another 4,600+ licensed stores. I am not sure the FBI has enough agents for “Operation Pumpkin Spice.”

Hail Mocha.