How to Sue the Kingpin for Breaching the Spider-Verse

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December 28, 2018

Go see Spider-Man Into the Spider-Verse. The film is a testament to all Spider-Man comics and a complete joy. Major spoilers ahead true believers, so don’t read any further until you see the movie.

The Kingpin of Earth-1610 commissioned Dr. Olivia Octavius to build an inter-dimensional collider to find identical versions of his late wife and son. The experiments caused a breach into multiple different universes, allowing property from different realities to crash into the New York of Earth-1610. Multiple versions of Spider-Man and other web-slingers were also pulled into Earth-1610 against their will.

What are the possible causes of action against Wilson Fisk for his experiments?

The issue of property damage on Earth-1610 is the most lineal one to analyze (well, excluding what Kingpin did to Peter Parker of Earth-1610). New York case law examining property damage from intentional blasting has strict liability for property damage. Spano v. Perini Corp., 25 N.Y.2d 11, 17-18 (1969). Case law originally allowed a defendant to avoid liability if they could show they took reasonable care to avoid injury, however that view was rejected, because someone who engages in blasting should NOT be able to “to impose this risk upon nearby persons or property without assuming responsibility therefor.” Spano, at *18, rejecting Booth v. Rome, W. & O. T. R. Co., 140 N.Y. 267 (1893).

The inter-dimensional collider experiments were inherently dangerous activities, in the same category as blasting operations. As such, Wilson Fisk would be held liable for injuries caused to neighboring property with or without trespass. Cont’l Ins. Co. v. Great Lakes Dredge & Dock Co., 163 Misc. 2d 594, 595 (App. Term 1994). The only issue is how to prove damages were caused by the inter-dimensional collider experiments.

Plaintiffs would need to prove that “but for” the inter-dimensional collider experiments, their property sustained damage. This could include that prior to the time of the experiments, their property did not have any damages, and after the experiments their property was damaged. This could be from testimony, but cell phone photos, street camera footage, and other evidence to document property condition might be required to show the damage was caused by property from an alternate reality crashing into the subject property in the lawsuit

One possible complexity is that the alien property that caused the damage returned to its reality after the threat was neutralized, which would require plaintiffs to present evidence with photos or video of the damage. While it would be ideal to have actual footage or alternate realities crashing into damaged property, a court likely would not require that much proof given the extreme nature of the incident.

The harder question is for individuals on alternate Earths to sue Wilson Fisk for damage to their realities. There are substantial service of process and forum non conveniens issues in seeking relief for damage caused in mirror universes.

Did Santa Claus Engage in Reckless Child Endangerment?

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Josh Gilliland

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December 24, 2018

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The Netflix holiday movie The Christmas Chronicles starring Kurt Russell raises interstate issues of child endangerment. Did Santa Claus knowingly endanger the lives of Teddy and Kate Pierce on their Christmas Eve adventure?

Child Endangerment in Massachusetts

Teddy and Kate Pierce stowed away in Santa’s sleigh on Christmas Eve near their home in Lowell, Massachusetts while trying to surreptitiously document Santa’s existence on videotape. After surprising Santa in flight, Kate was ejected from the sleigh, recovered in free fall, and the trio nearly had a midair collision with an airliner, and ultimately crash-landed outside of Chicago, Illinois.

Massachusetts law defines child endangerment as follows:

Whoever wantonly or recklessly engages in conduct that creates a substantial risk of serious bodily injury or sexual abuse to a child or wantonly or recklessly fails to take reasonable steps to alleviate such risk where there is a duty to act shall be punished by imprisonment in the house of correction for not more than 2½ years.

For the purposes of this section, such wanton or reckless behavior occurs when a person is aware of and consciously disregards a substantial and unjustifiable risk that his acts, or omissions where there is a duty to act, would result in serious bodily injury or sexual abuse to a child. The risk must be of such nature and degree that disregard of the risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

Mass. Ann. Laws ch. 265, § 13L.

If Santa Claus sees you when you are sleeping and knows when you’re awake, how did he not the whereabouts of the Pierce children? If Santa Claus knew the children were in the sleigh, and proceeded to take them across state lines with the above-mentioned risks, he did so with full knowledge of their presence. There is a strong argument that such conduct recklessly created a substantial risk of serious bodily injury, specifically Kate nearly free falling to her death, and the near midair collision with an aircraft (to say nothing about the risk of life to the airline passengers).

If Santa Claus was somehow unaware of the Pierce children, there is a strong defense that he did not endanger them, because the risks of injury were created by the children’s conduct of stowing away and surprising Santa Claus, thus being the proximate cause of the dangerous inflight situations.

Child Endangerment in Illinois

The issue of child endangerment was fundamentally changed after Santa Claus and the Pierces crashed in Chicago, because Santa Claus had actual knowledge of the children.

Stealing a Stolen Car

17 year old Teddy Pierce absconded with keys to a stolen red Dodge Charger, which Teddy drove for Santa and Kate Pierce in their search for the reindeer and missing bag of toys.

Contributing to the delinquency of a minor is when an adult directs or compels a minor to commit an offense that is either 1) a felony when the minor is under 17 years old; or 2) a misdemeanor when the minor is under 18 years old. 720 Ill. Comp. Stat. Ann. 5/12C-30(b).

Theft includes someone knowingly obtaining control over stolen property. 720 Ill. Comp. Stat. Ann. 5/16-1(a)(4). Theft of property exceeding $10,000, but under $100,000 value, is a Class 2 felony. 720 Ill. Comp. Stat. Ann. 5/16-1(b)(5).

The value of a Dodge Charger is at least $28,000, Teddy Piece could be convicted of a Class 2 felony in Illinois. As such, given Santa’s influence over Teddy, Santa could be charged with contributing to the delinquency of a minor for the theft of the Charger.

High Speed Police Chase

Santa Claus was in a high-speed police chase with Teddy Piece in the Dodge Charger. A person commits child endangerment if they cause a child to be placed in circumstances that endanger the child’s life or health. 720 Ill. Comp. Stat. Ann. 5/12C-5(a)(2). Engaging in a high-speed chase is without question endangerment of a child. The same could be said for telling Kate Pierce to ride magical reindeer without a saddle, which placed her in risk of falling off a galloping reindeer.

It’s a Christmas Miracle

The Christmas Chronicles is a delightful family holiday movie. The reason for alleged crimes were pivotal to a specific character’s redemption. There is also a strong argument that Christmas magic actually negated all the risks to the children, thus eliminating the essential elements of endangerment for any charges to be filed against Santa Claus. Legal analysis aside, be sure to watch Kurt Russell as Santa Claus this year.

Could the Burgermeister Meisterburger Ban All Toys in Sombertown?

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Josh Gilliland

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December 19, 2018

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We can all agree that stepping on a LEGO in bare feet is painful, but Congress is not enacting a LEGO ban. In the Rankin/Bass holiday classic Santa Claus is Coming to Town, the killjoy Burgermeister Meisterburger banned all toys after a slip and fall accident.

While there could be tort liability for leaving a toy on the stairs of a public office, this was not an assassination attempt. It was an accident. This was no reason to declare all toys “illegal, immoral, and unlawful.” Worse yet, the punishment was immediate arrest of anyone, even children, with a toy, and thrown them in the dungeon.

This…is not cool. A country predicated on freedom does not enact total bans lightly. Burgermeister Meisterburger had the all the charm of Nikita Khrushchev and Leonid Brezhnev having an illegitimate lovechild with low blood sugar. The story of Santa Claus is Coming to Town told during the height of the Cold War was a stark reminder that life in Eastern Block countries under Soviet Communism was the definition of “Un-fun.”

But would a total toy ban be Constitutional in the United States?

Specific kinds of toys have been banned by states and cities. For example, New York banned the importation, manufacturing, distribution, or sale of yo-yo waterball toys. N.Y. Gen. Bus. Law § 399-e. These toys are a type of yo-yo that is a ball made of a rubber-like material that is filled with liquid. While not stated in any legislative history, it is easy to imagine someone freezing one of these yo yo balls and using it as a weapon. The state of New York took these yo yo’s serious enough that any sale of one is a $1,000 fine.

Many states have prohibited the possession of toy guns that look like real guns. These laws are Constitutional, because there is a reasonable relationship between the public welfare and the act proscribed. People v. Judiz, 381 N.Y.S.2d 467, 468, (1976). We don’t want people having toy guns, because there were incidents of people attempting to commit crimes with these realistic toys and horrible incidents of police officers mistaking these toys as real guns.

New York’s ban on nunchakus was held Unconstitutional on the grounds it violated the 2^nd Amendment. Moreover, the court applied intermediate scrutiny because the law banned involved 2^nd Amendments rights. Maloney v. Singas, 2018 U.S. Dist. LEXIS 211546, at *23 (E.D.N.Y. Dec. 14, 2018). Furthermore, the Court held that nunchakus were not inherently dangerous. By way of comparison, toys are not inherently dangerous and the same logic would apply to toys, with the exception of the 2nd Amendment rights.

The issue for the Burgermeister Meisterburger’s decree is whether such a ban could pass the “Rational-Basis Test,” which asks whether a law furthers a legitimate government interest. Bd. of Trs. v. Fox, 492 U.S. 469, 471 (1989). The goal to avoid people from tripping on stairs is a legitimate government interest, but that is an issue of negligence, not one of a total toy ban. Moreover, the Burgermeister Meisterburger did not ban trip hazards on steps, but all toys. Leaving banana peels, rakes, or animal waste on steps would all be trip hazards, which the Burgermeister Meisterburger ignored.

The toy ban is silent on the definition of a “toy.” A statute is not vague when the meaning of words can be fairly determined by judges, common, dictionaries, or the word themselves. See, Bowers v. State, 283 Md. 115, 125 (1978).

A statute can be impermissibly vague if it 1) fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits; or 2) if it authorizes or even encourages arbitrary and discriminatory enforcement. Hill v. Colorado, 530 U.S. 703, 732 (2000).

The Burgermeister Meisterburger led raids on his citizens’ homes to confiscate toys based solely on his personal opinion of what was a toy. This is the textbook definition of arbitrary and discriminatory conduct. Reasoned people could find themselves thinking anything that could be played with is thus a toy, meaning brooms or towels could land them in the dungeon. Moreover, alphabet block letters could be viewed as either a toy or educational tool that could result in people living in fear of prosecution.

The 4^th Amendment prohibits government from conducting unreasonable searches and requires probable cause for search warrants. The Burgermeister Meisterburger was personally leading his state police to search homes for toys. There was no probable cause, other than the fact a child lived in the house. This would be profiling at its worst, assuming all children are criminals because they might have a toy.

The 8^th Amendment prohibits cruel and unusual punishment. We also value that punishments for criminal actions must be proportional to the crime. Having a rubber ducky should not result in someone being thrown in a dungeon. Not a prison, a dungeon. Worse yet, the Burgermeister Meisterburger was willing to throw children in his dungeon for the act of playing with toys. What next, putting children in cages if their parents commit a misdemeanor?

The Burgermeister Meisterburger’s decree did not have a valid government interest, was arbitrary in its application, was used to conduct illegal searches, and its application resulted in cruel and unusual punishment. There is no way a total toy ban would be Constitutional.

And for the record, children leaving doors unlocked for Kris Kringle to leave them toys made him an invitee, not a trespasser.

It’s a Wonderful Lawsuit Holiday Podcast!

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Josh Gilliland

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December 18, 2018

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Nothing says Christmas like holiday movies. Jessica and I sat down to discuss the classic It’s a Wonderful Life, where we explore the Establishment Clause, Conversion, and Property in one of the greatest science fiction films of all time. We also discuss Miracle on 34th Street, with how defending Kris Kringle from an involuntary confinement was the ultimate test of attorney ethics.

Call for Law Students for Batman Themed Mock Trial at San Diego Comic Fest!

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Josh Gilliland

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December 9, 2018

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The Batman first appeared when Detective Comics # 27 hit the newsstands in March 1939. To celebrate the last 80 years of adventures, we are organizing a mock trial inspired by Grant Morrison’s 1989 Graphic Novel Arkham Asylum: A Serious House on Serious Earth.

We are seeking four to six law students to join us at San Diego Comic Fest, held on March 7 to 10, 2019, at the Four Points by Sheraton on Aero Drive in San Diego. The mock trial will be on March 9, 2019.

Here are the Facts for the Mock Trial: Harvey Dent had his silver dollar taken away as part of his treatment at Arkham Asylum. Psychotherapist Ruth Adams claimed Dent was being “cured” of his obsession with duality. Dent’s treatment was replacing his coin with a six-sided die and then Tarot cards. Dr. Adams next stage of treatment was to introduce Dent to I-Ching. Dr. Adams believed Dent would have a completely functional judgment facility that did not result in black and white absolutes.

Result of Treatment: Dent was unable to make basic decisions, such as when to go to the bathroom. The treatment left Dent hollow and sitting under a table the day the inmates took over asylum.

The Lawsuit: Attorneys retained by the Wayne Foundation have brought suit against Arkham Asylum, the late Arkham Administrator Charles Cavendish, Dr.Ruth Adams, and DOES 1-50, claiming that Harvey Dent’s treatment violated the 8^thAmendment prohibition against cruel and unusual punishment. Attorneys for the state have brought a summary judgment motion on the grounds that Dent’s coin was not taken away as a form of punishment, but a form of treatment.

Attorneys retained by the Wayne Foundation on Dent’s behalf have brought suit against Arkham Asylum, the late Arkham Administrator Charles Cavendish, Dr.Ruth Adams, and DOES 1-50, claiming that Dent’s treatment violated the 8^thAmendment prohibition against cruel and unusual punishment. Attorneys for the state will argue that Dent’s coin was not taken away as a form of punishment, but a form of treatment.

The two teams of law students will represent Plaintiff Harvey Dent and Defendant Arkham Asylum, et al. The law students will get to prepare their case with advice from practicing attorneys, prepare psychologists for witness examination, and argue their case before a Federal Judge.

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There are More Villains than Heroes on The Gifted

By

Josh Gilliland

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December 7, 2018

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It is really hard to find any “heroes” on The Gifted. In this fictional world, the United States has enacted harsh anti-mutant laws after a mass fatality incident known as “7-15.” The event was a mutant rights protest that devolved into a riot with thousands killed in Dallas on July 15, 2013. Flash forward to present day where the X-Men are in hiding and the following events are transpiring:

The United States hunts and imprisons mutants based more on their DNA than on their actual crimes with an agency known as Sentinel Services;

The Inner Circle is executing a violent conspiracy to overthrow of the US Government to establish a Mutant Homeland;

A hate group known as the Purifiers call themselves patriots, while marching yelling “You will not replace us,” and engaging in domestic terrorism and armed attacks against mutants; and

The Mutant Underground has gone from a group trying to keep mutants safe to kidnapping and torturing people in order to stop the Inner Circle.

There are no heroes, just those who are committing the least Constitutional violations, crimes, or torts.

The United States Government

Any agency with the initials “SS” will never be on the right side of history. Arresting people for their race and not because of any actual crimes, is a big jump into tyranny. The theme since the first episode is that Mutants were called dangerous and immediately lost their rights. Laws in this world are designed to protect humans from Mutants, automatically removing any sense of humanity from those being persecuted.

Mutants arrested wear collars that inflict pain if the mutant attempts to use their powers. There is a good question on how to imprison someone who has super-human abilities, but pain compliance easily invokes issues of torture.

The exact legal arguments are not clearly stated, but there is the undercurrent that Mutants are not human. If that position was taken beyond racism to enacting laws, the Government could argue that Mutants are not “persons” under the 14^th Amendment, thus have no legal rights. Provided that human beings and Mutants can have children together, claiming they are two separate species runs into big scientific challenges.

The Government’s treatment of Mutants on its face is race-based discrimination because of the Mutants’ DNA, not because of any actions they have committed. These sorts of laws should not survive strict scrutiny. Moreover, imprisoning Mutants based on race would be a gross violation of the 14th and 5^th Amendment Rights to not deprive any of their life without due process of law; a violation of the 4^th Amendment warrant requirement for probable cause; a violation of the 6^th Amendment right to a trial in any criminal prosecution; and the use of shock collars a violation of the 8^th Amendment right against cruel and unusual punishment.

The Inner Circle

The Inner Circle’s superpower is proving every negative thing said about them by their enemies right.

Magneto’s influence is heavily seen in the Inner Circle. The Inner Circle had an impressive body count that took a very public increase when one teenage mutant went rogue and killed 37 people. By turning the victims inside out. The Inner Circle was playing a PR game with a forced video confession to expose a discriminatory bank. Unfortunately, that message was totally lost when an angry child soldier put human beings through a blender.

Mass murder aside, the Inner Circle is planning to overthrow the US Government. Every member of that group could be charged with Treason 18 USCS § 2381; Domestic Terrorism 18 USCS § 2331(5); Murder 18 USCS § 1111; Rebellion or Insurrection 18 USCS § 2383; and Enlistment to Serve Against the United States 18 USCS § 2390.

These are not the good guys.

The Purifiers

These guys are REALY not the good guys. The Purifiers are a heartbeat away from chanting with Tiki Torches and wearing white hoods. Ironically, the Purifiers and Inner Circle are committing murder in the name of self-preservation. The Purifiers are racists who attack others, deploy Klan-style tactics to instill fear, and engage in open hostilities against US Citizens because they do not think law enforcement is protecting the human race. The FBI should be hunting these guys down, because they are the monsters of the story.

The Mutant Underground

These are supposed to be the good guys, who have turned from helping people escape oppression to kidnapping and torture. These actions are the definition of “means justify the ends” in order to stop both the Purifiers and Inner Circle.

The Mutant Underground kidnapped a security expert with physical force, teleportation, and then a getaway car. Prosecuting them for these crimes would test the issue of how teleportation would apply to the definition of kidnapping. The Federal law is broad and includes seizes, confines, inveigles, decoys, abducts, or carries away in the definition. Forcing someone through a teleportation portal would meet the definition of kidnapping as a form of carrying someone away or abduction. See, 18 U.S.C.S. § 1201(a). Physically restraining the detainee and threatening him for compliance would be torture.

With all of these bad acts, who should the audience cheer for? Who isn’t a “bad guy” in this series?

The lesson from The Gifted is how cruelty and discrimination is fundamentally wrong. Those who are persecuted naturally want to protect themselves from those who will do them harm. This raises the immediate issue of two wrongs do not make a right. Moreover, might does not make right. What this fictional world needs is Professor X, because where everyone is going is down a dark path.

We Made ABA Journal Web 100!

By

Josh Gilliland

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November 27, 2018

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The ABA Journal selected The Legal Geeks for the 2018 Web 100. We are deeply honored to be recognized for our blog. This year has been one with amazing memories, with Jessica, Thomas Harper, and I each presenting at different Nerd Nites across the country, with no shortage of movies and TV shows for us to analyze each week.

We proudly organized three mock trials this year, including a competency hearing for Frankenstein’s Creature at San Diego Comic Fest; vindicated Droid Rights at WonderCon; and the Court Martial of Poe Dameron at San Diego Comic Con. We also had amazing panels, including Lawyers vs Kaiju at WonderCon, Judges on Star Wars at SDCC, and Star Wars author Claudia Gray joined us at San Francisco Comic Con.

Many of the lawyers who have participated at our mock trials shared multiple guest posts with us, focusing on Star Wars and Marvel movies.

To borrow from two other esquires, 2018 has been an excellent adventure. Thank you to the ABA Journal, judges, and all of our readers, for making this a year to remember.