SDCC 2018 After Action Report

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July 27, 2018

The 2018 San Diego Comic Con was the best we have ever had at a con. Our two Star Wars panels had 500 people attend, with excellent audience questions, and a standing ovation after our Mock Court Martial of Poe Dameron. We had a rapid-fire discussion of the legal issues in the Marvel Netflix shows, including an attendee who began her question with, “I go to all of your panels.” She was from New York and we are grateful to see people so interested in the practice of law.

Judges on Star Wars

A huge thank you to Circuit Judge John B. Owens, Magistrate Judge Stacie Beckerman, Magistrate Judge Mitch Dembin, CA Judge Carol Najera, and NY Judge Matthew Sciarrino for their legal analysis of The Last Jedi and Solo. The Judges all showed their geek cred with chambers photos of their Star Wars collectables to kick off the panel. We also had excellent audience questions, which are included on the panel recordings.

Our mission was community outreach, because the “law” can be extremely complex. However, there is no better foil than Star Wars to understand the law. Tune in to our panel to hear the many legal issues from The Last Jedi and Solo, covering the duty to rescue, negligence, Droid Rights, military tribunals, and more.

Defending the Defenders

The Marvel Netflix shows Daredevil, Jessica Jones, Luke Cage, Iron Fist, and The Defenders, are all overflowing with legal issues. CA Judge Carol Najera, NY Judge Matthew Sciarrino, Christine Peek, Jordon Huppert, Megan Hitchcock, and Thomas Harper, joined us for a deep dive into the law of the Defenders.

Creating a Mock Trial

A Star Wars mock trial needs witnesses who can testify to events. The Rebel Legion Sunrider Base had two outstanding volunteers to join our team. Marcus Holt and Rachel Williams are two amazing cosplayers who love their characters. Both learned their respective witness statements and practiced with their attorneys on how to do a direct examination. Additional practices were scheduled over videoconference on how to answer questions on cross-examination. Judges also assisted with mentoring on how be on the witness stand.

Poe Dameron Witness Statement

Following canon and staying true to the characters was pivotal in having a successful mock trial. Witness statements were prepared based on the film, with supplemental details from the book and Wookieepedia.

Statement of General Leia Organa

The attorneys decided to wear Resistance uniforms for the mock trial. The mother of one of the defense attorneys had years of experience making costumes for Renaissance fairs and volunteered to make the jackets. She did a stunning job with the guidelines from the Rebel Legion.

Mock Court Martial of Poe Dameron

We wanted to address the complex issues of Star Wars The Last Jedi to help fans find a resolution to the actions of Captain Poe Dameron. Star Wars aspires to the high ideas of heroes standing up to fascism, whether it was the Empire or First Order. Being a nation of laws, our disputes are resolved in courts. Those who are charged with a crime have the right to counsel and a fair trial.

Highly skilled trial attorneys were recruited to represent Poe Dameron and the Resistance in order for the case to be fully litigated. The “facts” of the underlining charges against Poe Dameron can be summarized as follows:

Insubordination when then Wing Commander Dameron disregarded General Leia Organa’s order, shut down his radio, and ordered the bomber squadron to attack the First Order Dreadnought Fulminatrix. All eight bombers and forty crewmembers were lost in the attack.

Mutiny when Captain Dameron conspired with Lieutenant Kaydel Ko Connix, Rose Tico, and Finn to organize a plan to infiltrate the First Order Mega-Class Star Dreadnought Supremacy without the knowledge of his commanding officers.

The end result of Captain Dameron’s mutiny was the transmission of Admiral Holdo’s plans to Finn and Rose, which allowed the information to ultimately fall into the hands of the First Order. The First Order used this information to shoot down numerous unarmed Resistance transports escaping the Raddus.

Captain Dameron’s attorneys argued a strong defense based on mistake of fact that Vice Admiral Holdo was a traitor. The Defense arguments invoked the Clone Troopers who followed Order 66 without question (who also have a strong insanity defense); the Clone Troopers of the 501^st who questioned the loyalty of General Krell and did not blindly follow orders that would have led to ruin; and looking to the namesake of the Raddus with the heroes of Rogue One for violating orders to steal the Death Star plans. Moreover, the Defense highlighted that Captain Dameron had witnessed civilians murdered by the First Order and was tortured by Kylo Ren days, if not hours, before the evacuation of D’Qar.

I thought the Defense could have carried the day with their argument. The attorneys argued with courage, resolve, and great empathy for Captain Dameron.

The Prosecution had a powerful case against Captain Dameron where General Leia Organa testified to the events around the evacuation of D’Qar and the escape from the Raddus. From the Prosecution’s opening statement to closing argument, there was no escaping the fact that Poe Dameron disregarded General Organa’s order to break off the attack on the First Order Dreadnought Fulminatrix. That attack resulted in the loss of entire bomber squadron and three X-wings.

The Prosecution attorneys did a masterful cross-examination of Captain Dameron, where he admitted to both disregarding orders and seizing control of the Raddus at gunpoint. The Prosecution drove home the loss of life that was a direct result of Captain Dameron disclosing Vice Admiral Holdo’s evacuation plan that was overheard by DJ and sold to the First Order. The Prosecution made clear it was Captain Dameron’s actions that cost the Resistance lives on two separate occasions.

Prosecution Cross-Examination of Captain Poe Dameron

Trials are the main way we resolve conflict. The justice system is the forum for wrongs to be righted. More importantly, our system is predicated on fundamental fairness for the accused to have a defense. In our mock trial, the defendant had attorneys with years of trial experience who had deep knowledge of Star Wars canon. The prosecution and defense both forcefully argued their case. Everyone put in substantial time preparing their witnesses and arguments. Job well done to all of the attorneys and witnesses for bringing this case to life.

We were extremely humbled by the positive reception to the mock trial. From everyone who live Tweeted the proceedings, to the standing ovation at the end, to the article in SyFy, thank you. We are glad you enjoyed the mock trial.

The Blade Runner Model, Part II: Liability and the Flying Car

By

Caesar Kalinowski IV

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July 20, 2018

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“Throw in some liability lawsuits, and flying cars are not just dangerous, but also obscenely expensive.” – James Oswald

To recap Part I from last week, flying cars are quickly moving from the realm of science fiction to reality as 15 different companies race to get the first model to market. Along with the promise of faster, traffic-free travel, a host of novel(ish) legal questions exist surrounding this new technology. Given the safety and liability issues, I believe the federal and state governments should adopt the “Blade Runner Model.” While I will lay out the exact structure of this policy at the end of this article, the basis of my argument is that the government should strictly limit and regulate who can use flying cars—at least initially.

As previously discussed, the Federal Aviation Administration (FAA) assuredly will control most aspects of flying car technology as it has the sole responsibility to “prescribe air traffic regulations in the flight of aircraft.” 49 U.S.C. § 40103(b)(2)(B). State governments, however, will definitely retain some powers related to this new air travel. So after considering the need for federal control over the safe and efficient rollout of this technology, the last factor weighing in favor of the Blade Runner Model exists in an area of control retained by the states: tort liability.

Unlike preemptive regulations meant to prevent accidents, tort liability involves a retroactive look at how injured plaintiffs or the victims’ estates can recover damages resulting from flying car accidents and misuse. I believe that strict liability will likely be applied in the event of non-intentional flying technology accidents because of the inherent danger involved with air travel and any new technology (especially in the early stages). Because implementing strict liability will force flying car manufacturers to pay for any accidents involving their product, these companies should also support a limited rollout of flying car use (meaning less payouts) under the Blade Runner model as well.

Don’t you just hate when your UberFlight driver doesn’t know the local airspace? Ugh. 3 stars.

Although the Federal Aviation Act and its implementing regulations generally purport to control all aspects of a vehicle’s inflight activities, see 49 U.S.C.A. § 40101 et seq., courts have held that the Act does “not indicate a clear and manifest congressional intent to preempt state law products liability claims [and] Congress has not created a federal standard of care for persons injured by defective airplanes[.]” Sikkelee v. Precision Airmotive Corp., 822 F.3d 680, 696 (3d Cir.), cert. denied sub nom. AVCO Corp. v. Sikkelee, 137 S. Ct. 495 (2016). Accordingly, state laws regarding liability are applied to address damages when an individual’s person or property is damaged in the aviation context. Id. Even in federal enclaves, Congress has mandated that “a right of action shall exist as though the place were under the jurisdiction of the State in which the place is located” and “the rights of the parties shall be governed by the law of the State in which the place is located.” 28 U.S.C. § 5001(a), (b).

So what standard of liability should apply to this new technology? Looking to the history of automobile and aviation liability in the U.S., we find our answer. In the early days of commercial automobile and air travel, accidents were much more frequent because as with any new technology, certain problems simply cannot be anticipated. See Speiser and Krause, Aviation Tort Law §§ 1:6-1:8, 8:44. Finding that there was “good reason to consider aviation ultrahazardous,” courts held that aviation-related accidents fell “into the category of blasting, of the storage of dynamite, of drilling for oil, of the escape of fire from trains, the peculiar dangers of each of which subject those engaged therein to liability without fault at common law.” Prentiss v. Nat’l Airlines, 112 F. Supp. 306, 312 (D.N.J. 1953); D’Anna v. United States, 181 F.2d 335, 337 (4th Cir. 1950) (“One who flies an aeroplane is opposing mechanical forces to the force of gravity and is engaged in an undertaking which is fraught with the gravest danger to persons and property beneath.”). Accordingly, airplane manufacturers were held to a strict liability standard.

Adopting the Restatement (Second) of Torts § 402A, states legislatures held these companies strictly liable when they sold “any product in a defective condition unreasonably dangerous to the user or consumer or to his property[.]” § 402A(1). Even if “the seller has exercised all possible care in the preparation and sale of his product,” § 402A(2)(a), the inherent danger of air travel weighed in favor of holding those companies strictly liable. See also § 520A (strict liability for accidents caused by aircraft on the ground). Although early vehicle manufacturers like Henry Ford fought this stringent standard, courts were quick to reject their arguments based on the “broad socio-economic policy of risk-spreading” that underlies the strict liability regime. Michael W. Wilcox, Strict Liability in Tort Applied to Both Automobile Manufacturer and Retailer, 48 Marq. L. Rev. 268, 269 (1964).

Applying this same standard to flying cars likewise makes sense. Early models of flying cars are likely to encounter software and mechanical issues that create similar ultrahazardous conditions during use. Manufacturers—always in a rush to mass-produce their newest technologies and reap profits—will obviously endeavor to make them as safe as possible; however, no amount of due diligence or testing will prevent at least some flying cars from falling out of the sky. Other considerations “include the unequal distribution of the benefits and risks of aviation between those in the air and those on the ground, the difficult and expensive burden of proof faced by the plaintiff in an aviation accident case, the ability of the aircraft owner to spread the financial risk through its enterprise or through insurance, and the high degree of harm that ensues, despite the exercise of due care, when an airplane crashes.” 73 A.L.R.4th 416. Recognizing (1) the various policies pertinent to early vehicular travel and (2) the need to pressure companies to create the safest product possible, states should quickly adopt strict liability statutes in anticipation of greater flying car usage.

Well, everyone knows Flying Cars land on vertipads. What this book presupposes is… maybe they don’t?

Early adoption of the strict liability standard will also give guidance to the insurance companies that will inevitably provide coverage for the flying vehicle manufactures. Clarification is certainly necessary as to whether a flying car is considered an aircraft or an automobile (in the state-specific insurance context) to address the scope and coverage of insurance before, during, and after the transition from road to sky. See Matthew G. Berard, Flying Cars: The Reconciliation of Aircraft and Automobile Insurance Policies, 47 Tort Trial & Ins. Prac. L.J. 781, 801 (2012). Without such clarification (which likely could be directed by federal regulation under the FAA’s congressional mandate), insurance companies may be hesitant to create comprehensive coverage schemes that are financially reasonable and adequately cover foreseeable and unforeseeable issues and accidents.

The federal government could also preempt the entire liability field, if it so chooses. Under that scenario, Congress should adopt something akin to the Montreal Convention, see 149 Cong. Rec. S10,870, which mandates that “[t]he carrier is liable for damage sustained in case of death or bodily injury of a passenger” during international air travel. Art. 17(1). This makes perfect sense in the context of flying cars, which are not restricted to staying on the road and can presumably avoid border crossings unlike conventional automobiles. Furthermore, federal control over liability would streamline the entire flying car regulatory scheme with liability and safety measures included in one comprehensive statute.

The most obvious upgrade for police vehicles: Gatling guns.

Applying the Blade Runner Model in the United States

Taking into account these safety, efficiency, and liability issues inherent in the implementation and integration of flying cars, the Blade Runner Model makes the most sense. With federal safety regulations and a strict liability regime in place, state and federal government emergency flying vehicles would be the only ones initially allowed to navigate the streets and airspace. Once safety and technical issues have been sufficiently addressed, use of flying vehicles for mass public transit and commercial product transport could slowly introduced. Only after these major issues have been definitively sorted out by the government during this initial period should we then allow private vehicles to take flight. Otherwise, the rollout of flying cars is likely to be simply too costly, noisy, and dangerous to justify the value they represent.

The Blade Runner Model: A Policy Rollout for Flying Cars

By

Caesar Kalinowski IV

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July 13, 2018

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“Mark my word. A combination airplane and motor car is coming. You may smile. But it will come.” – Henry Ford, 1940.

Throughout my life, I have lived in Chicago, Los Angeles, and Seattle—three of the top ten worst cities for traffic. As a result, I have spent more hours stuck in gridlock traffic than I care to admit. Unsurprisingly, I think the advent of the flying car cannot come soon enough. Watch almost any new sci-fi show or movie today featuring a flying car and you will know why: there’s never any traffic in the sky. Save a few outliers like The Fifth Element, modern sci-fi generally shows flying cars being driven only by the police or the uber-wealthy. So despite my strong desire to skip the I-5 parking lot on a Friday afternoon, I think major restrictions on flying car accessibility and travel should be implemented in what I’ll dub “The Blade Runner Model.”

First and foremost, it’s important to lay out the realities of actual flying car use versus what sci-fi presents us. As others have pointed out, “[i]n order for flying cars to be accepted as vehicles for urban mobility, they need to be able to take off and land without the need for a runway amidst the congested urban landscape.” A flying car’s Vertical Take-Off and Landing (VTOL) capability, reminiscent of the Harrier Jump Jet, is really the only feasible way to enable flying cars to be used in cities that feature increasingly crowded streets and public spaces. And while the idea of manually flying a car around Seattle’s iconic Space Needle is certainly appealing, the initial safety data on self-driving cars all but demands that driverless technology be required in all flying cars (at least in urban settings). I mean, driving a normal vehicle is dangerous enough without the possibility of plummeting hundreds of feet to one’s fiery demise.

Because driving in that traffic looks fun. Not.

But who should get the privilege of ascending above the street-level fracas of horns and fender benders? If we watch the flying cars in Blade Runner—colloquially known as “spinners”—I think we have our answer. In both the original and the sequel, spinners seemingly are used by law enforcement and government exclusively. Hear me out. Despite the population explosion necessitating the exploration of off-world colonies and the obvious viability of flying cars, the streets of 2019 Los Angeles are packed with traditional cars but the skies are eerily empty. Why is that? I believe the answer lies in two distinct considerations that the United States should strongly contemplate as flying cars become a reality: first, the Constitutional authority and responsibility of the federal government in implementing nationwide regulation and second, the dangerousness of operation and cost of liability.

The Federal Government Rules the Airspace

Normally, state governments have the inherent law enforcement authority to regulate the licensing and safety of citizens traveling by vehicle within its borders. See Hendrick v. State of Maryland, 235 U.S. 610, 622 (1915). The Constitution’s Supremacy Clause, U.S. Const., Art. VI, Cl. 2, however, invalidates state laws that “interfere with or are contrary to, the laws of [C]ongress.” Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23 (1824). Even when “Congress has not enacted an explicit preemption clause, state authority may still be displaced if an intent to preempt is ‘implicitly contained in (the federal statute’s) structure and purpose.’” San Diego Unified Port Dist. v. Gianturco, 651 F.2d 1306, 1310 (9th Cir. 1981) (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)).

Note the absent private vehicles, because apparently only the police in the Old World get to be distracted by 50-story tall Japanese women.

Accordingly, the Supreme Court and Congress have effectively held that the entire field of aviation is preempted by federal law. See City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 639 (1973); 49 U.S.C. § 40103(a)(1). As a result, the Federal Aviation Administration (“FAA”) has the sole responsibility to “prescribe air traffic regulations in the flight of aircraft (including regulations on safe altitudes) for . . . protecting individuals and property on the ground.” Skysign Int’l, Inc. v. City & Cty. of Honolulu, 276 F.3d 1109, 1117 (9th Cir. 2002) (quoting 49 U.S.C. § 40103(b)(2)(B)). This makes sense, because it “would be utterly impracticable” for states to bear the burden of coordinating and unifying the vast regulations needed. See Allegheny Airlines v. Vill. of Cedarhurst, 238 F.2d 812, 816–17 (2d Cir. 1956); Hoagland v. Town of Clear Lake, Ind., 415 F.3d 693, 698 (7th Cir. 2005) (“It would be unmanageable—say nothing of terrifying—to have local control of flight routes or of flight times.”). The FAA has taken on this mission, even recently approving an exemption for one company’s “Roadable Aircraft” test as a Light Sport Aircraft, requiring the “drivers” to have the applicable licenses and safety mechanisms in place.

That’s not to say that states would have no power whatsoever over the burgeoning flying car industry. The aforementioned urban landscape would probably necessitate designating takeoff and landing zones for flying car use during the most hazardous portion of the flight. And courts have consistently ruled that local land use, even use directly related to aviation, falls well within the exception to federal aviation preemption. See Gustafson v. City of Lake Angelus, 76 F.3d 778, 789 (6th Cir. 1996) (seaplane landing regulations not preempted); Condor Corp. v. City of St. Paul, 912 F.2d 215, 219 (8th Cir. 1990) (heliport regulation not preempted). Certain other issues related to zoning, trespass, and privacy would likely also fall within the states’ powers. See State and Local Regulation of Unmanned Aircraft System (UAS) Fact Sheet, FAA Office of the Chief Counsel, at https://www.faa.gov/uas/resources/uas_regulations_policy/media/uas_fact_sheet_final.pdf.

Landing in a back alley … because that seems safe.

Because it has the inherent and unilateral authority to do so and even though every “citizen of the United States has a public right of transit through the navigable airspace,” 49 U.S.C. § 40103(a)(2), the FAA (after some handy statutory amendment) should still restrict flying car travel to emergency and government personnel only. First, the rollout of flying cars is going to be fraught with danger. Like any new technology, we aren’t even aware of the problems likely to be encountered by flying cars in the air. From a simple safety standpoint, the FAA should try to limit the chances of in-air collisions or catastrophic failures by reducing the number of vehicles in the air. It would also give the companies involved a chance to work out the first generation bugs in the technology.

Second, the delay of public implementation would give the state and federal governments time to cope with an entirely new means of travel. Local and state law enforcement would need to entirely revamp their approach to traffic control and criminal pursuit. Landing zones, building flight path obstructions, and land-based servicing facilities would need time to be considered and implemented. Put a different way, there’s simply too many logistical issues that need to be worked out before thousands of private flying cars dot the sky. Maybe once the initial issues are worked out in government-owned and -operated emergency and transport vehicles, then larger corporations—with deep pockets and cautious boardrooms—could begin using this technology to move freight and incrementally increase airspace traffic.

Larry Page testing out Google’s first flying car. Oh the majesty.

Last, the issue of financial liability weighs heavily in favor of strict restrictions on flying cars initially. For an exploration of that issue, however, you’ll have to check back next week for Part II of the Blade Runner Model.

Was Ant-Man’s Plea Agreement Valid?

By

Josh Gilliland

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July 11, 2018

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When we first see Scott Lang in Ant-Man and the Wasp, he is under house arrest for his participation in the events seen in Captain America Civil War. Scott entered a plea deal for violating the Sokovia Accords by siding with Captain America for the battle at the Leipzig Airport. Scott had worn an ankle bracelet for nearly two years and was days away from his sentence ending. If he violated his plea agreement, he would go to Federal prison (most likely the Raft) for 20 years.

The Supreme Court has held that the Constitution requiress that a defendant may only enter a guilty plea that is “voluntary” and that the defendant must make related waivers “knowingly, intelligently, [and] with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970).

Scott’s plea agreement appeared to be “a conditional plea agreement that has two possible binding outcomes, one that results from the defendant’s compliance with the conditions of the plea agreement and one that is triggered by his violation of a condition of the agreement.” Petaway v. Lantz, 2010 U.S. Dist. LEXIS 114053, at *1-3 (D. Conn. Oct. 27, 2010). In Scott’s case, leaving the house, or any contact with Hank or Hope Pym, would result in a 20-year prison sentence.

The Lang Plea Agreement would have to been entered under Federal Rules of Criminal Procedure Rule 11(c). This agreement had to be negotiated by a Federal prosecutor and a defense attorney or by Scott proceeding pro se. Fed Rules Crim Proc R 11(c)(1). The parties had to agree to a specific sentence for the disposition of Scott’s case.

While there could have been valid reasons for Scott to select to go with a plea deal, there are open questions. First, it appeared Captain America’s Avengers were imprisoned on the Raft with serious Constitutional violations, such as being denied the right to an attorney, the Writ of Habeas Corpus, or even a trial. As such, there is a high likelihood the Sokovia Accords are Unconstitutional, so entering a plea agreement without a provision to challenge the Constitutionality of the Sokovia Accords as part of the plea would have been irresponsible for any attorney to recommend to Scott.

If Scott was denied the right to counsel, and forced to take a plea deal on a submarine prison ship without the benefit of a lawyer to advice Scott of his rights, the entire plea agreement would be a gross violation of Scott’s civil rights. There would be questions whether the plea was voluntary or that Scott understood what he was giving up with a guilty plea. Given Scott’s propensity to do the right thing, even at great personal risk, Scott’s case could have been the one to challenge the Constitutionality of the Sokovia Accords. The fact both Ant-Man and Hawkeye opted to not fight a treaty and corresponding laws that cause mass civil rights violations is a disappointment at best or attorney malpractice at worse.

Assuming the charges for violating the Sokovia Accords were valid, there is the issue whether a violation of house arrest would warrant 20-years in Federal prison. If Scott understood the terms of the plea agreement, then it would likely be valid. However, there are still unanswered questions on whether Scott was actually represented by counsel or if he tried challenging the Constitutionality of the Sokovia Accords.

Defending the Defenders at San Diego Comic Con

By

Josh Gilliland

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July 7, 2018

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Our third panel at San Diego Comic Con 2018 is a deep dive into the many legal issues of the Marvel Netflix shows with Defending the Defenders. Join judges and lawyers as they take on attorney ethics, trial advocacy, the insanity defense, and more from the Marvel Netflix’s Daredevil, Jessica Jones, Luke Cage, Iron Fist, The Defenders, and the Punisher at Comic Con.

Defending the Defenders, Saturday 7/21/18, 7:30p.m. – 8:30p.m., Room: 26AB

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? Could someone who was Kilgrave’d argue the insanity defense? What would lawyers need to prove the actual innocence of Luke Cage? Could Danny Rand reclaim his father’s company after being presumed dead for 15 years? Find these answers and more at Defending the Defenders.

Panelists include CA Judge Carol Najera, NY Judge Matthew Sciarrino, Christine Peek, Jordon Huppert, Megan Hitchcock, Thomas Harper, and moderated by Joshua Gilliland.

The Law Strikes Back at San Diego Comic Con!

By

Josh Gilliland

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July 6, 2018

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The Legal Geeks are returning to San Diego Comic Con with TWO Star Wars panels on July 20^th. We are honored to share our love for Star Wars on the 50^th Anniversary of the Moon Landing. Our panels this year are Judges on the Law of the Last Jedi and Solo and Star Wars Mock Trial: The Court-Martial of Poe Dameron. We are extremely thankful for being selected this year with two Friday panels and a third on Saturday. Below please find our Friday panel information:

Judges on the Law of the Last Jedi and Solo, 3:00p.m. – 4:00p.m., Room: 7AB

Star Wars and the Law go together like Han Solo and Chewbacca. Join our panel of Judges for a discussion on the legal issues from The Last Jedi, Solo, and unexplored regions from the Outer Rim. Did Luke Skywalker have a legal obligation to save the galaxy from the First Order? What is the legality of underground Droid Fights? Could the Caretakers sue Rey for dropping a boulder on their cart? Was Han right when he first shot first? Find out when court is in session with Circuit Judge John B. Owens of the Ninth Circuit Court of Appeals, Magistrate Judge Stacie Beckerman, Magistrate Judge Mitch Dembin, CA Judge Carol Najera, NY Judge Matthew Sciarrino, and Paul Grewal (Former Magistrate Judge and now Deputy General Counsel and VP of Litigation at Facebook). Moderated by attorneys Jessica Mederson and Joshua Gilliland of The Legal Geeks.

Star Wars Mock Trial: The Court-Martial of Poe Dameron, 8:00p.m. – 9:00p.m., Room: 7AB

The Legal Geeks and the Rebel Legion Sunrider Base present the mock court-martial of everyone’s favorite X-Wing ace, Poe Dameron. Based on the events of The Last Jedi, Poe stands accused of disobeying General Leia Organa and leading a mutiny aboard the Resistance flagship Raddus against Vice Admiral Amilyn Holdo. Lawyers for the prosecution and defense, including a U.S. Army JAG attorney, will take on Poe’s case in front of United States Magistrate Judge Mitch Dembin. Participating attorneys include Steve Chu, Thomas Harper, Christine Peek, and Megan Hitchcock. Rebel Legion members Rachel Williams will be General Leia Organa and Marcus Holt as Poe Dameron.

Can Law Find a Way to Save the Dinosaurs of Jurassic World?

By

Josh Gilliland

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July 5, 2018

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Any Court will take judicial notice that anyone who would leave a brachiosaurus to die in a volcano is an inhuman monster who is undeserving of love [expert testimony would be needed to determine why they have no hearts, such as they weren’t hugged by the mother in childhood]. Sure, adopting a rescue brachiosaurus would be grossly impractical, but the same is true of white rhinos, and we want them to live. Practicalities aside, are the dinosaurs in Jurassic World Fallen Kingdom a protected by Endangered Species or an Invasive Species?

Are Genetically Created Dinosaurs an Endangered Species?

The law defines a “species” as “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” 16 U.S. CODE § 1532(16). The dinosaurs of Jurassic World are wildlife, but there is a question whether they interbreed in order to reproduce. If all dinosaurs are created by the cunning and well dressed Dr. Henry Wu, they technically do not meet the plain text of the Endangered Species Act. However, if they do breed in adulthood, they arguably are a “species” even if originally created in a lab.

The test to determine whether a species is endangered asks: Is the species “in danger of extinction throughout all or a significant portion of its range.” 16 U.S. CODE § 1532(6). Moreover, a species can be considered “endangered” because of “natural or manmade factors affecting its continued existence.” 16 USCS § 1533(a)(1)(E).

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.” 16 U.S. CODE § 1532(20); Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1202 (D.C. Cir. 2013).

The volcano on Isla Nublar had become active and was predicted to have a cataclysmic eruption. Nothing says species “in danger of extinction throughout all or a significant portion of its range,” like hot lava flooding over an island. Even though dinosaurs are endangered, that does not create an independent duty to any country to mount a rescue mission to evacuate them from Isla Nublar. Moreover, rescuing dinosaurs could create another danger: Invasive Species.

Protecting Humans from Invasive Species

The danger of invasive species is a real one faced in the United States, from pythons in Florida to zebra mussels in the Great Lakes. Congress described the danger as follows:

When environmental conditions are favorable, nonindigenous species become established, may compete with or prey upon native species of plants, fish, and wildlife, may carry diseases or parasites that affect native species, and may disrupt the aquatic environment and economy of affected nearshore areas;

16 USCS section 4701(a)(2).

Pterodactyls picking off children in backyards or Utahraptors snacking on neighborhood pets might not have been the original dangers envisioned by Congress with preventing invasive species from entering ecosystems, but the laws clearly are in place to prevent such environmental disruption by dinosaurs introduced (or re-introduced) to the United States.

Presidential Executive Order 13112 (February 3, 1999) states that Invasive Species Are Not Protected by the Endangered Species Act. Federal agencies are to prevent the introduction of invasive species and “respond rapidly” to control the populations of invasive species. Subsections (i) and (ii). Moreover, the Government is to “provide for restoration of native species and habitat conditions in ecosystems that have been invaded.” Subsection (iv). Furthermore, Federal Agencies are charged with promoting “public education on invasive species and the means to address them.” Subsection (vi).

The Federal Government’s response to a dozen plus dinosaurs being introduced in California would need to be switch. Large predators such as a Tyrannosaurus Rex would either need to be exterminated by the military or somehow incapacitated and transferred to a special wildlife reserve, ideally off the US mainland. Dinosaurs would immediately upset the ecosystem, adding human beings as ready to serve meals. Large herbivores would ne extremely adorable, but disrupt the agricultural economy of California. Slow grazing Triceratops or Ankylosaurus could wipe out farms in the Central Valley. While exterminating such creatures would be the moral equivalent of murdering Golden Retrievers, the introduction of large herbivores would disrupt the economy, cause the loss of property, and possibly risk lives. Or they could be super cute and loyal. If the latter, farmers would figure out for life to find a way to coexist. If the former, expect Fish and Game to look more like Special Forces with anti-tank weapons to remediate dinosaur infestations.

Dinosaur Liability on Your Property

The mansion of Benjamin Lockwood served as an auction house for buyers of dinosaurs imported to California. Disregarding the fact a cargo ship could travel to California within 24 hours (which would require the ship to cross 4,300+ miles of ocean at a speed of 181.5 miles per hour or 157.788706 Knots), there are serious liability issues for those injured by dinosaurs. Moreover, the Pachycephalosaurus in the room is it is illegal to import 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). Furthermore, 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). Cruising straight to a castle in Northern California with a ship full of dinosaurs that could eat, step on, or cause other blunt trauma to human beings, would violate US laws on dangerous wild animals entering the country.

Numerous auction attendees were eaten or maimed by dinosaurs at Lockwood manor. One of the few California cases where a guest was injured by an animal at a residence, a business or a hotel/motel was over a spider bite. Brunelle v. Signore, 215 Cal. App. 3d 122, 127 (1989). The Brunelle Court explained that in order for an owner of a private residence to have a duty to protect guests from spider bites, the owner must: 1) there must be specific knowledge the insect or sider is indigenous to the area; 2) the homeowner has knowledge that a specific harmful insect is prevalent in the area where his residence is located; 3) the homeowner knows the harmful inspect is inside or outside the home; and (4) either the homeowner of injured guest had seen the specific insect that bit the guest either before or after the bite occurred. Brunelle, at *129-30.

Eli Mills invited auction attendees to the Lockwood estate for the purpose of buying dangerous animals to be used in war or private big game hunting. The dangers of the dinosaurs were self-evident, given the known lethal abilities of the creatures, the dinosaurs were kept in cages to prevent injury, and it was established attendees knew of the dinosaurs there, as did Mills. As such, the entire auction of illegally imported wild animals would make Eli Mills strictly liable for all injuries. There is an argument Benjamin Lockwood’s estate in probate would not be liable, because Mills had breached his scope of employment in his management of Lockwood’s affairs.

Compassionate Californians who try rescuing dinosaurs should be warned that a “wild animal is presumed to be vicious and since the owner of such animal…is an insurer against the acts of the animal to anyone who is injured…” Baugh v. Beatty, 91 Cal. App. 2d 786, 791, (1949) (case involving an attack by a chimpanzee). Anyone who owns a “rescue dinosaur” that injures another person would be strictly liable for any damages caused by said dinosaur. If pet dinosaurs became an issue, states likely would classify them as exotic pets that are dangerous wild animals (like a ferret with rabies) and order the animals destroyed. (See, Raynor v. Maryland Dep’t of Health & Mental Hygiene, 110 Md. App. 165, 182 (Md. Ct. Spec. App. 1996)).

Federal Agencies would have a massive PSA campaign pursuant to Executive Order 13112 on the dangers of adopting dinosaurs and how to avoid injury, such as how not to be eaten by a Allosaurus while jogging, don’t try to ride a Stegosaurus, and high students should not do the Compsognathus saliva challenge.

Law Finds a Way

The purpose of law is to protect people from wrongs. Laws hold civil societies together. When people discover a situation where injuries happen, laws are enacted to prevent future harm. In the case of genetically created dinosaurs, laws would be enacted at the Federal and state levels to protect both human life, and the dinosaurs, to ensure both could live free of injury. That might not be an exciting movie, but law would find a law.