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It’s Really a Good Idea to Get a Warrant Before Bugging a Senate Office

The [fictional] Senator Ellen Nadeer has engaged in domestic terrorism, kidnapping, murder, conspiracy, insurrection, and a host of other no-no’s for any sitting Senator on Agents of SHIELD. Phil Coulson and Yo-Yo set out to plant recording devices in the Senator’s office in the “Stamford Wing” of one of the Senate Office Buildings in the episode “Wake Up.” While an excellent homage to Marvel’s Civil War, why didn’t Coulson get a search warrant for a United States Senator?

There have been members of Congress investigated by the FBI in the real world. Generally speaking, law enforcement agencies must get a search warrant before conducting a search of property to comply with the 4th Amendment to the United States Constitution. The warrant requirements for wiretaps for intersecting written, oral, electronic communications require an application the authority for the application and the following:

(a)  the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application;

(b)  a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) except as provided in subsection (11), a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted;

(c)  a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;

(d)  a statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;

(e)  a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire, oral, or electronic communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application; and

(f)  where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.

18 U.S.C.S. § 2518(1)(a)-(f)

Jemma Simmons arguably would be the best SHIELD Agent to make the application as the investigating officer for SHIELD, because she both “treated” Vijay Nadeer, Senator Nadeer’s brother, and investigated the Senator’s property to find Vijay. Simmons could explain that the status of Vijay is unknown and that the Senator is connected with the domestic terrorist organization known as the Watchdogs. The duration for the investigation could be for a reasonable amount of time for investigating the terrorist connection, possibly 30 days to see what contact takes place.

Executing search warrants on members of Congress can be complex because of the Speech and Debate Clause. In one of the rare cases of searching a Congressman’s office,  the Congressman who was the subject of the search warrant should have had an opportunity to review files to see if they were protected by the Speech and Debate privilege, prior to the Government removing the files from his office. United States v. Rayburn House Office Bldg., 378 U.S. App. D.C. 139, 147-48 (2007).

A wiretap a Senator’s office would throw the Speech and Debate Clause out the window, because everything the Senator Nadeer did and said would be recorded. In one case with a state senator under investigation that authorized a wiretap, the requirement that no other investigative means would be effective, because the state senator told a cooperating witness that he would not include himself in any incriminating conversations with third-parties. See, 18 U.S.C.S. § 2518, referencing United States v Bankston (1999, CA5 La) 182 F3d 296, reh den (1999, CA5 La) 1999 US App LEXIS 25466, cert den (2001) 534 US 1043, 122 S Ct 620, 151 L Ed 2d 542 and revd on other grounds, remanded sub nom Cleveland v United States (2000) 531 US 12, 121 S Ct 365, 148 L Ed 2d 221, 2000 CDOS 8942, 2000 Daily Journal DAR 11849, RICO Bus Disp Guide (CCH) P 9970, 2000 Colo J C A R 6139, 14 FLW Fed S 3 and revd on other grounds, remanded sub nom Goodson v United States (2000) 531 US 987, 121 S Ct 476, 148 L Ed 2d 450, 2000 Daily Journal DAR 12031.

Other cases with wiretaps have rejected the Speech and Debate Clause where members of Congress engaged in racketeering. See, United States v. McDade, 827 F. Supp. 1153, 1180 (E.D. Pa. 1993).

The same logic would apply to Senator Nadeer, because being in a conspiracy to conduct domestic terrorism, murder, kidnapping, insurrection, and treason, are not legislative acts protected by the Speech and Debate Clause. Director Mace, Phil Coulson, and Jemma Simmons should have consulted with a SHIELD attorney, or turned the matter over to the Department of Justice, so the FBI could have properly executed a warrant for the investigation of Senator Nadeer.

Join us for X-Men and Star Wars at San Diego Comic Fest 2017

We are very excited to return to San Diego Comic Fest with a new Star Wars panel and mock hearing based on the X-Men. The X-Men mock hearing is being argued by law students from McGeorge and California Western law schools. United States Magistrate Judge Mitch Dembin will preside over the mock hearing. The law students are briefing their arguments, which will be posted on The Legal Geeks before the mock hearing.

Rogue Law: We Are One with the Force, Saturday, 1100am, Palm B.

US Magistrate Judge Mitch Dembin, California Judge Carol Najera, Megan Hitchcock, Esq., and Joshua Gilliland, Esq., from The Legal Geeks, are all Star Wars fans. Rogue Law will discuss the legal issues from Rogue One, A Star Wars Story, including the Empire drafting Galen Erso to build the Death Star, whether Cassian Andor killing Tivik was murder, and the desertion of Bodhi Rook. The panel will debate whether the Dark Side an addition or a lifestyle choice.

X-Men Mock Trial on Mutant Rights, Saturday, 300pm, Montgomery Theater

Are Mutants human beings? Can Mutants be forced to Register with the Federal Government? Could Sentinels be used to summarily execute unregistered Mutants based on their DNA? US Magistrate Judge Mitch Dembin will preside over this fictional mock hearing inspired by the X-Men comics and movies. Law students from California Western and McGeorge law schools will argue over a motion to stop the Government, involving Civil Rights and National Defense after a mass casualty incident caused by Mutants.

Check out the mock DOJ and DOD memos authorizing the use of Sentinels on Mutants!

XMen_DOJ_Memo

Data Security Lessons from Rogue One

How was the Empire’s data security on Scarif? Privacy attorney Jack Yang joined me at Illusive Comics to geek out over Star Wars, discuss Rogue One, how the Doctrine of Fear did not encourage effective information security best practices, and the legal issues with Bring Your Own Droid to work policies.

Deep in discussion on Star Wars, data privacy, and Black Series action figures.

Listen to Us on Stitcher

Link to Google Play 

The Trauma of Being She-Hulk After Marvel’s Civil War II

Jennifer Walters, formerly known as the Incredible She-Hulk, has been struggling ever since the end of the events of Marvel’s Civil War II. At the beginning of the event, Walters is knocked unconscious in a battle royal between a passel of various superheroes and Thanos, the mad Titan; she spends the rest of the event in a coma, sometimes being visited by former teammates, but otherwise missing in action. Although she makes it out of Civil War II alive and with a new solo series (entitled simply, Hulk), it’s clear she’s been changed for the worse.

We see her trauma in the major life changes she decides to make at the start of her new series; she now remains in her human form, forswears crime-fighting, and returns to her legal practice. Whereas she used to remain in her She-Hulk form as both civilian and superhero, that body now brings with it traumatic memories of her last fight. Even thinking about what happened (and the family and colleagues she has lost) causes her to break out in a sweat and double over in pain. She also appears to be separating herself from the people she knew in her superhero life. When Patsy Walker, aka HellCat, texts her to see how she is, Jennifer doesn’t respond. When she leaves work, we see her lock herself away in her apartment alone.

Based on the Mayo Clinic’s helpful website and her own behavior, it appears that Jennifer now suffers from post-traumatic stress disorder (PTSD). Symptoms of PTSD include recurrent, intrusive, memories of the traumatic event (check); avoidance of talking about the event or to anyone related to it (check); changes in emotional reactions, including irritability, overwhelming guilt, shame, or anxiety (check); and negative changes in thinking and mood, including difficulty in maintaining close relationships and a loss of interest in previously enjoyed activities (double-check). Jennifer is plagued by thoughts she cannot control, has cut herself off from the superhero world she once loved, and is anxious and irritable due to this trauma. It certainly looks like PTSD.

Attempting to juggle PTSD and any job is hard enough; trying to do that within a licensed profession is a different ball of wax altogether. Attorney licensure is regulated by the bar of each state. In New York, where Jennifer practices, the appellate division of the supreme court for each geographic division of New York (called “departments”) determines whether a person “possesses the character and general fitness requisite” to practice as an attorney in the first place; they also determine whether to sanction or disbar an attorney from practice. NY CLS Jud §90.

Attorney discipline generally happens through a court case filed by the Departmental Disciplinary Committee (DDC) in the department where the attorney practices law. New York law provides that whenever the DDC petitions the “court to determine whether an attorney is incapacitated from continuing to practice law by reason of physical or mental infirmity or illness […] this court may take or direct such action as it deems necessary or proper to determine whether the attorney is so incapacitated, including examination of the attorney by such qualified experts as this court shall designate.” 22 NYCRR §603.16(b)(1).

The appellate division is “authorized to censure, suspend from practice or remove from office any attorney and counsellor-at-law admitted to practice who is guilty of professional misconduct, malpractice, fraud, deceit, crime or misdemeanor, or any conduct prejudicial to the administration of justice; and the appellate division of the supreme court is hereby authorized to revoke such admission for any misrepresentation or suppression of any information in connection with the application for admission to practice.” NY CLS Jud §90(2).

There’s no allegation that Jennifer lied or hid any information when she became an attorney (she did not gain her powers or experience mental illness until well after she was already licensed, and it appears that her She-Hulk alter-ego has been common knowledge since then). There’s also nothing to suggest that she has engaged in any fraud, deceit, crime, misdemeanor, or any conduct prejudicial to the administration of justice (think: lying to police or blackmailing clients).

The concern for Jennifer lies with the specter of professional misconduct and malpractice. There are not many New York state attorney disciplinary cases involving mental health issues that have reached the appeal stage, and many of the ones that exist seem to purposefully shroud their details to protect the attorneys’ privacy. The few details we have, however, are illuminating: they are either cases where the diseases themselves have made the attorneys incapable of performing legal work (because they were removed from reality, as the attorneys in In re Cohen, 92 AD 2d 139 (1983), In re Colp, 185 AD 2d 43 (1993), and In re Dickson, 196 AD 2d 399 (1994), were) or they are cases where the effort of dealing with the mental illness made it impossible for the attorneys to keep up with their work. This second category of case includes In re Guran, 126 AD 2d 216 (1987), (where the attorney was too mentally disordered to prepare for his own disbarment hearing); In re Jordon, 202 AD 2d 141 (1994), (where the attorney’s severe, chronic, depression and resulting mental fragility caused her to engage in unspecified misconduct); and In re Rochlin, 100 AD 2d 263 (1984), (another severe depression case where the attorney lied to clients and fabricated legal documents because he could no longer keep up with his work).

As everyone knows Jennifer Walters used to be the She-Hulk, it seems unlikely that a psychiatrist interviewing her would think she’d had a break from reality when she talks about the fantastical cause of her pain. With the severity of her panic attacks and the physical manifestations of her stress, however, it seems possible that Jennifer’s trauma may lead to her neglecting her work and engaging in bad behavior to try to keep up. If so, a petition by the DDC and a court order could force her into a psychiatric evaluation and a pause from her life as a lawyer.

Without her superhero or professional identities, who would Jennifer Walters even be? If she’s unwilling or unable to treat her PTSD, we may just find out.

How Much Prison Time Did Jyn Erso Have to Serve at Wobani Imperial Labor Camp?

Jyn Erso was introduced in Rogue One trailer with a list of offenses that resulted in her being sentenced to hard labor by the Empire. How much prison time should she have served if in the United States? How much time would she have added for her escape from the Wobani Imperial Labor Camp?

Jyn’s first offense was Forgery of Imperial documents. In California, that would have been one year in prison. Pen. Code, § 473. If the document was an Imperial document akin to a passport that was then used for terrorism, the prison term would have been for 25 years. 18 U.S.C. § 1543.

Erso’s second offense was for possession of stolen property, which could have a prison term of 20 years. 18 U.S.C. app. § 2B1.1.

The offense of aggravated assault could have a term of at least 14 years. 18 U.S.C. app. § 2A2.2. Additional years can be added based upon injuries the victim had, such as another five years for “serious bodily injury.” 18 U.S.C. app. § 2A2.2(b)(B).

Jyn’s charge of resisting arrest could have included a sentence of two, three, or four years, depending on if she used a deadly weapon to resist, if the Empire had laws similar to California. CA Pen. Code, § 417.8.

Jyn’s escape from Wobani would result in a fine and/or an additional five year sentence. 18 U.S.C.S. § 751. Jyn’s prison term could have been 25 years to 69 years, if the Empire had a similar legal system, depending the amount of time sentenced, and if sentences ran concurrently or consecutively. That would be more time than Obi Wan Kenobi spent on Tatooine and Luke Skywalker on Ahch-To combined, if Jyn had the maximum sentence.

Let’s Talk About Cassian Murdering Those Dudes

The universe was introduced to Cassian Andor in Rogue One murdering an informant named Tivik, so the Empire would not capture the informant. Tivik had in injured arm, which disabled him from climbing to safety from closing Imperial Stormtroopers. If Tivik had been captured, much of the Rebel plans would have been exposed to find Jyn Erso.

Cassian’s actions are highly problematic legally (let alone morally). First, Cassian killed Stormtroopers who asked for his identification. The Stormtroopers only asked for Cassian’s identification, which is highly difficult to justify the use of lethal force as a response. However, the Stormtroopers did not have reasonable suspicion to stop Cassian, as he was not apparently breaking any laws. Perhaps Cassian could have reasonably believed his life was in danger based on past actions of Imperial Stormtroopers, but this would still push self-defense laws well past the norm.

Tivik posed no direct threat to Cassian’s life. Killing Tivik would meet the legal definition of murder, because Cassian killed Tivik with malice aforethought, because there was an “intent-to-kill.”

Tivik had knowledge that could have been fatal to the Rebellion. If the Empire had learned of Galen Erso’s actions, or the existence of Jyn Erso, the Rebels would not have been able to develop a plan to find Jyn and ultimately the Death Star plans. Unfortunately for Cassian, the necessity defense does not cover killing people.

The street fight on Jedha witnessed Cassian shooting one of Saw Gerrera’s “extreme rebels.” Gerrera’s freedom fighter had an explosive device that objectively looked like he was going to throw the explosive at the disabled hover tank. As Jyn Erso was hiding by the tank to protect herself from the fire between Gerrera’s men and Stormtroopers, Cassian could argue he killed Gerrera’s soldier in order to protect Jyn from being killed.

The Top Legal Geeks Blog Posts of 2016

Check out the countdown of our most popular posts published in 2016 from Number 10 to Number 1.

We had a great year, with three of our guest bloggers making the top ten, including one law student. The most read categories include Luke Cage, Captain America, Daredevil, Star Trek, and Star Wars.

On to the countdown…

Number 10

Iron Man’s Child Endangerment of Spider-Man

Tony Stark entered a new world of liability in Captain America Civil War. No, not a products liability case for building another murdering robot. No, not a 1983 action for holding super-heroes in a...

Number 9

What is the Duty to Warn about the Salt Monster on Planet M113?

The world began exploring the Final Frontier of Star Trek on September 8, 1966. To honor this anniversary, let’s explore the legal issues in The Man Trap. Star Trek began with the age-old problem many...

Number 8

Did Daredevil Adequately Prepare for the Punisher’s Trial?

Spoiler Warning: Do not read unless you have watched Daredevil season 2 episodes "Semper Fidelis" and "Guilty as Sin." Matt Murdock and Foggy Nelson represented Frank Castle in his trial that included 37 murder and 98...

Number 7

Did the Jury in Civil War 2 Nullify the Murder Charges Against Hawkeye?

Hawkeye murdered the Hulk in Civil War 2 issue 3. Issue 4 opens with a jury verdict in Federal Court of "Not Guilty." Was justice really served on Hawkeye? Did the jury acquit Clint...

A great guest blogger in Utah took one of the biggest legal issues from The Force Awakens for our sixth most read post in 2016. 

Number 6

Who Owns the Millennium Falcon?

In The Force Awakens, the Millennium Falcon starts out in the hands of Unkar Plutt, who stole it from the Irving Boys, who stole it from Gannis Ducain, who stole it from Han Solo,...

Number 5

I Ain’t Afraid of No Reboot!

I took my kids and my friend’s son to the new Ghostbusters yesterday. They all knew and loved the original Ghostbusters and were really looking forward to the new one. And not one of them...

The fourth most read post this year is by a JAG officer who helped with our Countdown to Rogue One in December. 

Number 4

The Death Star: That’s No Moon—Is it an Orbital War Crime?

The Empire’s prized planet-busting weapon was arguably the pinnacle of destructive technology in the Star Wars universe…at least until the First Order one-upped them with Starkiller Base. If Darth Vader had not sliced him in...

The third most read post is by a McGeorge law student who also participated in the Mock Trial of the Winter Soldier. 

Number 3

How Would You Defend Captain America After Marvel’s Civil War?

Let me start by saying that if the United States were to try and prosecute the most patriotic super hero of all time I would, after passing the state bar exam, jump at the...

Number 2

Does Luke Cage Have a Duty to Warn Attackers He’s Unbreakable?

Marvel’s Luke Cage on Netflix is excellent. The series has perhaps the most Easter Eggs from other Marvel stories, including Avengers, Iron Man 2, Jessica Jones, and Daredevil. There are wonderful homages to the Power...

Number 1

Why the Sokovia Accords are Unconstitutional

Captain America Civil War is an amazing super-hero movie. It is the model of how to have a large cast of characters in a film with action, humor, plot, and heart. The only thing...

Great to see Captain America and the US Constitution come in a strong first place. Thank you all for reading our blog in 2016.