Does Killing Mutants With Sentinels Violate the Equal Protection Clause of the Constitution?

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June 11, 2014

X-Men Days of Future Past highlighted a disturbing idea: the US Government deploying Drones (Sentinels) to kill US citizens solely on their racial status (Homo Superior, opposed to Homo Sapiens). There would be no crime, no arrest based on probable cause, no right to counsel, or even a trial. Simply killed for their racial status.

Would that be Constitutional?

No, for multiple reasons.

As a preliminary matter, a Court would find a “mutant” is a “person” and a US Citizen under the law. Determining that a Homo Superior is a human being is not as controversial as claiming Orca Whales have their 13th Amendment rights violated at Sea World (an argument that lost in Tilikum v. Sea World Parks & Entm’t, Inc., 842 F. Supp. 2d 1259, 1262-1264 (S.D. Cal. 2012).).

A Homo Superior is born like Homo Sapiens, often from other Homo Sapiens. Whether you believe life begins at conception or viability, there is no question that human beings are conceived and born of other humans. Moreover, Homo Sapiens and Homo Superiors can have children together. Human beings cannot cross-bred with other animals (Thank God).

The Constitution would not tolerate human rights being striped of those born of other human beings. Moreover, the very idea someone’s child is “not human” because they are Homo Superior has the moral weight of determining humanity by eye color.

There are many historical examples of countries enacting raced-based legislation, imposing nightmarish laws in the past. In the United States, one only needed to have 1/32 African heritage to qualify as a “slave.” Courts even took the view that there was a “presumption of law…that a person of African descent is a slave, but that the presumption may be repelled by any evidence tending to show he is free.” Lee v. Tapscott, 2 Va. 276, 282 (Va. 1796). Further evidencing horrific legal abominations, Nazi Germany required someone to have 1/16 Jewish heritage to be a “Jew” for Hitler’s genocidal war crimes.

Those are two examples from the eighteenth through twentieth centuries etched into my memory from college. The horror of state licensed inhumanity should never be forgotten.

There are far more good laws than bad. The Due Process Clause of the 5th Amendment states that “[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law . . . ” The 14th Amendment to the United States Constitution further states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

A Court would be hard pressed to say a “mutant” is not a person under the law without resurrecting the ghosts of Dred Scott and Korematsu. A Judge who would uphold the use of Sentinels would simultaneously channel Chief Justice Taney in saying mutants were not “people” and Korematsu,except instead of interning mutants because of their racial status, to kill them without a trial, regardless whether any crime had been committed. Any such law would be convicting citizens for the crime of being a Homo Superior with an extra-judicial death sentence.

There is no way Congress could authorize the use of Sentinels without triggering “Strict Scrutiny,” because it is a race-based law that calls for the execution of US citizens. While the Government could argue there is a compelling government interest in national defense, there is no way they could argue systematically killing citizens without a trial is in the government’s interest. Secondly, there is no way any such law would be narrowly tailored, because the Sentinels would systematically kill any mutant. (See, Richmond v. J. A. Croson Co., 488 U.S. 469, 476 (U.S. 1989), for the strict scrutiny test). There would be multiple less restrictive means to carrying out the compelling government interest of national defense without mass murder.

The Constitution further requires the right to a trial and counsel. People in the United States cannot be randomly arrested for no reason, let alone roadside executions by a Drone. There is simply no way the use of Sentinels would be Constitutional because of the extreme denial of Due Process or Equal Protection for Homo Superior citizens.

She-Hulk, Esq: A Discussion on A Super-Hero Lawyer

By

Josh Gilliland

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June 9, 2014

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I loved John Byrne’s Sensational She-Hulk back in 1989. It was a fun ride, from space truckers to breaking the fourth wall.

I have been very impressed with Charles Soule’s new She-Hulk series, focusing more on the practice of law than smashing super-villains.

However, unlike the actual practice, no one gets to fight robots or have judges accept motions without any underlining pleadings.

Marguerite Kenner (@LegalValkyrie) and Alasdair Cookie (@AlasdairStuart) joined me while on holiday from the United Kingdom to discuss the first four issues of the new She-Hulk comic.

We cover many topics, including She-Hulk setting up her law practice, the duty of loyalty to clients, and the legality of secretly recording someone in California from the first issue of the new series.

We also analyze whether or not Kristoff Vernard’s Application for Asylum in form I-589 would be granted. Let’s just say he would have challenges overcoming the history of whether he has “persecuted another person” or “represent a danger to the United States.”

The Sleeping Dragons of Isolationism

By

Josh Gilliland

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June 6, 2014

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The Hobbit is an excellent allegory about the dangers created by Isolationism. The film The Desolation of Smaug brings this point home with both the Woodland Elves and humans at Lake-town. The book, originally written in the 1930s, corresponds with the United States passing multiple “Neutrality Acts” in an effort to avoid getting involved in “another” European war. Highlighting this attitude while Germany was in the midst of re-arming, Americans in college were taking the “Oxford Pledge” that they would never defend the United States under any circumstances.

We are lucky the Greatest Generation proved this was a minority view.

Isolationism is a political doctrine of non-engagement with any other country. It is not pacifism, but simply not interacting with countries. An Isolationist government generally requires an extremely strong military to deter any attack. Moreover, if the Isolationist country is challenged, they would need to deliver a massive attack to make an example of an aggressor country. While there is no merit to proportional responses, as they generally only lead to other attacks, an Isolationist country would need to respond to a small threat by leveling a city if challenged militarily. Few countries have the stomach for such a hawkish foreign policy.

The key isolationist in The Desolation of Smaug is Thranduil, the Elvenking. Thranduil has memorable lines such as “Other lands are not my concern. Here in this kingdom we will endure,” upon learning of a growing foreign policy threat. Moreover, his solution to hearing from an Orc prisoner that “Your world will burn. Death is upon you. War is upon you,” is to double the watch and close the border. Instead of facing a threat early, Thranduil’s policy was to wait for it to get worse.

The counter to Thranduil is Tauriel (who is not in the book), who takes the point of view that those who are fighting evil should not be abandoned, whether it is Dwarves off to reclaim their homeland from a dragon or the Orcs who are building their army for future aggression. Her worldview is “It is our fight. With every victory they grow stronger. When did we let evil grow stronger than us?”

J.R.R. Tolkien wrote The Hobbit while the United States thought it could avoid another Great War by ignoring Europe. One such individual was Senator Gerald Nye who argued World War I had been fought solely for business purposes. Senator Nye would push through multiple “Neutrality Acts” that would prohibit trade with nations at war, somehow thinking that non-involvement would lead to a safe result with Hitler. The Neutrality Act of 1935 called for the following:

…[T]he prohibition of the export of arms, ammunition, and implements of war to belligerent countries; the prohibition of the transportation of arms, ammunition, and implements of war by vessels of the United States for the use of belligerent states; for the registration and licensing of persons engaged in the business of manufacturing, exporting, or importing arms, ammunition, or implements of war; and restricting travel by American citizens on belligerent ships during war.

NEUTRALITY ACT OF 1935; NEUTRALITY ACTS

Case law applying the Neutrality Acts had Judges referring to areas engaged in war as “the forbidden zone.” United States ex rel. Koentje v. Reimer, 30 F. Supp. 440, 440-441 (D.N.Y. 1939). Examples vary, but many include ships en route to Europe being turned around after a nation was declared a combat area by the President. In one such case, merchant sailors tried recovering a months wages for breach of contract when forced to turn around on the way to Norway. The Court held there was no recovery, because the contract had not been breached, because the ship was not legally permitted to go to Norway. Hopkins v. Moore-McCormack Lines, Inc., 175 Misc. 109, 110 (N.Y. City Ct. 1940).

Riding barrels to Lake-town is not the same as taking a ship to Norway. However, there is a common theme in both: Europe and the Lonely Mountain both had dangerous dragons.

Isolationism does not provide any protection against a fire-breathing nation. In The Hobbit, Smaug could just as easily burn the Woodland Elves and Lake-town just as he did the Dwarves in the Lonely Mountain. Correspondingly, Germany could have threatened the United States if it had completed the development of long-range bombers, rockets capable of crossing the Atlantic, or the goal of fleet of Bismark super-battleships to shell the East Coast, or an Atomic Bomb. Letting Europe burn would not make America safer.

Luckily for world history, there were Americans willing to risk their citizenship to sneak to Canada to get to England to join the RAF. Moreover, it was a good thing Churchill knew how to stand his ground after Chamberlain’s foolish appeasement with “Peace in Our Time” and France’s quick defeat. Furthermore, thank God for Franklin Roosevelt with “Lend Lease” and winning a third term in 1940.

Threats to national security do not get better with age. Watching a threat, whether it is a dragon slaughtering Dwarves or tanks rolling over a country, cannot be ignored until the threat comes to your border. The best time to fight a threat is at the beginning, not after it has started invading other countries.

The United States cannot hide behind Isolationism, either from fear of quagmires or the naive idea that abandoning all overseas bases will make us safer. An active foreign policy is required to influence friends through engagement and help those being tormented by a dragon. Ignoring the world only empowers those who would burn it down.

Boston Legal

By

Jessica_alegalgeek

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May 30, 2014

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I’m in Boston this week for the first time since the 20th Century and am very excited to be back here after so long. After I saw Boston’s most important monument — the statue for the Make Way for Ducklings ducklings — I had a chance to pause and reflect on the city’s great legal and historical significance.

Of course, key moments leading up to the American Revolution happened here: the Boston Massacre, the Boston Tea Party, and the Battle of Bunker Hill. Many great early American leaders also hail from Boston, including John Hancock and Abigail Adams. Abigail’s husband was not only the second President of the United States but also a lawyer. As a lawyer he believed so strongly in the right to counsel that he provided a successful legal defense to the British soldiers who were accused in the Boston Massacre. He also nominated, years later, the great John Marshall to be the Chief Justice of the United States Supreme Court, a key nomination that shaped the future of the judicial branch of the federal government.

On a lighter — and more contemporary — note, Boston also ties together my love of the law, geek stuff, and Hollywood. Boston Legal, of course, provided the original Captain Kirk with his other iconic role, as the lawyer Denny Crane (I refuse to acknowledge that cop show). And, just yesterday, one of my girl crushes, Mindy Kaling, gave the commencement speech at Harvard Law. In fact, I think she’s still in Boston so maybe I can bump into her! Time to stop blogging!

But first…if you’re ever in Boston, you really need to see the ducklings. And even if you don’t have kids, read the book. It’s cute and the illustrations are adorable.

Who Pays the Clean-Up Costs for Acts of Godzilla?

By

Josh Gilliland

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May 21, 2014

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Godzilla has a bad habit of walking through cities, shooting atomic breath through buildings and causing massive structural damage with each step.

Who pays for clean-up after the King of Monsters stomps through town? And in the new Godzilla movie, who picks up the tab for damage (or extreme urban renewal) to Honolulu, Las Vegas, and San Francisco for the rampaging Kaiju?

Ironically, each city likely will have to endure the costs for emergency services, police, and other governmental services performed in response to Godzilla and other MUTO.

Business owners in Honolulu might also be unable to recover from damage caused by Godzilla’s tsunami when he came ashore if their insurance policies excluded water damage from flooding. See, Gaffney v. State Farm Fire & Cas. Co., 2008 U.S. Dist. LEXIS 27805, 1-2 (E.D. La. Apr. 7, 2008). However, if he stepped on a house, that likely is not a policy exclusion, thus recoverable.

How Did They Clean Up in 1906?

San Francisco took the most significant damage it has endured since the 1906 earthquake in Godzilla. There are no California disaster cases directly on point, but states such as New York and Ohio follow the general rule “that public expenditures made in the performance of governmental functions are not recoverable.” County of Erie v. Colgan Air, Inc., 711 F.3d 147, 150 (2d Cir. 2013). As such, counties have been unable to recover costs responding to, and cleaning up, plane crashes or damages from a blackout. These costs could include wages, overtime, fire, sanitation, and hospital personnel who performed services in response to the emergency. Id.

The rules change with events such as oil spills. In the event of an oil spill, many states allow the state to recover clean-up costs. State of New York v Getty Petroleum Corp., 89 A.D.3d 262, 264-265 (N.Y. App. Div. 3d Dep’t 2011).

Nuclear accidents have their own special set of rules to limit liability of a licensed nuclear power company. The 1957 Price-Anderson Act was designed to encourage the development of nuclear power and protect the public. As such, the original law limited the aggregate liability for a single nuclear incident to $ 500 million plus the amount of liability insurance available on the private market ($ 60 million in 1957). Nuclear power companies had to buy maximum available amount of privately underwritten public liability insurance. In the (highly likely) event a nuclear disaster exceed the amount covered by private insurance, the Federal Government would kick in an amount not to exceed $500 million. Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 64-65 (1978).

Navigating Nuclear Liability

In the new Godzilla movie, a nuclear weapon is detonated off the coast of California. In all likelihood, given the speed of the boat (which could have been 20 knots if a pilot boat), a nuclear weapon in the megatons, and less than 5 minutes to cruise to a distance outside of the Golden Gate Bridge, the city of San Francisco should have sustained massive damage from the shock wave alone of the weapon at only a couple of nautical miles from the Golden Gate at best. Let’s not forget about the following radioactive tsunami.

While I am a lawyer and sailor, but not a weapons expert, I’d say it was a miracle of science fiction San Francisco was not flattened, given the amount of time the vessel could travel before the bomb detonated. Perhaps an actual nuclear weapons expert could determine how much radiation had to be absorbed by the MUTO nest to reduce the explosion to a survivable detonation. Additionally, how much fallout Godzilla had to absorb, so San Francisco would not have to be abandoned like Chernobyl.

Would there be any governmental liability for the detonation of the nuclear weapon? Most likely no, based on cases barring property owners from recovering damages against the Federal government for testing nuclear weapons. See, Bartholomae Corp. v. United States, 253 F.2d 716, 718 (9th Cir. Cal. 1957).

In the story, the weapon was going to be used as bait to get the monsters away from San Francisco, then detonated. After the mission fails, the military options are to either let the bomb go off in San Francisco, defuse the bomb, or get it out to sea.

No lawyer could argue letting the bomb go off in San Francisco would be a good thing. The City was a mess, but a nuclear explosion would only make it a bigger mess. Defusing the bomb turned into a physical impossibility, thus getting it away from the City was the only option.

From Russia With Love

The Russian nuclear submarine dropped off on Hawaii creates a small international problem. Warships are property of their countries, even if they were lost at sea. As such, you have a Russian nuclear warship sitting on Hawaii. The Russians would want her back for burying their lost sailors and ensuring the US did not study the ship.

The Federal government would get stuck with the bill in cleaning up a nuclear mess on Hawaii. Hopefully, the area is not too hot with radiation, thanks to the MUTO’s feeding on the reactor and weapons. Whether or not the Russians would chip in for clean up costs for the return of the vessel, or consider it a loss, or throw in a few rides to the International Space Station for free, is unknown.

History Shows Again & Again, How Nature Points Out the Folly of Men

Godzilla, King of the Monster, is a force of nature who can knock over a building. However, the City of San Francisco responding to damages caused Acts of God(zilla) would have to cover the costs themselves as the “general rule is that public expenditures made in the performance of governmental functions are not recoverable.” The good news housing should be affordable in San Francisco after reconstruction and decontamination. Bad news is everyone would have long-term heath problems.

Congress would have to pass a Godzilla-sized MUTO relief act, as it would be political suicide to not help San Francisco, Las Vegas and Honolulu rebuild. Interestingly, there likely would be a mass exodus out of San Francisco, given the level of destruction. Depending on whether or not where former San Francisco survivors moved to, this could change the political make-up of California after one election.

On the bright side, the West Coast should have help in rebuilding the fishing industry, due to the tsunami Godzilla creates when he swims. The resulting damage to coastal fisheries would meet the definition of a Catastrophic Regional Fishery Disaster, because there is 1) economic losses to the fishing communities; 2) more than 1 state is affected; and 3) should qualify as a fishery resource disaster or section 308(d) of the Interjurisdictional Fisheries Act of 1986 (16 U.S.C. 4107(d)).” See, MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT REAUTHORIZATION ACT OF 2006, 109 P.L. 479, 121 Stat. 3575, 3602.

Life after death…for celebrities, anyway.

By

Jessica_alegalgeek

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May 20, 2014

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“I don’t want to achieve immortality through my work; I want to achieve immortality through not dying.”

-Woody Allen

He performed last night…even though he is dead. And I was totally creeped out. I am referring, of course, to Michael Jackson’s performance at the Billboard Music Awards. He sang, danced, and had background dancers, all despite the fact that he’s been dead for almost five years. He’s still a great performer, which is weird to say but even odder to think about.

The entire time he sang and danced, as I watched with horrid fascination, I was also thinking of the other celebrities who still show up in our modern day world: Audrey Hepburn’s new commercial, Charlize’s hobnobbing with dead Hollywood icons, and Fred Astaire dancing with a vacuum cleaner. How surreal would it be to know that, after we pass, others can take our image – our faces, our moves, our voices – and make us dance for their purposes (and their profit)?

Fortunately, for most of us, that isn’t much of a concern (yet). But if you’re a celebrity, it’s a reality. Certainly not every celebrity will be turned into a hologram, a la Michael last night, but there is the risk that their image could be used to support a business without their permission. So what does the law have to say about that?

Just over half of the states have a “right of publicity,” which recognizes that individuals have a right to control the commercial use of their name, image, and likeness. But not all of those states protect an individual’s publicity rights after death. New York, for example, does not recognize a post-death right, as raised in a case involving Marilyn Monroe’s post-death publicity rights, which the Southern District of New York held did not exist. See Shaw Family Archives Ltd. v. CMG Worldwide, Inc., 486 F.Supp.2d 309 (S.D.N.Y. 2007). In other words, after you’re dead, you can’t stop others from using your image for their purposes.

In 1985 in California, however, an act was passed to protect celebrities’ publicity rights after death. Known as the Astaire Celebrity Image Protection Act, it protects publicity rights post-death if certain conditions are met. It was even amended in 2007 to specifically address the Marilyn Monroe situation, to protect celebrities who had died before the Act was passed.

So all this means that, presumably, Michael passed down his publicity rights to his heirs, which meant they were the ones who okayed Billboard pulling his strings last night. Celebrities today must be aware of this reality – that even after they pass they will continue to be used to entertain and to sell products and services – and it’s certainly one aspect of today’s celebrity lifestyle I don’t envy. I may fly coach and age naturally, but at least I don’t need to worry about any puppet masters making me dance after I die!

More Fun at Big Wow Comicfest (Day 2)

By

Josh Gilliland

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May 18, 2014

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Big Wow Comicfest Day 2 continued the fun from Day 1. I found it highly entertaining that as I walked in on Sunday morning, the group at Rock Band was singing No Doubt’s Sunday Morning. Well played.

I had a ton of fun sitting in the Back to the Future Delorean replica by Team TimeCar. I did NOT get to see if she could do 88 MPH, but it was super cool to check it out.

I attended the “Drawing Who” panel with Doctor Who comic book artists Blair D. Shedd and Josh Adams. Very talented artists who were fun and creative first thing Sunday morning.

Blair D. Shedd sang his original song “From Skaro With Hate,” a parody of From Russian With Love, as a result of getting more than 500 fans on his Facebook page. Check out his awesome performance.

There were also a ton of great cosplayers in action. I greatly admire their creativity and attention to detail in sharing their love for comics and science fiction.

Part of my admiration of cosplayers is seeing their ability to make imagination reality. It is a talent I lack, despite the fact both my father and grandfather were aeronautical engineers who had that skill, whether it was building B-17 or the Space Shuttle. While cosplayers are not building Orion to go to Mars, they are demonstrating engineering, creativity and bringing fantasy to life. You got to respect that.

I was especially impressed in seeing Kit Quinn become a green skinned witch. I checked in a little after 1000am and saw body paint/make-up being mixed to be sprayed on her. I went to a session and returned later to see her adding the finishing touches to her costume. The attention to detail was impressive. I hope her project the Sweethearts of the Galaxy earns a nomination for The Geekie Awards. Good luck.

Job well done on another fun day at Big Wow. I look forward to 2015.