In this week’s episode, the Bad Batch travels to a remote planet to secure a valuable mineral resource. Wrecker is charged with keeping watch for poachers while the rest of the crew is occupied with the delicate extraction of the volatile substance. However, a mysterious thief steals the clones’ ship, the Marauder, from under Wrecker’s nose, and fingers immediately start pointing.
Other than having to endure Tech’s blistering blame game, does Wrecker bear any legal responsibility to the other clones for the loss of the Marauder on his watch?
First, Tech has previously referred to the Marauder as “my ship” in Cornered, Season 1, Episode 4. Although Wrecker’s reaction in that episode strongly suggested that the Marauder was not actually Tech’s personal property, Tech might first argue that the Marauder belonged exclusively to him as its primary mechanic. Thus, Tech could try to characterize Wrecker’s failure to prevent the Marauder’s theft as a matter of contract.
Entrusting someone else with personal property creates a bailment contract between the owner and the bailee. These facts sound like the kind of bailment that exists between a car owner and the operator of a parking lot or garage. Usually, this kind of bailment is a bailment for hire where the arrangement benefits both parties, which means that the bailee has a duty of ordinary care to protect the value of the property. Beetson v. Hollywood Athletic Club, 109 Cal. App. 715, 718 (1930). Framing it as a bailment, Tech could argue that Wrecker’s failure to prevent the Marauder’s theft was sufficiently negligent to breach Wrecker’s duty of care as a bailee of the Marauder.
However, a more likely way of characterizing Wrecker’s potential liability would be as one of the vessel’s co-owners. Under California law, the clones’ co-ownership of a vessel like the Marauder would amount to a tenancy in common. Ferem v. Olson & Mahony, 176 Cal. 652, 655 (1917). Common tenancy creates a fiduciary relationship between the co-owners where each owner has a duty to preserve the value of the shared interest in the property.
Specifically, each owner may be entitled to recovery if another owner’s conduct amounts to “waste” of the property, which is defined as “an unlawful act or omission of duty on the part of a tenant which results in permanent injury.” Avalon Pac.-Santa Ana, L.P. v. HD Supply Repair & Remodel, LLC, 192 Cal. App. 4th 1183, 1214 (2011). Under California Code of Civil Procedure § 732, a party may sue for treble damages from a co-tenant whose conduct amounts to waste of the property. To recover these hefty damages, Tech, Hunter, and Omega could argue that Wrecker’s failure to adequately monitor the vessel when it was parked in a known high-crime area was an omission that resulted in the unlawful waste of the Marauder.
However, Wrecker himself asserted a strong defense to any breach-of-duty theory in the episode: because of a lack of “suitable landing zones,” Tech had docked the Marauder out of view from Wrecker’s watch post at the entrance of the mine. Wrecker could make a compelling argument that he could not be in two places at once, and protecting the clones’ safety superseded his duty to protect the Marauder.
And after all, while the value of the Marauder is certainly immense to the Bad Batch, Wrecker himself potentially suffered the greatest property loss of any of the clones with the ship’s theft: Lula.
Is Lula okay? Are they safe?
Under these tragic circumstances, burdening Wrecker with liability for the Marauder’s loss would be like kicking a clone while he’s down.
There are many dilemmas superheroes face, but Thor Love and Thunder posed a new one: Do you empower kidnapped children to go full Ark of the Covenant on monsters hellbent on killing them? Does the act of empowering them to fight constitute child endangerment? If so, are there any defenses?
Child Endangerment to Fight Shadow Monsters
While Norse gods might have a different view of child endangerment, California defines the crime as follows:
“Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.”
Cal. Pen. Code § 273a
The events in Love and Thunder saw Gorr kidnap the children of New Asgard in his quest to kill all gods in the universe by going to the Gates of Eternity. Thor journeyed to where the children were falsely imprisoned and had a choice: take the children home, which would have let Gorr complete his genocidal plan or empower the children to also fight Shadow Monsters.
The legal issue is whether Thor willfully permitted the children to be placed in a situation where their health was endangered. The children were already kidnapped. If Thor took them from Gorr’s prison, the children would have been killed [along with every other Asgardian and other deity] by Gorr. However, powering up the children to effectively be child soldiers against Shadow Monsters meets the requirement for a child’s health to be endangered. While not a great choice, the empowered children were placed in danger. However, as soon as Thor liberated Stormbreaker, he gave it to Heimdall’s son Axl to return the children back to the safety of New Asgard.
The Necessity to Defense for Giving the Children the Power of Thor [Limited Time]
The purpose of the Necessity Defense is public policy not to punish individuals despite proof on all elements of a crime. People v. Beach, 194 Cal.App.3d 955, 973 (Cal. Ct. App. 1987)
In order to prove the Necessity Defense, the California Jury Instruction require the following:
1. Thor acted in an emergency to prevent a significant bodily harm or evil to the children;
2. Thor had no adequate legal alternative;
3. Thor’s acts did not create a greater danger than the one avoided;
4. When Thor acted, he actually believed that the act was necessary to prevent the threatened harm or evil;
5. A reasonable person would also have believed that the act was necessary under the circumstances; AND
6. Thor did not substantially contribute to the emergency.
CALCRIM No. 3403.
The arguments for each element are as follows:
Thor had to empower the children because there was insufficient time to return them to New Asgard before Gorr committed mass genocide;
Thor was no other option, because leaving with the children would have result in Gorr completing his mission to kill all gods, including the Asgardian children;
Thor’s actions kept Gorr for a mass killing and allowed the children to defend themselves;
Thor believed his actions were necessary to protect the children and lives of gods;
A reasonable person would agree there were no other actions; and
Thor did not contribute to the emergency, because the children had the power to defend themselves.
Thor really needs a jury to accept there was no other option other than empowering the children to fight the Shadow Monsters. Given the scope of the failure to do so, and the fact the children were saved (and had one heck of a therapy session destroying their kidnappers), the Necessity Defense should be successful.
Spoiler alert: Although this blog post will mainly focus on laws which are inconsequential to the plot of House of the Dragon, there are a few spoilers on what happens in the released episodes.
The first season of the new Game of Thrones prequel, House of the Dragon, is over and because I could not wait to know who would end up on the Iron Throne, I read the book Fire & Blood by G. R. R. Martin, on which the HBO series is based. As a nerdy international lawyer, I was pleased when Fire & Blood discussed the laws of realm and how they came into existence. What interested me the most however (from a legal perspective), was the enactment of laws to protect women and that such laws were only adopted by or thanks to women.
Legislations Protecting Women
Fire & Blood addresses a number of laws mainly on war, succession and taxes. Such topics are naturally part of the plot as the book retraces Targaryen history which is plagued by succession wars. Interestingly, two laws do not touch upon war-related issues but focus on the protection of women.
During King Aegon I’s rule, his sister-wife Queen Rhaenys had to adjudicate the case of a man who had beaten his wife to death with a rod because she had cheated on him. After consulting maesters (the kingdom’s academics) and septons (the kingdom’s priests) she considered that “an adulterous wife [gives] offense to the Seven, who [has] created women to be faithful and obedient to their husbands, and therefore must be chastised. As god has but seven faces, however, the punishment should consist of only six blows (for the seventh blow would be for the Stranger, and the Stranger is the face of death). Thus the six first blows the man had struck had been lawful … but the remaining ninety-four had been an offense against gods and men […] [The husband] was given ninety-four blows by the dead woman’s brothers”. From an Earthly-secular-21st-century perspective the “rule of six” is unacceptable. Domestic violence should not be tolerated, even if one or six blows, and women are not created to be obedient. From a 10-20 AC (after the Conquest) perspective, however, this is progress as a man cannot beat his wife – too much – and if he does, he will be held to account.
While Queen Rhaenys enacted a new “feminist” law, her granddaughter (hope I am getting the lineage right), Queen Alysanne, abolished a rapist one. In Westeros, powerful lords were allowed to “bestow [their] seed upon some maid on her wedding night” (read rape). When the lord is done, the wife could go back to her husband who, in the case brought up to Alysanne, rejected her, beat her until she left to a brothel. Appalled by this tradition, Alysanne managed to convince her husband-brother, King Jaehaerys I to abolish the “lord’s right to the first night” and label it a crime of rape. Guests witnessing the first sexual relation between husband and wife was still pretty much on the table however – to make sure the marriage was truly consummated.
Women Protecting Women
Participation of underrepresented groups (such as women) is important because without them there would not be change. It is also the case in Westeros. The two discussed laws originated from a woman, a privileged woman. Queen Rhaenys created the rule of six and Queen Alysanne abolished the lord’s right to the first night.
Although there is no mention of the King on the issue of the rule of six – Rhaenys did it all by herself, Alysanne had to ask King Jaehaerys I to abolish the lord’s right to the first night. Fire & Blood is a long book (613 pages on an e-reader) but covers a period of 157 years so G. R. R. Martin does not go into too much details on each event. However, Alysanne needed three pages and a half to convince the King and his small council (only men) to criminalise the tradition. She even needed to appeal to the survivor’s husband’s honour and make a comparison to her own wedding night with the King – totally excluding the survivor’s actual suffering from the equation – to persuade Jaehaerys who defended the practice because it was “an ancient one”. Even being a queen, the sister to the King and the most powerful woman of the realm (with a dragon) is not enough to change sexist and rapist laws. One still needs perseverance and a man’s – the King – ear. Women participation is a first step but unfortunately not enough until men are ready to listen.
Queen Alysanne’s law, as it became known among the smallfolk, would not have been enacted if it was not for a lower-class woman speaking up. Indeed, when visiting the North, and as usual, Alysanne held her women’s court. The Queen had started holding such sessions in King’s Landing but also in the other regions of her Kingdom when travelling so that she could listen to women’s problems. In the North, she was almost denied her women’s court as the Lord Commander told her there were only men at the Night’s Watch – and therefore no women in need. Upon Alysanne’s insistence, she managed to hold her court in Mole’s Town among “whores, strumpets and harlots”. It is in those circumstances that a 14-year-old blacksmith daughter told her about the lord’s right to the first night. The lord’s right to the first night seemed well-known and widespread among the lower classes but Alysanne imagined it was a thing of the past. Talking about sexual violence can be difficult for survivors, especially when assaulted by individuals with power. For them to feel comfortable speaking up, they need to be in the right, trusting environment, which was the case here since the 14-year-old testified at a women court where she felt safe, among her peers and with a Queen who was listening to her and going to act upon it.
Conclusion
This blog post is not intended to say that Fire & Blood and its televised sister House of the Dragon are feminist masterpieces. Afterall, female characters still live in a sexist world where women are only allowed to be Queen if they are the mother or wife of a King – that is what the series is all about. Women have to share their polygamist husband with other wives, still undergo virginity test, cannot train to be master at the citadel and the rule of six is still pretty unacceptably tolerant of domestic violence. In addition, although the writers had said they would crack down on sexual violence compared to the Game of Thrones series, the first episode of House of the Dragon portrays a forced c-section which constitutes shocking sexual violence (see Amanda Whiting’s article on the forced birth scene). In any case, however, it is interesting to see that the same lessons are learnt in the Seven Kingdoms: for actual change in favour of women’s rights, women of all background need to be able to participate in the political discussion and they need to be listened to.
The views expressed in this post are the author’s alone and do not represent any institutional position.
We may only be a few days into the new year, but Star Wars has already gifted fans with fresh content, as Bad Batch returned for its sophomore season on January 4th. Star Wars legal geeks didn’t have to wait long for some prime galactic legal issues to surface–one was teed up right in the title of Episode 1: Spoils of War.
After narrowly surviving the Empire’s destruction of all cloning facilities on Kamino, the Bad Batch quickly found themselves back in action with a new mission from Cid–one that promised to bring in more riches than all their prior jobs combined. The mission: Infiltrate Serenno and steal some of the late Count Dooku’s vast fortune while the Empire was busy attempting to seize it for its own use.
Postwar Castle Serenno, home to the galaxy’s largest home furnishings liquidation sale!
The clones arrive on Serenno to find the ultimate estate sale in action, as the newly minted Galactic Empire was rapidly readying Dooku’s valuables to be taken off world. The scale of the seizure is massive, as multiple huge Class Four Container Transports were loaded for bear with mountains of shipping containers filled to the brim with money, jewels, and other treasures from Dooku’s palace.
Count Dooku, having recently had his head detached from his shoulders via lightsaber, wasn’t in any position to protest. However with the clone wars over, what does international law have to say about this sort of apparently brazen pilfering?
Saying that heads will roll for stealing Dooku’s treasure seems a bit uncouth under the circumstances.
Even though wars end, the laws governing them don’t suddenly cease to exist. The practice of battlefield theft and seizures have endured as long as humans have waged war, from pillaging Vikings to the Nazis’ rampant theft of cultural treasures. The notion of one side taking an enemy’s during or after a war might seem a little unfair, but the law doesn’t treat all wartime takings equally. Although theft is generally outlawed during conflict, there are many circumstances where one side is legally able to take spoils of war from an opponent after a conflict.
When it comes to taking property, International Humanitarian Law (IHL), also known as the law of armed conflict, draws a distinction between private and government property. On one hand, the forcible seizure of private property for personal use, also known as pillaging, is generally outlawed. On the other hand, taking enemy property is generally lawful–a concept known as “spoils of war.” This practice is condoned in IHL treaty law, as the Hague Regulations of 1907 allow an occupying army to take possession of a wide variety of movable property belonging to the occupied State. The legal ability to seize war booty is also recognized under Customary International Law, which is a subset of IHL stemming from long standing accepted international practices and carry the same binding legal effects as treaty law (e.g. Geneva Conventions).
We’re still awaiting news on the fate of the ultimate prize at Dooku’s castle: The Count’s Exquisite Pajamas
Given Serenno’s key role in the Clone Wars, the Empire’s mission to seize property there had a solid basis in law. Serenno was a key opponent of the Galactic Republic (and by extension the Empire) during the Clone Wars. Having been a core member of the Confederacy of Independent Systems (CIS) at the very heart of the war effort against the Republic, Serenno was a reasonable place for the Empire to look to seize war booty.
But Serenno’s status as a defeated Republic enemy doesn’t automatically mean the Empire could sweep in and take whatever it wanted after the war. The private property of Serennian citizens would be protected from pillage under IHL–a prohibition that would seemingly protect Count Dooku’s fortune. After all, the mere act of participating in a war doesn’t give the enemy a free pass to seize all your personal property outside of the battlefield.
However, Count Dooku was no ordinary citizen–his unique status and role in the war are key to how his property is classified. As the head of House Serenno, Dooku was the political ruler and head of state for the planet–a status that fueled his departure from the Jedi Order. Although Serenno had a planetary council and Galactic Senator, Dooku acted as ruling head of state, serving as the planetary emissary and acting as the planet’s decision-maker in all key areas, including its cessation from the Republic. He was also one of the military leaders of the Separatist war effort, taking a frequent direct role in hostilities. Castle Serenno was the seat of Dooku’s power on the planet and was the location from which he ran planetary affairs (including war efforts). This meant that Dooku’s fortress wasn’t simply a private residence. Based on the circumstances, the castle was effectively government property and thus was fair game for the Empire to search for war booty.
Dooku’s Force ghost watching his palace get lawfully ransacked by his old boss.
Even if Dooku is considered a private citizen, his deep participation in the war effort still renders at least some of his property as war booty. Under IHL, private property that has been used for hostile purposes can also be seized as spoils of war. Dooku was at the heart of the Separatist war effort, using his heavily fortified castle on Serenno as his base of operations. By intertwining his private property with his war involvement, his actions therefore exposed much of his own private property to seizure.
The Empire was also acting lawfully when it specifically targeted Dooku’s riches for seizure. While war booty is often thought of as items such as weapons or military vehicles, the term encompasses a far greater range of property, including non-military property like money. Under U.S. law, “spoils of war” are defined as “enemy movable property lawfully captured, seized, confiscated, or found…” This is a broad spanning definition that includes a wide range of items, including money. The Hague Regulations provide that an occupying army “…can only take possession of cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for military operations.” Additionally, under Customary International Law, a party to an armed conflict can seize moveable state property as war booty, including military equipment and even cash.
On Serenno, we see the Empire carrying out a wholesale seizure of Count Dooku’s fortune–piles of credits, jewels, artifacts, and more can be seen inside Imperial shipping containers. These items, particularly the currency, fall squarely within the IHL definition of spoils of war. This wealth was no doubt intertwined with Dooku’s governance of Serenno, including directly funding the Separatist war effort, which effectively rendered it state property eligible for seizure.
While the Empire’s seizure of Dooku’s booty was generally lawful, it would only be entitled to property that actually belonged to Dooku/Serenno. In the episode, we learn from a Serennian citizen named Romar that Dooku stole untold amounts of his fortune from the Serennian people. How much and what was stolen isn’t known, but stolen property is doubtlessly amongst the items being seized. The Empire has no legal claim to that stolen property, but then again Emperor Palpatine isn’t known for his strict adherence to the rule of law.
I’m sure Dooku would’ve just Venmo’d Palpatine some cash if he’d only asked.
As a group of rogue clones unaffiliated with the Empire, the Bad Batch on the other hand had no legal basis to take any of Dooku’s booty. The right to seize spoils of war rests with a party to the armed conflict, not individual citizens or even individual soldiers taking part in the war. In either case, the real lesson is that if you find yourself inheriting a vast galactic fortune, think twice before you leave the Jedi Order and start up a massive war you’re destined to lose–otherwise you might lose a lot more than you bargained for (including your head).
Dr. Strange and the Multiverse of Madness poised the question of whether any state on Earth 838 could prosecute the Scarlet Witch from Earth 616? In the movie, Wanda 616 used the body of Wanda 838 to murder all but one member of the Illuminati. Murder is a crime in New York state (NY Penal Law § 125.27). Additionally, Wanda 616 imprisoned Wanda 838 in a mental purgatory and used Wanda 838’s body to travel from New Jersey to New York. New Jersey has an interested in prosecuting Wanda 616 for both False Imprisonment (N.J.S. § 2C:13-3) and Kidnapping (N.J.S. § 2C:13-1), even though it would be a very new application of the law for possession by a person from another universe.
Putting aside the big question of traveling between parallel universes, what is the legal theory for “universal jurisdiction” for prosecuting Wanda 616?
Universal Jurisdiction
The challenge with “Universal Jurisdiction” is that it applies to piracy. Case law states:
“[P]iracy has for centuries been considered a universal jurisdiction crime based on international agreement, and, unlike the case with respect to modern universal jurisdiction crimes, there is little debate that all nations have authority to capture and punish any pirate.”
`The pirate is a sea brigand. He has no right to any flag and is justiciable by all.’ (quoting 2 John Bassett Moore, Digest of International Law 953 (1906)).
U.S. v. Hasan, 747 F. Supp. 2d 599, 611 (E.D. Va. 2010), citing Yousef, 327 F.3d at 104; In re Piracy Jure Gentium, [1934] A.C. 586, 595 (1934).
While aptly named, Universal Jurisdiction can’t cast a spell on Wanda 616.
Territorial Jurisdiction
The legal theory for prosecuting Wanda 616 is “Territorial Jurisdiction.” This jurisdiction is a court’s power over individuals for actions in a state.
New Jersey’s Territorial Jurisdiction states:
a. Except as otherwise provided in this section, a person may be convicted under the law of this State of an offense committed by his own conduct or the conduct of another for which he is legally accountable if:
(1) Either the conduct which is an element of the offense or the result which is such an element occurs within this State;
(2) Conduct occurring outside the State is sufficient under the law of this State to constitute an attempt to commit a crime within the State;
N.J. Stat. § 2C:1-3
New York’s Territorial Jurisdiction states:
[A] person may be convicted in the criminal courts of this state of an offense defined by the laws of this state, committed either by his own conduct or by the conduct of another for which he is legally accountable pursuant to section 20.00 of the penal law, when:
1. Conduct occurred within this state sufficient to establish:
(a) An element of such offense; or
(b) An attempt to commit such offense;
N.Y. Crim. Proc. Law § 20.20
Territorial Jurisdiction is the way New Jersey 838 and New York 838 could prosecute the Scarlet Witch, because she committed crimes within each state. Granted, serving the arrest warrant is rather problematic, but the science would eventually catch up to the law since Valeria and Franklin Richards would be pretty upset about their father’s murder.
We learned in the Guardians of the Galaxy Holiday Special that Drax the Destroyer had a cousin…who was killed by a GoBot. Upon seeing a person cosplaying as a GoBot, Drax immediately threatened violence. Drax later made good on his threats and repeatedly punched the GoBot cosplayer.
Was Drax’s attack a hate crime?
California law applies because the attack took place in Los Angeles, California. California’s hate crime law is stated in Penal Code 422.6(a):
No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of Section 422.55.
“Hate crime” is defined in Penal Code section 422.55, which states that when a criminal action is committed, in whole or in part, because the victim had one or more of the “following actual or perceived characteristics”:
(1) Disability.
(2) Gender.
(3) Nationality.
(4) Race or ethnicity.
(5) Religion.
(6) Sexual orientation.
(7) Association with a person or group with one or more of these actual or perceived characteristics.
The punishment for a hate crimes conviction includes imprisonment in a county jail not to exceed one year, or by a fine not to exceed five thousand dollars ($5,000), and can include up to 400 hours of community service. Penal Code 422.6(c).
Was Drax battering a person cosplaying as a GoBot enough for a hate crime conviction? Arguably yes, because the reason for the attack was based on the fact Drax perceived the cosplayer to have the characteristics of a GoBot. This requires GoBots being a Nationality, Race, or Ethnicity in the Marvel Cinematic Universe. Since Drax recognized the cosplayer as a GoBot and Mantis stated a GoBot killed Drax’s cousin, apparently Gobotron is a planet in the MCU. Drax’s intent for committing the battery was solely based on the fact the cosplayer was dressed as a GoBot. As such, Drax’s intent for the battery was on the basis of the cosplayer having the perceived characteristics of a GoBot. This meets the requirements for a hate crime.
Drax’s defense is that he made a mistake of fact and merely violently battered the cosplayer repeatedly, but that defense likely would fly like a lead balloon.
