Aunt May’s Liability for Spider-Man’s Fight on the Staten Island Ferry

Aunts are awesome. Aunt May arguably is the most well known aunt in pop culture. However, Aunt May in Spider-Man Homecoming rightly would freak out if she knew the full extent of her nephew’s after school activities.

Aunt May is Peter Parker’s legal guardian. As such, could the passengers on the Staten Island Ferry sue Aunt May for Spider-Man’s fight that resulted in their cars going overboard after the ferry was cut in two [if Peter’s identify was known]?

New York enacted a Parental Liability Act in 1970 where parents and legal guardians would be liable for the “malicious and destructive acts of their children, between the ages of 10 and 18, who are in their custody and unemancipated at the time of the damage.” See, New York’s Parental Liability Act, General Obligations Law § 3-112.

There would be a question of fact whether Spider-Man’s fight with the Vulture was “malicious or destructive.” However, that issue is moot, because the New York Parental Liability Act was found to be Unconstitutional in 1988, because it was a bill of attainder that punished parents for the crimes of their children. Owens v. Ivey, 525 N.Y.S.2d 508, 138 Misc.2d 671 (N.Y. City Ct., 1988).

The New York Parental Liability Act effectively replaced the need for a trial. All a party had to do was prove intentional and malicious conduct done by a child; that they suffered damages because of the child’s conduct; and prove the parent (or legal guardian) was related to the child. Owens, at *514-515.

In the case of the ferry passengers, they could prove 1) Spider-Man intentionally fought with the Vulture, which interfered with an FBI sting operation; 2) the fight resulted in the cars being a total loss after going overboard; and 3) that Aunt May was the legal guardian of Peter Parker. This on its face would be liability for being Peter Parker’s guardian.

By way of comparison, it is a good thing Aunt May lives in Queens. Parental liability laws are legal in California, where the maximum limit for property damages is $25,000 under Cal Civ Code § 1714.1 (other states have lower limits). Given the number of cars that went overboard, Aunt May would have serious liability issues for each automobile, if May and Peter lived in California.

New York does have exceptions to the prohibition of cases for parental liability, such as for negligent supervision of a child with a known propensity for violent conduct, or to shield third parties from a child’s use of a dangerous instrument, especially if the parent has knowledge and can control the use of the dangerous instrumentality. See, McEntee v. Cappucci, 701 N.Y.S.2d 766 (N.Y. City Civ.Ct., 1999), citing Zuckberry v. Munzer, 277 A.D. 1061, 100 N.Y.S.2d 910, (2nd Dep’t 1950) and Nolechek v. Gesuale, 46 N.Y.2d 332, 338, 413 N.Y.S.2d 340, 385 N.E.2d 1268 (1978).

A plaintiff’s attorney in New York could argue that Peter Parker has a propensity for violent conduct, because of his vigilante activities. However, Aunt May has a strong defense because of her lack of knowledge about Peter’s activities as Spider-Man. However, the more interesting question is Tony Stark’s knowledge and enabling of Peter’s activities as Spider-Man with the “Stark Internship.” As the only deep pocket, it would make more sense for plaintiffs to sue Tony Stark, opposed to an aunt in Queens, as Stark arguably was acting in a Respondeat-Superior relationship with Peter Parker by providing Parker an enhanced suit to complement his augmented abilities.

Mock Luke Cage Petition for Writ of Habeas Corpus

Join us at San Diego Comic Con on July 20, 2017 at 800pm in Room 23ABC for Sweet Christmas! A Mock Trial to Prove Luke Cage is Innocent.

The mock hearing is based upon the ending of Marvel’s Luke Cage on Netflix. Luke was taken into custody by U.S. Marshals in New York City to be returned to Georgia for breaking out of the fictional Seagate Prison. We extrapolated what exculpatory evidence could be in the folder found at Pop’s Barbershop from the original Power Man comics from the 1970s: Diamondback had Luke framed for heroin possession.

Christine Peek, Esq., from McManis Faulkner in San Jose, California, appearing pro hac vice with the fictional Hogarth, Chao and Benowitz, LLP for our mock hearing, prepared the following petition to prove Luke Cage’s actual innocence:

Verified_Petition_for_Writ_of_Habeas_Corpus_Carl_Lucas_Luke_Cage

What will we learn from the testimony of Nicholas Manolis? How will U.S. Magistrate Judge Mitch Dembin rule on the petition? Join us on July 20 at 800pm to find out at Sweet Christmas! A Mock Trial to Prove Luke Cage is Innocent.

Please Nominate The Legal Geeks for the ABA Web 100

The ABA Journal has expanded the Blawg 100 to include social media and podcasts. We would appreciate your nominations for The Legal Geeks in the blog, podcast, and social media categories.

We started our blog in July 2012 to share our love of the law and geekdom. In the past year, we have been able to give other lawyers and law students the opportunity to share their geek love of the law, with guest posts, podcasts, and comic conventions. Thank you all who have joined us for the adventure.

To nominate The Legal Geeks, please visit the ABA Journal and tell them why you are a fan of our blog, podcast, and social media. Voting ends 11:59 p.m. CST July 30, 2017.

Your vote counts and is greatly appreciated.

Return of the Lawyer to San Diego Comic Con

Jessica and I started The Legal Geeks to share our love of comics, science fiction, and the law. We are thrilled to be returning to San Diego Comic Con for the third time and our fifth anniversary. I have presented over 450 legal seminars in my career and the most high profile ones have been at San Diego Comic Con. Our two panels this year have amazing judges and lawyers who love pop culture. We hope you can join us in San Diego for our Luke Cage Mock Trial and Judges on Star Wars.

Thursday, July 20, 2017 

800pm-900pm Sweet Christmas! A Mock Trial to Prove Luke Cage is Innocence

Marvel’s Luke Cage ended with Luke in FBI custody for breaking out of prison. Join us for a mock evidentiary hearing where attorneys will argue to US Magistrate Judge Mitch Dembin a writ of habeas corpus to prove Cage’s actual innocence.

Attorneys arguing the case include Christine Peek, Esq., McManis Faulkner, and Megan Smith, Esq., for Luke Cage (played by David Gibson); and Steve Chu, Esq., and Jane Boardman, Deputy City Attorney for the City of San Diego Office of The City Attorney, for the Government. Room 23ABC.

Friday, July 21, 2017

300pm-400pm Judges on Star Wars

Is the Dark Side an Addiction or choice for Kylo Ren? What are the Civil Rights of Droids? Did interrogating Bodhi Rook with the Bor Gullet violate Rook’s rights?

Join California Supreme Court Justice Mariano-Florentino Cuellar, Circuit Judge John B. Owens of the 9th Circuit Court of Appeals, Federal Magistrate Judge Mitch Dembin, Federal Magistrate Judge Stacie Beckerman, CA Judge Carol Najera, and former Federal Magistrate Judge Paul Grewal (now Deputy General Counsel of Litigation at Facebook), to hear their legal analysis, and love, of Star Wars. Moderated by Joshua Gilliland, Esq., and Jessica Mederson, Esq, of The Legal Geeks. Room 7AB.

If you are attending San Diego Comic Con, you can follow the links to our panels Sweet Christmas! A Mock Trial to Prove Luke Cage is Innocence and Judges on Star Wars to add them to your schedule.

Admissibility of Zhora’s Photo in Blade Runner

The 1982 classic Blade Runner posed a complex evidentiary issue: How could Leon’s photo of Zhora be admissible in court? Would the zoomed in image of Zhora be merely a duplicate from the original image? Or would expert testimony be needed to authenticate the image?

Blade Runner Rick Deckard used the ESPER machine in his apartment to pull an image from a reflection in a photo found in the hotel room of the Replicant Leon. The verbal commands to navigate the image were:

Enhance 224 to 176. Enhance, stop. Move in, stop. Pull out, track right, stop. Center in, pull back. Stop. Track 45 right. Stop. Center and stop. Enhance 34 to 36. Pan right and pull back. Stop. Enhance 34 to 46. Pull back. Wait a minute, go right, stop. Enhance 57 to 19. Track 45 left. Stop. Enhance 15 to 23. Give me a hard copy right there.

Blade Runner script

Deckard scanned in the original photo for analysis in the ESPER machine. As such, there is no metadata from the original photo, because it was a printed image, not an electronic one. However, there should be an audit log within the ESPER machine that documented the analysis of the photo.

Photographic evidence can be admissible in California if the photos properly authenticated. Evid. Code, §§ 250, 1401, subd. (a). Photos can be authenticated by the testimony of someone with personal knowledge of the photo when it was taken (they were in the photo or took the photo) or expert testimony if no one has personal knowledge of the photo. People v. Bowley (1963) 59 Cal.2d 855. More recent cases have explained that authentication for photos “may be supplied by other witness testimony, circumstantial evidence, content and location” and “also may be established ‘by any other means provided by law’ including a statutory presumption.“ People v. Goldsmith, 59 Cal.4th 258, p. 268 (Cal., 2014), citing CA Evid. Code § 1400.

Cases involving photos on social media and cell phones are helpful to authenticate the photo of Zhora recovered from the ESPER machine.

In a case from San Francisco, a police officer searched Instagram to monitor a person on probation. The officer saw photos of the person on probation, plus another who was a wanted felon, posing with guns on Instagram photos. The officers went to the known address of the individual on probation and made arrests of the two individuals. Both individuals were wearing the same clothes as in the photos. People v. K.B. (In re K.B.), 238 Cal.App.4th 989 (Cal. App., 2015).

While not stated if it was a search incident to arrest, the cell phone of one of the Defendants was forensically collected was a tool named Cellebrite. A report was offered to the Court stating images the exact time and date the photons that appeared on Instagram were taken. In re K.B, at *994-995.

The Court held that the investigating officers properly authenticated the photos, despite neither Defendant testifying to the authenticity of the photos. In re K.B, at *997-998. The officers had seen photos of the suspects on Instagram; the officers were familiar with the suspects; the suspects were wearing the same clothes in the photos when arrested; and the officers found the original photos on one of the suspect’s phones with forensic software that appeared on Instagram. All of these factors weighed in favor of properly authenticating the photos for admissibility.

Applying California Evidence Code Evid. Code § 1400 and recent case law, a Court could find the photo of Zhora with the ESPER machine to be admissible. The device scanned in the photo found in Leon’s hotel room and visually navigated the photo to find the image of Zhora. While some expert testimony would be necessary to explain how the ESPER machine operated, this is no different from explaining how forensic software such as Cellebrite operates. Moreover, as Deckard had the ESPER machine in his apartment, such technology might have been as commonplace as a Blu Ray player, which arguably would lower how much detail would need to be offered to explain how “common” technology operates. Furthermore, the audit log of the verbal commands should be offered to the Court, just as the report from Cellebrite, for the Court to understand how the image of Zhora was discovered in the original photo.

A Court would likely find the photos admissible…if Replicants had a right to a trial before being “retired.”

Is Nebula Guilty of Attempted Genocide?

Space is the ultimate frontier, and films such as The Guardians of the Galaxy give us a glimpse of what the future might hold for us. As exciting as it may be to imagine a universe where we can easily travel from Planet A to Planet Z in a matter of hours, it is also quite daunting to imagine all the potential conflicts that may also arise.

In The Guardians of the Galaxy, we are introduced to Gamora’s sister, Nebula. It is hard to feel any morsel of sympathy for her given that she tried to wipeout the entire Guardian team, and it is even harder to muster up those feelings when you consider that she also tried to take out an entire planet. For those of you that may not remember, she played a major part in trying to destroy Planet Xander, which is the home planet of the Xanderians and the capital of the Nova Empire, with a population close to 12 billion galactic beings. If you need another memory boost- it is also the planet that Ronan the Accuser attempted to destroy at the end of The Guardians of the Galaxy and again, was one of the planets that was nearly destroyed by Ego in The Guardians of the Galaxy, Vol. 2.

At this point, we should all have some recollection of Nebula’s unfortunate role in the attempted destruction of Xander. Some may even accuse her of attempted genocide and want her prosecuted. But, is she really guilty of attempted genocide?

Let’s take a look at the legal definition of genocide, which is defined by The Convention on the Prevention and Punishment of the Crime of Genocide. This international treaty was adopted by the United Nations shortly after World War II. Article 2 defines two elements of the crime of genocide: a mental component and a physical one:

1. The mental element, referring to the “intent to destroy, in whole or in part, a national, ethnic, racial, or religious group”, and

2. The physical element, which includes:

a. killing its members;

b. causing serious bodily or mental harm to members of the group;

c. deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

d. imposing measures intended to prevent births within the group;

e. forcibly transferring children of the group to another group.

A crime must have both components to be called “genocide.”

So now that we have taken a look at the legal definition of genocide, can Nebula truly be tried for attempted genocide? The answer is probably no, especially when taking into account everything that we learned about her in The Guardians of the Galaxy, Vol. 2.

There is no doubt that when looking at the definition’s two required elements, Nebula likely meets the physical component quite easily. She did, after all, take part in a great deal of killing; however, the mental component was never truly there. What we have with Nebula is nothing more than a misunderstood individual who was never good enough in her father’s eyes and who, despite knowing that, still desperately sought his approval. What we learned about Nebula is that her father would make her and Gamora battle each other in training and every time Gamora won, their father would torture Nebula by replacing a piece of her with machinery with the reasoning being that he wanted them to be “equals.” Despite knowing this, Gamora never stopped beating Nebula, and Nebula never gained her father’s approval that she so desperately sought. This is further reinforced when Nebula states that after killing Gamora, she planned on buying a warship and intended to hunt her father down and kill him. Nebula’s anger stemmed from those childhood experiences that haunted her as an adult and is the exact reason she sought to kill her family.

However, it is also a crime to aid or abet genocide, per Article III of the convention. Criminal acts include conspiracy, direct and public incitement, attempts to commit genocide, and complicity in genocide. There is no denying that Nebula had some role in Ronan’s attempt at genocide- he never made it a secret to her. On the other hand, it is likely that she did not fully grasp the severity of her actions- after all, part of her brain had been replaced by her father after one of her many losses to Gamora. So, can we really blame Nebula for her actions? Despite knowing of Ronan’s plans, it is difficult to determine whether she truly knew the wrongfulness of her actions. Given her upbringing and the fact that part of her brain was not even hers, it may be completely plausible that Nebula could use a defense based on the absence of her mental health.

After the development of the International Criminal Court (ICC), the mental state of those accused of genocide has become an important issue over the last few years and is explicitly addressed in the court’s statutes. The Rome Statute of the International Criminal Court (referred to as the “Rome Statute” because it was adopted in Rome in 1998) is the treaty that not only established the ICC, but it also establishes the court’s functions, jurisdiction, and structure. It addresses four core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.

Taking a look at the rules that govern the court, Article 31 states:

“…a person shall not be criminally responsible if, at the time of that person’s conduct:

a. the person suffers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law;”

So folks, I think it is safe to say that if Nebula were charged with any part of the attempted genocide of Xander, she would have a pretty good mental defect defense. Ultimately, Nebula lacks a true “mental state” to cause a genocide as her actions purely affirm her desire for redemption and closure…plus, part of her brain wasn’t even hers!

Darth Vader on Trial

It’s Father’s Day, which makes it a perfect time for us to talk about everyone’s favorite absentee father with a penchant for black—Darth Vader.

Apart from the recently inserted “NOOOOO,” Anakin Skywalker’s story comes to a poignant close in Return of the Jedi. After years as Palpatine’s stooge, Anakin finally wakes up and chucks that bag of bones down a very conveniently placed chasm. Anakin then chokes out a few touching last words before going to Jedi heaven. Applause and teary eyes ensue and the ewoks throw a big tree house jamboree…complete with a really creepy set of Imperial helmet drums.

 We all know those last scenes by heart. But what if Return of the Jedi had ended differently? 

Darth Vader looked on as his former master helplessly tumbled into the gaping maw below. Anakin’s decision had already taken an awful toll, as the Emperor’s uncontrolled Force lightning seared his body and severely damaged the life support systems integrated into his armor.

Inside Anakin’s helmet, a cascade of urgent warnings flashed before his eyes as the suit diagnostics cataloged the damage to its systems. But Anakin knew his armor as if it were a dark extension of his own body. He knew it was salvageable. Despite the pain coursing through him, he knew that his battered body would also endure, as it had for so long. As alarm claxons blared and the mighty second Death Star crumbled around them, Luke was intensely focused on securing their escape.

The two boarded a small shuttle and the boarding ramp hissed closed, muffling the din of the chaos raging outside. Anakin remained in the passenger hold alone as Luke hurriedly prepped the shuttle for takeoff. It was oddly quiet, save for the rhythmic mechanical wheeze of Anakin’s taxed respirator. As the shuttle broke clear of the explosion, Anakin silently wondered what would come next.

Vader just needs a little Windex, a *gently* used replacement mechanical hand, and maybe a gentle exfoliating seaweed wrap and he’ll be as good as new.

What if Darth Vader had survived his showdown with the Emperor and been taken into Rebel Alliance custody? As hilarious as it is to picture Vader waltzing into Bright Tree Village to crash the ewok bonanza, the scenario raises some really intriguing legal issues. Chief among them is the question of how the Rebel Alliance would have handled its newest prisoner of war. Would the former Dark Lord of the Sith be put on trial for war crimes?

Before jumping to the conclusion that Vader would be summarily forced to walk the plank on Mustafar or be sentenced to hard labor at a Tatooine sand factory, it’s worth asking what the Alliance would have done with their newest POW.   

Have you been diagnosed with Mesothelioma from burning a Sith lord? You may be entitled to compensation! Call 1-800-WESUEIMPERIALS today!

War is never a pretty business, but there is a long-standing history of holding individuals accountable for violating its laws and customs. Public trials or tribunals are probably the most well known way that the law of war is enforced. Trials and courts-martial for war crimes have been seen throughout nearly every major conflict of the last century, from the Nuremberg trials of World War II to the International Criminal Court at The Hague. Before we dive in any deeper, we’ll go ahead and assume that the Alliance had the capability to put Darth Vader on trial, even if that’s a stretch considering their fledgling nature.

For all the Vader haters out there, putting the Dark Lord on trial for war crimes probably seems like a no brainer. After all, if it weren’t for Vader, Mace Windu would still have a hand, Yoda wouldn’t be living in a mud hut, and all those dear sweet younglings would be…well, still alive. But in reality, Vader’s capture would have come at a seminal point in the galactic war—one that would have made the question of what to do with him incredibly difficult.

At the time of his capture, Darth Vader would have been one of the most hated and feared members of the Galactic Empire. The Alliance long considered him to be one of the highest value targets in the Imperial hierarchy, second only to the Emperor himself. Palpatine’s death by Death Star shaft would have quickly elevated Vader to be public enemy number one. As a result, Rebels of all ranks would have been clamoring to have his helmet on a platter.

In the real world, the fact that someone may have committed war crimes does not automatically mean that they are put on trial. There are always a host of negotiations and debates before anyone steps foot into a courtroom. The Rebel Alliance would be no different, and its leadership would want to discuss Vader’s fate before jumping to any conclusions or analyzing the evidence and case against him.

It is hereby decreed that Frankenstein C-3PO shall be the judge, jury, and executioner of his maker.

As Alliance High Command began its debate over what to do with Vader, Luke and Leia would have quickly found themselves in an impossible position. Both were powerful members of the Alliance with the ability to influence the Alliance’s decision on how to handle Vader.

Luke would have been powerfully compelled to come to his father’s side. Luke’s desire to protect those closest to him was a constant motivator for him, much like his father. Luke had just witnessed his father turn back from the abyss of the Dark Side, only to have his life once again be put on the line as the Alliance considered his fate.

Whether it’s rushing back to the Lars’ Homestead, Cloud City, or Jabba’s Palace, Luke doesn’t exactly have the best track record when it comes to exercising restraint and patience when his friends or family are in danger. When those close to him are in trouble, Luke has a penchant for seeing himself as the savior or protector. The same temptation would have been present with his father’s fate. As the only person who saw Vader kill the Emperor, Luke would have known that he was an essential witness for his father. Anakin could testify to those facts, but there is little chance anyone would believe him given his infamy. In contrast, Luke was a legendary member of the Alliance. When he spoke, others listened and followed. Therefore, in Luke’s mind, he was the key to any scrap of hope for his father.

Leia faced an even more complex choice than her brother. Her loyalty to family would have weighed heavily upon her decision. After learning of Anakin’s survival from Luke, Leia would have been faced her real father for the first time—a man whose armored visage was undoubtedly burned into many of her most terrible memories. Nevertheless, that sudden reunion would have been a great weight upon her shoulders. Luke’s zeal to help would have only increased that weight.

But while Luke had been a member of the Alliance orchestra, fighting in numerous battles, she had been one of its conductors, having dedicated the formative years of her life to helping shape and lead the organization. Her dedication to duty and the Alliance cause would have been an equally heavy weight upon Leia. On one hand, Leia knew that she wielded considerable influence—influence that she could probably leverage in her father’s favor. However, on the other hand, Leia would be keenly aware of the importance of the bigger picture, including the Alliance’s survival and its efforts to end the war. Leia was no stranger to making impossible decisions like this. She faced a similar one on the bridge of the first Death Star when she chose not to betray the Alliance at the cost of her home world.

Leia is the first contestant on the Galactic Empire’s newest gameshow, Deal or No Deal: DEATH STAR Edition

Any temptation to help Anakin would have carried a grave risk for both Luke and Leia. As ROTJ ends, their relationship to Vader was a closely held secret. If either Luke or Leia came to Anakin’s defense, there is simply no way the relationship would have remained hidden. The revelation that they were Darth Vader’s children would have been explosive news. At best, both Luke and Leia would be stripped of their influence in the Alliance. At worst, they would be regarded as spies and traitors.

Luke and Leia would have fully realized that risk and played a limited role in Anakin’s fate as a result. Luke would have realized that he was in a unique position to help both his father and his sister. Luke could stand beside his father and advocate for clemency while not endangering the Alliance’s greater cause. The shock and backlash would be fierce, not unlike what John Adams faced when he came to the defense of British Soldiers involved in the Boston Massacre. However, he could absorb the blows, knowing that he would soon be stepping away from the Alliance to follow his new path as a Jedi.

Meanwhile, Leia could fill a central role in the negotiations without revealing her secret or jeopardizing the fragile Alliance. Her close relationship with Luke was well known, so it wouldn’t be odd for her to call for others to listen to his testimony and pleas. At the same time, her personal experience with Vader’s terror provided a solid counter balance that would have given her credibility as a negotiator. Leia thus could have wielded her influence in the process without risking the greater good.

The feel when you realize that you want to propose to Leia, but you have to talk to her father, the Dark Lord of the Sith about it first.

The Alliance debate would have been equally swayed by other factors. Chief among those would be using Darth Vader to help quickly end the war. While ROTJ may have ended in a big party with space teddy bears, the war was far from over. Recent stories like the Shattered Empire comic, Aftermath trilogy, and upcoming the Battlefront II single player campaign make it clear that the Empire did not simply collapse just because the Emperor died.

Many in the Alliance would see Darth Vader as the linchpin to quickly ending the war. Vader would have been a goldmine of valuable intelligence of all aspects of the Imperial war machine. He also had a mythic reputation on the battlefield. Leveraging his knowledge and fighting abilities could mean a swift end to the fighting, which would have been incredibly tempting.

At the same time, taking any action short of a trial would risk undermining the Alliance’s legitimacy. Restoring justice to the galaxy was one of the Alliance’s core aims. Even if Darth Vader provided substantial help in ending the war, the Alliance would risk fracturing itself if he was not put on trial. Vader cut a wide and deep path of death and devastation during his time at the Emperor’s side. Alliance worlds bearing those scars would not simply stand by while the man responsible was let off. Likewise, many citizens regarded Vader as a symbol of Imperial leadership and oppression. If a man so widely regarded as evil avoided justice, their trust in the Alliance would be shattered. With one decision, the Alliance could lose the support of its members and the citizens of the galaxy they had fought so long for.

VERY IMPORTANT SIDE NOTE: So, did the Rebel Alliance just happen to bring along a bunch of fireworks for the X-Wings just in case they won?

Get those high powered Coruscant criminal defense firms on speed dial, because there is almost no doubt that Anakin Skywalker would have faced trial. Luke and Leia might shape the debate to some degree, but they probably do very little to stem the fervor to hold him accountable. Although Alliance High Command might be open to a bargain in exchange for Vader’s military assistance, they would have no choice but to put him on trial.