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San Francisco Comic Con Memories!

We had an amazing time at San Francisco Comic Con. Thank you everyone who attended our panels and the show organizers. A big thank you to all of our panelists, including Circuit Judge John B. Owens from the Ninth Circuit Court of Appeals, Angela Storey, Michael Dennis, and Crystal Swanson. Below are the slides to the presentations and audio recorded at each panel.

Defending the Defenders, Friday, September 1, 600pm to 700pm, Room 2006

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The characters of Marvel’s Daredevil, Jessica Jones, Luke Cage, and Iron Fist all face different legal challenges. Could Matt Murdock be disbarred for being Daredevil? How accurate was the trial of the Punisher? What would lawyers need to prove the actual innocence of Luke Cage?

It was a blast to present with Angela Storey. Angie and I coached high school mock trial together. Angie is a true geek who loves comics and science fiction.

Jack Kirby on Civil Rights, Saturday, September 2, 830pm-930pm, Room 3022

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Mike Dennis is one of my best friends from law school. Presenting with Mike and his wife Crystal Swanson was a total joy. Both love comics and spent a lot of time researching the life of Jack Kirby. It was a lot of fun helping them shop for comic art for their home.

The Law Will be With You: Celebrating 40 Years of Star Wars Law, Sunday, September 3, 1130am to 1230pm, Room 2006

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Circuit Judge Owens is one of the most prolific geek judges on the bench today. He has a great love of Star Wars, comics, Game of Thrones, and all things science fiction. It was awesome for him to join us at SFCC to discuss Star Wars.

Can a Cross-Examination Result in an $11 Million Settlement?

Matt Murdock scores a major victory in court with a crushing cross-examination of a witness that forced the defendants to settle for $11 million dollars in The Defenders episode “The H Word.” While that is very possible, it is not probable. Let’s explore why.

Murdock has expanded his practice from criminal defense to pro bono plaintiff’s product defect litigation. Many solo attorneys like Matt Murdock do both criminal and civil litigation, but normally a lawyer would focus on one practice area over the other.

The testifying defendant was addressed an expert witness, because Matt Murdock asked the witness in “his professional opinion” about a motor that was used in a new station. However, this witness was also the party, who was being question on business practices and not offering an expert opinion.

Matt Murdock questioned whether the Defendants were aware that the product used in their station was hazardous to children. The witness further testified that the product was attractive because it was strong, durable, and half the price of other products. When questioned on product safety, the Defendant answered that the subject motors were replaced after a safety report. Murdock impeached the witness with a record of delivery of another safety report that was sent three months earlier.

The trial procedure in this scene is somewhat muddled. First, the defense attorney would not object that their client was being asked to testify with unreasonable specificity. The proper objections would be lack of personal knowledge, assumes facts not in evidence, and the best evidence rule, since the witness was being questioned on a document that was not yet a trial exhibit. When the record was offered as an exhibit, it is a surprise that the Defendants apparently did not know about the trial exhibit, with Murdock asking the final question on what was worse, ignoring safety data or failing to provide the records to the court. Murdock then made the mistake of not letting the defendant answer the question. It would be extremely harmful to the Defendants if they admitted not producing records in discovery (which raises the issue how did the Plaintiffs get the documents and how were they admissible).

There are no surprises in lawsuits with documents not seen until trial. The records of delivery would have had been produced in discovery and included on the Plaintiff’s Trial Exhibit list. Moreover, even if the document had been discovered after the start of trial, the opposing side would have learned of it before cross-examination of the Defendant. This would not be a “gotcha moments” for the Defendants, other than how the trial exhibits were going to be used. If defense counsel could not recognize in pre-trial discovery that their client had constructive notice, perhaps actual notice, of the serious health risk of the motor to children, that would be malpractice. That case should have never seen the inside of a courtroom.

This extremely damning exchange would not have happened in a trial with a party, but in a deposition. The records of delivery had to be either produced from the Defendant, or from third-party discovery, specifically the company that sent the safety report, or the delivery service. Either way, the defendants would have been aware of the harmful documents that showed knowledge of health risks to children.

It is entirely possible defense counsel knew of the documents showing their client knew of the dangerous product, and yet advised them to go to trial anyway. Perhaps they believed the potential for damages in the millions was worth the risk of a trial. However, this strategy backfired in front of a jury. Settling for $11 million dollars must have been cheaper than risking a larger jury award and a protracted appeals process to either strike the award or lower it. Either way, the Defendants should prepare for multidistrict litigation in Federal court for similar cases.

The Vulture Should Have Sued for Breach of Contract

Villains in Marvel Cinematic Universe turn to a life of crime for multiple reasons. Loki had father issues fueling his alliance with Thanos to invade Earth. Wilson Fisk wanted to make New York a better place through Federal redevelopment programs (and racketeering) after the Battle of New York. For Adrian Toomes, the City of New York breaching its cleanup contract due to the Federal Government claiming exclusive jurisdiction for the remediation of Chitauri technology in the aftermath of the Battle of New York, was his reason for becoming a murdering arms dealer. It would have made more sense to seek legal representation, because Toomes should have sued for breach of contract.

Adrian Toomes had a valid contract with the City of New York to remove the alien weaponry that was littered across Manhattan. Toomes had begun performance of his contract and incurred costs for additional vehicles to complete his contractual obligations. If not for Damage Control stopping his contractual performance, Toomes would have competed the cleanup of Chitauri wreckage across Manhattan.

The New York City – Toomes Contract was a construction contract under N.Y. Gen. Bus. Law § 756, which covers everything from demolition to excavation to improvement to land. New York City could claim that the original contract became unenforceable from the Federal Government claiming exclusive jurisdiction for the removal of alien technology. If this was a valid argument, that would not excuse either New York City or the Federal Government from having to pay Toomes for work performed.

Contracts can be unenforceable as a matter of public policy if there is 1) legislation stating the agreement is unenforceable; or 2) if public policy outweighs the enforcement of the agreement. See, generally Restat 2d of Contracts, § 178(1) (2nd 1981).

The Federal Government had a valid interest in ensuring public safety from alien weapons and technology scattered across Manhattan. Enacting legislation creating Damage Control to respond to superhuman destruction would be a valid reason for the New York City – Toomes contract to become unenforceable. However, Toomes had already begun work and spent significant funds after entering into the contract with New York City.

Adrian Toomes had valid expectation, reliance, and restitution interests for his contract with New York City. As such, Toomes is entitled to damages for the breach of contract under multiple theories.

Toomes, at a minimum, is entitled to damages of the contract price (or unpaid portion) minus the cost of completion (cost avoided by not having to complete performance). See, Restat 2d of Contracts, § 348(2)(b). Alternatively, another damages formula would be for the work that had been completed, plus for the remaining portion of the work, and the profit that would have been made from that work. Murray on Contracts, p 682, citing Kehoe v. Rutherford, 56 N.J.L. 23, 27 A. 912 (1893).

That is not the end of Toomes’ damages analysis. Toomes spent substantial funds in reliance upon the contract AND performed his contractual obligations, before Damage Control shut him down. Toomes would be entitled to consequential damages for his costs and for the work performed, to avoid the unjust enrichment of the Federal Government or New York City.

The remedy for breach of contract is NOT illegal weapons manufacturing with alien technology. Adrian Toomes should have immediately contacted a attorney to seek damages from both New York City and the Federal Government. While both prospective defendants would point to the other on who is financially responsible to Toomes, with the Federal Government claiming it is New York City, and New York City [rightly] arguing it was Federal interference that caused the breach of contract, a good plaintiff’s lawyer would sue both.

Should the Avengers be Liable for the Injury and Damage They Cause to Persons and Property?

A question occurred to me when I first watched The Avengers in 2012: “who was going to pay for all this damage caused by the Avengers in the Battle of New York?”

It was a fair question. It was one a lawyer would ask. It is a question I have now asked several times as I have seen the Hulk, Iron Man, Captain America and crew break or blow up anything within their vicinity to fight those who mean them (and I suppose by extension, “us” harm). But my questions did not stop there. I then asked “would our current laws even apply to such superhero damage?” When I answered that question, I went on to yet another…and for that, you need to keep reading.

Practically speaking, who does pay for all the damage they cause?

I see three possible scenarios or a combination:

  1. Insurance companies,
  2. The government, and/or
  3. Our tax dollars.

But we are talking about billions of dollars. Did you see what they did to New York City? Whole buildings crashed down. Parts of the city, especially Hell’s Kitchen, was destroyed. Insurance companies would likely find an exclusion in their policies or sure as heck try. I can just imagine at the first sight or news of any superhero, the carriers would all start drafting addendums to policies to specifically exclude damage caused by superheroes and hurriedly sending them out.

Our government? Sure, that is possible but to what government do we refer? State? They will ask the Feds for help. And the Federal Government cough up billions of dollars without looking for a third party to pay?

Let’s look at the 28 U.S.C. 2680(j).

This United States Code section carves out an exception to the Federal Tort Claims Act (the Act that lets people sue the Federal Government under limited circumstances) for claims “arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.”

But what is war? Congress sure as heck did not authorize a war on Loki and his Chitauri gangsters. All of this was happening behind the scenes, in the clandestine manner in which S.H.I.E.L.D. operates. And taking on face value all the Avengers are S.H.I.E.L.D. agents and S.H.I.E.L.D. is not part of the U.S. military (didn’t we learn they are under United Nations control via the Sokovia Accords? Let’s pretend we did), section 2680(j) does not apply.

The analysis cannot stop there. Think about S.H.I.E.L.D.’s defense. “Hey, if we let Loki and his Chitauri tear through Manhattan, they would have killed more people, destroyed even more property than they did, kept moving through the Eastern United States, eventually arriving at Washington, D.C. and ultimately destroyed the U.S. and world…”

So is that it? The superheroes, angry green monster and playboy weaponized armored suit billionaire get a pass?

That is where most people stop the analysis. Remember the question I mentioned earlier?

What would draft legislation look like to address this problem?

It is not enough to look at current law and break down its application. You have to take it further and enact new legislation to address a problem head-on…and like most legislation that comes out of Washington D.C., it may arguably be a solution looking for a problem but let us for now assume it is not that.

The Farzad-Legal Geeks Act of 2018.

It is 2018 because it would go effect 1/1/18 unless of course we needed emergency legislation.

And that is the placeholder name for now. I am drafting the legislation and since it is posted on the Legal Geeks website, it is as good a name as any for now. Since I am not sure what number the United States Code has reached, let us just start the legislation at 28 U.S.C. section 8000.

28 U.S.C. section 8000

“As used in this chapter, the term “superhuman being” includes human beings who possess superhuman abilities of strength, stamina or otherwise, regardless of how such superhuman beings attain and/or sustain such abilities. The term superhuman being includes but is not limited to those who use technology of any kind to enhance or sustain such abilities.”

This section of the Act would go on to give examples of such superhuman abilities (we have plenty of examples for that) in broad language.

The section would then have a separate place for “extraterrestrial aliens.” That section would read: “Extraterrestrial aliens are beings of any kind that possess superhuman abilities, as set forth above” and then incorporate what we have already laid out.

Finally, this section would have a place for agencies like S.H.I.E.L.D. and would categorize them as “agencies who command, control or otherwise cooperate with the superhuman beings to carry out operations of any kind.”

Yes, I realize that is all pretty darn broad. We want the attorneys to have something to challenge. Otherwise, there is no fun in this.

28 U.S.C. section 8001, et. seq.

From here, we get to the cool stuff.

First, you have the extraterrestrial aliens – Loki, Thor, etc. They get no rope. They should be strictly liable for all damages they cause. Why? Because if it was not for them, we would not need legislation like this. Our superheroes would be locking up normal bad guys. Speaking of bad guys…

Second, any superhuman being that engages in conduct that would be a crime under that State’s laws (whatever State they happened to do their deed) or Federal laws would be strictly liable. This keeps the bad guys from using this statute to escape liability. I am not certain we need the State law incorporation or if Federal law is enough. We can chew on that issue.

Third, you cannot hold the superhuman beings or even an agency like S.H.I.E.L.D liable under ordinary negligence standards for what we will call “services, the sole purpose of which, is to defend against forces that, if not impeded in their efforts, are reasonably likely to cause injury to persons who are not superhuman beings or damage to property.” The point is to ensure before we give the superheroes and agencies a limited immunity, they actually have to be engaged in deep blue hero work.

Fourth, we address the standard of care. This one has several options. Gross negligence standard is one option. Would the burden of proof be preponderance of the evidence, clear and convincing or beyond a reasonable doubt? This is not criminal liability so the latter is likely out. That leaves us with the first two. I like the gross negligence standard and I advocate the evidence should be clear and convincing.

Fifth, we would need a special tribunal. There is no way we can put this in front of 12 licensed drivers (read: jury). The special tribunal would hear these cases, it would comprise of 9 judicial officers, and a vote of 5 to 4 is necessary to find liability.

So there you have it…

I hope this stimulates your legal mind and gets those geeky juices flowing. Got any ideas about this legislation, how it would read and how it may be applied? Start sharing and comment below.

Robert Farzad is the president of Farzad Family Law, APC, that is based in Orange County, California. He has been a California licensed attorney since June of 1996 and helped grow his multi-attorney and multi-office firm from the ground up. Outside the law, he enjoys creative writing, poetry, English and American Literature. This article was written with tongue firmly planted in cheek.

Reflections on San Diego Comic Con 2017

San Diego Comic Con is always an amazing adventure. Thank you to Mike and Wendy Towry, the hardworking Comic Con International organizers, and everyone who attended our two panels. We started The Legal Geeks in July of 2012 to share our love of pop culture and the law. It was extremely rewarding to see so many people attend our Luke Cage mock trial and Judges on Star Wars panel. Thank you.

“Comic Con” was started by fans who love comics and science fiction. It was a privilege to be with other “geeks” who have all dreamed of double sunsets and superheroes.

Luke Cage Mock Hearing

Lawyers and fans turned out in force to see Sweet Christmas! A Mock Trial to Prove Luke Cage is Innocent. Magistrate Judge Mitch Dembin presided over our fictional case. The attorneys who argued the case were Christine Peek of McManis Faulkner, Megan Smith, Steve Chu, and Jane Boardman, Chief Deputy City Attorney for the City of San Diego. Our “Luke Cage” was played by David Gibson, a Federal law enforcement officer, who loved the character, and studied the Netflix show in preparation for the mock hearing.

The participating attorneys put in countless hours to build their arguments, prepare their witnesses, and develop a plausible scenario to prove Luke’s innocence. One attorney recruited their DEA friends to prepare mock lab reports as a training exercise to create the exculpatory evidence for the case. We also had fun working in homages to the comic legends who created Luke Cage in 1972.

The mock hearing was an advanced civics lesson that highlighted while the Petitioner could challenge his original conviction, there was the issue of the separate escape charge. The Court ultimately found that Luke Cage would not have been convicted by a reasonable jury if the suppressed evidence had been known. The [fictional] State of Georgia exercised prosecutorial discretion in not pursuing the escape charge against the former prisoner found to be innocent of the underlining crime.

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Judges on Star Wars

California Supreme Court Justice Mariano-Florentino Cuellar, Circuit Judge John B. Owens of the 9th Circuit Court of Appeals, Federal Magistrate Judge Mitch Dembin, Federal Magistrate Judge Stacie Beckerman, CA Judge Carol Najera, and former Federal Magistrate Judge Paul Grewal (now Deputy General Counsel of Litigation at Facebook), all love Star Wars. Their legal analysis from Droid Civil Rights, to tracing the property ownership of Anakin’s original lightsaber to Rey, to lawfulness of interrogations, and Han’s legal justification to shoot Greedo, was exceptional.

Thank you for the kind words.

Magistrate Judge Stacie Beckerman stole the show, like it was a Tie Fighter on the Finalizer, with her legal defense of Finn for desertion. Judge Beckerman rapped her argument to the tune of Hamilton. I am glad I was in the room where it happened.

Judge Beckerman’s Defense of FN-2187.

Our Star Wars panel was in Room 7AB, which had all of the other Star Wars panels that day. We were honored to be included with panels such Hasbro’s preview of upcoming toys and LucasFilm alumni sharing the early days of fandom.

Attendees arriving for our Star Wars panel. The room sat 480 people and there was a line out the door.

Other Comic Con Experiences

Walt Simonson wrote my favorite Thor stories in the 1980s. From Beta Ray Bill to Surtur to the Death Curse, Simonson literally wrote the book on The Might Thor.

The Mighty Thor 380, where Thor fought the Midgard Serpent, is still one of my all time favorite comics.

It was a pleasure to see Walt and his wife Louise share their experiences in comics. Louise wrote X-Factor and created Apocalypse. They shared how the crossover event Mutant Massacre was planned after a discussion with Chris Claremont, plus what followed with The Fall of the Mutants and Inferno.

The Stan Against Evil panel was a lot of fun. I have fond memories of Dana Gould when he appeared at my mother’s comedy club Rooster T. Feathers in the late 1990s. My brother went to college with Janet Varney. I loved them in their comedy group Totally False People. It is great seeing both Dana and Janet’s continued success on Stan Against Evil. Season 2 looks like a riot.

The Droid Builders and NASA JPL panels were both excellent. The dedicated fans who build RD-D2s and BB-8s have a profound love of Star Wars. The JPL panel was out-of-this-world on how engineers and scientists build spacecraft to go to Mars. Below are photos from both panels and other sights from San Diego Comic Con.

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Thank you all for the memories. Hope to see you next year.

The Defense of Darth Vader

When last we met in our alternate Return of the Jedi reality, Darth Vader survived the Emperor’s Force lightning after chucking him down a chasm in the Death Star like a dirty shirt down a laundry chute. The victorious Rebel Alliance promptly thanked Vader by deciding that he should be put on trial for war crimes. Now that we’re all caught up, let’s turn to the business of strategizing how to defend one of the most reviled men in the galaxy.

Despite what some Empire haters out there might think, even someone as detestable (or awesome, depending on your point of view) as Darth Vader would be entitled to legal counsel to mount an adequate defense. Even though he’d likely be tried before a special war crimes tribunal, Vader would still be entitled to legal counsel. Defendants in real world war crimes trials have long enjoyed the right to counsel, such as in the Nuremburg Trials following World War II in 1945, where 24 of the most notorious Nazi leaders were each afforded legal counsel, as well as roughly 70 assistants, clerks, and lawyers. In more recent history, the U.S. Supreme Court ruled that Guantanamo Bay detainees must be afforded attorneys before being tried.

The Rebel Alliance is an organization built on restoring democracy and the rule of law, which means they would take great care to ensure that Darth Vader received a fair trial. Vader’s capture would inevitably result in impassioned calls for his summary execution. Giving in to that sentiment would make the Alliance no better than the Empire. Mon Mothma, a leader accustomed to making difficult choices, would not hesitate in declaring that Vader should be afforded a defense team and a neutral venue.

URoRRuR’R’R demands that Darth Vader be turned over to the Tusken Raiders to face sand people justice for his massacre in Attack of the Clones. The maximum punishment: Death by sand.

Galactic attorneys wouldn’t exactly jump at the chance to defend the Dark Lord of the Sith. However, just like John Adams stepping forward to defend British soldiers accused of the Boston Massacre, Star Wars has a history of individuals coming to the defense of the damned. Anakin’s own wife did so when she defended young padawan Ahsoka Tano during the Clone Wars. Years after Return of the Jedi, his daughter Leia would offer to do the same for a fellow senator in the novel Bloodline. The brave soul who steps forward to defend Darth Vader would have a tall task ahead of them. The Alliance would muster all available resources to pursue a seemingly endless slate of charges against Vader, including, but not limited to:

  • Aggravated assault
  • Aiding the enemy
  • Communicating a threat
  • Cruelty and maltreatment of subordinates
  • Dueling
  • Genocide
  • Maiming
  • Murder (by manual strangulation)
  • Murder (by Force strangulation)
  • Murder (by Force push)
  • Murder (by lightsaber)
  • Murder (by fists)
  • Stalking
  • Torture
  • Treason

If we took up the matter of strategizing a defense for every possible charge against Vader, this article would be long enough to make the average Game of Thrones novel look like a Little Golden Book. Instead, we’ll focus on just a few of the possible charges seen in A New Hope and The Empire Strikes Back. We’ll also avoid all the Skywalker family drama by not addressing the potential defense of lack of mental responsibility, even though it could arguably extend to just about all of Vader’s crimes.

The Destruction of Alderaan

Today’s forecast on Alderaan: Sunny with a chance of superlaser-induced cataclysm.

Alderaan would undoubtedly be the focal point for Alliance prosecutors. While the Galactic Empire was like a greatest hits album of awful injustices, the obliteration of Alderaan and its civilian population was its single worst crime. Darth Vader would be charged with the genocide of the Alderaanian people. The planet’s destruction fits the Geneva Convention definition of genocide, which is the “killing and other acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group.” Such a crime would be considered a “grave breach” of the Convention, which is a category reserved for the worst offenses.

Even though Darth Vader did not pull the switch that actually fired the superlaser, the Alliance would seek to hold him responsible because of his position and authority. As the Emperor’s black clad lapdog and a ranking Imperial military leader, prosecutors would argue that Vader bears criminal responsibility for Alderaan. In the real world, military commanders have been held legally responsible for the crimes of their subordinates under certain circumstances as far back as the 1400s. Commanders aren’t strictly liable for every offense committed by their subordinates. Instead, the commander’s personal dereliction must have contributed to or failed to prevent the offense.

The Alliance would argue that Vader, a central Imperial figure, had an undeniable central role with the battle station, given its scale and importance to the Imperial war machine. Vader’s defense would be built around establishing that he had no command or control over the Death Star. Vader would do so by putting on evidence of his truly limited role with the station.

Ladies and Gentlemen of the jury, I give you your incredibly high-cheekboned scapegoat.

For starters, Darth Vader had virtually no role in developing or building the station. Those tasks fell to Director Krennic, the Empire’s resident cape aficionado, and ultimately Governor Wilhuff Tarkin. Both officers were intimately involved with the project since its origin as an unfinished Geonosian schematic, while Vader and his deep skepticism of the project remained on the periphery.

There was also a stark difference in military standing between Tarkin and Vader. While Tarkin was a Grand Moff, a special high-level rank established by Palpatine, Vader no formal military rank. Although he commanded his own Star Destroyer and occasionally led military operations, Vader was more of an attaché or personal enforcer than a traditional field commander.

By virtue of his rank and intimate involvement with the project, it was Tarkin—not Vader—who assumed military control over the weapon once it was operational. Tarkin controlled the weapon above Scarif while Vader merely handled cleanup duty with the Rebel fleet. Following that battle, Vader remained merely a role player, carrying out the singular task of hunting for the station’s plans. Even Princess Leia seemed aware of the hierarchy, telling Tarkin that she wasn’t surprised to find him holding Vader’s leash.

Finally, it was Tarkin who ordered the Death Star to Alderaan and gave the command for it to fire. Vader’s failure to intervene was not a dereliction, because short of a direct command from the Emperor, Vader had no ability to order Tarkin to stand down on his own battle station. Vader therefore arguably had no command or control over the weapon, which would sever his criminal responsibility and give him a solid defense against the genocide charge.

Torture of Leia & Han

Vader calls this ‘aggressive questioning,’ which makes it totally not torture.

Even though Vader did not permanently damage Leia and Han, he would still be in deep Bantha poodoo over allegedly torturing them. The United Nations defines torture as the infliction of severe pain or suffering for unlawful purposes such as obtaining a confession, punishment, or to intimidate or coerce. Torture is uniformly outlawed under international law, including the Geneva Conventions.

In A New Hope, Vader introduced Leia to the Empire’s IT-O interrogation droid, also known as the “torture droid,” as he sought to coerce information about the Alliance’s hidden base (yes, that dreadful floating black ball with a giant needle has a name). Similarly, in Empire, Vader strapped poor Han into a literal torture chair so that his pain would reverberate through the Force to coax Luke into his trap. Both of these acts unquestionably qualify as torture under international law.

I don’t even know what to write here, except that you can buy a Han Solo action figure with an actual toy torture rack.

However, knowing that these acts are torture and proving them in a court of law are two very different things. In Leia’s case, prosecutors would absolutely need her to testify. The guards who witnessed the interrogation, any holo-recordings, and the interrogation droid itself would have all been annihilated with the Death Star. Leia also bore no permanent scars from the incident, which would make her testimony all the more essential. Real world prosecutions are regularly stalled due to non-cooperative witnesses. Testifying as a crime victim is often a terrifying experience that can take an incredible psychological toll.

Leia would feel that same pressure when deciding whether to testify. On one hand, she would face tremendous pressure from the Alliance to testify against one of its most notorious enemies. On the other hand, she would also feel a powerful internal struggle over stemming from her relationship with Vader. Her reluctance would be enhanced knowing that her father had finally redeemed himself. If Leia took the stand, she would face the very real possibility that her testimony would doom her father a short time after he had finally been freed from the grip of the Dark Side. Nonetheless, without her testimony, the prosecution could not prove that torture occurred, thereby sinking their case.

If she did testify, the defense would have to argue that exigent circumstances necessitated Vader’s actions. At the time, the Alliance had just stolen the technical data for the Death Star in order to exploit it for a weakness that could help them destroy the station. The lives of untold thousands aboard the station depended on his ability to find the plans and stop the imminent attack. Darth Vader therefore had little alternative but to aggressively question Leia.

Audience question for Mr. Calrissian: Did Cloud City just have a torture chair lying around or did Darth Vader bring his own?

Han’s torture presents slightly different circumstances for the defense. Fresh off learning that Vader is his terrifying new father-in-law, Han would have a struggle akin to Leia’s over possibly testifying. However, while the witnesses to Leia’s torture were all vaporized, the Alliance could probably find one or two other witnesses or some Cloud City security footage to support Han’s charge.

Vader’s defense team would be in tougher straits with this charge. Unlike with Leia, there was no imminent Rebel attack and thus no exigent circumstances. Vader didn’t even ask Han any questions, as he real purpose was simply to inflict pain in an effort to draw Luke out of hiding. So, Vader would likely argue duress. Duress is an affirmative defense in which a person admits to doing something as a direct result of some pressure, threat, or violence. Vader would claim that he feared death or grievous bodily injury at the hands of Palpatine if he did not deliver Luke Skywalker.

The Emperor viewed Luke as the most pressing threat to the Empire and had ordered Vader to kill or turn Luke to the Dark Side shortly before Han’s torture. As a murderous maniacal Sith Lord, the Emperor did not take failure lightly. Consequently, Vader harbored a legitimate fear that he would be killed or seriously injured if he failed. With Luke in hiding, Vader resorted to torturing Han as a last-ditch effort to lure Luke to Cloud City. Therefore, while Han’s torture was unlawful, Vader only did so because of the looming threat presented by the Emperor.

“Pleading guilty is a perfectly acceptable alternative in extreme circumstances. The Rebel Alliance may be gracious enough to…”

Defending Darth Vader would be one of the toughest jobs in the galaxy, right behind being Jabba the Hutt’s personal bathing assistant. After all, there is a big difference between having a possible or technical defense to a crime and actually getting a judge or jury to buy it. Vader’s hulking presence and rhythmic unnerving breathing at counsel table probably also wouldn’t help the situation. But affording Vader a robust defense and a fair trial would allow the Alliance to put its money where its mouth is, proving their commitment to the restoration of justice in the galaxy.

Aunt May’s Liability for Spider-Man’s Fight on the Staten Island Ferry

Aunts are awesome. Aunt May arguably is the most well known aunt in pop culture. However, Aunt May in Spider-Man Homecoming rightly would freak out if she knew the full extent of her nephew’s after school activities.

Aunt May is Peter Parker’s legal guardian. As such, could the passengers on the Staten Island Ferry sue Aunt May for Spider-Man’s fight that resulted in their cars going overboard after the ferry was cut in two [if Peter’s identify was known]?

New York enacted a Parental Liability Act in 1970 where parents and legal guardians would be liable for the “malicious and destructive acts of their children, between the ages of 10 and 18, who are in their custody and unemancipated at the time of the damage.” See, New York’s Parental Liability Act, General Obligations Law § 3-112.

There would be a question of fact whether Spider-Man’s fight with the Vulture was “malicious or destructive.” However, that issue is moot, because the New York Parental Liability Act was found to be Unconstitutional in 1988, because it was a bill of attainder that punished parents for the crimes of their children. Owens v. Ivey, 525 N.Y.S.2d 508, 138 Misc.2d 671 (N.Y. City Ct., 1988).

The New York Parental Liability Act effectively replaced the need for a trial. All a party had to do was prove intentional and malicious conduct done by a child; that they suffered damages because of the child’s conduct; and prove the parent (or legal guardian) was related to the child. Owens, at *514-515.

In the case of the ferry passengers, they could prove 1) Spider-Man intentionally fought with the Vulture, which interfered with an FBI sting operation; 2) the fight resulted in the cars being a total loss after going overboard; and 3) that Aunt May was the legal guardian of Peter Parker. This on its face would be liability for being Peter Parker’s guardian.

By way of comparison, it is a good thing Aunt May lives in Queens. Parental liability laws are legal in California, where the maximum limit for property damages is $25,000 under Cal Civ Code § 1714.1 (other states have lower limits). Given the number of cars that went overboard, Aunt May would have serious liability issues for each automobile, if May and Peter lived in California.

New York does have exceptions to the prohibition of cases for parental liability, such as for negligent supervision of a child with a known propensity for violent conduct, or to shield third parties from a child’s use of a dangerous instrument, especially if the parent has knowledge and can control the use of the dangerous instrumentality. See, McEntee v. Cappucci, 701 N.Y.S.2d 766 (N.Y. City Civ.Ct., 1999), citing Zuckberry v. Munzer, 277 A.D. 1061, 100 N.Y.S.2d 910, (2nd Dep’t 1950) and Nolechek v. Gesuale, 46 N.Y.2d 332, 338, 413 N.Y.S.2d 340, 385 N.E.2d 1268 (1978).

A plaintiff’s attorney in New York could argue that Peter Parker has a propensity for violent conduct, because of his vigilante activities. However, Aunt May has a strong defense because of her lack of knowledge about Peter’s activities as Spider-Man. However, the more interesting question is Tony Stark’s knowledge and enabling of Peter’s activities as Spider-Man with the “Stark Internship.” As the only deep pocket, it would make more sense for plaintiffs to sue Tony Stark, opposed to an aunt in Queens, as Stark arguably was acting in a Respondeat-Superior relationship with Peter Parker by providing Parker an enhanced suit to complement his augmented abilities.