Diving into the Legal Depths with The Creature from the Black Lagoon

October 22, 2017

The Universal Classic Creature from the Black Lagoon starts as an archeological expedition, which evolved into hunting an endangered species in the Amazon for importation to a marine institute in the United States. It’s time to swim into the murky legal issues with Dr. Mark Williams’ goal to capture the Creature.

Importation of Endangered Species

The Creature was possibly the last of its kind from the Devonian Era. Fossilized remained were found of another “creature,” which was the genesis of the expedition into the Amazon. Upon first sighting the Creature, Dr. Mark Williams shot a speargun at the animal. Dr. Williams made clear his goal was to capture the Creature for his aquarium.

Dr. William’s objective to bring the Creature to the United States would violate the prohibition of importing animals that are either wild or endangered into the United States, or its territorial waters, or on the high seas. Safari Club Int’l v. Babbitt, No. 1993 U.S. Dist. LEXIS 21795, at *19-20 (W.D. Tex. Aug. 12, 1993), citing 50 C.F.R. § 10.12 and 16 U.S.C.S. § 1538(A)(1)(A), (B), and (C). Moreover, the Secretary of the Interior can regulate the wild animals that are “injurious to human beings” to be prohibited from being imported into the United States. 18 U.S.C.S. § 42(a)(1). Furthermore, it is unlawful to import any wildlife taken in violation of any State or foreign law. 16 U.S.C.S. § 3372(a)(2)(A).

Federal and State law could view the Creature as a dangerous wild animal, like an alligator or gorilla. Moreover, the Secretary of the Interior could find the Creature is “injurious to human beings,” since the Creature killed three people without provocation (which is very different than the situation in Frankenstein).

There is a strong argument that the Creature is an endangered species under the Endangered Species Act. A species is “endangered” if it is “in danger of extinction throughout all or a significant portion of its range.” 16 U.S. CODE § 1532(6). A species is “threatened” if it is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. § 1532(20); Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1202 (D.C. Cir. 2013). A species is considered “endangered” because of “natural or manmade factors affecting its continued existence.” 16 USCS § 1533(a)(1)(E).

The Creature appeared to live alone, with no evidence of any other living members of the species. The only evidence of another animal were fossilized remains, so unless the Creature reproduces asexually, it could be the last of its kind. The Rita expedition into the Creature’s range introduced Rotenone into the Black Lagoon and armed hunting parties with spearguns and rifles. As such, the Creature was under threat of extinction from the lack of the opportunity to reproduced and humans hunting the Creature.

Williams’ actions were to kill and then capture the Creature for profit. United States law would not permit the Creature to be brought into the United States. Moreover, Brazil also would have its own national interest to protect the Creature from being exported to the United States as a museum exhibit.

Duties as a Common Carrier

The Creature stalked Kay Lawrence during her solo swim in the Black Lagoon. As a passenger on the Rita, Captain Lucas owed Kay a duty to protect her from “from ill treatment from other passengers, intruders or employees.” White v. Norfolk & S. R. Co., 115 N.C. 631, 636-37, 20 S.E. 191, 192 (1894).

The Creature boarding the Rita would classify the Creature as an “intruder.” Captain Lucas owed all of the passengers onboard the Rita a duty to protect them from harm. Maintaining a watch for the Creature, with appropriate counter-measures, would have been reasonable to protect the passengers onboard Rita. Immediately leaving the Black Lagoon would have been a wise course of action.

Dr. Edwin Thompson was injured by the Creature and was hospitalized in a bunk below decks. The Creature was able to access the injured Thompson through an open porthole. Ensuring portholes were closed would have been an appropriate response to knowing there was an undiscovered lethal gill-man harassing the passengers onboard the Rita.

Just Leave Him Alone

The Creature was an endangered species from an era time forgot. Not entering the Creature’s habitat would be the best course of action, for the safety of both human beings and the Creature himself. This is best evidenced by Dr. Mark Williams, who behaved like someone who tried to ride a bear at a National Park. The best way to avoid the loss of life is to leave the bear alone. The same is true for Devonian Creatures in lagoons.

Justice for Frankenstein’s Monster

Josh Gilliland

October 13, 2017

The real monsters in the 1931 Universal classic Frankenstein are the twisted assistant Fritz who whipped the Monster and the angry lynch mob that burned the Monster alive. This was nothing but a revenge killing for the accidental death of Little Maria, who was negligently left alone by her father. At its core, the classic film is a reanimated Pygmalion, where torturing a person turns him into a killer. Moreover, calling someone a “monster” can turn him or her into one. The question remains, what justice was there for Dr. Frankenstein’s Monster?

Henry Frankenstein brought the Monster to life, cobbled together from stolen bodies and an abnormal brain. The Monster first killed Fritz, who had tortured the Monster with fire and a whip. The next victim was Dr. Waldman, who drugged the Monster in self-defense, and was going to perform a dissection of the still living Monster to kill him. The final victim was Maria, a little girl who showed the Monster kindness. During a game where Maria and the Monster each threw flowers into the water to watch them float, the Monster threw Maria into the water as part of the game. Maria drowned and the Monster was horrified at the result of his actions.

The Monster acted in self-defense against the brutal torture by Fritz. Fritz antagonized the Monster with a torch and a whip. A reasonable person could subjectively believe their life was in danger if fire is shoved in their face. The Monster was tormented and acted to protect himself from fatal injury.

The Monster’s mental capacity was that of a child. It is highly possible the Monster did not understand the concept of death when he killed Fritz, thus did not fully appreciate the wrongfulness of his actions. The Monster clearly wanted the torture to stop and might not have understood he had killed Fritz, given the Monster attempted to keep Dr. Frankenstein and Dr. Waldman away from the hanging corpse.

Dr. Waldman was going to dissect the Monster in order to kill him. The Monster might not have understood the Doctor’s exact actions, but the motive was clear: kill the Monster. The Monster again acted in self-defense to preserve his own life.

Maria’s death was a reckless homicide. The Monster did not know throwing her into the water could result in her death, but a jury could find his actions were in the reckless disregard for her safety.

Murder is the unlawful killing of a human being with malice aforethought. Cal. Penal Code § 187. The United States Supreme Court has held that children are constitutionally different from adults for the purposes of sentencing, because children have diminished culpability and greater prospects for reform. Miller v. Alabama, 567 U.S. 460, 471, 132 S. Ct. 2455, 2464 (2012) [citations omitted]. Children are still developing their character and are more vulnerable to negative influences. Id.

The same can be said of Frankenstein’s Monster. The “Monster” was only days old. To borrow from Dr. Frankenstein, the Monster had not yet lived. The Monster did not understand the world and needed to be taught how to live. This required giving him what any child needs, love, understanding, and compassion. The “Monster” was given none of those things, instead tormented by fire and ordered destroyed.

The real monsters in Frankenstein are the lynch mob that burned the Monster alive. Maria’s father carrying her corpse into town only inflamed rage. Law enforcement is supposed to uphold the public good, not fan the fires of revenge. The Burgermeister had no interest in following probable cause or affording the Monster the right to counsel or a fair trial. The soul purpose was to go out to kill the Monster to avenge the death of Maria. Only right can make right, which would have required a trial, so a person with limited mental capacity was not burned alive. The “justice” issued to the Monster was the equivalent of lynch mob hunting a four-year old with torches.

Anyone accused of a crime is entitled to due process of law. This even includes “monsters.” Civil societies do not executed children or those with diminished mental capacity. Those who decide they are the judge, jury, and executioner to exact death, are the real monsters in the world.

Could a Vulcan Adopt a Human Child?

Josh Gilliland

September 25, 2017

Star Trek Discovery boldly went where Star Trek has only once gone before: interspecies adoption. Ambassador Savek was the legal guardian of Lieutenant Commander Michael Burnham. Would a court appoint a Vulcan to be the parent of a human child?

As a preliminary matter, an adult can adopt a minor who is not married. Cal. Fam. Code § 8600. Burnham’s parents were killed in a Klingon terror raid, thus making her an orphan as a child. Furthermore, a prospective adoptive parent cannot be discriminated against because of race, color, or national origin of the parent or child. See, Cal. Fam. Code § 8708. As such, a court prohibiting Savek from adopting Burnham would be discrimination based upon race and national origin because he was Vulcan.

The issue is raising a human child on Vulcan would be on whether it was in the best interest of the child. Courts will examine adoption petitioners in person and must be satisfied that the child’s best interests will be promoted by the adoption. Cal. Fam. Code § 8612(a) and (c). Moreover, the prospective adoptive parents must state in an agreement that the child will be treated as the adoptive parent’s lawful child. Cal. Fam. Code § 8612(b).

A court would have no problem finding that Ambassador Savek had the financial means, proper home, and ability to raise Burnham as an adopted daughter. However, any home with a Sehlat should raise concerns for having an animal with six inch fangs as a pet. Furthermore, a home with a the lack of any emotional support would arguably go against placing a human child with the trauma of her parents’ death in a Vulcan home. However, as Savek was married to the human Amanda, a court could find that Burnham would have a home that provided a strong academic setting and emotional support for a healthy upbringing. Vulcan hopefully had counseling professionals who could help Burnham with the trauma of a terror attack.

If that is what a court found, it arguably did not happen. Burnhman’s showed extremely little humanity when Savek brought her to the USS Shenzhou. It appears Amanda had a non-existent impact on Burnham’s personal development. Furthermore, Savek’s intent with Burnham serving onboard the Shenzhou was to re-introduce her to humans. After seven years on a Federation starship, Burnhman became unstable under threat from Klingons, assaulted her captain, and attempted a mutiny. While Savek adopting Burnham was legal, it arguably was not in Burnham’s best interests, as her emotional response to a death resulted in her abandoning her own plan to capture the Klingon T’Kuvma and instead kill him. A non-Vulcan upbringing could have given Burnham the emotional tools necessary to not start a protracted war because of a revenge killing.

Product Liability Litigation for Defective Stormtrooper Armor

Josh Gilliland

September 5, 2017

The Empire’s Stormtroopers are emissaries of fear to subjugate civilian populations. However, Stormtrooper armor appears to have multiple fatal flaws for surviving blunt force trauma from melee weapons, arrows, and rocks.

Attackers with sticks incapacitated Stormtroopers on Jedha and Endor with blows to the head. Stromtrooper armor also was ineffective against primitive arrows.

Stromtrooper associations could sue the manufactures of body armor for defective design and possibly breach of warranty and fraud. In cases where fiber was sold to weaving companies who manufactured ballistic fabric, the ultimate manufactures of bullet proof vests were sued for body armor that had a 58% failure rate against bullets. See, First Choice Armor & Equip., Inc. v. Toyobo Am., Inc., 839 F. Supp. 2d 407 (D. Mass. 2012). Numerous police officer associations and local governments sued for design defect, breach of warrant, and fraud. See, S. States Police Benevolent Ass’n v. First Choice Armor & Equip., Inc., 241 F.R.D. 85 (D. Mass. 2007).

Imperial body armor appears in multiple divisions, with the main Stromtroopers wearing white armor. There are other armors that are similar in design, but with different colors for specialty of mission or deployment. These include, but are not limited to, the Death Troopers assigned to Director Krennic and Grand Admiral Thrawn; Scarif Stromtroopers; Cold Assault Stromtroopers seen at the Battle of Hoth; and Scout Troopers, seen at the Battle of Endor.

The Stormtroopers who were subdued with melee weapons on Jedha and Endor were the main line serving Stormtroopers. Scout Troopers were also pacified on Endor by Ewoks.

Stormtroopers suing for defective body armor would need to prove: that the armor did not perform as expected when used as intended; that the Stormtroopers were harmed; and the failure of the body armor to perform was a substantial factor in causing the Stormtroopers harm.

Head Injuries

Stormtroopers on Jedha and Scarif suffered head injuries with the walking stick used by Chirrut Imwe as a blunt force weapon. Stromtroopers and Scout Troopers on Endor also suffered head injuries from predatory Ewoks with rock axes.

If Stormtrooper helmets were supposed to prevent concussions from head injuries, the helmets clearly failed. These failures to protect Troopers from concussions were moments that ultimately resulted in the destruction of TWO Death Stars. If Imwe had not rescued Jyn Erso and Cassian Andor, the original Death Star plans would have never been stolen and provided to Rebels. Moreover, if carnivorous Ewoks with primitive axes had not overrun Stormtroopers on Endor, the Empire itself would not have fallen.

The issue on manufacturer liability would be whether Stormtrooper helmets were supposed to protect the wearer’s head from blunt force trauma. If the helmets were for communications, air filtration, and data management, then the intended use of the helmets were not for protection from concussive injuries. That being said, the armor is supposed to protect Stormtroopers from projectile weapons. Why does it fail when the wearer is hit with a stick?

Different Versions of Armor

The armor worn by Death Troopers, Scarif Stromtroopers, and Hovertank Pilots, all have similar armor that appears different in color and helmet design. Cold Assault Stromtrooper armor is the most dissimilar to other Stormtrooper armor.

There is no evidence of any of these armors failing to protect Troopers from blunt force trauma from melee weapons. However, these Troopers could sue the armor manufacturer under specific conditions. If same ballistic fabric and armor plating was used in all Imperial body armor, the Stormtroopers severing in different deployments could join in a potential class action. Additionally, if the Imperial armor manufacturer had the same warranty printed on each type of armor, then all could join in a prospective class action.

The Doctrine of Fear

The Empire’s concept of governance was through fear. Whether it was fear of the Emperor, fear of Darth Vader force choking an admiral, or fear from destroying civilian targets, the Empire ruled by terrifying others. Moreover, Imperials showed little regard for their own service members. Governor Tarkin ordered the destruction of the base on Scarif, instead of sending Stromtroopers and Tie Fighters to destroy the Alliance Fleet and ground forces. Given the low level regard for life, it is highly likely that Stormtrooper armor was not designed to protect the lives of Troopers, but to instill fear in the civilian population.

The Crimes Committed Stealing Elektra’s Dead Body

Josh Gilliland

August 27, 2017

The Hand is an ancient criminal organization that committed a primeval crime by exhuming the body of Elektra Natchios: Body Stealing.

The Hand exhumed the deceased body of Elektra Natchios from her grave at the end of Daredevil season 2 and expounded upon those events in The Defenders episode “Worst Behavior.” This was done without any legal authority. Under New York law, anyone who opens a grave with the intent to remove the body is guilt of a class D felony. N.Y. Pub. Health Law § 4218. The members of the Hand who opened the grave clearly violated this New York law.

Anyone who removes a body with the intent to collect a reward or for malice is guilty of “body stealing,” also a class D felony. N.Y. Pub. Health Law § 4216. The fact members of the Hand exhumed the body was done so for either a reward from Alexandra, arguably the Thumb for the Hand. Alternatively, exhuming the body with the intent of resurrecting Elektra to be the Black Sky would qualify as malice.

Alexandra receiving the dead body of Elektra would be a misdemeanor. N.Y. Pub. Health Law § 4217.

The law does not account for criminal conspiracies using a mystical substance to bring the dead back to life. The Hand arguably participated in an unauthorized autopsy with their black magic, but damages are hard to determine since the deceased returned to life. Perhaps if Matt Murdock or Stick had power of attorney over Elektra, they could sue for wrongful life for all of the mayhem caused by Elektra as the Black Sky.

San Francisco Comic Con Memories!

Josh Gilliland

August 26, 2017

We had an amazing time at San Francisco Comic Con. Thank you everyone who attended our panels and the show organizers. A big thank you to all of our panelists, including Circuit Judge John B. Owens from the Ninth Circuit Court of Appeals, Angela Storey, Michael Dennis, and Crystal Swanson. Below are the slides to the presentations and audio recorded at each panel.

Defending the Defenders, Friday, September 1, 600pm to 700pm, Room 2006

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The characters of Marvel’s Daredevil, Jessica Jones, Luke Cage, and Iron Fist all face different legal challenges. Could Matt Murdock be disbarred for being Daredevil? How accurate was the trial of the Punisher? What would lawyers need to prove the actual innocence of Luke Cage?

It was a blast to present with Angela Storey. Angie and I coached high school mock trial together. Angie is a true geek who loves comics and science fiction.

Jack Kirby on Civil Rights, Saturday, September 2, 830pm-930pm, Room 3022

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Mike Dennis is one of my best friends from law school. Presenting with Mike and his wife Crystal Swanson was a total joy. Both love comics and spent a lot of time researching the life of Jack Kirby. It was a lot of fun helping them shop for comic art for their home.

The Law Will be With You: Celebrating 40 Years of Star Wars Law, Sunday, September 3, 1130am to 1230pm, Room 2006

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Circuit Judge Owens is one of the most prolific geek judges on the bench today. He has a great love of Star Wars, comics, Game of Thrones, and all things science fiction. It was awesome for him to join us at SFCC to discuss Star Wars.

Can a Cross-Examination Result in an $11 Million Settlement?

Josh Gilliland

August 20, 2017

Matt Murdock scores a major victory in court with a crushing cross-examination of a witness that forced the defendants to settle for $11 million dollars in The Defenders episode “The H Word.” While that is very possible, it is not probable. Let’s explore why.

Murdock has expanded his practice from criminal defense to pro bono plaintiff’s product defect litigation. Many solo attorneys like Matt Murdock do both criminal and civil litigation, but normally a lawyer would focus on one practice area over the other.

The testifying defendant was addressed an expert witness, because Matt Murdock asked the witness in “his professional opinion” about a motor that was used in a new station. However, this witness was also the party, who was being question on business practices and not offering an expert opinion.

Matt Murdock questioned whether the Defendants were aware that the product used in their station was hazardous to children. The witness further testified that the product was attractive because it was strong, durable, and half the price of other products. When questioned on product safety, the Defendant answered that the subject motors were replaced after a safety report. Murdock impeached the witness with a record of delivery of another safety report that was sent three months earlier.

The trial procedure in this scene is somewhat muddled. First, the defense attorney would not object that their client was being asked to testify with unreasonable specificity. The proper objections would be lack of personal knowledge, assumes facts not in evidence, and the best evidence rule, since the witness was being questioned on a document that was not yet a trial exhibit. When the record was offered as an exhibit, it is a surprise that the Defendants apparently did not know about the trial exhibit, with Murdock asking the final question on what was worse, ignoring safety data or failing to provide the records to the court. Murdock then made the mistake of not letting the defendant answer the question. It would be extremely harmful to the Defendants if they admitted not producing records in discovery (which raises the issue how did the Plaintiffs get the documents and how were they admissible).

There are no surprises in lawsuits with documents not seen until trial. The records of delivery would have had been produced in discovery and included on the Plaintiff’s Trial Exhibit list. Moreover, even if the document had been discovered after the start of trial, the opposing side would have learned of it before cross-examination of the Defendant. This would not be a “gotcha moments” for the Defendants, other than how the trial exhibits were going to be used. If defense counsel could not recognize in pre-trial discovery that their client had constructive notice, perhaps actual notice, of the serious health risk of the motor to children, that would be malpractice. That case should have never seen the inside of a courtroom.

This extremely damning exchange would not have happened in a trial with a party, but in a deposition. The records of delivery had to be either produced from the Defendant, or from third-party discovery, specifically the company that sent the safety report, or the delivery service. Either way, the defendants would have been aware of the harmful documents that showed knowledge of health risks to children.

It is entirely possible defense counsel knew of the documents showing their client knew of the dangerous product, and yet advised them to go to trial anyway. Perhaps they believed the potential for damages in the millions was worth the risk of a trial. However, this strategy backfired in front of a jury. Settling for $11 million dollars must have been cheaper than risking a larger jury award and a protracted appeals process to either strike the award or lower it. Either way, the Defendants should prepare for multidistrict litigation in Federal court for similar cases.

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