Xavier’s Ailing Mind: A Study Into Intent

September 21, 2017

Introduction

“As I live and breathe, the Wolverine!”

The movie “Logan” has already had a number of articles on this site devoted to it. After watching it a second time I realized someone could easily fill a book with the legal analysis of this movie. One of the biggest legal questions to me however is what, if anything would Charles Xavier be guilty of after the Westchester incident. This article will examine laws in the state of New York as well as some federal law.

In the movie the audience is given snippets of something referred to as the “Westchester Incident” this is when Charles has a seizure which causes his psychic abilities to lash out and paralyze anyone within close proximity to him. In his first attack he injured over 600 people and kills seven mutants, though unmentioned this is believed to be the X-Men.

Intent

Causing the death of anyone in the United States causes the court to examine the situation surrounding these events and determine intent. In New York Murder in the first degree has such a requirement (PEN § 125.27 Murder in the first degree). This aspect of intent is also present in second degree and aggravated murder. A seizure caused the death and injury there has no aspect of intent as such this eliminates every class of murder under the New York penal code. Further a defense of mental disease or defect is a defense to all classes of murder as well.

Mental Disease or Defect

Mental Disease or Defect Under New York Penal Code (New York Penal § 40.15 – Mental Disease or Defect) the defense of Mental Disease or Defect is what is known as an affirmative defense. The defendant is saying “yes, I did this act but there is a reason that I should not be held accountable for that.” The prosecution then no longer must prove that the defendant committed the crime but they were not suffering from a mental disease or defect. The most common example being an “Insanity” plea. Charles would undergo both mental and physical examinations and it would show that he did suffer from seizures and when the seizures happened his powers would lash out in destructive manner.

Manslaughter

Without intent there can be no murder but could it be manslaughter? Under New York Penal code (PEN § 125.15 Manslaughter in the first degree) there is also a matter of intent. The actions of the person charged must have been of a negligent or intended act that will normally cause harm but not kill. Once again, because the act was of mental disease or defect he is not guilty of manslaughter.

Criminally Negligent Homicide

New York has another offense that may fit. Criminally Negligent homicide lacks the intent requirement of the aforementioned crimes. For this charge to stand the prosecution would have to prove the incident was caused by Xavier’s negligence and normal use of such would have the expectant result of damage. Thinking does not normally result in damage to others and even in a powerful mind such as Xavier’s the usual result is communication not paralysis and death. From the films and comic books we know Xavier does not have a history of seizures so the court would likely find that because he had no prior history he could not be criminally negligent.

Weapons of Mass Destruction

Weapon of Mass Destruction We learn that Charles Xavier’s brain is considered a weapon of mass destruction by the HSI. The HSI is the investigative branch of the Department of Homeland Security. Under Federal Law a weapon of mass destruction is defined as:

(2) the term “weapon of mass destruction” means—
(A) any destructive device as defined in section 921 of this title;
(B) any weapon that is designed or intended to cause death or serious bodily injury through the release, dissemination, or impact of toxic or poisonous chemicals, or their precursors;
(C) any weapon involving a biological agent, toxin, or vector (as those terms are defined in section 178 of this title); or
(D) any weapon that is designed to release radiation or radioactivity at a level dangerous to human life;

This is a federal offense under Use of a weapon of mass destruction (18 U.S. Code § 2332a).
Section 921 lists explosive devices and section 178 lists many toxins such as animal venom and poison. Under the federal code Charles Xavier could not be charged with use of a weapon of mass destruction because a human being cannot be defined as a weapon of mass destruction. The incident however could lead to a new addendum adding a mutant component to the definition which would mean any time Xavier used his powers he was committing this federal offense. Without knowledge of any changes to the law in X-Men universe we must consider this akin to a suspect being considered armed and dangerous. This effect has no true legal recourse however it tells any authority to approach with caution as well as increasing the priority of answering such a call.
Civil Remedies

Could the victims and families of the victims gain any level of compensation for the incident? Here there is some possibility though when comparing having a seizure to other potentially hazardous activities such as driving we find that the court is reluctant to rule against those that have suffered a seizure if there is no history of them. However due to the power of Xavier’s mind those victims could potentially win damages in a court setting. This is entirely due to the standard of proof going from beyond a reasonable doubt to on the preponderance of evidence.
So it looks like Xavier would be free and clear as long as he maintains his medication regimen and keeps his doctor’s appointments… or is it?

Typhoid Mary

If you are not familiar with the story of Mary Mallon, who later became known as Typhoid Mary, this was the first known case of an asymptomatic carrier of the virus that causes typhoid fever. However, she was the cause of at least six deaths in New York in the 1920’s because she worked as a cook. Though she was not subject to criminal prosecution she was medically quarantined twice for a period of 26 years until she died. It is not clear under what authority the state of New York had to quarantine Ms. Mallon though. How does this have anything to do with Xavier?

Doctors could rule that Xavier is a threat to the public health and be placed under medical quarantine because of this. Under modern medical practices this could be done through psychological commitment. In a way Logan did exactly what the authorities of New York would have been able to do had they captured him.

Conclusion

Though legally Xavier likely would not have been found guilty of any crime he could have faced potential damages in lawsuits and possible quarantine or psychological commitment. The important acts of intent and negligence are absent, despite his innocence on a legal basis he is punished by his knowledge that it happened because of him and he feels responsible.

Product Liability Litigation for Defective Stormtrooper Armor

Josh Gilliland

September 5, 2017

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

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

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

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

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

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

Head Injuries

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

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

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

Different Versions of Armor

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

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

The Doctrine of Fear

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

The Crimes Committed Stealing Elektra’s Dead Body

Josh Gilliland

August 27, 2017

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

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

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

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

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

San Francisco Comic Con Memories!

Josh Gilliland

August 26, 2017

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

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

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

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

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

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

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

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

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

Josh Gilliland

August 20, 2017

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

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

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

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

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

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

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

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

The Vulture Should Have Sued for Breach of Contract

Josh Gilliland

August 8, 2017

Villains in Marvel Cinematic Universe turn to a life of crime for multiple reasons. Loki had father issues fueling his alliance with Thanos to invade Earth. Wilson Fisk wanted to make New York a better place through Federal redevelopment programs (and racketeering) after the Battle of New York. For Adrian Toomes, the City of New York breaching its cleanup contract due to the Federal Government claiming exclusive jurisdiction for the remediation of Chitauri technology in the aftermath of the Battle of New York, was his reason for becoming a murdering arms dealer. It would have made more sense to seek legal representation, because Toomes should have sued for breach of contract.

Adrian Toomes had a valid contract with the City of New York to remove the alien weaponry that was littered across Manhattan. Toomes had begun performance of his contract and incurred costs for additional vehicles to complete his contractual obligations. If not for Damage Control stopping his contractual performance, Toomes would have competed the cleanup of Chitauri wreckage across Manhattan.

The New York City – Toomes Contract was a construction contract under N.Y. Gen. Bus. Law § 756, which covers everything from demolition to excavation to improvement to land. New York City could claim that the original contract became unenforceable from the Federal Government claiming exclusive jurisdiction for the removal of alien technology. If this was a valid argument, that would not excuse either New York City or the Federal Government from having to pay Toomes for work performed.

Contracts can be unenforceable as a matter of public policy if there is 1) legislation stating the agreement is unenforceable; or 2) if public policy outweighs the enforcement of the agreement. See, generally Restat 2d of Contracts, § 178(1) (2nd 1981).

The Federal Government had a valid interest in ensuring public safety from alien weapons and technology scattered across Manhattan. Enacting legislation creating Damage Control to respond to superhuman destruction would be a valid reason for the New York City – Toomes contract to become unenforceable. However, Toomes had already begun work and spent significant funds after entering into the contract with New York City.

Adrian Toomes had valid expectation, reliance, and restitution interests for his contract with New York City. As such, Toomes is entitled to damages for the breach of contract under multiple theories.

Toomes, at a minimum, is entitled to damages of the contract price (or unpaid portion) minus the cost of completion (cost avoided by not having to complete performance). See, Restat 2d of Contracts, § 348(2)(b). Alternatively, another damages formula would be for the work that had been completed, plus for the remaining portion of the work, and the profit that would have been made from that work. Murray on Contracts, p 682, citing Kehoe v. Rutherford, 56 N.J.L. 23, 27 A. 912 (1893).

That is not the end of Toomes’ damages analysis. Toomes spent substantial funds in reliance upon the contract AND performed his contractual obligations, before Damage Control shut him down. Toomes would be entitled to consequential damages for his costs and for the work performed, to avoid the unjust enrichment of the Federal Government or New York City.

The remedy for breach of contract is NOT illegal weapons manufacturing with alien technology. Adrian Toomes should have immediately contacted a attorney to seek damages from both New York City and the Federal Government. While both prospective defendants would point to the other on who is financially responsible to Toomes, with the Federal Government claiming it is New York City, and New York City [rightly] arguing it was Federal interference that caused the breach of contract, a good plaintiff’s lawyer would sue both.

Should the Avengers be Liable for the Injury and Damage They Cause to Persons and Property?

Josh Gilliland

August 4, 2017

A question occurred to me when I first watched The Avengers in 2012: “who was going to pay for all this damage caused by the Avengers in the Battle of New York?”

It was a fair question. It was one a lawyer would ask. It is a question I have now asked several times as I have seen the Hulk, Iron Man, Captain America and crew break or blow up anything within their vicinity to fight those who mean them (and I suppose by extension, “us” harm). But my questions did not stop there. I then asked “would our current laws even apply to such superhero damage?” When I answered that question, I went on to yet another…and for that, you need to keep reading.

Practically speaking, who does pay for all the damage they cause?

I see three possible scenarios or a combination:

Insurance companies,
The government, and/or
Our tax dollars.

But we are talking about billions of dollars. Did you see what they did to New York City? Whole buildings crashed down. Parts of the city, especially Hell’s Kitchen, was destroyed. Insurance companies would likely find an exclusion in their policies or sure as heck try. I can just imagine at the first sight or news of any superhero, the carriers would all start drafting addendums to policies to specifically exclude damage caused by superheroes and hurriedly sending them out.

Our government? Sure, that is possible but to what government do we refer? State? They will ask the Feds for help. And the Federal Government cough up billions of dollars without looking for a third party to pay?

Let’s look at the 28 U.S.C. 2680(j).

This United States Code section carves out an exception to the Federal Tort Claims Act (the Act that lets people sue the Federal Government under limited circumstances) for claims “arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.”

But what is war? Congress sure as heck did not authorize a war on Loki and his Chitauri gangsters. All of this was happening behind the scenes, in the clandestine manner in which S.H.I.E.L.D. operates. And taking on face value all the Avengers are S.H.I.E.L.D. agents and S.H.I.E.L.D. is not part of the U.S. military (didn’t we learn they are under United Nations control via the Sokovia Accords? Let’s pretend we did), section 2680(j) does not apply.

The analysis cannot stop there. Think about S.H.I.E.L.D.’s defense. “Hey, if we let Loki and his Chitauri tear through Manhattan, they would have killed more people, destroyed even more property than they did, kept moving through the Eastern United States, eventually arriving at Washington, D.C. and ultimately destroyed the U.S. and world…”

So is that it? The superheroes, angry green monster and playboy weaponized armored suit billionaire get a pass?

That is where most people stop the analysis. Remember the question I mentioned earlier?

What would draft legislation look like to address this problem?

It is not enough to look at current law and break down its application. You have to take it further and enact new legislation to address a problem head-on…and like most legislation that comes out of Washington D.C., it may arguably be a solution looking for a problem but let us for now assume it is not that.

The Farzad-Legal Geeks Act of 2018.

It is 2018 because it would go effect 1/1/18 unless of course we needed emergency legislation.

And that is the placeholder name for now. I am drafting the legislation and since it is posted on the Legal Geeks website, it is as good a name as any for now. Since I am not sure what number the United States Code has reached, let us just start the legislation at 28 U.S.C. section 8000.

28 U.S.C. section 8000

“As used in this chapter, the term “superhuman being” includes human beings who possess superhuman abilities of strength, stamina or otherwise, regardless of how such superhuman beings attain and/or sustain such abilities. The term superhuman being includes but is not limited to those who use technology of any kind to enhance or sustain such abilities.”

This section of the Act would go on to give examples of such superhuman abilities (we have plenty of examples for that) in broad language.

The section would then have a separate place for “extraterrestrial aliens.” That section would read: “Extraterrestrial aliens are beings of any kind that possess superhuman abilities, as set forth above” and then incorporate what we have already laid out.

Finally, this section would have a place for agencies like S.H.I.E.L.D. and would categorize them as “agencies who command, control or otherwise cooperate with the superhuman beings to carry out operations of any kind.”

Yes, I realize that is all pretty darn broad. We want the attorneys to have something to challenge. Otherwise, there is no fun in this.

28 U.S.C. section 8001, et. seq.

From here, we get to the cool stuff.

First, you have the extraterrestrial aliens – Loki, Thor, etc. They get no rope. They should be strictly liable for all damages they cause. Why? Because if it was not for them, we would not need legislation like this. Our superheroes would be locking up normal bad guys. Speaking of bad guys…

Second, any superhuman being that engages in conduct that would be a crime under that State’s laws (whatever State they happened to do their deed) or Federal laws would be strictly liable. This keeps the bad guys from using this statute to escape liability. I am not certain we need the State law incorporation or if Federal law is enough. We can chew on that issue.

Third, you cannot hold the superhuman beings or even an agency like S.H.I.E.L.D liable under ordinary negligence standards for what we will call “services, the sole purpose of which, is to defend against forces that, if not impeded in their efforts, are reasonably likely to cause injury to persons who are not superhuman beings or damage to property.” The point is to ensure before we give the superheroes and agencies a limited immunity, they actually have to be engaged in deep blue hero work.

Fourth, we address the standard of care. This one has several options. Gross negligence standard is one option. Would the burden of proof be preponderance of the evidence, clear and convincing or beyond a reasonable doubt? This is not criminal liability so the latter is likely out. That leaves us with the first two. I like the gross negligence standard and I advocate the evidence should be clear and convincing.

Fifth, we would need a special tribunal. There is no way we can put this in front of 12 licensed drivers (read: jury). The special tribunal would hear these cases, it would comprise of 9 judicial officers, and a vote of 5 to 4 is necessary to find liability.

So there you have it…

I hope this stimulates your legal mind and gets those geeky juices flowing. Got any ideas about this legislation, how it would read and how it may be applied? Start sharing and comment below.

Robert Farzad is the president of Farzad Family Law, APC, that is based in Orange County, California. He has been a California licensed attorney since June of 1996 and helped grow his multi-attorney and multi-office firm from the ground up. Outside the law, he enjoys creative writing, poetry, English and American Literature. This article was written with tongue firmly planted in cheek.

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