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Can the Ghostbusters be sued for not coming to your assistance?

CAN THE GHOSTBUSTERS BE SUED FOR NOT COMING TO YOUR ASSISTANCE??

By: Steve B. Chu, with help from Cameron J. Chu and Brandon C. Chu

We’ve all been there: enjoying a peaceful day at the park, the kids are playing, and we line up for a sumptuous healthy repast of hot dogs, only to be interrupted by an appearance of the supernatural kind . . .

 

 

 

The horror!!

What happens now?

Who can possibly help us before the focused, non-terminal repeating phantasm, also referred to as a class 5 full roaming vapor, aka “Slimer” makes off with our healthy hot dogs???

 

 

 

 

 

Of course! We call our faithful paranormal investigators: the Ghostbusters! They are still busting ghosts after all these years, and doing it well I might add. They would handle the job and protect both our fun and our food, all at the same time. No slime on these hot dogs here!

Now, in the legal world, we live in the realm of “what if?” So what if the Ghostbusters were NOT so quick to respond? In fact, what if they didn’t particularly care for our paranormal dilemma? What if something were to happen that went a little like this . . .

 

 

 

 

 

The Ghostbusters NOT answering the call??!! Chaos would ensue: ten years of darkness, cats and dogs living together, you get the picture. So now what? Could an aggrieved park-goer now sue the Ghostbusters for their inaction?

The argument for the case would probably go something like this: the Ghostbusters are in the business of protecting people by fighting ghosts, they make their living this way and even advertise that they protect people. And yet, when I actually called them, they didn’t care! They neglected me and all the other poor park-goers. Thanks to them, we had to live with slimy hot dogs. Would such a case stand a chance in a Court of law?

 

 

 

Can the Ghostbusters be sued for not taking action? Under California law, the answer is a resounding no. In order to file a tort lawsuit seeking money damages, one must first show that the person/entity being sued had a legal responsibility to do something they did not do. Or in legal parlance, the defendant must have owed a legal duty to act. The general rule here is that absent some special responsibility, one owes no duty to control the conduct of another, nor to warn those endangered by such conduct. Davidson v. City of Westminster, 32 Cal.3d 197, 203 (1982).

In the excellent IDW Ghostbusters comic, the City of New York reached an agreement with the proton pack carrying team to have them act as a form of deputized law enforcement. So let’s take that example of law enforcement and public entities such as police and firefighters. The law makes clear that generally speaking, one cannot civilly sue public safety officers for not coming to one’s aid.

A long line of California cases protects public safety personnel from being sued based upon the failure to act reasonably in protecting members of the public. Williams v. State of California, 34 Cal.3d 18, 28 (1983); Carpenter v. City of Los Angeles, 230 Cal.App.3d 923, 931 (1990); Davidson, 32 Cal.3d at 203. Recovery has been denied for injuries caused by the failure of police personnel to respond to requests for assistance, the failure to investigate properly, or the failure to investigate at all, where the police had not made some form of promise that they would provide protection to a specific person. Williams, 34 Cal.3d at 28; Carpenter, 230 Cal.App.3d at 931.

In one example, a court found that police had no duty to act when they were engaged in surveillance of a laundromat, a victim was attacked by an assailant, and officers knew there was a similar assault the night before and saw the alleged perpetrator leave and enter the premises several times. Davidson, 32 Cal.3d at 203. The court ruled that a police officer’s mere observation of a citizen’s conduct which might create a risk of harm to others does not create a legal responsibility to control the citizen’s subsequent harmful behavior. Jackson v. Clements, 146 Cal.App.3d 983, 987 (1983).

 

 

 

 

 

The rationale for this rule? It is the age old “slippery slope.” As California Courts have recognized: “The problem is that a duty to warn in the context of danger existing off premises will seldom be as simple as passing along unverified information. Inevitably, [the Court] would be imposing not just a duty to warn but a duty to investigate, monitor and evaluate reports of off-premises dangers.”

So the concern is that if we were to allow lawsuits against public officials who are sworn to protect the public and yet fail to do so, we are significantly increasing the potential for lawsuits and people could now sue a police officer for not responding to a call that they personally believe to be meritorious. This would make things more difficult for law enforcement officials to do their jobs as they would have less ability to make their own decisions about where to focus their resources, what investigations to conduct, and how to deploy their personnel.

California also has a specific statute that prevents these type of “failure to act” lawsuits against police. California Government Code sections 818.2 and 845 state that public entities are not liable for failure to provide sufficient police protection service, for failing to make an arrest, or failing to retain an arrested person in custody.

California Courts have specifically held that: “Whether police protection should be provided at all, and the extent to which it should be provided are political decisions which are committed to the policy-making officials of government. To permit review of these decisions by judges and juries would remove the ultimate decision-making authority from those politically responsible for making the decisions.”

(Zelig v. County of Los Angeles, 27 Cal. 4th at 1142 (emphasis added).)

 

So regardless of the ultimate reason for not responding, the law protects the discretion of law enforcement and public safety officials to decide how best to go about their jobs.

Let’s take the comic example we just saw where poor Louis Tully is attempting to cross at a crosswalk before almost being viciously mowed down by a Zombie Cabbie.  What if super-assistant Janine Melnitz, and the Ghostbusting crew were otherwise engaged in all important contests of video games, pool and darts?  If that were the case, could they be sued?

 

The answer would remain a resounding no.  The reason the Ghostbusters do not act is not the concern of the inquiry.  The concern is that Courts are reluctant to impose legal obligations upon people that would force them to take action.

Undoubtedly, most situations where public safety officers don’t show up would likely involve officers who are simply tied up on other cases and unable to be everywhere at once.  One can imagine situations where public safety officers are working long hours, getting inundated with calls for assistance, and despite best efforts they still cannot respond to every call.  The law protects these officers from civil lawsuits for the alleged failure to respond.

 

 

 

Here’s what we would LIKE to happen!!  We would like for the Ghostbusters to hang out in their headquarters, ready to spring into action 24 hours a day, 7 days a week.  They could then respond to a call anywhere within the time it takes for Ecto-1 to make the trip.  Who needs a day off when one is fighting evil paranormal spirits?

Part of the Ghostbusters’ recruiting pitch, should they decide to open up their ranks, could include the notion that people cannot legally force the Ghostbusters to act. The Ghostbusters have the freedom to help, or not help, as they choose.

Now as a practical matter, if the Ghostbusters started refusing calls and leaving people to be slimed in parks and crosswalks, then they would likely start losing business and it would be a public relations disaster. However, from a tort law point of view at least, they cannot be forced to act.

On a related side note, a member of the public should also not be able to prevail in a case against the Avengers or any other superhero for failing to swoop in and save them at the last minute for the reasons already discussed.

Indeed, an individual relying upon a civil tort case to force the Ghostbusters to act is likely to end up feeling like this shining example of comic book fan stereotypes.

Have a safe and Happy Halloween everyone!

Toys and Photography: Cameron, Brandon and Steve Chu.

Directed by: Cameron

Ghosts and staging: Brandon and Cameron

For more Lego fun and shenanigans, plus blooper reels, please take a quick look at these two videos:

 

Motion for Declaratory Relief that Tolkien is Better than Martin

Forth Eorlingas!

The gauntlet is thrown, the die is cast.

Oxford don J.R.R. Tolkien has moved the Court for declaratory relief that every erudite lawyer should recognize that Tolkien is better than Martin.

Who dares to challenge his motion?

“Thus he came alone to Angband’s gates, and he sounded his horn, and smote once more upon the brazen doors, and challenged Morgoth to come forth in single combat. And Morgoth came.”

The Silmarillion: Of the Ruin of Beleriand and the Fall of Fingolfin 

Motion for Declaratory Relief

Contact Us to Post Your Opposition or Amicus Brief 

Lessons in Air Races from Star Wars Resistance

Star Wars Resistance does a wonderful job honoring the flying spirit of air races and test pilots, with homages to Chuck Yeager, “Pancho” Barnes, the Happy Bottom Riding Club, Fireball XL5, and classic anime such as Starblazers, Robotech, and Area 88. It is also pure Star Wars fun.

Star Wars Resistance takes place on the Colossus, a fuel super tanker that functions as a city-state island on the ocean planet Castilon. The Colossus exists to support an economy built upon air races and gambling.

Air racing is a highly regulated activity on Earth. In the United States air races are governed by FAA regulations and local laws. Examples of local regulations include special events requiring use of the airport for air shows, air races, fly-ins, sky diving, require the approval of the Airport Manager and compliance with all FAA regulations. Carson City, Nevada Code of Ordinances Sec. 19.02.020.040. Permits can also be required for events with more than ten aircraft or thirty people. Buckeye, Arizona Code of Ordinances Section 22-1-5.

The procedures for applying for an air race are outlined in FAA Order 8900.1 and directs applicants to use FAA Form 7711-2, Application for a Certificate of Waiver or Authorization. The Accreditation Process outlined in FAA Order 8900.1 includes the following multiple steps:

Pre-application

Formal Application

Document Compliance

Demonstration and Inspection

Accreditation

The required documents for the application include at least the following:

1) Management résumés.

2) Operation manual.

3) General Maintenance Manual (GMM) (as applicable).

4) Aircraft qualification.

5) Minimum pilot qualifications and experience.

6) Pilot qualification (air race card) training program.

7) Air race security plan.

8) Safety operating rules and procedures which include Safety Management Systems (SMS) and/or risk management practices.

9) All air racecourses proposed.

10) Airport analysts and feasibility/airport requirements.

11) Race format and description.

12) Race control procedures.

13) Onsite surveillance plan for validation.

14) Emergency response plan in accordance with Volume 3, Chapter 6, Section 1, subparagraphs 3143A18) and H) and 3144A1), B1), C12).

15) Event management plan, in accordance with Volume 3, Chapter 6, Section 1, subparagraph 3144B1).

There is no question watching a Rodian, Ithorian, and Snivvian, prepare operation manuals and emergency response plans for a closed course air race would be tons of fun, however, it is highly unlikely we will see that in Star Wars Resistance

Can Kaz Recover Damages if Injured in the Fireball? 

Air racing is an inherently dangerous activity. The Resistance pilot and spy Kaz inadvertently found himself in a race within one day or arriving on the Colussus. Pilots who are injured in air races have an extremely difficult time recovering any damages because of the doctrine of primary assumption of risk. The issue for Kaz is whether he assumed the inherent risks of air racing based on his “knowledge and experience” as a pilot. Goodlett v. Kalishek, 223 F.3d 32, 37 (2d Cir. 2000).

In a decision denying a surviving family member’s case for the death of a pilot in an air race, the Court explained that in that lawsuit, “[t]he risk of a fatal crash, whether as a result of a midair collision or some other cause, plainly inheres in one’s participation in this sport, as is evidenced by the fact that there had been several accidents in previous air races that resulted in death or serious injury to pilots and the fact that the sponsoring Association explicitly warns pilots that there is a risk of midair collisions (and that such collisions “usually” result in the deaths of both pilots).” Goodlett, at *37-38.

Kaz flew a plane named the Fireball, which required extensive repairs in order to be flight ready. Moreover, the former pilot turned mechanic Yeager warned Kaz that the Fireball could live up to its name. Kaz had actual knowledge of the risks of flying based on his military experience; knowledge of the second-hand parts used to repair the Fireball; and was told by Yeager not to push the engines in order to avoid an explosion. Based on Kaz’s knowledge of the Fireball and experience as a fighter pilot, the doctrine of primary assumption of risk would bar Kaz from recovering for any injuries he sustained in racing the Fireball around the Colossus.

However, nothing would blow a spy’s cover like a lawsuit…

The Law of Monster Crossovers

Frankenstein Meets the Wolfman is the first time movie characters had a crossover event in a connected universe. The film brought to life many legal issues that attorneys have howled over for decades.

Grave Robbing

Lawrence Talbot was dead at the end of The WolfmanFrankenstein Meets the Wolfman begins with two men who entered the Talbot family tomb and opened Lawrence’s crypt four years after his death to steal cash, a ring, and his watch off his body. This is the literal definition of “grave robbing,” but with a few historical twists.

19th Century cases pertaining to “grave robbing” centered on the removal of a body with the purpose of selling the remains for medical experimentation. State v. Baker, 46 S.W. 194 (Mo. 1898). In the case of Lawrence Talbot, the robbers clearly trespassed into the crypt with the intention of committing a crime, but it would not be the “ancient” view of grave robbing. These older laws would clearly prohibit the conduct of any of the Dr. Frankenstein’s who dug up bodies for experiments.

Modern laws clearly prohibit the conduct of the men who tried to “rob” a dead body. Idaho prohibits the desecration of a place of burial. Idaho Code § 18-7027. Entering the tomb and opening the crypt would qualify as desecrating the grave of Lawrence Talbot. Nevada specifically includes that anyone who removes an article interred with a body is guilty of a felony. Nev. Rev. Stat. Ann. § 451.030. Talbot’s watch, ring, and cash, were clearly intended to be interred with his corpse, as those items were buried with him.

While the two grave robbers did not have their day in court, they did suffer extra-judicial punishment from a reanimated corpse that turned into a wolf.

Police Led Mobs

After a distraught father named Vazec carried his dead daughter killed by the Wolfman to the town square of Vasaria, the public response was to form a mob led by the chief of police. The angry mob quickly found Maleva, who was racially profiled as a Gypsy. She was told to “speak up, Old Witch,” and suffered other indignities.

The angry villagers chasing after the Wolfman were at best an “unlawful assembly,” which is when two or more people do “an unlawful act, or do a lawful act in a violent, boisterous, or tumultuous manner, such assembly is an unlawful assembly.” Cal. Penal Code § 407. The plausible argument for unlawful assembly is the villagers were seeking a dangerous animal that killed a human being, yet were doing so in a violent manner.

The villagers pursuing the Wolfman could arguably be a riot, which is when there is any “use of force or violence, disturbing the public peace, or any threat to use force or violence, if accompanied by immediate power of execution, by two or more persons acting together, and without authority of law, is a riot.” Cal. Penal Code § 404. There is an argument that the villagers were acting under the authority of the police. Moreover, in times of public calamity, a governor could call for volunteers to act in an unorganized militia. Cal. Mil. & Vet. Code § 128. There is a colorable, but not strong, argument the mayor did call for volunteers and the villagers acted as an unorganized militia in response to the “public calamity” of a wolf that had killed a girl was now stalking villagers.

There were multiple instances of riots being urged and those calling for a riot could be prosecuted. Cal. Penal Code § 404.6. Moreover, when two or more people make any attempt to riot if they had actually committed the act, they could be prosecuted for committing a “rout.” Cal. Penal Code § 406. Naturally, the crimes of urging riot and rout were committed in the town bar by individuals drinking alcohol.

Medical Ethics of Murder and Assisted Suicide

Dr. Mannering agreed to help the villagers by killing Frankenstein’s Creature with science. After reviewing the diary of Dr. Frankenstein, Mannering agreed to help Larry Talbot commit suicide.

That….is really problematic for a doctor. The Hippocratic Oath states to “do no harm” and that a doctor will not “administer a poison to anyone when asked to do so nor will I suggest such a course.” Thorburn v. Dep’t of Corr., 78 Cal. Rptr. 2d 584, 588 n.6 (Ct. App. 1998), citing The Oath of Hippocrates, as quoted in AMA Council Rep., supra, 270 JAMA 365. Medical ethics stated that doctors participating in state-ordered executions violation their duties as doctors. Id. In the case of Dr. Mannering, this is doubly problematic, because he is helping Talbot kill himself and a “promise” to kill Frankenstein’s Creature.

California has an “End of Life” law that allows for a person with a terminal disease who has mental capacity to request a prescription for them to self-administer an aid-in-dying drug if they meet residency requirements. Health and Safety Code § 443.2. Residency requirement aside, Talbot does not meet the requirement of having a terminal disease. If anything, the cruse of the werewolf brought Talbot back from the DEAD, so it is difficult to call it a “terminal illness.” Turning into a werewolf is a horrible physical condition, but not one that could be called “terminal.”

There is a new law that goes into effect on January 1, 2019 that makes it a felony to deliberately aid, advise, or encourage another to commit suicide. Cal Pen Code § 401. Dr. Mannering, Baroness Elsa Frankenstein, and Maleva, all aided in Talbot’s goal to commit suicide. While the plan was unsuccessful, Dr. Mannering violated medical ethics and engaged in conduct that would be a felony.

The issue of Frankenstein’s Creature is more black and white: Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. Cal. Penal Code § 187. Draining all of the life out of the Creature would have been murder, if Dr. Mannering had gone through with it. Instead the doctor could not resist going all “mad scientist” and opted to make the Creature stronger.

Domestic Terrorism

Vazec sought revenge on Talbot, Dr. Mannering, Baroness Elsa Frankenstein, Maleva, and the Creature for the death of his daughter. His logic was not based on reason, but prejudice. In order to kill everyone at Castle Frankenstein, Vazec decided to blow up the dam that provided hydro-electric power to the castle and flood the area.

Domestic terrorism is any act that is dangerous to human life that is in violation of the law. 18 U.S.C.S. § 2331(5)(A). Blowing up dams is not like parking illegally. Society cannot survive when individuals leverage self-help remedies for their grievances. Blowing up a dam to murder multiple people is a reckless action that could endanger the lives of everyone in the town. While the death of Vazec’s daughter was tragic, murdering multiple people would not bring her back.

The Monster Squad 

Frankenstein Meets the Wolfman is the first time two Universal Monsters crossed over into one film. It is heavily “Wolfman 2” with Frankenstein’s Creature as a guest star. Lon Chaney Jr does a masterfully performance as someone suffering from a horrible condition who is riddled with guilt. For an in depth discussion of the film, please listen to the podcast with Matt Weinhold from Monster Party, available below.

We Have the Best Empire that Coaxium Can Buy

Consider the purrgil. Naturally self-sufficient space travelers, these majestic creatures metabolize their own hyperfuel by gulping down huge quantities of Clouzon-36 gas. Unfortunately for the humanoids of Solo: A Star Wars Story, obtaining useable hyperfuel requires considerably more effort. In the Imperial Era, coaxium has the power both to liberate and to enslave, and it is coveted by Imperials and Rebels alike. Nearly all of the characters sustain heavy losses from their efforts to profit from this valuable and extremely volatile substance.

Qi’ra’s bid for freedom is just one of many such sacrifices. Without Imperial identity chips, she and Han had no access to the usual means of travel to and from Corellia, their faded industrial homeworld. Short on time to strategize, and on the run from a criminal gang, the White Worms, they attempt to buy their way off the planet by bribing Imperial emigration officer Falthina Sharest. What could go wrong?

A lot, as it turns out. Although the two “unauthorized travelers” correctly peg the overworked and underpaid Sharest as a willing mark, they fail to make it through the gate before members of the White Worms catch up to Qi’ra. Cornered, Sharest has to make a show of doing her actual job. She sounds the alarm, cutting off Qi’ra’s chance at freedom and diverting the Stormtroopers’ attention away from the vial of coaxium she just pocketed.

What legal consequences did Sharest risk by taking the coaxium in exchange for allowing unauthorized travel off of Corellia? Let’s explore.

Criminal Conviction and Lengthy Imprisonment

Assuming Imperial law is similar to U.S. federal criminal law, Sharest risked being convicted of a felony offense if her actions were discovered. Conviction would most likely result in a significant prison term, up to 15 years. Exactly how long depends on how the court exercises its discretion to apply the Federal Sentencing Guidelines.

To get a conviction under 18 U.S.C. § 201(b)(2), the federal statute prohibiting officials from accepting bribes, the government must prove the following elements:

(1) The defendant is a “public official” within the meaning of this section;

(2) The defendant demanded, sought, received, accepted, or agreed to receive or accept anything of value personally or for any other person or entity; and

(3) The defendant did so specifically for one of the corrupt purposes identified in the statute. As relevant here, these could include either, “(A) being influenced in the performance of any official act;” or “(C) being induced to do or omit to do any act in violation of the official duty of such official or person[.]”

Here, all three elements are easily satisfied. A “public official” includes any officer, employee, or person “acting for or on behalf of the United States, or any department, agency or branch of Government thereof[.]” Assuming an equivalent Imperial definition, Lead Transport Security Officer Sharest clearly qualifies. See Becharias v. United States, 208 F. 143, 143-44 (7th Cir. 1913) (immigration inspector is a public official). She agrees to accept and actually accepts the coaxium, which is worth “five, six hundred credits,” “at least seven hundred credits,” or “at least eight hundred credits” – give or take. She appears to have a duty to deny passage to those without Imperial identity chips, which she violates by agreeing to allow Han and Qi’ra through the gate in exchange for the coaxium. The only real question would be the length of her prison sentence.

The Sentencing Guidelines assign sentencing ranges using 43 different levels. The higher the level, the more severe the offense. Under the Guidelines, the base offense level for bribery when the defendant is a public official is 14. Assuming Sharest had no prior criminal history, this would put her in Sentencing Zone D with a range of 15 to 21 months.

However, the base level can be adjusted up or down according to various mitigating and aggravating factors. Of concern for Sharest is whether her base offense level could be increased by 4 if she were determined to be “in a high-level decision-making or sensitive position,” meaning a position “characterized by a direct authority to make decisions for, or on behalf of, a government department, agency, or other government entity, or by a substantial influence over the decision-making process.” See Commentary, U.S. Sentencing Guidelines Manual § 2C1.1 (2016). Here, Sharest has at least some discretion to decide who is allowed to travel and who is not. See U.S. v. Reneslacis, 349 F.3d 412, 416 (7th Cir. 2003) (although officer “did not have a particularly lofty position within the INS, he did hold a sensitive post”). This would increase her base range to 27 to 33 months – not the kind of “leveling up” Sharest wants.

This is just one example – Sharest could certainly face other government efforts to increase her base offense level. In addition to being fined and incarcerated, Sharest may be disqualified from holding “any office of honor, trust, or profit” if convicted. See 18 U.S.C. § 201(b).

Could Han and Qi’ra face prosecution under this same statute? Of course. Section 201(b)(1) of Title 18 criminalizes giving, offering, or promising anything of value to a public official for the same corrupt purposes identified above. But, the potential 15-year sentence pales in comparison to the potential death sentence Han would face for desertion during wartime. See UCMJ, Art. 85, 10 U.S.C. § 885. And the idea that Crimson Dawn would simply hand over one of its top lieutenants to face imperial charges? I’m not very optimistic about those odds.

Additional Charges for Sale of Stolen Goods

Sharest’s willingness to take the coaxium suggests she probably knows someone who can fence it for her. Actually selling it to a fence could land her in hot water again. Sale of stolen goods worth more than $5000 is a felony where the stolen goods have crossed a state or United States boundary and are known to be stolen. See 18 U.S.C. § 2315.

A single vial of coaxium valued at 500-800 credits may not be enough to meet the federal statutory minimum, even assuming a relatively generous exchange rate of $1.50 per credit. Nevertheless, if Corellian law were similar to California law, the receipt or sale of stolen property still may be punished under the Corellian equivalent of California Penal Code section 496.

Section 496 makes sale of property known to be stolen a “wobbler,” meaning it can be charged either as a felony or a misdemeanor. Here again, the value of the coaxium may come into play, as the statute provides that if the property’s value does not exceed $950, the offense is a misdemeanor, provided the defendant has no disqualifying prior convictions.

Though Sharest may argue she didn’t know Han stole the coaxium from the White Worms, knowledge may be inferred from the circumstances, and Sharest witnessed two members of the White Worms grab Qi’ra and drag her away. And presumably, it is common knowledge that the White Worms are a criminal gang, who likely did not come by the coaxium through legitimate means. All things considered, life on Corellia must be dismal indeed for Sharest to risk her liberty, her position, and possibly her life (at the hands of the White Worms), to squeeze a relatively modest amount of extra credits out of a pair of orphan scrumrats.

Theft of Imperial AT Hauler

Solo: A Star Wars Story is full of crimes and capers, mystery and intrigue, basically everything you could want in a space western (except maybe a long brown coat or a story that’s as compelling as the Han Solo Trilogy of books (if you haven’t read them go pick them up, starts with Paradise Snare)). While the move is very good about showing the planning and plotting of the crew’s crimes, it’s not great about showing the consequences of what would have happened if they’re caught (though this article is largely spoiler free for Solo, I suppose it could be a spoiler that the crew does not get prosecuted through the Imperial Justice System.) (Also, this is my last parenthetical in this article, promise).

First, a brief and largely spoiler free story recap. After some adventures on his home planet of Corellia, Han has found himself on the Planet Mimban as part of the Imperial Infantry. There he meets a thief named Tobias Beckett who steals an Imperial AT-Hauler as part of a larger crime that we won’t go into. Taking an alternate from the movie track let’s say that Beckett and crew are caught at this point and put on trial by the Imperial Inspectorate, prosecuted by –let’s say- Captain Magna Tolvan. Captain Tolvan has a long list of charges she could bring against the crew. The choice of charging them individually or as co-defendants, or under something like RICO is beyond the scope of this article so let’s just assume that the entire crew is charged with the same crimes. Let’s also assume that we’re looking at the US Uniform Code of Military Justice (UCMJ) since it’s likely that the Imperial Navy would have some very similar code. The Crew’s Indictment might look a little something like this (charges in no particular order)(yes, I lied about that being my last parenthetical):

Count 1) Fraudulent enlistment, appointment, or separation: Beckett did produce his own enlistment or appointment in the Imperial Navy by knowingly false representation or deliberate concealment as to his qualifications for that enlistment or appointment and receives pay or allowances there under. UCMJ Art. 43, 10 USC 883.

Count 2)  Loss, Damage, or Wrongful Disposition of Military Property of the Imperial Navy: Beckett and team, without proper authority, willfully or through neglect damaged, destroyed, or lost military property of the Imperial Navy. UCMJ Art. 108, 10 USC 908.

Count 3) Larceny and Wrongful Appropriation: Beckett and team did wrongfully take, obtain, or withhold, by any means, from the possession of the owner of any other kind of person, any money personal property, or article of value of any kind- with the intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of any person other than the owner, steals that property.

Count 4) Mutiny or Sedition: Beckett and crew did, with the intent to usurp or override lawful military authority, created violence or disturbance.  Art. 94 Mutiny or Sedition, 10 USC 894

So, that’s where they might start with Beckett and crew. From there the process would like a normal court procedure. The prosecutor, Tolvan, would bring the charges. Beckett and crew would each get separate attorneys and decide how they each wanted to proceed. There might be deals made, Tolvan might try to get Han or Rio to testify against Beckett in exchange for a lenient deal. Given that the penalty for mutiny is death there is plenty of leverage for Tolvan to utilize when dealing with the crew. This assumes that she is more interested in Beckett as the boss. Ultimately, we end up at a court-martial. For this articles purposes it makes sense to think of a court-martial as a trial, though they don’t have what we commonly think of as a jury. The process is in essence the same as a trial, a prosecutor puts on evidence to prove the defendant(s) guilty and their attorney gets to put on a defense.

Since we’ve all seen the movie (or don’t want to read my rehash of the scene) we can assume that Tolvan manages to get her conviction and we move on to the penalty phase. The penalties at a court-martial can run the gamut from a formal reprimand, to being dishonorably discharged, to imprisonment and fines. At least for counts 1, 2, and 3. Count 4 on the other hand… well if Beckett is convicted of mutiny then the sentence can be anything including death. Since we never see the Empire being lenient with its prisoners (they tortured and were going to execute Leia), things are not looking up for Beckett.

An aside: it is also possible that Beckett and company could be tried as civilians for theft and something along the lines of disorderly conduct/creating a disturbance, but that’s not as much fun. Plus, since they seem to have falsely enlisted in the Imperial Forces they probably have it coming.

Elementary: Sherlock Holmes and the Mystery of Missing Due Process

Pictured (L-R) Jonny Lee Miller as Sherlock Holmes and Lucy Liu as Watson of the CBS series ELEMENTARY, premiering for a fourth season on Thursday, Nov. 5 10:00-11:00 PM ET/PT. Photo: Justin Stephens/CBS © 2014 CBS Broadcasting Inc. All Rights Reserved.

“What one man can invent another can discover.” Sherlock Holmes, The Adventure of the Dancing Man

Normally I don’t write negative pieces about shows, but I have been stewing since the Sherlock Holmes-but-updated show Elementary aired “Uncanny Valley of the Dolls” last month. Ever since I spent a summer reading through the Sir Arthur Conan Doyle’s collected works, I have loved Sherlock Holmes. Elementary is meant to be a new take on the cocaine-addicted sleuth, managing some decent story lines but not adding to the character much beyond what we’ve already seen in the BBC and Guy Ritchie versions. My biggest complaint regarding Elementary, however, is Sherlock and Joan Watson’s consistent disregard for due process. Whether it’s accusing literally everyone of murder (attorney request be damned) or picking locks to illegally break into private property multiple times, the show focuses less on intellectual investigative skills and more on clean, east-to-digest stories.

But what does that have to do with sci-fi you might ask? Well, in “Uncanny Valley of the Dolls,” Sherlock and Co. set out to solve the murder of a sex robot designer who previously headed secret research into real-life teleportation. Gasp! After finding out that last fact, a minor character announces that he was offered (and paid a whole $1000 for) copies of the top secret research. Throwing around some law regarding the Invention Secrecy Act, the detectives surmise that (1) the information was leaked so that the perpetrator could cash in on the research and avoid the Act and a non-disclosure agreement, and (2) the victim was murdered in the presence of his sex robot.

“Sure Sherlock, you might be a world renowned detective and genius, but let me play this old Star Trek episode to explain teleportation.”

Following the deus ex machina discovery of a song recorded by the sex robot that is somehow perceived (correctly!) to be the perpetrator’s cell phone ringtone, see Anita Ward, Ring My Bell (Juana Records 1979), the detectives trot in three minor characters for “interviewing.” Proceeding to call the first suspect’s phone, which plays the song, they announce the killer and everyone is satisfied that the murder has been solved and a conviction is all but guaranteed. Hold up, what? Not even the mildly appeasing “Ya got me this time, copper!” full-blown confession after being shown some absolutely circumstantial evidence? Well, while CBS and Elementary may not take their time researching the legal issues actually underlying the episode, we will.

The Exclusionary Rule

Aka don’t break into private property to steal evidence.

As previously mentioned, Elementary’s Sherlock and Dr. Watson love to pick locks and break into buildings. While Captain Gregson meagerly explains away these violations as “creative” and usually buttressed by a claim that someone was heard yelling inside, could they actually do this? The answer is no, they totally cannot. Sherlock and Joan are consultants for the NYPD’s Major Crimes Unit. As such, they are acting on behalf of the government when they conduct investigations. So while they don’t have badges, guns, or arresting authority, they do have a responsibility to, you know, abide by the Constitution and proper police investigative procedures.

“The Fourth Amendment assures the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’” Stone v. Powell, 428 U.S. 465, 482 (1976). Because such a provision protects individuals from the government illegally entering and searching one’s home, “[e]vidence obtained by police officers in violation of the Fourth Amendment is excluded at trial[.]” Id. at 492. The Fourth Amendment, however, generally does not protect against unreasonable intrusions by private individuals. Walter v. United States, 447 U.S. 649, 656 (1980). But when the private individual “acted as an ‘instrument’ or agent of the state,” Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971), the exclusionary rule applies and the evidence can be suppressed as “fruit of the poisonous tree.” Nardone v. United States, 308 U.S. 338, 341 (1939). See also United States v. Hardin, 539 F.3d 404 (6th Cir. 2008); United States v. Reed, 15 F.3d 928 (9th Cir. 1994). Because Sherlock and Joan are definitely government agents, anything they find after illegally breaking into private property would be suppressed.

Invention Secrecy Act

Were we supposed to be wowed when they showed us how to “teleport” a chocolate bunny with email and a 3D printer?

In the episode, the perpetrator kills the victim after classified research on real-life teleportation technology (organic-to-digital information transmitter) is leaked. Showing off her obscure federal statute knowledge, Joan makes all sorts of assertions about the effect of the Invention Secrecy Act, 35 U.S.C. § 181 et seq., on the case. So can the government take away your invention and force you to keep quiet? Yea, pretty much. But can you get around the Act by leaking the information? No, definitely not.

After submitting a patent application to the government, if certain federal officers determine that the invention “would be detrimental to the national security, . . . the invention [shall] be kept secret and [the patent office] shall withhold the publication of the application or the grant of a patent for such period as the national interest requires[.]”  35 U.S.C. § 181. But do you agree with Joan and the killer that leaking the research or application would remove the gag order and open the flood gates of profit? Think again. If the invention, application, or applicable research is ever disclosed “by the inventor, his successors, assigns, or legal representatives, or anyone in privity with him or them,” the patent application is held abandoned and the potential windfall is lost. 35 U.S.C. § 182. Furthermore, anyone convicted of leaking said information can “be fined not more than $10,000 or imprisoned for not more than two years, or both.” 35 U.S.C. § 186. See also 18 U.S.C. § 798(a), 793(d). So no, leaking suppressed research does not give one free reign to ignore an order under the Act.

On a related note, the journalist and technology enthusiast featured in the show that attempted to buy the research might also be in choppy waters as well. Under 18 U.S.C. § 793(c), “[w]hoever . . . receives or obtains . . . from any source whatever, any document . . . connected with the national defense,” can be convicted of a felony and “fined under this title or imprisoned not more than ten years.” So while purchasing the secret teleportation research might have seemed like a good idea at the time, I would definitely not risk ten years in federal prison for purportedly secret documents that cost only $1000.

Conclusion

            Sherlock Holmes is meant to be an investigative genius, discerning the small forensic details and using logical reasoning to solve crimes. In Elementary, however, we have a shady Sherlock willing to break the law and ignore a suspect’s due process rights. Additionally, this particularly episode hinged its entire theory of motive on a misreading of the Invention Secrecy Act. Sir Arthur Conan Doyle, the father of Sherlock Holmes and “fervent advocate of justice,” would not be pleased. Simply put, Sherlock should follow the law and Elementary should do it’s homework.

Random Thoughts:

  • Captain Gregson even called Sherlock and Joan out for constantly breaking the law in this episode, but shrugged it off as “creative” detective work. It’s not “creative,” it’s criminal.
  • In the recent episode “Fit to be Tied,” an FBI agent actually told Sherlock to not even joke about “extrajudicial activity,” but Sherlock simply snorted [effectively], “Well, while you’re wasting time, my methods [of illegally breaking and entering] will be getting us real evidence to use.” Sigh.
  • “Elementary, my dear Watson” is commonly attributed to Sherlock Holmes, however, he never actually said those words. The actual quote (from “The Crooked Man”) is “‘Excellent!’ I cried.Elementary,’ said he.”
  • In 2014, the Sherlock Holmes character came off copyright, which may account for CBS’s “creative” changes to the character. How about we stick to a version of Sherlock that doesn’t break the law at ever turn?

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