Plaintiffs’ Motion
Plaintiffs_Motion_for_Premliniary_InjunctionGovernment Opposition
Defendant_Mutant_TRO_Opposition
It is not often that Contract Law saves the world, but when it does, it is a doctor conducting the negotiations.
Doctor Stephen Strange stopped Dormammu from destroying life as we know it on Earth by bargaining with him. The key terms included Dr. Strange would end the time loop that had trapped Dormammu in exchange for the safety of Earth. As an added term, Dormammu would accept Kaecilius and his Zealots into his Dark Dimension. The goal of Kaecilius’s plan was to ultimately bring Dormammu’s timeless Dark Dimension to Earth. Would that make Kaecilius a third-party beneficiary to Doctor Strange’s bargain with Dormammu?
Courts have weighed the issue of what are the rights a third person who benefits from a contract, but is neither the promisor nor promisee. The English view was that a third-party had no enforceable rights. See, John Edward Murray, Jr, Murray on Contracts, Third Edition, Copyright 1990, citing Vandepitte v. Preferred Acc. Ins. Corp., A.C., 70 (1933), Tweedle v. Atkinson, 1. B. & S. 393 [1861]; Bourne v. Mason, 1 Ventirs 6 [1669].
The “American” view of third-party beneficiaries was first definitively explained in Lawrence v. Fox 220 N.Y. 268 (1859). As the legal sorcerer Murray explained, Holly (Party A) loaned $300 to Fox (Party B) and told Fox that Holly owned $300 to Lawrence (Party C), who Fox agreed to pay back. Murray on Contracts, page 754, citing Lawrence v. Fox. Lawrence was not paid back, sued, and ultimately recovered, based on the principle that “where one person makes a promise to another for the benefit of a third person, the third person may maintain an action to enforce that promise.” page 755.
Dr. Strange’s bargain included a term that gave Kaecilius exactly what he wanted: timelessness without death in the Dark Dimension. Legally speaking, Kaecilius was a third-party beneficiary of Strange’s contract with Dormammu. Unfortunately for Kaecilius, he should have read the warning about the spell to go to the Dark Dimension.
The Supergirl episode “We Can Be Heroes,” showed Livewire having a very bad week. She was kidnaped from prison, held against her will, and experimented on to create super-villain-soldiers. Livewire complained to her mad scientist tormentor that she could sue him for copyright infringement. Livewire should seek legal counsel, because she has more than one legal claim.
Livewire can sue the state of California for negligence, because she was kidnapped from her own cell due to a massive security breach. The State’s negligence allowed a henchmen to falsely impersonate a prison guard, assault a real guard, free one inmate, assault a prison psychiatrist, and kidnap Livewire.
The prison’s negligence allowed an imposter to enter the prison. Under California law, a “…public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” Cal. Gov’t Code § 815.2(a).
It was the failure of the prison security system that allowed an imposter to enter the compound. If the security lapse was not the fault of any specific individual, a general theory of negligence pursuant to Cal. Civ. Code § 1714 could provide Livewire a means of recovery against the state, because of the lack of ordinary care in maintaining a secure prison allowed her to be harmed. “But for” the prison being breached, Livewire would not have been kidnapped and tortured.
The aptly named “Bad Science Man” by Mon-EL is also subject to civil liability for his intentional torts on Livewire. First, “BSM” had a criminal conspiracy to kidnap Livewire, which is the act of forcibly taking another person to another location under Cal. Penal Code § 207. Second, BSM then violated Livewire’s personal liberty by physically restraining her on a chair in a warehouse, which would be false imprisonment under Cal. Penal Code § 236. Third, BSM’s experiments to drain Livewire of power were done with the intent to cause her pain and great bodily injury, thus meeting the legal definition of torture under Cal. Penal Code § 206. Livewire could sue “Bad Science Man” for these willful acts pursuant to Cal. Civ. Code § 1714.
The State is likely the “deep pocket” for suing, because “Bad Science Man” did not appear to be well-funded. Regardless, an attorney would need to conduct their due diligence before bring any claims on Livewire’s behalf for the best litigation strategy.
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.
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
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.
Listen to Us on Stitcher
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.