I Get Confused Around Books on the 4th Amendment

January 30, 2016

Agent Carter is perhaps the best Marvel show when it comes to the Fourth Amendment. In the episode “Better Angels,” Peggy covertly enters the private all-male Arena Club, thanks to Howard Stark and his all-female “production assistants” causing a diversion. Our hero snuck around, found a room hidden behind a secret entrance, and attempted to place a wiretap in the room. When caught in the hallway, she quickly offered a ditzy “I get confused around books,” to explain why she was “lost.”

There was giant problem with Peggy Carter’s failed attempt at wiretapping the Arena Club: it grossly violated the Fourth Amendment. However, here is the golden takeaway: the writers KNEW it! New York SSR Chief Jack Thompson verbally complained to Peggy that her actions lacked probable cause and a search warrant.

Gold Star Agent Carter writers for giving a shout out to the US Constitution.

Why does the SSR need a search warrant based on probable cause to search the Arena Club? Because not securing a warrant can end in the evidence being suppressed. For example, in 1922 a police officer entered a residence search for opium under a void search warrant. The officer found a loaded revolver without a permit and arrested the gun owner. The Court held that a “motion for an order directing the return of the revolver and the dismissal of the indictment should be granted, as there was no authority for such seizure, no crime having been committed in the presence of the officer and he having no probable cause for believing that the revolver was in the defendant’s possession; that the officer had no lawful right to search the defendant’s residence and seize the revolver without a search warrant.” People v. Jakira (Ct.Gen.Sess. 1922) 118 Misc. 303, 305.

Cases with warrantless searches of private property usually end with motions to suppress. However, there are exceptions. For example, state Alcoholic Beverage Control agencies can perform warrantless administrative searches of liquor permit-holders’ premises are legal if they are establishing an administrative violation if they are limited in time, place, and manner. AL Post 0557 v. Liquor Control Comm’n (Ct.App. Sep. 24, 1998, CASE NO. 97 JE 2) 1998 Ohio App. LEXIS 4597, at *8, citing New York v. Burger (1987), 482 U.S. 691, 702-03, 96 L. Ed. 2d 601, 107 S. Ct. 2636.

The SSR could not with a straight face perform a liquor license check on the Arena Club, as it would be purely pretextual and grossly exceed the SSR’s authority, not to mention infringing on the state and local jurisdiction.

There are cases with law enforcement legally entering a club and seeing drugs in plain view that do not violate the Constitution. However, those cases are free from law enforcement entering a club by force or fraud. Commonwealth v. Black (1989) 520 Pa. 115, 117-118. In Peggy’s case, using Howard Stark as a diversion bordered on force with the production assistants barging into the Arena Club, and definitely was fraud. Moreover, we know no book has ever confused Peggy Carter.

There is no question Agent Carter did violate the Fourth Amendment in “Better Angels.” Worse yet, Jack Thompson recognizing the headline about the Senator’s resignation could be “fruit of the poisonous tree” and suppressed in trial. However, there is a strong possibility evidence of the conspiracy could be fall under the “inevitable discovery” as the season progresses.

The Dark Side Made Me Do It

Josh Gilliland

January 28, 2016

Could Anakin Skywalker argue the insanity defense for the decades he spent as an agent of evil? Could Anakin claim he was legally insane while following the Dark Side, thus not guilty for crimes ranging from murdering Younglings to blowing up Alderaan?

Anakin Skywalker could not Chewbacca Defense himself out of the billions of people he helped kill. A trial of Darth Vader would have a body count near impossible to determine, given it would include every act of evil from cutting off Mace Windu’s arm (and the Emperor killing the Jedi Master); to butchering Tusken Raiders between Episodes IV and V on Tatooine (See Marvel’s Star Wars Darth Vader comic); murdering Captain Raymus Antilles with his bare hands; ordering the deaths of the crew of the Tentive IV, Force killing Captain Lorth Needa and Admiral Kendal Ozzel when court martials were in order; and many other acts done in the name of “The Doctrine of Fear.”

Darth Vader would not be absolved of criminal responsibility just because Govenor Tarkin gave the order to destroy Alderaan. The “I was just there” or “I was just following orders” did not work at Nuremberg war crimes trials and would not be a defense for blowing up a planet. Vader was an active participant in the Empire’s plans for galactic domination, thus would be viewed as being part of the “inner circle” for the crimes of the Empire.

The Insanity Defense is an affirmative defense where Anakin would need to prove by clear and convincing evidence that “as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.” 18 USCS § 17.

Emperor Palpatine spent decades manipulating Anakin Skywalker’s ultimate fall to the Dark Side. These acts included preying on Anakin’s fears of his wife dying and a promise that Palpatine could save Padme from death. All of Anakin’s actions do not appear to be because of a mental disease, but being gullible. Anakin was promised that he could save Padme, which was the reason Anakin Skywalker marched on the Jedi Temple to murder children.

Every death Anakin committed as Darth Vader was a choice. It was not done because the “Dark Side” made him do it, but because he decided to kill others in the name of “Peace, Freedom, and Justice.” While there is no question Anakin was manipulated into becoming Darth Vader, it was a choice Anakin made for himself. Just as it was a choice Darth Vader made to save Luke Skywalker and throw Emperor Palpatine down the Death Star’s reactor shaft in Return of the Jedi.

As much as Anakin could whine that it was Emperor Palpatine’s undue influence that made him turn to the Dark Side, Anakin Skywalker could not prove by clear and convincing evidence he was legally insane during the decades he murdered those in his path after a failed attempt to save his wife Padme.

Expert Witness Reports for the Trial of James Buchanan Barnes

Josh Gilliland

January 21, 2016

The Mock Trial of the Winter Soldier at San Diego Comic Fest is a battle of expert opinions: did James Buchanan Barnes understand the wrongfulness of his actions?

James Buchanan Barnes’ defense team will argue that he is not guilty by reason of insanity. The law requires that the defense prove Bucky was insane by clear and convincing evidence, which is a lower standard then the Prosecution proving guilt beyond a reasonable doubt. The jury must weigh the facts and expert opinions presented by both sides and decide if Sargent Barnes was insane under the following Model Jury Instruction for the Insanity Defense for the 9th Circuit:

The defendant James Buchanan Barnes contends he was insane at the time of the crime. Insanity is a defense to the charge. The sanity of the defendant at the time of the crime charged is therefore a question you must decide.

A defendant is insane only if at the time of the crime charged:

1. The defendant had a severe mental disease or defect; and

2. As a result, the defendant was unable to appreciate the nature and quality or the wrongfulness of his acts.

The defendant has the burden of proving the defense of insanity by clear and convincing evidence. Clear and convincing evidence of insanity means that it is highly probable that the defendant was insane at the time of the crime. Proof by clear and convincing evidence is a lower standard of proof than proof beyond a reasonable doubt.

You may consider evidence of defendant’s mental condition before or after the crime to decide whether defendant was insane at the time of the crime. Insanity may be temporary or extended.

Your finding on the question of whether the defendant was insane at the time of the crime must be unanimous.

The Defense and the Prosecution each have an expert witness who will testify on whether James Buchanan Barnes was legally insane during the events of Captain America The Winter Soldier. You can view their expert reports below and see the issues of the trial on February 13, 2016 at San Diego Comic Fest. Page controls are at the bottom of the PDF viewer.

Dr. Janina Scarlet’s Expert Report for the Defense

Defense_Scarlet_Expert_Report

Dr. Andrea Letamendi Expert Report for the Prosecution

Prosecution_Expert_Report

Nothing Frosty About Agent Carter Season 2

Josh Gilliland

January 20, 2016

Agent Carter is back with all of its Hollywood vintage charm. Here are my first “legal” reactions to the season premier:

The SSR Knows How to Follow the Constitution

Chief Daniel Sousa and Peggy Carter actually get search warrants. God bless them for not outright walking over the rights of US Citizens (other than Sousa flirting to distract a receptionist while Peggy conducted an unlawful trespass to violate the Constitution, potentially making all information learned from Jason Wilkes the fruit of the poisonous tree, but we’ll overlook that one). In case anyone needs a refresher, the Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

USCS Const. Amend. 4.

The receptionist at Isodyne Energy acted properly in asking the SSR Agents if they had a search warrant at their first meeting. However, a frozen body that could freeze others, plus two SSR Agents murdered in a professional hit in order to steal the aforementioned body, would be ample “probable cause” for a Federal Judge to sign a search warrant. Chief Sousa would need to describe the Isodyne Energy facility to be searched, but that should not have been a problem.

National Security Act of 1947

The warning to Jack Thompson about the SSR becoming obsolete because of changes at the Department of War was absolutely correct. In the real world, the National Security Act of 1947 would create the Department of Defense in response to the new realities of the Cold War.

The FBI does have a strong claim that it would have jurisdiction over Dottie Underwood. Given the espionage aspects of who were her contacts in Russia gives a pretty valid claim to the SSR questioning Dottie, which would go from law enforcement to foreign affairs very quickly.

Senate Race of Calvin Chadwick

Calvin Chadwick is the poster child for Campaign Finance Reform. We do not want secret societies electing puppets to do their bidding, instead of the needs of the country. However, the first campaign finance reform cases were decades away from happening and 50 years before McCain-Feingold.

There is one significant challenge for Chadwick’s campaign: there was no US Senate race in California in 1948. Senator Sheridan Downey was reelected in 1944 (after defeating Fred Howser). Senator William F. Knowland had been appointed in 1945 and won a special election in 1946. The next election for the US Senate was in 1950, which then-Congressman Richard Nixon won.

It is possible Chadwick was running a high profile California Senate Campaign, which would have meant A LOT of money was being spent for a relatively small geographic area. It is possible a California businessman with a movie star wife could run in a different state, but that would inherently raise campaign issues, ranging from Chadwick being a “carpetbagger” to eligibility based on domicile.

A Crime Against Donuts

Peggy Carter took her anger out on a donut, violently throwing the tasty baked good onto the ground. We would call that littering in 2016. However, the world of 1947 was different. California cities from the early to mid-20^th Century had ordnances prohibiting defacing public or private property with posters or notices on streets, sidewalks, and similar public places, which was a proper use of police power. See, Sieroty v. City of Huntington Park, (1931) 111 Cal. App. 377. However, these cases often focus on cities attempting to prohibit people from distributing flyers to others, which violated the First Amendment. People v. Taylor (1938) 33 Cal.App.2d Supp. 760, 762-763.

Statutes prohibiting littering, as we understand it today, started in California in the late 1970s. The law today states it is an infraction to litter on public or private property. Cal Pen Code § 374.4(a). Littering is the act of “the discarding, dropping, or scattering of small quantities of waste matter ordinarily carried on or about the person.” Cal Pen Code § 374.4(c). Throwing the donut in a wrapper would qualify under the California Penal Code. As such, if Agent Carter fans start throwing donuts on public or private property in a strange act of donut cosplay, they would run the risk of being fined at least $250 and community service to pick up litter. Cal Pen Code § 374.4(d)-(e). That would be one expensive donut and Hayley Atwell could end up doing PSA’s on proper donut disposal.

Is Supergirl Financially Responsible for the Destruction of Property?

Josh Gilliland

January 14, 2016

Someone only identifying themselves only as “Kara Zor-El” asked the following questions in our request form: Could you do an article addressing whether Supergirl or any superhero is liable for personal property damage. Who pays for repairs? Insurance? Can Supergirl be sued? If so, how do they get her to pay?

The answers to these questions is…it depends. Supergirl’s super-hero activities generally fall into three categories: 1) Rescuing others; 2) Conducting law enforcement with the DEO; and 3) Vigilantism. The capacity that Supergirl is acting will impact her possible liability for destroyed property.

Supergirl the Good Samaritan

Supergirl the series is a case study in the duty to rescue. Supergirl begins her hero career rescuing a crashing plane in the pilot episode; stopping robberies, flying ambulances to the hospital, and rescuing pet snakes in “Stronger Together;” rescuing people in a massive freeway accident in “Fight or Flight;” and stopping a car with a road-raging driver from taking out children crossing the street in “Red Faced.” Kara Zor-El is the poster child of rescuing those in need.

There is no general common law duty to rescue someone unless there is a special relationship. Rhodes v. Illinois Cent. Gulf R.R., 172 Ill. 2d 213, 232-233 (Ill. 1996). Society does encourage people to help others with “Good Samaritan” laws, which have the “broad goal” to “prompt aid by people under no duty to act, who otherwise might be dissuaded by the prospect of ordinary tort liability.” Miglino v Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d 342, 348 (N.Y.2013).

Supergirl’s public rescues should be protected by the Good Samaritan doctrine. In essence, if a “volunteer who, having no initial duty to do so, undertakes to come to the aid of another . . . is under a duty to exercise due care in performance and is liable if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.” Foremost Dairies v. Cal. (1986) 190 Cal.App.3d 361, 365, citing Williams v. State of California (1983) 34 Cal.3d 18, 23.

Supergirl should be protected from liability, unless she fails to exercise due care and increases the risk of harm. As such, repair costs could fall on insurance.

Supergirl the State Actor

Supergirl frequently works with the DEO in protecting the United States (and Earth) from alien threats. As such, any actions taken while Supergirl is working with the DEO would make her a state actor.

There is ample authority that while Supergirl is a state actor, she would not be subject to liability for the destruction of private property. For example, a city was not liable for the negligence of an employee who negligence burning garbage at the dump resulted in a fire that destroyed a home. Miller v. Palo Alto (1929) 208 Cal. 74, 75-76. Moreover, there are very old doctrines that give elected officers to destroy buildings in the path of a fire, in order to stop the spread of the fire. RUSSELL v. MAYOR, ETC., OF NEW YORK (N.Y. 1845) 2 Denio 461, 477.

Courts do not like to second-guess fire fighters who make snap decisions to fight fires. As such, Courts have held that government is immune from tort liability to individual property owners for damage resulting from the discretionary actions of fire fighters in combating fires. Strickland v. Dep’t of Agric. & Consumer Servs. (Fla.Dist.Ct.App. 2006) 922 So.2d 1022, 1023-1024.

Supergirl has not destroyed any buildings or throwing cars at villains, but if she ever did, there is at least some precedent she would be protected for liability.

Supergirl Gone Vigilante

Supergirl conducting law enforcement on her own is vigilantism. Granted, it is probably the friendliest kind of vigilantism, as no one is getting ripped into two messy pieces. Kara does not vaporize those committing robberies. If anything, her actions are best described as being committed in the defense of others and use a reasonable amount of force.

Supergirl’s vigilantism is probably the most high-risk activity she engages in, because she is not a state actor. This area is where she could find herself in the most legal jeopardy.

Who Pays for the Clean-Up?

We do not have case law where super-heroes save cities from alien invasions. However, we do have some guidance from disaster litigation. States such as New York and Ohio follow the general rule that “general rule is that public expenditures made in the performance of governmental functions are not recoverable.” County of Erie v. Colgan Air, Inc., 711 F.3d 147, 150 (2d Cir. 2013). As such, counties have been unable to recover costs responding to, and cleaning up, plane crashes or damages from a blackout. These costs could include wages, overtime, fire, sanitation, and hospital personnel who performed services in response to the emergency. Id.

If this theory applies to Supergirl, National City could not sue her for clean-up costs after saving the airliner from crashing, but leaving it in the river, in the first episode. Responding to emergencies is something that governments are required to do by their very nature. The city, state, and Federal government would have to endure those clean-up costs.

Supergirl might have a problem with the oil spill she caused, because many states allow the state to recover clean-up costs. State of New York v Getty Petroleum Corp., 89 A.D.3d 262, 264-265 (N.Y. App. Div. 3d Dep’t 2011). However, since Supergirl arguably was a state actor responding to the direction of the fire captain, she has a plausible defense to any liability.

Private individuals suing Supergirl for damaged property would likely be on a negligence theory. Serving her would be highly problematic and possibly would have to be done by publication. If Supergirl were seeking legal advice, she should purchase a bag of charcoal and spend an evening crushing them into diamonds. Exercising care not to flood the diamond market, she could retain a lawyer to create a victims’ trust fund, have her attorney sell the diamonds on the market, and fund the trust with the profits. Those who have a claim against Supergirl could then file through her attorney for property claims. This would be good public relations showing she is the “super-hero who cares” if someone’s Tesla is used as a ballistic weapon.

The Giant-Man Sized Murder-For-Hire Issues in Ant-Man

Josh Gilliland

January 12, 2016

Nick Spencer in The Astonishing Ant-Man has introduced a very unique concept: a super-villain app for hiring henchmen called “Hench: Every Villain’s Private Army.” Taking the world of food delivery, couch-surfing, ride-sharing apps employing independent contractors to the comic book world, Spencer continues to be one of the most forward thinking writers in comics.

Here is how the Hench app works: the user searches for the super-hero they wish a Henchmen to fight. The App then runs a patented algorithm to find the best match to fight the hero, based on location, power set, and confrontation history. The Henchmen also can have followers like a social media profile. See, The Astonishing Ant-Man 1, December 2015.

The Hench App is a piñata of legal issues. As a preliminary matter, Hench would never get in the Apple App Store for a number of Review Guideline violations, including the fact Hench enables criminal conduct and murder for hire, which violation section 22.3, which states, “Apps that solicit, promote, or encourage criminal or clearly reckless behavior will be rejected.” It would also violate the requirement that an app not be “creepy.”

Assuming Hench could be downloaded as some jailbreak app, we immediately enter the world of RICO, criminal conspiracies, and murder-for-hire.

The ability to select a super-villain like you are ordering a burrito for delivery would leave digital fingerprints of selecting one’s henchmen. There would be electronically stored information on the subject phones and server used by Hench. Evidence showing defendants have planned a murder-for-hire have included many forms of communications, such as phone calls, text messages, emails, wire transfers. United States v. Walker (5th Cir. 2015) 596 F.App’x 302, 308; United States v. Temkin (9th Cir. 2015) 797 F.3d 682, 690. The FBI seeking evidence of a murder-for-hire from an app would not be a stretch of the imagination.

If there were a massive raid, forensically imaging the Hench server likely would identify everyone who downloaded the app and used it. The FBI would then arrest those individuals and search the phones subject to a search warrant. The media fallout of everyone who had an app to order a super-villain to commit murder-for-hire would make those who had Ashley Madison accounts look tame.

The FBI would have jurisdiction in investigating Hench, its users, and subscribers pursuant to the Racketeer Influenced and Corrupt Organizations Act (RICO), which states in relevant part:

(a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code [18 USCS § 2], to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.

18 USCS § 1962.

Racketeering Activity comes in all sizes of criminal activities, including any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical or any act relating to bribery, mail fraud, and many other crimes. 18 USCS § 1961.

There is no question that a murder-for-hire app would qualify as a racketing activity. A business dedicated to contracting murders for financial gain is the very essence of RICO.

The FBI would also have jurisdiction if Hench requires a super-villain to travel in interstate or foreign commerce. 18 USCS § 1958. As Hench would likely result in personal injury, kidnapping, maiming, assault, and murder, the punishment for Henchmen would range from life to imprisonment to death. 18 USCS §§ 1958; 1959.

Ant-Man is delivering a legally interesting tale to astonish for the end-user of the app. The Hench App features controls for the person hiring the Henchman to call off a hit or finish the job. Murder-for-hire cases generally do not have that level of control, besides a text message to coordinate a hit. This level of control likely would enhance sentencing for those who used the app to commit violent crimes.

How will this all play out in the comic? I recommend reading The Astonishing Ant-Man to find out.

SDCF Preview with Mike Towry on The Mock Trial of the Winter Soldier

Josh Gilliland

January 8, 2016

What are the possible issues you will see at the Mock Trial of the Winter Soldier at San Diego Comic Fest? Check out our podcast with Mike Towry and learn about the awesome guests attending SDCF and some of the issues that will be on trial for James Buchanan Barnes, from the insanity defense to how the trial will work.

1...444546...105 Page 45 of 105