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Who is the True Legal Owner of R2D2 & C3PO?

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A Long Time Ago, in a Galaxy Far, Far, Away, was Luke Skywalker within his legal rights to offer R2D2 and C3PO as a gift to Jabba the Hutt in Return of the Jedi? In order to determine whether Luke was legally entitled to do so, we have to understand the ownership history of our favorite Droids.

R2D2 is introduced in Queen Amidala’s escape from Naboo. As such, R2D2 appears to be the state property of Naboo. Queen Amidala as the head of state exercised her control over R2D2. The Droid continued his service to Amidala while she was a Senator.

C3PO was built by Anakin Skywalker. As such, C3PO is Anakin Skywalker’s personal property. However, as a minor, Anakan’s mother may have held title, but for the fact both Skywalkers were slaves. Moreover, C3PO was left on Tatooine after Anakan left to become a Jedi. At this point, C3PO was in the possession and control of Shmi Skywalker as her personal property (assuming a slave could own property).

Vader_IAMYourMaker_CP3OAt the time of Shmi’s death, C3PO would have been her personal property. Moreover, Shmi’s marriage to Cliegg Lars would not transmute her personal property to community property, unless there had been a written change of ownership. As such, Lars would have had a right to one half of Shmi’s personal property by intestate succession, because Shmi had one child (Anakin). See, Cal Probate Code 6401(c)(A). As one cannot have half a Droid, Lars arguably gave up any interest in C3PO in order to have Shmi’s other remaining personal property. As such, Anakin Skywalker would have become CP3O’s legal owner upon her death (unless Shim had a will stating otherwise). Alternatively, Cliegg Lars would become the proper owner of C3PO if the Droid were community property and Shmi died without a will.

As such, by the time of Anakin and Padme’s marriage, Anakin was the owner of C3PO and Padme the owner of R2D2 (or the state of Naboo). However, the marriage does not make them co-equal owners of the Droids, because marriage does not make personal property community property, unless there is a valid transfer of ownership.

R2D2 shared many adventures with Anakin Skywalker throughout the Clone Wars. Moreover, C3PO appeared to spend a substantial amount of time with Senator Amidala. While there marriage was secret, this does tend to show them treating the Droids as community property.

Revenge of the Sith first shows Anakin being left for dead on Mustafar, soon followed by Padme giving birth to twins, followed by her death. In theory, Anakin’s personal property could have transferred to Padme at the time of Anakin’s “death.” As such, Padme would have been the legal owners of both Droids before her death. Alternatively, an argument could be made that Anakin’s attempted murder of Padme cut off his rights to any of Padme’s personal property or community property, much like Obi Wan Kenobi did to Anakin’s limbs. (See, Cal Prob Code § 250, which prohibits someone who kills a descendant from inheriting under interest succession or a will).  Additionally, one could argue that Lord Vader lost his property rights to CP3O due to abandonment.

R2D2_YounglingsThe twins would have had a right to the Droids at the time of their mother’s death through intestate intestate succession. However, given both were newborns, Bail Organa arguably became the bailee of the Droids until the Skywalker twins were of legal age. In turn, Organa entrusted the Droids to Raymus Antilles for safe keeping.

By the time of A New Hope, Leia has possession, custody and control of the Droids. While this was to the exclusion of Luke, only Bail Organa, Yoda, and Obi Wan knew of the Skywalker twins. Leia exercised her property rights over R2D2 by sending him on the mission to find Obi Wan Kenobi.

The Jawas finding R2D2 and C3PO on Tatooine and selling the Droids presents an interesting legal challenge. The Jawas could argue the Droids were abandoned or lost, claiming a right over them. However, if lost, the Jawas made no attempt to locate the right owners, but simply put them up for sale. Consider the following California law:

One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.

Cal Pen Code § 485.

This puts Uncle Owen into a strange position of arguably buying Droids that Luke actually had a legal right to already own.

The Jawas might have had a valid claim to lawfully owning the Droids on a “finders keepers” theory. Considering that the Droids escaped the Tantive IV in an escape pod, case law involving life boats found at sea is helpful in determining if the Droids were abandoned by Princess Leia, thus properly found by the Jawas.

Under case law, a “derelict vessel” is one that is abandoned and deserted. This can be by accident, necessity or voluntary actions, without hope of recovery. PAUL W. REISS, ET AL. v. ONE SCHAT-HARDING LIFEBOAT NO. 120776 # 1, ET AL., 2006 AMC 1401 (D.S.C. 2006), citing Rowe v. the Brig, 1 Mason 372, 20 F.Cas. 1281, 1282, No. 12,093 (C.C.Mass. 1818).

At the time of Leia’s capture, she could have believed she had no chance of escape. Moreover, she had no idea of where the Droid escape pod landed. However, she did give R2D2 orders to find Obi Wan Kenobi. These facts show that while the Tantive IV was lost without hope of recovery, Leia still exercised control over the Droids to complete her mission, even if she had no hope of recovering them.

If the escape pod could be considered a derelict vessel, and the Droids lost, the Jawas could have been within their salvage rights to find and sell the Droids. PAUL W. REISS, ET AL. v. ONE SCHAT-HARDING LIFEBOAT NO. 120776 # 1, ET AL., 2006 AMC 1401 (D.S.C. 2006). However, there could be a real legal challenge against the Jawas for not attempting to find the legal owner of C3PO and R2D2.

Jabba_Owner_Droids_9902

Assuming that the Jawas had the legal right to sell the Droids, Luke Skywalker would have become the proper owner of the Droids after the deaths of his aunt and uncle. As such, he would have had the legal right to gift the Droids to Jabba the Hutt. However, the following mutual combat and death of Jabba would either make Jabba’s estate the rightful owner of the Droids, or Luke re-covered them as lost property.

Alternatively, since Jabba did not accept Luke’s initial offer, he could claim the Droids were not a gift, but consideration for a contract for Han Solo. Since Jabba rejected the deal, he had no right to R2D2 and C3PO.

In Requiem for Almost Human

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Almost Human was wonderful science fiction that explore law enforcement in the future. From police drones, to computer forensics, to online dating, and 3D Printing of everything from drugs to human bodies, the show covered not just emerging technologies of today, but future legal issues. It is a shame it was cancelled.DRN_BluRayThis was the first science fiction show that gave more than lip service to civil rights. Seeing a suspect exercise his right to an attorney, and having his lawyer appear by hologram, was not just Constitutional, but creative.

It was a show for geeks, taking inspiration from classics such as Blade Runner and others. Karl Urban was even able to deliver the classic Han Solo line, “Boring conversation anyway” after hanging up someone.

I salute the creative team for what they produced and wish it could have lasted more than half a season.

Flying Lola in the Face of Orders

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Agents of SHIELD is drawing to a great close. “Nothing Personal,” touched on many legal issues from the lawful of the former Agents’ actions, to following orders, Congressional inquiries, and possible violations of the Federal Aviation Regulations.

Congress vs Man-Thing?

Maria Hill showed her disdain for Congress holding hearings on everything from the Fridge to the Man-Thing.

While it is a safe assumption most people rather burn at the touch of the Man-Thing than be grilled by Congress, it is the job of Congress under Article 1 of the Constitution to provide oversight of the Executive Branch.

It is also important to remember Washington, DC is built on a swamp, so the Man-Thing should feel at home in a Congressional hearing.

Moreover, since Congress had to approved secret budgets for building flying aircraft carriers for HYDRA-New-Age-Nazis to kill people [most likely thanks to Senator Stern], questions should be asked who did what by Congress.

ThankYou_Congress_9390I Was Just Following Orders

A theme for the Agents of HYDRA was that their actions were not personal, but simply a matter of following orders.

For the SHIELD Agents, the issue was whether there is there anyone left to give orders. By the end of the episode, the team is held together by a sense of loyalty and duty in a cheap motel. This sense of duty took them from enduring taunting by Colonel Talbot on why they were “valuable” to fighting the US Army with non-lethal weapons in order to stop HYDRA.

Skye had some of her best lines of the season, after enduring a cross-continental flight with Agent Ward, she was able to open up on Ward’s “following orders” with “riot in Hell” for being a Nazi with a high death count.

The SHIELD Agents most likely will have to face the US Government for their actions. Under normal circumstances, they might try a “I was following orders” defense. As many Courts have stated, “[S]ince World War II, the ‘just following orders’ defense has not occupied a respected position in our jurisprudence, and officers in such cases may be held liable under § 1983 if there is a ‘reason why any of them should question the validity of that order.'”  O’Rourke v. Hayes, 378 F.3d 1201, 1210 (11th Cir. Fla. 2004), citing Brent v. Ashley, 247 F.3d 1294 (11th Cir. 2001).

StoppingHYDRAThe SHIELD Agents know there is no real authority for them to issue or follow lawful orders. However, they are responding to the threat caused by HYDRA, even though SHIELD is viewed as a terrorist organization.

The Agents following Coulson have a small chance to mitigate any charges against them on a narrow view of the “following orders” defense:

“While it is typically no defense for an officer to claim he was simply ‘following orders,’ plausible instructions from a superior or fellow officer can support qualified immunity where, viewed objectively in light of the surrounding circumstances, they could lead a reasonable officer to conclude that the necessary legal justification for his actions exists.”

Wesby v. District of Columbia, 841 F. Supp. 2d 20, 40 (D.D.C. 2012), Harvey v. Plains Twp. Police Dept., 421 F.3d 185, 199 (3d Cir. 2005) (citing Bilida v. McCleod, 211 F.3d 166, 174-75 (1st Cir. 2000)).

The SHIELD Agents could argue that there was necessary legal justification for their actions, because of the fact HYDRA was actively executing a plot that threatened national, if not global, security. Given the events in the Winter Soldier, this argument might carry some weight.

Get Off My Plane

It is very hard not to love a flying car with machine guns.  However, taking Lola for an emergency flight raised several issues possible violations of the Federal Aviation Regulations.

FAR_LOLAAgent Coulson made an emergency in-flight escape from the Bus in Lola. Experiencing engine trouble resulting from a gunfight with Deathlok and Ward, Lola had an emergency landing new the JW Marriott in downtown Los Angeles.

Rules regarding aircraft are very clear: No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another. 14 CFR 91.13. Furthermore, Lola meets the definition of an aircraft as a “device that is used or intended to be used for flight in the air.” 14 CFR 1.1

No one may operate an aircraft in a congested areas below an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft. 14 CFR 91.119(b).

Los Angeles is the poster child of a congested area. However, 14 CFR 91.119(a) does allow for emergency landings in the event of a power failure “without undue hazard to persons or property on the surface.” As Coulson was able to set Lola down in an emergency landing in a parking space, he likely complied with the spirit of the FAR, if not the actual letter of the law.

Now, Agent Ward not checking into airspace on his flight, well, just add that to the growing list of charges…

Can You Prosecute Someone for Murdering a Dead Person Who Comes Back to Life Again?

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The penultimate episode of Resurrection presented a fact pattern that would give most attorneys a migraine.

TwiceDeadHow do you prosecute someone who kidnaps and kills a victim who returned from the dead from 12 years earlier AND returns from the dead after being killed a second time?

And just to make things more interesting, the victim is two months pregnant.

Kidnapping is very straightforward to prove. Pursuant to Burns Ind. Code Ann. § 35-42-3-2, a person who knowingly removes another person by force or threat of force, commits a Level 6 felony. It is a level 5 felony if an automobile was used and a Level 3 felony if committed with a deadly weapon.

Rachael was taken by a sheriff deputy and two men in a car to a cabin in the woods. One of the future Defendants had both a gun and a knife. After the deputy and another presumptive defendant left, the final Defendant (Gary) threatened the victim with a knife and cut her cheek.

These facts show not just kidnapping, but also torture. If someone if murdered where torture has taken place, the state could seek life imprisonment or the death penalty. Burns Ind. Code Ann. § 35-50-2-9. There is also a big 1983 action against the deputy for his actions in the crime.

The murder charge is where things get funky. Gary the Defendant shot and killed Rachael in a fight while she was being held against her will. These facts should meet the requirements of Murder under Burns Ind. Code Ann. § 35-42-1-1(2), because she was shot and killed during a kidnapping.

There is no question she was killed and her body taken away by the coroner.

What legal effect does it have for her to be found alive walking along the road? You need a dead body in order for there to be a murder.

Let’s refer to the original Rachael as Rachel Prime, the first Rachael returned from the dead as Rachael Alpha and the third Rachael as Rachael Beta. However, they are all the same person.

Rachael Prime committed suicide while pregnant by driving off a bridge in 2001 or 2002. Rachael Alpha was a living woman who was pregnant. She was kidnapped and physically died. Provided that there is still a corpse of Rachael Alpha, it should not legally matter that Rachael Beta is alive. A DA could argue that a human being was killed while trying to escape a kidnapping, which resulted in her death. There would not be a sentence enhancement for killing a pregnant woman, because the fetus was not yet viable, a requirement under the code. However, kidnapping could be a sentence enhancement.

A defense attorney would argue no murder has taken place, because Rachael Beta is alive, absent a lot of emotional damage. DNA would match, memories and the fact the murdered victim would be alive in court by subpoena. However, the DA could produce the autopsy report of Rachael Alpha, complete with photos, and testimony from the medical examiner. At this point Rachael Alpha’s dead body would be legally relevant, but a judge would likely prohibit it being offered into evidence because of its prejudicial effect on a jury. However, it would be advisable to keep it available to counter possible defenses.

So for all of the lawyers out there, just be glad the dead do not keep coming back to life with new bodies after being killed a second time.

Adam Carolla – White Knight

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KnightAdam Carolla: The Man Show co-host, Loveline co-host, vigilante against crooked contractors, podcaster…and now, white knight, taking on the patent trolls.

TrollPatent trolls – also commonly referred to as patent assertion entities or non-practicing entities.  They’re the bane of the litigation world right now.  Defining a patent troll is difficult (and controversial), with definitions of and opinions on patent trolls varying across the IP world, but generally a patent troll is a company that owns patents but doesn’t invent those patents or use them to make anything.  Instead, these companies focus on seeking licensing fees or, when that doesn’t work, suing for patent infringement.

These lawsuits have become notorious due, in part, to suits by such groups claiming infringement against multiple businesses for such basic tasks as scanning and emailing documents or using Wi-Fi.  While the targets of such suits may not believe the suits are valid, it’s often cheaper to settle with the trolls instead of mounting a legal defense.  Especially as more small and medium-sized businesses are targeted in patent litigation, with a majority of patent suits last year filed against businesses making less than $10 million annually.

Piles of CashPatent litigation is already extremely expensive, even in the modern world of business litigation, with much of the cost being driven by an area with which I am very familiar: ediscovery.  And recently, suits filed by patent trolls have made up the majority of patent litigation cases filed, as opposed to 2007, when patent troll filings comprised less than a quarter of patent lawsuits filed.  To combat patent troll litigation (among other issues related to patent litigation in the US), President Obama signed into law on September 16, 2011 the America Invents Act.

So what does any of this have anything to do with Adam Carolla?  Earlier this year he became a target of a patent troll, based on his self-owned podcast.  But Carolla isn’t going quietly into that good night. Carolla was sued by Personal Audio, based on a patent it received in 2012 that supposedly covers “the production of serialised or episodic content that can be downloaded from a specific URL that client software can retrieve and store.”

Personal Audio believes this patent means that most major podcasters must pay it a license or be sued for infringing its patent.  According to Carolla, Personal Audio offered to settle with him for $3 million, but he refused, choosing instead to fight back, taking the fight public and starting a legal defense fund.

Stand UpPatent litigation, as mentioned above, is time-consuming and costly, but Carolla seems in it for the long haul.  And it’s never fun to take on somebody with access to a megaphone.  Just ask anyone who’s ever incurred the wrath of Howard Stern!

(Disclaimer: The article linked to above, with reference to the America Invents Act, was written by a partner in my law firm, Alan Nicgorski.  But I linked to because it’s a great piece on how to deal with patent trolls, not because I work with him!)

 

 

Vigilantes of SHIELD?

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Agents Coulson, Fitz, Simmons, and Triplett (who keeps getting cooler), on the Agents of SHIELD episode “The Only Light in the Darkness,” presented an interesting spin on our heroes: are the Agents now vigilantes since SHIELD has collapsed?

Still_the_SHIELDVigilantism is when a “citizen takes the law into his or her own hands by apprehending and punishing suspected criminals.” Black’s Law Dictionary App, 9th Edition.

The Agents mounting up to take on Marcus Daniels (aka Blackout) was an action where they took the law into their own hands to stop Daniels from harming Audrey the Cellist.

There is a fine line between the defense of others and vigilantism. The Agents have a strong argument they acted to keep Audrey safe from harm. In Oregon, the defense of others is defined as:

[A] person is justified in using physical force upon another person for self-defense or to defend a third person from what the person reasonably believes to be the use or imminent use of unlawful physical force, and the person may use a degree of force which the person reasonably believes to be necessary for the purpose.

ORS § 161.209.

Coulson and his team could argue they were “being the shield keeping others safe,” because Coulson reasonably believed that Audrey was in danger from Daniels’ imminent use of unlawful physical force.  In Daniels’ case, this was power to kill with one touch and shoot “darkforce” from his hands. This case is only made stronger by the fact that Daniels was obsessed with Audry, as evidenced by Daniels’ original arrest. These events sound  clearly under ORS § 161.209.

HYDRA_Daniels_UpgradeHowever, “the law should not encourage vigilantism.” Goldfuss v. Davidson, 79 Ohio St. 3d 116, 123 (Ohio 1997). Moreover, “[t]he law does not excuse criminally violent actions performed as retribution; the law sanctions the use of force in defense of another only to prevent an aggressor’s imminent use of unlawful force.” State v. Frazier, 1996 Kan. App. Unpub. LEXIS 49, 6-7 (Kan. Ct. App. Aug. 23, 1996), citing State v. Hernandez, 253 Kan. 705, 713, 861 P.2d 814 (1993).

There is a strong case to be made that the SHIELD Agents acted as vigilantes. First, there was no effort to warn local law enforcement of the danger; the SHIELD Agents took it upon themselves to carry out a police action. Secondly, they represented themselves to be with the CIA (which cannot operate in the US) and set up a sting operation to stop Daniels. It appeared their plan required lethal force from the inception, but it is unclear if they knew the results of using the Bruce Banner-tech enhanced stage lights as weapons against Daniels would cause him to explode into “darkforce.”

Vigilantism-DefenseofOthers1However, if prosecuted, the SHIELD Agents are not being tried in the press, but a Court of Law. A Jury in Oregon looking at the facts could conclude that all of the SHIELD Agents’ actions were done under the defense of others to protect Audrey from imminent harm.

Can Skye Claim the Necessity Defense for Hacking the NSA?

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Skye in the Agents of SHIELD episode “The Only Light in the Darkness,” hacked the National Security Agency’s satellite system to see who was responsible for the attack on the Fridge. This was legally problematic, because SHIELD has been branded a terrorist organization. Just as you cannot simply walk into Mordor, you cannot simply hack the NSA’s spy satellites.

Hacking_NSA_8800Federal law specifically prohibits hacking into government agency’s such as the NSA. Her actions would have violated 18 USCS § 1030 subsections (a)(1), prohibiting accessing national defense information; (a)(2)(B), prohibiting accessing information from any department or agency of the United States; (a)(3), prohibiting accessing nonpublic computers used by the government.

There is no question Skye’s hacking of the NSA computers violated 18 USCS § 1030, plus multiple other cyber-crime laws, when she hacked into the NSA’s satellite network.

Skye could argue her hacking was done out of “necessity” to prevent greater harm.  The necessity defense may be asserted “only by a defendant who was confronted with . . . a crisis which did not permit a selection from among several solutions, some of which did not involve criminal acts.” United States v. Holmes, 311 Fed. Appx. 156, 164 (10th Cir. Kan. 2009). The necessity defense has a three part test:

(1) There is no legal alternative to violating the law;

(2) The harm to be prevented is imminent; and

(3) A direct, causal relationship is reasonably anticipated to exist between defendant’s action and the avoidance of harm.

Holmes, at *164 citing United States v. Benally, 233 F. App’x 864, 868 (10th Cir. 2007).

The necessity defense gets a little complicated for the former SHIELD Agents. While Agent Coulson’s team is still acting as “the shield that protects” society from the criminals who escaped from the Fridge, they are arguably acting as international vigilantes.

Skye (and the the rest of the team) would have to argue hacking into the NSA computers to access the US spy satellite data was done because they 1) had no legal alternative; 2) the harm from all of the escaped prisoners was imminent; and 3) by accessing the data, they could stop further criminal activity.

There would be a difficult argument to make in that the harm was “imminent” given the time that had passed since the breakout. However, a skilled lawyer could argue finding the enhanced criminals from the Frig was “imminent,” in order to locate them before they completely disappeared.

Would the argument work? Maybe. Courts really do not want to approve of after-the-fact-vigilantism, but if significant harm is stopped…