Commandeering Vehicles to Fight Goat Demons

November 30, 2016

Could Sheriff Evie Barret commandeer a pick-up truck in the Stan Against Evil episode “Know, Know, Know, Your Goat”?

The current laws of New Hampshire do not specifically address police commandeering private vehicles. However, the state had allowed for it in the past. In a New Hampshire Supreme Court case, the Court discussed statutory authority for police vehicles, ambulances, and “private cars, when commandeered for use by the police,” were exempted from speed limits. See, Vandell v. Sanders, 155 A. 193, 194-95 (N.H. 1931), citing P. L., c. 103, s. 18.

New Hampshire law speaks to police powers and “vehicles when driven with due regard for safety under the direction of the peace officers in the chase or apprehension of violators of the law or of persons charged with or suspected of any such violation…” N.H. Rev. Stat. Ann. § 265:61.

Sheriff Barret did drive the commandeered pick-up with due regard of safety in order to apprehend suspected violators of the law. In this case, that suspected violator was a demon goat. There is a high likelihood that the mayor of Willard’s Mill would respond to demonic goats the same way that Mayor Larry Vaughn did to shark attacks in Jaws. There would be denial, ridicule, followed by a massive lawsuit by anyone who lost a loved one to demonic forces.

Thank You! We Made the ABA Journal Blawg 100 for Fourth Time!

Josh Gilliland

November 29, 2016

Jessica and I are deeply humbled to have made the ABA Journal Blawg 100 for the fourth time. We are honored people enjoy our blog.

Thank you to everyone who nominated us and the editors at the ABA Journal.

We work hard to have fun with the law and pop culture. There was no shortage of great topics to blog about, thanks to all of the comic book and science fiction movies/TV shows that came out in 2016.

We also have had a great time attending Cons this year. Here are just a few of the highlights:

We had an the Mock Trial of the Winter Soldier at San Diego Comic Fest;

Presented five panels at the first San Francisco Comic Con;

Presented at Long Beach Comic Con for the first time;

Moderated the Firefly panel at Alien Con with Jewel Staite; and

Presented at San Diego Comic Con with my brother on Supergirl and Star Trek with California Supreme Court Justice Mariano-Florentino Cuellar.

I want to thank all of our guest bloggers for their posts: Neel Chatterjee who helped us celebrate the 50th Anniversary of Star Trek; Sylvia La Rosa, Christina McAmis, Kean Zimmerman, and Jordon Huppert for honoring the 75th Anniversary of Captain America; Brad Blanchard for asking who owns the Millennium Falcon; Megan Smith analyzing the HIPAA violations in Doctor Strange; and Jack Yang who took on the data security issues in the X-Men. Stay tune for upcoming guest posts on Star Wars to celebrate Rogue One.

Thank you to all of our readers and the ABA Journal for making 2016 awesome.

From the Mock Trial of the Winter Soldier

About the ABA Journal:

The ABA Journal is the flagship magazine of the American Bar Association, and it is read by half of the nation’s 1.1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue. ABAJournal.com features breaking legal news updated as it happens by staff reporters throughout every business day, a directory of more than 4,000 lawyer blogs, and the full contents of the magazine.

About the ABA:

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

The Medical Experiments in Seagate Prison Were Totally Illegal

Josh Gilliland

November 27, 2016

Luke Cage gained his enhanced strength and bulletproof skin from an experimental treatment at Seagate prison after injuries sustained from a beating orchestrated by corrupt prison guards. See, Marvel’s Luke Cage on Netflix, Episode 4, “Step in the Arena.”

Forcing prisoners to fight and conducting medical experiments without their consent are massive Civil Rights violations. The Eighth Amendment prohibition of cruel and unusual punishment includes anything from “physically barbarous punishments” to punishments that are incompatible with “the evolving standards of decency that mark the progress of a maturing society.” See, Bailey v. Lally, 481 F. Supp. 203, 218-19 (D. Md. 1979), citing Gregg v. Georgia, 96 S. Ct. 2909 (joint opinion) and Trop v. Dulles, 78 S. Ct. 590.

Recording prisoners fighting for online videos is a barbaric punishment that is incompatible with any standard of decency. Subjecting those prisoners to medical experiments would be a second Civil Rights violation.

Individuals have a “liberty interest in their bodily integrity” that is protected by the Due Process Clause of the Fourteenth Amendment. In re Cincinnati Radiation Litig., 874 F. Supp. 796, 810-11 (S.D. Ohio 1995) and Albright v. Oliver, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994).

Courts take these rights serious. One case found that nonconsensual experiments with high doses of radiation supervised by military doctors that were performed by city physicians violated that right. Id.

Medical experiments on human beings were one of the dominating issues at the war crimes trials of the Nazis. The judgment from trial is known as the “Nuremberg Code.” The Code states the following on consent:

The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision. This latter element requires that before the acceptance of an affirmative decision by the experimental subject there should be made known to him the nature, duration, and purpose of the experiment; the method and means by which it is to be conducted; all inconveniences and hazards reasonably to be expected; and the effects upon his health and person which may possibly come from his participation in the experiment.

In re Cincinnati Radiation Litig., at *820, citing the “Nuremberg Code.”

Luke Cage clearly had his rights violated with being forced into fighting matches, threats, and being beaten. The medical experiment that saved his life is more complicated. Luke had been severely injured in a beating. Dr. Reva Connors (Luke’s future wife killed by Jessica Jones under the control of Kilgrave) took the dying Luke Cage to Dr. Noah Burstein’s lab for an experimental medical procedure.

Dr. Burstein did not attempt to get informed consent from Luke Cage on the medical experiment. Dr. Burstein had a personal duty to get Luke’s consent before engaging in the procedure. This could not be delegated to Dr. Reva Connors, as she was not performing the experiment. In re Cincinnati Radiation Litig., at *820.

Luke was in danger of dying, but was not incapacitated to give informed consent. Dr. Burstein could argue he acted in an emergency situation, however, that argument would be stronger if Luke had been unable to answer questions.

It is unlikely any of the prisoners at Seagate who were experimented on gave Dr. Burstein their consent. One prisoner experiment case had a multidisciplinary oversight committee composed of physicians and non-physicians, including professors of law, social work, pharmacology, and psychology. No such oversight was done at Seagate to vindicate prisoner rights. See, Bailey, at *213.

Seagage prison is a massive lawsuit waiting to happen in the Marvel Cinematic Universe. If only there was a fictional lawyer who could take the case…

Green Arrow Rebirth Guest Post for Exterro

Josh Gilliland

November 22, 2016

Check out for my guest post on the Exterro blog on the new Green Arrow Rebirth series!

Some people might think of comic books as flights of fancy filled with characters wielding supernatural powers to fight foes from other planets, and yes, that’s true. But there are other comics that, while still being imaginative fictions, ground themselves in the real world. Even in the world of Big Data and E-Discovery.

A great example of this is Green Arrow. The title character — who’s alter ego is Oliver Queen, CEO of Queen Industries — has no superhuman or special powers other than being an amazing archer with a lot of resources and a drive for social justice. In the latest iteration, Oliver Queen uses technology to his advantage when fighting crime in his home city of Seattle, and real-life elements that mirror our world – computer forensics, wire fraud, banking laws, even a DC version of Bitcoin (aptly named Lexcoin after Superman’s nemesis Lex Luthor) – show up in the stories.

I recently spoke with Green Arrow writer, Benjamin Percy, about his thoughts on this, and he said, “So much of our lives are presently online. Socially, financially, professionally — our tracks are everywhere. We can so easily end up violated or even…possessed, erased by hackers, viruses. Green Arrow is a comic that — more than most — taps into the zeitgeist. I’m channeling cultural anxieties onto the page, and it’s natural that electronic data and commerce will play into my storylines.”

For further analysis relating Percy’s narratives to the legal world, I asked Joshua Gilliland, Esq. — blogger for Bow Tie Law, and one of the two founding attorney bloggers for The Legal Geeks – to take a look at the latest story arc in Green Arrow: Rebirth. Here’s what he had to say:

Check out the Exterro blog for my analysis on Comic Book eDiscovery!

Are Risks of Spells Adequately Labeled in Doctor Strange?

Josh Gilliland

November 14, 2016

All of the books with spells in Doctor Strange have a dangerous commonality: All warnings on risks are after the spells.

Apparently no sorcerers ever sought legal advice. Most warnings are stated before someone takes a medication or engages in a high-risk activity. Consider the rules for drugs and medical devices:

Any drug or device is misbranded unless its labeling bears all of the following information:

(a) Adequate directions for use.

(b) Such adequate warnings against use in pathological conditions or by children where its use may be dangerous to health.

(c) Adequate warning against unsafe dosage or methods or duration of administration or application.

Warnings shall be in a manner and form as are necessary for the protection of users.

Cal. Health & Safety Code § 111375.

Magical warnings placed after spells could result in conditions dangerous to one’s health. The spells do give directions for adequate use, but warnings on possible risks do not appear until after a user starts casting the spell.

Casting spells are not like operating a lawnmower. A person who injured their own foot by running over it with a lawnmower was on notice of multiple warnings in the instruction book and on the lawnmower itself. See, Bell v. Montgomery Ward, 792 F. Supp. 500, 506 (W.D. La. 1992). Moreover, lawnmowers have spinning blades at high speed in order to cut grass. This makes the risk of a lawnmower obvious. A spell is not obvious of any dangerous intent of its normal use within the knowledge of a first-time user.

There is also danger in crossing realms without adequate warning. For example, public beaches require warnings if there are bacteriological dangers that pose a risk to public health. Cal. Health & Safety Code § 115915. There are no warnings on what could be on the other side of a portal opened by a sling ring.

A major theme in the current Doctor Strange comics is magic has a cost. The issue is whether there is adequate warning for what a spell can do. Placing warnings after spells would require the wizard who wrote the book to cast a costly spell to cover damages.

Would Doctor Strange Be Contractually Required to Save Doctor Doom’s Mom from Hell?

Josh Gilliland

November 5, 2016

The Doctor Strange and Doctor Doom graphic novel Triumph and Torment presented a complex legal issue: Doctor Strange owed Doctor Doom a “boon” for surviving a mystical challenge. Doctor Doom’s boon was for Doctor Strange to help Doom liberate his mother from Hell.

That…is a big favor.

A “boon” historically was “Unpaid services, rendered in kind or labor, without being fixed in amount or time, that some tenants owed to the landowner as a condition of tenancy.” See, Black’s Law Dictionary, 9^th Edition.

The Merriam-Webster dictionary defines a “boon” as “something pleasant or helpful: a benefit or advantage.”

Doctor Strange was bound to no ordinary boon, but an adhesion contract for his personal performance for a rescue mission from Hell. There are many types of contracts, but rescuing someone’s mom from the Devil takes specific performance to a new level (or low in going to Hell).

An “adhesion contract” is a type of contract that one party has no choice as to the terms and “adheres” to the agreement. The origins of these contracts are from life insurance contracts. See, Rory v. Cont’l Ins. Co., 473 Mich. 457, 478, 703 N.W.2d 23, 35-36 (2005) for a brief history. Moreover, personal performance contracts bind a specific individual, but not heirs or assignees, because there is no adequate substitute. See, Black’s Law Dictionary, 9^th Edition.

An adhesion contract is “judged by whether the party seeking to enforce the contract has used high pressure tactics or deceptive language in the contract and whether there is inequality of bargaining power between the parties.” Vuksanaj v. Quality Bldg. Serv. Corp., 2014 NY Slip Op 32175(U), ¶¶ 2-3 (Sup. Ct.), citing Morris v. Snappy Car Rental, Inc., 84 N.Y.2d 21, 30, 637 N.E.2d 253, 614 N.Y.S.2d 362 (1994)

New York courts will not order specific performance if “it will result in great hardship and injustice to one party, without any considerable gain or utility to the other, or in cases where the public interest would be prejudiced thereby.” Conger v. N.Y., W. S. & B. R. Co., 120 N.Y. 29, 32 (1890).

Doctor Strange had to “adhere” to the terms of Doctor Doom’s “boon” to rescue Doom’s mother. There does not appear to be high pressure tactics or deceptive language used by Doom at the time of the contract (while in Hell is a different story). While Doctor Strange is the Sorcerer Supreme, there arguably was no bargaining power in accepting Doom’s boon. However, Doom did not ask for Strange to grant him power to conquer the world, but merely free his mother from Mephisto’s version of Hell.

Cynthia von Doom has a claim as a third-party beneficiary to Doctor Doom’s “boon” with Doctor Strange. The late Cynthia could prove that the contract to rescue her from Hell was made for her benefit, thus she was a third-party beneficiary. Rosenheck v. Calcam Assocs., 649 N.Y.S.2d 247, 249 (App. Div. 1996). Many states allow contracts made expressly for the benefit of a third person can be enforced by that party. See, Cal. Civ. Code § 1559. However, since Cynthia was in Hell, she would have significant challenges finding legal representation to bring an action. Moreover, it is unlikely Hell has any courts would follow lex loci contractus in applying the laws of New York to the Doom-Strange boon.

The specific performance of literally going to Hell to rescue Doom’s mother sets a high bar for hardship. Saving someone’s soul from the Devil is beyond any court of equity in granting specific performance.

Doctor Doom’s “boon” for Doctor Strange has many issues with being unenforceable, because the nature of the personal performance requires going to Hell, to the unknown of being able to rescue Cynthia von Doom’s soul, and whether Doctor Strange is violating the Logan Act for working with Doctor Doom, or whether the United States has any export control licensing on magical spells to governments hostile to the United States.

Contract issues aside, Triumph and Torment is one Hell of a good story.

Can You Exhume a Body to Get a Magical Amulet?

Josh Gilliland

November 3, 2016

Stan Against Evil is a wacky fun horror comedy from the brilliant Dana Gould. John C. McGinley and Janet Varney star as the former and current sheriffs of a small New Hampshire town that burned 172 witches at the stake. Stan’s late wife hunted demons plaguing the town, keeping Stan from an early demise as sheriff.

Stan realized he had to exhume his wife’s body, because his daughter buried his wife with an amulet needed to read a book of spells to combat the demons. The legal issue, was Stan legally justified digging up his wife?

New Hampshire case law states:

In this jurisdiction it has been held that while a dead body “is not property in the ordinary sense of the term, it is regarded as property so far as to entitle the relatives to legal protection from unnecessary disturbance and wanton violation or invasion of its place of burial. The plaintiff, notwithstanding he is neither the owner of the soil of the cemetery nor of the remains of his deceased relatives interred there, may nevertheless be authorized to invoke protection against unnecessary desecration of their place of burial.”

Lavigne v. Wilkinson (1921) 80 N.H. 221, 222, citing Page v. Symonds, 63 N.H. 17, 20.

The law favors the “quiet of the grave.” There must be “good and substantial reasons” for the disinterment of a body. Kusky v. Laderbush (1950) 96 N.H. 286, 287, citing Currier v. Woodlawn Cemetery, 300 N.Y. 162.

Prior case law has held that “the right to have a dead body remain unmolested is not an absolute one; it must yield where it conflicts with the public good or where the demands of justice require such subordination.” Kusky, at 287, citing Silvia v. Helger, 67 A.2d at 28. This normally would mean determining the cause of death.

Stan could argue that retrieving the amulet was a “good and substantial” reason for exhuming his wife, because without the amulet, it was not possible to stop the demons threatening the town. As the undead witches in league with the devil is a public danger, Stan had a colorable argument for the disinterment his wife’s body (at least in 1692).

21^st Century case law does not speak to exhuming bodies for magical artifacts. A court would have to accept there was a supernatural threat in order to find “good and substantial” cause to permit the exhuming Stan’s wife.

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