Mandalorian Guardianship Mock Trial at SDCF 2020

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March 12, 2020

The Armorer told the Mandalorian, “A Foundling is in your care. By creed, until it is of age or reunited with its own kind, you are as its father. This is the way.”

Would a court appoint the Mandalorian as The Child’s guardian? Law students Claudia Salinas (California Western School of Law), Denise Barnes (Thomas Jefferson Law School), Leasly Salazar (Southwestern Law School), and Brian Mallard (USD School of Law), argued before Judge Emily Spears at San Diego Comic Fest 2020 these complex issues of law.

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Can the Manufacturers of Battle Droids be sued for Damages?

By

Josh Gilliland

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February 29, 2020

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The Separatists used the B1 Battle Droid and B2 Super Battle Droid during the Clone Wars against civilians. Can Baktoid Combat Autom, the manufacture of the droids, be sued under any legal theories for injuries and deaths caused by their droids? What can we learn from claims against gun manufacturers on whether these cases would be successful? Can litigation over drone strikes offer any legal relief?

Factual Background of the Battle Droids

The Battle Droids were the foot soldiers of the Separatists and required command systems to operate. The B2 Super Battle Droid were larger, tougher, and more expensive droids that did not require a command system to operate.

Can Baktoid Combat Autom Be Sued under Common Law Negligence for Product Defect?

Survivors of a shooting rampage sued a gun manufacture claiming the negligent product design. The test for recovery “involves a balancing of the likelihood of harm to be expected from a machine with a given design and the gravity of harm if it happens against the burden of the precaution which would be effective to avoid the harm.” Merrill v. Navegar, Inc., 26 Cal. 4th 465, 479 (2001). The plaintiff’s theory was the benefit of making assault weapons “available to the general public –which were nonexistent–did not outweigh the risk they might inflict serious injury or death when discharged.” Id, 470.

The plaintiff was barred from recovery on this theory because Civ. Code, § 1714.4(a) prohibited such recovery, because gun manufacturers may not be held liable in a products liability action. Id. The cited code section stated:

(a) In a products liability action, no firearm or ammunition shall be deemed defective in design on the basis that the benefits of the product do not outweigh the risk of injury posed by its potential to cause serious injury, damage, or death when discharged.

(b) For purposes of this section:

(1) The potential of a firearm or ammunition to cause serious injury, damage, or death when discharged does not make the product defective in design.

(2) Injuries or damages resulting from the discharge of a firearm or ammunition are not proximately caused by its potential to cause serious injury, damage, or death, but are proximately caused by the actual discharge of the product.

Cal. Civ. Code section 1714.4 (repealed in 2002).

The Civil Code section was updated in 2003 to now state the following:

Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself. The design, distribution, or marketing of firearms and ammunition is not exempt from the duty to use ordinary care and skill that is required by this section. The extent of liability in these cases is defined by the Title on Compensatory Relief.

Cal. Civ. Code § 1714(a).

If gun manufacturer liability is litigated as a classic negligence case, the test is whether there was (1) duty; (2) breach; (3) causation; and (4) damages. Ileto v. Glock Inc., 349 F.3d 1191, 1203 (9th Cir. 2003), citing Martinez v. Pacific Bell, 225 Cal. App. 3d 1557; see also 6 Witkin, Summary of Cal. Law, Torts § 732, at 60-61 (9th ed. 1988).

The 9^th Circuit found in a case with allegations the defendant gun manufacturers created a secondary firearms market that was intentionally directed at supplying guns to prohibited gun purchasers had a question of fact of whether the defendant manufactures had a duty of care to prevent those who were prohibited from buying guns from buying guns, thus breaching their duty of care. Ileto v. Glock Inc., 349 F.3d 1191, 1204 (9th Cir. 2003).

In subsequent litigation against gun manufacturers and distributors for failing to take proactive steps to control the practices of the downstream sale of guns with a high risk of guns being diverted to criminals, the court found there was not enough evidence to support the plaintiff’s case. In re Firearm Cases, 126 Cal. App. 4th 959, 972 (2005).

The above cases do not point to relief for those injured by droids during the Clone Wars, but do point to potential recovery with those who might have purchased Battle Droids in a secondary market after the Clone Wars.

Can Baktoid Combat Autom Be Sued under Product Defect Litigation

In a case where a three-year-old child found and fatally shot himself with a gun, the plaintiffs claimed the gun was defective and unreasonably dangerous as designed because of a lack of child safety devices. The court found there was no malfunction of the gun, because it acted as the gun was intended to act. As there was no malfunction, there was no risk/utility test for further analysis. Halliday v. Sturm, Ruger & Co., 792 A.2d 1145, 1146 (Md. 2002).

The analysis for Battle Droids would have a very similar result if the issue were solely whether Battle Droids were dangerous. As a weapon of war, they are indented to kill enemy combatants and thus inherently dangerous. However, the issue can turn to product defect litigation if the droids kill those who are not enemy combatants. For example, in the episodes Innocents of Ryloth and Liberty on Ryloth, Battle Droids are clearly used against the civilian population of Ryloth. This raises the question of whether Battle Droids had any programming to only target military targets and not civilians. If they had been programmed for military targets and fired on civilians, this opens the issue of war crimes, and whether the droids committed a war crime because of a program defect.

Can Baktoid Combat Autom Be Sued under Ultrahazardous Activity?

In a civil lawsuit against a gun manufacturer after a husband attempted to murder his wife which left her paralyzed, the plaintiff sued under the tort doctrine of ultrahazardous activity. She had a novel theory “since handguns are manufactured to injure or kill people, and since it is a statistical certainty that some handguns are actually used to injure or kill people, the handgun manufacturer should bear strict liability for the resulting damages.” Copier by & Through Lindsey v. Smith & Wesson Corp., 138 F.3d 833, 834 (10th Cir. 1998).

The test for strict liability under Utah law from an abnormally dangerous activity for harm resulting from the activity consists of the following factors:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous attributes.

Copier, at *836.

The court rejected the plaintiff’s arguments, because the test applies to the use of handguns, not the manufacture. Id. As prior case law addressed strict liability for gasoline leaking from the operation of gas stations or the use of dynamite for blasting, the issue was the use, not the manufacture of those materials. As the rules for strict liability were inapplicable to the manufacture of handguns, there was no recovery for the plaintiff. Id.

While these cases seem harmful to those who would want to sue a droid manufacturer, it does raise a possible recovery for how Battle Droids were used in combat. War is inherently an ultrahazardous activity. However, consider Lok Durd’s use of the experimental deforestation weapon in “Jedi Crash.” The use of the weapon itself on the Lurmen would have been a war crime, because the Lurmen were a civilian population under the Separatists control (Geneva Convention Article 4); the extermination of protected persons (Lurmen) would violate Article 32 of the Geneva Convention; and the weapon was an unnecessary scientific experiment. As Battle Droids were used in this war crime, there could be an argument that the droids’ actions should be measured as an ultra hazardous activity.

Is the use of Drones comparable to Droids?

In a case with a plaintiff claiming a drone strike in Khashamir was “mistaken and not justified,” the court held that issues at bar were political questions beyond the court’s judgment. Ahmed Salem Bin Ali Jaber v. United States, 861 F.3d 241, 247 (2017). The Court explained, “it is not the role of the Judiciary to second-guess the determination of the Executive, in coordination with the Legislature, that the interests of the U.S. call for a particular military action in the ongoing War on Terror.” Id. It is one thing to review the Executive Branch holding an enemy combatant; it is another to second-guess whether it was right to fire a missile. Id.

What does this mean for recovering against Baktoid Combat Autom for damages from droids? The manufacturer would be the wrong defendant; as such questions would be best framed against the Separatist government officials in a war crimes trial, not in a product defect or negligence action.

Can Baktoid Combat Autom Be Free From Liability?

It is extremely difficult for victims of droids to recover in court for damages sustained from Battle Droids and Super Battle Droids. There are serious issues of war crimes committed by Separatists who used Battle Droids against civilians, but that is a basis for international criminal courts, not civil litigation. There could be liability for Baktoid Combat Autom for Battle Droids that were sold in secondary markets used outside of the Clone Wars, but there is significant challenges to recovery under that theory as well.

May the Injustice Be With You: The Jedi Trial of Ahsoka Tano

By

Thomas Harper

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February 20, 2020

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The Clone Wars makes its triumphant return in less than 24 hours, which means we here at The Legal Geeks are bound by law to take up one of the most controversial legal issues in the entire series: The Jedi trial of Ahsoka Tano.

For those in need of a refresher, after a shocking bombing at the Jedi Temple, Ahsoka found herself framed for the attack. Facing accusations of murder and treason, Ahsoka was hauled before the Jedi Council to face judgment. Although the Jedi Order is supposed to be a bastion of truth and justice, those principles seemed to Force levitate right out the window when it came to handling accusations against Ahsoka.

Ahsoka’s trial before the Jedi High Council was a shocking turn of events that saw one of the brightest young Jedi expelled from the Order. It was the first peek into one of the most solemn inner-workings of the Jedi Order, in which Jedi face judgment from their own. Jedi Council members performed multiple roles during the proceeding, including receiving evidence, cross-examining Ahsoka, and rendering a decision on her guilt and future in the Order.

While the real-world military sadly lacks lightsabers, Force levitation, and sweet padawan braids, there is a robust justice system that includes a process very similar to what Ahsoka faced before the Council. Apart from courts-martial, which are criminal trials, a service member can also face a separate adverse administrative process, which can kick them out of the service and strip them of certain benefits.

Real-world Army officers who are accused of misconduct can be forced to appear before a “board of inquiry.” Instead of being presided over by a judge like in a normal criminal trial, a board of inquiry is comprised of three senior officers, whose job is to consider evidence, reach a conclusion about the truth of the allegations, and then decide whether the officer should be kicked out of the service. Much like an actual board, Ahsoka is a Jedi holding the military rank of Commander, which subjects her to judgment before a group of the most senior members of the Jedi Order.

Army boards of inquiry would be far more interesting if everyone was issued a lightsaber and a cool Jedi robe.

Just as the Jedi Council did not criminally convict Ahsoka or throw her in prison, Army boards of inquiry are limited to deciding whether an Army officer should remain in the service. A real-world board of inquiry has no power to hand down criminal convictions, fines, jail time, or other such consequences one might face at trial. Ahsoka’s Jedi trial was similarly limited in its scope, with the Order’s judgment being limited to expelling Ahsoka from the Order, while the possibility of criminal punishment was left to the Republic and everyone’s favorite set of cheekbones, Wilhuff Tarkin.

While Ahsoka’s proceeding was called a “trial,” she very clearly didn’t receive all the rights we afford to defendants. While this doesn’t seem fair, even real-world boards of inquiry don’t give military officers every bit of available due process. Those limited rights stem from the limited scope of the board. Since officers don’t face a criminal conviction or jail time at a board, there is less of a need for robust due process protections.

For example, unlike at a criminal trial, an officer has no Constitutional right to confront the witnesses at a board of inquiry. That means that a witness statement could be used to present certain facts instead of calling that witness to the stand to testify. Since the Jedi Council was only considering expelling Ahsoka from the Order, she similarly had fewer rights than she did at her eventual Republic criminal trial.

Little Known Jedi Fact: Mace Windu also wields a purple gavel at all Jedi Order proceedings.

But before you go give a high five to Mace Windu and a low…low five…to Yoda for offering Ahsoka some due process, it’s important to realize the huge number of problems with Ahsoka’s “trial”—problems which combined to railroad her out of the Order.

Even though military officers don’t get every bit of due process protection at a board, they still enjoy some protections, which are key to ensuring a fair and impartial process. One of the biggest problems with Ahsoka’s trial is her lack of defense counsel. Unlike Ahsoka’s subsequent Republic trial, where she is deftly represented by Padmé (who may face her own charge of practicing Star Wars law without a license), she faces the Jedi Council without the benefit of an attorney. Even though Anakin Skywalker accompanies her to the proceeding, he plays no role—except for nearly starting a brawl with the Temple Guards after the verdict is handed down.

A trained and experienced defense counsel would have almost certainly helped her case. Military officers are assigned a military defense counsel to represent them before a board of inquiry. The counsel plays a critical role in protecting the officer, from helping prepare the case to questioning witnesses and presenting arguments. It’s unclear whether the Order has any trained Jedi attorneys (totally unbiased opinion: they ABSOLUTELY should), but assigning Ahsoka a more senior Jedi like Tera Sinube or Cere Junda to her case would have almost certainly helped. Where Ahsoka seemingly struggled to present her case to skeptical Council members, a more senior Jedi could have better broken through some of that bias by leveraging their own reputation and experience.

Yelling and beating up Temple Guards doesn’t count as expert legal advocacy, Anakin.

The lack of impartiality amongst the Council is another massive shortcoming of Ahsoka’s trial. Real-world boards of inquiry are comprised of senior officers who are required to be impartial and detached from the allegations. In most cases they do not know the accused officer and have no prior knowledge of the allegations. Before the board begins military defense counsel have the ability to question the officers on the board about their possible biases or preconceived notions, similar to how jurors are questioned before a criminal trial. If a board member is biased, the accused officer can challenge a board member and potentially get them replaced.

In Ahsoka’s case, the Jedi Council members who sat in judgment were about as far from impartial as you can get. From Plo Koon, who had known Ahsoka since discovering her on the planet Shili, to Obi-Wan Kenobi, who had served extensively alongside Ahsoka in combat, each of the Council members knew her intimately. Even though some of the Council’s prior relationships likely colored opinions in Ahsoka’s favor, those relationships nonetheless would have made it extremely difficult for Council members to remain fully impartial.

However, it is the Council’s prior knowledge of the case that posed one of the biggest issues. In the real world, board members have zero or very little prior knowledge of the case. This is by design, as it allows them to hear evidence without preconceived notions or opinions. It is then up to the military attorney prosecuting the case the present the facts to the board through witnesses and other evidence. In Ahsoka’s case, the Jedi Council had perhaps more prior knowledge about the case than any other Jedi in the Order. From the immediate aftermath through the investigation, the Council was kept informed of virtually every detail of the case. This information clearly colored their judgment, as Council Members like Mace Windu weaponized their pre-existing knowledge to pointedly cross-examine Ahsoka.

Moreover, their deep emotional connection to the case undoubtedly compromised their judgment. The attack itself represented a brazen and deadly assault on the home of the Jedi and the Council. The loss was clearly felt deeply by the Council, who attended the funeral of the Jedi killed in the attack, with Yoda delivering a stirring eulogy for the fallen. While Jedi might generally pride themselves on their lack of attachment, the pull of this connection was on display during the trial, with Council members seeming to care more about assigning blame than about a legitimate search for the truth. Forcing Ahsoka to plead her case before such a deeply biased and partial body virtually guaranteed her expulsion from the Order.

Jedi Council Schedule: 10am-Attend funeral of bombing victims; 12pm-Lunch at the Jedi Cafeteria; 1pm-Sit in judgment of the person accused of killing the victims.

As if Ahsoka didn’t face enough of an uphill battle, the actual conduct of the trial was rife with unfairness. While the Jedi Council took their time to conduct a relatively extensive investigation, Ahsoka was barely afforded any time to prepare for her trial. An actual military officer would receive advance notice of the board, which gives them a meaningful opportunity to prepare a defense. Ahsoka is given none of that time or access to evidence, and is instead hastily brought before the board and forced to slap together a case.

The lack of time for preparation is a serious problem given how evidence is presented at Ahsoka’s trial. In a normal military board proceeding, there is no presumption of guilt. The Army as an organization bears the burden of proving the allegations and persuading board members to kick the officer out of the service. An attorney for the government is assigned to present evidence and make arguments in order to prove the Army’s case.

The Jedi Order turns that concept on its head. Rather than sit and hear a complete set of evidence, Council members walk in having made a range of assumptions about certain facts. The end result is Ahsoka being forced into the deeply unfair position of having to prove her own innocence. Without the ability to have counsel or line up favorable witnesses, she is also forced to give up her right to remain silent, which is something actual officers are entitled to. Given the possibility those statements could be used against her at a separate criminal trial, this put Ahsoka in a precarious position.

The most appalling injustice of Ahsoka’s trial: Not giving her so much as a three-legged stool to sit on during the proceedings.

The degree to which the deck was stacked against Ahsoka became readily apparent as the Council rendered its verdict. After taking almost no time to hear evidence or allow Ahsoka to present her case, Yoda announced that the Council had already reached its verdict. Under normal circumstances, members of a board would deliberate over the evidence in private, much like a jury in a criminal case. Here, the Council devoted exactly zero minutes to deliberation before delivering its pre-cooked verdict. Anakin immediately recognized how unfair the circumstances were, calling out the Council and nearly starting an epic battle royale with Temple Guards in the trial chamber.

In the end, the Jedi Order offered about as much due process to Ahsoka as Jabba the Hutt gave Han before trying to throw him in the sarlacc pit. For an organization that prides itself on wisdom, knowledge, and justice, the Jedi Order displayed a shocking lack of those qualities in its treatment of Ahsoka. The Jedi Council’s knee-jerk lunge towards quick justice is symbolic of the larger fracturing of the Jedi Order under the stress of the Clone Wars.

The Mandalorian as a Guardian – Time to Update the Tax Withholdings

By

Jed Bodger

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January 22, 2020

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I. Introduction

As I watched the Mandalorian, Season 1, there were clearly some tax issues raised, which I’m sure you all thought while you were watching as well. Something along the lines of “why is Disney so focused on ensuring tax literacy through the guise of this excellent TV show?” Well, this post deals with that so, be forewarned, SPOILERS AHEAD, as I will discuss the conclusion of the season and it’s interaction with tax law. Let’s get started shall we.

II. Background

At the conclusion of season one, the Child is placed in the hands of its[1] Mandalorian protector, much the same way Mando was protected by a Mandalorian guardian as a child/youngling. Once a youngling is taken under the care of a Mandalorian, the Mandalorian creed demands the Mandalorian care for the youngling and raise them as their own. This is the way. Mando therefore has an obligation to raise the Child in the Mandalorian religion and belief, meaning *fingers crossed* we are going to get the child in traditional Mandalorian armor in the coming season (I for one can’t wait to see a Mandalorian helmet with ears!).[2] What this really means is that Mando has potentially adopted the Child, or even if there is no actual adoption, the Child has been placed in the care of Mando, and will be considered a dependent for tax purposes.

Now that Mando has a new dependent in the household, he has some paperwork to do. The end of a year (or TV season) and life changing events are always a good time to review your tax withholdings.

III. Tax Withholding Generally

Individual federal income taxes are a “pay as you go” tax meaning that individuals are required to pay in a minimum amount on their account during the year, either through estimated quarterly payments, or as applicable to most individuals, through tax withholding on wages paid by employers. Generally speaking, taxes are withheld from employee paychecks by the employer and remitted to the federal government on the employee’s behalf.[3] For simplification, let us make an assumption that the guild and its members operate in an employer/employee style relationship.[4]

IV. Wage Withholding As the Tax Withholding Mechanism

The amount of an employee’s tax withholding is determined by the elections the employee makes on Form W-4. Form W-4 allows employees to determine the appropriate amount of withholding from their employer. The Internal Revenue Service (IRS) recommends that employees review their withholding determinations annually, but especially when the employee experiences “life changes” such as marriage, divorce, birth or adoption of a child, home purchase, retirement, etc.[5]

a. Wage Withholding by Employer

Employers are required to withhold income tax from wages, salaries, or other compensation paid to employees at rates designed to equal the tax liability that is anticipated will be imposed on these payments.[6] At periodic intervals the employer must report and pay over to the IRS the amounts withheld from its employees.[7] This withholding helps to ensure that tax compliance is automatic and funded, helping to eliminate the compliance gap associated with tax compliance. Considering the number of individual returns filed, this withholding funds the majority of the tax collection made by the US Treasury Department.

While the Employer will remit the tax withheld from the employee’s wages, the employer is directed how to withhold on behalf of the employee based on Form W-4. Each employee is required to furnish their employer Form W-4 which communicates the withholding status of each employee.[8] On the basis of the information provided on Form W-4, the employer withholds the appropriate amount of tax, and files a quarterly return of employment taxes withheld on Form 941.[9] The employer also provides the employee with a Form W-2 reflecting the total wages paid and amount of tax withheld on or before January 31 after the close of the calendar year.[10] The amounts of tax withheld are remitted to the IRS quarterly or deposited with a depository bank authorized by the IRS pursuant to a specified depository procedure based on the total amount of taxes withheld.[11]

This is the Guild’s responsibility; however, they operate under the direction of Mando as to how much to withhold per pay period. And Mando’s life has changed, as he is now the guardian of the Child, so his withholding exemptions should be adjusted accordingly.

b. Wage Withholding Exemptions and Employee Adjustment of Form W-4

Assuming that Mando takes the IRS advice and reviews his withholdings on an annual basis, he will need to update his withholding calculations in order to account for the new dependent in his life.

i. Determination of Whether the Child is a Dependent

As depicted within the Mandalorian, the Child does not appear to have a family (that we have seen), it has been kidnapped, not once, but twice, with the second kidnapping resulting in the Child’s connection with Mando. Therefore, we will assume that there is no other family for the Child, and that Mando is currently its appropriate (and dare we even say lawful) guardian.

Generally, a dependent is an individual who is either a qualifying child or a qualifying relative of the taxpayer.[12] The taxpayer has the burden of proving that a person claimed as a dependent exists and qualifies as a dependent.[13] Here, Mando needs to demonstrate that the Child is a “qualifying child” for IRS purposes.

ii. Qualifying Child

A qualifying child, with respect to any taxpayer for any tax year, is an individual who satisfies five conditions.[14] First, the individual must bear a qualifying child relationship to the taxpayer.[15] Second, the individual must have the same principal place of abode as does the taxpayer for more than one-half of the tax year.[16] Third, the individual must meet the age requirements.[17] Fourth, the individual must not have provided more than one-half of his or her own support for the calendar year in which the tax year of the taxpayer begins.[18] Fifth, for tax years beginning after 2008, the individual must not file a joint return, other than a joint return filed solely as a claim for refund of estimated or withheld taxes, with the individual’s spouse for the tax year beginning in the calendar year in which the tax year of the taxpayer begins.[19] In Mando’s case, the only items that really need examination are the first (qualifying relationship); second (principle place of abode); and third (age requirements).

1. Qualifying Relationship

A qualifying child relationship exists if the individual is any of the following:[20] (i) a child of the taxpayer;[21] (ii) a descendant of a child of the taxpayer;[22] (iii) a brother, sister, stepbrother, or stepsister of the taxpayer;[23] or (iv) a descendant of a brother, sister, stepbrother, or stepsister of the taxpayer.[24]

These appear to be difficult roles for Mando to slot into with regard to the Child. Mando seems to look more like a “foster parent” than an adoptive parent at this stage in the series. Generally speaking, “foster child” describes a relationship in which a child is not living with either of the child’s natural parents and has not yet been legally adopted.[25]

Foster children are considered part of a household, and therefore eligible for determination of being a qualified child if the foster child is “a member of the household for more than one-half of the period after the individual’s birth, adoption, or placement for adoption or in foster care or before the individual’s death.”[26] Being a “foster child” means that the Child is considered a “child of the taxpayer.”[27] This effectively demonstrates that foster children can be considered dependents if they are members of the household. As such, we can treat the Child as a “qualifying relative” to Mando.

2. Principle Place of Abode

I mention this only because I think that Mando sleeps in his ship. That seems uncomfortable, but that seems to be the case. So, yeah, looks like they share the same principle place of abode. But, let’s explore.

To meet the residency requirement, the qualifying child must have the same principal place of abode as the taxpayer for more than one-half of the tax year. A person’s “principal place of abode” is the primary or main home or dwelling where the person resides.[28] So, a flying ship, so long as they are both residing in it should qualify.

If, during a taxpayer’s tax year, the taxpayer adopts a child, a child is lawfully placed with a taxpayer for legal adoption by that taxpayer, or an eligible foster child is placed with a taxpayer, the residency requirement for a qualifying child is treated as met if the taxpayer and the child have the same principal place of abode for more than one-half of the portion of the tax year as required for a qualifying child following the placement of the child with the taxpayer.[29] So, as long as Mando and the Child are together, if they spend more than ½ of their nights together in that cramped ship, again, they should meet the residency requirements.

Interestingly, a qualified kidnapped child is treated as having the same principal place of abode as the taxpayer (yes, this exists in the internal revenue code).[30] A qualified kidnapped child is a child of the taxpayer who satisfies two conditions.[31] First, the child must be presumed by law enforcement authorities to have been kidnapped by someone who is not a member of the child’s family or the taxpayer’s family.[32] Second, the child must have had, for the tax year in which the kidnapping occurred, the same principal place of abode as did the taxpayer for more than one-half of the portion of the year before the date of the kidnapping.[33] This treatment ends as of the taxpayer’s first tax year beginning after the earlier of the calendar year in which there is a determination that the child is dead or the calendar year in which the child would have attained age 18.[34]

Here, while it is safe to assume that the Child was kidnapped at some point (and possibly even kidnapped by Mando), the relationship has shifted, and Mando is more in line with a foster parent, so that analysis should be applied. However, during the period when the Child was first kidnapped, its biological parents could have relied on the kidnapped child statute to maintain their dependent tax deduction. What a wild universe.

3. Age Requirements

This one is tricky. Technically, the Child does not meet the age requirement as it is 50 years old. However, if you take a human average life and the average life of the Child’s species, then there may be an argument that the Child’s age (50) is not a hindrance to making the Child a dependent.[35]

The age requirement is met if an individual satisfies any one of three tests, so long as the taxpayer claiming the individual as a qualifying child is older than the child.[36] The first test is met if the individual has not attained the age of 19 as of the close of the calendar year;[37] the second test is met if the individual is a student who has not attained the age of 24 by the end of the calendar year;[38] and the third test is met if the individual is permanently and totally disabled[39] at any time during the calendar year.[40] The IRS has ruled that, for these purposes, a child attains a particular age on the child’s birthday.[41] In addition to satisfying one of the three tests above, a taxpayer claiming the individual as a qualifying child must also be older than the child.[42]

Here, the Child has both obtained an age older than the highest available student age (24) and at the ripe young age of 50, is potentially older than Mando (although that is not free from doubt). Utilizing the rationale for converting the Child’s age into human years, we see that the Child is effectively only 5, and thus we are able to drive the Child’s age within the qualifying ages, and drive Mando’s age in excess of the Child’s, meaning that we can make the case that the Child and Mando satisfy the age requirements of IRC §152.

c. Impact of Determining the Child is a Dependent

Introduction of a new dependent into one’s life, such as the Child for Mando, is a major life event, as well as a major tax event. Mando could previously claim an additional allowance for a dependent and may still qualify for the Child Tax Credit, Child Care Tax Credit and other tax breaks. For tax years beginning before January 1, 2018 an individual taxpayer was allowed one personal exemption themselves and one for each dependent. For tax years prior to 2018, the exemption was $4,050 per dependent. After passage of the tax cuts and jobs act (TCJA) personal exemptions were eliminated and the standard deduction was increased. This means that the deduction for personal exemptions such as for a taxpayer, a taxpayer’s spouse, and a taxpayer’s dependents is $0 for tax years 2018 through 2025.[43] While dependent deductions are no longer available, the Child Tax Credit is still available, and the value has been increased from $1,000 per child to $2,000 per child. If Mando can’t qualify the Child for the Child Tax Credit, he could possibly still take a benefit from the credit for other dependents, which is significantly less than the child tax credit, but hey, it’s not nothing ($500 per qualifying dependent).

Additionally, for Mando, if he ultimately adopts the Child, he is eligible for the adoption tax credit. However, this post is not about the tax benefits of having kids, it’s about how to update your W-4 if you are a Mandalorian who happens to foster or adopt a young force powerful creature. The addition of a dependent in your life may still allow Mando to reduce his withholding to account for the added tax benefits, providing him more in his pocket from his paycheck. While the elimination of the personal exemption will reduce the benefit Mando sees in his after tax paycheck, Mando should still update his tax forms after adding a dependent to his household.

d. How to Update Form W-4

As shown above, the Guild, as Mando’s employer, has an obligation to withhold and remit taxes on Mando’s behalf, collected from his salary. The amount of the withholding is based on the Form W-4 Mando provided the Guild, and the number of allowances he claims. While Mando is fearless in gun fighting scenarios, he should be similarly confident when it comes to updating his W-4. The IRS has made it relatively easy to calculate one’s allowances in order to determine what the appropriate withholding is.

Previously, withholding allowances and total withholding was determined by walking through the worksheet provided on the 2^nd page of Form W-4. In certain instances, there are additional instructions available from the IRS; however, that is relatively uncommon. When Mando decides he needs to update his withholdings, he will likely follow the workbook available at IRS.gov through the “Withholding Estimator” in order to determine what his appropriate withholdings should be, now that he is the guardian of a youngling.[44] This tool allows Mando to answer some questions to determine what his allowances are, and what his withholding should be.

Withholding allowances are a tool used by the IRS in determining appropriate withholdings based on current marginal rates. “Withholding allowance” specifically refers to an exemption from tax which reduces how much income tax an employer deducts from an employee’s paycheck. The relationship between exemptions and taxes are inverse. The more allowances claimed the less tax will be withheld from the employee’s paycheck. The inverse is also true, because the fewer exemptions claimed will result in greater tax withholding from the employee’s paycheck.

As noted, Mando now has a new dependent, so he likely has a higher number of allowances to claim, meaning he will have less tax withheld, and more cash in his pocket per paycheck.

V. Conclusion

Ultimately the end of the Season or the End of the year is always a good time to reassess things. Similarly, when there is a significant life change that occurs, it is a good time to review the items that impact your life, in particular your financial life. Now that Mando has adopted the Child, he should revisit his Form W-4 and determine if he needs to update his allowances to ensure that his tax withholdings match his estimated tax due, keeping additional dollars in his pocket, to ensure that he can keep the Child flush in fresh frogs thanks to an influx of funds.

[1] My daughters and I have a running debate about the gender of the child, as it’s never actually revealed, so we will leave it as “it” for these purposes.

[2] My wife and I also have a philosophical debate currently raging as to whether the titular “Mandalorian” is actually Mando, or the Child, as the Child ends up a Mandalorian youngling when he is placed in the guardianship of Mando in the last episode of season 1. Just another layer of credit that the show deserves. It’s really good

[3] Independent contractors and individuals who are not employees have their compensation reported via Form 1099.

[4] A savvy attorney would have structured the activities as those of independent contractors, and considering that payments are made solely based on bounties, it is realistic to conclude that the Guild and the bounty hunters that do work for it would be considered independent contractors, but for these purposes, we will assume that the guild operates as an employer, and Mando is considered an employee.

[5] See IRS “Tax Withholding for Individuals”, available at https://www.irs.gov/individuals/employees/tax-withholding (last accessed 1.19.2020).

[6] Internal Revenue Code (IRC) §3401; IRC §3509.

[7] IRC §3501; Treas. Reg. §31.6011(a)-4.

[8] Treas. Reg. §31.3402(f)(5)-1(a).

[9] IRC §3501; Treas. Reg. §31.6011(a)-4.

[10] Treas. Reg. §31.6051-1.

[11] IRC §6302(c).

[12] IRC §152(a).

[13] See Brown v. Commissioner, 61 T.C.M. 2832, 2833–34 (1991); Lerch v. Commissioner, 53 T.C.M. 1101, 1119 (1987), aff’d on other issues, 877 F.2d 624 (7th Cir. 1989).

[14] IRC §152(c)(1); Prop. Reg. §1.152-2(a).

[15] IRC §152(c)(1)(A); Prop. Reg. §1.152-2(b).

[16] IRC §152(c)(1)(B); Prop. Reg. §1.152-2(c).

[17] IRC §152(c)(1)(C); Prop. Reg. §1.152-2(d).

[18] IRC §152(c)(1)(D); Prop. Reg. §1.152-2(e). See Kho v. Commissioner, T.C. Summ. Op. 2019-18 (foster children who did not have same place of abode as the taxpayer for more than one half of tax year, and for whom taxpayer did not provide more than one half of support for calendar year in which tax year begins were not eligible qualifying children or qualifying relatives).

[19] IRC §152(c)(1)(E); Prop. Reg. §1.152-2(f).

[20] See e.g. §152(c)(2); Prop. Reg. §1.152-2(b).

[21] IRC §152(c)(2)(A).

[22] IRC §152(c)(2)(A). See also Cowan v. Commissioner, T.C. Memo 2015-85 (because Tax Court determined that T can no longer claim X as her qualifying child, X’s child cannot be considered T’s qualifying child by virtue of being descendant of X).

[23] IRC §152(c)(2)(B).

[24] IRC §152(c)(2)(B).

[25] See, e.g., O’Neal v. Wilkes, 439 S.E.2d 490 (1994). There is a full body of case law on what constitutes a foster child, so we will not focus on it here. We can just assume that Mando is the foster parent of the Child.

[26] Prop. Reg. §1.2.-2(d)(4).

[27] IRC §152(f)(1)(A)(ii) (defining “child” as “an eligible foster child of the taxpayer”).

[28] See e.g. Prop. Reg. §1.152-4(c)(1).

[29] Prop. Reg. §1.152-4(d)(2).

[30] IRC §152(f)(6)(A) (flush language); Prop. Reg. §1.152-4(e)(1).

[31] IRC §152(f)(6)(A).

[32] IRC §152(f)(6)(A)(i).

[33] IRC §152(f)(6)(A)(ii).

[34] IRC §152(f)(6)(D).

[35] The current average human lifespan is 79 years. Yoda, the only other creature in the star wars universe who appears to be of a similar species to the Child lived to be over 800 years old. If you divide 800 and 50 by ten, to get human equivalent years, the Child would be the human equivalent to 5 years old. Clearly within the age limitations for IRS purposes.

[36] IRC §152(c)(3); Prop. Reg. §1.152-2(d).

[37] IRC §152(c)(3)(A)(i).

[38] IRC §152(c)(3)(A)(ii).

[39] IRC See §22(e)(3).

[40] IRC §152(c)(2)(B).

[41] Rev. Rul. 2003-72.

[42] IRC §152(c)(3).

[43] IRC §151(d)(5), added by the 2017 tax act, Pub. L. No. 115-97, §11041.

[44] See IRS “Tax Withholding for Individuals”, available at https://www.irs.gov/individuals/employees/tax-withholding (last accessed 1.19.2020); https://www.irs.gov/individuals/tax-withholding-estimator (last accessed 1.19.2020).

How to Defend Ben Solo

By

Josh Gilliland

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January 14, 2020

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Ben Solo was very busy as Kylo Ren commiting murder, war crimes, kidnapping, torture, and workplace bullying. Did the Dark Side: 1) Destroy Ben Solo’s ability to distinguish between right and wrong? or 2) Make him act under a delusional compulsion? Judge Carol Najera and Sylvia La Rosa joined me to discuss the possible defenses for Ben Solo for the crimes he committed as Kylo Ren.

A Fist Full of Mandos

By

Jordon Huppert

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January 8, 2020

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Mandalorian Episode 4 — Photo Credit: Disney+, The Mandalorian

What do you do if your space shrimp fishing village is attacked by bandits? That is the question that the residents of a village on the planet of Sorgan find themselves in during the events of Episode 4 of Disney+’s The Mandalorian. Now, if you haven’t seen the show you should check it out because it’s quite good. If you want to watch the show before reading this article I won’t blame you, and you probably should, but if you want to plow ahead then I’ll try to make this as spoiler free as possible. That said, here’s the spoiler summary from the show so far: The Mandalorian (or Mando), a bounty hunter, was hired to return a bounty. The bounty turned out to be internet sensation Baby Yoda. Mando decided he didn’t want the Baby experimented on, so he steals him from the remnants of the Empire and goes on the run. Thus, he finds himself on Sorgan confronted by two space shrimp farmers. This brings us back to the original question, what do you do if you find your village attacked by Klatoonian raiders? Well, you really only have a few options: option 1 you run away and find somewhere else to live, option 2 you do nothing and keep giving them what they want from your village and hope they don’t kill you (hint: probably not your best option), option 3 you rally the villagers and fight back, option 4 you hire a professional bounty hunter who’s a bit down on his luck and protecting the internet’s new cutest thing ever. Guess which option these guys picked. If you guessed option 4, you are correct (incidentally, if you guessed option 3 you’re kind of right but it wasn’t what we were going for so half points).

Now, let’s make a slight tweak to the show here and make Mando a law abiding citizen who doesn’t really want to go out and straight murder these raiders for money. Does Mando have some legal justification that will let him keep his newfound law abiding attitude and still take the payment the villagers offered him? It might surprise some to learn that the law does make some accommodations for the use of deadly force that might let Mando take this job without looking at the next rest of his life in a New Republic prison. They are called justification defenses and in broad terms they all look like this: the Defendant (Mando in our case) says, “yes I killed all those raiders but I was legally justified in killing them because of …” whatever specific defense applies. Let’s look at three justification defenses and see if they’ll help our friend Mando out of the dilemma he finds himself in. All three of these defenses are fairly standardized across the jurisdictions (at least at the basic level we’re going to cover here) so I’m going to use Oregon’s laws as examples. If you want the law where you live, check your local law library. Also, at this point it seems worth a reminder that in real life by the time you’ve gotten to the point of considering what defenses might apply to an action you are already in deep trouble so take a few steps back and avoid trouble where at all possible. Now, back to the Mando.

The first defense we should consider is perhaps the most famous, Self-Defense. In its purest form a case of self-defense looks like this. You’re minding your own business sitting in a bar, maybe getting hired to run some passengers off world, when all of a sudden a Rodian drops in across from you and points a blaster at your head. Were that Rodian to say something about your dead body being the idea of the situation you would be fully justified to shoot him first. Let’s break this down into the elements of the defense. Looking at Oregon Revised Statutes (ORS) 161.209 we see that a person is entitled to use self-defense when they reasonably believe that they are in imminent danger of having unlawful physical force used against them and that they may respond with whatever degree of force they believe is reasonably necessary. Subject to some limitations, but we’ll get back to that later. Applying the self-defense rule to our bar example above: our hero reasonably believes that the Rodian is imminently going shoot him, because the Rodian has just told him that’s the idea. There’s nothing lawful about shooting someone in a bar because they have a bounty on their head placed there by a crime lord (look, if it’s not obvious at this point that we’re talking about Han and Greedo in the cantina during A New Hope you might want to go watch the original Star Wars movies). So, Han reasonably believes he is going to be killed unlawfully by Greedo and he gets to shoot him in self-defense, but what about Mando and the raiders? Well, we run into one problem right away. Unlike the cantina example the Raiders aren’t threating Mando himself so self-defense is out. Luckily, there is another. No, not another Skywalker (well yes apparently one of those too) but another defense.

Closely related to self-defense is the defense of others. It has the same elements, reasonable belief, imminent treat, and reasonable response but you are acting in defense of someone else instead of in defense of yourself. This looks more like what Mando might rely on to attack the raiders. The villagers are certainly in danger and it is reasonable for Mando to believe that they are. The trouble is, there is very little to indicate that the danger is imminent. Put another way, it is not an imminent threat for me to type in this article that I’m going to shoot you. I don’t own a gun and I don’t know who you are or where to find you. You have no right to self-defense against me because of that line in an article you read online (keep that in mind please). Similarly, even a vague threat from the raiders that they’ll be back isn’t enough for a threat to be imminent. When we make justification defenses available in the law they are meant to be available as last resorts.

The final justification defense we might look at is defense of property. ORS 161.229: A person is justified in using physical force, other than deadly physical force, upon another person when and to the extent that the person reasonably believes it to be necessary to prevent or terminate the commission or attempted commission by the other person of theft or criminal mischief (damaging or destroying someone else’s property) of property. At first blush, this looks promising for Mando. The raiders are certainly committing theft and criminal mischief against the villagers. The trouble Mando will run into in asserting defense of property is that it limits the use of deadly force which is, if we’re being honest, Mando’s go to. See ORS 161.229. The limit on deadly force is something of a reflection on our values as a society. You aren’t privileged to kill someone over property because we value life more than stuff, at least that’s the theory. Mando would be privileged to use deadly force if, and only if, he were defending the premises and not the stuff there, which he is by the end of the episode. He is privileged to defend the premises by deadly force if necessary because by this point he is trying to prevent the raiders (who are trespassing) from committing a felony by force or violence (wholesale murder of the village). There’s a problem though, Mando and Cara Dune baited the raiders into attacking. This would make sense if you’re a mercenary hired to protect a village, but it would also negate any self-defense claim. Recall that you are only privileged to use self-defense if you are in danger, but you are lose that privilege if you provoke that danger with the aim of then being able to defend yourself. For example, if you attack a raider camp with the aim of provoking them into attacking you so that you can defend yourself, you do not get to claim self-defense when you then kill all the raiders and destroy their AT-ST. The reason for this is of course because we don’t want to make it legal for someone to provoke someone into a fight just so they could beat or kill them and then claim self-defense. Self-defense is designed to be a rare event reserved for those situations when you are truly under threat and don’t have a choice other than to defend yourself.

The real problem we run into in this analysis is that when legislatures create these types of justification defenses they are created for individuals not communities. For the protection of communities we typically create police forces or militaries depending on if we’re looking to protect from internal or external threats respectively. These laws simply weren’t made for the situation the Sorgan farmers found themselves in and unfortunately we don’t get enough background on the planet to know what form of government it might have and if that government has any protection to offer the farmers. It seems clear though that rather than looking at justification defenses for the assaults, murders, and various other crimes Mando commits (or allegedly commits) it makes more sense to look at this as a quasi-governmental action to protect the village. If you look at in that light, a sovereign entity like the village is perfectly at liberty to protect its sovereignty from outside threats like other governments or raiders. Sovereignties can do things like preemptive strikes or hiring mercenary forces that individuals can’t and under those parameters Mando and Cara’s actions were entirely justified.

Neglect on Navarro: Charges Against the Empire for the Abuse of The Child

By

Kean Zimmerman

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January 7, 2020

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29-The-Mandalorian-Scout-Troopers — Photo Credit: Disney+, The Mandalorian

The finale of The Mandalorian contained twists, turns, and a fair share of action to send off the series’ characters at the end of their first season. However, much of the action centered around the Mandalorian’s small travel companion and his pursuit by the remnants of the Empire. Despite the innumerable atrocities committed by the Empire, none were more prevalent in this chapter than the abuse suffered by Baby Yoda (we use this name for convenience and acknowledge that the life form may have no relation to Yoda whatsoever). So how exactly could the New Republic hold the Empire accountable in this scenario?

** Spoilers for The Mandalorian Ahead**

From the very first chapter, the Empire has been on an intense man(baby?)hunt for the young bounty. However, it was not until this chapter that they took him into their custody. At the end of the seventh chapter, we see two scout troopers gun down Kuiil before making off with Baby Yoda. This is in itself likely constitutes a crime.

Reckless Endangerment

Connecticut defines reckless endangerment as when a person, with extreme indifference to human life, recklessly engages in conduct which creates a risk of serious physical injury to another person. C.G.S. § 52a-63(a). Given that we see smoke rising from Kuiil’s body at the end of the seventh chapter it’s safe to assume that the scout troopers fired on him while he was attempting to get Baby Yoda back to the Razor Crest. The shots surely created a risk of serious physical injury to Baby Yoda as it clearly resulted in the death of Kuill. Not only could one of the shots have hit Baby Yoda, but the resulting crash (unseen, but assumed since Baby Yoda was found on the ground) could also have caused serious physical injury.

Risk of Injury to a Minor

It is not as clear if the scout troopers could be charged with risk of injury to a minor. Connecticut’s charge for risk of injury to a minor makes it a crime to place a child under the age of 16 in a situation where that child is at risk of life endangerment, injury to health or moral impairment, or to otherwise do anything likely to cause impairment to that child’s health or morals. C.G.S. § 53-21(a)(1). From chapters one and two, we know that the bounty was originally described to the Mandalorian as being 50 years old. Despite the fact that Baby Yoda objectively acts like a child, there is little question that he does not fit the age requirement under this law. As a result, and even though the shots fired at Kuiil could represent a risk of life endangerment to Baby Yoda, it is unlikely that the scout troopers could be charged with risk of injury to a minor.

Kidnapping

The more obvious charge here would be kidnapping as it was the scout trooper’s clear intent to whisk Baby Yoda back to the clutches of the Empire. Kidnapping in the first degree and the second degree both require the abduction of another person. C.G.S. §§ 53a-92a – 53a-94. However, to be kidnapping in the first degree the abduction has to be for a ransom, for inflicting physical injury or sexual abuse, for accomplishing the commission of a felony, or for terrorizing the victim or a third person. Id. It is clear from the troopers’ actions that Baby Yoda was abducted, as we see in the opening minutes of the eighth chapter. In that scene we see the scout trooper played by Jason Sudekis (now disowned by Second City Theater for his reprehensible actions) physically punch Baby Yoda.

At this point, not only can we establish the assault of Baby Yoda (the cause of physical injury to a person with the intent to cause such harm see C.G.S. § 53a-61), but this also satisfies the second element of kidnapping in the first degree since Baby Yoda certainly suffered from physical abuse. In fact, given that this kidnapping occurred with the use of firearms (regardless of how inaccurate any of the shots may be), this would constitute kidnapping in the first degree with a firearm. C.G.S. § 53a-92a. This charge carries a mandatory one year sentence that cannot be reduced.

Liability for the Empire

There is little doubt that the scout troopers could be held criminally liable for their actions against Baby Yoda. Were it not for the actions of the recommissioned nurse droid IG-11 those scout troopers would still be at large. As a result, they cannot be held responsible for their crimes. However, the Empire, or its remnants, may also be held liable for those same actions. Although most jurisdictions hesitate to extend vicarious liability to employers for the criminal acts of their employees, individual employers can still be held liable on conspiracy charges in certain circumstances. Conspiracy is described as follows:

A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy. C.G.S. § 53a-48.

Presuming the scout troopers were acting under the orders of Moff Gideon when they absconded with, and subsequently held Baby Yoda, then it could be presumed that Moff Gideon had agreed with them to commit the kidnapping. In fact, although we do not see this in the show, it can be presumed that Moff Gideon ordered the scout troopers to obtain Baby Yoda. Given that the scout troopers were successful in their attempt to whisk away Baby Yoda, this would suffice in committing an overt act in pursuance of the kidnapping of Baby Yoda. Likewise, Moff Gideon, or anyone directing the actions of the scout troopers, could be held liable for conspiracy of other criminal acts of the scout troopers if it can be shown that persons supervising the scout troopers agreed to engage in such conduct. For example, since the scout trooper (Jason Sudeikis) only hit Baby Yoda in retaliation for being bitten (understandably), no one else in the Empire had conspired with the scout trooper to commit that act. Thus the elements for conspiracy to commit battery would not be met.

While Baby Yoda is safe, at least for the moment, we cannot ignore the great harm he was subjected to in the season finale at the hands of the Empire. It will be up to the New Republic to hold the last remnants of the Empire responsible for their actions. Even if Baby Yoda’s age doesn’t make him a child according to the risk of injury to a minor statute, the public will still not stand for this travesty.