Can Banthas be Used as Live Bait?

January 5, 2021

The Mandalorian, season two, Chapter 9, The Marshal, included Tuskin Raiders using Banthas as live bait for hunting a Krayt Dragon. Would such a use of a domesticated animal violate any cruelty to animal laws in the United States?

Cruelty to animals in California is defined as follows:

(a) “ …every person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills an animal, is guilty of a crime punishable pursuant to subdivision (d).”

(d) A violation of subdivision (a), (b), or (c) is punishable as a felony by imprisonment pursuant to subdivision (h) of Section 1170, or by a fine of not more than twenty thousand dollars ($20,000), or by both that fine and imprisonment, or alternatively, as a misdemeanor by imprisonment in a county jail for not more than one year, or by a fine of not more than twenty thousand dollars ($20,000), or by both that fine and imprisonment.

Cal. Pen. Code § 597.

Leaving a bantha out for a Krayt Dragon as a snack, is intentionally leaving an animal to be killed by an apex predator, which sounds like cruelty to animals. Moreover, the waiting for a Krayt Dragon to strike is clearly freighting for the bantha, which could make it qualify as torture. However, that is not the end of the analysis. Animals such as worms are used as live bait in fishing, which has been rejected as a slippery slope for being cruelty to animals. See, In re William G, 52 Md. App. 131, 133 (Md. Ct. Spec. App. 1982).

Given the massive size of a Krayt Dragon, coupled with the ability to tunnel and spray acid venom, it is fair to compare a bantha being used as bait like a worm to catch a fish. However, it is worth noting that the bantha were not being used like a “bait animal,” which is when a small dog, cat, or raccoon, is placed in front of a treadmill for a “fighting dog” to chase for exercise. See, Ware v. State, 949 So. 2d 169, 174 n.7 (Ala. Crim. App. 2006). Those situations would clearly be cruelty to animals, but nothing like that happens with a bantha being used with explosives to kill a Krayt Dragon.

Star Wars Article IV: The Phantom Guarantee

Andrew Soboeiro

January 2, 2021

So this is how liberty dies— with thunderous applause!” Stated in response to Palpatine’s rise from Chancellor to Emperor, these words capture one of the most important themes in Star Wars. The franchise highlights just how easily freedom and democracy can diminish in the face of fear and crisis. There’s no clearer reminder that the price of liberty is constant vigilance.

The most visible democratic backsliding in Star Wars is the fall of the Galactic Republic itself and its replacement with the Galactic Empire. But beneath this surface is a subtler but more sinister democratic deficit: that of the local governments on individual planets. The Galactic Republic appears to have no Guarantee Clause, and does nothing to ensure republican governance on its constituent worlds. This failure sets the stage for democratic decline in that universe while providing a stern warning for our own.

Guarantee Clause Guide

The Guarantee (or Guaranty, depending on whom you ask) Clause is found in Art. IV § 4 of the US Constitution. It states that “the United States shall guarantee to every State in this Union a Republican Form of Government.” The Clause enshrines a federal interest in the structure of state government and limits how states may conduct their internal affairs.

In theory, federal courts could read the Guarantee Clause as a license to strike down state policies that they deem insufficiently republican. But in practice, the courts have refused to assert this power. Beginning with the 1849 case Luther v. Borden, the Supreme Court has treated Guarantee Clause claims as non-justiciable. Luther, 48 U.S. 1 (1849). Where federal courts have struck down states’ election systems, they have generally relied on other provisions of the Constitution, most notably the Fourteenth and Fifteenth Amendments. See, e.g., Gomillion v. Lightfoot, 364 U.S. 339 (1960); Baker v. Carr, 369 U.S. 186 (1962).

As with many constitutional provisions, however, just because the federal courts have not used it does not mean the Guarantee Clause has no significance. Congress has frequently intervened in state election systems, notably by passing statutes like the Voting Rights Act and approving constitutional provisions like the Fourteenth, Fifteenth, Nineteenth, and Twenty-Fourth Amendments. Thus, the United States has at least partially fulfilled its duty to guarantee republican state governments, even if it has not done so through the courts.

Sovereignty in Star Wars

However significant the Guarantee Clause is in our republic, there appears to be no equivalent in the Galactic Republic. Between the Prequels and the Clone Wars, we see myriad planets under Republic suzerainty, and the vast majority of them seem anything but republican. Most planets appear to be monarchies, including Naboo, Dac, Mandalore, and Onderon. Some of these are elective monarchies, but we are not told who may vote for the monarch. If the vote were restricted to the nobility, as many real-world elective monarchies are, that would hardly be a republican form of government. Worse yet, the few planets that are not monarchies, like Scipio and Cato Neimoidia, are governed by corporations.

The lack of any meaningful local democracy helps explain why the Galactic Republic was so vulnerable to Palpatine’s machinations. The Prequels and Clone Wars show us how dysfunctional and oppressive planetary governments are: from the rampant corruption on Mandalore to Naboo’s de facto apartheid system to the outright slavery on Tattooine and Zygerria, myriad local rulers blatantly violated the rights of their subjects.

With this background, it’s unsurprising why most Senators would respond to Palpatine’s megalomaniacal speech with “thunderous applause.” Why should they object to autocracy on Coruscant when that’s exactly what they thrived under on their home planets? Nor should rank- and-file citizens be any more concerned about the Republic’s downfall, given how little it protected their rights. In the immortal words of Mr. Plinkett, “if you were an average Joe, the rise and fall of the Empire might not have even affected your life in the least bit!”

The Shape of Things to Come?

The United States has often fallen short of its obligation to ensure republican state governance, most notably during the Jim Crow era, when both Congress and the Supreme Court flatly refused to take action against widespread racist disenfranchisement. See, e.g., Giles v. Harris, 189 U.S. 475 (1903) (finding the most sophomoric technicality to justify not overturning Alabama’s racist election laws). Today, we’re witnessing a new wave of state disenfranchisement and federal enablement.

Since 2010, state governments have enacted a slew of laws weakening their republican foundations, both by making it harder to vote and by gerrymandering voters out of any practical legislative power. The federal government initially countered this democratic backsliding through the Preclearance regime, a provision of the Voting Rights Act that required DoJ approval for changes in many states’ voting laws. But in Shelby County v. Holder, the Supreme Court made this provision unenforceable. Shelby County, 133 S. Ct. 2612 (2013). Combined with the rise of the openly authoritarian Trump Administration, this trend has made a dead letter of the Guarantee Clause.

Some in the federal government have pushed back against this trend. Notably, House Democrats have passed a number of bills to strengthen republican principles at all levels of government, including the For the People Act and the John R. Lewis Voting Rights Act. But these bills died in the Senate, and given the persistence of the filibuster, that doesn’t seem likely to change anytime soon.

Star Wars offers us a warning ahead of these dark democratic times. Even ifthere is no Dark Lord of the Sith (&I wouldn’t be too confident about that with Mitch McConnell’s around), our democracy is at serious risk from bottom-up decay. Unless Congress or the courts get serious about the Guarantee Clause, it won’t be long before liberty dies-perhaps not with thunderous applause, but instead so quietly that many of us won’t notice.

Legal Analysis of Airplane!

Josh Gilliland

January 2, 2021

We said goodbye to 2020 with our review of Airplane! Join Jessica and I for our legal analysis and review of this cult classic.

Legal Review of The Mandalorian Chapter 9

Josh Gilliland

November 2, 2020

Gabby Martin, Thomas Harper, Nari Ely, and I sat down to review the first episode The Mandalorian, season 2, The Marshal. Needless to say, we loved it. Wait until you have watched The Marshal before listening to our analysis. We cover the legality of killing a dangerous wild animal, the defense of others, and a lot of contract law.

Is it Justified Homicide to Kill a Sleeping Vampire?

Josh Gilliland

October 29, 2020

The law for self-defense and defense of others requires that someone “must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury.” People v. Thinn, D074397, at *10-11 (Cal. Ct. App. July 23, 2020).

Does that apply to a vampire asleep in their coffin during daylight hours?

In the classic Hammer film, Horror of Dracula, Dr. Van Helsing kills both a bride of Dracula and Jonathan Harker, who had been transformed into a vampire, while they were asleep in their respective coffins. Was that justified homicide?

Determining the answer requires understanding self-defense. Case law explains:

“Self-defense is perfect or imperfect. For perfect self-defense, one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury. [Citation.] A killing committed in perfect self-defense is neither murder nor manslaughter; it is justifiable homicide.” (People v. Randle (2005) 35 Cal.4th 987, 994.) Although a person acting in imperfect self-defense “also actually believes he must defend himself from imminent danger of death or great bodily injury,” that belief is unreasonable. (Ibid.) “Imperfect self-defense mitigates, rather than justifies, homicide; it does so by negating the element of malice.” (Ibid.; see People v. Simon (2016) 1 Cal.5th 98, 132 (Simon).)

People v. Thinn, D074397, at *10-11 (Cal. Ct. App. July 23, 2020)

The crux of the issue is whether Dr. Van Helsing believed that he needed to defend himself against imminent peril to protect his life. This is problematic with a sleeping vampire, because they are asleep. Moreover, self-defense cannot be asserted if the “defender” was the one who created the dangerous situation, such as committing a felony. People v. Greer, B287247, at *6 (Cal. Ct. App. Feb. 20, 2019). The “sleeping vampire” situation could be one of an imperfect self-defense, where the use of deadly force was unreasonable. People v. Villanueva, 169 Cal.App.4th 41, 50 n.7 (Cal. Ct. App. 2008).

If vampires were considered “human” under the law, Dr. Van Helsing has some serious problems in making an effective self-defense argument. First, Dr. Van Helsing entered Dracula’s castle without permission, so he is trespassing. Secondly, he killed two vampires while they were asleep. The fear of imminent death is highly questionable under such circumstances. Dr. Van Helsing would at best have an imperfect self-defense argument, provided he could get around the trespassing issue. One argument would be he was searching for his friend Jonathan Harker as his reason for entering the castle.

The counter to whether Van Helsing’s actions were justified is the fact vampires are undead creatures that murder humans in their sleep for food. Van Helsing could argue that the vampires were not human, thus not persons under the law. As such, the good doctor was eradicating a dangerous animal that was a risk to human life, so the issue of self-defense is irrelevant when slaying sleeping vampires.

U.S. Patent No. ‘666 to V. Frankenstein and P. Krempe?

Brian Weissenberg

October 27, 2020

Severed hands, eyes, heads, brains. Grave robbing. Deception. Murder. There is no shortage of legal issues in Hammer’s 1957 classic: The Curse of Frankenstein, some of which (spoiler alert) actually landed Victor Frankenstein in prison. But beyond the gore and ghouls are tricky legal issues of another kind: intellectual property. After all, the film is, at its core, a story of invention—the fruits of which sour as the film unfolds. And integral to that story is the relationship between Frankenstein and Paul Krempe, a tutor-turned-partner-turned-frenemy, whose waning enthusiasm for the unnatural process he helped create (?) is part of the souring. This short post focuses on the relationship between both men and discusses the IP-focused question: who invented what?

Who Is An Inventor?

The question of who is an inventor under U.S. patent law can be complicated, particularly when there could be more than one inventor. Under U.S. patent law, identifying the inventor(s) on a patent requires “determining who conceived the subject matter at issue.” See In re VerHoef, 888 F.3d 1362, 1365 (Fed. Cir. 2018). Conception is “the touchstone of invention” and requires “a definite and permanent idea of an operative invention, including every feature of the subject matter sought to be patented.” Id. at 1366. More than one person can be an inventor on a patent, and each person need not contribute equally to the conception of the invention. See id. (describing requirements of a joint inventor).

Who Invented What?

So are Frankenstein and Krempe joint inventors? Since inventions are defined by the patent claims, that answer really depends on the language of the claims. See Egenera, Inc. v. Cisco Sys., Inc., 972 F.3d 1367, 1376 (Fed. Cir. 2020) (“[W]ho should be listed on the face of a patent may vary depending on what, exactly, is claimed.”).

Let’s say, for example, the hypothetical patent claimed a method for reanimating a once-dead organism, or an apparatus for the same. It seems that both Frankenstein and Krempe would have a colorable argument for being co-inventors. After all, the film essentially starts with an uplifting montage of the pair performing experiments together and, ultimately, reanimating a very cute small dog. These scenes were accompanied by Frankenstein’s narration, who noted, among other things:

“We went on together, probing into the unknown.”
“To this aim, we finally turned all our energies.”
“It took us years of unrelenting work to discover what we were seeking.“
“Then, one night…our efforts were rewarded.”

Frankenstein’s story-telling suggests that both men played some role in conceiving the invention, but, of course, we’d need to dig into the facts a bit more to determine the exact contribution each made. And if that contribution didn’t make it into the actual claim language, then it might be harder to make a case for joint inventorship.

But is Krempe a co-inventor on a method and/or apparatus for reanimating, literally, a patchwork of different human parts (and perhaps even the Creature itself)? A key plot in the film is the deteriorating relationship between Frankenstein and Krempe, which begins just after the two successfully reanimate the dead dog. It seems that Krempe is onboard with their work up to this point, and even wonders aloud about the wonderful future implications of their work. And if the film ended there, then a patent (or more!) bearing both their names might well have been possible.

But of course, that’s not where the movie ended. Frankenstein wanted to go just a bit further with their work, and Krempe was not having it. Numerous times throughout the remainder of the film, Krempe distances himself from Frankenstein and his work in no uncertain terms. For example:

Frankenstein: In six months’ time you’ll rejoice in the fact that you helped me present this achievement to the world. You’ll be as famous as I will.

Krempe (interrupting): No, Victor, infamous. I will not help you, not anymore!

So assuming Frankenstein filed a patent on a method and/or apparatus for reanimating a patchwork of human parts (or the resulting creation itself), Krempe presumably would not want his name listed alongside Frankenstein’s.

But would it be appropriate to exclude Krempe’s name from that patent? Is he a co-inventor of that patent? The answer seems to be “it depends,” but there’s a good case to be made that Krempe contributed to the inventions that led to the creation of Frankenstein’s Creature. Recall that both Frankenstein and Krempe arguably contributed to the inventions that led to the reanimation of the dead dog. And as far as the audience can tell, Frankenstein seems to use similar (if not the same) mechanisms to reanimate an assortment of human parts. Indeed, at one point in the movie, Frankenstein persuades (coerces?) Krempe to help raise the Creature, reminding Krempe that “that apparatus was constructed for dual operation, you know that.” So it’s possible that a Frankenstein patent claiming a method and/or apparatus for reanimating…a patchwork collection of human parts would need to list Krempe’s name (but, as discussed, it would depend on what the claims actually say, and a further assessment of each person’s contributions to the invention).

Finally, note that if Krempe were indeed required to be named as a co-inventor and his name was omitted, someone might later be able to argue that the patent fails to list a required inventor, and is therefore invalid. But that person would probably have a hard time getting Krempe to support that argument. As we learn in the film’s final scenes, Krempe would rather let Frankenstein languish in prison than admit any part of what happened. And, as Frankenstein ironically explained not too much earlier to his spurned lover, “proof, my dear, that’s all the authorities would be interested in. Proof.”

Happy Halloween, folks!

The Crimes of Ygor

Josh Gilliland

October 25, 2020

Bela Lugosi’s role of Ygor in Son of Frankenstein and Ghost of Frankenstein is a character study in evil. Not just run of the mill random acts of ill will, but cold and calculated malice to kill all of the jurors who had originally convicted Ygor for death.

Profile in Deceit

In Son of Frankenstein, “Old Ygor” is introduced lurking around the town of Frankenstein. Yes, that means “Frankenstein” is used interchangeably with a person, a town, and the Creature. Ygor introduced himself to Baron Wolf von Frankenstein by spying on him. These acts would be an invasion of privacy, which is when a person physically and knowingly, “enters onto the land or into the airspace above the land of another person without permission…or familial activity and the invasion occurs in a manner that is offensive to a reasonable person.” Cal. Civ. Code § 1708.8(a).

Ygor appealed to Dr. Wolf von Frankenstein’s ego in securing the doctor’s help in reviving the comatose Creature. Ygor represented only that the Creature “does things for me.” The specific definition of “things” was killing the jurors who had convicted Ygor. By the time of Dr. Frankenstein’s entrance, the Creature had killed six out of eight jurors by striking them so hard their hearts burst.

The failure to define “things” was fraud in convincing Dr. Frankenstein to heal the Creature. Ygor suppressed the fact that the Creature had committed six murders, which was material information that Dr. Frankenstein should have known about before reviving the Creature. See, Cal. Civ. Code § 1710(3).

A Conspiracy for Murder

Ygor and the Creature worked together in performing three additional murders. These murders included Frankenstein’s butler and the two remaining jurors. Ygor played music where he was publicly visible, giving himself an alibi for the deaths.

A conspiracy is when two or more people conspire to commit a crime. Cal. Pen. Code § 182(a). Coconspirators can be responsible for the criminal harms “they have naturally, probably and foreseeably put in motion.” People v. Luparello, 187 Cal.App.3d 410, at p. 439 (Cal. Ct. App. 1986). For Ygor and the Creature, they intended the two jurors to be killed. The Creature even went so far to make one of the murders look like an accident (which goes to show the Creature understood the wrongfulness of his actions).

The death of the butler was not planned by Ygor working with the Creature, so at best, Ygor could be charged with second degree murder.

Kidnapping of Children

The children Peter Frankenstein (Son of Frankenstein) and Cloestine Hussman (Ghost of Frankenstein) were placed in mortal danger by the Creature. The facts for each are radically different.

The Creature kidnapped Peter Frankenstein (Wolf’s young son) after Wolf had shot Ygor. Ygor was believed dead, as the way the story ended showed there were no plans for a sequel. Kidnapping is the forcible taking of a person. Cal. Pen. Code § 207(a). The Creature picking up Peter and carrying him to the lab meets the required acts for conviction. However, as Ygor was incapacitated and had not planned a kidnapping with the Creature, the kidnapping is not a natural and probable consequence of their conspiracy.

The Creature took Cloestine Hussman from her room and wanted her brain put in his body. Ygor stated that the Creature taking the child was something he could not stop the Creature from doing. While Ygor and the Creature were clearly collaborators, Ygor is best classified as an accessory-after-the-fact. Nothing was done to return Cloestine to her family, meaning everyone in on the plan to give the Creature a new brain had assisted in the kidnapping of a child.

If I Only Had a Brain

Dr. Ludwig von Frankenstein planned to transfer the brain of his slain associate Dr. Kettering to the Creature’s body. This would have been cosmic justice, with the victim taking the body of his killer. However, Ygor convinced Dr. Theodore Bohmer (Dr. Frankenstein’s colleague who had once been his professor) to switch Dr. Kettering’s brain with Ygor’s brain. This would be the worst case scenario of the amoral murderer getting an undying body.

The musical brains are again fraud. Dr. Frankenstein was intentionally misled to place Ygor’s brain in the Creature’s body. Unfortunately for Ygor, his blood type was not compatible with the Creature’s body and he immediately went blind.

Ygor’s Opus

All of Ygor’s actions were based on revenge for those who had sentenced him to death. His ability to hoodwink both sons of Frankenstein was impressive, since one would have expected Ludwig to have learned from both his father’s and brother’s mistakes.

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