Sheltering in Place with Ultraman

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March 27, 2020

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the states retain the general police power – they have all the powers of government except those that are explicitly withdrawn from their authority by the constitution.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

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March 24, 2020

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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

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March 12, 2020

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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.

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Can the Manufacturers of Battle Droids be sued for Damages?

By

Josh Gilliland

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February 29, 2020

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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

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February 20, 2020

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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.

Engage Star Trek Picard with Legal Analysis!

By

Josh Gilliland

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February 14, 2020

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Steve Chu and I are lifelong Star Trek fans. Join us for geeking out over Star Trek Picard and the many legal issues presented in the first three episodes.

Remembrance

Maps and Legends

The End is the Beginning

The Mandalorian as a Guardian – Time to Update the Tax Withholdings

By

Jed Bodger

-

January 22, 2020

0

I. Introduction

As I watched the Mandalorian, Season 1, there were clearly some tax issues raised, which I’m sure you all thought while you were watching as well. Something along the lines of “why is Disney so focused on ensuring tax literacy through the guise of this excellent TV show?” Well, this post deals with that so, be forewarned, SPOILERS AHEAD, as I will discuss the conclusion of the season and it’s interaction with tax law. Let’s get started shall we.

II. Background

At the conclusion of season one, the Child is placed in the hands of its[1] Mandalorian protector, much the same way Mando was protected by a Mandalorian guardian as a child/youngling. Once a youngling is taken under the care of a Mandalorian, the Mandalorian creed demands the Mandalorian care for the youngling and raise them as their own. This is the way. Mando therefore has an obligation to raise the Child in the Mandalorian religion and belief, meaning *fingers crossed* we are going to get the child in traditional Mandalorian armor in the coming season (I for one can’t wait to see a Mandalorian helmet with ears!).[2] What this really means is that Mando has potentially adopted the Child, or even if there is no actual adoption, the Child has been placed in the care of Mando, and will be considered a dependent for tax purposes.

Now that Mando has a new dependent in the household, he has some paperwork to do. The end of a year (or TV season) and life changing events are always a good time to review your tax withholdings.

III. Tax Withholding Generally

Individual federal income taxes are a “pay as you go” tax meaning that individuals are required to pay in a minimum amount on their account during the year, either through estimated quarterly payments, or as applicable to most individuals, through tax withholding on wages paid by employers. Generally speaking, taxes are withheld from employee paychecks by the employer and remitted to the federal government on the employee’s behalf.[3] For simplification, let us make an assumption that the guild and its members operate in an employer/employee style relationship.[4]

IV. Wage Withholding As the Tax Withholding Mechanism

The amount of an employee’s tax withholding is determined by the elections the employee makes on Form W-4. Form W-4 allows employees to determine the appropriate amount of withholding from their employer. The Internal Revenue Service (IRS) recommends that employees review their withholding determinations annually, but especially when the employee experiences “life changes” such as marriage, divorce, birth or adoption of a child, home purchase, retirement, etc.[5]

a. Wage Withholding by Employer

Employers are required to withhold income tax from wages, salaries, or other compensation paid to employees at rates designed to equal the tax liability that is anticipated will be imposed on these payments.[6] At periodic intervals the employer must report and pay over to the IRS the amounts withheld from its employees.[7] This withholding helps to ensure that tax compliance is automatic and funded, helping to eliminate the compliance gap associated with tax compliance. Considering the number of individual returns filed, this withholding funds the majority of the tax collection made by the US Treasury Department.

While the Employer will remit the tax withheld from the employee’s wages, the employer is directed how to withhold on behalf of the employee based on Form W-4. Each employee is required to furnish their employer Form W-4 which communicates the withholding status of each employee.[8] On the basis of the information provided on Form W-4, the employer withholds the appropriate amount of tax, and files a quarterly return of employment taxes withheld on Form 941.[9] The employer also provides the employee with a Form W-2 reflecting the total wages paid and amount of tax withheld on or before January 31 after the close of the calendar year.[10] The amounts of tax withheld are remitted to the IRS quarterly or deposited with a depository bank authorized by the IRS pursuant to a specified depository procedure based on the total amount of taxes withheld.[11]

This is the Guild’s responsibility; however, they operate under the direction of Mando as to how much to withhold per pay period. And Mando’s life has changed, as he is now the guardian of the Child, so his withholding exemptions should be adjusted accordingly.

b. Wage Withholding Exemptions and Employee Adjustment of Form W-4

Assuming that Mando takes the IRS advice and reviews his withholdings on an annual basis, he will need to update his withholding calculations in order to account for the new dependent in his life.

i. Determination of Whether the Child is a Dependent

As depicted within the Mandalorian, the Child does not appear to have a family (that we have seen), it has been kidnapped, not once, but twice, with the second kidnapping resulting in the Child’s connection with Mando. Therefore, we will assume that there is no other family for the Child, and that Mando is currently its appropriate (and dare we even say lawful) guardian.

Generally, a dependent is an individual who is either a qualifying child or a qualifying relative of the taxpayer.[12] The taxpayer has the burden of proving that a person claimed as a dependent exists and qualifies as a dependent.[13] Here, Mando needs to demonstrate that the Child is a “qualifying child” for IRS purposes.

ii. Qualifying Child

A qualifying child, with respect to any taxpayer for any tax year, is an individual who satisfies five conditions.[14] First, the individual must bear a qualifying child relationship to the taxpayer.[15] Second, the individual must have the same principal place of abode as does the taxpayer for more than one-half of the tax year.[16] Third, the individual must meet the age requirements.[17] Fourth, the individual must not have provided more than one-half of his or her own support for the calendar year in which the tax year of the taxpayer begins.[18] Fifth, for tax years beginning after 2008, the individual must not file a joint return, other than a joint return filed solely as a claim for refund of estimated or withheld taxes, with the individual’s spouse for the tax year beginning in the calendar year in which the tax year of the taxpayer begins.[19] In Mando’s case, the only items that really need examination are the first (qualifying relationship); second (principle place of abode); and third (age requirements).

1. Qualifying Relationship

A qualifying child relationship exists if the individual is any of the following:[20] (i) a child of the taxpayer;[21] (ii) a descendant of a child of the taxpayer;[22] (iii) a brother, sister, stepbrother, or stepsister of the taxpayer;[23] or (iv) a descendant of a brother, sister, stepbrother, or stepsister of the taxpayer.[24]

These appear to be difficult roles for Mando to slot into with regard to the Child. Mando seems to look more like a “foster parent” than an adoptive parent at this stage in the series. Generally speaking, “foster child” describes a relationship in which a child is not living with either of the child’s natural parents and has not yet been legally adopted.[25]

Foster children are considered part of a household, and therefore eligible for determination of being a qualified child if the foster child is “a member of the household for more than one-half of the period after the individual’s birth, adoption, or placement for adoption or in foster care or before the individual’s death.”[26] Being a “foster child” means that the Child is considered a “child of the taxpayer.”[27] This effectively demonstrates that foster children can be considered dependents if they are members of the household. As such, we can treat the Child as a “qualifying relative” to Mando.

2. Principle Place of Abode

I mention this only because I think that Mando sleeps in his ship. That seems uncomfortable, but that seems to be the case. So, yeah, looks like they share the same principle place of abode. But, let’s explore.

To meet the residency requirement, the qualifying child must have the same principal place of abode as the taxpayer for more than one-half of the tax year. A person’s “principal place of abode” is the primary or main home or dwelling where the person resides.[28] So, a flying ship, so long as they are both residing in it should qualify.

If, during a taxpayer’s tax year, the taxpayer adopts a child, a child is lawfully placed with a taxpayer for legal adoption by that taxpayer, or an eligible foster child is placed with a taxpayer, the residency requirement for a qualifying child is treated as met if the taxpayer and the child have the same principal place of abode for more than one-half of the portion of the tax year as required for a qualifying child following the placement of the child with the taxpayer.[29] So, as long as Mando and the Child are together, if they spend more than ½ of their nights together in that cramped ship, again, they should meet the residency requirements.

Interestingly, a qualified kidnapped child is treated as having the same principal place of abode as the taxpayer (yes, this exists in the internal revenue code).[30] A qualified kidnapped child is a child of the taxpayer who satisfies two conditions.[31] First, the child must be presumed by law enforcement authorities to have been kidnapped by someone who is not a member of the child’s family or the taxpayer’s family.[32] Second, the child must have had, for the tax year in which the kidnapping occurred, the same principal place of abode as did the taxpayer for more than one-half of the portion of the year before the date of the kidnapping.[33] This treatment ends as of the taxpayer’s first tax year beginning after the earlier of the calendar year in which there is a determination that the child is dead or the calendar year in which the child would have attained age 18.[34]

Here, while it is safe to assume that the Child was kidnapped at some point (and possibly even kidnapped by Mando), the relationship has shifted, and Mando is more in line with a foster parent, so that analysis should be applied. However, during the period when the Child was first kidnapped, its biological parents could have relied on the kidnapped child statute to maintain their dependent tax deduction. What a wild universe.

3. Age Requirements

This one is tricky. Technically, the Child does not meet the age requirement as it is 50 years old. However, if you take a human average life and the average life of the Child’s species, then there may be an argument that the Child’s age (50) is not a hindrance to making the Child a dependent.[35]

The age requirement is met if an individual satisfies any one of three tests, so long as the taxpayer claiming the individual as a qualifying child is older than the child.[36] The first test is met if the individual has not attained the age of 19 as of the close of the calendar year;[37] the second test is met if the individual is a student who has not attained the age of 24 by the end of the calendar year;[38] and the third test is met if the individual is permanently and totally disabled[39] at any time during the calendar year.[40] The IRS has ruled that, for these purposes, a child attains a particular age on the child’s birthday.[41] In addition to satisfying one of the three tests above, a taxpayer claiming the individual as a qualifying child must also be older than the child.[42]

Here, the Child has both obtained an age older than the highest available student age (24) and at the ripe young age of 50, is potentially older than Mando (although that is not free from doubt). Utilizing the rationale for converting the Child’s age into human years, we see that the Child is effectively only 5, and thus we are able to drive the Child’s age within the qualifying ages, and drive Mando’s age in excess of the Child’s, meaning that we can make the case that the Child and Mando satisfy the age requirements of IRC §152.

c. Impact of Determining the Child is a Dependent

Introduction of a new dependent into one’s life, such as the Child for Mando, is a major life event, as well as a major tax event. Mando could previously claim an additional allowance for a dependent and may still qualify for the Child Tax Credit, Child Care Tax Credit and other tax breaks. For tax years beginning before January 1, 2018 an individual taxpayer was allowed one personal exemption themselves and one for each dependent. For tax years prior to 2018, the exemption was $4,050 per dependent. After passage of the tax cuts and jobs act (TCJA) personal exemptions were eliminated and the standard deduction was increased. This means that the deduction for personal exemptions such as for a taxpayer, a taxpayer’s spouse, and a taxpayer’s dependents is $0 for tax years 2018 through 2025.[43] While dependent deductions are no longer available, the Child Tax Credit is still available, and the value has been increased from $1,000 per child to $2,000 per child. If Mando can’t qualify the Child for the Child Tax Credit, he could possibly still take a benefit from the credit for other dependents, which is significantly less than the child tax credit, but hey, it’s not nothing ($500 per qualifying dependent).

Additionally, for Mando, if he ultimately adopts the Child, he is eligible for the adoption tax credit. However, this post is not about the tax benefits of having kids, it’s about how to update your W-4 if you are a Mandalorian who happens to foster or adopt a young force powerful creature. The addition of a dependent in your life may still allow Mando to reduce his withholding to account for the added tax benefits, providing him more in his pocket from his paycheck. While the elimination of the personal exemption will reduce the benefit Mando sees in his after tax paycheck, Mando should still update his tax forms after adding a dependent to his household.

d. How to Update Form W-4

As shown above, the Guild, as Mando’s employer, has an obligation to withhold and remit taxes on Mando’s behalf, collected from his salary. The amount of the withholding is based on the Form W-4 Mando provided the Guild, and the number of allowances he claims. While Mando is fearless in gun fighting scenarios, he should be similarly confident when it comes to updating his W-4. The IRS has made it relatively easy to calculate one’s allowances in order to determine what the appropriate withholding is.

Previously, withholding allowances and total withholding was determined by walking through the worksheet provided on the 2^nd page of Form W-4. In certain instances, there are additional instructions available from the IRS; however, that is relatively uncommon. When Mando decides he needs to update his withholdings, he will likely follow the workbook available at IRS.gov through the “Withholding Estimator” in order to determine what his appropriate withholdings should be, now that he is the guardian of a youngling.[44] This tool allows Mando to answer some questions to determine what his allowances are, and what his withholding should be.

Withholding allowances are a tool used by the IRS in determining appropriate withholdings based on current marginal rates. “Withholding allowance” specifically refers to an exemption from tax which reduces how much income tax an employer deducts from an employee’s paycheck. The relationship between exemptions and taxes are inverse. The more allowances claimed the less tax will be withheld from the employee’s paycheck. The inverse is also true, because the fewer exemptions claimed will result in greater tax withholding from the employee’s paycheck.

As noted, Mando now has a new dependent, so he likely has a higher number of allowances to claim, meaning he will have less tax withheld, and more cash in his pocket per paycheck.

V. Conclusion

Ultimately the end of the Season or the End of the year is always a good time to reassess things. Similarly, when there is a significant life change that occurs, it is a good time to review the items that impact your life, in particular your financial life. Now that Mando has adopted the Child, he should revisit his Form W-4 and determine if he needs to update his allowances to ensure that his tax withholdings match his estimated tax due, keeping additional dollars in his pocket, to ensure that he can keep the Child flush in fresh frogs thanks to an influx of funds.

[1] My daughters and I have a running debate about the gender of the child, as it’s never actually revealed, so we will leave it as “it” for these purposes.

[2] My wife and I also have a philosophical debate currently raging as to whether the titular “Mandalorian” is actually Mando, or the Child, as the Child ends up a Mandalorian youngling when he is placed in the guardianship of Mando in the last episode of season 1. Just another layer of credit that the show deserves. It’s really good

[3] Independent contractors and individuals who are not employees have their compensation reported via Form 1099.

[4] A savvy attorney would have structured the activities as those of independent contractors, and considering that payments are made solely based on bounties, it is realistic to conclude that the Guild and the bounty hunters that do work for it would be considered independent contractors, but for these purposes, we will assume that the guild operates as an employer, and Mando is considered an employee.

[5] See IRS “Tax Withholding for Individuals”, available at https://www.irs.gov/individuals/employees/tax-withholding (last accessed 1.19.2020).

[6] Internal Revenue Code (IRC) §3401; IRC §3509.

[7] IRC §3501; Treas. Reg. §31.6011(a)-4.

[8] Treas. Reg. §31.3402(f)(5)-1(a).

[9] IRC §3501; Treas. Reg. §31.6011(a)-4.

[10] Treas. Reg. §31.6051-1.

[11] IRC §6302(c).

[12] IRC §152(a).

[13] See Brown v. Commissioner, 61 T.C.M. 2832, 2833–34 (1991); Lerch v. Commissioner, 53 T.C.M. 1101, 1119 (1987), aff’d on other issues, 877 F.2d 624 (7th Cir. 1989).

[14] IRC §152(c)(1); Prop. Reg. §1.152-2(a).

[15] IRC §152(c)(1)(A); Prop. Reg. §1.152-2(b).

[16] IRC §152(c)(1)(B); Prop. Reg. §1.152-2(c).

[17] IRC §152(c)(1)(C); Prop. Reg. §1.152-2(d).

[18] IRC §152(c)(1)(D); Prop. Reg. §1.152-2(e). See Kho v. Commissioner, T.C. Summ. Op. 2019-18 (foster children who did not have same place of abode as the taxpayer for more than one half of tax year, and for whom taxpayer did not provide more than one half of support for calendar year in which tax year begins were not eligible qualifying children or qualifying relatives).

[19] IRC §152(c)(1)(E); Prop. Reg. §1.152-2(f).

[20] See e.g. §152(c)(2); Prop. Reg. §1.152-2(b).

[21] IRC §152(c)(2)(A).

[22] IRC §152(c)(2)(A). See also Cowan v. Commissioner, T.C. Memo 2015-85 (because Tax Court determined that T can no longer claim X as her qualifying child, X’s child cannot be considered T’s qualifying child by virtue of being descendant of X).

[23] IRC §152(c)(2)(B).

[24] IRC §152(c)(2)(B).

[25] See, e.g., O’Neal v. Wilkes, 439 S.E.2d 490 (1994). There is a full body of case law on what constitutes a foster child, so we will not focus on it here. We can just assume that Mando is the foster parent of the Child.

[26] Prop. Reg. §1.2.-2(d)(4).

[27] IRC §152(f)(1)(A)(ii) (defining “child” as “an eligible foster child of the taxpayer”).

[28] See e.g. Prop. Reg. §1.152-4(c)(1).

[29] Prop. Reg. §1.152-4(d)(2).

[30] IRC §152(f)(6)(A) (flush language); Prop. Reg. §1.152-4(e)(1).

[31] IRC §152(f)(6)(A).

[32] IRC §152(f)(6)(A)(i).

[33] IRC §152(f)(6)(A)(ii).

[34] IRC §152(f)(6)(D).

[35] The current average human lifespan is 79 years. Yoda, the only other creature in the star wars universe who appears to be of a similar species to the Child lived to be over 800 years old. If you divide 800 and 50 by ten, to get human equivalent years, the Child would be the human equivalent to 5 years old. Clearly within the age limitations for IRS purposes.

[36] IRC §152(c)(3); Prop. Reg. §1.152-2(d).

[37] IRC §152(c)(3)(A)(i).

[38] IRC §152(c)(3)(A)(ii).

[39] IRC See §22(e)(3).

[40] IRC §152(c)(2)(B).

[41] Rev. Rul. 2003-72.

[42] IRC §152(c)(3).

[43] IRC §151(d)(5), added by the 2017 tax act, Pub. L. No. 115-97, §11041.

[44] See IRS “Tax Withholding for Individuals”, available at https://www.irs.gov/individuals/employees/tax-withholding (last accessed 1.19.2020); https://www.irs.gov/individuals/tax-withholding-estimator (last accessed 1.19.2020).