The Falcon and the Winter Soldier is everything from action packed spy story to character study of healing after extreme trauma. It is also filled with a multiverse of legal issues.
Mark Zaid joined me for our first video podcast on Get Vokl exploring these issues. Check out the video or recording below for our analysis of the Falcon’s rescue mission to save an Air Force officer, the conditions of Bucky’s pardon, and the legal mess after half of the planet went from missing to returned after The Blip.
We will be at San Diego Comic Con with three panels celebrating the Marvel Cinematic Universe, The Clone Wars, and Godzilla! We hope you can join us for fun, legal analysis, and geeking out at the 50th Anniversary of San Diego Comic Con. We are honored to return to SDCC for our 5th appearance. Please see below for more on our panel schedule.
Ten years of the Marvel Cinematic Universe has created a body of law big enough for Nowhere. Join our panel of judges and lawyers as they journey into legal tales to astonish of how Dr. Strange saved the world with contract law; whether Bucky commit treason as the Winter Soldier; and could Thanos be prosecuted as a war criminal for “The Snap?” A panel of true believers including US Magistrate Judge Mitch Dembin, Megan Hitchcock, Christine Peek (McManis Faulker), Courtney McNulty (Legendary Entertainment), Jordon Huppert (Huppert Law Office), and Joshua Gilliland (The Legal Geeks) will assemble to tackle these issues and more from the Marvel Universe.
The Clone Wars represents some of the best Star Wars stories ever told. Join our panel of judges and attorneys as they report for duty to determine the Duty to Follow Lawful Orders vs Unlawful Orders; Child Safety of Younglings; Secret Marriages; Clone Rights; and the Trial of Ashoka Tano. Panelists include Circuit Judge John B. Owens (9th Circuit Court of Appeals), Judge Carol Najera, Stephen Tollafield (Professor at Hastings School of Law), Bethany Bengfort (US Courts), Steve Chu (Assistant US Attorney), and moderated by Joshua Gilliland (The Legal Geeks).
Godzilla has been a destructive force of legal liability since 1954. Who is financially responsible for Acts of Godzilla? Does the United States have a duty to defend Japan? And just who is the legal owner of Mothra’s egg? Join our panel of attorneys including US Magistrate Judge Stacie Beckerman, Monte Cooper (Grand Nephew of the creator of King Kong, Merian Cooper), Kathy Steinman (Deputy City Attorney for the City of San Diego), Bethany Bengfort (US Courts), and Joshua Gilliland (The Legal Geeks) as they wade into the depths of Godzilla’s destructive legal issues over the last 65 years. Moderated by Matt Weinhold (MonsterParty).
[Fictional] Secretary of State Thaddeus “Thunderbolt” Ross ordered Colonel James “Rhodey” Rhodes to arrest Captain America, Falcon, Black Widow, and Scarlet Witch for violations of the Sokovia Accords. Colonel Rhodes hung up on the Secretary of State and said “that’s a court martial” for violating the order. How could a defense attorney defend War Machine for not following orders?
Secretary of State Ross is Not in the Military Chain of Command
Colonel Rhodes’ first argument is that Secretary of State cannot give a lawful order to an Air Force Colonel based on the military chain of command. A lawful order would need to originate from the President, Secretary of Defense, the Joint Chiefs of Staff, Secretary of the Air Force, Air Force Chief of Staff, U.S. Northern Command, or whoever is Colonel Rhodes’ commanding officer or superior in rank. The Secretary of State is NOT in the military chain of command, thus cannot give an order to Rhodes.
Secretary of State Ross spent his professional life in the Army barking orders amounting to unlawful surveillance of U.S. Citizens in his search for Bruce Banner. While Ross is used to giving orders people follow from his days as an Army General, he was no longer on active duty while serving as the Secretary of State. Moreover, there is no one he could “order” in the military chain of command to have Captain America’s Avengers arrested.
It is possible the Avengers reported directly to the Secretary of State pursuant to legislation enacting the Sokovia Accords as law. If that is the case, Colonel Rhodes still has other valid legal defenses.
The Air Force Cannot Conduct Law Enforcement
Secretary Ross’s order to arrest Captain America’s Avengers would violate the Posse Comitatus Act. The Act expressly prohibits the Air Force from conducting law enforcement:
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
18 USCS § 1385.
As an Air Force officer, Colonel Rhodes is barred by law from conducting law enforcement activities. There is no better example of law enforcement activities than performing arrests. As such, ordering Rhodes to perform an arrest would violate the law, thus be an “illegal order,” which Rhodes would not have to follow.
Steve Rogers and Sam Wilson were the only team members with military service. Sam Wilson was no longer on active duty. There is no evidence that Steve Rogers was AWOL from active duty, providing Colonel Rhodes legal authority to have Captain America arrested. Rogers was frozen in ice before the end of World War II for over 70 years. His service period would have ended sometime after the war, however, there are good legal questions on how much back pay Captain America is owed by the U.S. Government. Regardless, it would be a stretch to say Colonel Rhodes was a military superior of Steve Rogers and legally required to arrest the greatest soldier of all time.
The Order to Arrest Violated the Fourth Amendment
General Ross only ordered Colonel Rhodes to “arrest them.” There were no specific charges against the Avengers, besides Ross being upset.
The Fourth Amendment to the United States Constitution requires that arrest warrants will not be issued without probable cause supported by an affirmation that describes the person to be seized (arrested). USCS Const. Amend. 4. The Federal Rules of Criminal Procedure further state that criminal complaint and supporting affidavits must “establish probable cause to believe that an offense has been committed and that the defendant committed it.” USCS Fed Rules Crim Proc R 4.
Secretary Ross ignored the probable cause requirements for an arrest warrant and ordered the arrest of Captain America’s Avengers. As the charges against the Avengers were not stated and without an arrest warrant supported by probable cause, Rhodes was correct in not following the order.
The Arrest Order Was an Illegal Order Because the Sokovia Accords Are Unconstitutional
The Hail Mary argument for War Machine is that the Sokovia Accords are Unconstitutional, thus arresting anyone for violating them would be an unlawful act. Colonel Rhodes only has a duty to follow LEGAL orders, because an order “must command a thing not in itself unlawful or prohibited by law.” US v Kinder, 14 C.M.R. 742, 772-773 (A.F.C.M.R. 1954).
U.S. citizens since the adoption of the Sokovia Accords were held without trial on a submarine prison known as the Raft. All were denied the right to counsel. Moreover, the entire concept of a “prison ship” has been rejected in the United States because of events during the Revolutionary War. Colonel Rhodes could argue with a straight face that arresting people in violation of the 4th, 5th, 6th, and 8th Amendments would amount to an illegal order, thus he was not legally bound to follow it.
Just Say No to Illegal Orders
Colonel James Rhodes was correct in not following Secretary of State’s order, because it was not in the military chain of command, violated the 4th Amendment on its face, and was based on a treaty or enabling laws that violated the United States Constitution. Colonel Rhodes took an oath to upload and defend the Constitution, not desecrate it.
We had an amazing time at San Francisco Comic Con. Thank you everyone who attended our panels and the show organizers. A big thank you to all of our panelists, including Circuit Judge John B. Owens from the Ninth Circuit Court of Appeals, Angela Storey, Michael Dennis, and Crystal Swanson. Below are the slides to the presentations and audio recorded at each panel.
Defending the Defenders, Friday, September 1, 600pm to 700pm, Room 2006
The characters of Marvel’s Daredevil, Jessica Jones, Luke Cage, and Iron Fist all face different legal challenges. Could Matt Murdock be disbarred for being Daredevil? How accurate was the trial of the Punisher? What would lawyers need to prove the actual innocence of Luke Cage?
It was a blast to present with Angela Storey. Angie and I coached high school mock trial together. Angie is a true geek who loves comics and science fiction.
Jack Kirby on Civil Rights, Saturday, September 2, 830pm-930pm, Room 3022
Mike Dennis is one of my best friends from law school. Presenting with Mike and his wife Crystal Swanson was a total joy. Both love comics and spent a lot of time researching the life of Jack Kirby. It was a lot of fun helping them shop for comic art for their home.
The Law Will be With You: Celebrating 40 Years of Star Wars Law, Sunday, September 3, 1130am to 1230pm, Room 2006
Circuit Judge Owens is one of the most prolific geek judges on the bench today. He has a great love of Star Wars, comics, Game of Thrones, and all things science fiction. It was awesome for him to join us at SFCC to discuss Star Wars.
“Those who do not learn history are doomed to repeat it.”
-George Santayana (The original version is even more chilling these days: “Those who cannot remember the past are condemned to repeat it.”)
If you’ve been online in the past few days you’ve probably seen the headlines about Captain America battling former KKK leader David Duke on Twitter (like this one, or this one, or this one, which has the best side-by-side photo comparison). I’m Team Evans in this fight, of course, and have enjoyed watching him take on the awfulness that is Duke. But thanks to a blog post on one of my favorite celebrity gossip websites, LaineyGossip.com, I learned that this isn’t the first time a superhero has taken on the KKK.
And (spoiler alert), the superhero always wins…
The KKK was formed in 1865 in Tennessee in the wake of the Civil War by former Confederate soldiers. This first effort, while terrorizing formerly enslaved people, also targeted Northern judges, teachers, and politicians. Its violence and internal strife, however, caused the KKK to officially “disband” within just a few years. Its decline was also assisted by a federal law, the Enforcement Act of 1871, which was also known as the Ku Klux Klan Act. This law gave the President the authority to suspend the writ of habeas corpus in an effort to fight the KKK and other white supremacy groups.
Unfortunately, the KKK was down but not out. In 1915, The Birth of a Nation was released (known for both its rampant racism and because it was the first 12-reel movie in America). It depicted the Klan as a heroic force (gag), inspiring a William J. Simmons to resuscitate the KKK.
This version of the Klan was shaped by the xenophobic fears many Americans had as a result of the wave of immigrants coming to America at that time, many of whom were Catholic or Jewish. So the KKK focused its animosity not just on African-Americans, but also Catholic and Jewish people. By some accounts, at its peak in the ’20s, the Klan had over 4 million members. By the end of the decade, however, the national Klan structure collapsed, leaving local KKK units independent (with one of the most powerful, in Indiana, run by a serial rapist).
By the end of the second World War, the KKK was in decline. The last of the universally recognized Imperial Wizards, Dr. Samuel Green, died in 1949. While this period in between the rise of the second wave of the Klan and the Klan’s mobilization in response to the Civil Rights Movement was already in a downswing, there were two men — one fictional, one real — and one radio program who helped the downfall of the KKK in the Forties.
From 1940 to 1951, The Adventures of Superman was a popular radio serial, airing 2,088 original episodes during its decade-plus run. During this same time, Stetson Kennedy, a civil rights activist (distantly related to the hat maker), had infiltrated the KKK in order to take it down from the inside. He was inspired, he said, to fight racial terrorism at home because a medical condition had prevented him from fighting in World War II.
Kennedy fed information about the KKK — their activities, their code names — to the Georgia Bureau of Investigations, the Anti-Defamation League, and reporters. But he wanted to do more and realized that Superman could help him. Approaching the producers of the Superman radio program, he proposed a story line in which Superman battled the Klan. The producers agreed, needing a villain to replace Hitler post-WW II, and the “Clan of the Fiery Cross” arc was born:
In the story line, Jimmy Olsen coaches a baseball team. He replaces his top pitcher with a newcomer. The replaced pitcher is angry and is an easy target for the Clan of the Fiery Cross, who offers to intimidate the new pitcher with burning crosses for not being “American” enough. Over sixteen episodes, Superman takes on and defeats the Klan, whose code words and rituals are mocked and demystified in the process.
How much credit Kennedy and Superman deserve for harming the Klan in the ’40s is still a matter of debate, but there can be no dispute that they were fighting on the side of right and they caused harm to the KKK.
Sadly, even Superman couldn’t eradicate the KKK completely and independent KKK groups continued to actively fight against the Civil Rights Movement. It was former KKK members, for example, who were responsible for the terrorist bombing on the Sixteenth Street Baptist Church that killed four girls in 1963. Even late into the 20th Century, KKK groups continued to be active, focusing their terrorism on a number of groups, including Hispanics and homosexuals.
And the Klan, unfortunately, never fully went away. Instead, they’re back and celebrating and getting loud.
Which brings us back full circle. Superman fought an imaginary Ku Klux Klan back in the 1940s, seriously damaging the KKK in real life. Unfortunately, what’s old is new again and, once again, we have a superhero doing battle with a Klansman. Hopefully for the last time.
Check out the countdown of our most popular posts published in 2016 from Number 10 to Number 1.
We had a great year, with three of our guest bloggers making the top ten, including one law student. The most read categories include Luke Cage, Captain America, Daredevil, Star Trek, and Star Wars.
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Matt Murdock and Foggy Nelson represented Frank Castle in his trial that included 37 murder and 98...
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I took my kids and my friend’s son to the new Ghostbusters yesterday. They all knew and loved the original Ghostbusters and were really looking forward to the new one. And not one of them...
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If Darth Vader had not sliced him in...
Let me start by saying that if the United States were to try and prosecute the most patriotic super hero of all time I would, after passing the state bar exam, jump at the...
Marvel’s Luke Cage on Netflix is excellent. The series has perhaps the most Easter Eggs from other Marvel stories, including Avengers, Iron Man 2, Jessica Jones, and Daredevil. There are wonderful homages to the Power...
Captain America Civil War is an amazing super-hero movie. It is the model of how to have a large cast of characters in a film with action, humor, plot, and heart. The only thing...
We hope you can join us at San Francisco Comic Con, September 2 to 4, 2016! We have five panels that cover Star Trek, Daredevil/Jessica Jones (both Saturday and Sunday), Star Wars, and Agents of SHIELD/Agent Carter/Captain America. We are extremely honored to participate in the first SFCC. Check out our schedule below.
Friday
STAR TREK: NOT EVERY CASE IS THE KOBAYASHI MARU
7:30pm – 8:30pm | Pacific H
The world of Star Trek has presented legal issues in infinite diversity in infinite combinations. Join the away team to discovery the new world of assumption of risk for Red Shirts, whether Tribbles are an invasive species, or if Scotty argue the insanity defense for being possessed by Jack the Ripper, and more from every Generation of Star Trek.
Panelists: Angela Story and Joshua Gilliland
Saturday
BLIND JUSTICE ON THE ROCKS: THE LAW OF DAREDEVIL AND JESSICA JONES
11:30am – 12:30pm | Pacific J
Marvel’s Daredevil and Jessica Jones both focus on lawyers and the practice of law, from Matt Murdock’s creative pro bono community service to Jessica Jones serving a summons. Join us to determine if Karen Page properly acted in self-defense, whether Matt Murdock or Jeri Hogath is most likely to be disbarred, and how the insanity defense applies to those under mind control. Join us when court is in session.
Panelists: Neel Chatterjee and Joshua Gilliland
THE LAW AWAKENS: STAR WARS LAW
4:00pm – 5:00pm | Pacific H
Star Wars is more than a space opera, it is an adventure in the law! Was Han Legally Justified to Shoot First? Did Kylo Ren commit desecration of Anakin Skywalker’s corpse? What are the employee safety issues in Jabba’s Palace? Did Poe lose his ownership rights to BB-8? Could someone be prosecuted for torturing a Droid? Join us to know the ways of the law.
Panelists: Megan Hitchcock and Joshua Gilliland
Sunday
LEGAL DAREDEVILS: MATT MURDOCK, JESSICA JONES, AND FRANK CASTLE
11:30am – 12:30pm | Pacific A
Marvel’s Daredevil and Jessica Jones both focus on lawyers and the practice of law, from Matt Murdock’s creative pro bono community service to Jessica Jones serving a summons. Join us to determine if Karen Page properly acted in self-defense, whether Matt Murdock or Jeri Hogath is most likely to be disbarred, and how the insanity defense applies to those under mind control. Join us when court is in session.
Panelists: Christine Peek and Joshua Gilliland
CIVIL WAR TO CIVIL RIGHTS: THE LAW OF THE MCU
1:00pm – 2:00pm | Pacific A
The Marvel Cinematic Universe is a world where SHIELD conducts global surveillance with every cell phone camera on Earth without a search warrant, Inhumans are held in suspended animation without a trial, and Captain America stopped the mass assassination of millions of Americans. Our panel will explore the Constitutional issues that include wiretaps, search warrants, and Civil Rights from Captain America Civil War, Captain America The Winter Soldier, Agents of SHIELD, Avengers Age of Ultron, Agent Carter, and more.
