The First Time Han Shot First

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June 15, 2018

Solo A Star Wars Story took aim at the first time Han Shot First. Spoilers ahead if you have not seen Solo.

Facts matter when it comes to the justified use of force. Tobias Beckett had kidnapped Chewbacca at blaster-point and absconded with the processed Coaxium on Savareen from Dryden Vos’s yacht. Han was able to head off Beckett and have his blaster drawn in order to save Chewbacca.

The Law of the Wingman

The “Defense of Others” is an offshoot of self-defense. Dating back to a long time ago in English common law, deadly force was limited to defend against the ‘forcible and atrocious’ crimes of “murder, nighttime burglary of a dwelling, arson, robbery, forcible rape and sodomy.” People v. Gilmore, 203 Cal. App. 3d 612, 249 Cal. Rptr. 914, 917 (1988) [Unpublished], citing 4 Blackstone’s, Commentaries, at pp. 180-181. These are crimes that from their “atrocity and violence, human life [or personal safety from great harm] either is, or is presumed to be, in peril.” People v. Ceballos, 12 Cal. 3d 470, 478-79, (1974) [Citations omitted].

Under California law, a homicide is justifiable when “resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person.” Cal. Penal Code § 197(1). It can also be used in the lawful defense of a person when “there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished.” Cal. Penal Code § 197(3). There is a catch that if there was mutual combat, there must have a been a good faith effort to decline any further struggle before the homicide was committed. Id.

The law does not favor justified homicides by those who were the aggressors in the fight. For example, if a defendant went to a fight armed and initiated the challenge, “he cannot afterward maintain that in taking his assailant’s life he acted in self defense.” People v. Bates, 256 Cal. App. 2d 935, 939, 64 Cal. Rptr. 575, 577-78 (1967).

The jury instructions for both self-defense and defense of others require a defendant to: 1) Reasonably believe that someone was in imminent danger of being killed or suffering great bodily injury; 2) Reasonably believe that the immediate use of deadly force was necessary to defend against the danger; and 3) the defendant used no more force than was reasonably necessary to defend against the danger. 1 CALCRIM 505 (2018).

Going Solo

Han Solo was legally justified in shooting Tobias Beckett in defense of Chewbacca’s life and his own. First, Beckett directed Chewbacca at blaster-point to carry the highly explosive Coaxium. This is kidnapping, because Beckett forcibly detained Chewbacca against his will and moved him to another part of Savareen. See, Cal. Penal Code § 207. As Chewbacca had been kidnapped, Han could reasonably believe that Chewbacca was in imminent danger of being killed or suffering great bodily injury, meeting the requirements of the first element of the jury requirement.

Han reasonably believed the immediate use of deadly force was necessary to defend against the danger posed by Beckett. First, Han had seen Beckett in action with his blasters and knew Beckett was an expert shot. Second, Han had seen Beckett kill Vos’s men mere minutes before in a double (or triple) cross. Third, Han knew Beckett’s propensity to give “lessons” by monologue. Fourth, Han could see Beckett going for his blaster. Finally, and this cannot be overstated, the very act of kidnapping Chewbacca was a “forcible and atrocious” crime that could result in loss of life.

Han used no more force than was necessary to shot Beckett from using his blaster. While Han did fire a fatal shot, it was not excessive or a gratuitous use of violence.

Prosecutors could argue that Han was the aggressor because he confronted Beckett armed. That would ignore the fact that Chewbacca had been kidnapped after Beckett’s multiple murders on Vos’s yacht. Under the circumstances, Beckett was an immediate danger to Chewbacca’s life, and Han was justified to come to his friend’s defense.

San Francisco Comic Con 2018

By

Josh Gilliland

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June 13, 2018

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We had the privilege of presenting on the legal issues with Kaiju, Universal Monsters, and Star Wars at San Francisco Comic Con. We presented each panel on Friday and Saturday, meeting many fantastic con goers who had awesome questions on the law.

Claudia Gray, author of the Star Wars YA books Lost Stars, Bloodline, and Leia: Princess of Alderaan, is a former practicing attorney from Louisiana. I asked Claudia if she would like to join our Saturday panel, which she graciously accepted. This was one of the energetic and fun-filled panels we have had at a con.

Here is audio from four of our presentations.

It’s Time to Put an End to Underground Droid Fighting

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Josh Gilliland

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June 5, 2018

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The horrors of underground Droid Fighting are an abandonment of morality. Imagine a world where two human beings beat each other until one had brain damage for “entertainment.” Nothing so barbaric would be considered a sport that left participants with lingering health problems for decades. Yet at the Lodge at Fort Ypso, Droids are exploited for the amusement of cheering “biological” life forms.

Could sadists like Ralakili be put on trial for his battle bot exhibition to delight drunken bar patrons? Could those who attend droid-on-droid carnage be prosecuted? Are there any laws to protect Droids from such cruelty?

The Law Will Help Those in Desperate Need

There is a maxim in the law: For every wrong, there is a remedy. Civ. Code, § 3523. Across the United States there are laws to protect dogs from being exploited in “dog fights.” These laws are illustrative of how Droids, expressing sentience and all other signs of life, could be protected from those who would willfully profit from Droid mutilation, torture, and death.

Anyone who 1) Owns, possesses, keeps, or trains any dog, with the intent that the dog shall be engaged in an exhibition of fighting with another dog; or 2) For amusement or gain, causes any dog to fight with another dog, or causes any dogs to injure each other; or 3) Permits any act in violation of paragraph (1) or (2) to be done on any premises under his or her charge or control, or aids or abets that act, is guilty of a felony. Cal. Penal Code § 597.5. The punishment is imprisonment for at least 16 months up three years, or a fine to not exceed $50,000. Id. Those who engage in dog or cockfighting can also have their property (the animals) forfeited. Cal. Penal Code § 598.1

Those who knowingly attend dogfights can be imprisoned for up to one year and fined up to $5,000.

Protecting Droid Lives

Ralakili caused Droids to fight other Droids for the amusement of the Lodge patrons. He might have also kept Droids, possibly training, programing, or physically altering them, to fight other Droids. If the Droids were dogs, Ralakili could be charged and convicted of a felony with a prison sentence up to three years. Moreover, those who knowingly attended the droid fight could be imprisoned or fined as well.

Promoters of Droid Fights should have the ownership of their Droids forfeited. Just as prosecuting agencies would not leave dogs with those torturing the animals in barbaric fights, the same humane treatment should be extended to Droids. Dogs who are survivors of cruelty need kindness and love to heal. Moreover, Electroconvulsive therapy (ECT) is not performed on dogs to “wipe their memories” of what they endured. Droids who were victims of such abuse would need to be adopted by those who would care and nurture them to have a complete recovery from their trauma.

There is no moral difference between ensuring dogs are not exploited in gladiatorial combat and Droids. Both are loyal, with emotions, self-aware, and capable of feeling pain. While existing laws [in Star Wars and the US] are not written to protect Droids from bloodthirsty individuals who enjoy seeing others maimed, the courts and legislatures would protect those in need of help.

A Solo Train Robbing Adventure

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Josh Gilliland

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May 31, 2018

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Solo A Star Wars Story has a train robbery on the planet Vandor to steal Coaxium from the Empire as a major plot of the film. The crime of train robbing had its heyday in a time long ago in U.S. states and territories. Unexpectedly, the punishments for train robbing in the United States and the Empire would be extremely similar, expect Beckett’s Bandits would at least get a trial in the US.

The Crime of Train Robbing

Laws are not enacted proactively. The “train robbing” statutes of the late 19th Century were born out of specific events in the “Old West,” such as the Union Pacific Big Springs Robbery of 1877 or the crimes of Jesse James. The state of Missouri declared train robbing as a felony punishable by death or imprisonment in 1895. The law stated:

Any person who shall place upon any railroad track any obstruction or explosive substance, or shall remove, displace or injure any rail, tie, switch, frog, bridge or trestle, with the design of robbing any person, passenger, employee, agent or company on any railway train, engine, tender, car, or coach, on any railway in this state, or who shall in any way stop, detain, or arrest the progress of any such train, car, engine, tender or coach with the intent to commit robbery thereon, or having in any way entered any car, coach, tender, engine, express car, mail car, or other apartment of any such train, shall there rob any person or persons, employee, passenger or agent, or any express company or mail pouch or car, of any money or valuable thing, whatsoever, either the property of such person, agent, passenger or employee, or the property of another in his care or custody, shall be guilty of a felony, and on conviction shall be punished by death, or confinement in the penitentiary for a term of not less than ten years.

State v. Kennedy, 154 Mo. 268, 281-82, (1900), citing Laws 1895, p. 160

The Defendant, ironically named John F. Kennedy, and his co-conspirators forcibly entered a train car, threatened a train employee to leave the mail car, and cut the train cars free of the engine. The robbers moved the train a quarter of a mile and blew up a safe in front of the employee to steal $1,000 (approximately $29888.58 in 2017 adjusted for inflation). Kennedy, at *283.

The Defendant challenged the train robbing charges, claiming the element that the robbery was committed “in the presence, and against the will and by violence, or putting the agent in fear of immediate injury to his person” was not met, because the train employees were not threatened with fear. Id. The Court rejected this argument, because it is unnecessary to prove actual fear when the crime is done violently and against someone’s will, the law will presume fear. Kennedy, at *284. As the crime was a series of events that ended with explosives used on the safe, all the elements of the crime were met.

Train Robbery Was Punishable By Death

The Territory of New Mexico had a similar train robbing law to Missouri that stated:

If any person or persons shall willfully and maliciously make any assault upon any railroad train, railroad cars, or railroad locomotive within this Territory, for the purpose and with the intent to commit murder, robbery, or any other felony upon or against any passenger on said train or cars, or upon or against any engineer, conductor, fireman, brakeman, or any officer or employee connected with said locomotive, train or cars, or upon or against any express messenger, or mail agent on said train, or in any of the cars thereof, on conviction thereof shall be deemed guilty of a felony and shall suffer the punishment of death.

Terr. of N.M. v. Ketchum, 1901-NMSC-006, ¶ 1, 10 N.M. 718, 718, citing 1151 of the Compiled Laws of 1897.

The Defendant in New Mexico challenged the death penalty for train robbing as a violation against the prohibition of cruel and unusual punishment. The Court rejected the challenge and upheld the death sentence with the following logic:

Trains are robbed by armed bands of desperate men, determined upon the accomplishment of their purpose, and nothing will prevent the consummation of their design, not even the necessity to take human life. They commence their operations by over-powering the engineer and fireman. They run the train to some suitable locality. They prevent the interference of any person on the train by intimidation or by the use of deadly weapons and go so far as to take human life in so preventing that interference. They prevent any person from leaving the train for the purpose of placing danger signals upon the track to prevent collisions with other trains, thus willfully and deliberately endangering the life of every passenger on board. If the express messenger or train crew resist their attack upon the cars, they promptly kill them. In this and many other ways they display their utter disregard of human life and property, and show that they are outlaws of the most desperate and dangerous character.

Terr. of N.M. v. Ketchum, ¶ 14.

Judge Frank A. Parker clearly saw the evils of train robbing.

Got to Be Better Ways to Make Money

Tobias Beckett, Val, Rio Durant, Han Solo, and Chewbacca, all participated in the conspiracy to steal Coaxium from the Imperial train on Vandor. Applying the law of Missouri or the Territory of New Mexico, virtually every scenario contemplated in both codea was violated. Val set explosives on the tracks on a bridge for the train, which would violate the elements of causing an injury to “any rail, tie, switch, frog, bridge or trestle.” The purpose of destroying the railway bridge was to steal one of the train cars by airlifting it off the tracks after cutting it away from the other train cars. These acts were in furtherance of stealing the Coaxium for the Crimson Dawn crime lord Dryden Vos. Furthermore, Imperial Range Troopers were engaged during the train robbery with multiple fatalities. While no one should root for the Empire, the train robbery was not part of a military operation by the Rebellion, but a criminal conspiracy for profit.

All of the actions by Beckett’s crew were the reasons anti-train robbing legislation was passed in the 19th Century. While the train appeared operated automatically with just Ranger Troopers to protect the cargo, there was a shootout with deaths and destruction of the bridge and train. While there is a strong argument that a modern court would not impose the death sentence on a crime without fatalities, that argument is lost once someone dies.

A defense attorney would have a difficult time defending Beckett’s gang, because arguing it was necessary to rob a train in order to avoid crime lords sending bounty hunters to kill you, begs the question that the underlying action was already a crime. While there could be a interesting question on whether Han had a defense to join Beckett to escape the Empire’s war crimes on Mimban, the issue is legally muddy at best.

Enforceability of Life Debts

By

Josh Gilliland

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May 24, 2018

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Chewbacca: the Wookiee; the Myth; the Legend. He is the ultimate wingman. Loyal, wise, and damn huggable. Chewbacca was with Han Solo because Chewie owed Han a “life debt.” A life debt was a social custom that stated that if someone had saved a person’s life, then that person owed the one who had saved him or her something in return. Wookieepedia, Life Debt.

Courts would have an extremely difficult time enforcing a “life debt” as a contractual obligation. Contracts require terms with “reasonable certainty.” Restat 2d of Contracts, § 33(1) (2nd 1981). Contracts that had indefiniteness were considered fatal defects in earlier times. See, John Edward Murray, Jr, Murray on Contracts, Third Edition, Copyright 1990, § 38, page 83. Case law includes examples where someone promised to pay “a fair share” of their profits or where a lumberman agreed to provide logs in quantities deemed “reasonable and economical.” Murray, citing Varney v Ditmars, 217 N.Y. 223 (1916) and Smith v Chickamauga Cedar Co., 263 Ala. 245 (1955).

Modern courts have stated the “law leans against the destruction of contracts for uncertainty” and prefer finding agreements are “sufficiently definite.” Murray, citing In re Sing Chong Co., 1 Haw. App. 236, 239 (1980). However, an agreement to “care for a person” was found to fail for indefiniteness. Murray, citing Almeida v. Almeida, 4 Haw. App. 513 (1983).

The test for whether a contract survives indefiniteness is whether the “terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.”Restat 2d of Contracts, § 33(2) (2nd 1981).

A life debt potentially can be for an indefinite amount of time, possibly even decades, in order for the debt to be “repaid.” Moreover, Han and Chewbacca going on a series of adventures together (arguably in a partnership with fiduciary duties to each other), lack reasonably certain terms for the scope and duration of the life debt. Chewbacca’s life debt to Han Solo likely would fail for indefiniteness as a contract to “care for a person.” However, a sound legal strategy in cases involving Chewbacca is to let the Wookiee win.

Defending War Machine for Not Following the Secretary of State’s Arrest Order

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Josh Gilliland

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May 22, 2018

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[Fictional] Secretary of State Thaddeus “Thunderbolt” Ross ordered Colonel James “Rhodey” Rhodes to arrest Captain America, Falcon, Black Widow, and Scarlet Witch for violations of the Sokovia Accords. Colonel Rhodes hung up on the Secretary of State and said “that’s a court martial” for violating the order. How could a defense attorney defend War Machine for not following orders?

Secretary of State Ross is Not in the Military Chain of Command

Colonel Rhodes’ first argument is that Secretary of State cannot give a lawful order to an Air Force Colonel based on the military chain of command. A lawful order would need to originate from the President, Secretary of Defense, the Joint Chiefs of Staff, Secretary of the Air Force, Air Force Chief of Staff, U.S. Northern Command, or whoever is Colonel Rhodes’ commanding officer or superior in rank. The Secretary of State is NOT in the military chain of command, thus cannot give an order to Rhodes.

Secretary of State Ross spent his professional life in the Army barking orders amounting to unlawful surveillance of U.S. Citizens in his search for Bruce Banner. While Ross is used to giving orders people follow from his days as an Army General, he was no longer on active duty while serving as the Secretary of State. Moreover, there is no one he could “order” in the military chain of command to have Captain America’s Avengers arrested.

It is possible the Avengers reported directly to the Secretary of State pursuant to legislation enacting the Sokovia Accords as law. If that is the case, Colonel Rhodes still has other valid legal defenses.

The Air Force Cannot Conduct Law Enforcement

Secretary Ross’s order to arrest Captain America’s Avengers would violate the Posse Comitatus Act. The Act expressly prohibits the Air Force from conducting law enforcement:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

18 USCS § 1385.

As an Air Force officer, Colonel Rhodes is barred by law from conducting law enforcement activities. There is no better example of law enforcement activities than performing arrests. As such, ordering Rhodes to perform an arrest would violate the law, thus be an “illegal order,” which Rhodes would not have to follow.

Steve Rogers and Sam Wilson were the only team members with military service. Sam Wilson was no longer on active duty. There is no evidence that Steve Rogers was AWOL from active duty, providing Colonel Rhodes legal authority to have Captain America arrested. Rogers was frozen in ice before the end of World War II for over 70 years. His service period would have ended sometime after the war, however, there are good legal questions on how much back pay Captain America is owed by the U.S. Government. Regardless, it would be a stretch to say Colonel Rhodes was a military superior of Steve Rogers and legally required to arrest the greatest soldier of all time.

The Order to Arrest Violated the Fourth Amendment

General Ross only ordered Colonel Rhodes to “arrest them.” There were no specific charges against the Avengers, besides Ross being upset.

The Fourth Amendment to the United States Constitution requires that arrest warrants will not be issued without probable cause supported by an affirmation that describes the person to be seized (arrested). USCS Const. Amend. 4. The Federal Rules of Criminal Procedure further state that criminal complaint and supporting affidavits must “establish probable cause to believe that an offense has been committed and that the defendant committed it.” USCS Fed Rules Crim Proc R 4.

Secretary Ross ignored the probable cause requirements for an arrest warrant and ordered the arrest of Captain America’s Avengers. As the charges against the Avengers were not stated and without an arrest warrant supported by probable cause, Rhodes was correct in not following the order.

The Arrest Order Was an Illegal Order Because the Sokovia Accords Are Unconstitutional

The Hail Mary argument for War Machine is that the Sokovia Accords are Unconstitutional, thus arresting anyone for violating them would be an unlawful act. Colonel Rhodes only has a duty to follow LEGAL orders, because an order “must command a thing not in itself unlawful or prohibited by law.” US v Kinder, 14 C.M.R. 742, 772-773 (A.F.C.M.R. 1954).

U.S. citizens since the adoption of the Sokovia Accords were held without trial on a submarine prison known as the Raft. All were denied the right to counsel. Moreover, the entire concept of a “prison ship” has been rejected in the United States because of events during the Revolutionary War. Colonel Rhodes could argue with a straight face that arresting people in violation of the 4^th, 5^th, 6^th, and 8^th Amendments would amount to an illegal order, thus he was not legally bound to follow it.

Just Say No to Illegal Orders

Colonel James Rhodes was correct in not following Secretary of State’s order, because it was not in the military chain of command, violated the 4th Amendment on its face, and was based on a treaty or enabling laws that violated the United States Constitution. Colonel Rhodes took an oath to upload and defend the Constitution, not desecrate it.

Was Scarlet Witch Legally Justified to Kill [Spoiler] in Infinity War?

By

Josh Gilliland

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May 14, 2018

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Unconditional love can ask a lot of a human being, like killing the android you love in order to prevent universal genocide. In Avengers Infinity War, the Vision asked the Scarlet Witch to destroy the Mind Stone embedded in his forehead, in order to prevent Thanos from acquiring the final Infinity Stone in order to kill half of all life in the universe.

Did Scarlet Witch commit the act of murder when she “killed” Vision? Would there be any legal justification for the act of “murder”?

Can a Robot be Murdered?

In order for Scarlet Witch to be prosecuted for murder, the Vision first would have to be legally recognized as a person. Murder is defined as “the unlawful killing of a human being, or a fetus, with malice aforethought.” CA Pen. Code, § 187(a). There is no question Scarlet Witch purposely killed Vision with her Hex Powers in order to destroy the Mind Stone. However, there is the issue whether Vision, who is an artificial being, would qualify as a “human being” under the plane meaning of the law.

Scarlet Witch and all of the Avengers treated Vision as a person, not a weapons system. However, the law is a bit trickier. The Vision was not “born” but built. Our definition of biological life does not include building artificial life. The only legal principle that might find the Vision is a “person,” is the California law on the control of dangerous weapons, which defines a “person” as “individual, partnership, corporation, limited liability company, association, or any other group or entity, regardless of how it was created.” CA Pen. Code, § 16970. The “regardless of how it was created” would push its application to the Vision.

If the Vision is legally a person, then it is possible for him to be murdered. If he is not a person, then it is destruction of property.

Was Vision’s Murder Legally Justified?

Assuming in arguendo that Vision is legally a person, was Scarlet Witch legally justified to destroy the Mind Stone (and Vision) to keep Thanos from acquiring the final Infinity Stone?

Scarlet Witch could argue the “necessity defense” in that it was necessary to kill the Vision in order to prevent trillions of life forms across the universe from being killed. In order for Scarlet Witch to be able to argue the necessity defense, there had to be no reasonable legal alternatives to violating the law. People v. Galambos 104 Cal.App.4th 1147 (2002). Scarlet Witch would need to show that she had to destroy the Mind Stone 1) to prevent a significant and imminent evil; 2) with no reasonable legal alternative; 3) without creating a greater danger than the one avoided; 4) with a good faith belief that the criminal act was necessary to prevent the greater harm; 5) with such belief being objectively reasonable, and 6) under circumstances in which she did not substantially contribute to the emergency. People v. Kearns 55 Cal.App.4th 1128, 1135 (1997).

The prospect of half of all life in the universe being destroyed would be a “significant and imminent evil” to prevent. Moreover, Scarlet Witch did not have any reasonable alternatives, as Thanos was easily dispensing every hero who faced him. As to the issue of creating a danger greater than the one to be avoid, destroying the Mind Stone and Vision easily tip in favor of saving trillions of lives. Scarlet Witch could have had a good faith belief in her actions, because Thanos had five Infinity Stones and a large army had invaded the Earth. Scarlet Witch objectively could have believed she was doing the right thing and was not contributing to the emergency.

There would be a significant challenge with bringing the necessity defense to destroy the Mind Stone: Necessity is not recognized as a defense to murder. A defendant cannot argue that he killed innocent people to avoid getting himself killed. Delgadillo v. McEwen 2015 U.S.Dist.LEXIS 142003, at *13 (C.D.Cal. Aug. 24, 2015).

If Vision is a person, there really is no valid legal defense for Scarlet Witch killing him. This would require a defense attorney to argue the Vision was not a person, thus Scarlet Witch was merely destroying property in order to prevent a weapon of mass destruction from falling into the hands of an environmental terrorist who wanted to kill trillions.

The concept of trading a life for a life is never a good one, which is why the law rejects the necessity defense as a reason for murder. Scarlet Witch was the only Avenger who was able to hold off Thanos ONE HANDED while destroying the Mind Stone. If Scarlet Witch had directed all of her energy and focus on Thanos and his Infinity Gauntlet, she had the best odds out of all of the Avengers to either destroy the gauntlet or stop Thanos. Alternatively, if Scarlet Witch and Thor had fought Thanos together, both could have landed the kill shot necessary to stop Thanos.

The Avengers should have focused on stopping Thanos, not destroying the Mind Stone. While the team did not know Thor had survived, if they had directed their energies to repairing Vision so he could have been on the battlefield, the conflict could have turned out differently. Instead, they went with a sacrifice play that cost them everything.