Flying Lola in the Face of Orders

April 30, 2014

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.

I 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).

The 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.

Agent 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?

Josh Gilliland

April 28, 2014

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

How 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

Jessica_alegalgeek

April 27, 2014

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

Patent 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.

Patent 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.

Patent 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?

Josh Gilliland

April 24, 2014

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?

Vigilantism 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.

However, “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.”

However, 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?

Josh Gilliland

April 23, 2014

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.

Federal 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…

Hailing HYDRA on Agents of SHIELD

Josh Gilliland

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.

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