The Bad Batch: Kaminoans and the Clone Contracts

May 7, 2021

In the first episode of The Bad Batch, Admiral Tarkin implies that Palpatine is reconsidering the Kaminoan contracts, which “stipulate the continued production” of a clone army, according to Lama Su, the Kamino Prime Minister. Tarkin brushes aside the enforceability of those prior agreements, observing with his characteristic menace that the Kaminoans’ contracts were “with the Republic, which no longer exists.”

Obviously, a fascist autocracy is not governed by the rule of law, so the Emperor can probably get away with breaching any obligations he wants to by virtue of his overwhelming firepower. But the Kaminoans’ distress raises the interesting real-world legal problems of a party to a contract when the other party to the agreement ceases to exist, leaving behind unfulfilled expectations.

Death-defying Contracts

To begin with, a person’s death generally does not relieve the decedent of their contractual obligations. Thanks to sixteenth-century English contract principles, which endure in modern U.S. law, the executor of the decedent’s estate or another successor ordinarily must make good on the decedent’s obligations. Hyde v. Windsor, 78 Eng. Rep. 798, 798 (Q.B. 1597) (holding a decedent’s contractual obligation survives “unless [the promise was] to be performed by the person of the testator . . . [and the executor] cannot perform”). In other words, courts have enforced so-called “impersonal” contracts, which do not necessarily require the decedent to perform the obligation, after the death of a contracting party. Thus, a decedent’s executor will use the estate’s assets to make good on promises involving things like purchases of property, shareholder agreements, and guarantee contracts.

There is an exception to this general rule for personal services contracts, which require the decedent specifically to perform the contract, and which are discharged if one party dies. For example, suppose you commissioned your favorite artist to paint a family portrait, but the artist regrettably passed away before starting the painting. A court would not enforce that agreement since that contract contemplated the unique skills and abilities of the artist, who no longer exists to perform the obligation. (And anyway, would you really want a family portrait that was painted by the artist’s executor?)

The analogy of Palpatine’s Empire as some sort of legal successor to the Republic probably does not hold much water. The Empire would not simply assume the obligations of the Republic to the extent those obligations were inconsistent with Palpatine’s designs. As mentioned previously, no rule of law plus overwhelming firepower generally means that all bets are off.

Commercial Transactions

The agreements between the Republic and the Kaminoans may alternatively be described as a commercial contract. Although commercial entities are not ordinarily overthrown by an evil dark lord of the Sith, a business may simply become insolvent and “die” in the sense that it can no longer perform its end of a commercial transaction. Generally, parties to a commercial contract anticipate and manage, to the best of their lawyers’ abilities, the risk of a counterparty’s inability to perform the contractual obligations, but this is where federal bankruptcy law comes in.

Once an entity becomes insolvent and files for bankruptcy protection, the bankruptcy court assumes control over all of the entity’s property and contractual obligations. The court then determines which contracts can and will be honored, rejected, or otherwise terminated. And in particular, the Bankruptcy Code renders unenforceable common clauses in commercial contracts that purport to terminate contractual obligations upon the insolvency or bankruptcy of either party, known as ipso facto clauses. 11 U.S.C. § 365(e)(1)(A) (a creditor’s contract may not be terminated by a provision that is “conditioned on the insolvency or financial condition of the debtor”); 11 U.S.C. § 541(a) & (c) (defining bankruptcy estate to include any property in which the debtor has an interest notwithstanding “any provision in an agreement . . . that is conditioned on the insolvency or financial condition of the debtor”).

There are other ways to structure transactions to mitigate a vendor’s risk and the uncertainty of bankruptcy proceedings, such as with letters of credit or guarantees. But otherwise, the holder of an unfulfilled (or executory) contract at the time an entity files for bankruptcy becomes an unsecured creditor whose claims go into the bankruptcy estate for the trustee and the court to sort out. While the Kaminoans have slim chances of having their prior contracts honored by the evil Empire, at least they are not unsecured creditors in galactic bankruptcy proceedings.

Government Contracts

Lastly, the Kaminoans’ situation highlights a nettlesome problem when contracting with government entities, which may completely change from one election to the next. Specifically, in the real world, vendors who contract with government entities are exposed to a risk that a subsequent change in administrations or policy will undermine the government’s obligation. For example, suppose your company produces widgets that the more liberal party likes, and while the liberal party controls the legislature, it contracts with your company to produce a bunch of those widgets. Sometime later, the more conservative party wins legislative control in an election and the incumbent legislators decide that they do not want all of your liberal widgets. May the conservative government repudiate the contract that the liberal legislature signed?

The U.S. Supreme Court has held that the federal government is liable for breach of contract if the government reneges on previous promises, notwithstanding the government’s authority to alter previous regulatory positions. United States v. Winstar Corp., 518 U.S. 839, 910 (1996) (holding United States liable for breach of contract where congressional legislation had effect of breaching prior agreements with financial institutions regarding accounting methods).

That said, a state government contract is not enforceable to the extent that the contract limits the sovereign authority of succeeding state legislatures to change policy over time. U.S. Trust Co. of New York v. New Jersey, 431 U.S. 1, 23 (“[T]he Contract Clause does not require a State to adhere to a contract that surrenders an essential attribute of its sovereignty.”); see Maryland State Tchrs. Ass’n, Inc. v. Hughes, 594 F. Supp. 1353, 1362 (D. Md. 1984) (holding that contract setting compensation of state employees was invalid as it improperly bound subsequent legislatures with respect to core legislative authority). However, local governments may be bound to honor proprietary or business contracts signed by previous administrations even if the contract requires enforcement of a regulatory scheme that the incumbent administration does not like. E.g. Town of Graham v. Karpark Corp., 194 F.2d 616, 619 (4th Cir. 1952) (municipality’s contract with parking meter company enforceable since government contracts relating to government’s proprietary or business powers are binding “even though they extend beyond the term of office of those entering into them”).

These nuanced distinctions are difficult to navigate, but they demonstrate the important ways that a democratic government tries to predictably and rationally regulate its contractual obligations with private parties. This scheme stands in stark contrast to the lamentable situation of the Kaminoans, who are entirely at the mercy of an evil tyrant’s caprice. In any event, the question of whether a contractual obligation is enforceable across a peaceful transition of power in a democracy has little bearing on a situation where an autocratic regime entirely overthrows a democracy. A transactional advocate for the Kaminoans will have to be very strong in the Force to overcome that kind of disruption to the client’s contractual expectations.

Analysis of The Patch Act on The Falcon and the Winter Soldier

Josh Gilliland

April 22, 2021

Forcibly removing people from their homes never ends well. The Falcon and the Winter Soldier episode 5, “Truth,” had the “Global Repatriation Council” debate the “Patch Act,” which would return people back to their countries of origin in order to reestablish borders. There is a lot wrong with it, from both a storytelling perspective and legally.

The premise of the fictional Global Repatriation Council is to help those who had “vanished” after Thanos’s Snap to return to their lives. Spider-Man Far from Home referenced this challenge, where Aunt May reappeared in her apartment to find a new family living there and five years had passed. Being the super aunt she is, May organized a fundraiser with the friendly neighborhood Spider-Man to help those who had returned.

Falcon and the Winter Soldier have turned this societal challenge on its head, with those who survived the Snap being forced out of their homes to make way for the returned. Legally that makes zero sense. It means probate laws were ignored for five years. It is one thing for those who “returned” to be in camps in order to rebuild their lives, it is another to toss people on the street who lived someplace for years.

The Global Repatriation Council appears similar to the United Nations, expect it exists for the specific purpose of helping people reset, restore, and rebuild. Such an international organization would require a charter and exist by treaty.

A US Senator represented the United States at the GRC meeting. That’s just wrong. No Senators go to the United Nations to represent the country; that is the job of an ambassador, appointed by the President, and confirmed by the Senate. Moreover, a Senator bragging about the ability to send US Troops to remove human beings from cities is horrific on multiple levels, starting with the fact the PRESIDENT is the Commander in Chief of the military. No Senator can do a damn thing to issue an order to the military, short of a subpoena to appear at a committee hearing. Senators do not deploy troops.

The GRC debating the Patch Act is further problematic, because a vote by an international organization does not automatically become a law. Flashing back to School House Rock, any treaty voted on by the GRC would still need to be ratified by the US Senate. Even then, there likely would need to be enabling legislation to enforce the treaty.

This should go without saying, but the United States cannot enact a treaty that would violate the Constitution. For example, say the UN voted on a treaty to strip voting rights of all women. It is gender-based discrimination that violates the 19^th Amendment to the Constitution. That would not fly.

The Patch Act was described as the military removing people from different countries and returning them to their country of origin. This is the stuff of fascism, with the military removing people from a country without due process of law. While immigration is exclusively Federal jurisdiction, anyone in the United States is protected by the Constitution and cannot be denied Due Process of law. Soldiers removing people from their homes and placing them in trains, planes, or trucks, lacks any form of Due Process. It also raises the issue of the military being used for law enforcement, which is prohibited under the law.

The United States Congress needs to be alerted within 48 hours of US troops being placed in harm’s way. The army sent out to different countries to remove human beings and ship them to other countries reeks of the Indian Removal Act. No member of Congress should think, “YES, this is what our military is meant to do” and sign a check for a new trail of tears.

As stated before, none of this makes sense from a storytelling perspective. The world went on living as best it could after 50% of humanity disappeared. The very idea that the “vanished” have displaced survivors is opposite of the truth.

You Cannot Escape the Long Arm of the Law: How Gendo, Cohorts, and U.N. Officials Will Be Punished

Gage Dabin

April 19, 2021

Quick Refresher

In my last post, I discussed how Gendo Ikari (Gendo), Misato Katsuragi (Misato) and Ritsuko Akagi (Ritsuko) and certain U.N. officials committed war crimes (collectively referred as “war criminals”) – enlisting and requiring children to fight in an international armed conflict. Their actions violated peremptory norms and multiple treaties including the Geneva Conventions and the Rome Statute. With that being established, the next issue is accountability. For this article, Gendo, Misato, and Ritsuko are citizens of Neo-Japan, and the U.N. officials are citizens of Switzerland as it has a headquarters in Geneva and had command authority over Germany in the series.

Basis For The Reach

Before the international legal system can hold people accountable, it first requires the specific states where the war crimes took place or where the perpetrators are from to try and resolve the issue with its domestic legal system. These requirements are embedded in the international treaties that those states ratified and therefore they are bound to their processes. This is an important component of the domestic, international law relationship. The international tribunals do not want to supersede a state’s sovereignty, but in some cases when a state consciously fails to uphold both the treaty obligations and customary international law then the tribunals will assert their jurisdiction. The war criminals can be tried by the International Criminal Court (ICC) and by domestic courts via the Geneva Conventions.

Geneva Convention

The war criminals clearly violated the Geneva Convention. For purposes of this argument, Neo-Japan and Switzerland remain to have ratified all the Geneva Conventions and Additional Protocols – Japan still hasn’t ratified Additional Protocol III. This means the states are bound by the responsibilities laid out within them for breaches of international law.

In Article 50(2) of the Fourth Geneva Convention (“GCIV”), it held that occupying powers were not to enlist children “in formations or organizations subordinate to it.” Pertaining to international armed conflicts (IAC) – Additional Protocol I (“AP I”), Article 77(2) states that “parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces.” Under Art. 147 of GCIV it is considered a grave breach to compel a protected person to serve in in the forces of a hostile power. Further, Art 148 of GCIV holds that no High Contracting Party shall be allowed to absolve itself of liability for any breaches incurred. GCIV doesn’t stipulate the specific forum that the grave breach inquiry has to start in; rather, Art. 149 states that interested parties need to decide the form of inquiry and the umpire to conduct the process. This is a highly dynamic approach that gives latitude to the reporting state and alleged violating state.

The states of Neo-Japan and Switzerland cannot absolve themselves of the grave breaches they committed when they required children to fight the Angels. Because GCIV does not specifically designate that the forum be domestic first, the war criminals could be given over to international tribunals. However, there exists a reluctance for the states to give up their authority to the international community to try individuals like this. This means it would be more likely that each state would individually charge their respective citizens with their domestic statutes for the breaches. Concretely, Neo-Japan would charge Gendo and his cohorts under its laws. Switzerland would do the same for the U.N. officials. Although disparate sentences may be created, this is a means of accountability. However, there are other avenues.

ICC approach

The war criminals violated the Rome Statute triggering the possibility of the ICC having jurisdiction over their actions. Echoing GCIV and AP I, Article 8(2)(b)(xxvi) of the Rome Statute states that if a state enlists children under the age of fifteen into armed forces or groups that action constitutes a war crime in IACs. Before the ICC can activate its jurisdiction two prerequisites need to be satisfied: first, the state needs to have ratified the Rome Statute; and second, the ICC has to determine that the state failed to properly prosecute those who committed the war crimes. The first prerequisite is straightforward and can be dealt with quickly – all states where the war criminals are from have ratified the Rome Statute and accept the ICC’s jurisdictional capabilities. However, the second prerequisite is where the international community may be hindered.

The Rome Statute allows for the ICC to have jurisdiction over war crime punishments if states where the criminals reside or where the events took place fail to effectively prosecute. This is referred to as the principle of complementarity and may be the most important part of the Rome Statute. Understanding the nuances of complementarity is beyond the scope of this piece, but there are breakdowns to help tease out the applications. What we really have to consider is the admissibility of the case before the ICC. Under Art. 17 of the Rome Statute, it lays out the jurisdictional requirements: is the state currently dealing with the case, did the state investigate the same case and did it not prosecute, or has the same case been prosecuted at the state level. The second jurisdictional action is two part: did the state investigate the same case AND did it choose not to prosecute – if the answer to one is no then the ICC can come forward. What makes this difficult is that even if the ICC takes the case, there exists a small success rate in holding parties accountable.

Collectively, the war criminals may not be punished by the ICC. As a court of “last resort” the ICC is restrained from acting until the states themselves finish investigating, and/or prosecute the individuals. This is designed to respect the sovereignty of the states but also to promote legal efficiency so that the ICC doesn’t hear every case. Since the states are members of the ICC it is possible to be brought before the tribunal, but Neo-Japan and Switzerland are more than likely to handle the punishments themselves. They would prosecute the citizens and handle the case in such a way as to prevent the Art. 17 jurisdictional triggers from activating. Handling the war criminals internally prevents continued international embarrassment and would allow for quicker results than what the ICC typically is able to produce. In the end, although they recognize and support the Rome Statute and the ICC, they wouldn’t let a supernational tribunal decide the fate of their citizens.

Conclusion

Any way the cake is sliced we will see the parties be held responsible for their violations of international law. The violations were blatant, the violations were repeated, and the ramifications upon the children constantly disregarded. The states will likely hold individual trials and will be publicized internationally to show how they are enforcing their commitments to the treaty obligations. With the state’s prosecuting the cases it prevents the ICC from intervening with the affairs. This enshrines sovereignty and reinforces the authority of the state. No matter how just they thought their cause to be, the war criminals cannot escape the long arm of the law. At the end of the day, children are not meant to be vehicles for war – they are to remain just that, children.

Was Hayley Travis Negligent in Pacific Rim The Black?

Josh Gilliland

April 8, 2021

In Pacific Rim The Black, Hayley Travis, a minor living in a community of children for 5 years, found an abandoned Jaeger, activated it, and in a series of events, the Kaiju known as Copperhead killed Hayley’s entire community. Hayley blamed herself for the incident.

Is Hayley legally correct in considering herself the cause of her friends’ deaths?

Drifting with Negligence

The question to determine Hayley’s responsibility for the deaths of others is whether she was negligent. Negligence has its origins in Common Law and has been codified in code sections across the planet. California jury instructions define Negligence as follows:

Negligence is the failure to use reasonable care to prevent harm to oneself or to others.

A person can be negligent by acting or by failing to act. A person is negligent if that person does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation.

CACI No. 401. Basic Standard of Care

Since Hayley is a minor, she is not held to the same standard as an adult. The jury instructions state that a “child is required to use the amount of care that a reasonably careful child of the same age, intelligence, knowledge, and experience would use in that same situation.” CACI No. 402. Standard of Care for Minors.

Hayley’s actions are critical in determining whether she was negligent. Below are the relevant facts of Hayley’s actions after finding the Jaeger designated Atlas Destroyer:

Introduced herself to the Jaeger’s AI “Loa”;

Skipped through the virtual training that required 6 months by saying “next”;

Loa informed Hayley the walk cycle training would start once her copilot arrived;

Hayley’s brother Taylor discovered her and the two argued;

Loa announced, “Commencing Walk Cycle”;

Loa started opening the hangar doors and triggered alarms;

Copperhead was attracted to Shadow Basin by the activity.

Hayley’s Standard of Care

Let’s face it, kids since the 1950s have been dreaming of finding a giant robot. The issue for Hayley after that dream came true is, did she use the amount of care that a reasonably careful child of the same age, intelligence, knowledge, and experience would use in that same situation?

There is a Jaeger size exception to a child’s standard of care and that is whether they are engaged in an adult activity, such as driving. Prichard v. Veterans Cab Co. 63 Cal.2d 727, 732 (1965).

There is a strong argument that taking a Jaeger in combat is an adult activity. However, as Taylor had been a training cadet while a minor, there appears to be a grey zone with Jaeger training beginning with minors. As Hayley was trying to learn how to use Atlas Destroyer, it is not unreasonable to hold her to the reduced standard of care for minors.

Regardless of the standard that applies, Hayley was on actual notice the walk cycle training would start once her copilot arrived. Hayley had no idea what that entailed, because she skipped through the entire pilot training course catalog. If we compare taking a Jaeger for a walk to taking a car for a spin, Hayley did not bother to look in the owner’s manual for the instructions. This on its face seems unreasonable.

Was Hayley the Cause of Copperhead Discovering Shadow Basin?

Causation is the legal concept that connects a person’s actions to the harm that follows those actions. California follows the “substantial factor” test, which states:

A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.

CACI No.430.Causation: Substantial Factor

Should Hayley have considered that engaging Atlas Destroyer’s walk cycle would have been a substantial factor in attracting a Kaiju to Shadow Basin? Stated more plainly, would taking a giant robot for a walk attract a Kaiju?

The answer to this question undoubtedly is YES. Hayley witnessed a Kaiju attack their parents’ Jaeger five years earlier. The community of child had purposively laid low to avoid being discovered by Kaiju. Starting a giant robot without any regard for the risk, whether as an adult of child, was wildly negligent.

There are issues such as the fact Hayley could skip through training simply by saying next, or the fact there was not a confirmation command from Loa that can mitigate Hayley’s actions, but there is no way around the fact that her actions were a substantial factor in getting her friends killed. That said, suing a teenager who is living in a post-apocalyptic wasteland is the definition of “judgment proof.” Sue the company that made a giant robot without a child safety lock.

You had the NERV to fight a war with children

Gage Dabin

April 3, 2021

Evangelion In A Nutshell

Neon Genesis: Evangelion takes place in 2015 in Tokyo-3 – fifteen years after a global cataclysmic event, the Second Impact, destroyed much of Earth. As Tokyo-3 recovers it becomes besieged by alien creatures dubbed “Angels.” To fight the Angels and protect humanity, the U.N. sanctioned the creation of a paramilitary force: NERV. NERV, led by Gendo Ikari (Gendo), was successful in preventing humanity’s annihilation through its deployment of massive piloted machines called EVAs that defeated the Angels.

Uncovering The Legal Issues

While protecting humanity, he along with his NERV cohorts i.e. Misato Katsuragi (Misato) and Ritsuko Akagi (Ritsuko) violated multiple international human rights laws. Additionally, U.N. officials violated international law because they too participated in and sanctioned the NERV operations that resulted in the violations. How exactly then did NERV and the U.N. violate international human rights laws you ask? They recruited and deployed children to fight in war.

NERV’s cadre of EVA pilots are only children. They are Shinji Ikari (Shinji), Rei Ayanami (Rei), and Asuka Langley Soryu (Asuka) who are each fourteen years old throughout the show. Their age plays a critical role as they are legally minors. Legal systems endeavor to protect minors at all costs from the horrors of war – especially preventing their recruitment into active conflicts as child soldiers.

Breaking Down The Law

This universal principle, which is considered customary international law, was originally codified in Article 50(2) of the Fourth Geneva Convention in 1949, where it held that occupying powers were not to enlist children “in formations or organizations subordinate to it.” Pertaining to international armed conflicts (IAC) – Additional Protocol I, Article 77(2) states that “parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces.” The International Criminal Court puts its foot down in Article 8(2)(b)(xxvi) where it states that enlisting children under the age of fifteen into armed forces or groups constitutes a war crime in IACs. The aforementioned articles are but a tip of the iceberg when it comes to international legal condemnation of child soldiers. Thus, the law is resolute in holding that children under fifteen are not to be found in war zones and are not to be recruited by armed forces or groups in an active conflict. Gendo and his cohorts and the U.N. violated both of these.

NERV and the U.N. are engaged in an IAC against the Angels. Under Common Article 2 of the Geneva Conventions, IAC is defined when two or more sovereign states engage in armed conflict or have a declared war, even if one of the states doesn’t recognize the declaration of war. Although the Angels come from space, the closest framework we can operate in is IAC because the Angels represent a fighting force from a foreign entity which we can treat as a sovereign state and Earth has engaged in armed conflict via deployment of EVAs and U.N. forces. This permits the Rome Statute and Geneva Conventions to become applicable to determine war crime violations.

Proof of Violations

NERV and the U.N. didn’t take feasible precautions to prevent bringing children into their organization because they actively recruited and deployed children for their program’s needs. For example, in the very first episode, Gendo had Misato pick up Shinji and bring him to NERV. As Shinji’s father, Gendo knew his son’s age to be fourteen yet still had him pilot EVA-01 and fight the Angels. The U.N. knew Asuka was fourteen yet escorted her from Germany on their aircraft carrier to pilot EVA-02 and fight the Sixth Angel – Gaghliel. Gendo and his cohorts, and the U.N. repeatedly deployed Shinji, Asuka, and Rei to combat zones throughout the series – ignoring their serious psychological trauma from war – to beat the Angels. They intentionally violated international law with each recruitment and forced deployment of the EVAs.

They Are War Criminals

William T. Sherman once said that “war is hell.” Hell should not be something that children should be exposed to nor required to participate in. That is why we codified and enshrined via preemptory norms the laws prohibiting children from being enlisted and required to fight as child soldiers. Shinji, Asuka, and Rei were utilized as a means to an end by NERV and the U.N. Although they beat the Angels – Shinji, Asuka, and Rei lost what made them children and gained their own demons. Therefore, under international law, Gendo, Ritsuko, Misato and U.N. leadership are war criminals for actively enlisting and forcing children to fight the Angels. Now, we have to ask…how can they be held accountable?

Defending the Scarlet Witch

Sylvia La Rosa

April 2, 2021

After finishing WandaVision, I’m starting to think Wanda (aka The Scarlett Witch) is going to need a defense attorney and like the gunner that I am, my hand is raised and waving to volunteer for that position. Among some of her crimes the most prevalent are kidnapping, false imprisonment, and torture. How would I defend her though if given such an honorable opportunity? Reality check: spoilers ahead so if you have not finished watching the series stop reading now. If you’re still reading, I know MCU doesn’t exactly have the same penal code as California but let’s pretend she was being prosecuted for her crimes here in California.

What possible defenses could Wanda have? I mean she kidnapped the residents of West View, kept them falsely imprisoned against their will, and tortured them using mind control but maybe she has a very valid defense… not guilty by reason of insanity? Maybe I can have a doctor evaluate her and say she isn’t competent to stand trial? Maybe I can argue she didn’t complete the crimes based on the elements of the offenses? Well, worth a shot I guess so here goes nothing. I’ll be using the CA Penal Code and pretending it applies to MCU crimes (assuming superheroes in the MCU can commit and be prosecuted for crimes…).

First, we need to look at the elements of each offense so let’s start with the crime of kidnapping the residents of West View. Kidnapping is a violation of PC 207(a). In order to be prosecuted for this offense, the prosecutor must show beyond a reasonable doubt, that my client Wanda (1) took, held or detained another person by using force or instilling reasonable fear; (2) using that force or fear, she moved the person or made the person move a substantial distance and (3) the other person did not consent to the movement.

This one should be easier to defend against than the other two offenses. For starters, under the first element, Wanda did not take or hold any resident of West View by use of any force or reasonable fear, but I will concede, she did detain them. In order for this to work though, the prosecution would have to convince a jury that the mind control Wanda had the residents under classifies as a means of force or reasonable fear. Not everyone will agree but the mind control Wanda exercised over the residents by keeping them in the hex as different characters with all new personalities was not use of any means of force but there might be a slight convincing argument that it did instill reasonable fear in some of the residents.

When Vision woke up his coworker Norm from the mind control in Episode 2, Norm freaked out showing us he was in obvious fear and with reason. How would you react if all of a sudden you were woken up to find yourself in a different decade, with no color, and no clue where your kids are (because let’s not forget there were no kids in the town at the start). However, when other characters were woken up towards the end of the season like Herb and Dottie, they did not react with the same fear. In fact, they were quite calm. I would even argue that some of the residents knew exactly what was happening and were active participants. And no, I’m not talking about Agnes (don’t get me started on that evil witch). For example, Herb on the Halloween episode even asked Wanda if she wanted a do over or if everything in the scene was to her liking meaning he was an active participant and very aware of what was happening. Granted the same cannot be said for all of the residents but if prosecution wants to argue Wanda had all the residents under her control by using mind control to instill in them reasonable fear, then this would obviously fail because that blanket argument wouldn’t work across the board to all the residents.

As for the second element, using the force or fear to move the person or make the person move a substantial distance, that fails easily. Wanda didn’t move anyone. In fact, the residents of West View were o so very lucky to be able to stay in their homes and in their towns. No one needed to move anywhere and could continue to enjoy the luxuries of their beautifully remodeled town West View, New Jersey. Prosecutor will also fail at arguing Wanda made those residents move because she didn’t make them move anywhere. She actually did the opposite and allowed them to stay in their beautiful town. The beauty about prosecution failing to meet this element of the charge, they fail at proving this entire charge of kidnapping. BOOM! One element defended against, means Wanda can’t be guilty of kidnapping unless prosecution can argue beyond a reasonable doubt that EVERY element of the offense was committed. One charge defeated; on to the next.

I would argue the third element but let’s not waste our breath when element #2 failed. Besides, if residents are asking Wanda if she likes the scene or needs something changed, then they are active participants and if they are active participants one could argue they consented. I digress though. Let’s move on and confidently defend against false imprisonment.

False imprisonment is a violation of Penal Code Section 236/237. In order to be found guilty of this offense, prosecution must prove beyond a reasonable doubt that Wanda (1) intentionally restrained or confined or detained someone by violence or menace and (2) she made the other person stay or go somewhere against that person’s will. For starters, let me remind everyone that sometimes a defense attorney must concede to certain charges when there is no viable and reasonable defense. I mean other than NGRI or telling the court I am declaring a doubt on my client (1368), I highly doubt this count is defendable. Wanda definitely detained the residents of West View inside the hex and she made them stay there against their will. After all, no one left the hex without Wanda’s permission or unless Wanda threw them out like she did Monica Robinson. Sometimes a defense attorney’s best move in a jury trial is to concede to one count if it means they’ll be able to fight the other more egregious counts to a jury with more reasonable arguments. Save face per say.

Torture under the CA Penal Code is violation of PC 206. Wanda won’t be found guilty of this offense unless the prosecution can prove beyond a reasonable doubt that she inflicted great bodily injury (GBI) on someone else AND when inflicting the injury, she intended to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion or for any sadistic purpose.

Well now. This should be fun.

Great bodily injury?? The only person, if you could call her a person, that suffered any great bodily injury at the hands of Wanda or Scarlett Witch, is Agnes or better said, Agatha, in the final episode. Last I checked, none of the residents of West View were injured even at the hands of Wanda. Unless prosecution is naming Agatha Harkness as the victim of a crime or pretend Pietro, then none of the residents of West View would meet these criteria. I guess prosecution could try and argue that the mind control is GBI (which would be a stretch) but not even this would work because GBI is legally defined as significant or substantial physical injury, greater than minor or moderate harm. Unless I missed an episode, from what I saw, the residents of West View were actually very well protected and taken care of from any harm. It was the perfect little (albeit twisted) white picket fence town.

As we’ve already read earlier in this article, when the prosecution fails to meet one element of the offense, they fail to prove the charge in its entirety. But for the fun of it lets briefly argue the second element. Did Wanda intend to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion or for any sadistic purpose? One could argue that it is pretty sadistic to live out your dreams with a dead Vision recreated from your powers and if that is the reason she caused the residents of West View to suffer then maybe so this element is met. However, I would argue she did not intend to cause cruel or extreme pain and suffering. She wasn’t even in the right frame of mind to have the specific intent for that part of the crime. She made it clear that she didn’t mean to hurt anyone in the final episode when the residents had her surrounded meaning she lacked any intent to cause anyone suffering. All in all, I’m not sure prosecution would be able to prove this charge at all in light of the fact that the only person that sustained anything remotely close to GBI is the villain, Agatha Harkness, and let’s be real she deserved that… I mean, that was self-defense and defense of others by Wanda. Not guilty on torture.

Overall, in order to defeat all 3 charges, I would have a doctor evaluate Wanda to see if she even had the requisite state of mind to commit any of the charged offenses. The fact that she was burdened by grief and anger throughout the entire series, makes any reasonable person question whether she was even sane during the commission of these offenses. The best defense to all of these charges would be not guilty by reason of insanity (NGRI). This is the strongest argument because the McNaughten Rule would apply. This rule basically boils down to the defendant did not understand the nature of their criminal act or did not understand what she was doing was morally wrong. Wanda made it very clear throughout the series that she didn’t realize what was happening and this can be seen in the various scenes where she seems dazed and confused about what is happening.

In the 3 last episodes, Agatha Harkness needs to remind Wanda of everything that has been going on that led to the creation of this West View that exists only in the hex. It’s almost as though through those entire episodes Wanda refuses to remember or doesn’t remember what is happening and why. It isn’t until the final culmination when Wanda is surrounded by all the residents of West View who are no longer under her mind control, that she realizes what she’s done, the harm she caused, the people she’s hurt and the extent to which she took this. I’m no doctor, but I have a feeling that this would be the strongest defense to all of these allegations because I firmly believe that Wanda didn’t understand the nature of her criminal act until after the fact, but never as these events were happening. This defense would save her.

Ultimately, would anyone really prosecute a superhero, nonetheless, an Avenger or do the ends justify the means when it comes to their actions? It definitely is interesting to consider and defending acts like these are very difficult. I think for now, I’ll stick to my prosecution background and leave the defending to the real defense attorneys. Until next time…

On the Basis of XB

Josh Gilliland

March 23, 2021

Star Trek Picard introduced the concept of “XBs” (for Ex-Borg) who were the “most despised people” in the galaxy. Given the Borg Collective is comparable to Soviet Communism forcefully assimilating all in their path for the “collective” good, it is easy to see why there would be a bias against XBs. However, like those who suffered under the heel of Soviet oppression, XB’s were victims of Borg totalitarianism.

Given the prospective discrimination against XBs, what are the possible legal protections for them?

Prohibition Against Racial Discrimination

If XBs are considered a race, the 14^th Amendment prohibition on racial discrimination is a means of protecting the rights of Reclaimed Borg.

Section 1 to the 14^th Amendment to the US Constitution prohibits states from depriving individuals of life, liberty, and property, without due process of law and equal protect of the law. A universe of civil rights laws have been enacted to prohibit racial discrimination, such as the ability to enter contracts under 42 U.S.C. § 1981.

The issue with XBs is that the Borg assimilated thousands of species. Any XB is still a member of their original species, just that the Borg assimilated them. This would make discrimination against someone who is an XB is not because of race, but because they were assimilated. For example, a Vulcan who was assimilated is still a Vulcan. The XB does not lose the fact they are a member of their species. This would move discrimination out of a racial basis and into the fact they are survivors of being members of the Borg.

Prohibition Against Discrimination on the Basis of a Disability

The prohibition against discriminating against individuals with disabilities is a stronger means to protect XBs. The Americans with Disabilities Act (ADA) was enacted because Congress identified a history of irrational employment discrimination where society isolated and segregate individuals with disabilities. Board of Trustees of Univ. of Alabama v Garrett, 531 U.S. 356 (2001), citing 42 U.S.C. 12101(a)(2).

The ADA states that no “entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112. A “Qualified individual” is someone who, with or without reasonable accommodation, “can perform the essential functions of the employment position that such individual holds or desires. ” 42 U.S.C. § 12111(8).

A “disability” is defined as a physical or mental impairment that substantially limits one of more major life activities. 42 U.S.C. § 12102(1)(A). “Major life activities” can include any of the following, but are not an exhaustive list: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. 42 U.S.C. § 12102(2)(A). Major life activities also include bodily functions, such as normal cell growth, neurological, and other bodily functions. 42 U.S.C. § 12102(2)(B).

Reclaimed Borg includes individuals who have endured physical mutilation and are missing arms, eyes, and other body parts. Moreover, XBs would have been dependent on having functional cortical nodes to control their remaining cybernetic implants in order to live. All of these physical conditions would limit the “major life activities,” of XBs, because of their experience being assimilated and reclaimed. As such, XBs would fall under the protection of the ADA and related laws to protect individuals with disabilities from discrimination.

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