Was Captain Kirk Legally Right to Sentence Khan to Ceti Alpha V?

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June 10, 2016

Khan Noonlen Singh attempted to murder Captain James T. Kirk and take over the USS Enterprise in the Star Trek episode “The Space Seed.” Khan was sentence by Captain Kirk to Ceti Alpha V, to follow the Paradise Lost maxim that it is “better to reign in Hell, than serve in Heaven.” Ironically, that came true after Ceti Alpha VI exploded.

Did Captain Kirk have the authority to sentence Khan, his followers, and Lieutenant Marla McGivers, to Ceti Alpha V?

If Starfleet followed similar regulations to the United States Navy, commanding officers have the power for non-judicial punishment to those onboard their vessel for minor offenses, which is known as “Captain’s Mast.” 10 U.S.C. § 815; Cappella v. United States (1980) 224 Ct.Cl. 162, 164. However, mutiny is not minor.

The Uniform Code of Military Justice has the precedent to govern “the conduct of those persons in the military or those directly connected with it, in all places, foreign and domestic.” United States v. Burney (U.S.C.M.A. 1956) 21 CMR 98, 112-113, citing Article 5, Uniform Code of Military Justice, 50 USC § 555. Furthermore, someone subject to court martial who “willfully and wrongfully hazards or suffers to be hazarded any vessel of the armed forces shall suffer death or such other punishment as a court martial may direct.” 2012 Manual for Courts-Martial Article 110.

The USS Enterprise found the SS Botany Bay adrift in space. The crew of the Enterprise saved Khan’s life while he was he being revived from suspended animation. Khan recovered on the USS Enterprise, taking the opportunity to study the technical manuals of the Enterprise. As such, Khan would have been “embarked” onboard the USS Enterprise, which is defined as “to go on on board (as a boat or airplane),” thus subjecting him to the regulations onboard the vessel. See, Royal Caribbean Cruises v. United States (S.D.Fla. May 31, 1995, Case No. 95-204-CIV-ATKINS) 1995 U.S. Dist. LEXIS 8243, at *4., citing Webster’s Ninth New Collegiate Dictionary.

Khan willfully endangered the USS Enterprise by first taking control of the vessel by cutting off life support from the Engine Room, torturing Captain Kirk in a decompression chamber, and ultimately attempting to destroy the Enterprise with warp core overload. Kirk arguably could have had Khan prosecuted and executed for his crimes. Instead, Kirk dropped all the charges against Khan and his followers. Giving Khan the choice to colonize Ceti Alpha V was a far less severe punishment than death, however, far more severe than placing them in a rehabilitation facility. This sentence could logically be seen as proportional to their crimes.

Lieutenant McGivers willfully participated in a mutiny onboard the Enterprise by helping Khan beam over to the Botany Bay, revive his crew, and then beam them back to the Enterprise. If Starfleet had similar laws to the United States, she could have been fined and/or imprisoned for not more than ten years. 18 U.S.C. § 2193. McGivers took the plea deal to avoid a court martial. This was effectively a life sentence to spend the rest of her life with Khan on a barely habitable planet. McGivers should have talked with a lawyer before accepting the plea deal.

Captain Kirk was arguably within his legal rights to give Khan the option to colonize Ceti Alpha V. It appeared Kirk held what would have been “special court martial at sea,” or in this case, space, in order to adjudicate the charges against Khan. After dropping the charges, Kirk gave Khan an offer for a new life. While the Federation might have wanted to have a war crimes trial for Khan over the Eugenic Wars, this issue was moot with Kirk settling the Augments on a new world to tame.

Can the Klingon Empire Sue Earth for Damages Caused by V’Ger?

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Josh Gilliland

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June 6, 2016

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Star Trek The Motion Picture opened with the excitement of three Klingon K’t’inga battle cruisers attacking an alien cloud. All three Klingon vessels were quickly destroyed by massive energy weapons that enveloped each ship one by one.

Many audiences probably thought, “This will be one EXCITING movie! I hope there are motorcycles too!” A few lawyers by the end of the film in 1979 could have thought, “Could the Klingons seek damages from the Federation for the loss of their vessels?”

V’Ger was originally launched as Voyager 6 from the United States. While the area known as the United States still exists in Star Trek, it is not stated if there is still a government of the United States. For the sake of argument, we will consider the Federation of Planets the successor in interest to the United States government.

V’Ger crossed Klingon space on its journey to learn all that is learnable and return that knowledge to its Creator on Earth. The Klingon’s attacked V’Ger for its intrusion into their space. While it is debatable that V’Ger simply flying through Klingon space was an act of aggression, the Klingon Empire does have a honorable self-defense argument for V’Ger’s intrusion into their territory.

Klingon attorneys could argue that the United States launching Voyager 6 to explore unknown space was the negligent conduct that resulted in the probe falling through a black hole. As a result of falling through the black hole, Voyager 6 encountered a machine planet that reprogramed the probe as V’Ger to complete its mission. The Klingons could further argue V’Ger’s original programing was defective, resulting in the probe destroying vessels it encountered on its return voyage to Earth.

Prior case law involving the loss of vessels at seas states that, “Negligent conduct on the navigable waters that causes loss to another constitutes a maritime tort.” Tidewater Marine v. Sanco Int’l, Inc. (E.D.La. 2000) 113 F.Supp.2d 987, citing United States v. M/V BIG SAM, 681 F.2d 432, 443 (5th Cir. 1982), cert. denied, 462 U.S. 1132, 103 S. Ct. 3112, 77 L. Ed. 2d 1367 (1983).

There must be legal causation under general maritime law for a party’s negligence to be actionable by a plaintiff. Tidewater, at *987, citing Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 648 (5th Cir. 1992). This requires that the defendant’s negligence was a substantial factor in causing the plaintiff’s harm. Id, citations omitted. Case law defines “substantial” as “more than but for the negligence, the harm would not have resulted.” Id, citations omitted.

Comparative negligence applies if there are more than two parties at fault. Tidewater, at *988. As the Klingons did attack V’Ger, comparative negligence will be applied in the analysis of whether the Federation is financially liable to the Klingon Empire.

No one at NASA in the late 1970s could have foreseen Voyager 6 encountering a planet of living machines after falling through a black hole. As such, the “superseding cause” doctrine will also be applied, which states that when a defendant’s negligence substantially contributes to the plaintiff’s injury, “but the injury was actually brought about by a later cause of independent origin that was not foreseeable.” Id. The doctrine can be summarized as, “the subsequent negligence of the third party must be so extraordinary that a reasonably prudent person could not have foreseen its occurrence.” Tidewater, at *999, citing Miss Janel, Inc. v. Elevating Boats, Inc., 725 F. Supp. 1553, 1569 (S.D. Ala. 1989).

The Klingon Empire would have a difficult time establishing liability for the Federation of Planets for the destruction caused by V’Ger. First, the act of launching Voyager 6 to lean all that is learnable and return that knowledge to Earth is not by itself negligent. The probe contained no weapons and was designed to explore space. Second, it was not foreseeable that Voyager 6 would encounter an alien machine planet that would reprogram the NASA probe to the point it gained consciousness on its mission. The encounter with the alien planet would be “so extraordinary that a reasonably prudent person could not have foreseen its occurrence.” Finally, the Klingons fired first on V’Ger. While the Klingons could argue V’Ger was in their sector of space, it was them who threatened V’Ger first, thus resulting in V’Ger defending itself against the attacking K’t’inga battle cruisers.

The Vision on the Policy of Truth

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Josh Gilliland

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June 2, 2016

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The Vision by Tom King and Gabriel Hernandez Walta is the ultimate parable that honesty is the best policy. Especially for a synthezoid family if they want to avail themselves to the legal system.

Vision’s career as an Avenger has run the gambit from fighting Ultron, to taking over the United States ballistic missile system, to the US Government taking him apart for compromising the security of US nuclear weapons, to saving the world at least 37 times. What does a robot do after such complex career? Start a robot family in a Washington, DC suburb. After building his wife Virginia, Vision built their children Vin and Viv.

The Grim Reaper, brother of Wonder Man, attacked the Vision’s wife and children while Vision was away. The daughter Viv was impaled by the Reaper’s scythe. The Reaper cut Vin the son. Virginia did the normal motherly act of bashing in the back of the Grim Reaper’s skull to kill him. Instead of calling the police, she told her son not to tell the Vision.

Assuming the Commonwealth of Virginia recognizes the Vision family as “people,” Virginia Vision could have argued that she acted in defense of both Viv and Vin. The Supreme Court of Virginia has recognized that a person can use force in defense of family members. Foster v. Commonwealth, 13 Va. App. 380, 385 (1991); Hodges v. Commonwealth, 89 Va. 265, 272, (1892)). The test is whether the defender “reasonably apprehend[s] death or serious bodily harm to another before he or she is privileged to use force in defense of that person.” Foster, at 385-386.

The fact Viv had been impaled was more than enough to for Virginia to “reasonably believe” that the lives of her children were in danger.

As multiple Presidents have learned over the decades, it is the cover-up that gets them into trouble. Virginia buried the Grim Reaper’s body in the backyard and kept this fact a secret from the Vision. Life spun out of control with Vin getting into a fight at school, Virginia getting blackmailed with video of her burying the Grim Reaper, and the accidental death of the blackmailer’s son.

Tom King has done a magnificent job telling the tale of a lie spinning out of control, where bad decisions are made on top of bad decision. The irony of living machines that continue to “logically” make poor choices is a unique vision of humanity. As with life, a policy of truth could have avoided a litany of mistakes.

The Character Assassination of Captain America

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Josh Gilliland

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May 25, 2016

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Captain America is a member of HYDRA who murders another super-hero. That will sell comics. I picked up the second to last issue 38 minutes after the local comic store opened. It also should make the walls at Marvel bleed. The ghosts of Joe Simon and Jack Kirby are likely screaming down the halls for the way Steve Rogers has been defiled.

The new Steve Rogers: Captain America truly dishonors the 75-year history of the character in the final pages of the comic. Joe Simon and Jack Kirby created Captain America prior to the United States entering World War II. As the Nazis and Imperial Japan waged war on neighboring countries, the United States dug in its heels on staying out of the war. From Senator Gerald Nye and the Neutrality Acts, to college students taking the Oxford Pledge to never defend the United States, to children being sent to American Nazi summer camps, there were many in the United States willing to let the world burn down.

Joe Simon and Jack Kirby created a character that represented the best of America. Simon and Kirby forged Steve Rogers in the hearts of those who knew right from wrong, who believed in hope, and were not afraid to take a stand against evil. Steve Rogers represented the Americans who risked their citizenship to sneak into Canada in order to travel to England to fight in the Battle of Britain; Steve Rogers represented those who enlisted after the attack at Pearl Harbor; and Steve Rogers represented the sacrifice of those who did not come home. The character of Captain America is the personification of the Greatest Generation.

The new Captain America story throws all the nobility of the character out the window. Seeing Captain America murder someone is grossly offensive. The families of Simon and Kirby are owed apologies for this character assassination. Whatever happens with this story arc, let it end quickly.

Is the Horta an Endangered Species?

By

Josh Gilliland

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May 24, 2016

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The Horta is a silicon-based life form from the Star Trek episode “Devil in the Dark.” The Horta lived Janus VI, tunneling through rock for nourishment. The Horta lifecycle included all but one Horta dying off every 50,000 years. The remaining Horta protected thousands of Horta eggs in the Vault of Tomorrow in the Chamber of the Ages.

All was going along according to the 50,000 year lifecycle until the miners of Janus VI discovered the Chamber of the Ages and unknowingly destroyed thousands of eggs. The Horta responded by protecting its nest, killed over 50 miners and one Red Shirt, and stole the nuclear reactor pump for the station. Without the pump to prevent the station from going critical, the invasive species of humans would be forced to abandon the planet.

Would the Endangered Species Act protect the Horta, provided the Federation had a similar law? Would Starfleet have to create a Horta habitat for the species to recover?

The Endangered Species Act was passed to protect species that are “endangered” or “threatened.” A species is “endangered” if it is “in danger of extinction throughout all or a significant portion of its range.” 16 U.S. CODE § 1532(6). A species is “threatened” if it is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. § 1532(20); Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1202 (D.C. Cir. 2013). A species is considered “endangered” because of “natural or manmade factors affecting its continued existence.” 16 USCS § 1533(a)(1)(E).

Chief Engineer Vanderberg’s miners killed thousands of Horta gestating in eggs. Furthermore, only one adult Horta was left alive to raise the soon-to-hatch Horta. The manmade mining operations placed the entire Horta race “in danger of extinction throughout all” of its range.

Protecting eggs of threatened or endangered species has been done many times under Federal and State law, from fish to sea turtles. See, State v. Davis (Fla. 1990) 556 So.2d 1104) and Beatty v. Fish & Wildlife Comm’n (2015) 185 Wn.App. 426. It is only logical that the law would also protect Horta eggs to prevent the extinction of the species.

The fact only one adult Horta was left alive highlights the danger to the survival of the species. The equivalent Federation agency to Fish and Game could determine that the fact there was only one “Mother” to the species, and that thousands of eggs had already been destroyed, that the Horta was indeed definitely endangered. Granted, the time listed as an endangered species might be for only until the young hatchling Horta mature.

One of the highlights of this episode is the miners go from a pitchfork wielding mob wanting revenge, to the horrified realization of “Oh Dear God, we killed thousands of them.” Neither the Horta nor the humans showed any ill will to each other after communications had been made, thus finding a way to coexist in mutually beneficial cooperation. The episode represents the best qualities of Star Trek where “new life and civilizations” come together in peace after a rough start.

Does the Black Panther Have Diplomatic Immunity?

By

Josh Gilliland

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May 21, 2016

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T’Challa is a very busy new King of Wakanda in Captain America Civil War. While on a diplomatic mission to sign the Sokovia Accords in Vienna, a terrorist attack killed Prince T’Challa’s father, King T’Chaka. The young King T’Challa set out as the Black Panther to avenge his father’s death with the goal of killing James Buchanan Barnes, the suspect of the attack.

The Black Panther hunted and attacked Barnes in Germany, fought with the warring Avengers at the Berlin airport, and followed Iron Man from international airspace to Siberia. Could Germany and the Russian Federation prosecute King T’Challa for trying to avenge his father’s death within their countries?

There is no question that within Wakanda the doctrine of sovereign immunity, or in T’Challa’s case, crown immunity, would protect the King from any liability for his super-hero activities. However, when a King is conducting raids in another country, the doctrine that “the king can do no wrong” is turned sideways.

Wakandan attorneys could argue that King T’Challa’s actions as the Black Panther are protected by diplomatic immunity. The Vienna Convention on Diplomatic Relations, based the concept of diplomatic immunity from the UN Charter, further the principles of “sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations.” USCS Vienna Diplomatic. The treaty specifically states that:

Believing that an international convention on diplomatic intercourse, privileges and immunities would contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems,

Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States,

USCS Vienna Diplomatic.

In the event Wakanda signed the Vienna Convention on Diplomatic Relations, there is an argument for the actions in Germany, but it is problematic.

The Vienna Convention on Diplomatic Relations is an agreement between countries to do exactly what its name says: Establish “diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent.” USCS Vienna Diplomatic, Article 2.

Diplomatic missions consist of the following:

(a) Representing the sending State in the receiving State;

(b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;

(c) Negotiating with the Government of the receiving State;

(d) Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;

(e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.

USCS Vienna Diplomatic, Article 3.

King T’Chaka would have been the “head of the mission” representing Wakanda at the signing of the Sokovia Accords in Vienna. USCS Vienna Diplomatic, Article 1. Prince T’Challa would have been a “member of the mission.” Id. However, after King T’Chaka’s death, T’Challa would have been elevated to both head of state and the head of the mission. Going out to find James Buchanan Barnes arguably could fall under Article 3 of the Vienna Convention of diplomatic missions of, “protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law.”

This is not a strong argument, as a world leader suiting up to physically capture a criminal suspect, is NOT a diplomatic mission envisioned by the treaty. It also smacks of individual motive of avenging a father and less of the state interest to seek justice for the fallen King. Moreover, it would run completely counter to the Sokovia Accords intent to approve all super-human activities.

The Black Panther engaging in activities that fall somewhere between law enforcement and espionage is one to give foreign governments pause. For example, in the United States diplomatic immunity is conditioned on the State Department being notified of foreign officials appointed by their government to diplomatic missions in the United States, pursuant to Article 10 of the Vienna Convention. Vulcan Iron Works, Inc. v Polish American Machinery Corp. (1979, SD NY) 479 F Supp 1060.

Wakanda did not notify the Federal Republic of Germany or the Russian Federation that T’Challa would enter their countries on a “diplomatic mission” to capture the suspect in the murder of King T’Chaka. As such, neither country likely would endorse the actions of the Black Panther, but neither would likely push the international incident. After all, who would think it is a good idea to prosecute a world leader trying to stop international terrorism? The leaders of Germany would look weak by comparison for their failure to capture Barnes; the Russians obvious to a secret HYDRA base with Winter Soldiers waiting to be activated. Neither are good PR days for press secretaries.

This raises an interesting question: would Putin not want to be outdone? Would he commission a bear costume, complete with red cape and Ushanka, and start calling himself Vlad-bear, to make himself look intimidating at summits?

Iron Man’s Child Endangerment of Spider-Man

By

Josh Gilliland

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May 14, 2016

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Tony Stark entered a new world of liability in Captain America Civil War. No, not a products liability case for building another murdering robot. No, not a 1983 action for holding super-heroes in a submarine prison in violation of their civil rights. This time, Tony took a minor out of the United States, without a passport, to fight other super-heroes, in Germany. Does this mean Tony Stark committed child endangerment of Peter Parker?

Sure, Peter Parker is Spider-Man, but Pete is also a high school student and a minor. Did Tony have Aunt May sign a permission slip? Or consent for medical treatment if Peter was hurt? Did Tony explain all of the possible risks to Aunt May of fighting Captain America, Bucky, Falcon, Ant-Man, or the Scarlet Witch?

Tony Stark met with Peter Parker at the Queens home of Peter’s aunt. As such, New York law will be applied. The Empire State states that a person is guilty of endangering the welfare of a child when:

He or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his or her life or health; or
Being a parent, guardian or other person legally charged with the care or custody of a child less than eighteen years old, he or she fails or refuses to exercise reasonable diligence in the control of such child to prevent him or her from becoming an “abused child,” a “neglected child,” a “juvenile delinquent” or a “person in need of supervision,” as those terms are defined in articles ten, three and seven of the family court act.

Penal Law § 260.10 (Consol., Lexis Advance through 2016 released chapters 1-31, 50-53, 56).

Tony Stark purposefully asked Peter Parker to go to Germany with him to subdue Captain America’s Avengers. This would require confronting, and possibly fighting, the greatest soldier ever, one of the greatest assassins ever, one who can warp reality, one who can defy the laws of physics, and a flying hero who is well armed. This unquestionably showed Stark “knowingly [acting] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old.”

Stark arguably was employing Parker, which qualifies as authorizing a child to “engage in an occupation involving a substantial risk of danger to his or her life or health.” As Spider-Man did take his share of hits from other heroes, the black eye given to him by Steve from Brooklyn is Exhibit A to the health danger.

The issue of whether Tony Stark contributed to Peter Parker being a juvenile delinquent might turn in Stark’s favor. Under New York law, a “Juvenile Delinquent” is someone who is over seven and less than sixteen years old who commits a crime if an adult did the criminal action, however, the youth is not criminally responsible because of age. NY CLS Family Ct Act § 301.2.

Asking a teenager to be a vigilante would be a crime, as it is asking a youth to join a conspiracy to commit assault, the intentional causing of injury to another person. NY CLS Penal § 120.05(1).

Courts do not take kindly to vigilantism. As New York Judge Vito Titone stated in a case with an prosecutor who abused his power:

A person charged with or suspected of the most heinous of crimes is still entitled to the fundamental fairness encompassed by the notion of due process. “Vigilante Justice” is abhorrent to our concept of jurisprudence whether the end product be a body dangling from a rope, or a person charged with a crime as a result of lawless conduct on the part of an overzealous prosecutor. The latter indeed is reprehensible since both society and the accused are victimized by one sworn to uphold the law.

People v. Rao (App.Div. 1980) 73 A.D.2d 88, 100 citing People v Isaacson, 44 NY2d 511, p 524 (originally cited in Can Matt Murdock be Disbarred for Vigilantism?).

The wrinkle here is Iron Man is a state actor, even if his actions are highly Constitutionally suspect. As such, Peter Parker likely registered himself with the Sokovia Accords (raising the issue of whether a minor can legally register themselves with the Sokovia Accords). There are definitely murky legal issues, however, Tony Stark arguably was not outright contributing to the delinquency of a minor by asking Spider-Man to join the fight against Captain America.

Child endangerment on the other hand, totally.