Hailing HYDRA on Agents of SHIELD

April 17, 2014

The Agents of SHIELD episode “Providence” presented multiple legal issues, from SHIELD being branded a terrorist organization, to whether the remaining SHIELD Agents attempting to do their duty have a legal right to do so.

Plus, Agent Coulson’s “this has to mean something, we are Agents of SHIELD, that carries weight,” speech was an excellent tour-d-force on their moral obligations to not give up and be the “shield” against harm. This is the man with vintage Captain America trading cards whose faith was tested and rewarded.

With a lanyard.

Grant Ward: Terrorist or Deep Cover?

Every prospective defense attorney is hoping Agent Ward is an actual member of HYDRA and not a double agent, because there would be virtually no way to defend him for his “undercover” actions. Prosecuting him for murdering at least FIVE SHIELD Agents and multiple acts of terrorism would be easy to prove. If he is deep undercover, there are major problems to defending him.

Agent Ward has committed the following crimes:

Killed Victoria Hand and two SHIELD Agents;

Killed two SHIELD Agents at “The Frig”;

Assisted in locating “wonder weapons” at the Frig that were not launch into space;

Going out of his way to shoot through the floor to find Quinn’s gravity weapon;

Illegally entering Cuba and Canada

Undercover agents infiltrating terrorist organizations are not actually supposed to become terrorists. For example, undercover officers are not supposed to “assume a position as one who leads, directs, manages, or officiates over the direction or goals of an organization” or “cause dissension within an organization or incite unlawful activity by any individual or organization. . . .” Rubin v. City of L.A., 190 Cal. App. 3d 560, 569 (Cal. App. 2d Dist. 1987), citing “Standards and Procedures for the Anti-Terrorist Division.”

Agent Ward assumed a leadership position within HYDRA by directing what to capture at the Frig. The gravity weapon would not have been acquired but for Agent Ward’s knowledge and purposely shooting through the floor to locate the “element.”

Ward also used deadly force against five SHIELD Agents. These deaths are very straightforward to analyze as murder from head shots to victims, to multiple rounds fired into Victoria Hand at close range, to shooting the Agents at the Frig in the back. No question these actions are the willful taking of human life.

If Ward is a double agent, taking his heroic parachute analogy to an extreme, he really has no standing to argue it was “necessary” to use deadly force in order to maintain his cover.

Deadly force is analyzed under the context of an arrest, with the question being “whether the force used to effect the seizure was reasonable in the totality of the circumstances, not whether it was reasonable for the police to create the circumstances.” Bouggess v. Louisville-Jefferson County Metro Gov’t, 2006 U.S. Dist. LEXIS 21599, 6-8 (W.D. Ky. Apr. 19, 2006), [citations omitted].

There is just no way Ward could argue he had to use deadly force because he created the very circumstances that resulted in the deaths of the SHIELD Agents. Moreover, these actions were not in any way to arrest HYDRA Agents, but to win their trust.

It would be very straightforward factual analysis to prove Ward is a terrorist, that he killed at least five people, and armed a terrorist organization with advanced weapons. If this is a “long con,” Ward would need multiple pardons for his body count.

If Ward is in “deep cover” with orders to kill SHIELD Agents, whoever authorized the operation would subject SHIELD to a 1983 action for the deliberate indifferent training Ward had for his undercover actions in not protecting the Constitutional rights of others. Gaymon v. Esposito, 2013 U.S. Dist. LEXIS 116159, 44-55 (D.N.J. Aug. 16, 2013).

Undercover agents are supposed to be a shield against harm, not cause it. If Ward is undercover, his mission has caused significant legal issues that show more a traitor than someone acting under orders.

Mutiny on the Helicarrier

Josh Gilliland

April 15, 2014

A helicarrier is an ocean-going aircraft carrier that can fly. So, in Captain America The Winter Soldier, when HYDRA took control of the Project Insight helicarriers, was that a mutiny or a hijacking? Or some new form of air piracy?

Mutiny is defined under the Mutiny Act of 1790 as follows:

Whoever, being of the crew of a vessel of the United States, on the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States, endeavors to make a revolt or mutiny on board such vessel, or combines, conspires, or confederates with any other person on board to make such revolt or mutiny, or solicits, incites, or stirs up any other of the crew to disobey or resist the lawful orders of the master or other officer of such vessel, or to refuse or neglect their proper duty on board thereof, or to betray their proper trust, or assembles with others in a tumultuous and mutinous manner, or makes a riot on board thereof, or unlawfully confines the master or other commanding officer thereof, shall be fined not more than $1,000, or imprisoned not more than five years, or both.

ALGIC (MUTINY)., 1937 AMC 1611.

Courts have held that a mutiny may occur while at dock in a harbor, either foreign or domestic, as well as at sea. Southern S.S. Co. v. NLRB, 316 U.S. 31, 41-42 (U.S. 1942).

Aircraft Piracy is defined as “seizing or exercising control of an aircraft in the special aircraft jurisdiction of the United States by force, violence, threat of force or violence, or any form of intimidation, and with wrongful intent.” 49 USCS § 46502(A). Moreover, a party can commit air piracy even if the aircraft is not in flight, “if the aircraft would have been in the special aircraft jurisdiction of the United States had the aircraft piracy been completed.” 49 USCS § 46502(B).

The HYDRA Agents could likely be charged under both statutes, but neither is directly on point, because the helicarriers are flying ships that fit in both, and neither, statute simultaneously. Moreover, the Aircraft Piracy Act appears written with civilian aircraft in mind, however the plain text does not limit its application.

Breaking down the basic facts of Captain America The Winter Soldier, the HYDRA Agents took the ships by force, while other HYDRA Agents took the SHIELD Mission Control Center operating the launch. The actions taking control of the ships occurred in the underground Project Insight dry docks located under the Potomac.

A Court could find the actions of the HYDRA/SHIELD double agents was a mutiny, because the helicarriers were in dry dock, which happened to be under navigable water. Since a crew could be charged with mutiny for a ship in port, a ship in dry dock under navigable water could violate the Mutiny Act of 1790 and its following case law. The fact the aircraft carrier could fly is purely academic.

To borrow from the Wizard of Oz, just because a monkey has wings does not mean it isn’t a monkey: it’s a flying monkey. Same with a flying aircraft carrier.

This does not mean we ignore the fact the Project Insight carriers could fly. Seizing control of the helicarriers arguably was Aircraft Piracy, because the HYDRA Agents took control of the helicarriers through violence and “wrongful intent” to kill a massive amount of civilians. 49 USCS § 46502(A).

We do not have ships that fly in real life, but Captain America has highlighted a strange tale of a legal situation where the SHIELD-turned-HYDRA traitors could violate both the Mutiny Act of of 1790 and the Aircraft Piracy Act.

Traitors of SHIELD

Josh Gilliland

April 9, 2014

Agents of SHIELD episode “Turn, Turn, Turn,” was an action-packed tie-in to Captain America Winter Soldier. Best episode to date. As expected, a whole bunch of SHIELD Agents need to face a firing squad for being HYDRA.

Out of the Shadows And Into The Light

Every member of SHIELD who served HYDRA, from working on the Project Insight Helicarriers to killing other agents, is a traitor under the United States Constitution.

Treason is defined under the Constitution as “levying War against them [The United States], or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” United States Constitution, Article III, Section 3.

The trial of Vice President Aaron Burr held that “levying war” against the United States includes those who “perform a part in the prosecution of the war” commit treason. In re Burr, 1807 U.S. LEXIS 406, 10 (U.S. 1807). This requires that a traitor performs a part of an overt act and be “leagued with the conspiracy.” In re Burr, at *13-14.

Judge Smalley in a Civil War opinion explained that acts of treason include a group of people conspiring to mount an insurrection by force and then carrying out their planned insurrection are guilty of treason by levying war. Charge to Grand Jury-Treason, 30 F. Cas. 1032, 1033 (C.C.S.D.N.Y. 1861).

It is well known that war — civil war — exists in portions of the Union; and that persons owing allegiance to the United States have confederated together, and with arms, by force and intimidation, have prevented the execution of the constitutional acts of congress, have forcibly seized upon and hold a custom-house and post-office, forts, arsenals, vessels, and other property belonging to the United States, and have actually fired upon vessels bearing the United States flag and carrying United States troops. This is a usurpation of the authority of the federal government. It is high treason, by levying war. Either one of those acts will constitute high treason. There can be doubt of it. The fact that any or all engaged in the commission of these outrageous acts under the pretended authority of the legislature, or a convention of the people, of any state, or of the officers appointed thereby, or acting thereunder does not change or affect the criminal character of the act. No man or body of men can throw off their allegiance to their government in that way. Nor can any state, or the people of any state, acting in any capacity whatever, absolve any person therefrom. Neither South Carolina nor any other state can authorize or legally protect citizens of the other states in waging war against their government, any more than can the queen of Great Britain or the emperor of France. If any such power is assumed it is without right, and the deluded individual who acts under it is none the less guilty of treason, and liable to be punished therefor.

Charge to Grand Jury-Treason, 30 F. Cas. 1032, 1033 (C.C.S.D.N.Y. 1861)

All of the HYDRA Agents at the Hub levied war against the United States by 1) Being part of the conspiracy to build flying aircraft carriers that target people by DNA for mass executions; 2) Killing Agents of SHIELD in their take over of the facilities in furtherance of Project Insight; 3) all other actions done in prosecution of the war against the US government.

Murder Without Consideration

Better late than never, Agent Coulson was concerned about firing on SHIELD Agents who were only following orders at the Hub, thus ordered the team to use Icers.

That would have been a good idea at the Guest House.

Any SHIELD Agents who did not know who to trust, who were unknowingly following HYDRA orders, would actually have a valid “I was just following orders” defense.

Orders must be lawful for a soldier to argue the “I was following orders” defense. A test for whether an order is unlawful is whether the “the order is so manifestly beyond the power or discretion of the commander as to admit of no rational doubt of its unlawfulness it cannot be used as a cloak of immunity to render justifiable an act which, but for such order, would be unlawful (40 CJS Homicide, sec 107, p 967; Winthrop’s reprint, pp 296, 297; MCM, 1928, par 148a).” (page 365). US v Kinder, 14 C.M.R. 742, 772-773 (A.F.C.M.R. 1954).

SHIELD Agents would have had a hard time in the opening moments of the rebellion to know whether orders were beyond the power or discretion of their commanding officers, because of the mass confusion and not knowing who was who. However, as evidence started becoming clear on who was issuing orders that would levy war against the United States, such as killing unarmed people, would be a clear sign of unlawful orders.

Doctor Patient Privilege on Resurrection

Josh Gilliland

April 8, 2014

The Resurrection episode “Insomnia” provided an example of the doctor-patient privilege in action. In the story, Rachel, the newest person to return from the dead, is examined by the doctor Maggie Langston. The patient is pregnant and instructs the doctor not to tell the baby’s father, who is also a minister.

Would Dr. Langston have to keep that information confidential?

According, to Missouri case law and statutes, yes. However, there might be an exception.

Missouri has codified into statute that a doctor is “incompetent” to testify about “any information which he or she may have acquired from any patient while attending the patient in a professional character, and which information was necessary to enable him or her to prescribe and provide treatment for such patient…” § 491.060 R.S.Mo.

Case law also has long maintained that a doctor cannot testify about any information they learned while treating a patient as well. See, Holtzen v. Missouri P. R. Co., 159 Mo. App. 370, 376 (Mo. Ct. App. 1911).

The only statutory exception to the doctor-patient privilege in Missouri is in cases of suspected child abuse or neglect. § 210.140 R.S.Mo. and Pilger v. Pilger, 972 S.W.2d 628, 1998 Mo. App. LEXIS 1218 (Mo. Ct. App. 1998).

What does this mean for Dr. Langston whose patient is pregnant and who successfully committed suicide? Would this create a reporting situation to law enforcement of possible risk to the unborn child?

Many states have outlined specific situations where a health care provider can breach their duty of confidentiality where the patient is showing violent behavior that indicate an “imminent danger that the patient will use physical violence or use other means to cause serious personal injury or death to others.” Ind. Code § 34-30-16-1.

In Rachel’s case, she successfully committed suicide while two months pregnant. This puts Dr. Langston in legally untested waters. Missouri does not appear to have the “danger to oneself or others” exception to a doctor’s duty of confidentiality. However, it does have an exception for child abuse or neglect. There is no case law on whether attempted suicide, let alone successful suicide, would qualify as an exception in Missouri to an unborn child.

The closest case on point involved the duty to warn involving a child molestation victim. In that case, the Court held:

Specifically, we hold that when a psychologist or other health care professional knows or pursuant to the standards of his profession should have known that a patient presents a serious danger of future violence to a readily identifiable victim the psychologist has a duty under Missouri common law to warn the intended victim or communicate the existence of such danger to those likely to warn the victim including notifying appropriate enforcement authorities.

Bradley v. Ray, 904 S.W.2d 302, 312 (Mo. Ct. App. 1995).

If Rachel was being treated in California or Indiana, case law would see her as a risk to herself because she had already killed herself once. However, an argument could be made under the Bradley decision that Rachel poses a risk to her unborn child as a readily identifiable victim because of Rachel’s prior successful suicide, thus requiring reporting that a woman who returned from the dead is a danger to her unborn child.

All I know is I am glad the dead do not actually return to life with these very strange issues that our law does not contemplate.

Legal Issues in Captain America The Winter Soldier

Josh Gilliland

April 7, 2014

Major Spoilers!

Jessica Mederson and Josh Gilliland discuss Captain America The Winter Soldier. The discussion focuses on treason, the necessity defense, insanity defense, how SHIELD could be organized, following unlawful orders and geeking out over Captain America.

Hey Captain America, What Could Go Wrong With a Giant Spy Agency?

Josh Gilliland

April 4, 2014

Captain America Winter Soldier was my favorite comic book movie to date. Excellent storytelling, with the not so subtle warning of a massive police state. It also highlights how freedom is best destroyed from within through fear.

It is the best comic book action adventure political thriller for attorneys ever.

[Limited] Spoilers Ahead!

SHIELD’s Organization

We learned SHIELD is headquartered in Washington, DC with a view of the Mall. Moreover, the building is over 41 stories tall, breaking the rule that no building in DC shall be over 5 stories.

SHIELD appeared to be funded by the United States Government with a four person World Council for oversight and project approval. SHIELD had the ability to use data from traffic cameras, access the cellular communication network and online surveillance on the US population. Predictive analytic software was developed to determine who SHIELD should kill from the air prior to an attack being made by the possible threat.

If you do not like Drones, you would really not like Project Insight.

Following Unlawful Orders

Without trying to give away major plot elements, there was a faction within SHIELD trying to achieve goals that would not only be treason, but world domination. There was a significant divide between those following the treasonous orders and those saying “No.”

DC Circuit Judge Washington in 1813 put it the best on being required to follow illegal orders with, “It is repugnant to reason, and to the positive law of the land. No military or civil officer can command an inferior to violate the laws of his country; nor will such command excuse, much less justify the act.” United States v. Jones, 26 F. Cas. 653, 657-658 (C.C.D. Pa. 1813).

No one can be convicted for NOT following an illegal order. United States v. Jordan, 7 U.S.C.M.A. 452, 456 (C.M.A. 1957).

The SHIELD Agents who openly disobeyed illegal orders when confronted with the truth of SHIELD’s plans were in their legal right to do so. Moreover, those who opened fire on the rogue agents properly did so in defense of those they were supposed to protect.

Necessity Defense & Whistle-blowing

Captain America, Black Widow and Falcon committed multiple felonies in their efforts to stop the evil elements within SHIELD. These actions include destruction of public property, use of weapons in public, stealing government equipment, burglary from a museum, publishing classified material and the destruction of three helicarriers.

All of these actions were done in the defense of the world to stop at least the deaths of 20 million people. Captain America, Black Widow & Falcon could argue everything they did was done out of “necessity.”

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).

For our heroes, there was no legal alternative to violating the law; the harm to be prevent was imminent and there was a casual relationship between their actions and the harm to be avoided.

Treason & Insanity Defense

The Winter Soldier’s story had heavy elements from the comic book, minus any references to Soviet General Alexander Lukin, the Kronas Corporation, or the Cosmic Cube.

The Winter Soldier had a 50 year history of being the used for political assassinations, having his mind erased, and put in suspended animation. Could James Buchanan Barnes be put on trial for treason and acts of war on foreign countries?

The United States Constitution defines the crime of treason as “levying War against them [The United States], or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” United States Constitution, Article III, Section 3.

The Winter Soldier without question committed many acts of treason. However, James Barnes would successfully be able to argue the insanity defense. A defendant is legally insane if:

1. When (he/she) committed the crime[s], (he/she) had a mental disease or defect;

AND

2. Because of that disease or defect, (he/she) was incapable of knowing or understanding the nature and quality of (his/her) act or was incapable of knowing or understanding that (his/her) act was morally or legally wrong.

None of the following qualify as a mental disease or defect for purposes of an insanity defense: personality disorder, adjustment disorder, seizure disorder, or an abnormality of personality or character made apparent only by a series of criminal or antisocial acts.

2-3400 CALCRIM 3450.

The Winter Soldier had his mind erased each time he was deployed. James Barnes was not in control of his own actions, because he was suffering from medical experiments (what looked like high electric shock therapy) and mental conditioning. Barnes was literally a blank slate. It was not until Captain America was able to connect with Bucky’s long buried memories that he started exercising free will. As such, Bucky was incapable of knowing his actions were acts of treason.

Senator Stern on the other hand would get a firing squad after being expelled from the Senate.

There is a Reason Spy Agencies Do Not Do Law Enforcement

SHIELD is part military operation and part spy agency. Those two should never go together and neither does well conducting law enforcement. This was very clear from the warrantless wiretapping of Steve Rogers to Secretary Pierce declaring war on Captain America for “lying” to him.

The 4th Amendment requires a warrant based on probable cause for electronic monitoring of their home. Moreover, what is at best an HR violation is not grounds to mobilize an army to kill one person.

Who Cleans Up the Potomac?

Washington, DC was an environmental mess after three helicarriers crashed landed in the Potomac. Ideally, the ships ran on Stark Arc Reactors instead of nuclear power. Nevertheless, there would be massive amounts of jet fuel, explosives, chemicals and the broken hulls of three aircraft carriers that briefly flew. Who cleans it up?

FEMA and the US military (and specifically Navy Explosive Ordinance Disposal teams) would have to kick into high gear to clean up the hazards. Since the equipment was government owned, the Feds would have to face the clean up bill. Moreover, the damage was so massive only the Federal government would have the resources to handle the clean-up.

Agents of SHIELD & Counting Down to Winter Soldier

Josh Gilliland

April 3, 2014

Jessica Mederson and Josh Gilliland discuss Agent of SHIELD episodes TRACKS, TAHITI, how awesome Lady Sif is, the Constitution, following the 4th Amendment, Marvel Civil War, Nick Fury, Ex-Agent of SHIELD and a whole bunch of other geek issues.

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