Jessica Mederson and Josh Gilliland discuss Agent of SHIELD episodes TRACKS, TAHITI, how awesome Lady Sif is, the Constitution, following the 4th Amendment, Marvel Civil War, Nick Fury, Ex-Agent of SHIELD and a whole bunch of other geek issues.
Did the Clairvoyant See the Constitutional Issues?
The Agents of SHIELD episode “The Beginning of the End” was a fantastic joyride for comic book fans. The set-up for Captain America 2 and the battle for the soul of SHIELD were geektastic. The only thing the story was lacking was telling Thomas Nash “you’re under arrest” and giving him his Miranda Rights.
Ward killing the paralyzed Nash armed with a tube in his mouth is also extremely problematic.
Let’s break down the legal issues:
Was the Clairvoyant Lawfully Arrested?
Thomas Nash apparently communicated through his computer “I surrender” to Agents Coulson and Garrett after they entered his room with weapons drawn after exchanging fire with Deathlok (whether or no it was Nash operating the computer was not determined). No member of SHIELD actually told Nash “you are under arrest.”
Someone is under arrest when they are kept in custody by legal authority in response to a criminal charge. See, Black’s Law Dictionary, 9th Edition.
We have a little rule called Miranda that states:
Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.
Miranda v. Ariz., 384 U.S. 436, 471-472 (U.S. 1966).
As such, when some is “arrested,” they must be given their Miranda Rights.
Had Nash been arrested? Were the Agents required to give Nash his Miranda Rights?
There is an argument that the Agents finding the paralyzed Nash in the bed were only conducting an interview of the suspect. For example, a Court held that a bomb maker interviewed in a hospital bed after an explosion was not in custody, because the officers did not keep the suspect in the hospital. Things could have been different if the police had transported the suspect, stationed guards, monitored his health or showed restraint amounting to custody. Gonzalez v. Sisto, 2010 U.S. Dist. LEXIS 48812, 28-29 (C.D. Cal. Jan. 13, 2010) citing United States v. Martin, 781 F.2d 671, 672-73 (9th Cir. 1985).
Nash was in a very similar position, in that he was confined to a hospital bed, unable to speak without a computer. The SHIELD Agents did not put him in his near vegetative state, but were questioning a possible suspect.
However, there were at least half a dozen armed SHIELD Agents around Nash with weapons drawn. Moreover, he surrendered. These are facts supporting he was under SHIELD custody and lawfully arrested. As such, Miranda Rights should have been given.
There is a “Public Safety” Exception to Miranda where “overriding considerations of public safety” could justify a failure to provide Miranda warnings before initiating custodial interrogation. New York v. Quarles, 467 U.S. 649, at 651 (1984). Moreover, law enforcement could question someone under arrested without giving Miranda Rights when the “officers have a reasonable belief based on articulable facts that they are in danger.” United States v. Talley, 275 F.3d 560, 563 (6th Cir. 2001). These situations have included looking for explosives and guns left out. See, United States v. Williams, 483 F.3d 425, 428 (6th Cir. 2007) and United States v. Hodge, 2013 U.S. App. LEXIS 7848, at *14 (6th Cir. Mich. 2013).
Deathlok running free with the ability to launch small missiles, enhanced strength, and bullet proof, would give the Agents a reasonable belief that they were in danger. This would justify the questioning of Nash without giving his Miranda Rights.
Ward Committed Murder (Again)
Thomas Nash was either being interviewed or under arrested when Agent Ward shot him. There is no way around the fact Ward committed murder, arguably worse than his visit to the Guest House. At least those guys could defend themselves.
The execution of a Canadian citizen in the United States by US law enforcement would be controlled by US law. SHIELD operates within the US Government (don’t forget Agents Hand and Blake being picked up on the USS John C Stennis, CVN 74 at the beginning of the episode. Nimitz class carriers are not coffee shops for hanging out). As such, Ward SHOULD be both subject to a 1983 action by Nash’s family and charged for murder.
Future Computer Forensics on Almost Human
Almost Human’s episode “Perception” presented a fantastic case study of computer forensics in 2048. The episode also showed the best legal issues to date.
The episode included augmented reality post-it notes, biometric security, 3D drug printing with data backed up to the Cloud, text messages, hacking, a lawyer appearing via hologram while a client was being questioned by the police and paying a private eye to destroy evidence for his client. It was literally like an eDiscovery pinata exploded.
Let’s break down the issues:
Virtual Post It Notes
Both John Kennex and the “bad guy” had augmented reality post-it notes. Kennex’s notes related back to the events that put him in a coma; the villain’s those who were responsible for her daughter’s death. Both had a subtle Moby Dick element to them on how revenge could lead to one’s ultimate destruction.
Herman Melville aside, figuring out how to make a byte-by-byte image of virtual post-it notes could make a computer forensic expert yell, “to the last I grapple with thee.” Where is the computer from which the data was generated? Is it in a cloud? Or something totally different. An expert would need to know how the augmented reality worked and the location of the device that generated the data in order to capture it.
Alternatively, they could just take a photo of the floating virtual post-it note.
3D Drug Printing
The 3D drug printing with cloud back-up was a beautiful example of existing technology in the future. The manufacture of drugs is a regulated industry. Licenses are required for pharmacists. Moreover, the data backed-up to the cloud would protected under both the Stored Communication Act (which hopefully will be updated before 2048) and the 4th Amendment (which hopefully will not be still under attack in 2048).
The intersection of heavily regulated device and cloud storage poses an interesting question: would the license for the 3D drug printer require as part of its license the waiving of rights under the 4th Amendment and Stored Communication Act to ensure it is not being used for an unlawful purpose? My gut says this would be the case.
Text Messages
Existing computer forensics has acquiring this data pretty nailed. Many companies have tools to capture the data, whether it is on the local device, the cloud or a service provider.
The question remains, did the police get a warrant for the father-daughter communications?
Lawyer On-Demand
Every attorney should take comfort that there are still lawyers in 2048 working at law firms. Almost Human is one of the few police shows that actually honored the right to remain silent and counsel in ages. The idea of being able to call your attorney for an instant virtual meeting currently can be done with video conference technology. Making your lawyer an on-demand hologram would just be cool.
And awesome billing entries: “Holographic meeting with client. 0.3”
Intentional Crimes
Both computer hacking with the intent to kill and the willful destruction of evidence are crimes. The hacking the 3D printer will end in first degree murder charges. The PI destroying recordings done for client that he was then paid to destroy will at a minimum cost him his PI license and at most bring charges for obstruction of justice.
Hat Tip
My compliments to the production team on highlighting real legal issues with technology in a way that moved the story along, without getting lost in the tech. Job well done.
Rock ‘Em Sock ‘Em Justice on Almost Human
Almost Human is a joy ride in future computer forensics and law enforcement. The Bends offered multiple legal and technical issues:
Talk to the Hand
The show opens with an undercover police officer having a video call on his hand. Just from a computer forensic point of view, how would you forensically get data off the “device”? The current method would involve a smartphone being put in a faraday bag to cut the phone off from sending or receiving data, followed by a physical data collection.
Perhaps the “Palm Cam” is cloud based technology and data could be retrieved from a hosted service. Regardless, it is an interesting thought exercise on how to preserve evidence.
Don’t Eat That
Nothing says friendship like ordering a slug that screams when eaten alive for your partner. While it is not clear if a human could sue an android, this instantly created issues of a hostile work environment and intentional infliction of emotion distress.
Bad Cop & Badder Cop
The heroes each torture a suspect in custody to find out where another police officer was taken. While there might have been a public safety exception to not give the suspect his Miranda rights (and that is a big if), Kennex beating the bad guy, followed by Dorian sticking his thumb in a bullet wound fully violate the suspect’s rights. Moreover, any statements would have been coerced and inadmissible in court.
Were They Purposefully Playing Rock Em Sock Em Robots?
Dorian and an evil android have a serious slug fest that ended with the suspect robot’s head being ripped off. This just screamed Rock Em Sock Em Robots. If that was the goal, job well done.
How to Seriously Violate the Constitution
John Kennex summarily executed the corrupt police captain running a major drug ring. So much for a trial by jury.
There are numerous issues with the hero murdering the bad guy, from denial of due process to the simple fact it’s murder. There was simply no self-defense issue. Worse yet, they actually had evidence that placed the corrupt captain at the scene of the crime and a witness to the captain being the drug kingpin. Granted, the cell phone call evidence might be suppressed if it is connected back to the tortured suspect, but it likely is admissible.
Killing the bad guy was an act that seemed totally out of revenge and had nothing to do with the administration of justice.
That being said, I do love the show. Graphic Constitutional violations aside, keep up the good work of humans having technology integrated with their bodies and android police.
Agents of S.H.I.E.L.D. Is a Joy Ride, Just Not For The Constitution
It is time to take your Infinity Serum and put on your eyepatch. Agents of S.H.I.E.L.D. is an absolute delight to have on TV.
Just one little thing: those spies had no clue about upholding the Constitution. They need a lawyer on the team. I have a law degree, bow tie and eyepatch if you need me.
I have loved S.H.I.E.L.D. since there were two Germanys and the fear of a nuclear war. Back in the “good old days,” S.H.I.E.L.D. villains included Hydra, AIM, terrorists and…..Godzilla.
No, seriously, in the 1970s S.H.I.E.L.D. fought Godzilla. I have the comics. Honest.
S.H.I.E.L.D. has also been its own worse enemy, such as in Nick Fury, Ex-Agent of S.H.I.E.L.D.; to Fury’s private little war that branded him a traitor; to going in the wrong direction in Marvel’s Civil War; to being heavily compromised in Secret Invasion; and to being the tool of Norman Osborn’s police state in Dark Reign.
Let’s get back to the TV show.
Agents of S.H.I.E.L.D. is one heck of a fun ride. However, I was rather concerned with the lack of any respect for the US Constitution in the first episode.
Here is what bothered me:
Skye is exercising her First Amendment rights to blog/podcast about her concerns of the treatment of “super-heroes” in what she called the “Rising Tide.”
Agents Coulson and Ward find Skye’s location in a parked van, place a bag over her head and take her into custody. No mention of whether they had a warrant to track her.
There was no, “you are under arrest” or even a hint of what laws she violated. Furthermore, Miranda Rights were not read to her.
Skye’s arrest looked more like a kidnapping by a government spy agency for a citizen exercising her First Amendment rights.
The ACLU, Libertarians, and anyone with a law degree should be saying, “WWWWWAIIIITTT a minute.”
No one in the United States is arrested with a bag over their head, no statement on why they are being arrested and no mention of rights. That is how the KGB and Gestapo used to do business.
Coulson and Ward could have properly arrested Skye for hacking into S.H.I.E.L.D., obtaining classified information and possibly broadcasting that information.
Hacking into a top secret government agency would justify an arrest for violating a phone book worth of laws. S.H.I.E.L.D. had valid reasons for arresting Skye, but the arrest instead had all the hallmarks of a kidnapping that violated the 4th, 5th and 6th Amendments to the US Constitution.
S.H.I.E.L.D. [in the TV show] stands for Strategic Homeland Intervention, Enforcement and Logistics Division. If S.H.I.E.L.D. is a law enforcement agency, they need to comply with getting search warrants on US Citizens and must conduct proper arrests pursuant to the US Constitution. If S.H.I.E.L.D. is functioning more as a the spy agency, that raises all sorts of issues of domestic espionage.
By way of comparison, the CIA is specifically prohibited from conducting domestic spying. Here is the statement from the CIA website:
CIA’s mission is to collect information related to foreign intelligence and foreign counterintelligence. By law, the CIA is specifically prohibited from collecting intelligence concerning the domestic activities of U.S. citizens. By direction of the President in Executive Order 12333, as amended, and in accordance with procedures approved by the Attorney General, the CIA is restricted in the collection of intelligence information directed against U.S. citizens. Collection is allowed only for an authorized intelligence purpose; for example, if there is a reason to believe that an individual is involved in espionage or international terrorist activities. The CIA’s procedures require senior approval for any such collection that is allowed, and, depending on the collection technique employed, the sanction of the Director of National Intelligence and Attorney General may be required. These restrictions on the CIA, or similar ones, have been in effect since the 1970s.
Level 7 Clearance and the Constitution
I absolutely loved the first episode of S.H.I.E.L.D. Great pace, fun characters and it is a treat to see a comic book come to life. The fanboy in me believes that Agent Coulson is really a Life Model Decoy (LMD), but we will see how that plays out.
More importantly, we had the classic Nick Fury flying car, which I believe long predates Doc Brown’s in Back to the Future by 20 years.
Just please, have the good guys follow the Constitution. I will waive my hourly rate and sign an NDA if you want to bounce a Con Law question off of me.
Constitution Day
September 17, 2013 marks the 226 anniversary of the United States Constitution. Every President, Congressman, Senator, Judge, Soldier, Sailor, Civil Servant and Attorney has taken an oath to uphold and defend this document. 
I always stand a little taller whenever I hear:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Constitution Day is just as important and the 4th of July. The Declaration of Independence was the kick-off to our country becoming the United States of America, but we would not be the United States of America without the Constitution. It is literally the document that binds us together, ensuring each of us are protected under the laws of the United States.
We also should never forget those who paid with their lives to defend our Constitution.
The History Geek
We briefly experimented with the Articles of Confederation after the Revolutionary War. It was a long lesson of how not to have a government. The Articles of Confederation were a failed experiment due to the inability to have any sort of national unity, the ability to tax or pay off debt. If left in place would have caused nothing by disunity, as states became their own nation-states.
Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint.
Alexander Hamilton, The Federalist Papers, No 15, December 1, 1787
We Americans are a funny lot. The Constitutional Convention gathered with the intent to fix the Articles of Confederation, not draft a new Constitution. The fact this was pulled off is an impressive testimonial to James Wilson, James Madison and the other Founding Fathers. Somehow, Ben Franklin did not leak the Convention’s plans while drinking.
Nothing in America gets done without debate and usually name-calling. James Madison, Alexander Hamilton and John Jay wrote the Federalist Papers arguing for the Constitution under the pen name Publius. Ironically, one of the complaints was the fact the Constitution’s preamble said “We the People” and not “We the States.”
What is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.
James Madison, The Federalist Papers, No. 51, February 6, 1788
The ratification battle was won, but the first order of business for the first Congress was establishing the Bill of Rights to ensure greater protection of personal liberty.
The Legal Geek
Why should we celebrate Constitution Day? Because many of our rights as US citizens are completely misunderstood by many of our countrymen. There is also the very real fear many of our rights are being eroded.
Justice is indiscriminately due to all, without regard to numbers, wealth, or rank.
Chief Justice John Jay, Georgia v. Brailsford, 1794
Case in point: After the Boston Bombing, a self-identified liberal told me that “foreigners” do not deserve the right to counsel or a trial. She did not care the suspect in the attack was a naturalized US citizen. The Constitution should not apply to “them” in her worldview.
No, No and No. The Constitution protects everyone in the United States. Even the people we do not like that are charged with crimes. You have the right to be protected from unlawful searches; the right against self-incrimination; the right to counsel if charged by the state or Federal government; and the right to a trial. These rights are not simply suspended out of anger or fear. These rights must be applied to all, to ensure that no one is denied the equal protection and due process of law.
There is another issue: the expanding powers of the Government in the name of law enforcement and security. We have seen government agencies, both Federal and state, decide for themselves that the 4th Amendment does not apply to them. These cases include: U.S. v Pineda-Moreno 2010 U.S.App. Lexis 16708 (Aug. 12, 2010), where a GPS tracking device was put on a car parked by the police on a driveway without a warrant; the DEA’s Hemisphere Project, where AT&T employees paid by the DEA turn over call history via an administrative subpoena issued by the DEA, not a judge; to 1.5 million Americans being subject to a single search warrant issued by a secret court.
I did alright in both Criminal Procedure & Constitutional Law. I always thought the text of the 4th Amendment was pretty clear when it came to probable cause and warrants:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
If law enforcement has probable cause, then get a warrant. That being said, I am still stunned there was one warrant to cover 1.5 million U.S. citizens.
Our Constitution is supposed to protect every US Citizen and those in the United States. It is not selectively applied. We attorneys have a duty to help educate the public on our rights. We also have a lot of work to do ourselves in ensuring all of our rights are protected. We do not want to wake up one morning to see our justice system has mutated into the Cyber-Star Chamber that would fit better in Oceania and not America.
So, my fellow attorneys sing the praises of our Constitution to your friends and neighbors. Never be afraid to fight for the Constitution. After all, we took an oath to uphold and defend it.
Back to the History Geek
September 17 is of historical note for the Civil War battle Antietam; Operation Market Garden in World War II; and the roll out of the Space Shuttle Enterprise. Of less historic note is it is also my birthday.
The Legal Geeks: Year One
Thank you everyone for a very successful first year of The Legal Geeks.
Our adventure began last year when Jessica Mederson and I met over Tweeting my Bow Tie Law post Cowboys & Lawyers: Spaghetti Western eDiscovery.
Since that time, we have had a wonderful adventure across the legal issues in science fiction, comic books and pop culture.
Needless to say, I also have had a blast in going action figure and t-shirt shopping for “research.”
Rise of the Geek Lawyers
I have learned there are a substantial number of geek attorneys and in the United States. I was first alerted to this when a partner at a Big Law firm asked over lunch, “Hey, do you have the lightsaber app for your iPhone?”
How did the number of “geek” lawyers come to be?
Today, we have a substantial number of attorneys and judges from Generation X and Generation Y. We grew up with Gene Roddenberry/George Lucas/Steven Spielberg enriched childhoods. The stories from our youth that made a significant impact, from “I have been and always will be your friend” to “Throw me the idol, I’ll throw you the whip,” were truly important to many of us. We spent countless hours in the backyard with space ships and action figures. These were defining happy moments. Those memories without question would echo throughout our lives and practice of law.
So for every attorney who has considered making a Battlestar Galactica or X Files references in a points and authority, you are not alone.
Geek Discovery
The Legal Geeks has allowed me to go boldly beyond blogging about eDiscovery. In the past year, I have been able to research prenuptial agreements and the 6th Amendment right to counsel. Some of my favorite posts this year have included:
Han’s Legal Justification for Shooting Greedo First
Doctor Who & The Effect of Regenerations on the Validity of a Will
Assumption of Risk & Red Shirts on Star Trek
Jabba the Hutt & Employee Safety
Firefly & Lessons in Contract Law
I especially want to thank io9 for picking up my Firefly post and Above the Law for sharing multiple posts. I appreciate all of the Tweets and Facebook shares.
No, There is Another
Jessica Mederson is a wonderful blogging partner. A smart lawyer who has read the classic science fiction books for the last century, she was also into vampires before they were sparkling moody teenagers. Her post on judges who quoted Star Trek in opinions was brilliant and picked up by io9.
Jess has been a very good sport about podcasting in Sci Fi t-shirts and debating the finer points of legal geekdom.
We had an excellent adventure at the Paraben Forensic Innovation Conference and got to work with many other talented attorneys.
You Be The Judge
One of the greatest highlights this year has been getting to know Judge Matthew Sciarrino. He is a true civil servant who puts in long hours for the people of New York. People know of the newsworthy criminal cases he has presided over.
What the Judge does not get credit for was checking on his courthouse after the damage caused by Hurricane Sandy and performing a marriage ceremony for a couple.
No power, people struggling to get back to normal after the storm and Judge Sciarrino took the time to do something kind: performed a wedding ceremony for two people trying to get married.
Judges across the country do similar quiet good works. I have seen many local judges volunteer for the county high school mock trial tournament. There are many other examples as well. Their contributions to society are usually done without fanfare, but are not be forgotten by those they help.
In the past year, I also had the good fortune to spend time with Magistrate Judge John Facciola, moderated a panel with District Judge David Nuffer and had a blast with our anniversary podcast with Magistrate Judge Paul Grewal this year. I really cannot state how much I respect our judges. They work hard to uphold the Constitution and their service to country is very appreciated.
Oh, The Places You’ll Go
I attended the Alternative Press Expo and Big Wow! Comics Convention this year. In my opinion, attorneys attend legal conferences because they have to; people attend comic/geek conventions because they want to. I would like to find how we can make legal conferences events lawyers want to attend.
Part of the answer lies in the type of panel discussions that are held at conferences. The “geek” shows offer big names on topics and “how to” panels. While a Clarance Darrow cosplay panel would not likely be useful, focusing on how to conduct expert depositions, how to propound discovery requests for social media, or even how to balance billable hours to raising a family might be good starting points for conference organizers.
I am not sure the exact answers, but hope to have a better idea how to improve educational events for attorneys for the future.
Perhaps lawyers would like bow tie tying panel.
Your Honor, Your Honor
With due regard for Caddyshack, we were very honored to have an honorable mention by The Geekie Awards for our “fireside chat” podcast with Judge Matthew Sciarrino. I will attend the awards show on August 18 and look forward to meeting the extremely talented geek nominees and judges.
Which brings us to the ABA Journal Blawg 100. Nominations are now open and close on August 9 at 700pm EST. If you enjoy our blog, please nominate us for the ABA Journal Blawg 100.
Again, thank you for a great Year One. I look forward to Year Two.