What do two lawyers who love Star Wars do when they go to Disneyland? They ride Star Tours and discuss the common carrier issues.
I had the privilege of joining Thomas and Marissa Harper at Disneyland on their grand tour of California. After racing around the park, we sat down by the Matterhorn to discuss the legal issues of C-3PO and R2-D2 taking passengers into combat with a Rebel spy onboard an interplanetary shuttle.
Rey did not ingratiate herself to the Lanai Caretakers during her time on Ahch-To. First Rey shot out a wall during a Force vision with Kylo Ren and then caused a large rock to crash on a Caretaker’s cart. Did Rey’s actions constitute negligence in the destruction of the Caretaker’s cart?
Negligence is the failure to use reasonable care to prevent harm to oneself or to others. Rey first engaged in aerobic staff/rock workout, followed by Samurai lightsaber exercises. While this workout could both sharpen one’s skills with a laser sword, a person is negligent if they do something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation. See, 1-400 CACI 401 (2017). The act of cutting a rock off the edge of a cliff above a trail arguably is not how a reasonably careful Jedi would have acted in Rey’s situation. However, was there a foreseeable risk that a falling rock could crush someone passing by below?
Rey could have had a duty to not engage in lightsaber cutting exercises if there was foreseeable risk that she could cut the rock off the face of the cliff, causing it to crash on others. The law states that foreseeability is not enough to create an independent tort duty. “… [The] existence [of a duty] depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.” Vasilenko v. Grace Family Church, 3 Cal. 5th 1077, 1086-87, (2017), citing (Erlich v. Menezes 21 Cal.4th 543, 552 (1999).
These policy considerations include whether “the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” Vasilenko, at *1086 citing Cabral v. Ralphs Grocery Co., 51 Cal. 4th 764, 781 (2011). “A duty of care will not be held to exist even as to foreseeable injuries … where the social utility of the activity concerned is so great, and avoidance of the injuries so burdensome to society, as to outweigh the compensatory and cost-internalization values of negligence liability.” Vasilenko, at *1086 -1087, citing Merrill v. Navegar, Inc. 26 Cal.4th 465, 502 (2001).
The issue of whether there was foreseeable risk would turn on the likelihood of being able to cut a large rock off of the Ahch-To cliff, causing it to crash below. From a certain point of view, this issue of foreseeability is straight out of Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928). In Palsgraf, train employees helped a passenger with a package board a moving train with the door closing. The package was dropped. Unknown to the train employees, the package contained fireworks, which exploded. The explosion caused a large scale to fall on the Plaintiff.
The Court held that negligence does not exist in the air and that the Plaintiff’s injuries were not the probable consequence of someone boarding a train with a package. As such, there was no duty to the Plaintiff, an unforeseeable victim.
While Benjamin Cardozo did not believe liability followed through the air, Ben Kenobi knew the Force flowed through all living things. Fortunately for the Lanai Caretakers, most jurisdictions have a broader view of foreseeability. Cutting through a rock with a lightsaber is a foreseeable harm, compared to an unknown package with fireworks exploding.
The law would attach moral blame to Rey’s conduct of cutting a rock off the face of a cliff. There is a societal policy to prevent giant rocks from crashing on people (or Lanais). Moreover, there is a low burden to exercise a duty of care to prevent such accidents, by simply not cutting giant rocks off of cliffs. Furthermore, “[t]he overall policy of preventing future harm is ordinarily served, in tort law, by imposing the costs of negligent conduct upon those responsible.” T.H. v. Novartis Pharm. Corp., 2017 Cal. LEXIS 9636, at *33 (Dec. 21, 2017), [Ciations omitted].
Establishing Rey acted negligently is the first lesson in determining whether the Caretaker’s could recover. The second lesson is whether Rey was the proximate cause of the destruction of the cart. The third is the Caretakers were foreseeable victims of aerobic lightsaber exercises on the rock. As Rey engaged in an activity that a reasonable prudent person would not do, the Caretakers should recover for the destroyed cart. This would deter future rock cutting conduct that could harm others.
Now, whether lightsabers require a warning they can cut rocks off cliffs is a separate issue.
Captain Poe Dameron (it is Captain now, isn’t it?) has quite a bit going for him: He’s the best pilot in the Resistance, he commands an elite group of starfighters, and he’s recently been nominated for the coveted Most Handsome Rebel Scum in the Galaxy award for the 5th straight year.
Despite Poe’s great accomplishments and skills in the cockpit, we see him truly struggle in The Last Jedi. While the film uses his missteps as a way to evolve his character, Poe manages to commit some serious crimes in the process. In this article we’ll focus on Poe’s decision to disobey Leia’s orders. In the next article, we will break down his *alleged* mutiny.
CHARGE I: WILLFUL DISOBEDIENCE OF A SUPERIOR OFFICER IN VIOLATION OF ARTICLE 90, UNIFORM CODE OF MILITARY JUSTICE
Poe Dameron missed setting the record for fastest crime committed in a Star Wars movie, having been narrowly edged out by Jango Fett and Nute Gunray. With the Resistance in full retreat and the First Order fleet bearing down, Poe is sent to distract General Hux and give the last few transports time to make it off planet. As the evacuation finishes, Poe starts an attack on the First Order dreadnought to clear the way for the Resistance bombers. Realizing the danger of his plan, Leia orders Poe to immediately break off his attack and return to the Raddus. Poe then pays his respects by immediately cutting off his comm unit and continuing his assault.
Poe’s deliberate disobedience would undoubtedly constitute a serious crime under the military’s criminal code, the Uniform Code of Military Justice (UCMJ). Article 90 of the UCMJ outlaws willful disobedience of a superior officer’s orders and is perhaps one of the most important crimes in the code.
Obedience to orders is one of the core components of military service. All service members are morally and legally bound to obey the lawful orders of their superiors, regardless of their personal beliefs or opinions. That concept is enshrined in the oath taken by all service members upon donning the uniform:
“I, [state your name], do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”
The ability to enforce orders forms the foundation for good order and discipline. Without it, no branch of the military could properly function and lives would be put into jeopardy. Military courts have ruled that just about any type of lawful order, large or small, can be enforced under the UCMJ. These range from a directive to “shut up” to an order for a soldier to “double time” (run) to the barracks to get his equipment, and even an order for HIV-positive Airman to inform partners of his disease and practice safe sex. (United States v. Claytor, 34 M.J. 1030 (N.M.C.M.R. 1992); United States v. Mantilla, 36 M.J. 621 (A.C.M.R. 1992); United States v. Womack, 29 M.J. 88 (C.M.A. 1989)).
This rule is especially important during wartime, when commanders often issue orders that put their subordinates in harm’s way. Simply put, a refusal to follow orders on the battlefield can cost lives. Willful disobedience of orders during wartime is therefore considered a very serious crime. For example, during the Korean War, the Army court-martialed a soldier who refused to join a combat patrol. Even Desmond Doss, the phenomenally courageous medic whose story was portrayed in Hacksaw Ridge, was threatened with a court-martial if he refused to obey his commander’s order to train with a rifle during World War II. To fully drive home the seriousness of the offense, soldiers who willfully disobey a superior officer in a time of war can be sentenced to the death penalty.
The elements of the crime are:
That the accused received a certain lawful command from a certain commissioned officer;
That this officer was the superior commissioned officer of the accused;
That the accused knew that this officer was the accused’s superior commissioned officer; and
That the accused willfully disobeyed the lawful command.
In Poe’s case, prosecutors would have ample evidence to prove all four of those elements. As Poe gleefully blew up the dreadnought’s cannons, Leia very clearly came over the radio to issue him a command to immediately break off his attack.
As a General, Leia held a military commission that gave her the legal ability to issue Poe orders. As a General, she no doubt outranked Poe, even before he was slap-demoted. There is no question that Poe knew that Leia was his superior officer, as he had served under her for years.
The next question is whether Leia’s order was a lawful one. Under the UCMJ, a lawful order is one that relates to military duty, including all activities reasonably necessary to accomplish a military mission. Orders may not interfere with private rights or personal affairs without some valid military purpose. Here, the Resistance’s sole objective was to safely evacuate its personnel and escape the First Order fleet. Leia’s order to stop attacking went hand-in-hand with that larger mission, as she was desperately trying to get the fleet to hyperspace before the dreadnought fired again.
Poe had no personal or private right to continue fighting as he saw fit. As a military officer, he is duty-bound to obey Leia’s orders, even if he disagreed with her tactics. The fact that the fleet had a shot at destroying the massive ship didn’t make Leia’s order any less lawful, and it wouldn’t constitute a defense against the crime. The fly boy part of Poe may not have agreed with Leia’s order, but the order was nevertheless a lawful one.
An order must also be a clear, narrowly drawn mandate to do or not do a specific act. For example, military courts have found that an order to “shut up” to be a specific mandate to stop speaking, but on the other hand, an order to “settle down and be quiet” was found to be ambiguous.
In the case of Leia, she was crystal clear in her order to Poe. He was to stop attacking the dreadnought and return to the Raddus at once. Poe’s act of abruptly cutting off his comm unit as Leia gave the order shows that he fully understood Leia, but simply wanted to substitute her judgment with his own. Likewise, in the aftermath of the attack, Poe demonstrated his understanding of the order as he tried to justify the attack to Leia.
Finally, Poe’s disobedience was absolutely willful. Under Article 90, “willful disobedience” is an intentionaldefiance of authority. Failure to follow an order through heedlessness, forgetfulness, or recklessness does not amount to willful disobedience. Poe deliberately defied Leia’s order to stop his attack. When ordered to stop and return to the Raddus, he instead cuts Leia off and continues on, issuing orders to the rest of the squadron that directly contravened Leia’s intent. Poe wasn’t confused or forgetful as he disobeyed Leia; he simply didn’t like her strategy of retreat and got caught up in the tantalizing opportunity to destroy one of the First Order’s largest warships.
The devastating results of the battle above D’Qar show are a stark reminder of this rule is so important. By disobeying Leia’s order, the Resistance lost its entire fleet of bombers and their crews—precious lives and resources that could not be easily replaced. Poe’s shortsightedness not only cost the lives of dozens of Resistance personnel, but he put the entire fleet in jeopardy as they delayed the retreat. Were it not for Paige Tico’s heroics aboard the last remaining bomber, the entire Resistance fleet probably would have been destroyed as a direct result of Poe’s insubordination.
Poe’s actions also had ripple effects beyond those losses. Poe’s open defiance unacceptably undermined the chain of command, eroding General Organa’s command authority and damaging good order and discipline within the fleet. Resistance service members who overheard his defiance on the radio could easily think that if Poe Dameron didn’t have to obey Leia, why should they have to? That kind of dangerous mentality can spread quickly, especially under the sort of dire circumstances the Resistance faced at the time.
In the end, Poe got off pretty easily by being publicly slapped and demoted in humiliating fashion. Under normal circumstances, Poe probably would’ve found himself learning his new job as Resistance janitor from Finn, or worse.
The First Order used internally conscripted Stormtroopers for at best summary executions and at worse extrajudicial killing for capital punishment. The status as a Stormtrooper Executioner was denoted by a David Bowie Aladdin Sane-style black mark across the helmet, along with carbon-finish on the shoulders. According to The Last Jedi Visual Dictionary, Executioners could be any Trooper assigned to the duty of carrying out capital punishment. The helmets disguised their voices and personal identification number was not broadcast to other Stormtroopers.
There is a galactic problem with summary executions: there is no due process of law. No right to counsel. No trial. Nothing. Just an extrajudicial murder to instill loyalty into Stormtroopers.
In The Last Jedi, Finn and Rose were captured in First Order uniforms in the midst of committing an act of sabotage on Supreme Leader Snoke’s ship the Supremacy. Captain Phasma ordered their immediate execution by laser ax with a monomolecular energy ribbon with cycling power. This form of execution was selected because “it would hurt.”
There are multiple problems with ordering the immediate deaths of the Resistance prisoners. The first is the lack of a trial, even for someone committing an act of espionage and the second is whether the First Order is actually a nation-state.
Execution without a Trial
Military usage has permitted the execution of spies, both as a means of punishment and prevention. United States ex rel. Wessels v. McDonald, 265 F. 754, 762-63 (E.D.N.Y. 1920). The traditional definition of a spy is someone “individual acting clandestinely or on false pretenses, who obtains, or seeks to obtain, information in the zone of operations of a belligerent with the intention of communicating it to the hostile party.” Convention Respecting the Laws and Customs of War on Land, The Hague, July 29, 1899, 32 Stat. vol. 2, pp. 1818, 1819. However, spies dating back to the Revolutionary War were tried by military tribunal or court-martial. Ex parte Quirin, 317 U.S. 1, 42, fn 14 (1942).
The First Order had nothing remotely resembling a military tribunal or court-martial for Finn and Rose. Captain Phasma ordered their deaths on the hanger deck of Snoke’s ship with the intent to cause them pain.
International law recognizes four acts that are subject to unequivocal international condemnation: torture, summary execution, genocide and slavery. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 791 (1984), citing Blum & Steinhardt, Federal Jurisdiction over International Human Rights Claims: The Alien Tort Claims Act after Filartiga v. Pena-Irala, 22 HARV. INT’L L.J. 53, 90 (1981); see also P. SIEGHART, THE INTERNATIONAL LAW OF HUMAN RIGHTS 48 (1983). Moreover, summary executions are “murder conducted in uniform,” as opposed to lawful, state-imposed violence. Id.
The First Order could have tried Finn was for treason (assuming the First Order is a nation-state), specifically for helping Poe Dameron escape the Finalizer and desertion. Finn should have had the opportunity to argue he had been ordered to commit a war crime on Jakku and offer a defense to the charges against him.
The First Order could have charged Finn, Rose, and DJ, with conspiracy, espionage, and sabotage, for their plan on the Supremacy. Instead, the First Order planned to carry out immediate executions in the most painful manner possible with laser axes with a monomolecular energy ribbons with cycling power.
An execution is cruel and unusual punishment if the method presents a “substantial” or “objectively intolerable” risk of serious harm. Baze v. Rees, 553 U.S. 35, 40 (2008). Other courts have articulated the legal standard for determining whether a form of execution violations the prohibition of cruel and unusual punishment as follows:
1) Presents a substantial risk that a prisoner will suffer unnecessary and wanton pain in an execution;
2) Violates the evolving standards of decency that mark a mature society, and
3) Minimizes physical violence and mutilation of the prisoner’s body.
State v. Mata, 275 Neb. 1, 48, 745 N.W.2d 229, 266 (2008).
The United States has allowed executions, starting with hangings at the founding of the country, later firing squads, to finding the most “humane and practical” methods for executions “known to modern science.” Glossip v. Gross, 135 S. Ct. 2726, 2731 (2015). These methods have included electrocution, because it was thought to be less painful and more humane than hanging, to the gas chamber, to lethal injection. Id.
Traitors at common law were punished for treason by death with a vengeance. The punishment included being publicly dragged to the place of execution and there drawn, quartered and beheaded. See, United States v. Kawakita, 96 F. Supp. 824, 860 (S.D. Cal. 1950).
Beheading Finn and Rose with laser axes would meet the textbook definition of “objectively intolerable” risk of serious harm. This form of execution would be cruel and unusual punishment in gross violation of human rights.
The First Order is Not a Nation-State
The First Order is a political movement of Neo-Imperials who wish to rule the galaxy like the Empire. They do not have a home planet, instead operating on the Supremacy as their capital. Their plan was to take over the galaxy after destroying the Republic. As such, the act of destroying the Hosnian system was itself an act of terrorism. All subsequent acts against the Resistance were nothing short of murder in the name of politics.
Since the First Order is not a nation-state, they do not have the legal right to treat Finn and Rose as spies attempting to commit an act of sabotage. The Resistance was rightfully exercising their right to self-defense by a terrorist organization attempting to take over the galaxy. As such, Stormtrooper Executioners best rethink their life choices before they behead anyone, unless they wish to be prosecuted for extrajudicial murder.
If you are in the mood for an unconventional Christmas classic, watch Rare Exports. The film is about an archeological excavation for where Santa Claus was imprisoned centuries before in Finland. What is released from the ice is more like Krampus than Santa Claus. There is a significant twist, so do not read anymore until you have watched the film.
The heroes of the village capture 198 of Santa’s helpers, who are all naked old men in the snow. The heroes decide to sell each of the helpers as a “Santa Claus” for $85,000 per person, since they lost their reindeer profits.
There is a big problem with this Christmas miracle: selling people is slavery. On top of that, the former Santa’s helpers kidnaped children in sacks. These are the exact sort of people we would want to keep AWAY from children.
Finland, the United States, and virtually every other country, have all signed treaties prohibiting slavery. The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery states:
The act of conveying or attempting to convey slaves from one country to another by whatever means of transport, or of being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to very severe penalties.
(a) The States Parties shall take all effective measures to prevent ships and aircraft authorized to fly their flags from conveying slaves and to punish persons guilty of such acts or of using national flags for that purpose.
1956 U.S.T. LEXIS 81, *6.
There is no question that Santa’s helpers were committing horrible crimes upon children. It was noble to try to rehabilitate them after centuries of being frozen in ice. However, the good guys are not supposed to sell other human beings. The fact military aircraft was being used to ship the “rare exports” of Santas in shipping containers would mean Finland was violating international law, let alone the prohibition of shipping people in the mail. That is a sure fire way to end up on the naughty list of every law enforcement agency on the planet.
General Leia Organa sought her brother Luke Skywalker’s help to save the galaxy from the First Order. Did Luke owe his sister, or the galaxy, a legal duty to rescue them from the Kylo Ren and the First Order?
The Duty to Rescue
As a matter of common law, no one has a legal duty to rescue others in peril, unless there is a special relationship. People v. Oliver, 210 Cal. App. 3d 138, 147 (1989). Moreover, even the realization that action is necessary for the protection of another, does not impose on a would-be rescuer to take such action. Rest.2d Torts, § 314.
From a certain point of view, Kylo Ren brought the First Order’s reign of terror across the galaxy because Luke Skywalker failed the “Would You Kill Baby Palpatine” test. Since Luke sensed the darkness within Ben Solo, Luke had a momentary lapse of ethics and considered killing his own nephew to protect the galaxy.
The problem with preemptive murder is that it is murder: Ben Solo had done no wrongdoing other than being tempted by the Dark Side. Luke was right not to kill Ben Solo and should have instead offered counseling to Ben. Unfortunately, Luke’s ethical failure ensured Ben Solo became Kylo Ren. This resulted in the immediate deaths of Jedi students, followed by the rise of the First Order over a several year period.
It is an extreme argument that Luke created Kylo Ren, thus owed the galaxy the duty to rescue them from the First Order. Such an expansion of the duty to rescue would require interpreting the Restatement of Torts maxim that one who does an act, then realizes that the act created an unreasonable risk of causing physical harm to another, thus imposing the duty to exercise reasonable care to prevent the risk from taking effect, to apply to the entire galaxy. Rest.2d Torts, § 321.
Special Relationship from Rebellion?
It is unclear if Luke had ever been in the Republic’s military, or just held a rank within the Rebellion. Retired members of the military can be called back to active duty under the Selective Service Act. Depending on the relationship between the Republic and Resistance, there is a colorable argument that Leia could have called Luke back into service (provided the Republic had a similar statute for Rebel veterans). Moreover, Luke traveled to Ahch-To in a Rebellion X-Wing. While the fighter could have been military surplus acquired by Luke, it is evidence of a connection to the military.
Special Relationship as Jedi?
Luke might have had a duty to rescue the galaxy because he was a Jedi. For example, Alaska law states there are circumstances where police have a duty to protect the lives of the public, such as in instances of domestic violence. See, State v. Gibson, 267 P.3d 645, 661-62 (Alaska 2012), citing Alaska Statute 18.65.515. As Obi-Wan Kenobi stated that Jedi were the guardians of peace in the galaxy, there is an expectation that Jedi would protect others from the First Order. However, it would be unreasonable for a single Jedi to take on the First Order by themselves with just a lightsaber and the Force.
Resistance heroes Finn and Rose were shocked into unconsciousness and arrested for parking on a beach at Canto Bight in Star Wars The Last Jedi. Would law enforcement handle such parking violations in a similar manner in the United States?
There are beaches that allow for parking, such as Oregon, which allows for the creation of zones that prohibit motor vehicles or landing of aircraft, except for an emergency. Or. Rev. Stat. Ann. § 390.678.
Beach parking violations are subject to local ordinances. Los Angeles County has a $35.00 fine for unauthorized parking on a beach. Los Angeles County, California Code of Ordinances Sec. 15.200.010. Beach parking that is for other than public safety, cleanup, or repair, in counties in Florida are prohibited, with one having a fine for $500. See, Beverly Beach, Sec. 46-1 and Indian Rocks Beach, Sec. 38-117, Florida Code of Ordinances.
There are no illegal beach parking cases with the occupants stunned and jailed. Moreover, the arrest of Finn and Rose was not because they failed to pay a parking ticket after being properly noticed, but arrested for the act of parking on the beach. This is extremely excessive for a mere parking violation.
The arresting officers on Canto Bight did not give any sort of reason for the arrest as required by the 4th Amendment or Miranda Rights. It does not appear there was any right to counsel or writ of habeas corpus. Moreover, while illegally parked vehicles can be impounded, destroying illegally parked vehicles with an air strike is unprecedented.
Canto Bight is legally similar to a gilded Mos Eisley predicated on gambling. Children are either enslaved or in horrible work conditions in stables with no regard for child labor laws. There is a heavily armed police force to ensure the “house always wins.” Rose’s summary of Canto Bight was accurate that it was a beautiful and horrible place…showing that it needed attorneys to uphold civil liberties.