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Rebel Terrorists? The Legality of Blowing Up Two Death Stars

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You Rebel scum. The poor Galactic Empire always gets painted as the murderous bad guys in Star Wars. But from a certain point of view, one can sort of empathize with the Emperor’s legions in their collective anger towards the Rebels. After all, Alliance forces obliterated not one but two Death Stars, killing over 2 million Imperials in the process.

Those were men, women, and dianogas with families, many of whom likely joined the Empire out of a wholly non-evil desire to serve the galaxy. That kind of wholesale destruction begs the question of whether the Rebels cemented themselves as the biggest terrorists in the galaxy by unlawfully blowing up both Death Stars.

Valiant Imperial aces rush to protect their home against the radical Rebel attackers.

Before we talk about all the personnel aboard, lets consider whether both Death Stars were lawful military objectives themselves. Under the law of armed conflict not everything can be attacked at will—certain places and persons are legally protected from attack. For example, the Geneva Conventions forbids intentional attacks civilians or religious and cultural sites. Additional Protocol I to the Geneva Conventions defines military objectives as “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction…in the circumstances ruling at the time, offers a definite military advantage.”

Somewhere aboard the Death Star, Admiral Motti is yelling “BOOM! HEY VADER DID YOU SEE THAT—WHOSE POWER IS INSIGNIFICANT NOW?!”

Unfortunately for the Empire, both Death Stars fit that bill neatly and were therefore valid military objectives. The Death Stars were not designed to be floating research labs or peaceful exploration vessels. Instead, both were purpose-built military doomsday lasers intended to cement the Empire’s control over the galaxy. From wiping out Alderaan to destroying massive Rebel Mon Calamari cruisers in a single shot, the destructive power of the Death Stars significantly contributed to military action.

In the wake of Jedha, Scarif, and Alderaan, the first Death Star proved itself as a weapon unmatched by anything in the fledgling Rebel arsenal. The weapon threatened the very existence of the Alliance, not to mention thousands of innocent people across the galaxy. Destroying it therefore offered an absolute military advantage to the Rebels. Doing so would not only neutralize the most terrifying weapon the galaxy had ever seen, but it would also eliminate a tremendous amount of other enemy equipment and personnel.

Let’s also not forget that at the time of the Rebel attack, the first Death Star was not on some mercy mission to Yavin. It was there to, as Tarkin so eloquently put it, crush the Rebellion in one swift stroke, thereby ending the galactic civil war. Given the threat of imminent destruction, Rebel forces had an absolute right to act in self-defense and attack the Death Star. Even though the Rebels were initially on the offensive against the second Death Star, they had a similar right to self-defense once it started reducing the Rebel fleet to ash.

The Emperor’s presence on the second Death Star was an added enticement for the Rebels. As the leader of the Galactic Empire and commander-in-chief of its military forces, the Alliance rightly recognized that killing the Emperor would grant them an undeniable military advantage. Given his total control over Imperial forces, his death would likely decapitate the Empire and send its military into chaos and disarray. Therefore, there is no question that both Death Stars were valid military targets.

Alas, maybe Tarkin would have taken Chief Bast more seriously if he reminded him that they were standing on a gigantic valid military target.

Now what about those millions of poor Imperial souls who lost their lives to the Rebels’ treachery? Sadly, even though most of them didn’t even fire a shot, the throngs of Stormtroopers, officers, and other military personnel were perfectly legal targets.

The law of war dictates that only combatants or those directly participating in hostilities may be targeted. Combatants include anyone engaging in hostilities in an armed conflict on behalf of a party to the conflict. Imperials aboard both Death Stars were combatants by virtue of the fact that they were uniformed soldiers of the Empire. Imperial troops aboard the Death Stars may not have been leaning out of windows actively firing their blasters at Rebel ships, but nevertheless their status as Imperial soldiers effectively painted a bullseye on their backs. That means that it was perfectly legal for the Rebels to target every uniformed Imperial, whether an ace TIE pilot or stormtrooper on sanitation detail (sorry, Finn) aboard both Death Stars.

Don’t tell the Imperial propagandists, but the Rebels acted perfectly within the law of war when they destroyed both Death Stars. While the destruction of both battle stations led to a sobering loss of life, at least it made for a great fireworks show.

 

Did the First Order Prepare an Environmental Impact Statement for Starkiller Base?

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The Dark Side is known for raw power, not paperwork. In preparing to construct the ill-fated Starkiller Base, did the First Order prepare any sort of Environmental Impact Statement prior to turning the planet into a weapon?

Starkiller_Base_Approved_EIS

Requirements for Environmental Impact Statements

By way of comparison, and in no way comparing the First Order to the current EPA, Federal agencies undertaking a project that can significantly affect “the quality of the human environment,” must prepare a detailed statement on:

(i) The environmental impact of the proposed action,

(ii) Any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) Alternatives to the proposed action,

(iv) The relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and

(v) Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

42 U.S.C.S. § 4332.

Environmental Impact Statements (EIS) must be more than a checklist of assurances and alternatives. An EIS must indicate the agency undertook searching, realistic analysis of hazards, and candidly address those concerns. Foundation on Economic Trends v Weinberger 610 F Supp 829 (1985, DC Dist Col).

Courts review EIS to insure that the government took a “hard look” at possible environmental consequences, not highly speculative consequences. ESI’s will be approved if the document “adequately discloses potential impacts of project given information on hand and gives decision makers enough information so that intelligent decision can be made whether to proceed with project.” Enos v Marsh 616 F Supp 32, (1984, DC Hawaii), affirmed 769 F2d 1363, (1985, CA9 Hawaii).

Did General Armitage Hux take a “hard look” at the possible environmental consequences of turning a planet into a Super Weapon? Most likely not. Digging a trench across the equatorial axis of a planet that was visible from space, meant that thousands of miles of the planet had been excavated. How many indigenous animals had their habitats destroyed as entire continents were unearthed?

Weaponizing the power of a star through a planet sounds like a high risk activity. Any system failure could either do massive damage to the planet or destroy it. Furthermore, did the First Order consider that the failure of the Super Weapon oscillator could result in the destruction of the planet? Did they consider such a failure as a speculative consequence and not a possible one if the oscillator was destroyed? Given the fact the planet had a defensive shield, it appears the First Order took this risk as a possible one.

The First Order clearly did not have any interest in protecting the environment on Starkiller Base. The planet was a means to an end to execute a Neo-Doctrine of Fear. While the late Grand Moff Tarkin would have appreciated the vision, the First Order did not account for any adverse environmental effects of a planetary weapons system.

The Legal Geeks Last Jedi Countdown

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That euphoric feeling you have right about now isn’t from death sticks—it’s because we’re only a few days out from THE LAST JEDI.

Starting Sunday, December 10th, join The Legal Geeks contributor and resident hopeless Star Wars addict Thomas Harper for a series of daily new Star Wars articles counting down the last days before Rey, Finn, Luke, Leia, and the rest of the gang finally return.

First Amendment Right to Pass out Pamphlets

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The character Lewis Wilson in Marvel’s The Punisher episode “Judas Goat,” was arrested on state courthouse steps for passing out pamphlets. The arresting officer questioned whether Wilson was protesting without a permit before falsely stating Wilson had gone for the officer’s gun. Let’s take aim at the civil rights violations…

Pamphleteering is a Protected First Amendment Activity 

Passing out pamphlets and one-on-one communications are expressly protected First Amendment activities. McCullen v. Coakley, 134 S. Ct. 2518, 2536 (2014). The United States Supreme Court has stated that passing out pamphlets “is the essence of First Amendment expression.” McCullen, at 2536, citing McIntyre v. Ohio Elections Comm’n, 115 S. Ct. 1511 (1995).

The issue for Wilson is whether the courthouse steps were a “traditional public forum” where he could pass out his pamphlets. A “traditional public forum” are places such as parks and sidewalks, where people can assemble for communication and public questions. Hague v. Comm. for Indus. Org., 307 U.S. 496, 515, 59 S. Ct. 954, 83 L. Ed. 1423 (1939).

On the Courthouse Steps 

The First Amendment gives people the right to ask government officials questions on courthouse steps, even though there isn’t a right to an answer for the question. Gonzalez v. Morse, 2017 U.S. Dist. LEXIS 168217, at *4-5 (E.D. Cal. Oct. 10, 2017). Furthermore, in a case where the Klan had a permit to speak on the steps to a courthouse, the Court noted that counter-protesters could have spoken against the Klan after the Klan’s event on the courthouse steps or the sidewalk during the rally. This dicta has no mention of the counter-protesters getting a permit for the steps. Grider v. Abramson, 994 F. Supp. 840, 848 (W.D. Ky. 1998). Moreover, there are cases where courthouse steps were opened up for public events, sometimes without permission from the county. In such cases the county could not deny use of the courthouse steps based on the message of the speakers. Higher Soc’y of Ind., Inc. v. Tippecanoe Cty., 223 F. Supp. 3d 764, 772 (N.D. Ind. 2016).

Pamphleteers do not have a First Amendment Right to distribute information in the lobby of courthouses. Braun v. Baldwin, 346 F.3d 761, 764 (7th Cir. 2003). Moreover, in a highly protected First Amendment case, pamphleteers did not have a right to target court employees at the courthouse entrance with their leaflets. See, Verlo v. Martinez, 2017 U.S. Dist. LEXIS 117418 (D. Colo. July 27, 2017).

Permit Required for Pamphlets? 

The sidewalk connecting to the courthouse steps definitely would be a traditional public forum. The actual courthouse steps are a little more complicated. The answer might turn on how the courthouse steps had been used in the past.

The steps potentially are not a traditional public forum, as we want court employees, attorneys, and litigants, to be able to enter the courthouse. Moreover, the courthouse steps arguably are an extension of the lobby of the courthouse, where pamphleteering would not be allowed. The police officer could have had a good faith belief that courthouse steps were for entry or exist for the courthouse, and directed Wilson to the sidewalk to pass out pamphlets.

There is a strong argument that the courthouse steps are a traditional public forum. Moreover, there is no way Wilson’s actions could be qualified as a protest requiring a permit, but a Constitutionally protected activity of two people passing out pamphlets. Wilson was not targeting court employees or harassing people. The core of his actions were to exercise his First Amendment rights to discuss his Second Amendment rights in one-on-one communications. The police officer asking whether Wilson had a permit to pass out pamphlets was a First Amendment violation, as there is no question that is protected free speech.

Regardless of whether Wilson could pass out pamphlets on the courthouse steps, the police officer falsely arrested Wilson. The [fictional] Lewis Wilson had a strong civil rights case. Wilson should have sought legal counsel and psychological treatment instead of becoming a terrorist.

We Made the ABA Journal Web 100 for Best Legal Blogs AND Podcasts

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The feelings Jessica Mederson and I have with being named to the 2017 ABA Journal Web 100 for BOTH the Best Law Blog and Best Law Podcast categories can be described as deeply humbling and wanting to high-five everyone.

This is our fifth year being recognized by the ABA Journal and we are very grateful. Thank you to everyone who reads our blog and listens to our podcast.

The editors of the ABA Journal redefined the Blawg 100 this year to also recognize podcasts and social media into the new Web 100. The fact The Legal Geeks was recognized in two out of the three categories is extremely cool.

Here is what the ABA Journal said about our podcast:

“Jessica Mederson and Joshua Gilliland watch the latest superhero sequel and wonder how the courts would sort out the carnage. Heavy doses of comic books and sci-fi make this chatty podcast a guilty pleasure for fans of the Justice League and other defenders of justice.”

Here is what the ABA Journal said of our blog:

As superhero and sci-fi movies and TV are surging in popularity, this blog explores the plotlines of Hollywood projects and comic books for potential legal issues. Blogger and podcaster Joshua Gilliland’s geek cred is only rising: He co-hosted panels this year at San Diego Comic Con (for the third time) and San Francisco Comic Con. Gilliland’s favorite practice areas seem to be the Star Wars and Star Trek franchises and Marvel comics.

We have had an amazing year blogging, podcasting, and speaking at Cons. It is very rewarding to see the number of non-lawyers who attend a legal panel with thoughtful questions. Our adventures this year have included:

An X-Men Mock Hearing on the Constitutionality of Sentinels Hunting Mutants at San Diego Comic Fest

Rogue Law, Legal Analysis of Rogue One at San Diego Comic Fest

I am One with the Law: The Law of Star Wars at Nerd Nite LA

I am One with the Law at the Appellate Judicial Attorneys Institute

Star Trek: Law – The Final Frontier at Silicon Valley Comic Con

Sweet Christmas! A Mock Trial to Prove Luke Cage is Innocent at San Diego Comic Con

Judges on Star Wars at San Diego Comic Con

Defending the Defenders at San Francisco Comic Con

Jack Kirby on Civil Rights at San Francisco Comic Con

The Law Will be with You: The Law of Star Wars at San Francisco Comic Con 

We want to thank everyone who has joined us for our adventures the past year. We thank the ABA Journal and their judges for being an honoree in the Best Blog and Podcast categories. A very special shout out to Illusive Comics and Games, where we have recorded many podcasts, and Time Tunnel Toys, for their help in finding vintage action figures for blog posts. This year has been exceptional and we look forward to the future.

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 Colossal Defense of Others in Seoul

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Nacho Vigalondo’s Colossal is everything science fiction should be, with people with real faults finding themselves connected to a giant Kaiju and robot in Seoul. If you have not seen the film, check it out on Hulu now. This post will analyze the gigantic spoilers from the end of the movie, so go stream the movie before reading any further.

https://youtu.be/635xd-z_SvY

Fictional Factual Background

For those who did not watch the film and pressed on, the protagonist Gloria is unemployed, has huge problems with drinking, getting black out drunk, and partying all night. After her boyfriend threw her out of his apartment, she returned to her parents’ empty home in New Hampshire. Over the course of the film, Gloria learned whenever she entered a playground that a giant monster appeared in Seoul, South Korea. The monster was Gloria’s avatar, thus whatever she did in the park, was also done by the monster in Seoul.

It is later learned that Oscar, a childhood bully turned creepy hoarding stalker, appeared as a giant robot in Seoul whenever he entered the park.

In the climax of the film, Gloria went to Seoul, because Oscar had begun a routine of tormenting Seoul, with mass murder and destruction by stomping around the playground in New Hampshire. Gloria played a hunch that if she was in Seoul, her monster would appear in New Hampshire.

Gloria was correct and stopped Oscar’s robot in South Korea by having her monster throw Oscar to his death in New Hampshire.

The Defense of South Korea

Gloria’s defense of South Korea from Oscar raises a colossal number of legal issues. Regardless of the fact that Oscar was likely violating the Logan Act by personally threatening the lives of a United States alley, Gloria killed Oscar in order to defend everyone threatened by Oscar’s rampage in South Korea. Was Oscar’s death legally justified?

As Oscar was killed in New Hampshire, New Hampshire law will apply for determining whether the death was justified. This is somewhat complicated with a Schrodinger’s Cat effect, in that Gloria was in Seoul at the time of Oscar’s death in New Hampshire, while her Kaiju avatar committed the killing.

New Hampshire law states that a person is justified in using deadly force on another if they reasonably believe the attacker is about to use unlawful, deadly force against a third person. N.H. Rev. Stat. Ann. § 627:4(II)(a). However, deadly force is not justified if the threatened person could retreat in complete safety from the threat. Retreat is not required if the threatened person is in their home and was not the initial aggressor. N.H. Rev. Stat. Ann. § 627:4(III)(a).

The law is silent on Kaiju avatars used in the defense of others. Applying the black letter text of the statute, Gloria could reasonably believe Oscar was going to use deadly force against the population of Seoul. Oscar had stomped around the playground/ Seoul the day before to cause mayhem and inflict death on South Korea. As such, the population of Seoul was reasonably in danger of death.

The population of Seoul was clearly not the aggressor in Oscar’s attack. Moreover, there was no place for the population of Seoul could retreat to, short of abandoning their city. While New Hampshire law has not ever required the population of a foreign country to retreat before, there is a colorable argument that the homes of those in Seoul being threatened with destruction, meant the homeowners did not need to retreat to another city. The citizens of Seoul had a right to be in their homes, thus should not have to retreat from their city from Oscar’s robot avatar.

Gloria used her monster to pick up Oscar and throw him, almost certainly resulting in his death. Arguably the threat to Seoul had passed when Oscar was captured. However, retraining Oscar would only last as long as Gloria’s Kaiju avatar held Oscar. Given the fact Gloria was in South Korea and Oscar in New Hampshire, Oscar could immediately become a reasonable threat to Seoul once he was put down by entering the playground again. While defense of others can be argued, throwing Oscar could be viewed as unjustified murder, due to the lack of the imminent use of deadly force by Oscar. Regardless, Gloria has a strong alibi if charged with murder, as she was outside of the United States at the time of Oscar’s death.

Colossal Fun

The world needs more creative science fiction movies. Colossal is about flawed people who are in out-of-this-world situations. The person who starts out as the out-of-control party girl decided to do what is right when faced with a threat. The person, who appeared to be a decent and kind, was actually a violent creep. The movie is thoughtful and entertaining, with giant monsters, and colossal legal issues.

Now, as to the matter of Gloria’s liability for monster damage in South Korea from her dance attack, hope she has good homeowner’s insurance and equity in her parents’ home, because the damages would definitely exceed her policy limits.

Could Karen Page Tell Homeland Security about the Punisher?

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In Marvel’s The Punisher episode “Gunner,” Homeland Security Agent Dinah Madani questioned Karen Page about the Punisher Trial. Madani’s questioning about a former client of Nelson & Murdock is highly problematic, because Karen easily could have disclosed confidential information learned from her work on the Castle case.

New York attorneys have a duty to protect the confidential information of former clients. See, NY CLS Rules Prof Conduct R 1.9 and NY CLS Rules Prof Conduct R 1.6. Attorneys can use client confidential information to prevent reasonably certain, substantial bodily harm, or prevent a client from committing a crime. See, NY CLS Rules Prof Conduct R 1.6(b)(1) and (2).

Karen worked as a legal assistant for Nelson & Murdock. The law recognizes those who work for attorneys as “privileged agents.” United States v. Kovel, 296 F.2d 918, 921-22 (2d Cir. 1961). As such, Matthew Murdock and Foggy Nelson’s duty to protect confidential information would apply to Karen Page, as she was their agent.

Karen questioned Frank Castle on his past, which is generally accepted for a paralegal or legal assistant to do in a case. (See, Daredevil, season two, episodes “Semper Fidelis” and “Guilty as Sin”). However, Karen also gave Castle advice on what she thought Frank should do for his defense, which crosses the line into Karen giving legal advice, which violated the rule only lawyers can give legal advice. NY CLS Jud § 484.

What does this mean for Agent Madani’s questioning of Karen? First, Karen had a duty to not disclose confidential information about Frank Castle, unless that information specifically could be used to prevent a crime, death, or substantial bodily harm. Secondly, the legal advice that Karen gave Castle is not protected, because Karen is not a lawyer and cannot give legal advice. Third, Karen was also flirting with aiding Castle in committing crimes by providing him information after her employment at Nelson & Murdock. Those discussions would not be protected by any privilege.

How should Karen proceed in talking with Homeland Security? With a very skilled lawyer to help her navigate what was confidential and what she could disclose.