What’s This? What’s This? Jack Skellington and False Impersonation

By

-

October 31, 2012

When it is Halloween and Christmas decorations already up in stores, I cannot help but think of A Nightmare Before Christmas. And when I think of Jack Skellington, I think of false impersonation. And of course this song:

Have I Positively Gone Daffy?

A Nightmare Before Christmas is the classic story of Jack Skellington and other characters from Halloween Town kidnapping Santa Claus, so Jack could assume Santa’s identity for Christmas. There are several huge legal problems that are tough to ignore: 1) Conspiracy. 2) Kidnapping. 3) False Impersonation. 4) Torture at the “hands” of Mr. Oogie Boogie. 5) Breaking and Entering. 6) Assault and battery on an unknown number of families.

Let’s examine false impersonation. California Penal Code section 528.5 states:

528.5. (a) Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable
pursuant to subdivision (d).

(b) For purposes of this section, an impersonation is credible if another person would reasonably believe, or did reasonably believe, that the defendant was or is the person who was impersonated.

(c) For purposes of this section, “electronic means” shall include opening an e-mail account or an account or profile on a social networking Internet Web site in another person’s name.

(d) A violation of subdivision (a) is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.

(e) In addition to any other civil remedy available, a person who suffers damage or loss by reason of a violation of subdivision (a) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief pursuant to paragraphs (1), (2), (4), and (5) of subdivision (e) and subdivision
(g) of Section 502.

(f) This section shall not preclude prosecution under any other law.

What’s This? There’s Lawyers Everywhere?!

It would be extremely difficult to not convict Jack of false impersonation, meaning a fine of $1,000, possible jail time for one year, plus civil liability for the different physical assaults on Santa committed in the furtherance of the conspiracy for Jack to become Santa.

Given the conspiracy and other crimes, Jack would be looking at significant prison time.

Unless there is a Christmas Miracle, the only possible statutory defense for Jack is that his impersonation was not creditable under subsection (b), because the world quickly figured out from the ghoulish toys that Jack was not the true Santa Claus.

With that said, there would still be multiple counts of breaking and entering to leave the inherently dangerous toys that harmed families. Not to mention violating US airspace with said “toys,” arguably an act of war or terrorism by Halloween Town, dependent on whether Halloween-town is a nation-state or not. Regardless, there would be a drone strike on Oogie Boogie and SEALs sent in for Jack.

It is unknown whether there could be any civil or criminal liability for making people break into song throughout the day.

Ghostbusters & False Imprisonment

By

Josh Gilliland

-

October 29, 2012

0

I ain’t afraid of no ghost, but how about false imprisonment?

The 1984 film Ghostbusters tells the story of private individuals who hunt, trap and “contain” ghosts haunting people.

However, could the Ghostbusters actually be falsely imprisoning formerly living people without any due process in violation of their “civil rights”?

Would there be any liability or the ability for surviving family members to recover on behalf of their deceased and imprisoned family members?

Under New York law, a “person is guilty of unlawful imprisonment in the first degree when he restrains another person under circumstances which expose the latter to a risk of serious physical injury.” NY CLS Penal § 135.10.

Additionally, a “person is guilty of unlawful imprisonment in the second degree when he restrains another person.” NY CLS Penal § 135.05.

By way of comparison, California requires the following to be proven for false imprisonment:

1. A person intentionally [and unlawfully] restrained, confined, or detained another person, compelling [him] [her] to stay or go somewhere;

2. The other person did not consent to the restraint, confinement, or detention; and

3. The restraint, confinement or detention was accomplished by violence or menace.

CALJIC 9.60.

What does this mean for the Ghostbusters?

Both states require a person be restrained in someway without that person’s consent.

The issue is simple:

Is a ghost a person subject to the protections of state and Federal law or a “former person” and thus not subject to being protected from false imprisonment?

Let’s review possible sources of what might give ghosts “personhood”:

The 14th Amendment, Section 1, to the United States Constitution, states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

NY CLS Const Art I, § 11.

No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state.

Does death end citizenship under the 14th Amendment, thus equal protection under the law, in our case specifically the prohibition of false imprisonment of living persons? Or does citizenship and the right to equal protection under the law begin at birth and continue for all eternity? Does the same apply to being a “person” under Article § 11 of the New York State Constitution?

There is no question the framers of the US Constitution, the 14th Amendment or the New York Constitution contemplated the law applying to undead individuals with rights similar to living persons. To be blunt, the dead do not come back to vote, buy property or renew their driver’s license.

With that said, our society does not embrace the idea of deceased citizens no longer being citizens. We have monuments for national heroes, honor those who have passed with folded flags and conduct burial ceremonies for those who have passed.

Death arguably does not end citizenship, however there is an interesting issue with the application of the 14th Amendment because of the text stating “…State wherein they reside.” The word “reside” is defined “to live in a place.” Additionally, Black’s Law Dictionary defines “resident” as “a person who lives in a particular place.” Ghosts, by the very fact they are deceased, do not “live” anywhere, unless one counts where their bodies are buried as residences. That might work for voting in Chicago, but ask yourself, how much mail is delivered to tombstones? Moreover, haunting is fundamentally different than living, because 1) ghosts do not have any basic bodily functions showing life, such as requiring food or oxygen and 2) haunting involves tormenting the living.

This is not to say the dead are without any legal protections, as seen in wrongful death cases brought by a victim’s survivors. However, the spirit of the deceased victim did not retain counsel or file a lawsuit; the living family member brought the lawsuit. Moreover, the dead do not give testimony at a trial, unless it was recorded before death.

Nevertheless, there are laws that apply directly to the dead.

An entire body of law is dedicated to wills and trusts, which focus on the intent of the living for the distribution of their property and assets after their death.

Additionally, there are cases prohibiting the desecration of a corpse. Early New York cases have held living family members have the right to have the corpse of a family buried unmutilated from unauthorized autopsies. Foley v Phelps 1 App Div 551 [1896] and Darcy v Presbyterian Hosp. in City of N.Y., 202 NY 259 [1911].

What do the cases of wills and corpse desecration show us? That there are strong arguments that the Ghostbusters are not violating the civil rights of the dead by imprisoning them.

The law is designed to protect the interests of the living. At best, laws prohibiting the desecration of a corpse are designed to bury the dead intact.

Given the above, it is unlikely there is any argument that trapping and containing ghosts could result in a case of false imprisonment. Moreover, Black’s Law Dictionary defines a “person” as a “human being”; ghosts are no longer human beings. As such, it is a legal impossibility for the Ghostbusters to be falsely imprisoning a ghost (a former human being) under the law. Additionally, there is a strong argument that the Ghostbusters are acting in the defense of others from malcontent spirits and effectively acting as exterminators of life-threatening entities.

Property damage from crossing the streams on the other hand….

Presidential Succession Jack Bauer Style

By

Josh Gilliland

-

October 25, 2012

0

Presidential Elections make me think of one thing:

The number of fictional US Presidents in 24.

The fictional series 24 covered 8 days over slightly over 14 years. In that time there were 9 Presidents.

Two of them served full terms.

That is like having Presidents Lyndon Johnson, Richard Nixon, Gerald Ford, Jimmy Carter, Ronald Reagan, George H.W. Bush, William Clinton, George W Bush and Barack Obama in 14 years.

Imagine that many Presidents since Clinton’s last two years in office until present day.

The White House having such a fluid number of Presidents would probably put the country on the verge of a nervous breakdown. The United States has never had that level of instability in leadership (And probably a lot of FBI, CIA & Secret Service Directors fired for “losing another one”).

Moreover, seeking the Presidency looks like a bad life choice, given that John Keeler and Wayne Palmer had both assassination attempts and could not complete their term of office (not clear if they actually died).

Or fictional former President David Palmer catching a bullet for preparing to expose the treasonous actions of President Charles Logan (Never mind the legal issues of Jack just executing Palmer’s killer).

Here is the breakdown of the 24 Presidents:

One 4 Year Term: Harry Barnes (Never seen and President on Day 1, so he was at the end of his term)

One 4 Year Term: David Palmer (Acting President James Prescott for a few hours)

One 4 Year Term: John Keeler, Charles Logan (Vice President who becomes President), Hal Gardner (Confirmed as Vice President and becomes President after Logan had David Palmer Assassinated)

One 4 Year Term: Wayne Palmer (for a few months) and Noah Daniels

Partial Term: Allison Taylor (Resigned, who would be followed by her VP)

How could this happen under the US Constitution? Under Section 1, Article II of the Constitution, a US President’s term of office is four years. Pursuant to the 22 Amendment to the US Constitution, a President may only serve two terms. Additionally, no person (the Vice President or if things were really bad, former Speaker of the House), who had acted as President for more than two years of a term, may only be elected to one term themselves. However, the 25th Amendment, followed by the Presidential Succession Act of 1947, are our keys to understanding these hyper-accelerated Presidencies.

The 25th Amendment to the United States Constitution:

1: In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

2: Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

3: Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

4: Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

The line of Presidential succession is defined under the Presidential Succession Act of 1947, which states, in relevant part:

(1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.

(2) The same rule shall apply in the case of the death, resignation, removal from office, or inability of an individual acting as President under this subsection.

(b) If, at the time when under subsection (a) of this section a Speaker is to begin the discharge of the powers and duties of the office of President, there is no Speaker, or the Speaker fails to qualify as Acting President, then the President pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President.

c) An individual acting as President under subsection (a) or subsection (b) of this section shall continue to act until the expiration of the then current Presidential term, except that—

(1) if his discharge of the powers and duties of the office is founded in whole or in part on the failure of both the President-elect and the Vice-President-elect to qualify, then he shall act only until a President or Vice President qualifies; and

(2) if his discharge of the powers and duties of the office is founded in whole or in part on the inability of the President or Vice President, then he shall act only until the removal of the disability of one of such individuals.

d)

(1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is no President pro tempore to act as President under subsection (b) of this section, then the officer of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President shall act as President: Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland Security.

(2) An individual acting as President under this subsection shall continue so to do until the expiration of the then current Presidential term, but not after a qualified and prior-entitled individual is able to act, except that the removal of the disability of an individual higher on the list contained in paragraph (1) of this subsection or the ability to qualify on the part of an individual higher on such list shall not terminate his service.

3) The taking of the oath of office by an individual specified in the list in paragraph (1) of this subsection shall be held to constitute his resignation from the office by virtue of the holding of which he qualifies to act as President.

Luckily, US History is rather dull compared to 24. The 25th Amendment has only been applied a handful of times, such as in President George W Bush’s first and second terms when he had two different medical procedures, making Vice President Cheney the Acting President for a few hours each time.

The big example of the Constitution getting a workout was after Richard Nixon resigned, making Vice President Ford the new President. Ford has the distinction of being the only person who was not elected President or Vice President who ultimately became Commander-in-Chief. Throw in Nelson Rockefeller as Vice President, and from August 1974 to January 1977, neither the President or Vice President had been popularly elected.

There is one odd footnote on Presidential Succession from the 19th Century: On March 4, 1849, President-Elect Zachary Taylor did not get sworn in, because it was a Sunday, thus took the oath of office on March 5 (Until Truman, Presidential terms ended on March 4).

Technically, President James K. Polk’s term ended at noon on March 4. Small problem: Taylor had not yet taken the oath.

The United States Senate website has the odd story that the then Senate president pro tempore, David Atchison, claimed he technically was President for 24 hours (arguably Polk’s term was extended one day). There are problems with “President Atchison’s” claim, because technically Atchison’s term as president pro tempore also should have ended on March 4 (Let alone Atchison taking the oath of office). However, he claimed that not only was he President of the United States for 24 hours, he had “the honestest administration this country ever had.”

In the final analysis, what can we learn from 24? First, while the United States does not go through Presidents like they are wearing Red Shirts, the Constitution does provide for many contingencies if a nightmare situation happens. Or a President needs a root canal.

Second, while the fictional Jack Bauer was great at fighting terrorists, he was no Clint Eastwood when it came to being In the Line of Fire.

Not sure how Bauer is with talking to chairs.

I, Lawyer: The Legal Geeks Discuss Isaac Asimov

By

Josh Gilliland

-

October 24, 2012

0

Join Jessica Mederson and Joshua Gilliland on a fantastic voyage as they discuss the science fiction contributions of Isaac Asimov.

Isaac Asimov Solves Mysteries Like a Lawyer

By

Jessica_alegalgeek

-

October 23, 2012

0

Isaac Asimov was amazing. Brilliant, inventive, and prolific, he coined the terms “robotics” and “positronic” (later used by Star Trek with full credit to Asimov). He also invented the Three Laws of Robotics (subsequently turned into four laws by the great robot Giskard). He wrote or edited over 500 books, notable among them the I, Robot stories, the Foundation Trilogy, and the Robot series (featuring robot detectives). He was also a professor of biochemistry who wrote non-fiction books as well.

I first read his Robot series as a kid, after I finished the John Carter books. I knew Asimov loved science and science fiction, but I didn’t realize how much he loved mysteries until just recently.

Last time I was at the library I found a book he wrote much later in life, Tales of the Black Widowers (followed by The Return of the Black Widowers). These books were a compilation of short stories, all featuring a group of six men who would gather in a private dining room for dinner. To each dinner they would invite a guest with a mystery to pose to the assembled audience.

As a lawyer, this format is familiar to me: a guest is on the hot seat, questioning is usually led by one of the dinner’s members, with objections and arguments raised by other attendees. Each dinner would even be hosted by one of the members, who could rule on the other attendees’ objections. These dinners could be depositions or courtroom testimony.

The Tales of the Black Widowers and my profession have more than just a similar format in common. In one story regarding a supernatural event, the guest quotes the famous Sherlock Holmes line: How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth. Judges (at least thirteen of them), have also quoted this line in addressing cases before them, sometimes skeptically. For example, in one case, the ALJ whose decision was being reviewed, had said, “There remains however, grossly improbable, uncontradicted testimony, which on the admonition of Sherlock Holmes, must be the truth.” See Walgreen Co. v. N.L.R.B., 509 F.2d 1014 (7th Cir. 1975).

Of course, Asimov actually took this opportunity to show that Holmes’ admonition falls apart if the witness is lying. After the guest had convinced all of the Black Widowers that his supernatural story was true (because the supernatural was only improbable, not impossible), the waiter had to call the guest out as a liar. In an Afterword to that story, Asimov explained that he wrote this story because, in his words, “As far as I am concerned, if, when everything impossible has been eliminated and what remains is supernatural, then someone is lying.”

The same is true in the law, particularly in e-discovery. Parties will often claim that discovery obligations or requests are impossible. See, e.g., Ingersoll v. Farmland Foods, Inc., 2011 WL 1131129, at *19 (W.D.Mo.,2011) (“Defendant indicates that it would be impossible for it to search, review, and then produce documents by February 18.”). But when parties lie, the system (just like Sherlock’s quote) doesn’t always work. In the e-discovery world, in particular, there have been some notable cases where parties have lied about their discovery efforts. See, e.g., Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 531 (D.Md. 2010); Rimkus Consulting Group, Inc. v. Cammarata, 688 F.Supp.2d 598 (S.D. Tex. 2010).

In Rimkus and Victor Stanley, of course, the lies were caught out. But Asimov’s supernatural short story has a reminder for all lawyers (and finders of fact). While Sherlock’s quote is still good to keep in mind, we can never forget Asimov’s point: Eliminate the impossible, consider the improbable, but always remember to question the source itself.

Brewster's Millions: Can Great Uncle Horn Really Control Him From Beyond the Grave?

By

Jessica_alegalgeek

-

October 19, 2012

0

I love Richard Pryor. And most everyone agrees that he’s one of the best stand-up comedians of all time. But his movies don’t get enough respect. This may be an embarrassing confession, but I love his movies – Superman III, the buddy movies with Gene Wilder, and, most importantly…Brewster’s Millions.

For those of you who haven’t seen this awesome movie, it’s about a down-on-his-luck minor league pitcher, Monty Brewster (Pryor himself) who learns that Great-uncle Horn was a multi-millionaire who just passed away (making him somewhat of a laughing heir). Uncle Horn didn’t want Monty to waste his inheritance, however, so he put a condition on his will: Monty would inherit $300 Million if he could spend $30 Million in 30 days with nothing to show for it (and he couldn’t tell anyone what he was doing).

The movie has a great supporting cast. John Candy is his best friend, Spike (is Kevin James the new John Candy?), and Jerry Orbach plays his team manager (although he’ll always be Baby’s father to me). Finally, Larry Tate of Bewitched (aka David White) plays the big bad lawyer who was trying to sabotage Monty’s chances (why is it always a lawyer?).

Legally, could Uncle Rupert do that to Monty? Courts are concerned with what they call “dead hand” control of property. The original concern, which arose in the 17th century, was focused on preventing the dead hand of landowners from controlling what future generations could do with real property. From that concern evolved the always-confusing Rule against Perpetuities, which says that no interest in an estate’s assets is good unless it vests, if at all, no later than 21 years after some life in being at the creation of the interest. What that means has been the subject of many court decisions and legal articles, so I’m not going to get into a discussion of it here.

With or without the Rule Against Perpetuities, people have been trying for years to impose control on future generations by putting all kinds of different conditions in their wills.

A truly gross one involved a hatmaker who died in 1871 and left his body to science. But he also stipulated that two drums had to be made out of his skin and given to a friend on the condition that every June 17 at dawn he would pound out the tune “Yankee Doodle” at Bunker Hill to commemorate the anniversary of the famous Revolutionary War battle. The rest of his body was “to be composted for a fertilizer to contribute to the growth of an American elm, to be planted in some rural thoroughfare.” Disgusting as that was, he probably couldn’t force anyone to follow through with this (and I couldn’t find out if they actually did follow through with it).

In another case, a misogynistic man wanted all of his money to go to a male-only library (male authors, male members) and left only $5 to his daughter. His daughter fought this directive in case and eventually had the will overturned.

Wills that try to restrict future generations’ ability to marry certain groups – or practice certain religions – are generally held invalid by courts. Just a few years ago, however, the Illinois Supreme Court evaluated once again whether someone could restrict bequeaths to those grandchildren who married within the faith (or who had spouses that converted within a year). In re Estate of Feinberg, 919 N.E.2d 888 (Ill. 2009). The court eventually decided that the will’s provisions were acceptable, but that was largely because of technical issues related to the way the estate was set up.

In Brewster’s Millions, because the condition was immediate (as opposed to years in the future) and it didn’t impact Monty’s ability to marry or practice the religion of his choice, it would probably be found a legitimate condition to impose on somebody who wanted to inherit under a will. And before you say that spending $30 million in a month would be great, watch Brewster’s Millions. Monty has something to teach all of us about the burdens of pointless consumption!

Quantum Leap & A History of The Right to Counsel

By

Josh Gilliland

-

October 17, 2012

0

Jessica Mederson & Josh Gilliland discuss the classic show Quantum Leap & the episode “So Help Me God.” The Legal Geeks review case law from the 1930s to 1960s on the 6th Amendment Right to Counsel and 5th Amendment Right Against Self-Incrimination.

No part of this recording should be considered legal advice.