New York Political Consultant Gerry O’Brien, author of the steampunk novel 1901, is a long time Nick Fury and SHIELD fan. Gerry and Josh sat down to discuss the Agents of SHIELD episode “Ragtag,” covering the political and legal issues that have developed since Captain America Winter Soldier. Both are thrilled to have an Agent Carter series and shared their hopes about the new show.
Jack is Back! The action on 24 is awesome. And right out of the gate, we have large Constitutional issues.
President James Heller is showing memory problems. Whether he has the early stages of Alzheimer or some dementia, this calls in his ability to serve as President. A lot would depend on whether it impairs him from carrying out his duties.
President Heller’s disease could trigger whether he has an “Inability to Discharge the Powers and Duties” of the President, creating issues under Article II, Section 1 of the Constitution and the 25 Amendment.
Presidents have to remember little things like nuclear launch codes, let alone the names of Congressmen, foreign leaders and talking points. If Heller is having medical problems more serious than mixing up Theodore and Franklin Roosevelt in sending the Great White Fleet around the world, there could be a real inability to serve. However, if his condition is keeping him off Jeopardy, probably not.
The story includes references to Heller running for President “four years ago.” This would put him well into his first term. The development of the disease at a minimum would keep him from running for a second term. Whether or not he could finish his first term would depend on the nature of the disease.
Should President Heller resign? Not yet from the first two hours, but the answer depends on his health. However, the knowledge of his disease could trigger the Vice President taking over as President under the 25th Amendment and Presidential Succession Act.
Now, about that Chief of Staff/Son-in-Law issuing orders from the President, there is nothing in the Constitution giving him the authority to do so….
Agents of SHIELD is drawing to an excellent season finale. Here are legal issues from Ragtag.
Doing the Right Thing vs Vigilantes
Agent Fitz admitted the operations the Agents are carrying out makes them vigilantes. Agent Coulson countered he called it “doing the right thing.” The “doing the right thing” has been the core of the posts Vigilantes of SHIELD and Flying Lola in the Face of Orders. More importantly, Coulson’s motivation to “be the shield” has been an excellent moral justification for being of SHIELD.
Agent Coulson and his team are breaking the law, but they have a very strong “necessity defense,” because they are trying to stop greater crimes from happening. Moreover, there is no other course of action for them to take. Additionally, they have broken multiple laws in conducting law enforcement activities, but they have not taken the lives of anyone in law enforcement, the military or civilians. That still shows they are acting in the nation’s best interests and not outright committing treason.
Who is Cybertek’s Records Information Management Officer?
Cybertek would throw the Silicon Valley world of electronically stored information on its head by only maintaining paper records and not having any electronic data.
For all of the attorneys who wish to avoid text messages, social media and email in litigation, Cybertek is the right client for you.
Just be highly skilled at defending charges ranging from treason to unlawful human medical experimentation.
There are over 14,000 records retention laws in the United States. Knowing which ones apply to a company is how general counsel earn their paychecks. Companies struggle with data managements, archiving, and preserving data they are legally required to maintain under the law or for business reasons.
That being said, Cybertek is not an anomaly for having paper documents going back to 1990. There are technology companies in Silicon Valley that have paper documents from the 1980s appearing in patent cases. That is not abnormal. What is highly strange would be a tech company in Palo Alto without computers.
Can We Get Haircuts in Cuba?
Cuba has the distinction of making Theodore Roosevelt a hero, a rare Presidential trip and speech by Calvin Coolidge, the Bay of Pigs, and being ground zero for almost starting World War III in 1962. For many foreign policy reasons, Cuba has been embargoed in a grudge match with the United States.
It would be very difficult for our heroes from SHIELD to drop in on Cuba for a day trip, without the risk of war. Moreover, a secret HYDRA base under a barber shop would not help Cuba’s relations with the United States.
Travel to Cuba is highly regulated for specific reasons. Tourist travel is prohibited. 31 CFR 515.560(F). General and specific travel licenses can be granted to those subject to US jurisdiction to Cuba for the following activities:
(1) Family visits (general and specific licenses) (See § 515.561);
(2) Official business of the U.S. government, foreign governments, and certain intergovernmental organizations (general license) (see § 515.562);
(3) Journalistic activity (general and specific licenses) (see § 515.563);
(4) Professional research and professional meetings (general and specific licenses) (See § 515.564);
(5) Educational activities (general and specific licenses) (See § 515.565);
(6) Religious activities (general and specific licenses) (See § 515.566);
(7) Public performances, clinics, workshops, athletic and other competitions, and exhibitions (specific licenses) (See § 515.567);
(8) Support for the Cuban people (specific licenses) (see § 515.574);
(9) Humanitarian projects (specific licenses) (see § 515.575);
31 CFR 515.560.
Agent Coulson and his team’s travel to Cuba would violate US law, as they could not apply for a license, and also Cuba’s rights as a nation. Most countries do not approve of rogue former spies doing the “right thing” in a paramilitary operation.
It also should be noted, getting a haircut and shave is not on the list.
In the unlikely event Agent Coulson and his fellow agents coordinated with the Cuban government, they would likely violate the Logan Act. This law prohibits US citizens effectively having their own foreign policy agreements with the “intent to influence the measures or conduct of any foreign government” that are “in relation to any disputes or controversies with the United States.” 18 USCS § 953. Given the nature of the relations with Cuba, and the likely negative reaction from the US with HYDRA launching operations from Cuba into the United States, the Logan Act might be violated if Coulson coordinated with Cuba. However, this seems highly unlikely.
Don’t Make Me Go Old Yeller
Garrett should not be allowed around children. Or Dogs.
There is no question that John Garrett “liberating” Grant Ward from juvenile hall would have been child abduction. Massachusetts law states:
Whoever, without lawful authority, forcibly or secretly confines or imprisons a child under the age of 16 within the commonwealth against his will or forcibly carries or sends such person out of the commonwealth or forcibly seizes and confines or inveigles or kidnaps a child under the age of 16 with the intent either to cause him to be secretly confined or imprisoned in the commonwealth against his will or to cause him to be sent out of the commonwealth against his will or in any way held to service against his will, shall be punished by imprisonment in the state prison for not more than 15 years. The provisions of the preceding sentence shall not apply to the parent of a child under 16 years of age who takes custody of such child.
ALM GL ch. 265, § 26.
Garrett arguably meets this offense, because HYDRA agents forcibly broke Ward out of juvenile hall and left Ward in the woods to fend for himself. While Ward did agree to go with Garrett, that did not also include “troops are about attack.” Moreover, leaving a minor in the woods to care for themselves would be child abuse and abandonment.
Ordering Ward to kill Buddy the Dog would violate Wyoming law, which defines animal abuse, in part, as “unnecessarily… attempts to kill an animal.” Wyo. Stat. § 6-3-203(a)(ii).
Forcing Ward to kill Buddy would go far beyond Old Yeller, where our boy hero had to shoot his beloved dog infected with rabies.
Buddy’s only reason to be put down was making Ward weak by emotional attachment. If the young Ward had executed Buddy, he would have committed a crime.
And Garrett is a supreme jerk.
Too bad Ward did not feel the same loyalty to all the SHIELD Agents he killed.
It is eerie that it looked like Ward was going to kill Fitz and Simmons like Old Yeller. Instead of being in a shed, Fitz and Simmons were in a cargo pod as Ward wrestled with his feelings. However, Fitz’s puppy dog loyalty to Ward seems to have been rewarded by being dumped at sea from a survivable altitude and speed, opposed to executed like Old Yeller in a shed.
An EMP As a Weapon
Fitz might not understand how to do a fist bump, but he knew how to ruin a cyborg’s day with an electromagnetic pulse.
Was using the EMP a valid form of self-defense? Maybe. Garrett wanted Fitz and Simmons dead. While a gun was not to his head, stopping Garrett was more a tactical move to eliminate an enemy.
Darth Vader had a very forceful way of getting the information he wanted from people. From the opening scenes of Episode IV, we learned Vader thrived on choking others. Moreover, orders such as, “Commander, tear this ship apart until you’ve found those plans, and bring me the passengers. I want them alive!” do not endear him as someone who is not above using any means to get the answers he wants.
Episode IV included a scene where Princess Leia faced a floating droid that appeared ready inject her with a truth serum.
Would that be legal under our laws?
I Have A Bad Feeling About This
The Empire and its Doctrine of Fear is not one that would protect civil rights. Its very founding was based on “security” to protect its “citizens,” not one of freedom.
Could a Republic, be it the United States or the Old Republic, force confessions from prisoners with truth serum?
The Fifth Amendment gives everyone the right in the United States to NOT “be compelled in any criminal case to be a witness against himself.” Moreover, the long line of cases following Miranda go to advise people of their right to remain silent, and the right to counsel, if they have been arrested.
One of the most extreme cases involving forced confessions was from 1936, where the Supreme Court referred to an extracted confession through brutal torture as “revolting to the sense of justice.” Brown v. Mississippi, 297 U.S. 278, 286 (1936).
Truth serums administered to prisoners uniformly have been found to violate the law. Courts often refer to such compelled confessions as “police wrongdoing.” Colo. v. Connelly, 479 U.S. 157, 165 (U.S. 1986), citing Townsend v. Sain, 372 U.S. 293, 298-299 (U.S. 1963).
Montana Supreme Court Justice Harrison held in State v. Allies that confessions made under the influence of a “truth serum” was not voluntary. State v. Allies, 186 Mont. 99, 115 (Mont. 1979). As the Court explained:
The pivotal issue presented here is whether the results of the sodium amytal (popularly known as truth serum) test are admissible where the recipient was without benefit or advice of counsel and had not received a Miranda warning immediately preceding the administration of the serum. We find they are not. The overwhelming weight of authority in this country still regards truth serum tests as inadmissible inasmuch as they have not attained the scientific acceptance as reliable and accurate means of ascertaining truth or deception.
Allies, at *114.
Many Courts will not allow any truth serum results or expert testimony over truth serum results from expert witnesses, until it is proven with “verifiable certainty that truth serum compels a person to tell the truth.” Harper v. State, 249 Ga. 519, 526 (Ga. 1982).
What does this mean for Darth Vader and Governor Tarkin ordering Leia to be injected with a truth serum? First, Vader is not getting a Father’s Day card. Second, it would not be legal in a country like the United States, which highlights the dangers of a society founded on security instead of freedom. Third, the truth serum was not effective, as Leia did not provide the location of the Rebel Base or Plans.
Jessica Mederson and Joshua Gilliland sought out Judge Matthew Sciarrino for his extensive Star Wars knowledge to discuss the casting news of Episode VII: The Order of the Jedi, and the legal issues surrounding General Krell vs the 501st in the Clone Wars.
Plus, what to do when your video conference software does not switch to active speaker.
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).
At 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.
The 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.
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.
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.
This 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.