Could Nick Fury Promote Phil Coulson to Director of SHIELD?

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September 19, 2014

Agents of SHIELD Season 2 has Phil Coulson where he should be: Director of SHIELD.

Just one GIANT-MAN sized problem: Nick Fury likely did not have any legal right to make such a promotion. No amount of Pym-particles could shirk the fact SHIELD had been disbanded, with its members either wanted for questioning or subject to arrest warrants for treason. Never mind the fact the world also thinks Fury is dead.

While the exact organizational structure has not been stated, SHIELD operated as a branch of the US military (as evident from the questioning by the Joint Chiefs at Congress at the end of Winter Soldier), with also an international oversight committee empowered to make policy. SHIELD was headed by Secretary Alexander Pierce (who likely was confirmed by the US Senate), run by Nick Fury as Director (also likely confirmed by the Senate), and headquartered in Washington, DC. In the wreckage of Winter Soldier, SHIELD was disbanded and political fallout for the fictional US President was overheard on talk radio in Agents of SHIELD.

Did Nick Fury have any legal right to appoint Coulson as Director? It is extremely difficult to envision any statutory authority to do so. However, Fury arguably had apparent authority from a Realpolitik point of view: Fury had all the secrets to rebuild the organization. As such, giving those secrets to Coulson effectively is only enabling vigilantism that borders on treason, albeit justified by the necessity defense.

There is a small amount of evidence that Coulson’s appointment is operating under limited government approval: at the end of Season 1, the former SHIELD agents were not arrested with the HYDRA agents, surgically altered soldiers, and Cybertek employees. Either the arresting agencies decided to ignore Coulson’s team or give him tacit approval by not prosecuting them for attacking General Glenn Talbot and other US soldiers in Canada. The US Government still needs SHIELD to combat threats such as HYDRA, thus might be operating with plausible deniability of Neo-SHIELD’s actions.

We will know for sure as Season 2 unfolds.

The Duty to Treat Rusty the Dalek POW

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Josh Gilliland

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August 31, 2014

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Doctor Who’s “Into the Dalek” presented wonderful legal issues from treatment of prisoners to the necessity defense. The episode also has huge shout-outs to Star Trek: The Next Generation, Star Wars, and Fantastic Voyage.

If they ever do another Sea Devils story, I would not be surprised if there is a Voyage to the Bottom of the Sea homage.

Rights of Prisoners’ of War to Medical Treatment

An injured Dalek the Doctor names “Rusty” had been damaged to the point of becoming good. Rusty requested a doctor for medical treatment after being captured by the “rebel” ship Aristotle.

After seeing the birth of a star, Rusty realized that “resistance is futile” to life. Dalek’s are driven by genocidal fascism to kill anything different from them, so making the leap to stargazing and the meaning of life is a very big leap. Especially without feet.

The Geneva Convention requires that a prisoner of war suffering from a “serious disease, or whose condition necessitates special treatment, a surgical operation or hospital care, must be admitted to any military or civilian medical unit where such treatment can be given…” Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949, Article 30.

Prisoners of War also have the right to seek medical attention. Id.

Rusty had the right to request treatment, given the fact he is a uniformed soldier (considering he is part biologic life form fused with a mini-tank), and a prisoner of the “rebels.” As such, treating would have been required under the rules of warfare.

Alternatively, there is another theory to treat Rusty: Prisoners with a serious mental illness can be treated with antipsychotic drugs against their will if the inmate is dangerous to himself or others. Ashby v. Schneck, 1995 U.S. App. LEXIS 17154, 3-4 (8th Cir. Minn. July 17, 1995).

Dalek’s are mentally altered by their computer programing to hate and exterminate others. The fact their computer program keeps their biological minds from growing, having memories, and learning, could be a condition that makes them dangerous to others, thus justifying treatment.

The Necessity Defense

A mildly troubling scene included using a human soldier as bait to save the rest of the team who had traveled into the Dalek. The ill-fated soldier shot anchors for repelling equipment into the deck of the Dalek, promoting antibodies to attack (very much like in Fantastic Voyage, instead with lasers instead of absorbing like the Blob).

The Doctor throw an item to the soldier and said, “Swallow this.” After which the Dalek Antibodies killed the soldier. When questioned by Clara, the Doctor responded, “He was already dead. I was saving us.”

Using the soldier as bait for the antibodies would have been legally justified, while emotionally traumatic, based on the necessity defense.

A law school example of the necessity defense is you are on a runaway trolley, headed down the hill, to crash into station. Pulling out a gun to shoot a bystander to use as a break would save yourself and everyone on the trolley, but would be unjustified murder. You cannot kill an innocent to save yourself.

In the case of our soldier, there was no way for him to escape the Dalek, or the antibodies seeking his immediate destruction. The Doctor giving him a tablet that focused the antibodies solely on the soldier saved everyone else and limited the attack to the target soldier. While extremely cold, it was the right tactical decision to save everyone else and legally justified.

Restaurant Safety on Doctor Who

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Josh Gilliland

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August 25, 2014

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Doctor Who is back! And this time, with great lessons in restaurant safety!

The Doctor’s 13th Regeneration exploded in Deep Breath with a dinosaur, the names of the Dwarves from Snow White, and a huge homage to the Brigadier’s final line in Planet of the Spiders. Adding to the coolness, Jenny had a steampunk looking device on her hand to detect time travel. Moreover importantly, the Doctor recognized his reflection and asked himself “Why did I choose this face?”

How to Serve Human

Let’s talk about Mancini’s Family Restaurant: The restaurant served liver for starters, brain stem and lungs for the main course, and sides of eyes and spleen. Skin for dessert, naturally.

The first law of restaurants: do not kill your guests; second rule, do not harvest their organs; third rule, do not use guests to make robots more human.

The goal of having a restaurant is winning new customers repeat business to be profitable. Homicide is an extreme deterrence to both of those goals.

A restaurant is “any eating establishment which offers food for sale to the public.” Colony Nat’l Ins. Co. v. Hing Wah Chinese Rest., 546 F. Supp. 2d 202, 207 (E.D. Pa. 2008). Moreover, a “retailer who sells unwholesome food for human consumption is liable to the consumer for the consequences under an implied warranty imposed by law as a matter of public policy, even though . . . the retailer has no means of knowing that the contents are unfit for human consumption.” Ayala v. Bartolome, 940 S.W.2d 727, 729 (Tex. App. Eastland 1997).

Someone who runs a public business like a restaurant is “subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent or intentionally harmful acts of third persons . . . and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.” Lopez v. McDonald’s Corp., 193 Cal. App. 3d 495, 506 (Cal. App. 4th Dist. 1987), citing Peterson v. San Francisco Community College Dist., 36 Cal.3d at p. 807, quoting Rest.2d Torts, § 344.

In a nightmare case where a massacre took place at a restaurant, summary judgment was granted for the restaurant, because the “restaurant’s duty to take reasonable precautions to protect patrons from reasonably anticipated criminal conduct of unknown third parties did not encompass the burden to protect against once-in-a-lifetime massacres. The likelihood of the unprecedented murderous assault was so remote and unexpected that, as a matter of law, the general character of the restaurant’s nonfeasance in not providing security did not facilitate its happening.” Lopez v. McDonald’s Corp. (1987, Cal App 4th Dist) 193 Cal App 3d 495, 238 Cal Rptr 436, 1987 Cal App LEXIS 1913.

Mancini’s is not a case where a third party caused harm to someone going out for lunch, but an elaborate trap to murder people for their organs. It is not a restaurant, but a criminal enterprise organized by Clockwork robots from the 51st Century that crash landed on Earth over 65 million years ago on the Marie Antoinette. While tacking health and safety code violations to the criminal complaint would be gravy (provided late 19th Century England had such laws), the Clockwork Robot’s plan is like a criminal conspiracy to commit murder (if a robot can be charged with murder).

Now, did the Doctor push the Clockwork Robot out of the escape pod? This would make the Thirteenth Doctor (Counting the War Doctor) a lot like the Sixth Doctor, who killed the Androgum Shockeye in the Two Doctors. If the Doctor did push the Robot out of the escape pod, it was done under the defense of others to save his Companions from being killed. Moreover, killing a robot arguably is not the same as killing a person, thus not murder, but destruction of property.

Unless all robots go to Heaven, which makes our Clockwork Robot a lot of Pinocchio.

Ragtag Legal Lessons from Agents of SHIELD

By

Josh Gilliland

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May 7, 2014

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Agents of SHIELD is drawing to an excellent season finale. Here are legal issues from Ragtag.

Doing the Right Thing vs Vigilantes

Agent Fitz admitted the operations the Agents are carrying out makes them vigilantes. Agent Coulson countered he called it “doing the right thing.” The “doing the right thing” has been the core of the posts Vigilantes of SHIELD and Flying Lola in the Face of Orders. More importantly, Coulson’s motivation to “be the shield” has been an excellent moral justification for being of SHIELD.

Agent Coulson and his team are breaking the law, but they have a very strong “necessity defense,” because they are trying to stop greater crimes from happening. Moreover, there is no other course of action for them to take. Additionally, they have broken multiple laws in conducting law enforcement activities, but they have not taken the lives of anyone in law enforcement, the military or civilians. That still shows they are acting in the nation’s best interests and not outright committing treason.

Who is Cybertek’s Records Information Management Officer?

Cybertek would throw the Silicon Valley world of electronically stored information on its head by only maintaining paper records and not having any electronic data.

For all of the attorneys who wish to avoid text messages, social media and email in litigation, Cybertek is the right client for you.

Just be highly skilled at defending charges ranging from treason to unlawful human medical experimentation.

There are over 14,000 records retention laws in the United States. Knowing which ones apply to a company is how general counsel earn their paychecks. Companies struggle with data managements, archiving, and preserving data they are legally required to maintain under the law or for business reasons.

That being said, Cybertek is not an anomaly for having paper documents going back to 1990. There are technology companies in Silicon Valley that have paper documents from the 1980s appearing in patent cases. That is not abnormal. What is highly strange would be a tech company in Palo Alto without computers.

Can We Get Haircuts in Cuba?

Cuba has the distinction of making Theodore Roosevelt a hero, a rare Presidential trip and speech by Calvin Coolidge, the Bay of Pigs, and being ground zero for almost starting World War III in 1962. For many foreign policy reasons, Cuba has been embargoed in a grudge match with the United States.

It would be very difficult for our heroes from SHIELD to drop in on Cuba for a day trip, without the risk of war. Moreover, a secret HYDRA base under a barber shop would not help Cuba’s relations with the United States.

Travel to Cuba is highly regulated for specific reasons. Tourist travel is prohibited. 31 CFR 515.560(F). General and specific travel licenses can be granted to those subject to US jurisdiction to Cuba for the following activities:

(1) Family visits (general and specific licenses) (See § 515.561);
(2) Official business of the U.S. government, foreign governments, and certain intergovernmental organizations (general license) (see § 515.562);
(3) Journalistic activity (general and specific licenses) (see § 515.563);
(4) Professional research and professional meetings (general and specific licenses) (See § 515.564);
(5) Educational activities (general and specific licenses) (See § 515.565);
(6) Religious activities (general and specific licenses) (See § 515.566);
(7) Public performances, clinics, workshops, athletic and other competitions, and exhibitions (specific licenses) (See § 515.567);
(8) Support for the Cuban people (specific licenses) (see § 515.574);
(9) Humanitarian projects (specific licenses) (see § 515.575);

31 CFR 515.560.

Agent Coulson and his team’s travel to Cuba would violate US law, as they could not apply for a license, and also Cuba’s rights as a nation. Most countries do not approve of rogue former spies doing the “right thing” in a paramilitary operation.

It also should be noted, getting a haircut and shave is not on the list.

In the unlikely event Agent Coulson and his fellow agents coordinated with the Cuban government, they would likely violate the Logan Act. This law prohibits US citizens effectively having their own foreign policy agreements with the “intent to influence the measures or conduct of any foreign government” that are “in relation to any disputes or controversies with the United States.” 18 USCS § 953. Given the nature of the relations with Cuba, and the likely negative reaction from the US with HYDRA launching operations from Cuba into the United States, the Logan Act might be violated if Coulson coordinated with Cuba. However, this seems highly unlikely.

Don’t Make Me Go Old Yeller

Garrett should not be allowed around children. Or Dogs.

There is no question that John Garrett “liberating” Grant Ward from juvenile hall would have been child abduction. Massachusetts law states:

Whoever, without lawful authority, forcibly or secretly confines or imprisons a child under the age of 16 within the commonwealth against his will or forcibly carries or sends such person out of the commonwealth or forcibly seizes and confines or inveigles or kidnaps a child under the age of 16 with the intent either to cause him to be secretly confined or imprisoned in the commonwealth against his will or to cause him to be sent out of the commonwealth against his will or in any way held to service against his will, shall be punished by imprisonment in the state prison for not more than 15 years. The provisions of the preceding sentence shall not apply to the parent of a child under 16 years of age who takes custody of such child.

ALM GL ch. 265, § 26.

Garrett arguably meets this offense, because HYDRA agents forcibly broke Ward out of juvenile hall and left Ward in the woods to fend for himself. While Ward did agree to go with Garrett, that did not also include “troops are about attack.” Moreover, leaving a minor in the woods to care for themselves would be child abuse and abandonment.

Ordering Ward to kill Buddy the Dog would violate Wyoming law, which defines animal abuse, in part, as “unnecessarily… attempts to kill an animal.” Wyo. Stat. § 6-3-203(a)(ii).

Forcing Ward to kill Buddy would go far beyond Old Yeller, where our boy hero had to shoot his beloved dog infected with rabies.

Buddy’s only reason to be put down was making Ward weak by emotional attachment. If the young Ward had executed Buddy, he would have committed a crime.

And Garrett is a supreme jerk.

Too bad Ward did not feel the same loyalty to all the SHIELD Agents he killed.

It is eerie that it looked like Ward was going to kill Fitz and Simmons like Old Yeller. Instead of being in a shed, Fitz and Simmons were in a cargo pod as Ward wrestled with his feelings. However, Fitz’s puppy dog loyalty to Ward seems to have been rewarded by being dumped at sea from a survivable altitude and speed, opposed to executed like Old Yeller in a shed.

An EMP As a Weapon

Fitz might not understand how to do a fist bump, but he knew how to ruin a cyborg’s day with an electromagnetic pulse.

Was using the EMP a valid form of self-defense? Maybe. Garrett wanted Fitz and Simmons dead. While a gun was not to his head, stopping Garrett was more a tactical move to eliminate an enemy.

Flying Lola in the Face of Orders

By

Josh Gilliland

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April 30, 2014

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Agents of SHIELD is drawing to a great close. “Nothing Personal,” touched on many legal issues from the lawful of the former Agents’ actions, to following orders, Congressional inquiries, and possible violations of the Federal Aviation Regulations.

Congress vs Man-Thing?

Maria Hill showed her disdain for Congress holding hearings on everything from the Fridge to the Man-Thing.

While it is a safe assumption most people rather burn at the touch of the Man-Thing than be grilled by Congress, it is the job of Congress under Article 1 of the Constitution to provide oversight of the Executive Branch.

It is also important to remember Washington, DC is built on a swamp, so the Man-Thing should feel at home in a Congressional hearing.

Moreover, since Congress had to approved secret budgets for building flying aircraft carriers for HYDRA-New-Age-Nazis to kill people [most likely thanks to Senator Stern], questions should be asked who did what by Congress.

I Was Just Following Orders

A theme for the Agents of HYDRA was that their actions were not personal, but simply a matter of following orders.

For the SHIELD Agents, the issue was whether there is there anyone left to give orders. By the end of the episode, the team is held together by a sense of loyalty and duty in a cheap motel. This sense of duty took them from enduring taunting by Colonel Talbot on why they were “valuable” to fighting the US Army with non-lethal weapons in order to stop HYDRA.

Skye had some of her best lines of the season, after enduring a cross-continental flight with Agent Ward, she was able to open up on Ward’s “following orders” with “riot in Hell” for being a Nazi with a high death count.

The SHIELD Agents most likely will have to face the US Government for their actions. Under normal circumstances, they might try a “I was following orders” defense. As many Courts have stated, “[S]ince World War II, the ‘just following orders’ defense has not occupied a respected position in our jurisprudence, and officers in such cases may be held liable under § 1983 if there is a ‘reason why any of them should question the validity of that order.'” O’Rourke v. Hayes, 378 F.3d 1201, 1210 (11th Cir. Fla. 2004), citing Brent v. Ashley, 247 F.3d 1294 (11th Cir. 2001).

The SHIELD Agents know there is no real authority for them to issue or follow lawful orders. However, they are responding to the threat caused by HYDRA, even though SHIELD is viewed as a terrorist organization.

The Agents following Coulson have a small chance to mitigate any charges against them on a narrow view of the “following orders” defense:

“While it is typically no defense for an officer to claim he was simply ‘following orders,’ plausible instructions from a superior or fellow officer can support qualified immunity where, viewed objectively in light of the surrounding circumstances, they could lead a reasonable officer to conclude that the necessary legal justification for his actions exists.”

Wesby v. District of Columbia, 841 F. Supp. 2d 20, 40 (D.D.C. 2012), Harvey v. Plains Twp. Police Dept., 421 F.3d 185, 199 (3d Cir. 2005) (citing Bilida v. McCleod, 211 F.3d 166, 174-75 (1st Cir. 2000)).

The SHIELD Agents could argue that there was necessary legal justification for their actions, because of the fact HYDRA was actively executing a plot that threatened national, if not global, security. Given the events in the Winter Soldier, this argument might carry some weight.

Get Off My Plane

It is very hard not to love a flying car with machine guns. However, taking Lola for an emergency flight raised several issues possible violations of the Federal Aviation Regulations.

Agent Coulson made an emergency in-flight escape from the Bus in Lola. Experiencing engine trouble resulting from a gunfight with Deathlok and Ward, Lola had an emergency landing new the JW Marriott in downtown Los Angeles.

Rules regarding aircraft are very clear: No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another. 14 CFR 91.13. Furthermore, Lola meets the definition of an aircraft as a “device that is used or intended to be used for flight in the air.” 14 CFR 1.1

No one may operate an aircraft in a congested areas below an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft. 14 CFR 91.119(b).

Los Angeles is the poster child of a congested area. However, 14 CFR 91.119(a) does allow for emergency landings in the event of a power failure “without undue hazard to persons or property on the surface.” As Coulson was able to set Lola down in an emergency landing in a parking space, he likely complied with the spirit of the FAR, if not the actual letter of the law.

Now, Agent Ward not checking into airspace on his flight, well, just add that to the growing list of charges…

Can Skye Claim the Necessity Defense for Hacking the NSA?

By

Josh Gilliland

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April 23, 2014

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Skye in the Agents of SHIELD episode “The Only Light in the Darkness,” hacked the National Security Agency’s satellite system to see who was responsible for the attack on the Fridge. This was legally problematic, because SHIELD has been branded a terrorist organization. Just as you cannot simply walk into Mordor, you cannot simply hack the NSA’s spy satellites.

Federal law specifically prohibits hacking into government agency’s such as the NSA. Her actions would have violated 18 USCS § 1030 subsections (a)(1), prohibiting accessing national defense information; (a)(2)(B), prohibiting accessing information from any department or agency of the United States; (a)(3), prohibiting accessing nonpublic computers used by the government.

There is no question Skye’s hacking of the NSA computers violated 18 USCS § 1030, plus multiple other cyber-crime laws, when she hacked into the NSA’s satellite network.

Skye could argue her hacking was done out of “necessity” to prevent greater harm. The necessity defense may be asserted “only by a defendant who was confronted with . . . a crisis which did not permit a selection from among several solutions, some of which did not involve criminal acts.” United States v. Holmes, 311 Fed. Appx. 156, 164 (10th Cir. Kan. 2009). The necessity defense has a three part test:

(1) There is no legal alternative to violating the law;

(2) The harm to be prevented is imminent; and

(3) A direct, causal relationship is reasonably anticipated to exist between defendant’s action and the avoidance of harm.

Holmes, at *164 citing United States v. Benally, 233 F. App’x 864, 868 (10th Cir. 2007).

The necessity defense gets a little complicated for the former SHIELD Agents. While Agent Coulson’s team is still acting as “the shield that protects” society from the criminals who escaped from the Fridge, they are arguably acting as international vigilantes.

Skye (and the the rest of the team) would have to argue hacking into the NSA computers to access the US spy satellite data was done because they 1) had no legal alternative; 2) the harm from all of the escaped prisoners was imminent; and 3) by accessing the data, they could stop further criminal activity.

There would be a difficult argument to make in that the harm was “imminent” given the time that had passed since the breakout. However, a skilled lawyer could argue finding the enhanced criminals from the Frig was “imminent,” in order to locate them before they completely disappeared.

Would the argument work? Maybe. Courts really do not want to approve of after-the-fact-vigilantism, but if significant harm is stopped…

Legal Issues in Captain America The Winter Soldier

By

Josh Gilliland

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April 7, 2014

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Major Spoilers!

Jessica Mederson and Josh Gilliland discuss Captain America The Winter Soldier. The discussion focuses on treason, the necessity defense, insanity defense, how SHIELD could be organized, following unlawful orders and geeking out over Captain America.