#TBT: Buffy is back (from the dead)!

I’ve been listening to the songs from Once More with Feeling a lot lately. [I’m glad La La Land helped spread some new love for musicals in Hollywood but it doesn’t hold a candle to the greatness that is Buffy’s musical episode.] And then I learned that it was twenty years ago this month that Buffy the Vampire Slayer, the TV show, began. So the signs were clear: it was time for me to write a post about my favorite geek TV show of all time.

I missed the beginning of the Buffy phenomenon, turned off both by the name (a problem I had with Jane the Virgin and My Crazy Ex-Girlfriend too, shows I’m now obsessed with) and the movie. I only caught on to the Buffy phenomenon a few years later, when I was in law school and FX started broadcasting reruns back to back. Back then–pre-DVRs, Hulu, and Netflix–reruns were the only way to catch up on a show you had otherwise missed. Once I caught up on the old ones I started watching the new episodes. And if I missed one of the new episodes, I had to go to Television Without Pity to find out what I missed. [Wow, how did we ever manage before all of these awesome new technologies that let us watch our shows whenever and wherever we want?]

Season five ended with one of the most amazing cliffhangers ever (spoiler alert!): Buffy realizes what her gift is and sacrifices herself to save her sister and the world. It was also the 100th episode of the show and the last episode on the WB so the wait to see what happened the next year on the UPN was excruciating.

Season six was criticized by many for being too dark, but I loved it. And the fact that Buffy’s death and resurrection brought us one of the most amazing Hollywood musicals ever only proves how amazing that season was. [I was just temporarily distracted by a review of the season six and it reminded me of how much I loved that season and its finale as well—Big Bad Willow was awesome! I’m also pleasantly surprised at what a true superstar Jonathon became. I loved Danny Strong’s acting on both Buffy and Gilmore Girls but I guess he’s even stronger as a writer!]

Season six was obviously about the entire Scooby Gang dealing with the ramifications of bringing Buffy back from the dead. Bringing her back was an impressive act of witchcraft by Willow, but as a legal geek, I was more interested in the logistics: What kind of paperwork does that involve?

The answer: A lot. It’s a painful process without a guaranteed solution so try to avoid this situation if at all possible (a good rule for hellmouths as well).

The usual reason a non-dead person has to deal with coming back from the dead is because their “death” was the result of a typographical error or they were declared dead in absentia. Buffy, of course, doesn’t fall into either of these categories–she actually came back from the dead and had to bust out of her own gravesite. Can’t blame her for falling into a destructive relationship with Spike after that trauma.

So what happens when you die?

“For three days after death, hair and fingernails continue to grow,
but phone calls taper off.” 
-Johnny Carson

More importantly, you get entered in the Social Security Administration’s Death Master File. Creepy as it sounds, that’s where the Social Security Administration has been keeping track of the Social Security numbers of everyone who’s died since 1980. Unfortunately, those numbers are still entered into the file by humans and sometimes errors occur, leading to people who are very much alive and well being told they are, in fact, dead.

And if your Social Security number comes up as “dead,” then you’re going to be treated like a zombie: no tax filings or refunds, no new driver’s license, rejections of any application where you’re required to provide a Social Security number. For some, it’s a brutal, years-long process that leaves them impoverished and depressed.

In addition, there can be other legal ramifications for being declared dead, especially if you were declared dead by a court in absentia. That means your estate has been disbursed, life insurance benefits paid, and Social Security disbursements made to dependents. California Probate Code Section 12408 addresses this in a section entitled “Reappearance of missing person; recovery of property; limitations of actions; order for final distribution conclusive as to parties; disputed identity of reappearing missing person.” Under that section, if you reappear you can recover assets (minus fees and costs) that are still in the possession of your estate’s personal representative. §12408(a)(1). You might be able to recover assets that have already been given to your beneficiaries, if that recovery is deemed “equitable in view of all of the circumstances.” §12408(a)(2). And if you reappear more than five years after your assets have been distributed, you’re out of luck. Id.

That’s not as bad as what happened to Donald Miller in Ohio. Declared dead by a court at the request of his ex-wife (he wasn’t paying his child support and couldn’t be found), he showed up years later and tried to be officially declared alive again. The court refused, however, explaining that under Ohio law he could only challenge a finding of death within three years of the order being entered. Miller had waited longer than that so the court told him he had to stay dead!

Presumably, the Scooby Gang was too busy fighting monsters in Sunnydale to notify the Social Security Administration about Buffy’s death – or distribute her meager assets. So all Buffy had to deal with was settling back into her old life, going through the motions as best she could:

Ah, Buffy and the Scooby Gang. It wasn’t a perfect show but it was a great show and many of its alum have gone on to make other great TV shows and movies. But there will never be another Buffy–she can only come back from the dead so many times! Next time, I’ll have to figure out what happens when a vampire regains his soul. Is there anyone tracking that?

What Happens when the President is Actually An Alien?

Supergirl knows how to create a Constitutional crisis. The big surprise at the end of “Distant Sun” is that the President of the United States is a shape-shifting alien.

This…is legally problematic. What the real President Olivia Marsdin kidnapped? Or has she been an alien all along?

The requirements to be President are that the individual must be a natural born citizen, at least thirty-five years old, and a resident within the United States for fourteen years. Article II, Section 1, United States Constitution.

A “natural born” citizen is someone who was born in the United States or their parents are US Citizens, thus they are a citizen by birth. Elliott v. Cruz, 137 A.3d 646, 655-56 (Pa. Commw. Ct. 2016). While this has made interesting debates for Presidential candidates born on military bases abroad or to US citizens while overseas, there is a key similarity between all of them: they are human beings.

An actual “alien” born on a different planet, or born in the United States to non-human parents, is not a human being. The Framers intended for human beings to serve as President, which is why there is a lengthy debate as to human beings who are foreign born. There is nothing more foreign than being born on a different planet.

This raises interesting issues on Supergirl. If the President was kidnapped and replaced by a shape-shifting alien, any acts by the imposter would be unlawful. Bills signed would be invalid, because the President did not sign the legislation or Executive Order.

The situation is more complicated if the President was an alien all along who committed fraud on the American people. If that is the case, “Olivia Marsdin” was never eligible to serve, thus any actions by her would be unenforceable. The Vice President of the United States would then assume the presidency, assuming that individual is also a human being.

Thrawn’s Web: Were Rebel Forces in Zero Hour a Lawful Target?

Cue up those ominous pipe organs from Grand Admiral Thrawn’s theme song, because the Empire’s master tactician finally cornered the Rebellion in Zero Hour, the season finale of Star Wars Rebels. After discovering the Rebel Alliance’s secret base on the planet Atollon, Thrawn swept in with his fleet to crush the Alliance and, in true bad guy style, delivered some dastardly lines to the heroes about their impending doom.

How many times did you practice saying that one in front of the mirror, Grand Admiral?

In Zero Hour, Imperial forces took decisive offensive action against the Rebel fleet and its secret base (as well as a very pissed off Bendu). The episode was truly unique because we have never seen the Imperials launch a large-scale attack against a combined element of the Rebel Alliance in the show.

In the real world, offensive military operations are shaped through careful and deliberate planning. A critical part of that planning process involves making sure that the use of force will be lawful. Since the audience was mercifully spared from any scenes involving the inner workings of the lengthy and arduous military planning process, let’s fill in the gap by analyzing whether Thrawn’s assault was legal.

The nature of the attack really sets the Imperial assault on Atollon apart from other skirmishes in Rebels. Time and again Rebels has shown the Imperials in a reactive stance in which the Rebels attack and the Imperials respond. In those situations, Imperial forces typically rely upon their inherent right to self-defense to justify their use of force. Unlike those scenarios, Thrawn’s assault in Zero Hour is an offensive operation in which the Imperials seize a tactical advantage to surprise and destroy the Alliance. Here, instead of defending themselves from attack, the Imperials are the ones pressing the fight.

Thrawn, the skilled maestro…except instead of violins and trumpets he conducts scathing batteries of turbolasers and legions of deadly ground forces.

One of the central legal issues is whether the Empire could lawfully attack the Rebels, who were not actively engaged in any type of combat at the time. Militaries cannot legally use force against anyone they wish. Under the law of war, force can only be used against those who are considered hostiles or are part of a hostile force. A person or group can be considered “hostile” in one of two ways: By being declared a hostile force or by demonstrating hostility through one’s conduct.

Certain high-level officials have the legal authority to designate (or declare) that a group is a hostile force. Once the proper authority makes that designation, that group is officially called a “declared hostile force.” That status has a serious effect. Declared hostile forces can be lawfully attacked even if they are not openly engaged in hostilities. For example, in World War II, the German Army was declared a hostile force as part of the United States’ declaration of war. That status means that if Americans spotted a group of German soldiers singing kumbaya around a campfire they could attack them, even though the Germans weren’t engaged in combat.

Alternatively, if an person or group is not part of a declared hostile force, they can become a lawful target through certain conduct. If a person or group displays hostile intent or commits a hostile act, they can be lawfully attacked based on that hostile conduct. In other words, if someone’s conduct reveals that they are hostile, they can be lawfully attacked. The Jedha ambush scene in Rogue One is a great example of conduct-based targeting. Before the attack, Saw Gerrera’s fighters were indistinguishable from other civilians milling about in Jedha City. Therefore, Imperial forces had no legal basis to attack them. However, once they started firing on the stormtroopers, they were committing hostile acts—conduct that revealed their status as fighters and legally justified the Imperials’ use of force against them.

In Star Wars Rebels, those in Imperial high command would have almost certainly designated the Rebel Alliance as a declared hostile force by the time of Thrawn’s attack. The Alliance would have given them good cause to do so, having staged numerous significant attacks against the Empire across the galaxy. These attacks meant that the Rebellion was engaged in open hostilities with the stated purpose of overthrowing the Imperial government, which would have justified the designation.

The Empire would have wanted to grant field commanders like Thrawn the tactical flexibility to respond to the growing threat and crush Rebel forces. Labeling the Rebels collectively as a declared hostile force would have done just that, opening the doors for Imperial forces to hunt and destroy without first waiting to observe a hostile act or hostile intent. In Zero Hour, that meant that the Rebel base on Atollon and fleet above it were valid and legal military targets, even though they weren’t actively engaged in any sort of fighting. Having discovered the location of the base, Thrawn was free to bring his tattooed Star Destroyer and the rest of Seventh Fleet to bear on the unsuspecting Rebels.

If sound could carry in space, Thrawn would have ordered the fleet to blast ‘Thunderstruck’ by AC/DC (an orchestral version, of course) as it arrived in orbit above Atollon.

Even if the Empire had not declared the Rebel Alliance to be a hostile force, Thrawn could have still been legally justified to attack based on the Rebels’ actions. To do so, the Rebels would have to display certain conduct in the form of hostile intent or a hostile act. Under the law of war, hostile intent is defined as the threat of imminent use of force against friendly forces.

At the start of Zero Hour, Thrawn reveals that a Rebel attack is indeed imminent. Thrawn first discloses Imperial intelligence reports that a large Rebel attack is coming. Additionally, General Dodonna’s Massassi Group, one of the largest Rebel military cells, was known to be on the move for a rendezvous, which strongly suggested that a coordinated attack was coming. Thrawn surmised that the TIE Defender factory on Lothal was the target, given its location and significance.

Agent Kallus then delivered the final piece of the puzzle, as his intercepted transmission synced with Dodonna’s trajectory to reveal the hidden Rebel base. That last bit of intelligence effectively corroborated the other pieces, thereby establishing that the Rebels were moving to launch their first coordinated multi-cell attack.

Under the circumstances, the Rebel attack on Lothal would have almost certainly been deemed to be an imminent use of force. Phoenix Cell was heavily armed and had a history of combat operations against the Empire. Meanwhile, General Dodonna was a known Rebel military commander flying through hyperspace with a bunch of combat-ready vessels, not some gaggle of cargo freighters. The Rebels ordinarily avoided massing their forces, so the rendezvous of Phoenix Squadron and Massassi Group strongly suggested that an attack was in the works.

Similarly, the impending rendezvous also underscored the imminent nature of the attack. Dodonna’s forces were on the move at the start of the episode, which meant that the Rebels were in the process of marshaling their forces. Given the Rebellion’s aversion to massing their fleet for extended periods, it was highly likely they would spring their attack soon after linking up.

Under the law of war, Thrawn had no obligation to wait and engage the Rebels above Lothal. Once Imperials determined that the Rebels were displaying hostile intent, they were free to move in and use force. Grand Admiral Thrawn did what all tactically proficient commanders should by seizing upon the element of surprise and attacking at a place and time the enemy was not ready. Therefore, the Rebels’ conduct represented hostile intent that justified Thrawn’s attack.

Thrawn’s devastating attack on the Rebels showcased the escalating stakes of war for the Alliance. Although the law of war sets certain boundaries for lawful conduct within a war, it does not guarantee that you get to fight on favorable terms. The Rebellion’s own successes painted an ever-growing target on their backs, fueling the Empire’s desire to burn them out. Fortunately for the Alliance, buffoons like Admiral Konstantine and Admiral Ozzel exist, helping them escape and fight another day.

For his efforts above Atollon, the Empire posthumously honored Admiral Konstantine by granting him the glory of naming a trash compactor inside the Death Star after him.

What are Iron Fist’s Duties as a Landlord?

Danny Rand purchased the building where Colleen Wing had her apartment and dojo in Netflix’s Iron Fist. Romantic [albeit stalky], overtures aside, what are Danny’s new obligations as a landlord?

The first is that landlord warrants the property is fit for human habitation. N.Y. Real Prop. Law § 235-b. Moreover, those living in the property “shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety.” Id. However, damages caused by the tenant or those under the tenant’s direct control, shall not be a breach of the warranty of habitability. Id.

Danny Rand as a landlord is entitled to “reasonable compensation” for Colleen’s use of the property. N.Y. Real Prop. Law § 220. Danny also has a duty to provide a written receipt for rental payments. N.Y. Real Prop. Law § 235-e.

No super-hero show explores the intricacies of landlord-tenant duties, but Danny has unusual liability for his new building. First, Danny, Colleen, and Claire all kidnap Madam Gao from China and falsely imprison her in Colleen’s dojo. Second, there is extensive property damage to the dojo from different factions of the Hand and a DEA raid.

International kidnapping is a crime; regardless of the fact Danny was fighting an ancient terrorist organization of ninjas selling heroin. Danny had actual notice of the ceiling being breached in a raid, plus the door by the DEA.

Danny would have a duty to have the ceiling repaired under N.Y. Mult. Dwell. Law § 78:

Every multiple dwelling, including its roof or roofs, and every part thereof and the lot upon which it is situated, shall be kept in good repair. The owner shall be responsible for compliance with the provisions of this section; but the tenant also shall be liable if a violation is caused by his own wilful act, assistance or negligence or that of any member of his family or household or his guest. Any such persons who shall wilfully violate or assist in violating any provision of this section shall also jointly and severally be subject to the civil penalties provided in section three hundred four.

Danny knew rappelling members of the Hand had breached the ceiling of the dojo. This could subject the dojo to flooding, to say nothing of the roof being safe and sound. Prior case law has found that landlords have been responsible for property damage caused by water invasion from damaged roofs. Excellent Holding Corp. v. Richman, 155 Misc. 257, 258 (N.Y. Mun. Ct. 1935). There is no question that three human sized holes in the ceiling would cause water intrusion to the property [assuming Colleen’s dojo is on the top floor].

Jeri Hogarth might argue Danny’s liability is either limited by the actions of organized crime or seek damages from the government for the DEA raid. This would be highly problematic, as Danny was acting in violation of international, Federal, and New York state law, when they kidnapped Madam Gao from China. Moreover, the government had been given false evidence, which does not mean the DEA was acting in bad faith when they sought a warrant. As far as they knew, there was probable cause to arrest Danny Rand for being a drug dealer.

What is not easy to tell, is how difficult it will be in the future for Colleen Wing to get renter’s insurance in the future.

King Kong vs JAG

King Kong is the inspiration of “Monster Kids’ across the globe. Army JAG officer, and guest blogger on The Legal Geeks, Thomas Harper, sat down with me to discuss the military law issues in the newest “King Kong” movie, Kong: Skull Island. We debate whether Colonel Preston Packard (played by Samuel L. Jackson) committed dereliction of duty when his squadron first engaged Kong, whether Packard gave unlawful orders in his pursuit to kill Kong, and if John C. Reilly’s character Hank Marlow was entitled to 28 years of pack pay.

 

Parental Liability for Rampaging Monsters

Are parents legally liable for property damage caused by monsters summed to their city by their minor child? If parents can be sued for forest fires, can they be sued for fire-breathing monsters controlled by a child?

The Marvel mini-series Monsters Unleashed tells the story of Kei Kawade, an Inhuman child who can summon classic monsters by drawing them on a piece of paper. Kei’s art projects summoned creatures that rampaged in Atlanta and St. Louis, forcing his family to move [possibly to escape civil liability].

Parental liability for torts of a child did not exist under common law. As one California Court explained, “statutes imposing parental liability are therefore ‘in derogation of the common law,’ and the rule is that statutes which increase liability, or provide a remedy against a person who was not liable at common law are to be narrowly construed in favor of those sought to be subjected to them.” Curry v. Superior Court, 20 Cal. App. 4th 180, 183-84 (1993), citations omitted.

The amount of recovery for parental liability for the acts of a child varies state to state. In Georgia, parents with custody of a minor child are liable for the “willful or malicious acts” of their child up to $10,000 for reasonable medical expenses and/or property damage caused by a child’s rampage. The law specifically states:

Every parent or guardian having the custody and control over a minor child or children under the age of 18 shall be liable in an amount not to exceed $10,000.00 plus court costs for the willful or malicious acts of the minor child or children resulting in reasonable medical expenses to another, damage to the property of another, or both reasonable medical expenses and damage to property.

Ga. Code Ann. § 51-2-3(a).

Missouri has similar laws for parents whose children have caused personal injury or damaged property by “purposely marking upon, defacing or in any way damaging any property,” except that damages are limited to $2,000. Mo. Rev. Stat. § 537.045.

Kei’s early monster rampages were in Georgia and Missouri. Those states limit recovery for property damage to $10,000 and $2,000. By way of comparison, California’s limit for property damages is $25,000 under Cal Civ Code § 1714.1. That means those with property damage could sue Kei’s parents for up to the maximum amounts in Georgia and Missouri. While these laws were not meant to cover damages from a monster attack, the combined damages from multiple property owners could add up fast for the Kawades and their insurance company.

The issue in Georgia is whether Kei acted recklessly drawing a picture of a monster that then appeared and destroyed property. In one Georgia case, a mother was not liable where her unlicensed teenage son stole her car keys and got in an accident, because there was no evidence the son’s actions were reckless. Jackson v. Moore, 190 Ga. App. 329, 378 S.E.2d 726 (1989).

The monster-sized issue for liability is that Kawades knew their son was an Inhuman whose drawings summoned monsters. The act of drawing a picture is not willful or malicious, however, having the knowledge that said drawing would summon a monster would be willful conduct. While there is a strong defense that the first time a monster appeared was not foreseeable, the parents would know of the danger after the first incident. Allowing Kei to draw with that knowledge arguably is a willful and malicious act.

Join us at Nerd Nite LA on March 9 for Star Was Law!

I am very excited to be presenting “The Law is With Me and I am One with the Law” at Nerd Nite LA on March, 9, 2017, for a “Ted Talk” style discussion on the top legal issues from Star Wars, including The Force Awakens and Rogue One. Below is a description of the program:

“Star Wars” has inspired audiences, and lawyers, for over 40 years. The Law is With Me will cover top legal issues from “Star Wars,” including, was Han Solo right to shoot first? Does Rey have a lawful claim to Luke Skywalker’s original lightsaber? Did Director Krennic commit a war crime destroying Jedha? Just who were the rightful owners of R2-D2 and C-3PO? Join us and learn the ways of the Law.

If you are in Los Angeles would like to attend, Nerd Nite is at Busby’s East, 5364 Wilshire Blvd. Tickets are available at Ticketfly.