On Behalf of Gamera

By

-

April 15, 2020

An ancient civilization built a super predator species known as Gyaos that would destroy humanity, leaving only as the last hope, Gamera. This plot leaves open so many questions for liability, such as is Gyaos an endangered species or is humanity? Can the government force an ornithologist to capture an animal that feeds on humans? Would the military need authorization from the government to fire on a giant turtle walking ashore? Join Nari Ely and I as we break down these issues and more in Gamera Guardian of the Universe.

Did Ultraman Commit Genocide of Baltan Refugees?

By

Josh Gilliland

-

April 7, 2020

0

The Ultraman episode “Shoot the Invaders” opens with our hero having a black eye. By the end of the episode, we understand he has one more than a physical black eye.

The alien race the Baltans traveled to Earth in microscopic form in a cloaked ship. After using a member of the Science Patrol to speak through him, the Baltans revealed there were 2.03 BILLION of them on their ship approximately a meter across. A mad scientist in nuclear tests had destroyed their planet. Mars was not an option for the Baltans, because their “hated” unspeakable issue was there. After being offered to live on Earth if the Baltans obeyed Earth’s laws and customs, talks immediately broke down with the dialog ending, “[The] Conversation is over. We shall have the Earth.”

A fight with Ultraman followed, which ended with the now giant Baltan killed. Ultraman used his “Fluoroscope Ray” to decloak the Baltan ship and destroy it.

Yes, Ultraman destroyed the ship with 2.03 billion alien life forms on it.

Were the Baltans Refugees?

International treaties define refugees, in relevant part, as those who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” USCS Protocol Refugee.

The Baltans were unable to return to their homeworld because it had been destroyed by nuclear weapons. This would qualify them as “refugees” under international law.

Were the Baltans Hostile to Life on Earth?

The Baltans did not appear to be adverse to humanity, but a Science Patrol member balked at the idea of 2.03 billion Baltans making Earth their home. Sure, they were miniature, which raised the issue of whether they could be given a small amount of real estate to make their home. However, that issue was never addressed, because their emissary stated, “We shall have the Earth.” That seems openly hostile, even if it is not an express declaration of war.

Mini-Genocide

Ultraman destroyed the Baltan ship with 2.03 billion individuals aboard. Is that genocide?

The crime of genocide is committed when someone, “whether in time of peace or in time of war and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such, kills members of that group.” 18 U.S.C. § 1091(a)(1). The punishment for having caused death is either death OR imprisonment for life and a fine of not more than $ 1,000,000, or both. 18 U.S.C. § 1091(b).

Ultraman flying the ship away from the city and then destroying it killed all 2.03 billion Baltans onboard. That was an act of genocide, because Ultraman destroyed the vessel with the specific intent to do so. Even if the intent was to only destroy the ship, then at best it is negligent genocide. There is no way around the fact the hero killed 2.03 billion Baltans. Ultraman has bigger problems than a black eye.

Sheltering in Place with Ultraman

By

Nari Ely

-

March 27, 2020

0

Shelter in Place/Quarantine

In Terrifying Cosmic Rays, Tokyo is under a shelter in place order while a giant Kaiju monster, Gavadon, appears to threaten the city. In real life, at least one in four Americans (including this author) are under shelter in place or quarantine orders while a microscopic monster, the COVID-19 virus, threatens our health. So this seems like a great opportunity to discuss the legalities of these orders.

Ultraman is of course set in Japan. Japan, unlike the US, has a unitary government, in which the central government has the general police power. In Japan – especially in a version of Japan in which the nation endures random but regular rampaging Kaiju – a shelter in place ordered by Japanese government (national or prefecture) would be unlikely to face any legal challenges. Conversely, the answer to this question is more complicated here in the US, as it depends on what government entity is issuing the order. The US has a federal system of government which divides power between the federal government and the state governments. Under the US Constitution, the federal government is one of limited, enumerated powers – it has only those powers explicitly granted by the constitution – while the states retain the general police power – they have all the powers of government except those that are explicitly withdrawn from their authority by the constitution.

This is true for quarantines as well, despite that quarantines are fairly extreme exceptions to our usual legal (and moral) norm of thoroughly adjudicating any government attempt to detain or otherwise imprison citizens before the state can carry out the detention. Quarantines, by contrast, are an extreme deprivation of liberty based on the mere suspicion that a person has been exposed to a dangerous contagion and often with no immediate means of challenging the decision. Nonetheless, states undoubtedly have the power to quarantine those within their borders, which has been long considered a part of the general police power left to the states by the Tenth Amendment, and there’s a long (and sometimes sordid) history of states enforcing involuntary quarantines. See Jew Ho v. Williamson, 103 F. 10 (C.C.N.D. Cal. 1900), in which a federal court ruled that a quarantine of an entire Chinese district in San Francisco to prevent the spread of bubonic plague violated the Fourteenth Amendment’s guarantee of equal protection of the laws.

It’s less clear if the federal government could order a nationwide shelter in place or quarantine citizens who are not engaged in foreign or interstate travel, and indeed the shelter and quarantine orders thus far have been issued by state and local authorities. This is because, as mentioned above, the US government doesn’t have general police power and must instead source any action in an express provision of the Constitution. Nor does a national emergency create a magical backdoor to the Constitution. Declaring a national emergency increases the President’s powers under various statutes and makes more funding available, but it doesn’t alter the Constitution to make the President dictator, even a temporary one. In short, the President’s authority on this count is extremely dubious. Any nationwide shelter in place order would, in essence, usurp the authority of the many governors who have yet to order statewide lockdowns, and if the President were to attempt such an order, there would be many immediate legal challenges by private citizens as well as angry governors.

Could Congress accomplish a national shelter in place or mass quarantine by suspending the writ of Habeas Corpus? (The President cannot suspend the writ; see Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861)). Also likely not, since the constitutional provision for suspending Habeas Corpus is quite specific. US Const. Art. I, § 9, Cl 2.: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” This might plausibly be interpreted to encompass any severe threat to national security. But an interpretation that extends to public health is more controversial, as it would render much of the language of the clause superfluous. This author is unaware of any past suspension of Habeas Corpus on grounds of contagion, and indeed the only times Habeas Corpus has been suspended were during or shortly after the Civil War.

But what about the Commerce Clause? I could easily write a whole separate blog post on whether Congress has the power to order a nationwide shelter in place or quarantine via its power to regulate interstate commerce, which is a hotly debated constitutional provision with a complicated history in the courts. Suffice to say that it is the opinion of this author that any interpretation of the Commerce Clause that would permit Congress to directly regulate the patently non-commercial, intrastate activities of Americans such as visiting the in-state homes of friends and families would extend the Commerce Clause to encompass all human activity and relocate the general police power in the federal government.

Long story short, if a state or city issues an order to shelter in place or even a mass quarantine, there’s no real debate that it’s within their lawful authority. It’s a much more difficult question as to whether the federal government has the power to order a nationwide shelter in place or quarantines, and if it were to do so you should expect legal challenges to follow.

The second obvious question is: What limits are there to the state’s power to lockdown or quarantine their citizens? In theory, Americans are still entitled to due process before being deprived of their liberty. There are serious practical problems with adjudicating a due process challenge to a SIP or quarantine, however. First and foremost, both are typically very brief and it’s nigh impossible to get a case in front of a federal judge in under two weeks. Also there’s the problem of qualified immunity (a doctrine I don’t much approve of anyhow), in which state officials can’t be held liable for money damages if their conduct was not in violation of clearly established law. A shelter in place or quarantine order that was simply mistaken or poorly administered but was nonetheless carried out in good faith is unlikely to meet this bar. But if a state or state official decides to quarantine citizens arbitrarily or in a discriminatory manner, such as the racially-motivated lockdown of Chinatown in Jew Ho v. Williamson, qualified immunity would not shield the state from liability (since it’s clearly established law that state officials cannot discriminate on the basis of race). Even in this extreme circumstance, however, you are only going to be able to seek money damages after the fact because it is unlikely that you would be able to obtain a court order granting you preliminary relief before the shelter in place or quarantine order has already been carried out and completed.

“But, the freedom to draw pictures of what they like belongs to the children.”

Is there a right to draw Kaiju?

Finally, I want to talk about the scene at the end of the episode, in which our heroes, the Science Special Search Party, walk through a playground full of kids drawing multitudes of Kaiju in chalk on the pavement. The narrator remarks that, although these drawings might someday be hit by cosmic rays and come to life, it is the right of children to draw what they want.

But is it, though? Could the government ban the drawing of Kaiju in order to protect its citizens from rampaging (or napping) Kaiju?

It likely depends on how broad such a ban is. Laws governing artistic expression must be analyzed under the First Amendment’s prohibition of laws that abridge the freedom of speech. A ban on drawing Kaiju is undoubtedly content-based (as opposed to a content-neutral law, such as a noise ordinance), and so would have to pass the highest level of constitutional review, strict scrutiny: the law must serve a compelling government interest and must be narrowly tailored to further that interest (ban no more speech than necessary).

In a world in which drawings of Kaiju that are left exposed to celestial radiation have a small but real chance of coming to life and going on city-destroying rampages, the compelling government interest analysis is undoubtedly satisfied. If the ban were tailored to cover only drawings that are left exposed to cosmic rays (outdoors), then it also almost certainly passes the second hurdle of narrow tailoring. A sweeping ban on all drawings of Kaiju, no matter where they are drawn or displayed, on the other hand, would likely not pass First Amendment muster, since it would not be narrowly tailored to serve the compelling interest of avoiding mass destruction: it includes in its ambit speech that definitely wouldn’t create living Kaiju, like drawings in a book stored indoors.

But assume that when children view these otherwise benign drawings of Kaiju, they are more likely to run outside and draw Kaiju. Could the outright ban pass legal muster under this argument? Still no. In Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011) the Supreme Court rejected a similar argument in defense of a ban on violent video games.

In conclusion, the right of children to draw what they want is not unlimited, and in the face of such a compelling interest as preventing Kaiju attacks, the government would be well within its power to ban drawing Kaiju where they might be hit by terrifying cosmic rays.

Counterfeit Unicorns in the Time of Coronavirus

By

Jessica_alegalgeek

-

March 24, 2020

0

Okay, it’s not quite Love in the Time of Cholera, but it’s still not a title I thought I’d ever write. And yes, we are in the midst of a global pandemic with news that gets more terrifying by the day, with all of us struggling to adjust to this new reality and the fears that come along with it. But we also have to find our moments of levity if we’re going to make it through without going completely bonkers.

And that levity is just what Judge Seeger, United States District Judge for the Northern District of Illinois (aka Chicago), found last week. The case before him, Art Ask Agency v. [Various Defendants], involves a lawsuit alleging trademark infringement. Art Ask claimed that the various defendants (both individuals and companies) were infringing on its trademarks, which include lifelike portrayals of fantasy subjects. According to the court, examples of the infringing designs included “a puzzle of an elf-like creature embracing the head of a unicorn on a beach” and “a purse with a large purple heart, filled with the interlocking heads of two amorous-looking unicorns.” (Yes, I did a Google search to see if I could find these products and no, I could not find any, thank goodness.)

The plaintiff was seeking an immediate temporary restraining order (aka TRO) — a tool that a plaintiff can use early in a case to temporarily stop defendants from doing certain acts if the plaintiff can show that: (1) it is likely to succeed on the merits of its claim; (2) it will suffer irreparable harm if it doesn’t get the TRO; (3) that the balance of equities tips in its favor (i.e., it seems fair to grant the TRO); and (4) the injunction is in the public interest. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Irreparable harm means that the plaintiff will need to show that getting money or some other verdict at the end of the case won’t be enough to make the plaintiff whole — the action must be stopped now. Irreparable harm can include such things as your house being sold out from under you or a competitor stealing your customers right now.

While the plaintiff was seeking a hearing on its TRO, of course, the US and the world were dealing with the Covid 19 pandemic. Last week, the United States Supreme Court announced that, for the first time since the Spanish Flu, it would be closing its doors and postponing oral arguments. State and federal courts have likewise followed suit, postponing jury trials and trying to rearrange their calendars so that the truly pressing issues they must deal with even in the midst of a pandemic can safely proceed while pushing back other, less crucial court proceedings.

With this pandemic and the resulting court changes in mind, Judge Seeger pushed back plaintiff’s requested hearing on the TRO for a few weeks. In response, the plaintiff first moved the court to reconsider its order and then filed an emergency motion. It was in response to this motion for reconsideration that Judge Seeger issued his now famous “Unicorn Opinion.”

In this opinion, he addressed the plaintiff’s sense of urgency and actions in attempting to get this immediate TRO. All plaintiffs seeking a TRO are generally in a rush because they believe the harm is imminent and serious, of course. In this instance, however, not only was the plaintiff wanting relief immediately, but they also wanted wide-ranging relief from a number of businesses that weren’t even parties to the lawsuit. In this case, the plaintiff was wanting to: force financial institutions to lock down accounts, require domain name registries to shut down websites, and force third parties, such as Amazon, eBay, Alibaba, Facebook, Twitter, and Google, to take immediate actions within a few days of them of the TRO being entered. As the court noted, such an order could distract people and businesses with far bigger concerns right now. In examining the potential harm to the plaintiff, the court stated: “Plaintiff has not demonstrated that it will suffer an irreparable injury from waiting a few weeks. At worst, Defendants might sell a few more counterfeit products in the meantime. But Plaintiff makes no showing about the anticipated loss of sales. One wonders if the fake fantasy products are experiencing brisk sales at the moment.”

As a result, Judge Seeger denied plaintiff’s motion for reconsideration, thereby refusing to have an immediate hearing on the plaintiff’s TRO. In making this ruling, the court apparently felt that plaintiff’s counsel had not tempered their client’s sense of urgency appropriately in light of the bigger picture. In a line I may have embroidered on a pillow, the court quoted Elihu Root: “About half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop.” In the court’s final lines, Judge Seeger put the TRO in perspective for the plaintiff: “The world is facing a real emergency. Plaintiff is not. The motion to reconsider the scheduling order is denied.”

This opinion reminds us all that we need to keep things in perspective, especially now when the real challenges we are facing are literally life or death. But hopefully, just like Judge Seeger, we’ll all be able to find moments of levity in the chaos.

In the meantime, if you have the ability to help others less fortunate than you, please check out some of these resources to see what you can do. While social distancing is crucial right now, we also all need to come together as a community to overcome this global challenge.

Finally, if you run out of shows, blogs, and podcasts to binge while sheltering at home, feel free to check out any or all of the 682 state and federal cases on Westlaw that include the word “unicorn” somewhere in the case.

Stay healthy and stay home, legal geeks of the world!!

20-cv-1666 -- Unicorn Order -- Art Ask Agency 3-18-20

Mandalorian Guardianship Mock Trial at SDCF 2020

By

Josh Gilliland

-

March 12, 2020

0

The Armorer told the Mandalorian, “A Foundling is in your care. By creed, until it is of age or reunited with its own kind, you are as its father. This is the way.”

Would a court appoint the Mandalorian as The Child’s guardian? Law students Claudia Salinas (California Western School of Law), Denise Barnes (Thomas Jefferson Law School), Leasly Salazar (Southwestern Law School), and Brian Mallard (USD School of Law), argued before Judge Emily Spears at San Diego Comic Fest 2020 these complex issues of law.

This slideshow requires JavaScript.

Can the Manufacturers of Battle Droids be sued for Damages?

By

Josh Gilliland

-

February 29, 2020

0

The Separatists used the B1 Battle Droid and B2 Super Battle Droid during the Clone Wars against civilians. Can Baktoid Combat Autom, the manufacture of the droids, be sued under any legal theories for injuries and deaths caused by their droids? What can we learn from claims against gun manufacturers on whether these cases would be successful? Can litigation over drone strikes offer any legal relief?

Factual Background of the Battle Droids

The Battle Droids were the foot soldiers of the Separatists and required command systems to operate. The B2 Super Battle Droid were larger, tougher, and more expensive droids that did not require a command system to operate.

Can Baktoid Combat Autom Be Sued under Common Law Negligence for Product Defect?

Survivors of a shooting rampage sued a gun manufacture claiming the negligent product design. The test for recovery “involves a balancing of the likelihood of harm to be expected from a machine with a given design and the gravity of harm if it happens against the burden of the precaution which would be effective to avoid the harm.” Merrill v. Navegar, Inc., 26 Cal. 4th 465, 479 (2001). The plaintiff’s theory was the benefit of making assault weapons “available to the general public –which were nonexistent–did not outweigh the risk they might inflict serious injury or death when discharged.” Id, 470.

The plaintiff was barred from recovery on this theory because Civ. Code, § 1714.4(a) prohibited such recovery, because gun manufacturers may not be held liable in a products liability action. Id. The cited code section stated:

(a) In a products liability action, no firearm or ammunition shall be deemed defective in design on the basis that the benefits of the product do not outweigh the risk of injury posed by its potential to cause serious injury, damage, or death when discharged.

(b) For purposes of this section:

(1) The potential of a firearm or ammunition to cause serious injury, damage, or death when discharged does not make the product defective in design.

(2) Injuries or damages resulting from the discharge of a firearm or ammunition are not proximately caused by its potential to cause serious injury, damage, or death, but are proximately caused by the actual discharge of the product.

Cal. Civ. Code section 1714.4 (repealed in 2002).

The Civil Code section was updated in 2003 to now state the following:

Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself. The design, distribution, or marketing of firearms and ammunition is not exempt from the duty to use ordinary care and skill that is required by this section. The extent of liability in these cases is defined by the Title on Compensatory Relief.

Cal. Civ. Code § 1714(a).

If gun manufacturer liability is litigated as a classic negligence case, the test is whether there was (1) duty; (2) breach; (3) causation; and (4) damages. Ileto v. Glock Inc., 349 F.3d 1191, 1203 (9th Cir. 2003), citing Martinez v. Pacific Bell, 225 Cal. App. 3d 1557; see also 6 Witkin, Summary of Cal. Law, Torts § 732, at 60-61 (9th ed. 1988).

The 9^th Circuit found in a case with allegations the defendant gun manufacturers created a secondary firearms market that was intentionally directed at supplying guns to prohibited gun purchasers had a question of fact of whether the defendant manufactures had a duty of care to prevent those who were prohibited from buying guns from buying guns, thus breaching their duty of care. Ileto v. Glock Inc., 349 F.3d 1191, 1204 (9th Cir. 2003).

In subsequent litigation against gun manufacturers and distributors for failing to take proactive steps to control the practices of the downstream sale of guns with a high risk of guns being diverted to criminals, the court found there was not enough evidence to support the plaintiff’s case. In re Firearm Cases, 126 Cal. App. 4th 959, 972 (2005).

The above cases do not point to relief for those injured by droids during the Clone Wars, but do point to potential recovery with those who might have purchased Battle Droids in a secondary market after the Clone Wars.

Can Baktoid Combat Autom Be Sued under Product Defect Litigation

In a case where a three-year-old child found and fatally shot himself with a gun, the plaintiffs claimed the gun was defective and unreasonably dangerous as designed because of a lack of child safety devices. The court found there was no malfunction of the gun, because it acted as the gun was intended to act. As there was no malfunction, there was no risk/utility test for further analysis. Halliday v. Sturm, Ruger & Co., 792 A.2d 1145, 1146 (Md. 2002).

The analysis for Battle Droids would have a very similar result if the issue were solely whether Battle Droids were dangerous. As a weapon of war, they are indented to kill enemy combatants and thus inherently dangerous. However, the issue can turn to product defect litigation if the droids kill those who are not enemy combatants. For example, in the episodes Innocents of Ryloth and Liberty on Ryloth, Battle Droids are clearly used against the civilian population of Ryloth. This raises the question of whether Battle Droids had any programming to only target military targets and not civilians. If they had been programmed for military targets and fired on civilians, this opens the issue of war crimes, and whether the droids committed a war crime because of a program defect.

Can Baktoid Combat Autom Be Sued under Ultrahazardous Activity?

In a civil lawsuit against a gun manufacturer after a husband attempted to murder his wife which left her paralyzed, the plaintiff sued under the tort doctrine of ultrahazardous activity. She had a novel theory “since handguns are manufactured to injure or kill people, and since it is a statistical certainty that some handguns are actually used to injure or kill people, the handgun manufacturer should bear strict liability for the resulting damages.” Copier by & Through Lindsey v. Smith & Wesson Corp., 138 F.3d 833, 834 (10th Cir. 1998).

The test for strict liability under Utah law from an abnormally dangerous activity for harm resulting from the activity consists of the following factors:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous attributes.

Copier, at *836.

The court rejected the plaintiff’s arguments, because the test applies to the use of handguns, not the manufacture. Id. As prior case law addressed strict liability for gasoline leaking from the operation of gas stations or the use of dynamite for blasting, the issue was the use, not the manufacture of those materials. As the rules for strict liability were inapplicable to the manufacture of handguns, there was no recovery for the plaintiff. Id.

While these cases seem harmful to those who would want to sue a droid manufacturer, it does raise a possible recovery for how Battle Droids were used in combat. War is inherently an ultrahazardous activity. However, consider Lok Durd’s use of the experimental deforestation weapon in “Jedi Crash.” The use of the weapon itself on the Lurmen would have been a war crime, because the Lurmen were a civilian population under the Separatists control (Geneva Convention Article 4); the extermination of protected persons (Lurmen) would violate Article 32 of the Geneva Convention; and the weapon was an unnecessary scientific experiment. As Battle Droids were used in this war crime, there could be an argument that the droids’ actions should be measured as an ultra hazardous activity.

Is the use of Drones comparable to Droids?

In a case with a plaintiff claiming a drone strike in Khashamir was “mistaken and not justified,” the court held that issues at bar were political questions beyond the court’s judgment. Ahmed Salem Bin Ali Jaber v. United States, 861 F.3d 241, 247 (2017). The Court explained, “it is not the role of the Judiciary to second-guess the determination of the Executive, in coordination with the Legislature, that the interests of the U.S. call for a particular military action in the ongoing War on Terror.” Id. It is one thing to review the Executive Branch holding an enemy combatant; it is another to second-guess whether it was right to fire a missile. Id.

What does this mean for recovering against Baktoid Combat Autom for damages from droids? The manufacturer would be the wrong defendant; as such questions would be best framed against the Separatist government officials in a war crimes trial, not in a product defect or negligence action.

Can Baktoid Combat Autom Be Free From Liability?

It is extremely difficult for victims of droids to recover in court for damages sustained from Battle Droids and Super Battle Droids. There are serious issues of war crimes committed by Separatists who used Battle Droids against civilians, but that is a basis for international criminal courts, not civil litigation. There could be liability for Baktoid Combat Autom for Battle Droids that were sold in secondary markets used outside of the Clone Wars, but there is significant challenges to recovery under that theory as well.

May the Injustice Be With You: The Jedi Trial of Ahsoka Tano

By

Thomas Harper

-

February 20, 2020

0

The Clone Wars makes its triumphant return in less than 24 hours, which means we here at The Legal Geeks are bound by law to take up one of the most controversial legal issues in the entire series: The Jedi trial of Ahsoka Tano.

For those in need of a refresher, after a shocking bombing at the Jedi Temple, Ahsoka found herself framed for the attack. Facing accusations of murder and treason, Ahsoka was hauled before the Jedi Council to face judgment. Although the Jedi Order is supposed to be a bastion of truth and justice, those principles seemed to Force levitate right out the window when it came to handling accusations against Ahsoka.

Ahsoka’s trial before the Jedi High Council was a shocking turn of events that saw one of the brightest young Jedi expelled from the Order. It was the first peek into one of the most solemn inner-workings of the Jedi Order, in which Jedi face judgment from their own. Jedi Council members performed multiple roles during the proceeding, including receiving evidence, cross-examining Ahsoka, and rendering a decision on her guilt and future in the Order.

While the real-world military sadly lacks lightsabers, Force levitation, and sweet padawan braids, there is a robust justice system that includes a process very similar to what Ahsoka faced before the Council. Apart from courts-martial, which are criminal trials, a service member can also face a separate adverse administrative process, which can kick them out of the service and strip them of certain benefits.

Real-world Army officers who are accused of misconduct can be forced to appear before a “board of inquiry.” Instead of being presided over by a judge like in a normal criminal trial, a board of inquiry is comprised of three senior officers, whose job is to consider evidence, reach a conclusion about the truth of the allegations, and then decide whether the officer should be kicked out of the service. Much like an actual board, Ahsoka is a Jedi holding the military rank of Commander, which subjects her to judgment before a group of the most senior members of the Jedi Order.

Army boards of inquiry would be far more interesting if everyone was issued a lightsaber and a cool Jedi robe.

Just as the Jedi Council did not criminally convict Ahsoka or throw her in prison, Army boards of inquiry are limited to deciding whether an Army officer should remain in the service. A real-world board of inquiry has no power to hand down criminal convictions, fines, jail time, or other such consequences one might face at trial. Ahsoka’s Jedi trial was similarly limited in its scope, with the Order’s judgment being limited to expelling Ahsoka from the Order, while the possibility of criminal punishment was left to the Republic and everyone’s favorite set of cheekbones, Wilhuff Tarkin.

While Ahsoka’s proceeding was called a “trial,” she very clearly didn’t receive all the rights we afford to defendants. While this doesn’t seem fair, even real-world boards of inquiry don’t give military officers every bit of available due process. Those limited rights stem from the limited scope of the board. Since officers don’t face a criminal conviction or jail time at a board, there is less of a need for robust due process protections.

For example, unlike at a criminal trial, an officer has no Constitutional right to confront the witnesses at a board of inquiry. That means that a witness statement could be used to present certain facts instead of calling that witness to the stand to testify. Since the Jedi Council was only considering expelling Ahsoka from the Order, she similarly had fewer rights than she did at her eventual Republic criminal trial.

Little Known Jedi Fact: Mace Windu also wields a purple gavel at all Jedi Order proceedings.

But before you go give a high five to Mace Windu and a low…low five…to Yoda for offering Ahsoka some due process, it’s important to realize the huge number of problems with Ahsoka’s “trial”—problems which combined to railroad her out of the Order.

Even though military officers don’t get every bit of due process protection at a board, they still enjoy some protections, which are key to ensuring a fair and impartial process. One of the biggest problems with Ahsoka’s trial is her lack of defense counsel. Unlike Ahsoka’s subsequent Republic trial, where she is deftly represented by Padmé (who may face her own charge of practicing Star Wars law without a license), she faces the Jedi Council without the benefit of an attorney. Even though Anakin Skywalker accompanies her to the proceeding, he plays no role—except for nearly starting a brawl with the Temple Guards after the verdict is handed down.

A trained and experienced defense counsel would have almost certainly helped her case. Military officers are assigned a military defense counsel to represent them before a board of inquiry. The counsel plays a critical role in protecting the officer, from helping prepare the case to questioning witnesses and presenting arguments. It’s unclear whether the Order has any trained Jedi attorneys (totally unbiased opinion: they ABSOLUTELY should), but assigning Ahsoka a more senior Jedi like Tera Sinube or Cere Junda to her case would have almost certainly helped. Where Ahsoka seemingly struggled to present her case to skeptical Council members, a more senior Jedi could have better broken through some of that bias by leveraging their own reputation and experience.

Yelling and beating up Temple Guards doesn’t count as expert legal advocacy, Anakin.

The lack of impartiality amongst the Council is another massive shortcoming of Ahsoka’s trial. Real-world boards of inquiry are comprised of senior officers who are required to be impartial and detached from the allegations. In most cases they do not know the accused officer and have no prior knowledge of the allegations. Before the board begins military defense counsel have the ability to question the officers on the board about their possible biases or preconceived notions, similar to how jurors are questioned before a criminal trial. If a board member is biased, the accused officer can challenge a board member and potentially get them replaced.

In Ahsoka’s case, the Jedi Council members who sat in judgment were about as far from impartial as you can get. From Plo Koon, who had known Ahsoka since discovering her on the planet Shili, to Obi-Wan Kenobi, who had served extensively alongside Ahsoka in combat, each of the Council members knew her intimately. Even though some of the Council’s prior relationships likely colored opinions in Ahsoka’s favor, those relationships nonetheless would have made it extremely difficult for Council members to remain fully impartial.

However, it is the Council’s prior knowledge of the case that posed one of the biggest issues. In the real world, board members have zero or very little prior knowledge of the case. This is by design, as it allows them to hear evidence without preconceived notions or opinions. It is then up to the military attorney prosecuting the case the present the facts to the board through witnesses and other evidence. In Ahsoka’s case, the Jedi Council had perhaps more prior knowledge about the case than any other Jedi in the Order. From the immediate aftermath through the investigation, the Council was kept informed of virtually every detail of the case. This information clearly colored their judgment, as Council Members like Mace Windu weaponized their pre-existing knowledge to pointedly cross-examine Ahsoka.

Moreover, their deep emotional connection to the case undoubtedly compromised their judgment. The attack itself represented a brazen and deadly assault on the home of the Jedi and the Council. The loss was clearly felt deeply by the Council, who attended the funeral of the Jedi killed in the attack, with Yoda delivering a stirring eulogy for the fallen. While Jedi might generally pride themselves on their lack of attachment, the pull of this connection was on display during the trial, with Council members seeming to care more about assigning blame than about a legitimate search for the truth. Forcing Ahsoka to plead her case before such a deeply biased and partial body virtually guaranteed her expulsion from the Order.

Jedi Council Schedule: 10am-Attend funeral of bombing victims; 12pm-Lunch at the Jedi Cafeteria; 1pm-Sit in judgment of the person accused of killing the victims.

As if Ahsoka didn’t face enough of an uphill battle, the actual conduct of the trial was rife with unfairness. While the Jedi Council took their time to conduct a relatively extensive investigation, Ahsoka was barely afforded any time to prepare for her trial. An actual military officer would receive advance notice of the board, which gives them a meaningful opportunity to prepare a defense. Ahsoka is given none of that time or access to evidence, and is instead hastily brought before the board and forced to slap together a case.

The lack of time for preparation is a serious problem given how evidence is presented at Ahsoka’s trial. In a normal military board proceeding, there is no presumption of guilt. The Army as an organization bears the burden of proving the allegations and persuading board members to kick the officer out of the service. An attorney for the government is assigned to present evidence and make arguments in order to prove the Army’s case.

The Jedi Order turns that concept on its head. Rather than sit and hear a complete set of evidence, Council members walk in having made a range of assumptions about certain facts. The end result is Ahsoka being forced into the deeply unfair position of having to prove her own innocence. Without the ability to have counsel or line up favorable witnesses, she is also forced to give up her right to remain silent, which is something actual officers are entitled to. Given the possibility those statements could be used against her at a separate criminal trial, this put Ahsoka in a precarious position.

The most appalling injustice of Ahsoka’s trial: Not giving her so much as a three-legged stool to sit on during the proceedings.

The degree to which the deck was stacked against Ahsoka became readily apparent as the Council rendered its verdict. After taking almost no time to hear evidence or allow Ahsoka to present her case, Yoda announced that the Council had already reached its verdict. Under normal circumstances, members of a board would deliberate over the evidence in private, much like a jury in a criminal case. Here, the Council devoted exactly zero minutes to deliberation before delivering its pre-cooked verdict. Anakin immediately recognized how unfair the circumstances were, calling out the Council and nearly starting an epic battle royale with Temple Guards in the trial chamber.

In the end, the Jedi Order offered about as much due process to Ahsoka as Jabba the Hutt gave Han before trying to throw him in the sarlacc pit. For an organization that prides itself on wisdom, knowledge, and justice, the Jedi Order displayed a shocking lack of those qualities in its treatment of Ahsoka. The Jedi Council’s knee-jerk lunge towards quick justice is symbolic of the larger fracturing of the Jedi Order under the stress of the Clone Wars.