First Rule of Alien Fight is It is Illegal Prize Fighting

November 1, 2016

It was Fight Club meets Eyes Wide Shut in the Supergirl episode “Survivors.” The villainess Roulette ran a high dollar fight club for the elites of National City. As many like to imagine the rich and famous, they wear masks to watch aliens battle to the death. This raises the question, how could Maggie Sawyer follow the 4^th Amendment in stating charges against Roulette when arresting her?

The answer is simple: illegal prize fighting.

Roulette could be convicted of running a “pugilistic contest” in violation of California law. The Penal Code states:

Any person, who, within this state, engages in, engages in, or instigates, aids, encourages, or does any act to further, a pugilistic contest, or fight, or ring or prize-fight, or sparring or boxing exhibition, taking or to take place either within or without this state, between two or more persons, with or without gloves, for any price, reward, or compensation, directly or indirectly, or who goes into training preparatory to such pugilistic contest, or fight, or ring or prize-fight, or sparring or boxing exhibition, or acts as aider, abetter, backer, umpire, referee, trainer, second, surgeon, or assistant, at such pugilistic contest, or fight, or ring or prize-fight, or sparring or boxing exhibition, or who sends or publishes a challenge or acceptance of a challenge, or who knowingly carries or delivers such challenge or acceptance, or who gives or takes or receives any tickets, tokens, prize, money, or thing of value, from any person or persons, for the purpose of seeing or witnessing any such pugilistic contest, or fight, or ring or prize-fight, or sparring or boxing exhibition, or who, being the owner, lessee, agent, or occupant of any vessel, building, hotel, room, enclosure or ground, or any part thereof, whether for gain, hire, reward or gratuitously or otherwise, permits the same to be used or occupied for such a pugilistic contest, or fight, or ring or prize-fight, or sparring or boxing exhibition, or who lays, makes, offers or accepts, a bet or bets, or wager or wagers, upon the result or any feature of any pugilistic contest, or fight, or ring or prize-fight, or sparring or boxing exhibition, or acts as stakeholder of any such bet or bets, or wager or wagers, shall be guilty of a misdemeanor, and upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars and be imprisoned in the county jail not less than thirty days nor exceeding one year.

Pen. Code, § 412.

Two aliens in a cage match definitely meets the elements of Penal Code § 412. Moreover, anyone who attended the fights as a willing spectator could also be convicted of a misdemeanor under California Penal Code § 413.

A defense attorney could argue California Penal Code §§ 412 and 413 do not apply to aliens, because aliens are not “people,” thus it is a legal impossibility to be prosecuted under these code sections. While the scope of Alien Amnesty Act is not clear, it likely would take a Constitutional Amendment for a “lifeform born on another planet” to be considered a “person” under the law. That being said, the Constitution would likely protect “off world aliens,” just as the Constitution protects those who are not legally within the United States. However, the issue of “person” under the law is untested with outer space aliens.

A good district attorney would also charge Roulette and her audience under California Penal Code § 597b, which prohibits illegal fights between animals. While aliens are not specifically addressed, the law protects, “any bull, bear, or other animal,” which in the broadest sense, would apply to a being not from Earth. Furthermore, those who were spectators could be prosecuted under Penal Code § 597c.

Roulette also could be charged for racketeering, as she was operating a mercenary force for kidnapping. There is no way she could escape being prosecuted in California courts or for RICO in Federal court.

Must the United States Defend Japan from Godzilla?

Josh Gilliland

October 19, 2016

Shin Godzilla follows the proud tradition of earlier Godzilla movies where the King of the Monsters stomps ashore in Japan causing massive property damage. One government character in the film opined whether the Japanese Government could ask the United States to kill Godzilla. The film even acknowledges the legal reason for the request: the Japan-US Security Treaty. This raises the issue, would the United States have a duty under our security treaties with Japan to fight Godzilla?

The Japan-US Security Treaty is known as the Treaty of Mutual Cooperation and Security between the United States and Japan (available on the Ministry of Foreign Affairs of Japan website).

The Security Treaty was created to “strengthen the bonds of peace and friendship” between the two countries in order to uphold the “principles of democracy, individual liberty, and the rule of law.” (See, Preamble to the Treaty of Mutual Cooperation and Security between the United States and Japan).

Article V of the Treaty states the following bilateral defense:

Each Party recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes. Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations in accordance with the provisions of Article 51 of the Charter. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

Shin Godzilla shows Godzilla coming ashore in an evolving adolescent form and smashing a substantial amount of property in Tokyo. The strange beast returned to the sea to cool down before returning to cause more devastating property damage.

A Godzilla attack is objectively dangerous to the people of Japan. Godzilla is not an “armed attack” in the traditional sense of an invading army. The film acknowledged this fact as a reason why the US would not have a legal duty to defend Japan. However, Godzilla arguably is the personification of a walking army crushing life in his rage.

The United States would aid Japan in its battle against Godzilla, irregardless whether or not the letter of the treaty covered Godzilla attacks. The spirit of the treaty would validate the Japanese government making a request for military assistance.

There is a bigger foreign policy issue: Treaties for mutual defense are not predicated on international trade balances; defense treaties are based on the combating a common danger. A giant amphibian that breathes atomic fire would be a danger to every human on Earth. The United States would coordinate with the Japanese Defense Force in fighting the beast. Expect both militaries to hit Godzilla with everything in their arsenals.

A Godzilla attack would be reported to the United Nations Security Council because of the immediate threat to Japan. Moreover, Godzilla is a walking death machine. No country would be safe from Godzilla swimming across the Pacific and making landfall. Nations could elect to help fight Godzilla in Japan or wait to fight him in their own country.

Japan would not have to fight Godzilla alone. The United States values Japan as one of our closest allies over the last 70 years. While both countries have never faced the fictional threat of Godzilla, America would be there to fight the monster with Japan. The film’s climax does show both countries working together to fight the common threat, which was the intent of the Treaty of Mutual Cooperation and Security between the United States and Japan. Just none of the drafters wrote it expecting to fight Kaiju.

Lawyers for Hire: The Legal Issues in Marvel’s Luke Cage

Josh Gilliland

October 18, 2016

Jessica and I loved Marvel’s Luke Cage on Netflix. Here is our first podcast discussing the first three episodes of the show. We focus on Luke’s duty to warn attackers, RICO, Pop’s barbershop, and our impressions of the show. We also discuss the final issue of the original Heroes for Hire comic about Luke Cage and Iron Fist.

Was Dr. Strange Justified Killing a Possessed Man with Black Magic to Stop a Demon?

Josh Gilliland

October 12, 2016

The Doctor Strange story in the 1987 Strange Tales series by Peter Gillis, saw Doctor Strange killing an innocent person with black magic to defend the Earth. Stephen Strange has to compromise his soul in order to defend humanity with a significant body county.

The comic picks up with Doctor Strange’s life going into free fall after defeating Urthona. Strange had to destroy most of his white magic artifacts in order to save his friends Rintrah, Topaz, Wong, and Sara Wolfe. This left the Earth open to attack by ancient evils that had been held at bay by the now destroyed talismans.

A Water Elemental that once ruled the Earth with other ancients attacked Doctor Strange at his mansion. This demon had unleashed a storm that was having extreme effects on New York City, a farm in Ohio with giant worms, and a fishing vessel that had a giant hole ripped in its nets.

The Water Elemental claimed his storm would cause New York City to stop within a day, within a week drown, and within a month, an unstated horror. The demon effectively was threatening a new Great Flood on humanity. Strange Tales, volume 2, issue 2, page 9.

From Strange Tales, volume 2, issue 2, May, 1987. Penciler Chris Warner, Inker Randy Emberlin.

The demon possessed a man named Martin Fein. The Elemental told Strange how it possessed Fein and that all of humanity would “scream like poor Martin,” unless Strange stopped the demon. Strange Tales, volume 2, issue 2, page 10.

The problem: the only way for Doctor Strange to stop the Water Elemental, thus protect humanity, was to kill Martin Fein.

This…was bad.

New York allows for the physical force on another person if a “defender” reasonably believes force is necessary stop the harm caused by the other person. N.Y. Penal Law § 35.15.

The Water Elemental posed an active threat to all of humanity. New York was flooding, giant worms on the slither, and one soggy demon was beating up Doctor Strange while threatening to drown New York City. These facts objectively show Doctor Strange would be legally justified in destroying the Water Elemental.

This would also mean killing Martin Fein. While the Water Elemental was the clear and present danger to humanity, Martin Fein was just a person who was possessed. Perhaps if Doctor Strange had been at full power he could have expelled the demon from Fein. However, Strange was not at full power.

The law is silent on the legality of killing a demonically possessed person in order to save humanity. One could argue that Fein was “dead” the moment he was possessed. Moreover, if the Water Elemental was not stopped, everyone in New York City could have died, including Martin Fein.

The legal analysis is further complicated by the use of “black magic.” According to the Water Elemental, it was originally stopped by bloody human sacrifice. Doctor Strange would have to stray from “the path of purity” to stop the demon. Strange Tales, volume 2, issue 2, page 9.

The law does not allow human sacrifices. Doctor Strange was faced with a mystic “trolley problem,” that would require killing Martin Fein in order to stop demonic trolley from harming others.

A wrongful death case likely would find in favor of Doctor Strange, because of the impossibility of saving Martin Fein from the Water Elemental. On one level, if Fein was already “dead” because of the possession, destroying Fein’s body was like using a corpse to stop a runaway trolley. This is substantially different than using a live person to stop a runaway trolley.

Stopping the Water Elemental by killing Fein could be legally justifiable under the circumstances. However, this is still morally wrong. As the story continued in later issues, Doctor Strange’s “white magic” powers continued to weaken as he increased his use of black magic. Strange paid a price, which we will explore in future blog posts.

Ghost Rider is the Spirit of Reckless Driving

Josh Gilliland

October 4, 2016

The Spirit of Vengeance is on Agents of SHIELD burning up a body count with hellfire. The new Ghost Rider is Robbie Reyes who drives a flaming 69 Dodge Charger. Besides murdering people by ripping out spines, or burning their very souls into nonexistence, we need to discuss a bigger issue: Reckless driving.

Ghost Rider cruises the streets of Los Angeles in search of the guilty to punish. This quest has included driving in excess of the speed limit, even with Daisy Johnson hanging onto the roof of the car.

Reckless driving under California law is when someone “drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property.” Cal. Veh. Code § 23103(a). If someone who is driving recklessly is the proximate cause of bodily injury to another person, they can be imprisoned in county jail for at least 30 days, but not more than six months. Cal. Veh. Code § 23104(a).

To prove someone committed reckless driving, the State must prove that the defendant “intentionally did something with knowledge that injury to another was probable or acted with a wanton and reckless disregard for the safety of others and in reckless disregard of the consequences of his acts.” People v. Schumacher, 194 Cal. App. 2d 335, 338-39 (1961).

The Ghost Rider drove his Charger with the knowledge that Daisy was on the roof of the car. This would be reckless conduct in disregard for Daisy’s safety. Moreover, Daisy flying off the car, due to the Ghost Rider’s driving, caused Daisy’s injuries. There would be additional charges that could be filed against Robbie, including attempted murder.

The law is silent on reckless driving cases with cars that shoot flames. Many juries would think a car shooting flames would be in willful disregard of the safety of people and property if in a residential neighborhood. Moreover, courts have found that excessive speed, along with time of driving, road conditions, and surrounding circumstances, can demonstrate willful conduct. People v. Nowell, 45 Cal. App. 2d Supp. 811, 812 (1941). As such, a flaming speeding car could be proven to be done in the willful disregard of safety of others.

Ghost Rider’s 1969 Charger likely would fail a SMOG inspection for acceptable emissions standards. Cal. Health & Safety Code § 44012(c). The Charger would definitely fail the visible smoke test. Cal. Health & Safety Code § 44012.1 Moreover, most inspections would refuse to inspect the vehicle, because it is unsafe, causing either burns or eternal damnation. Cal. Health & Safety Code § 44012(i). However, the California DMV website states that gasoline powered vehicles from the year model 1975 or older are exempt from SMOG inspections. The DMV website is silent on whether a car older than 1975 powered by hellfire is also exempt.

Ghost Rider arguably is driving the Charger without a driver’s license in violation of California law. Cal. Veh. Code § 12500(a). Robbie is arguably not driving the vehicle, because he turns into the Ghost Rider, who is a separate entity. If Robbie is someone in control and not an alter ego, there is a strong argument Robbie’s driver’s license could be suspended for road rage. Cal. Veh. Code § 13351.8.

Does Luke Cage Have a Duty to Warn Attackers He’s Unbreakable?

Josh Gilliland

October 2, 2016

Marvel’s Luke Cage on Netflix is excellent. The series has perhaps the most Easter Eggs from other Marvel stories, including Avengers, Iron Man 2, Jessica Jones, and Daredevil. There are wonderful homages to the Power Man and Heroes for Hire comics of the 1970s and 80s.

Henchmen learned the hard way that Luke Cage has unbreakable skin. In the first episode, one enforcer doing a shakedown for money from a small business owner landed a successful punch on Luke’s face. This resulted in a slow motion shattering of his fist with a compound break of his radius (and possibly the ulna).

Does Luke Cage have a duty to warn people who attack him that doing so can result in shattered bones?

The short answer: No. People should not try assaulting Luke Cage. That’s a crime. The thugs should expect criminal charges while they are in the emergency room.

New York’s law on the duty to warn does not specifically address human beings with extreme strength and bulletproof skin. Generally speaking, a landowner has no duty to warn of open and obvious danger, just dangers that a person would be unaware of on the property. Marangiello v Stop & Shop Supermarket Co. LLC (Sup.Ct.) 2011 NY Slip Op 31469(U), ¶¶ 3-4.

Applying this standard to a super-hero, Luke Cage is not obviously dangerous: Luke is just a person. Thus, having unbreakable skin would be considered “latent,” because the condition is not obvious. This would tend to support that Luke would have to tell people they could be injured if they have an impact with him. This would make sense if Luke was playing a contact sport, however, would not make sense with an attacker as a matter of public policy: Attacking people is a crime; playing a sport is not.

Golfers have no duty to warn other golfers on a fairway they are going to hit ball, unless they are in the intended line of flight. Rinaldo v. McGovern, 561 N.Y.S.2d 1006, 1007 (App. Div. 1990), citing Noe v Park Country Club, 115 AD2d 230. Golfers also do not have a duty to warn those driving by the golf course they will hit a ball. Id.

Suppliers of products with dangerous conditions have a duty to warn of latent defects. Young v. Elmira Transit Mix, Inc., 383 N.Y.S.2d 729, 731 (App. Div. 1976). In a case where purchasers of cement mix suffered third-degree burns when mixing the wet cement that came into contact with their skin, the supplier was found to have had a duty to warn the plaintiff of the risk. Id.

Luke is a lot like a golfer on the golf course, and not burn inducing cement mix. Luke would not have a general duty to warn people he is both strong and unbreakable. No one being assaulted has to warn an attacker, “I will hit you hard,” when defending himself or herself. The same standard should apply to Luke Cage’s bulletproof body when he was assaulted by Cottonmouth’s goons.

Defending Luke Cage for Iron Fist’s Death

Josh Gilliland

September 29, 2016

Marvel’s Luke Cage on Netflix looks amazing. The current Power Man and Iron Fist comic is a lot of fun. Let’s get ready for the premier of Luke Cage, by looking at the final issue of the original Power Man and Iron Fist comic, where Iron Fist was killed and Luke Cage was going to be prosecuted for murder.

Luke and Danny Rand were partners with their business “Heroes for Hire.” Danny tried saving the life of a child who could turn himself into “Captain Hero,” a super-hero adult with extreme strength. Danny was beaten to death by Captain Hero in one of the most tragic scenes in comics. Luke found his dead friend and we are left with the man with unbreakable skin slumped on the floor in grief. (See, Power Man and Iron Fist, Vol 1, issue 125, with excellent summaries on Comic Book Legacy and SuperMegaMonkey’s Marvel Comics Chronology).

The police detain Luke and the District Attorney lays into Power Man with the following allegations that would be an opening statement in court:

Iron Fist was killed by someone with super strength;

Luke and Danny had a very loud and public argument;

Danny named Luke as his sole beneficiary of his fortune;

“Heroes for Hire” was doing poorly;

Luke was an Ex-Con with a reputation for being a “hot head”; and

Bobby, the child, had disappeared;

The DA openly threatening Luke Cage with prosecution should make any lawyer Hulk-out. Luke clearly should have been apprised of his right to counsel under Miranda, because any defense attorney would tell the DA to charge Luke or let him go. An attorney would use language stronger than “Sweet Christmas.”

The first fact against Luke is that someone with super-human strength killed Danny Rand. There are many characters in Marvel Comics with enhanced strength, so that in and by itself is not enough to convict Luke Cage. There would still be substantial reasonable doubt on who killed Iron Fist.

Luke and Danny’s public argument would be an out-of-court statement offered for the truth of the matter asserted, thus hearsay. The District Attorney would likely focus on Luke yelling at Danny, “That’s it, man! I’ve had it! I’m sick of this junk, Fist! I’m out! It’s over, man – Heroes for Hire is finished!” Id.

As Luke would be the defendant, there is a hearsay exception for statements by a party. Staron v. State of N.Y., 993 N.Y.S.2d 646, 646 (Ct. Cl. 2014). However, there would be other challenges to exclude any testimony about the argument, namely that the prejudicial effect of the evidence outweighs its probative value. The state could argue that the probable value outweighs any prejudicial effect, because Luke’s statement would show intent to harm Danny. However, the statement itself merely shows a heated business argument, not any threats. Moreover, if the statement was admitted, multiple Avengers and the Fantastic Four could be called in as witnesses to testify as to Luke and Danny hugging after they believed the child to be saved.

Pro-Tip to Fictional Comic Book Attorneys: If the Defense calls Captain America to testify about loyalty, saving a child, and two heroes hugging, do not cross-examine Captain America. Your case is over.

The District Attorney was wrong to claim evidence of Luke’s past [false] conviction would come into court in the murder trial of Danny Rand. New York law states that, “Evidence of prior crimes or bad acts is not admissible to show a defendant’s predisposition to criminal conduct.” People v. McPhillips, 21 N.Y.S.3d 134, 136 (App. Div.), citing People v Molineux, 168 NY 264, 291-293, [1901]; People v Norman, 837 NYS2d 694 [2007]).

There is no way Luke’s past [false] conviction would be relevant to Danny’s death. Moreover, the probative value of the past convictions would not outweigh the potential prejudice. The DA was effectively trying to convict Luke because he was convicted before. That is both “bad character evidence” and “prior bad acts,” thus would not be admissible.

The District Attorney likely would have enough evidence to charge Luke Cage. However, convicting Luke would be an uphill battle. A good defense attorney could knock down each of the State’s “facts” forming the charges around Luke Cage.

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