The Duty to Treat Rusty the Dalek POW

Doctor Who’s “Into the Dalek” presented wonderful legal issues from treatment of prisoners to the necessity defense. The episode also has huge shout-outs to Star Trek: The Next Generation, Star Wars, and Fantastic Voyage.

If they ever do another Sea Devils story, I would not be surprised if there is a Voyage to the Bottom of the Sea homage.

Rights of Prisoners’ of War to Medical Treatment

Dalek_Star_6705An injured Dalek the Doctor names “Rusty” had been damaged to the point of becoming good. Rusty requested a doctor for medical treatment after being captured by the “rebel” ship Aristotle.

After seeing the birth of a star, Rusty realized that “resistance is futile” to life. Dalek’s are driven by genocidal fascism to kill anything different from them, so making the leap to stargazing and the meaning of life is a very big leap. Especially without feet.

The Geneva Convention requires that a prisoner of war suffering from a “serious disease, or whose condition necessitates special treatment, a surgical operation or hospital care, must be admitted to any military or civilian medical unit where such treatment can be given…” Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949, Article 30.

Prisoners of War also have the right to seek medical attention. Id.

Rusty had the right to request treatment, given the fact he is a uniformed soldier (considering he is part biologic life form fused with a mini-tank), and a prisoner of the “rebels.” As such, treating would have been required under the rules of warfare.

Alternatively, there is another theory to treat Rusty: Prisoners with a serious mental illness can be treated with antipsychotic drugs against their will if the inmate is dangerous to himself or others. Ashby v. Schneck, 1995 U.S. App. LEXIS 17154, 3-4 (8th Cir. Minn. July 17, 1995).

Dalek’s are mentally altered by their computer programing to hate an exterminate others. The fact their computer program keeps their biological minds from growing, having memories, and learning, could be a condition that makes them dangerous to others, thus justifying treatment.

The Necessity Defense

A mildly troubling scene included using a human soldier as bait to save the rest of the team who had traveled into the Dalek. The ill-fated soldier shot anchors for repelling equipment into the deck of the Dalek, promoting antibodies to attack (very much like in Fantastic Voyage, instead with lasers instead of absorbing like the Blob).

Dalek_BaitThe Doctor throw an item to the soldier and said, “Swallow this.” After which the Dalek Antibodies killed the soldier. When questioned by Clara, the Doctor responded, “He was already dead. I was saving us.”

Using the soldier as bait for the antibodies would have been legally justified, while emotionally traumatic, based on the necessity defense.

A law school example of the necessity defense is you are on a runaway trolley, headed down the hill, to crash into station. Pulling out a gun to shoot a bystander to use as a break would save yourself and everyone on the trolley, but would be unjustified murder. You cannot kill an innocent to save yourself.

In the case of our soldier, there was no way for him to escape the Dalek, or the antibodies seeking his immediate destruction. The Doctor giving him a tablet that focused the antibodies solely on the soldier saved everyone else and limited the attack to the target soldier. While extremely cold, it was the right tactical decision to save everyone else and legally justified.

The Great State of Wisconsin and Me

Three years ago today I landed in Wisconsin with my family and it’s an anniversary I celebrate every year.  As I’ve made clear – here, with friends, co-workers, strangers – I love this great state.  And while I don’t want everyone to move here because I like the space, everyone should visit.  Everyone should see the amazing bluffs and valleys of southwestern Wisconsin, the beautiful farmland of central Wisconsin (and Madison’s amazing farmers’ market!), the great shoreline of Lake Michigan, and the incredible lakes and falls of northern Wisconsin.  And drink some beer and eat some ice cream, of course!

If you don’t believe me, maybe you’ll believe these guys:

That’s right!  The greatest state in the Union is using one of the greatest comedies of all time (Caddyshack will always be first in my heart, but this is a close second) to spread the word.  Do young people even get the joke here?  Of course, I didn’t get the Kareem Abdul-Jabbar joke (“I never should have left”).  It had to be explained to me by a long-term ‘Sconnie (and sports fan) that Kareem was actually drafted by the Milwaukee Bucks as the No. 1 draft pick back in 1969 and led them to a championship before leaving for the Lakers.

So yes, I’m happy to be living here – and practicing law here (or at least based here, I’m still licensed in Texas, along with Florida).  The Wisconsin Supreme Court has had a scandal or two, but it also has a proud history.

One of its shining moments came in the lead up to the Civil War.  A center of the abolitionist movement, two Wisconsin abolitionists were charged with aiding a fugitive slave in escaping to Canada in 1854.  In the appeals that followed, the Wisconsin Supreme Court declared the Fugitive Slave Act unconstitutional - the only state supreme court to do so.  In In re Booth, 3 Wis. 1 (1854), the Wisconsin Supreme Court found the Fugitive Slave Act unconstitutional for several reasons, most of which dealt with who could wield judicial power under the Constitution.  But the Court also held that the procedures under this repugnant act violated constitutional due process because there was no process.  The Court noted that under our Constitution everyone is entitled to their “day in court” – a chance to have notice of the charges against them, to question witnesses and rebut their testimony, and to present their defense.  As the Court so eloquently put it (one hundred and sixty years ago and yet we still need the reminder today):

The passing of judgment upon any person without his “day in court;” without due process, or its equivalent, is contrary to the law of nature, and of the civilized world, and without the express guaranty of the constitution, it would be implied as a fundamental condition of all civil governments.”

Just reading those words – and this opinion – makes me proud to be part of the Wisconsin Bar.  Unfortunately, a shameful footnote to this opinion (during the most shameful period in our nation’s history) is that it was overturned by the United States Supreme Court.  I couldn’t read the whole opinion – I was in a good mood right until I started skimming it – but I will share with you this quote from their opinion, which is embarrassing in its apologist attitude towards the Fugitive Slave Act (and slavery itself), especially when compared with the Wisconsin Supreme Court:
“[It] is proper to say that, in the judgment of this court, the act of Congress commonly called the fugitive slave law is, in all of its provisions, fully authorized by the Constitution of the United States.”

Ableman v. Booth, 62 U.S. 506, 526, 16 L. Ed. 169 (1858).

Ugh.  I really don’t even know what to say to that, except that I’m glad that Wisconsin and its Supreme Court were on the right side of history.  And because I don’t want to dwell on the negative on such a special day, I’ll end by returning to my original point – you should all visit the great state of Wisconsin.  Hike Amnicon Falls, check out the beautiful Viroqua courthouse, eat some Bapcock Dairy ice cream, visit the Milwaukee Art Museum with its movable wings, and then head up to Green Bay to the home of football legends for a game.

 

Doctor Who Special with Matt Weinhold

DeepBreath_GallifreyStandsWe were privileged to have longtime Doctor Who fan Matt Weinhold join us for a special podcast on the Season 8 Premier of Doctor Who.

Jessica asked enough Doctor Who questions to qualify Matt as an expert witness on the Doctor under Federal Rule of Evidence Rule 702.

Matt and I discussed the episode Deep Breath, our thoughts on the 13th Doctor (we both count the War Doctor as the Doctor), and hopes for Season 8.

Want to hear more of Matt Weinhold? Check out his podcast Monster Party on iTunes or follow him on Twitter @MattWeinhold.

Restaurant Safety on Doctor Who

Doctor Who is back! And this time, with great lessons in restaurant safety!

The Doctor’s 13th Regeneration exploded in Deep Breath with a dinosaur, the names of the Dwarves from Snow White, and a huge homage to the Brigadier’s final line in Planet of the Spiders. Adding to the coolness, Jenny had a steampunk looking device on her hand to detect time travel. Moreover importantly, the Doctor recognized his reflection and asked himself “Why did I choose this face?”

DoctorWho_SalamanderHow to Serve Human

Let’s talk about Mancini’s Family Restaurant: The restaurant served liver for starters, brain stem and lungs for the main course, and sides of eyes and spleen. Skin for dessert, naturally.

The first law of restaurants: do not kill your guests; second rule, do not harvest their organs; third rule, do not use guests to make robots more human.

The goal of having a restaurant is winning new customers repeat business to be profitable. Homicide is an extreme deterrence to both of those goals.

A restaurant is “any eating establishment which offers food for sale to the public.” Colony Nat’l Ins. Co. v. Hing Wah Chinese Rest., 546 F. Supp. 2d 202, 207 (E.D. Pa. 2008). Moreover, a “retailer who sells unwholesome food for human consumption is liable to the consumer for the consequences under an implied warranty imposed by law as a matter of public policy, even though . . . the retailer has no means of knowing that the contents are unfit for human consumption.” Ayala v. Bartolome, 940 S.W.2d 727, 729 (Tex. App. Eastland 1997).

Someone who runs a public business like a restaurant is “subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent or intentionally harmful acts of third persons . . . and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.” Lopez v. McDonald’s Corp., 193 Cal. App. 3d 495, 506 (Cal. App. 4th Dist. 1987), citing Peterson v. San Francisco Community College Dist., 36 Cal.3d at p. 807, quoting Rest.2d Torts, § 344.

In a nightmare case where a massacre took place at a restaurant, summary judgment was granted for the restaurant, because the “restaurant’s duty to take reasonable precautions to protect patrons from reasonably anticipated criminal conduct of unknown third parties did not encompass the burden to protect against once-in-a-lifetime massacres. The likelihood of the unprecedented murderous assault was so remote and unexpected that, as a matter of law, the general character of the restaurant’s nonfeasance in not providing security did not facilitate its happening.” Lopez v. McDonald’s Corp. (1987, Cal App 4th Dist) 193 Cal App 3d 495, 238 Cal Rptr 436, 1987 Cal App LEXIS 1913.

Clockwork_Blue_0045Mancini’s is not a case where a third party caused harm to someone going out for lunch, but an elaborate trap to murder people for their organs. It is not a restaurant, but a criminal enterprise organized by Clockwork robots from the 51st Century that crash landed on Earth over 65 million years ago on the Marie Antoinette. While tacking health and safety code violations to the criminal complaint would be gravy (provided late 19th Century England had such laws), the Clockwork Robot’s plan is like a criminal conspiracy to commit murder (if a robot can be charged with murder).

Now, did the Doctor push the Clockwork Robot out of the escape pod? This would make the Thirteenth Doctor (Counting the War Doctor) a lot like the Sixth Doctor, who killed the Androgum Shockeye in the Two Doctors. If the Doctor did push the Robot out of the escape pod, it was done under the defense of others to save his Companions from being killed. Moreover, killing a robot arguably is not the same as killing a person, thus not murder, but destruction of property.

Unless all robots go to Heaven, which makes our Clockwork Robot a lot of Pinocchio.

DoctorWho_Paradox_8703

A White Knight Settles with His Patent Troll

RenFairKnightI’ve written previously about Adam Carolla’s battle with the patent troll that had sued his podcast.  Well, now he has settled with that company.  The case was set to go to trial in just a month (cases often settle as the parties evaluate the expense that goes into those last pre-trial preparations).  And, unfortunately, the terms of the settlement are confidential.

Just a month ago, the plaintiff had actually tried to dismiss its lawsuit against Carolla (plaintiffs can chose to drop a lawsuit although, depending on when they do so, they may or may not be able to bring another lawsuit at a later date on the same issues).  But Carolla was not going to go quietly in the night.  He had already filed counterclaims against the plaintiff (that’s when the defendant countersues the plaintiff – sometimes for issues related to the same fight started by the plaintiff, sometimes for completely unrelated issues) and he wasn’t going to dismiss them.

These type of counterclaims often happen in patent infringement lawsuits – the plaintiff claims that the defendant is violating the plaintiff’s patent, but then the defendant files a counterclaim to have the court rule that the patent is actually invalid.  The plaintiff may then drop the lawsuit in order to avoid having a court rule that its patent is invalid, because such a ruling would prevent it from filing suit against other parties on that same patent.

So this lawsuit is over – dismissed before a court could hold whether the plaintiff’s patent is actually valid.  (While the US patent office does their best to determine whether patent applications are up to all required standards before granting an actual patent, the system isn’t perfect so there are several procedures that can be used after the patent is issued to challenge whether the invention is actually entitled to a patent.)

Kudos to Adam for fighting as long as he did, even though I would have loved to see him in court.  I wish I knew what the settlement terms were and it will be interesting to see if this plaintiff tries to sue other defendants for infringing this same patent.

 

California is in a Drought: Why I am Declining Dumping a Bucket of Water on Myself

I want to thank Scott Murray from Assembly of Geeks for nominating Jessica and I for the ALS Ice Bucket Challenge. However, I am declining the ice bucket challenge for one big reason: California is in a drought. I think it is a bad example when we are encouraging people to conserve water to dump a bucket of water over myself.

However, I will up the ante: I am going to Tahoe very soon. Lake Tahoe is colder than any ice bucket. I will take a swim.

[Provided there are not six foot seas and high winds]

The issue of water conservation is a good way to introduce the two views on water law: Riparian Rights (in the Eastern States) and Prior-Appropriation (in the Western States).

Riparian Rights are the rights of a landowner whose property is by a body of water to make reasonable use of the water. See, Black’s Law Dictionary App, 9th Edition.

The Prior-Appropriation Doctrine is slightly different, stating that the earliest users of those who boarder water have the right to “take all they can use before anyone else has a right to it.” See, Black’s Law Dictionary App, 9th Edition. As the United States Supreme Court explained:

Under that doctrine [prior-appropriation], one acquires a right to water by diverting it from its natural source and applying it to some beneficial use. Continued beneficial use of the water is required in order to maintain the right. In periods of shortage, priority among confirmed rights is determined according to the date of initial diversion.

Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 805 (U.S. 1976).

California has codified this rule of water use with a very blunt statute: As between appropriators, the one first in time is the first in right. Cal Civ Code § 1414.

Why did the Western states take the view of Prior-Appropriation over Riparian Rights? Because water is more scarce here.

And while we are in a drought I just do not feel right dumping a bucket of water over myself.

A Night at the 2014 Geekie Awards

I attended the 2014 Geekies Awards on August 17, 2014. I had the privilege of sitting under the teleprompter, so had an awesome view once again.

TheGeekieAwards_1259

I also found it extremely funny that the person we lined up behind was also at Table 15 with Seat 7. We had 8 and 9. The odds of that were astronomically.

Throw in the fact she was also a lawyer, meaning the first three people on the floor were attorneys, and we should head to Vegas.

Geekies_Josh_Megan_1264The sophomore show was powered by a lot of creativity and innovation in the months and days leading up to the Geekie Awards. There were many big names, sponsors, and well-deserving nominees.

Geeks Innovate

Kristen Nedopak is the living definition of an early adopter who knows how to leverage technology. The encouragement of getting geeks to post videos on Weev, Tweeting out photos to #EmbraceGeekies2014, and am impressive Twitter campaign are a model of how to encourage audience interaction.

GeekieAwards_1377

The Geekie Awards has an impressive Twitter presence, with 4,968 followers and over 16.6K Tweets. According to my social media comparison tool, their engagement ranking is 93% and Influence 85% in the last 30 days.

Gale Anne Hurd: Lifetime Achievement Award

Gale Anne Hurd was extremely deserving of the Lifetime Achievement Award. Her personal story is heroic and she gave an outstanding acceptance speech. Plus she read Marvel comics as a kid.

Ms. Hurd also took a photo of the audience with her watch.  Hard not to love that.

Geekies_GaleAnneHurd_1288Geek of the Year: LeVar Burton

I predict within 10 years, but not more than 20 years, LeVar Burton will be presented the Presidential Medal of Freedom for his work in child literacy. The man is a true force for good in the world. Perhaps the only person to do more is Jim Henson and Burton has a good shot at exceeding Henson’s contribution to education.

Recognizing LeVar Burton as Geek of the Year for his amazing Reading Rainbow Kickerstarter project was one of the highlights of the night.

LevarBurton_1315Let’s Talk About Comics

I went to the Geekie Awards rooting for Boston Metaphysically Society and Oh Hell. I met last year at Big Wow Comic Fest and was confident she would be nominated for a Geekie Award. She has an outstanding comic and is in a Kickstarter campaign to fund the next chapter of her book. BMS is a steampunk ghost-hunting story set in the 1890s, and you guessed it, Boston. Check it out.

I met George Wassil at Big Wow this year. His book is about a boarding school in Hell. It is an outstanding book and was very deserving to WIN the best comic book/graphic novel.

George is also one Hell of a nice guy.

GeorgeWassil _1361Something My Grandmother Taught Me

There was one big thing that bothered me at the event: I saw more than one nominee leave after their categories were called. While there is always the chance someone had to leave for childcare, family emergency, illness, or a valid reason, I find it very rude to the other nominees to leave during the show. If you have have the honor of being nominated, give the other nominees the respect they deserve.

Fairs + 4-H Pig Scandals = Due Process Problems

County fair midwayIt’s county and state fair time around the country – one of my favorite times of year. I’ve been to county fairs in a few different states but my heart will always belong to the Clearwater County Fair, the fair I grew up with and the one my kids now adore. I love everything about a county fair: the midway, the demolition derby, bluegrass bands made up of old farmers, and the animals, but being a 4-H kid at the fair was always the highlight.

4-H ClubI was a 4-H kid growing up and loved it. We had monthly meetings (where the moms always provides brownies, kool aid, and finger jello), we did volunteer activities, and there were camps, but the fair has always been the epicenter of the 4-H world. As a 4-H’er you submit projects to be judged at the fair, in all kinds of categories from photography to baking to showing sheep to horse competitions. Every 4-H kid gets a ribbon for their effort – a blue, red, or white one, each with a small dollar value attached to the prize. Of course, those dollar amounts could actually get pretty decent in the animal competitions (one year I won $80 for showing my horse, which was a large sum of money for a poor farm kid). And the best in each competition then go to the state fair to compete against the best from other counties, where the dollar amounts and bragging rights get even bigger.

So maybe you see where this is going. Even in the wholesome world of 4-H, competition can get intense. In one case, the Eight Circuit Court of Appeals had to get involved just a year ago to rule on a case involving a 16-year-old girl who was banned from participating in 4-H livestock competitions because she had allegedly violated the 4-H code of ethics. Kroupa v. Nielsen, 731 F.3d 813 (8th Cir. 2013).  She had been accused of showing a pig at the 2011 South Dakota State Fair that she hadn’t taken care of that season and that had previously competed at the Missouri State Fair – both no nos, especially when it’s the winning swine at issue. She learned of this ban by letter from a secret committee of the South Dakota State University Cooperative Extension Service, which had reached this decision without giving her notice or an opportunity to be heard.

Piles of CashHer father sued, claiming her constitutional right to procedural due process had been denied (the 4-H program in South Dakota is run by SDSU) because she had not received notice of or the right to be heard at any hearing before being banned from competitions.  The district court issued a preliminary injunction preventing the 4-H officials from banning the teenager from participating in any competition while the merits of the lawsuit were decided. This meant she could participate while the lawsuit was ongoing, but the 4-H officials appealed the preliminary injunction at the same time (they apparently wanted to keep her out of all competitions immediately and didn’t want to wait to do so until after they won the lawsuit). The question of the preliminary injunction went up to the 8th Circuit. Why is a question over a pig competition being so heavily litigated, you might wonder? Because, unlike the $80 I made with my horse at the 4-H horse show when I was a teenager, the teen in this case was making serious money in her livestock competitions, having already won over $20,000 in prize money.

A preliminary injunction is a temporary order – one which either orders someone to do something or (more commonly) prevents someone from doing something. In this case, the injunction meant that 4-H couldn’t ban the teen while the court was hearing the actual case. In deciding a preliminary injunction, the court has to consider (1) the threat of irreparable harm to the party seeking the injunction (e.g., the teen in this case); (2) the balance of that harm to the harm that will be suffered if the injunction is granted (e.g., the harm to 4-H if she’s allowed to compete); (3) the likelihood of success on the merits (e.g., how likely is it that the teen will win her case); and (4) the public interest (e.g., how much does the public care about 4-H banning someone from competing).

Fair 4-H BannerThe Eighth Circuit went through all of these factors to determine whether the preliminary injunction should be upheld. The underlying case actually involved the teen’s claim that the government (SDSU) had violated her constitutional due process rights by impacting a protected liberty or property interest without due process, which can include the removal of a “right or status previously recognized by state law.” The question in this case, therefore, was whether participation in the state-sponsored 4-H organization and its livestock comeptitions was a “right or status” protected by the Due Process Clause (so that she had a protected right to a certain procedure before the right could be impacted). The appellate court held that being deprived of the opportunity to participate in a public program that was important to her education and career goals and that gave her significant personal income without notice or hearing was a due process violation (or, more accurately, the Eighth Circuit found that she would likely be able to win on this legal point in the actual case back at the district court).

After going through each of the remaining factors point by point, the appellate court held that the district court had not abused its discretion in granting a preliminary injunction to the teen, so that she could participate in other livestock competitions while her suit against 4-H was ongoing.  After the Eighth Circuit issued this opinion, the parties continued their fight in district court, with that court making some legal determinations without resolving the entire case last winter.  So the case may still be proceeding, although I can’t find anything else online.

Midway swing rideIt’s sad to see this happening, although as a litigator I know that anything can turn into a lawsuit.  As a 4-H fan I just hope that they can reach a resolution of this issue that lets the teen move on with her agricultural career and doesn’t drive her family away from 4-H forever.  The fair should be a happy place for everyone, especially 4-H kids!

Expunging Records vs Pardons in Guardians in the Galaxy

Guardians of the Galaxy ends with the Nova Corps expunging the records of Star-Lord, Gamora, Drax the Destroyer, Rocket Raccoon, and Groot.

What does the mean for our felons-turned-heroes?

Guardians_Expunge_PardonAn “expungement of records” means the “extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person’s detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system.” N.J. Stat. § 2C:52-1(a).

Expunging someone’s record is very broad, as it can include “complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, ‘rap sheets’ and judicial docket records.” N.J. Stat. § 2C:52-1(b).

Some states allow a record to be expunged if someone was arrested without probable cause, or if no charges were filed, or other specific circumstances. § 610.122 R.S.Mo.

In determining whether to expunge records, Courts balance the harm caused to a person by the existence of a criminal record against the “utility of the Government” for keeping the record. Walker v. United States, 116 F.R.D. 149, 151 (S.D.N.Y. 1987).

In specific cases, the FBI has a responsibility to expunge an incident from its criminal identification files after learning a person who was arrested has been exonerated or released without charge or a change of record to “detention only.” Menard v. Saxbe, 498 F.2d 1017, 1028 (D.C. Cir. 1974).

It is worth noting that the Guardians of the Galaxy had an expungement of past crimes, not a general pardon. A “pardon” does not absolve someone of guilt, but forgives them for the offense. People v. Chiappa, 53 Ill. App. 3d 639, 641 (Ill. App. Ct. 2d Dist. 1977). Moreover, a pardon is usually given to someone who might be subject to prosecution, but has not been convicted. Brown v. Walker, 161 U.S. 591, 601-602 (U.S. 1896)

As Justice William Guild of the Appellate Court of Illinois, Second District, (who in the 1970s had red t-shirts made that said The Mighty Second), said:  In the vernacular, such a pardon is an act of forgiveness, not forgetfulness. People v. Chiappa, 53 Ill. App. 3d 639, 641 (Ill. App. Ct. 2d Dist. 1977).

As the Nova Corps had decided to “forget” about the Guardians’ past crimes upon which they had been convicted, an expungement is the proper legal remedy. However, the Guardians might have needed a pardon for breaking out of prison.