Did the Clairvoyant See the Constitutional Issues?

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April 2, 2014

The Agents of SHIELD episode “The Beginning of the End” was a fantastic joyride for comic book fans. The set-up for Captain America 2 and the battle for the soul of SHIELD were geektastic. The only thing the story was lacking was telling Thomas Nash “you’re under arrest” and giving him his Miranda Rights.

Ward killing the paralyzed Nash armed with a tube in his mouth is also extremely problematic.

Let’s break down the legal issues:

Was the Clairvoyant Lawfully Arrested?

Thomas Nash apparently communicated through his computer “I surrender” to Agents Coulson and Garrett after they entered his room with weapons drawn after exchanging fire with Deathlok (whether or no it was Nash operating the computer was not determined). No member of SHIELD actually told Nash “you are under arrest.”

Someone is under arrest when they are kept in custody by legal authority in response to a criminal charge. See, Black’s Law Dictionary, 9th Edition.

We have a little rule called Miranda that states:

Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.

Miranda v. Ariz., 384 U.S. 436, 471-472 (U.S. 1966).

As such, when some is “arrested,” they must be given their Miranda Rights.

Had Nash been arrested? Were the Agents required to give Nash his Miranda Rights?

There is an argument that the Agents finding the paralyzed Nash in the bed were only conducting an interview of the suspect. For example, a Court held that a bomb maker interviewed in a hospital bed after an explosion was not in custody, because the officers did not keep the suspect in the hospital. Things could have been different if the police had transported the suspect, stationed guards, monitored his health or showed restraint amounting to custody. Gonzalez v. Sisto, 2010 U.S. Dist. LEXIS 48812, 28-29 (C.D. Cal. Jan. 13, 2010) citing United States v. Martin, 781 F.2d 671, 672-73 (9th Cir. 1985).

Nash was in a very similar position, in that he was confined to a hospital bed, unable to speak without a computer. The SHIELD Agents did not put him in his near vegetative state, but were questioning a possible suspect.

However, there were at least half a dozen armed SHIELD Agents around Nash with weapons drawn. Moreover, he surrendered. These are facts supporting he was under SHIELD custody and lawfully arrested. As such, Miranda Rights should have been given.

There is a “Public Safety” Exception to Miranda where “overriding considerations of public safety” could justify a failure to provide Miranda warnings before initiating custodial interrogation. New York v. Quarles, 467 U.S. 649, at 651 (1984). Moreover, law enforcement could question someone under arrested without giving Miranda Rights when the “officers have a reasonable belief based on articulable facts that they are in danger.” United States v. Talley, 275 F.3d 560, 563 (6th Cir. 2001). These situations have included looking for explosives and guns left out. See, United States v. Williams, 483 F.3d 425, 428 (6th Cir. 2007) and United States v. Hodge, 2013 U.S. App. LEXIS 7848, at *14 (6th Cir. Mich. 2013).

Deathlok running free with the ability to launch small missiles, enhanced strength, and bullet proof, would give the Agents a reasonable belief that they were in danger. This would justify the questioning of Nash without giving his Miranda Rights.

Ward Committed Murder (Again)

Thomas Nash was either being interviewed or under arrested when Agent Ward shot him. There is no way around the fact Ward committed murder, arguably worse than his visit to the Guest House. At least those guys could defend themselves.

The execution of a Canadian citizen in the United States by US law enforcement would be controlled by US law. SHIELD operates within the US Government (don’t forget Agents Hand and Blake being picked up on the USS John C Stennis, CVN 74 at the beginning of the episode. Nimitz class carriers are not coffee shops for hanging out). As such, Ward SHOULD be both subject to a 1983 action by Nash’s family and charged for murder.

What is Hydra’s Legal Status?

By

Josh Gilliland

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April 1, 2014

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Captain America The First Avenger features Hydra under the leadership of the Red Skull as the principal World War II villains. Hydra begins as Nazi Germany’s advanced weapons division/cult, which then commits mutiny and declares war on the world.

What is Hydra’s Legal Status? Is it a nation-state? A terrorist organization? Is Germany responsible for any post-war activities of Hydra?

There is no question that [fictional] World War II Era Germany was responsible for all actions done under the direction of Hitler and the 3rd Reich. The Nazis built the first bases, funded the research and provided the troops to support Hydra’s operations. All of these actions could be the subject of a war crimes trial.

Things become legally cloudy after the Red Skull murdered the visiting 3rd Reich officers. Hydra made a total break with the Reich, including plans to destroy Berlin, and their own creepy “Hail Hydra” salute.

There is a strong argument that Hydra post-mutiny would be a terrorist organization, because it was no longer sponsored by a nation (in this case, Germany).

Applying the current law to the World War II Era, the Secretary of State could designate Hydra as a terrorist organization because:

1) Hydra is a foreign organization (formerly German);

2) Hydra engaged in terrorist activity 22 U.S.C. 2656f(d)(2)) in that it conducted premeditated, politically motivated violence perpetrated against noncombatant targets (though not completed thanks to Captain America);

3) Hydra’s activities threatened the security of the United States.

8 USCS § 1189(a)(1)(A) to(C).

Hydra’s actions included building advanced weapons in secret bases across war torn European countries with the intent to destroy the world, starting with the United States. Hydra’s flying wing bomber mother ship was launched with the purpose of destroying the eastern United States within an hour. These actions would violate US law and would constitute terrorist activity to “affect the conduct of a government by mass destruction” 22 U.S.C. 2331(A)(1).

Germany and the United States had mutual declarations of war against each other. Hydra no doubt would have been included under the US declaration of war as a German military unit. However, after Hydra went rogue from Germany, Hydra legally was a terrorist organization, because it was no longer sponsored by Germany and enacted their own political agenda.

Hydra’s post mutiny actions would subject it to legally be treated under anti-terrorism laws, especially if they continued terrorist activity after World War II. Germany would be responsible for any war crimes Hydra committed before the mutiny, but unless attacking the United States was part of Germany’s plan, Hydra was no longer part of the German military and a terrorist organization.

An Important Message from BowTieLaw

By

Josh Gilliland

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April 1, 2014

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Josh Gilliland has an important personal announcement.

Firefly is Still Teaching Contract Law

By

Josh Gilliland

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March 31, 2014

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The comic series Serenity Leaves on the Wind continues both the story of our favorite Firefly class ship AND lessons in contract law.

The basics of contract formation is offer, acceptance, consideration and performance.

Contracts cannot be for an illegal activity, which would be substantive unconscionability, or formed under duress, which would be procedural unconscionability. See, Falls v. 1CI, Inc., 208 Md. App. 643, 664-665 (Md. Ct. Spec. App. 2012) and Rivera v. Rivera, 149 N.M. 66, 72-73 (N.M. Ct. App. 2010).

So, virtually all of Malcolm Reynolds contractual agreements would be unenforceable in Court. Let’s overlook those issues for purposes of understanding formation or the Parol Evidence Rule on the assumption Murray on Contracts did not make it off Earth.

Jayne’s Got a Gun

The contractual issues of Leaves on the Wind begin with Jayne’s cousin offering to tell Bea, the leader of the New Resistance, Jayne’s location in order for Bea to find Serenity. This agreement does have offer, acceptance and performance, but the negotiations were also at gunpoint.

Bea entered into a contract with Jayne Cobb to find Malcolm Reynolds on behalf of the New Resistance after a short negotiation at the Cobb family “estate.” The time between offer and acceptance was extremely short, consisting only of “We need to find Malcolm Reynolds” and presenting Jayne with a briefcase of money when questioned on why.

A contract is not enforceable if it fails to specify all material terms. Sanderford v. Duplin Land Dev., Inc., 531 Fed. Appx. 358, 362 (4th Cir. N.C. 2013). The negotiations between Bea and Jayne contained the specific performance of finding Malcolm Reynolds as a requirement for payment. These conditions for payment would be specific enough to define material terms.

Jayne accepted the verbal terms of finding Mal and visual offer presentation of money with “Well, what are we waiting for?” Jayne accepted Bea’s offer, even though he accepted with a question, because the manner of acceptance demonstrated an intent to accept Bea’s performance contract. This demonstrates mutual assent between the parties, even if acceptance is implied-in-fact from Jayne’s actions instead of an express contract. Murray on Contracts, section 38, citing Day v. Caton, 119 Mass. 513 (1876).

Jubal Early and a Bounty Hunter’s Performance

Early from the episode Objects in Space is once again a threat to the crew as a bounty hunter acting on behalf of the Alliance to capture the crew of the Serenity.

“Bounty hunters” are known as “runners” under some code sections for “someone who hunts another person in return for the payment of a bounty if they succeed in finding and returning them.” Carson v. Vance, 326 S.C. 543, 546 (S.C. Ct. App. 1997), citing S.C. Code Ann. § 38-53-10 (9) (1989). Bounty hunters are generally employed by bail bondsmen. See, S.C. Code Ann. § 38-53-10(10).

Ironically, Early’s contract with the Alliance might be the only legal one in Leaves on the Wind. However, the contract would require “complete performance” in order for Early to be paid, so no Mal, no duty for the Alliance to pay.

Agents of SHIELD Needs a Bow Tie Wearing Judge Facciola

By

Josh Gilliland

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March 25, 2014

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I have enjoyed Agents of SHIELD immensely, but I have been troubled by the total failure to observe the Constitution.

This was evident when Skye was first arrested with a bag over her head, to the unlawful killing of the guards at the “Guest House,” to the large number of warrantless computer searches by hacking.

This culture of unlawfulness in the name of security will likely be a key theme in Captain America The Winter Soldier.

As a preliminary matter, I have had Reddit comments stating that the Constitution does not apply to SHIELD, because it “isn’t American,” but a “world council.”

First off: Wrong. SHIELD was an outgrowth of the “Strategic Scientific Reserve” (SSR) in the post World War 2 Era. Its origins are American, it operates in America and has bases in the United States.

Secondly, there is no way on Earth the United States would let a foreign power operate within the country, not following its laws, complete with military bases that conduct espionage on its citizens and perform arrests. The United States would not tolerate SHIELD as a foreign power occupying any part of the country committing acts of war.

Third, the Constitution is the Supreme Law of the Land. No law may conflict with it. Period. It protects everyone who is a born or naturalized US citizen and those within the United States.

Agents of SHIELD and the previews for The Winter Soldier have a theme that SHIELD operates like the NSA/CIA/FBI/DEA/INS/DOD with a God-complex armed with flying aircraft carriers that conduct law enforcement, espionage, and military operations within the United States.

That should upset anyone with a law degree in the Marvel Universe.

SHIELD apparently can also authorize the use of a nuclear weapon on a US city without Presidential authorization, as seen in the Avengers. I specifically remember from the history books that Senator Barry Goldwater lost the 1964 Presidential Election and got nuked with the Daisy ad after saying local military commanders should have discretionary use of tactical nuclear weapons.

One of the elements on Agents of SHIELD that has troubled me is the lack of any judicial involvement, or repercussions, for their actions. We are a nation of laws and the 4th Amendment is pretty clear about protecting us from illegal searches:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Some Heroes Wear Bow Ties

In the real world, Magistrate Judge John Facciola played his own version of a super hero in an order denying a facially overbroad search warrant of electronic communications.

The Government has gotten into the practice of seeking the “entire universe of information tied to a particular account, even if it has established probable cause only for certain information.” In re Search of Info. Associated with @mac.com, 2014 U.S. Dist. LEXIS 35323, at *8 (D.D.C. Mar. 7, 2014).

The Government has been “asking” service providers in search warrant applications to produce ALL communications connected to an email account, regardless of whether or not they are relevant to the case. In re Search of Info., at *10.

In the present case, the search warrant application was for the investigation of kickbacks and conspiracy involving a defense contractor and sought a specific Apple email address.

The Court blasted drafting errors, noting that the Government used language that would confuse the producing party on what information it must determine to give to the government. In re Search of Info., at *7. The Application stated the provider to produce three months worth of email, yet the Government would only “seize” email relevant to the criminal investigation. In re Search of Info., at *14. As Judge Facciola stated, “This Court should not be placed in the position of compelling Apple to divine what the government actually seeks.” In re Search of Info., at *7-8.

The Court stated the Government’s application sought an Unconstitutional General Warrant. The 4th Amendment protects us from search not based on probable cause and searches should be as limited as possible. In re Search of Info., at *12. These beliefs date back to our Revolutionary War. Searches are not to be a Lewis and Clark expedition through someone’s email or social media accounts. As the Court explained:

Any search of an electronic source has the potential to unearth tens or
hundreds of thousands of individual documents, pictures, movies, or other constitutionally protected content. It is thus imperative that the government “describe the items to be seized with as much specificity as the government’s knowledge and circumstances allow.”

In re Search of Info., at *12, citing United States v. Leary, 846 F.2d 592, 600 (10th Cir. 1988).

The Court explained the Government’s application demonstrated it could describe the relevant items with specificity, yet the Government “has simply chosen not to by pretending that it is not actually “seizing” the information when Apple discloses it.” In re Search of Info., at *14. As the Court explained by citing In the Matter of the Search of Information Associated with the Facebook Account Identified by the Username Aaron.Alexis That Is Stored at Premises Controlled by Facebook, Inc., 13-MJ-742, 2013 U.S. Dist. LEXIS 185850, at *9-10 (D.D.C. Nov. 26, 2013):

By distinguishing between the two categories, the government is admitting that it does not have probable cause for all of the data that Facebook would disclose; otherwise, it would be able to ‘seize’ everything that is given to it.”

In re Search of Info., at *14.

Judge Facciola denied the application and threw Captain America’s shield at the DOJ with a clear message: Search warrants that fail the Fourth Amendment will be denied. The Court had modified approximately 20 applications for search warrants between September to December 2013 to comply with the Fourth Amendment. No more. Comply or get denied. In re Search of Info., at *21-22.

Why Marvel Needs a Bow Tie Wearing Judge

Comic books and science fiction have a profound way of making social commentary. Perhaps that is the intent of seeing SHIELD conduct massive searches of electronic communications (as seen in the Incredible Hulk) and outright hacking is to get viewers to think about Constitutional rights.

Judge Facciola did not write “Judge Smash!” in his In re Search of Info. Associated with @mac.com order, but it certainly must have felt like a helicarrier crashed into a building for the DOJ lawyers who have been filing applications for general warrants of electronic communications. Agents of SHIELD needs to have a judge send that kind of message.

Agents of SHIELD frequently conducts searches on people without a warrant. Add the arrests without Miranda Rights, torture, beatings of prisoners and murder, and there would extremely intense judicial involvement and Congressional hearings.

The actions on Agents of SHIELD would cause gavels to fly like Mjölnir for the civil rights violations. It would be good to see a bow tie wearing judge call out SHIELD for its ignoring the Constitution in the name of security. The ends do not justify the means when it comes to the Bill of Rights.

I personally would like SHIELD to not have the same moral standing as the Punisher when it comes to upholding the Constitution. I think there is a good chance these issues will come up in Winter Soldier and impact future storytelling on Agents of SHIELD.

Will we see attorneys and judges in the future? Unknown, but it would send the right message that those who take an oath to upload the Constitution should also follow it.

I love the Veronica Mars movie I produced!

By

Jessica_alegalgeek

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March 20, 2014

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As some of you may recall, I was an early backer of the Veronica Mars Kickstarter campaign. The campaign was hugely successful and now the end product – the movie itself – has finally come out. And it was worth every penny!

Two disclaimers up front: First, I loved the movie but am completely unable to tell if it’s enjoyable for those who weren’t already a fan of the TV show. Second, there will be some spoilers ahead so don’t read this if you haven’t seen the movie yet.

Where to begin? The cast was great. Dick is, far and away, the funniest part of the show and I’m glad he got so many great lines. Cliff the criminal defense lawyer represents us lawyers pretty well (all things considered) and I’m always happy when Ken Marino (Vinnie the sleazy PI) shows up. I almost yelled out “Schmidt” when Max Greenfield made his cameo and yes, it was funny to see Dax act as a sleaze trying to pick up his real-life wife in a nightclub. Wallace is as cute as ever but, unfortunately, underutilized once again. Mac, meanwhile, looks hot and I really wish I could rock her hairdo!

The plot was fun and believable. Veronica’s attempts to get out – and stay out – of Neptune and its toxic underbelly were convincing, even though there’s no way she would have made it a year working at a big law firm (I did it for a decade but that’s because I’m not nearly as cool as Veronica!). Keith’s frustration at watching Veronica give up her chance to get out Neptune was tangible. I bought Logan being back in trouble, although joining the Air Force seemed random, forced, and unbelievable (I clearly didn’t donate enough to get creative input on the script). And it broke my heart to see poor Piz get his heart broken.

Most importantly, the ending was satisfied. If your name isn’t Newhart, it’s so easy to goof up the ending (I’m looking at you, Lost, and even you, Seinfeld). But this movie gave me the ending that I wanted (although I didn’t realize that until I saw it). Veronica can’t leave Neptune – she’s got to keep up the fight she started in high school. And I really liked the fact that Weevil (always one of my favorite characters) had to give up living the “good” life and rejoin the gang, just to fight the corrupt police force. And yes, Logan and Veronica belong together.

My love for the show – like the love Logan and Veronica shares – is epic. The movie gave me the ending I needed and wanted and was worth every penny of my investment. Now it’s time to start looking for my next movie project!

What Are the Rules for Digging Up Dead People?

By

Josh Gilliland

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March 19, 2014

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If dead people were suddenly returning from the dead, there is no question there would demands for bodies to be exhumed to determine if the “returned” were who they claimed they were. Resurrection hit the issue head on in the second episode.

What are the requirements for exhuming a dead body?

It is long held precedent that a Court could order a body exhumed for evidence. Moss v. State, 152 Ala. 30 (Ala. 1907). This is true in “cold cases,” because there is no statute of limitations on murder.

California has the following requirements for exhuming a body:

No remains of any deceased person shall be removed from any cemetery, except upon written order of the health department having jurisdiction, or of the superior court of the county in which such cemetery is situated. A duplicate copy of the order shall be maintained as a part of the records of the cemetery. Any person who removes any remains from any cemetery shall keep and maintain a true and correct record showing:

(a) The date such remains were removed.

(b) The name and age of the person removed, when these particulars can be conveniently obtained and the place to which the remains were removed.

(c) The cemetery and the plot therein in which such remains were buried.

If the remains are disposed of other than by interment, a record shall be made and kept of such disposition. The person making the removal shall deliver to the cemetery authority operating the cemetery from which the remains were removed, a true, full and complete copy of such record.

Cal Health & Saf Code § 7500

The law does not want dead bodies disturbed without “substantial reason.” Courts consider such as “substantial reason” as the “public interest, the conventions of common decency, the wish of the decedent, and the prohibitions of religious law.” In re Terra (1952, Cal App) 111 Cal App 2d 452, 244 P2d 921, 1952 Cal App LEXIS 1676.

A child who died 32 years in the past and then returns to life with DNA that matches the deceased child’s parents would be a “substantial reason” for a Court to order a body exhumed. Knowing the truth would be in the public interest for determining parenthood, child custody and whether the reanimated person was who they claimed to be.