A Veteran’s Day Note About My Grandfather

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November 11, 2013

Happy Veterans’ Day!

In honor of Veteran’s Day today I am writing a post about my grandfather, Grandpa Stan. He was a Merchant Marine during World War II and I knew that, but I never really understood what it meant. And just like many people of that generation, he never talked about what happened during his service during the war. So I never thought much about his service, even when my mom told me about a medal he received from some town in Russia while I was in college (typical self-absorbed college kid!).

Today I am rectifying that mistake – I’ve learned about the Merchant Marines and why my grandpa got a medal from a Russian town and I’m going to share that knowledge with all of you.

The United States Merchant Marine is responsible for operating marine vessels that transport goods and services. But during times of war, it can also operate as an auxiliary to the Navy, delivering troops and supplies for the military. During World War II, the Merchant Marines were vital to the Allies’ success – transporting the personnel, supplies, and equipment needed for the military effort. This key contribution was targeted by the enemy, however, and the Merchant Marines actually suffered a greater percentage of war-related deaths than any other U.S. service, with 1 in 26 mariners during World War II dying in the line of duty.

The mariners faced many deadly attacks, but one that was notoriously dangerous was known as the Murmansk Run. Murmansk, a Russian seaport located north of the Arctic Circle, was a key city for the Allies because its harbor didn’t freeze in the winter. So the Allies used this city to keep supplies running to the Russians, while the Germans used submarines and surface warships (along with bases in the north of occupied Norway) to try and stop the flow of supplies to the Russian front.

These convoys of vulnerable merchant marine ships were not only crucial to the Allies’ war efforts but also to the survival of the Russians under attack and blocked off by the Germans. And it was for this service that my grandpa received his Russian medal. He was one of the mariners that risked his life to deliver supplies (including salt pork, shoes, and tanks) to Murmansk in 1945. Grandpa Stan was the Executive Officer on the William Wheelright, part of a convoy that sailed out of New York and stopped in Scotland for refueling before heading north of Norway and to Murmansk, facing attacks by the Germans along that route. They landed in Murmansk just as President Roosevelt died and the Germans surrendered the same day they arrived back in Scotland.

My grandfather was in one of the last convoys to make the dangerous Murmansk Run. And forty years later, in 1985, the Russian Federated Republic awarded a bronze medal to those who had made an outstanding contribution to the Allies’ effort, including those who made the Murmansk Run. Grandpa Stan was invited to a ceremony in Russia but turned it down, asking them to mail the medal instead (he never liked to make a fuss over anything).

So, this Veteran’s Day, I’m proud to learn a little more about the risks taken – and sacrifices made – by the veterans among us. In honor of my grandfather and the many other men and women (both civilian and military) who have risked (or lost) their lives defending us, I want to say thank you. Your contribution and bravery are always remembered, but today we all take a moment to pause and reflect upon the heavy price you paid for the rest of us. And I’m glad I’ve learned a little more about my grandfather, although I wish I had learned this before he passed. I love you, Grandpa.

Andrea Gibson from Kroll Ontrack on eDiscovery.com Review

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Josh Gilliland

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November 11, 2013

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Andrea Gibson from Kroll Ontrack met with Josh Gilliland to demonstrate eDiscovery.com Review, discuss recent cases and geek out over

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Does Thor Working with the US Government Violate the Establishment Clause?

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Josh Gilliland

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November 9, 2013

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The First Amendment to the United States Constitution states, “Congress shall make no law respecting an establishment of religion,” United States Constitution, Amendment I, Clause 1.

What does this mean for a “alien” that historically was thought to be a god who conducts law enforcement activity or national defense? Would offended atheist or religious groups have a cause of action to sue to prohibit the US Government, SHIELD or the Avengers from working with Thor as a First Amendment violation? Would they even have standing to sue the Federal government?

The test whether the Establishment Clause has been violated is whether, “the government practice has the effect, intentionally or unintentionally, of communicating a message of government endorsement or disapproval of religion would there be a violation of the Establishment Clause.” Rosa-Ruiz v. Gonzalez-Galoffin, 2007 U.S. Dist. LEXIS 69905, at *10 (D.P.R. Sept. 20, 2007).

The “Lemon test” requires Courts to determine whether the challenged law or conduct has a secular purpose, whether its primary purpose is to advance or inhibit religion, and whether it creates an excessive entanglement with religion. Rosa-Ruiz, at *10-11.

Thor working with SHIELD or the Avengers (assuming they are state sponsored) is nothing like a courthouse with the 10 Commandments or Christmas decorations in a public park. You actually have a “person” with extraordinary powers. Would such partnerships for law enforcement or national defense amount to a state-endorsement of religion that violates the “Lemon Test”?

As to the first element, Thor fighting invading alien armies has the secular purpose of stopping a US city from being destroyed and the enslavement of the human race. The purpose of Thor’s actions is clearly defensive in nature for the protection of all of mankind, thus promoting a secular purpose.

Thor’s actions of protecting Midgard do not have a primary purpose of advancing or inhibiting religion. Thor demands no offerings from the US government, nor are temples being built for him. All US citizens still enjoy the freedom of religion. This is purely a strategic defensive relationship to ensure the safety of all of the Nine Worlds.

As to the final element, SHIELD, the Avengers or local police working with Thor do not pose an excessive entanglement with religion. There are no worship services taking place or the Secretary of Defense making sacrifices to appease the God of Thunder. If anything, this is a diplomatic relationship to combat mutual threats.

The US Government should be able to conduct law enforcement activities or national defense with Thor without violating the First Amendment. Any such partnerships are within the police powers of the state and do not endorse the view that Thor is a god, but a strategic ally in times of crisis.

Infectious Diseases on Agents of SHIELD

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Josh Gilliland

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November 8, 2013

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“FZZT” was one of the best Agents of SHIELD yet. The big legal issue presented was the legality of quarantining someone with an infectious disease that could cause a pandemic.

The Quarantine Zone

Agent Coulson had firemen and Simmons each put into quarantine over the course of the episode.

Case law going back over 100 years validates the practice of doing so to avoid a pandemic.

As United States Supreme Court Justice White said in 1902:

That from an early day the power of the States to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants has been recognized by Congress, is beyond question.

Compagnie Francaise De Navigation A Vapeur v. Louisiana State Bd. of Health, 186 U.S. 380, 387-388 (U.S. 1902).

However, there are limits.

One quarantine in San Francisco that was supposed to stop the spread of the bubonic plague covered 12 city blocks where 10,000 people lived. The area happened to be populated by Chinese-Americans. Jew Ho v. Williamson, 103 F. 10, 21-24 (C.C.D. Cal. 1900).

Circuit Judge William Morrow struck down the quarantine as “unreasonable, unjust, and oppressive” and in violation of the 14th Amendment to the United States Constitution. Jew Ho, at *26.

It must necessarily follow that, where so many have been quarantined, the danger of the spread of the disease would not diminish. The purpose of quarantine and health laws and regulations with respect to contagious and infections diseases is directed primarily to preventing the spread of such diseases among the inhabitants of localities. In this respect these laws and regulations come under the police power of the state, and may be enforced by quarantine and health officers, in the exercise of a large discretion, as circumstances may require. The more densely populated the community, the greater danger there is that the disease will spread, and hence the necessity for effectual methods of protection.

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It must necessarily follow that, if a large section or a large territory is quarantined, intercommunication of the people within that territory will rather tend to spread the disease than to restrict it. If you place 10,000 persons in one territory, and confine them there, as they have been in prisons and other places, the spread of disease, of course, becomes increased, and the danger of such spread of disease is increased, sometimes in an alarming degree, because it is the constant communication of people that are so restrained or imprisoned that causes the spread of the disease.

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The next most dangerous thing to do was to quarantine any considerable portion of the city, and not restrict intercommunication within the quarantined district.

Jew Ho, at *27, 35.

Jew Ho v. Williamson is a very good civil rights case that covers what is, and what is not, a proper exercise of police power in quarantining people to stop the spread of disease.

Agent Coulson’s actions in quarantining the firemen and Simmons were proper exercises of such police power.

The firemen total number of firemen quarantined was a dozen at most. This was done for not just their safety in being able to develop a cure for anyone infected, but to keep the disease from becoming a pandemic. This would meet the well-established reasons to quarantine a group of people.

Agent Coulson sealing Simmons in the science lab of the cargo bay would also have been a valid exercise of police power in quarantining someone. It was not done with “evil intent,” but because she was infected with an alien virus.

Agents of SHIELD has been a fun ride so far and continues to touch on solid legal issues. Let’s see what happens with the Thor 2 cross-over.

An Unearthly Child: A Lawyer’s Adventure on Doctor Who

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Josh Gilliland

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November 6, 2013

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I love Doctor Who. A large number of people have loved the show for 50 years. Just look how Western Civilization on Twitter slowed to a crawl for the announcement of Peter Capaldi as the next Doctor.

There is one thing people have forgotten about the show: An Unearthly Child begins with three separate legal issues.

Get Off My Lawn!

The first legal issue is Ian and Barbara forced their way onto the TARDIS.

They entered uninvited in a borderline home invasion.

Trespassing is the wrongful entry on the property of another person. Westlaw Black’s 9th Law Dictionary App.

Ian and Barbara did not have permission to enter the TARDIS, making them trespassers.

As such, the Doctor owed them no duty of care, but the Doctor’s following actions would not be a valid response to trespassing.

How to End Up on a Milk Carton

The second legal issue is the Doctor kidnapping Ian and Barbara back to the Stone Age.

Kidnapping at common law was “the crime of forcibly abducting a person from his or her own country and sending the person to another.” Westlaw Black’s 9th Law Dictionary App. Effectively, the crime was false imprisonment and taking the victim to another country. Id.

This also gives new meaning to the phrase “alien abduction.”

The Doctor started the TARDIS with Ian and Barbara locked onboard with the intent of taking them out of London. Going back to the Stone Age would certainly qualify as taking Ian and Barbara out of Great Britain.

No One Should Have a Charles Dickens Childhood

Now for the third legal issue: Ian and Barbara arguably stalked Susan.

Stalking is the following of another by stealth. Westlaw Black’s 9th Law Dictionary App.

Ian and Barbara waited for Susan at her known address, entered the junkyard and hid behind some objects when the Doctor entered the yard. These actions meet the elements of stalking.

However, since Ian and Barbara were teachers who were looking out for the well-being of their student, they would have a strong defense. They were concerned she was living in a junkyard. If only Harry Potter had teachers like that for the first decade of his life, he would not have been in a cardboard under the stairs with emotionally abusive guardians.

The Day of the Doctor

Doctor Who is an extremely beloved show. I am counting down to The Day of the Doctor. However, it is rather unearthly that the first episode touched on stalking a 15 year old girl, trespassing and kidnapping.

A Soldier’s Cowardice on Doctor Who Web of Fear

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Josh Gilliland

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November 2, 2013

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Doctor Who The Web of Fear is one of two recently long lost Doctor Who stories featuring the Second Doctor. All but one episode was recovered from the ashes of history.

The story is noteworthy because it was the introduction of Colonel (but future Brigadier) Alistair Gordon Lethbridge-Stewart.

The villain was the Great Intelligence, who used robotic Yeti that Professor Travers brought back to England from Tibet in the 1930s in the The Abominable Snowmen. This is the second appearance of the Great Intelligence, who would reappear to battle the Eleventh Doctor in the Snowmen, The Bells of Saint John and The Name of the Doctor.

Most of the story took place in the London Underground. The British Army (not UNIT) fought Yeti and a big white foaming lethal fungus spreading beneath the city controlled by the Great Intelligence.

One “soldier,” purely in the academic sense, was “Driver Evans.” Evans had the unique ability to stay alive, usually by avoiding anything dangerous. This included challenging Colonel Lethbridge-Stewart’s orders with personally less hazardous suggestions. He let others volunteer for dangerous assignments so he would not be in harm’s way. Evans even stood on a chair as a control sphere rolled by so he could have a higher “vantage point.” While Lethbridge-Stewart and the other soldiers were off fighting Yeti with small-arms, grenades and bazookas, Evans was safe and sound.

Evans conduct bordered on desertion and outright cowardice. How would a soldier be court-martialed for such conduct?

It is long stand policy in the US military’s Articles of War, with its British originals, that desertion and cowardice are serious offenses. Swaim v. United States, 28 Ct. Cl. 173, 233 (Ct. Cl. 1893). Moreover, Article of War 61 prescribes that “any officer who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service,” and Article 100, that “when an officer is dismissed from the service for cowardice or fraud, the sentence shall further direct that the crime, punishment, name and place of birth of the delinquent shall be published in the newspapers in and about the camp, and in the State from which the offender came, or where he usually resides.” In re Carter, 97 F. 496, at *498 (C.C.D.N.Y. 1899) and Carter v. McClaughry, 183 U.S. 365, 395 (U.S. 1902)

Getting thrown out of the military for cowardice in the late 19th and early 20th Centuries included full on public-coward-shaming.

Circuit Judge Field summed up the 19th Century view as “desertion is the highest, and with cowardice, the basest of offenses which can be committed by men in the naval service…” Montgomery v. Bevans, 17 F. Cas. 628, 634 (C.C.D. Cal. 1871). For the sake of argument, Judge Field would likely extend that belief to the Army.

So, what do we do about Driver Evans? British Soldiers and members of UNIT seemed to have about as likely a chance to survive on Doctor Who as a Red Shirt on Star Trek.

The fact all the other soldiers get killed EXPECT Evans and the Colonel Lethbridge-Stewart highlighted this point.

Still, that does not excuse avoiding risk or being willing to sell-out others for his own safety.

Even the Doctor jumped on the back of a Yeti in a failed attempt to save a soldier.

Men in bow ties are willing to take such heroic actions.

The fact that Evans’ conduct came close to desertion while discussing escaping with Jamie and leaving the others behind, to avoiding hazardous missions, to an outright willingness to turn the Doctor over to the Great Intelligence, demonstrated cowardice numerous times. Throwing him out of the Army would be a good idea after a court-martial. Those on the front lines need to be willing to actually do their job in defending their country, not seeking self-preservation at the cost of others.

Do Halloween Decorations Establish a Religion?

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Josh Gilliland

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October 31, 2013

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Short answer: No.

A government employee sued the Federal government because of Halloween decorations. The Plaintiff was a Pentecostal Christian and found decorations of witches offensive, because the decorations celebrated Paganism. Rosa-Ruiz v. Gonzalez-Galoffin, 2007 U.S. Dist. LEXIS 69905, at *3 (D.P.R. Sept. 20, 2007) The Plaintiff complained that the decorations in a government building violated the Establishment Clause of the First Amendment of the United States Constitution.

The First Amendment states, “Congress shall make no law respecting an establishment of religion,” United States Constitution, Amendment I, Clause 1. Rosa-Ruiz, at *9-10.

The test whether the Establishment Clause has been violated is whether, “the government practice has the effect, intentionally or unintentionally, of communicating a message of government endorsement or disapproval of religion would there be a violation of the Establishment Clause.” Rosa-Ruiz, *10.

The “Lemon test” requires Courts to determine whether the challenged law or conduct has a secular purpose, whether its primary purpose is to advance or inhibit religion, and whether it creates an excessive entanglement with religion. Rosa-Ruiz, at *10-11.

The Court held that the display of cats, goblins or a screeching mat did not convey the endorsement of a religion. The Court stated:

Such decorations, like Halloween costumes and parties, are linked to the seasonal celebration of a fun-loving tradition in which children are particularly involved in classrooms, neighborhood gatherings and trick or treating. Halloween decorations, like valentines, Easter bunnies, and egg hunts are all secular displays and activities that neither convey religious messages nor constitute religious symbols.

Halloween lost its religious and superstitious overtones long ago. It has become instead a commercial holiday enjoyed by communities in its many forms of entertainment.

The Plaintiff’s claim that the decorations violated the Establishment Clause failed, because there was nothing else to support it. Rosa-Ruiz, at *12.

Granted, if the Secretary of Health & Human Services suddenly demands tribute of the first born of each household in order for health insurance websites to work, we would have multiple legal challenges beyond the First Amendment.

Moral of the story: Having decorations or giving out candy to kids on Halloween does not make you a Pagan/Devil worshiper/foot soldier in the Army of Darkness. It might make you an enabler or tooth decay, so tell Trick or Treaters to brush their teeth.