Just what are the civil rights of aliens being held by the DEO? Do extraterrestrials have a right to council? Can humans and aliens be held indefinitely without a trial?
Bizarro Civil Rights Violations on Supergirl
Agent Alex Danvers on Supergirl decided to go big in violating the United States Constitution in the episode “Bizarro.” In the episode, Maxwell Lord has taken comatose women and performed medical experiments upon them to create a “Bizarro” Supergirl clone. Lord knows Kara is Supergirl and that she is Alex’s sister.
Danvers in rightly upset that Maxwell Lord should be arrested for possibly kidnapping of comatose women; unlawful medical experiments in violation of the Nuremberg Code of Ethics in Medical Research and Declaration of Helsinki to prohibit unethical experiments on living human beings, which is codified as law in California pursuant to Cal Health & Saf Code § 24171; and terrorism in using Bizarro Supergirl as his agent in carrying out domestic terrorism. There is no shortage of probable cause for the FBI or local law enforcement to arrest Maxwell Lord.
Problem: the DEO does not have jurisdiction to conduct law enforcement, only protect the United States from alien threats. Moreover, the Federal agency is secret, so the FBI is not even aware of the DEO’s existence.
Alex Danvers took armed DEO Agents to Maxwell Lord’s office and arrested him without stating the charges against him or reading him his Miranda rights. Lord was then taken to the DEO and placed in a holding cell.
Maxwell Lord was deprived of his Fourth Amendment rights by arresting him without stating the charges against him; violated his Fifth and Sixth Amendment Rights to counsel; denied him the writ of habeas corpus; and a host of other issues from false imprisonment, malicious prosecution, false arrest, unlawful arrest, and possibly cruel and unusual punishment (like where is the bathroom in his cell).
There is no exception to the United States Constitution for someone’s sister being threatened. Max’s well-paid lawyers could sue the United States government for his civil rights violations AND Alex Danvers under a 1983 action.
Here is how Alex is in a boatload of trouble:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
42 USCS § 1983 (Emphasis added).
Alex Danvers knew the DEO lacked any jurisdiction to arrest Maxwell Lord, yet arrested him anyway under the color of her authority as a DEO Agent. This cannot stand. Lord could sue her personally, as there is nothing to give her any immunity as acting for conducting her unlawful arrest.
Let’s hope Alex knows a good lawyer for playing Star Chamber with Maxwell Lord.
Judge Matthew Sciarrino Explains How Batman Could Testify in Court
The Right to Confront Witnesses. Valid Search Warrants. How do confidential informants and undercover police officers testify in Court? These issues are critical to criminal defendants having their rights upheld in Court. How would a Court handle the need for Batman, who is now Jim Gordon since Batman issue 41, testifying in Court so his identity is not made public?
New York State Judge Matthew Sciarrino joined us to discuss how these issues currently play out in Court and how the real world could handle a deputized super-hero who needs to maintain a secret identity.
Dedicated to the inspiring Yvonne Craig and Lenny B. Robinson.
Daredevil Into the Ring (and Confession)
Daredevil is here on Netflix, and man, do we have great legal issues just in the first episode.
As a preliminary matter, that toxic waste company should have given the Murdock family one heck of a check for blinding Matt Murdock. Granted, there would be significant issues for a trial on who was at fault in an accident, which would determine which driver’s insurance company would pay the different victims, but it is hard to escape liability for toxic chemicals, especially if the truck driver was at fault.
Forgive Me Father I am GOING to Sin
Matt Murdock asked a Priest for forgiveness for a sin he was going to commit. This clearly demonstrated Charlie Cox’s emotional acting skills and raised an issue: could the Priest go to the police if he believed Murdock was going to commit a crime?
New York defines the Clergy Privilege as follows:
Unless the person confessing or confiding waives the privilege, a clergyman, or other minister of any religion or duly accredited Christian Science practitioner, shall not be allowed disclose a confession or confidence made to him in his professional character as spiritual advisor.
NY CLS CPLR § 4505.
In order for a communication to be protected by the clergy privilege, the communication must: 1) it must be confidential; 2) it must be made to a minister or clergy member acting in a professional character as a spiritual advisor; 3) it must be made for the purpose of seeking spiritual advice or religious counsel; and 4) it must not be waived by the person making the confidential statement. People v. Harris (Sup.Ct.) 934 N.Y.S.2d 639, 645.
Murdock’s “confession” seems to meet all four elements.
First things first: Confession usually is about seeking forgiveness for PAST sins. Alternatively, many seek spiritual guidance on difficult choices they have to make. Matt Murdock’s visit to confession falls into both categories, because he effectively was seeking advice for actions he was going to take as a vigilante. As such, the Priest could not disclose communications made to him from someone seeking spiritual advice.
If Matt Murdock went and sought forgiveness for beating up four men who were kidnapping women to be sold into slavery overseas, the Priest should give the lawyer a high five in the confessional booth. While Romans 12:19 in he Bible states, “Vengeance is mine, I will repay,” there is the brutal reality that the law allows for the defense of others. Saving people from slavery should not involve any feelings of guilt.
Saving Others from Slavery
Daredevil saved four women from being sold overseas into slavery for $1,000 a head. This rescue involved seeking out those in danger and engaging four men in brutal hand-to-hand combat. Was this legal in New York?
New York allows for the defense of others:
- A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:
(a) The latter’s conduct was provoked by the actor 1 with intent to cause physical injury to another person; or
(b) The actor was the initial aggressor; except that in such case 1 the use of physical force is nevertheless justifiable if 2 the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or
(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.
NY CLS Penal § 35.15.
A District Attorney might argue that Daredevil was the initial aggressor in the fight. This argument would fail. The female victims were clearly kidnapped, physically harmed, and about to be locked in a shipping dark shipping container with a bucket for a bathroom. Daredevil entered the scene well after the first “aggression” had taken place. As such, a person could reasonably believe that the mobsters were using unlawful physical force on the women by kidnapping them. Daredevil’s actions were thus legally justified.
Just the Beginning
Those were the legal issues in just the opening minutes of the show. There are many other significant legal issues, from bribing police officers with cigars, being retained as counsel by a criminal defendant, the state holding someone without pressing charges, Whistle Blower Protections, the duty of loyalty to a client, extortion, fraud, money laundering, drugs, conspiracy, and likely a growing list of high crimes.
There are also many issues with setting up a law practice, from what kind of entity to form, advantages of a Partnership vs Limited Liability Partnership, rental agreements, insurance requirements for employees, HR compliance for employees, malpractice insurance, legal research accounts, a matter management tool, and a discovery management application. However, law office management is not really that exciting on a super-hero TV show.
The first episode of Daredevil opened with a bang. Great job and looking forward to binge watch the rest.
Can the Gotham Police Beat a Confession to Save 30 Kids from Being Eaten?
Oh, Gotham. Thank you for presenting such a wonderful legal issue on whether it is “OK” for the police to beat a confession from someone in order to save 30 kids from being sold overseas to be a meal. Or worse. We never really learned what the Dollmaker had planned for the children.
While the orphans, the public, politicians, and press, would not have a problem with Detective Bullock beating a prisoner with a phone book to find out where kidnapped children were being held, a Court would begrudgingly say, “Don’t Do that Again.” Any thing learned from the suspect would tainted as “fruit from the poisonous tree” and in admissible in Court. The bad guy would walk because of the beating.
Police can conduct a search without a warrant when there are “exigent circumstances,” namely imminent and ongoing danger to life. Additionally, police can question someone arrested without giving them Miranda Rights if there are “overriding considerations of public safety.” New York v. Quarles, 467 U.S. 649 (1984). This generally involves finding bombs left around town or where a loaded gun was left in a field. However, it is rare to find a modern Court giving a judicial thumbs up to police brutality.
Which brings us to Detectives Harvey Bullock and James Gordon. The police arguably did not gain the exact location of the warehouse from the suspect, because Gordon figured out what the images were to identify the company logo. Even if the beaten suspect described the logo, there is an argument the information was available from the original child victims and if Bullock also saw the truck in the gunfight. As such, the information would have been available from independent sources other than the unlawful interrogation.
There is no question Bullock and Gordon had “exigent circumstances” to search the warehouse for the missing children without a warrant. However, there really is no way around a 1983 action against Bullock and the police department for beating someone in custody.
"I Don’t Want Your Future [Legal Nightmare]!"
Jessica Mederson, Esq., and Joshua Gilliland, Esq., put on their X-Uniforms and jump in the Blackbird to discuss legal issues in X-Men Days of Future Past. For example, who would have been President if Magneto had been successful in killing President Nixon and his Cabinet? Would it even remotely be Constitutional to use Sentinels to hunt Mutants?
Does Killing Mutants With Sentinels Violate the Equal Protection Clause of the Constitution?
X-Men Days of Future Past highlighted a disturbing idea: the US Government deploying Drones (Sentinels) to kill US citizens solely on their racial status (Homo Superior, opposed to Homo Sapiens). There would be no crime, no arrest based on probable cause, no right to counsel, or even a trial. Simply killed for their racial status.
Would that be Constitutional?
No, for multiple reasons.
As a preliminary matter, a Court would find a “mutant” is a “person” and a US Citizen under the law. Determining that a Homo Superior is a human being is not as controversial as claiming Orca Whales have their 13th Amendment rights violated at Sea World (an argument that lost in Tilikum v. Sea World Parks & Entm’t, Inc., 842 F. Supp. 2d 1259, 1262-1264 (S.D. Cal. 2012).).
A Homo Superior is born like Homo Sapiens, often from other Homo Sapiens. Whether you believe life begins at conception or viability, there is no question that human beings are conceived and born of other humans. Moreover, Homo Sapiens and Homo Superiors can have children together. Human beings cannot cross-bred with other animals (Thank God).
The Constitution would not tolerate human rights being striped of those born of other human beings. Moreover, the very idea someone’s child is “not human” because they are Homo Superior has the moral weight of determining humanity by eye color.
There are many historical examples of countries enacting raced-based legislation, imposing nightmarish laws in the past. In the United States, one only needed to have 1/32 African heritage to qualify as a “slave.” Courts even took the view that there was a “presumption of law…that a person of African descent is a slave, but that the presumption may be repelled by any evidence tending to show he is free.” Lee v. Tapscott, 2 Va. 276, 282 (Va. 1796). Further evidencing horrific legal abominations, Nazi Germany required someone to have 1/16 Jewish heritage to be a “Jew” for Hitler’s genocidal war crimes.
Those are two examples from the eighteenth through twentieth centuries etched into my memory from college. The horror of state licensed inhumanity should never be forgotten.
There are far more good laws than bad. The Due Process Clause of the 5th Amendment states that “[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law . . . ” The 14th Amendment to the United States Constitution further states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
A Court would be hard pressed to say a “mutant” is not a person under the law without resurrecting the ghosts of Dred Scott and Korematsu. A Judge who would uphold the use of Sentinels would simultaneously channel Chief Justice Taney in saying mutants were not “people” and Korematsu,except instead of interning mutants because of their racial status, to kill them without a trial, regardless whether any crime had been committed. Any such law would be convicting citizens for the crime of being a Homo Superior with an extra-judicial death sentence.
There is no way Congress could authorize the use of Sentinels without triggering “Strict Scrutiny,” because it is a race-based law that calls for the execution of US citizens. While the Government could argue there is a compelling government interest in national defense, there is no way they could argue systematically killing citizens without a trial is in the government’s interest. Secondly, there is no way any such law would be narrowly tailored, because the Sentinels would systematically kill any mutant. (See, Richmond v. J. A. Croson Co., 488 U.S. 469, 476 (U.S. 1989), for the strict scrutiny test). There would be multiple less restrictive means to carrying out the compelling government interest of national defense without mass murder.
The Constitution further requires the right to a trial and counsel. People in the United States cannot be randomly arrested for no reason, let alone roadside executions by a Drone. There is simply no way the use of Sentinels would be Constitutional because of the extreme denial of Due Process or Equal Protection for Homo Superior citizens.