I Ain’t Afraid of No Reboot!

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July 19, 2016

I took my kids and my friend’s son to the new Ghostbusters yesterday. They all knew and loved the original Ghostbusters and were really looking forward to the new one. And not one of them (not my 12-year-old son, nor my-9 year-old daughter, nor the 11-year-old friend) expressed any concern or questions about why this Ghostbusters team was all women. The just wanted to see some more ghostbustin’.

Like them, I also wanted to see some more ghostbusters, and I’m big fans of any McCarthy/Feig collaboration. I also like Kristin Wiig and Leslie Jones (especially when she’s flirting with Colin Jost!). And I was beyond excited to see Kate McKinnon on the big screen. I’ve always appreciated her SNL work but I fell completely in love with her during her Alien Abduction skit (one of the top ten SNL skits of all time).

And I’m happy to report that all of us enjoyed the movie. The jokes were funny, the plot was believable enough to get invested in, and the action scenes were awesome. We all agreed that the best fight scene involved Holtzmann and her sidearms taking on a gaggle of ghosts. There were jokes I found funny that went over the kids’ heads (like most of the opening tour of the mansion) but enough broad comedy to keep them entertained, from shooting a ghost where it hurts to everything Kevin did (Chris Hemsworth should only do Thor and comedy movies). My only beef is that Melissa McCarthy, a comic genius, played the straight guy for most of the film.

++Slight spoiler alert++

As for legal issues, the first question that jumps out in any Ghostbusters movie is whether these people are vigilantes. A vigilante is “a member of a self-appointed group of citizens who undertake law enforcement in their community without legal authority, typically because the legal agencies are thought to be inadequate.” That’s certainly true here, when the Ghostbusters were specifically told to stand down because Homeland Security was handling the ghost problem. This order was ignored, of course, because they knew Homeland Security couldn’t handle the problem. (I just wish they’d given Matt Walsh, who is so brilliant on Veep, a bit more to do with his DHS role.)

Usually, there isn’t a direct statute or regulation that forbids vigilantism. Instead, it’s the actions taken by vigilantes – arresting people, harming people, etc. – that are illegal. Laws against false imprisonment, kidnapping, and assault and battery address the actions taken by vigilantes. But those laws are addressed to people: you cannot falsely imprison people, assault people, etc. See, e.g., NY Penal Code, Art. 135 (unlawful restriction of a person). And ghosts aren’t people (any longer). So the Ghostbusters are probably safe on that front.

They could get in trouble for impersonating a law enforcement official, which is against the law everywhere. See, e.g., NY Penal Code, Art. 190.25 (3)(a). But their uniforms looked more like those of garbage collectors and, as was noted in the movie, their car siren had a distinctly “un-American” sound. Lastly, the Ghostbusters, like all other heroes of late, have to face the question of whether they should be responsible for the damage they cause while fighting ghosts. As Josh already analyzed so aptly for Supergirl, the answer is: it depends. But when they damaged Bennie’s motorbike because they were testing out Holtzmann’s awesome new toys (a very funny scene), that’s on them!

One final, non-legal note: I totally prefer the way Ghostbusters handled the end of the movie, after the official “end,” to the way Marvel makes us sit through very long credits to get one more teaser scene. I could have watched Kevin dance all afternoon!

Trainer Tips: Pokémon Go and the Law

By

Roger Quiles

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July 17, 2016

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Do you want to be the very best, like no one ever was? If you’re one of Pokémon Go’s 21 million daily active users, chances are you do. For those unaware, Pokémon Go is an augmented reality app which uses a smartphone’s GPS and camera in order to see, catch, train, and battle Pokémon in the world around us.

Effectively, the app is the closest representation to what it would be like to actually have Pokémon inhabit our world without the sporadic fires, hurricanes, and floods caused by the Pokémon themselves.

But while Pokémon trainers are wading in the tall grass in their attempt to catch ‘em all, simple missteps may actually bring those trainers into contact with Officer Jenny rather than the elusive Ditto they were searching for.

In the week since the app’s release, questions have been raised about user conduct as people have utilized unlawful, and dangerous, methods in their search to catch ‘em all.

Here are some helpful legal tips for any Pokémon trainer:

Pokéstops and Gyms are public places for a reason

Though your legs may be sore from the many kilometers you’ve walked to hatch your eggs, avoid entering private property as a means of getting close enough to utilize a Pokéstop or Gym. Otherwise, you may be arrested for trespassing.

In New York, a person is guilty of trespass when they knowingly enter or remain unlawfully in or upon premises. There are several aggravating factors which can escalate the severity, and criminality, of the trespass, such as if the premises is fenced or enclosed to exclude intruders, the type of premises it is (i.e. a school, residence), and whether the trespasser was in possession of a firearm or explosive.

Pokéstops and Gyms were made public places so that all trainers could enter their areas legally. However, the maps used by Niantec and Nintendo in creating Pokémon Go are slightly outdated, and there have been reports of Pokéstops and Gyms being placed on private property. Unfortunately, entering private property to access said Pokéstop or Gym would be considered trespassing, regardless of how long the player remained on the property. Additionally, there have been reports of Pokéstops being located at military bases, and even a Gym in the Korean Demilitarized Zone (which has since mysteriously disappeared). Needless to say entering into any area occupied or operated by any military entity without the proper clearance is likely unlawful, and perhaps dangerous. In essence, don’t go looking for Lt. Surge.

Stay out of other people’s tall grass

It may be tempting to enter property that does not belong to you in search of a Pokémon you’ve been tracking. However, your pursuit of that Pokémon does not allow you to enter onto that property lawfully. Some States allow for the pursuit of wild game onto another’s property in order to hunt said game. The underlying concept as to what is considered to be “wild game” is known as Ferae Naturae, which are animals that are wild by nature and by which possession is a means of acquiring title to. In those States, while in pursuit of wild game and entering onto another’s property, trespass would not be warranted. This concept also allows whoever trapped or killed the animal to obtain rightful possession of the animal, regardless of whose property it was killed or trapped on. However, as Pokémon are sadly not real, it cannot be said that Pokémon are wild by nature. The limitation of Pokémon to being trapped inside our phones and ultimately being a byproduct of code immediately removes any consideration that they would be considered wild game. Therefore, entering onto another’s property in pursuit would still be trespassing.

Trainers don’t travel by car

One of the reasons Ash never drove a car during his adventures (aside from him being a child) is that it is much easier to stop for Pokémon when you are walking or riding a bicycle. Similarly, you should not utilize the app while driving. Aside from the incredible danger that such use creates, the use of a cell phone while driving is generally unlawful.

Pursuant to section 1225-d of the New York Vehicle and Traffic Law, “no person shall operate a motor vehicle while using any portable electronic device while such vehicle is in motion.” The statute further states that a cell phone is considered an “electronic device” and that “using” includes playing games on said device.

Based on a plain reading of the statute, playing Pokémon Go while driving is unlawful. Though the potential enforcement of these laws would likely result in fines, playing Pokémon Go while driving is a serious safety concern. In fact, several car accidents have been reported as a result of users playing Pokémon Go while driving. Trainers should take the safe and legal approach of walking while playing.

Conclusion

Pokémon trainers should always engage in lawful conduct in their pursuit of catching ‘em all. As tempting as it may be to track Pokémon to another’s property or to drive instead of walk to hatch eggs, such conduct is unlawful and importantly, unsafe. Stay safe fellow trainers, and as always, be on the lookout for Team Rocket.

Civil War 2 Murders Federal Jurisdiction

By

Josh Gilliland

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July 14, 2016

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If you have not read Civil War 2 issue 3, stop reading now. There are major spoilers based on the trial depicted in the story. The comic is excellent with real loss. More importantly, Brian Michael Bendis is telling a story that highlights the danger of playing God with the future. No question about it, this time I am Team Iron Man.

The story opens with Matt Murdock prosecuting the murder trial of Clint Barton (Hawkeye) in Federal Court in Manhattan for the murder of Bruce Banner in Alpine, Utah. The number of problems with this trial will make any lawyer Hulk out.

The Wrong Lawyer Prosecuting the Case

Matt Murdock is an Assistant District Attorney for New York City, NOT a US Attorney. It makes zero sense for Murdock to be prosecuting a Federal murder trial. Assistant District Attorneys do not bring cases in Federal Court. That is the job of US Attorneys, who prosecute Federal crimes on behalf of the United States.

First question, was there a Federal crime violated?

The Federal crime of murder is defined under 18 USCS § 1111(a):

Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnaping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.

Assuming Federal Jurisdiction is proper because of a Federal investigation, Hawkeye clearly could be charged under the Federal statute for first-degree murder, because 1) he killed Banner with malice aforethought; and 2) was lying in wait in order to take the kill shot.

Problem: the murder happened in Utah, NOT New York state.

Barton could be prosecuted under the laws of Utah for the intentional killing of another human being (See, Title 76, Chapter 5, Section 203 (76-5-203) of the Utah State Legislature).

The rare times New York Assistant District Attorneys are on a Federal trial is when they are on a team with Federal Prosecutors. This happens in situations when an investigation begins in New York state court and then is turned over to Federal Prosecutors (perhaps in order to seek the death penalty). As Bruce Banner was killed in Utah, New York state would not have an investigation into an out-of-state crime.

Is New York the Right Trial Venue?

The murder of Bruce Banner took place in Alpine, Utah. Clint Barton was immediately arrested after the murder in Utah. Based on those facts, the trial of Barton should have been held at the United States District Court, District of Utah, in Salt Lake City. This is also presuming that Federal Jurisdiction is proper, which arguably is correct. SHIELD Director Maria Hill did declare the murder investigation a Federal crime scene.

The State of Utah could also prosecute Clint Barton, as the murder was committed in Alpine, Utah. This would be proper, as the State of Utah and the United States are separate sovereigns, thus it is not an issue of double jeopardy. As Manhattan is approximately 2,203.8 miles from Alpine according to Google Maps, it is a stretch for the case to be brought in New York City.

Crimes are usually prosecuted in the county or state where the crime occurred. There are times when Federal Courts might have exclusive jurisdiction over specific subject matter. Perhaps all cases with SHIELD are tried in Federal District Court in New York. However, that seems like a very obtuse practice, as Federal law enforcement agencies conduct activities all over the United States. There is not one Court for the FBI in Washington, DC, so it would be odd for one Federal Court in New York to hear all SHIELD cases.

Civil War 2 is a very thought provoking comic. The story of why Hawkeye killed Bruce Banner is well done. However, as for what was the right court for the trial of Clint Barton, the story missed the target.

Thoughts on Balance of Terror and Darmok

By

Josh Gilliland

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July 12, 2016

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July 12, 2016 is the four-year anniversary of Jessica and I starting The Legal Geeks. My first post analyzing geek issues in the law was the Star Trek episode Court Martial. I felt it was only fitting to celebrate our anniversary with a discussion two of my favorite Star Trek episodes: Darmok (TNG) and Balance of Terror (TOS).

A big thank you to everyone who has enjoyed our blog since its maiden voyage.

Please Nominate The Legal Geeks for the ABA Journal Blawg 100

By

Josh Gilliland

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July 8, 2016

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The ABA Journal is accepting nominations for the 2016 Blawg 100. We would greatly appreciate any of our readers submitting “friend-of-the-blawg” briefs by August 7, 2016.

We are having an amazing 2016, thanks to all of you who enjoy our blog. One of the biggest highlights so far for this year was the Mock Trial of the Winter Soldier, which brought law students together from McGeorge, Whitter, and Michigan, for an awesome trial. The trial was complete with psychologists who prepared detailed expert reports on the insanity defense, plus cosplayers as witnesses. Approximately 130 people attended the mock trial, having one impressive civics lesson through pop culture.

Our next adventure is two panels at San Diego Comic Con. We have an impressive number of lawyers joining us, including an Associate Justice from the California Supreme Court. If you are attending SDCC, please be sure to Tweet or message us on Facebook, so we can say hello.

Again, thank you for joining us for our adventures. We would greatly appreciate your nomination for the ABA Journal Blawg 100 (available on the hyperlink). Thank you, and stay geeky America.

Are You a Collaborating POW If Assimilated by the Borg?

By

Josh Gilliland

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July 1, 2016

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The Borg assimilate species to add their distinctive to the Borg’s collective. Cultures uniformly resist, resulting in their military being assimilated by the Borg. Would the crew of the USS Enterprise NCC 1701-E in Star Trek First Contact who were assimilated by the Borg be considered Prisoners of War? Did they have an obligation to try to escape? Did Captain Picard owe the assimilated crew a duty to rescue them?

Provided the Federation has similar laws to the United states, a “prisoner of war” is “any regularly appointed, enrolled, enlisted, or inducted member of the military or naval forces of the United States who was held as a prisoner of war for any period of time subsequent to December 7, 1941, by any government of any nation with which the United States has been at war subsequent to such date.” 50 U.S.C. § 4105.

A Prisoner of War is defined under the Geneva Convention as “Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces…[fallen into the power of the enemy].” USCS Geneva III, Article 4. However the language might differ in the fictional 24th Century, Starfleet officers and crew would meet the definition of members of the armed forces who had fallen into the power of the enemy, after they were assimilated.

The Uniform Code of Military Justice and Code of Conduct for Members of the Armed Forces of the United States defines how the US Military prohibits service personnel from collaborating with the enemy. See, Uniform Code of Military Justice, 904 Article 104. Judge George Latimer highlighted the reason for President Eisenhower’s Executive Order No. 10631 as follows:

We cannot and should not close our eyes to the fact that the alleged offenses occurred at a time when the accused was a prisoner of the enemy, and that he is not the first American whose activities during that time led to prosecution. United States v Dickenson, 6 USCMA 438, 20 CMR 154; United States v Batchelor, 7 USCMA 354, 22 CMR 144. These and similar incidents led to the promulgation of a formalized Code of Conduct by the President — one which reaffirmed the duty of every serviceman to resist this Nation’s enemies, in mind and spirit, in combat and captivity, to the bitterest of bitter ends. Executive Order 10631, August 17, 1955, 20 FR 6057. What, then, are we to say to those who did thwart the enemy and his designs while in captivity? Must they serve side by side with others such as this accused, who informed, and collaborated, and murdered — and benefited thereby? Will not discipline, morale and good order suffer measurably if one who murders his compatriot can remain in the service and escape punishment because he re-enlists before his crime is detected? Should the authority of military justice to punish the wrong done depend upon the illogical and fortuitous contingency of an intervening honorable discharge when it is delivered only after the accused has re-enlisted in the service? The answer should be obvious — and is to us.

UNITED STATES v. GALLAGHER (U.S.C.M.A. 1957) 22 CMR 296, 302.)

Starfleet likely has similar rules prohibiting officers and crew from providing the enemy with arms, supplies, or money. The Federation would likely have a similar Code of Conduct for Members of Starfleet to that of the United States:

“All members of the Armed Forces of the United States are expected to measure up to the standards embodied in this Code of Conduct while in combat or in captivity. To ensure achievement of these standards, members of the armed forces liable to capture shall be provided with specific training and instruction designed to better equip them to counter and withstand all enemy efforts against them, and shall be fully instructed as to the behavior and obligations expected of them during combat or captivity.”

“I

“I am an American, fighting in the forces which guard my country and our way of life. I am prepared to give my life in their defense.

“II

“I will never surrender of my own free will. If in command, I will never surrender the members of my command while they still have the means to resist.

“VI

“I will never forget that I am an American, fighting for freedom, responsible for my actions, and dedicated to the principles which made my country free. I will trust in my God and in the United States of America.”

53 FR 10355

In the aftermath of Wolf 359 with a death toll near eleven thousand and 39 starships destroyed, angry family members of victims might argue those who were assimilated by the Borg were collaborators. See, Star Trek the Next Generation, Best of Both Worlds, Parts 2; Star Trek the Next Generation, The Drumhead. However, those assimilated by the Borg could not be prosecuted for Collaboration or Aiding the Enemy (assuming they could escape after the events of Star Trek Voyager Unimatrix Zero Part 2 or Endgame). First, those assimilated did not “surrender of their own free will”; they were forcibly altered with technology. 53 FR 10355. Second, while the bodies of those assimilated did aid the Borg “with arms, ammunition, supplies,” it was not a voluntarily act. Uniform Code of Military Justice, 904 Article 104.

Starfleet officers assimilated by the Borg would have a strong insanity defense for their actions against the Federation. A defense attorney could prove those assimilated by the Borg were “unable to appreciate the nature and quality or the wrongfulness of [their] acts.” 18 USCS § 17(a). Liberated Starfleet officers would need to testify how the Borg used them as weapons, completely destroying their free will. Expert testimony could prove how Borg technology infects their victims at the cellular level, physically altering them, and suppressing their individual decision making ability.

Assimilated officers on the Enterprise did not have the free will necessary to mount an escape from the Borg, such as Commander Worf and Doctor Bashir did from the Dominion (see Deep Space Nice, By Inferno’s Light). While it would be prudent to vaccinate all Starfleet officers with the inhibitor created by the Doctor in Star Trek Voyager Unimatrix Zero Part 2, that was after the events of Star Trek First Contact.

The morally troubling issue is Captain Picard “euthanizing” an officer assimilated by the Borg in the failed attempt to re-capture the Engine Room. While the necessity defense does not permit murder, the Borg are relentless killing machines. The issue of trying to rescue assimilated officers was a no-win scenario in First Contact, given the risk of assimilation and ensuring Zefram Cochrane’s first warp flight. Picard was justified in killing Ensign Lynch and any other Borg, since the risk of failure in stopping the Borg would destroy the future. While this on its face is the abandonment of Federation values in war, a board of inquiry would support Picard’s command decision, as destroying the Enterprise-E should have been only done as a last resort to stop the Borg.

Judging Frankenstein

By

Josh Gilliland

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June 24, 2016

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The Imaginary Worlds podcast celebrated the 200^th Anniversary of Mary Shelley beginning to write “Frankenstein, or the Modern Prometheus,” on June 16, 1816.

Arizona State University is honoring the anniversary with The Frankenstein Bicentennial Project, which was ultimately published in 1818.

This got me thinking…who was the first Judge to reference Frankenstein in an opinion?

The answer is Chief Justice William Pryor, of the Court of Appeals of Kentucky, on June 13, 1896. The case involved mayoral appointed officials who were members of executive boards who were removed from office. Todd v. Dunlap (1896) 99 Ky. 449, 452.

Chief Justice Pryor made his Frankenstein reference in the following paragraph:

If these powers were all that were attached to the office of mayor, he would be helpless to perform the duties required of him. In what way could he be vigilant and active in causing the ordinances of the city to be enforced if the boards of his appointment, creatures of his creation, were turned upon confirmation into a set of Frankenstein monsters, who could set him at defence? How could he exercise a general supervision over all the executive and ministerial officers of the city, and see that their official duties are honestly performed, if those officers are responsible alone to a tribunal over which he has no control, though appointed by him and sharing his executive powers? What sort of statements in writing concerning the discharge of their duties might he expect from members of the boards who share his powers, and, because it was supposed that they were responsible to him, have been given greater powers than those granted to him? What benefit would he derive from statements of subordinate officials, heads of inferior departments, etc., who are responsible alone to independent and perhaps hostile tribunals? With what obstructions, tangible and intangible, would the examiners appointed by him meet in investigating the affairs of a city department over which he could exercise no control, or of an officer who owed allegiance to a different chief?

Todd, at *466-467.

This makes Chief Justice Pryor one of the earliest Legal Geeks in US History. There are likely more, but let’s salute Chief Justice Pryor paving the way for Judges today who make geek references to Star Wars, Harry Potter, Batman, Spiderman, Star Trek, and many other stories from popular culture.