The Star Wars Spoilers Awaken!

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December 19, 2015

Spoilers, Spoilers, and MORE Spoilers!

We now live in the post-The Force Awakens world. A world where Star Wars fans are going out of their way to not blow any surprises for those who have yet seen the movie like it is a moral imperative.

Attorneys Jessica Mederson, Roger Quiles, Joshua Gilliland, share their thoughts on the new movie, from the theaters where they experienced The Force Awakens, thoughts on major characters, and theories on where Star Wars will go in Episode VIII and Anthology films. Listen ONLY after watching The Force Awakens, so you can be surprised.

The Law Awakens before The Force Awakens!

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Josh Gilliland

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December 17, 2015

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There has been an awakening. Have you felt it? Between property rights and breach of contract?

Nothing says the holidays like Star Wars! Tune in to hear classic Star Wars legal issues, from Darth Vader on Contracts, whether Medical Droids can commit malpractice, to Obi-Wan’s Defense of Luke Skywalker.

Cat Grant Needs Gutsier Lawyers

By

Josh Gilliland

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December 15, 2015

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At last. The lawyer episode of Supergirl. It is like writers were said, “Hey, let’s talk about hacking, incident response, a reasonable expectation of privacy on work computers, and document review.” Christmas came early for us.

Cat Grant was the victim of a hacking that exposed all of her emails. The press naturally started going through her emails, thus prompting an internal investigation of James Olsen reading print outs of her emails. Lawyers are quickly on the scene, taking a lukewarm approach to suing those who published Cat’s information.

Publication of Personal Identifiable Information

There are multiple laws in play with the Cat-Hack. Generally speaking, a data breach is access to, or the use of, or the disclosure of unencrypted personal identifiable information (for a list of state data breach notification laws, check out the National Conference of State Legislatures website). In California, personal identifiable information is defined as follows:

First name or first initial and last name in combination with any one of the following, & either are unencrypted:

SSN;

Driver’s license or ID card number;

Account number (credit card; debit card + security/access code);

Medical or health insurance information; or

User name to online accounts or email address + password or security question and answer.

Cal. Civ. Code § 1798.81.5 (d).

Cat’s hackers had access to Cat’s banking history, likely her Social Security Number, and possibly her health insurance information. There is no question that the hackers had access to Cat’s personal identifiable information. If news agencies were to publish Cat’s PII, then her lawyers should rain Hell on any publishers for the disclosure of illegally acquired and statutorily protected information.

California has a state constitutional right to privacy. Cal Const, Art. I § 1. Moreover, state law states that every person has “the right of protection…from personal insult, from defamation, and from injury to his personal relations.” Cal Civ Code § 43. As such, when information is given publicity that places a person before the “public in a false light” the wrongdoer can be sued if “(a) The false light in which the other was placed would be highly offensive to a reasonable person, and (b) The actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.” Restatement Second of Torts, section 652E.

Payment history from Cat to a 24-year-old male named Adam Foster would give rise to a false light claim. The publication of such information would be intended to give readers the inference that Cat paid a young male escort. This would be a publication that was “false, defamatory, unprivileged, and has a tendency to injure or cause special damage.” Hawran v. Hixson (2012) 209 Cal.App.4th 256, 277. Damaging Cat’s reputation with the inference that she was paying a young man for an illegal purpose should be enough grounds to successfully sue anyone who published that information. If a publication outright stated Cat paid someone for sex, her attorneys could add a claim for libel per se, because the publication would be claiming Cat committed a crime and imputed her chastity.

The young man in question was Cat’s oldest son from a prior marriage, who she lost custody of long ago early in her career. Adam Foster suddenly being subject to public ridicule would also have his own case against a news agency publishing an innuendo about he and his mother.

James Olsen is a Photojournalist, Not a Document Review Attorney

Reviewing tens of thousands of printed emails on paper is right up there with looking at the sun with binoculars.

People at work averaged sending 121 emails a day in 2014 (The Radicati Group, Inc., Email Statistics Report, 2014-2018). Given Cat’s extremely dedicated work ethic, she likely sent more like 150 emails a day. If the hack covered four years worth of email, that would be approximately 219,000 email messages. Assuming a banker’s box holds 3,000 pages, James would need 73 banker’s boxes for all of Cat’s email messages. Moving the boxes would be a job for Supergirl.

Printing that amount of email would not be practical. James Olsen would be living the nightmare many young attorneys face when senior partners say, “Just print the email.” This is great if you want to build a Fortress of Solitude with boxes, but really expensive. Worse yet, it takes data that was searchable and puts it in a non-searchable form (paper).

It would make more sense to export Cat’s email out to a review application. Using search terms, email threading, and data analytics, those conducting the review of Cat’s email could find potentially harmful information far faster then James Olsen reading one email at a time.

Work Email Privacy

Dirk Armstrong did not have a reasonable expectation of privacy in his work emails, especially if CatCo had an Internet usage policy that stated employees did not have an expectation of privacy. TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 451-452.

It is far better that corporate counsel, IT, and HR are involved in an internal investigation to avoid any legal issues, however, it is plausible that Kara had authority as Cat Grant’s Executive Assistant to order the investigation of Armstrong. First, Kara has a significant amount authority for Cat, so the issue would be if Kara had exercised similar authority before. Secondly, there was a real concern the corporate attorneys were working with Armstrong, which arguably would have violated their ethical duties to CatCo. Third, we got to see the Scooby Gang pull off a Hogan’s Hero’s style computer heist, which in the end, I think we all wanted to see anyway.

Can Pam Argue Defense of Jeri Against Kilgraved Wendy?

By

Josh Gilliland

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December 14, 2015

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AKA Jessica Jones presented a unique criminal law fact pattern: Wendy attempted to murder her wife Jeri while under the mental control of Kilgrave; Pam, Jeri’s legal secretary and paramour, saved Jeri by killing Wendy. This situation created a strange collision of the insanity defense against the defense of others in whether it was right for Pam to use lethal force to kill Wendy while under the mind control of Kilgrave.

Wendy was in the process of attacking Jeri with a large knife when Pam struck her with a blunt object to the head. Wendy had cut Jeri numerous times, as she was attempting to kill Jeri “by 1,000 cuts.” Wendy’s attack on Jeri was carried out after ordered by the Purple Man to kill Jeri.

Jeri and Wendy were in the middle of an ugly divorce. Wendy had demanded a highly suspect divorce settlement in exchange for not disclosing to the New York Bar that Jeri had bribed a juror at the beginning of her carrier. Jedi sought Kilgrave’s assistance in ordering Wendy to take a divorce settlement, likely with a very different settlement amount.

A lawyer for Wendy could have argued the insanity defense for Wendy. While Wendy was highly determined to kill Jeri for wrongs during the marriage, this arguably was because of Kilgrave’s orders, not Wendy’s own intent. A defense attorney could have argued that Wendy did not understand the nature and consequences of their criminal conduct, thus could not be convicted for assault or attempted murder of Jeri under NY CLS Penal § 40.15(1).

Pam entered Wendy and Jeri’s townhouse to find Wendy attacking Jeri. Pam objectively could see multiple cuts to Jeri and a significant amount of blood. Pam was justified in striking Wendy, because under New York law, a person “may use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person…” NY CLS Penal § 35.15(1).

Pam could reasonably have believed Jeri was the victim of the “unlawful physical force” by Wendy from the number of cuts Jeri had sustained. Moreover, Pam caught Wendy in the act of attacking Jeri. As such, Pam hitting Wendy on the head would have been justified to stop the attack on Jeri.

Pam did not intent to kill Wendy, whose head struck the side of a table. While it is highly suspect for three people in a love triangle to have a fight where one ends up dead, Pam would have a very strong defense.

The only thing that could undermine Pam’s “reasonable belief” about Wendy’s threat to Jeri, would be if Pam were aware that Kilgrave had ordered Wendy to kill Jeri. If Pam knew Wendy was not in control of her actions, this complicates the analysis. Pam could be seen as taking advantage of the situation to kill the estranged wife who was making unreasonable divorce settlement demands. Pam’s “defense of others” could suddenly look like murder.

Consider this alternative: If Pam had backhanded Wendy with the blunt instrument, hitting the left side of Wendy’s head was struck instead of the right, Wendy would not have hit the table with the left side of her head. Would that have been remotely reasonable? It is not often people find themselves in life or death situations. Pam taking a normal swing with the first object she grabbed likely was the reasonable action in order to save Jeri.

Are Targeted Killings of HYDRA Agents on Kree Moons Legal?

By

Josh Gilliland

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December 10, 2015

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The Agents of SHIELD mid-season taught a powerful life lesson: Revenge missions result in evil being released on Earth, specifically in the forms of Lash and the Extreme Ancient Hell Beast Supreme HYDRA from an alien moon. The bad guys won at the end of the day with a lot of dead Inhumans, HYDRA achieving their goal, and Lash free to run amuck.

How did this all happen? Director Phil Coulson turned into Captain Ahab in his pursuit of Grant Ward. Coulson set out to kill Ward, which is highly problematic, because SHIELD is a rogue epigone law enforcement agency acting on its own.

Coulson actions to order the killing of Ward were a conspiracy to commit murder. It is undisputed that Grant Ward is a traitor, terrorist, and has actively participated in rebellion and insurrection against the United States. However, from a law enforcement perspective, Ward would be a high value target for the FBI and CIA. The goal would be to arrest Ward and prosecute him for his crimes.

The killings of U.S. Citizens who are engaged in terrorism are currently hot legal issues. It is one thing if a citizen is killed by the military in combat while they are actively waging war against the U.S. overseas. “Targeted killings” of U.S. Citizens by drones is another matter entirely.

The “DOJ White Paper” is a 16-page memorandum on when the United States could engage in a targeted killing of a U.S. Citizen who is a senior operational leader of Al-Qa’ida or Associated Force. The three factors for a targeted killing of a US citizen who is a senior operational leader of Al-Qa’ida per the memo require:

An informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States
Capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and
The operation would be conducted in a manner consistent with the applicable law of principles.

The memo states that targeting a member of an enemy force who poses an imminent threat of violent attack to the United States is not unlawful, because it is a matter of national defense.

Assuming the United States in the Marvel Cinematic Universe prepared similar legal analysis for HYDRA, Coulson’s kill order of Grant Ward is illegal on its face.

Director Coulson is not an informed, high-level official of the U.S. government. Coulson is leading a rogue agency, which arguably would qualify as a terrorist organization, even if SHIELD is engaged in their view of national defense. As such, Coulson determining that Ward posed “an imminent threat of violence against the United States,” has zero legality.

There is no evidence that the capture of Grant Ward is infeasible. Ward’s capture might be infeasible by SHIELD, but the resources of the FBI, CIA, and military, far surpass Coulson’s ability to conduct national defense or law enforcement.

Finally, Coulson’s operation to kill Ward was not consistent with any applicable laws. Yes, the final act of murder was on an alien moon, but the chase to find Ward was conducted in the United States and an illegal operation into the United Kingdom. Moreover, Coulson’s act of killing Ward was after Ward had been subdued, with Coulson using his robotic hand to crush Ward’s ribcage. The US military and CIA does not commit roadside executions overseas, however, the Director of SHIELD apparently does if his girlfriend is killed.

Per the established [legally suspect] rules for targeted killing, Phil Coulson had no legal authority to kill Grant Ward. Perhaps if rules of engagement had been followed, neither Lash and Mega-Evil-Undead-Ward would not be on the rampage for future seasons. Lesson learned: the Director of SHIELD should not act like the Punisher.

My Favorite Martian is a Felon

By

Josh Gilliland

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December 8, 2015

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J’onn J’onzz, the Martian Manhunter, was the heart of the 1980s Justice League International. The Oreo-loving, fire fearing, Last Son of Mars gave soul to the retro series The New Frontier. J’onzz’s surprise appearance on Supergirl puts a new spin on the character, plus a couple of felonies.

Here is the big surprise: the Martian Manhunter has been impersonating Hank Henshaw for YEARS. This means the DEO has been run by an alien that the DEO was sent out to capture. Oops.

Applying California law to our favorite Martian, J’onzz easily has committed false impersonation by the following actions:

J’onzz assumed the identity of Hank Henshaw in both his personal and official capacity of the head of the DEO;

J’onzz has signed and issued orders on behalf of the DEO, thus publishing written instruments with the intent his orders be used as true;

J’onzz has acted as a Federal agent in apprehending both aliens and humans, who are held without trial, thus violating at least the human’s civil rights, therefore subjecting Henshaw to a 1983 action; and

J’onzz has to live someplace, meaning either a lease or deed has been signed in Henshaw’s name, using Henshaw’s credit history for J’onzz personal benefit.

Cal Pen Code § 529.

It is highly likely J’onzz is also illegally collecting other benefits, such as having a Driver’s License in Henshaw’s name, and ultimately could commit Social Security fraud.

There is another awkward matter: Henshaw was married in the comics to Terri Henshaw. Yes, she and the other two astronauts from the Space Shuttle Excalibur committed suicide after they crashed back to Earth after being mutated by cosmic rays in a Fantastic Four homage. However, if she is still alive in Supergirl, things get weird fast if J’onzz either remained married to her or divorced her under false pretenses. In theory, Terri should have recovered government death benefits after the death of Hank Henshaw.

Felonies aside, it is awesome to have another iconic hero in Supergirl. I am just glad he is not wearing the tactical speedo.

Did General Eiling actually Murder Plastique?

By

Brad Blanchard

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December 7, 2015

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The Flash
Season 1, episode 5: Plastique

In The Flash Season 1, episode 5, Bette, also called Plastique, makes an appearance. It was a fun episode to watch. There’s a showdown between Eiling and Plastique; the villain essentially gets away; and we get to see The Flash run on water. However, at the end of the episode Barry says he watched Eiling murder Plastique. Eiling shot Plastique, but was it murder…or self-defense?

In this corner: Plastique
Plastique turns anything she touches into a bomb. Briefcases. Steelies. Even the clothes the Flash was wearing. She is Away Without Leave (A.W.O.L.) from the her unit, having absented herself from her unit, organization, or place of duty as required at the time prescribed. (Uniform Code of Military Justice, Article 86. Absence Without Leave).

In this corner: General Eiling
Eiling is Plastique’s commanding officer. As a commissioned officer on active duty, has the authority to apprehend her. (Rules for Courts-Martial 301 (Hereafter R.C.M.)) Further, an apprehension is made by clearly notifying the person to be apprehended that they are in custody, although it can be implied. (R.M.C. 302(d)(1)) Any person authorized to apprehend “may use such force as is reasonably necessary under the circumstances to effect the apprehension. (R.M.C. 302(d)(3))

Did Eiling provoke her into attacking?
No.

General Eiling is a superior officer, so he has authority to apprehend her. Plastique knows she is A.W.O.L. and even says “I’m here to turn myself in.” This is an acknowledgment that she is going to be taken into custody. And Eiling, as an individual authorized to apprehend can use whatever force is reasonable necessary to bring her in.

In an attempt to apprehend her he has used non-lethal tranquilizer darts and flash-bangs up to this point. He also tries to talk her into coming peacefully, by telling her she can save lives if she’ll come back. Plastique responds with “The world will be a safer place once you’re no longer in it” and then she throws six steelies (three from each hand) she has charged to explode towards Eiling and his men. On impact Eiling and his men are thrown to the earth. We don’t know how many are hurt or killed.

U.S. Code §1114 says that killing or attempting to kill an officer, employee, or member of the uniformed services while they are engaged in their official duties will be punished as murder or attempted murder.

Did she actually attempt murder?
Yes. Unlawfully killing a human without justification or excuse through a premeditated design to kill, or the intent to kill or inflict great bodily harm, counts as murder under the R.M.C.

Plastique intentionally threw explosives at Eiling and his men. It was an unlawful act because she has no legal justification, such as self-defense, for using that kind of force. It was premeditated because she: 1) went out to get the steelies, 2) knew once she touched them that they would explode, 3) intentionally weaponized them, 4) let Eiling know where she was and then waited for him, and 5) concealed the weaponized items in her hands, instead of keeping them in something like a bag in case they weren’t necessary. Finally, once Eiling and his men were thrown to the ground by the explosions she didn’t retreat, instead she advanced towards him with arms outstretched to finish the attack.

The show doesn’t resolve what happens to those soldiers, we just see them lying on the ground and not moving. Because she has the intent to kill, or inflict great harm, on Eiling, if they were killed in the process she will be guilty of murder based on transferred intent. For now, let’s give Plastique the benefit of the doubt and assume none of the soldiers were killed.

When she throws the balls as General Eiling and the soldiers under his command, that is an overt act intending to inflict grevious bodily harm or kill. She reinforces this with the threat “The world will be a safer place when you’re no longer in it.” An “act, done with specific intent to commit an offense…amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense.” (R.M.C. part 4, Article 80) Finally, she doesn’t just make the balls explosive she actually throws them at Eiling and his men. And it’s an act intended to effectuate a certain result, his death or serious bodily injury.

When Eiling shot Plastique was it self-defense or murder?
Self-defense, probably.

Self-defense is a defense to homicide if an individual: (1) reasonably apprehends death or grevious bodily harm is about to be wrongfully inflicted on them; and (2) they believe they used the necessary force to protect themselves from death or grevious bodily harm.(R.C.M. 916(e)(1).

This is a two part test.

1) Objectively, would a reasonably, prudent person have been under the apprehension they were about to die. It considers height, weight, if you can safely retreat, if your attacker can they blow you up just by touching you. You know, the usual. Plastique knocking Eiling to the ground through an explosive blast, then approaching him while he’s helpless qualifies as apprehension, assuming Eiling has enough awareness to understand Plastique is intent on killing him.

2) Subjectively, how much force was actually necessary to repel the attack? This takes items like intelligence and education into account. Eiling is in a good position to determine what an individual under his command is capable of, as shown by his speech on how she can keep others from dying through her powers. He knows what is necessary to stop her in the event she turns hostile. He knows Plastique can make things explode by touching, he knows she just threatened to kill him, he knows she intends to kill him.

Anything that would disqualify his defense?
Let’s take a look.

Was he the agressor?
Under normal circumstances, drawing a gun on someone makes the person to draw the aggressor. However, here she’s a known fugitive whose very touch is dangerous, and he’s been given the lawful authority to bring her in using whatever force is reasonably necessary.

Even assuming he did not have the authority, he seemed intent on talking her down. And “an initial aggressor” he can still “regain the right to act in self-defense if the other party escalates the degree of force, or if the initial aggressor or the mutual combatant withdraws in good faith and communicates that intent to withdraw.” (United States v. Behenna, 12-0030 (C.A.A.F. 2012) Here, it went from non-lethal talking by Eiling to escalated lethal action by Plastique who threw explosives.

We’re they engaged in mutual combat?
No. He could legally use force, but opted to talk instead. She was not not in a legal position to use lethal force and still threw the first bomb, literally.

Did he provoke the attack?
No, even though no one likes a gun pointed at them.

She was A.W.O.L. and he had the authority to apprehend her using whatever force was reasonably necessary. Although the soldiers with Eiling moved forward at his command they did not make a move to attack. She also knew from the encounter with the doctor they were using non-lethal means of attack. She also listened long enough to know Eiling wanted her to return to duty willingly.

Did he have a duty to retreat?
No.

He was under no duty to lawfully retreat, because he had the necessary authority to try and apprehend her after she went A.W.O.L. And, after she attacked and approached he was not in a position to retreat, he got one shot off and then fell unconscious.

Was he allowed to use lethal force?
Yes, if he determined that she was going to kill him.

A death threat, followed by an attack using explosives, followed by an apparent approach to turn something on him into an explosive counts. That allows him to use force appropriate to the circumstances, even if it is deadly force. (See United States v. Lewis, 65 M.J. 85, 88 (C.A.A.F. 2007))

Was Eiling justified in shooting Plastique?
Probably yes.

After she threw explosives at Eiling and his team, and they were injured and knocked to the ground, Plastique then approached Eiling with her hand out as if she would touch Eiling or the soldiers with him, thereby causing another explosion. He tried to talk her down, she escalated by attacking with explosives then approaching to finish the job, he shot her in defense of his own life and in defense of the lives of others. Seems open and shut case of self-defense, except…

Does the Flash intervening between Plastique’s approach and Eiling shooting her matter?
Yes, if voluntary abandonment occurred.

Voluntary abandonment occurs when a person stops the intended crime because their conscience kicks in. (They can still be guilty of a lesser offense.) It doesn’t occur if they stop the crime for another reason, like they’re unable to complete because something else interferes.

In between the time Plastique approached Eiling, and the time Eiling shot her, the Flash showed up, and tried to talk her down telling her that “You’re not a murderer. Don’t become one now,” (We’re still pretending the soldiers didn’t die) and that’s when Eiling shoots her.

Here Flash appeals to her conscience, and her momentary hesitation would suggest that abandonment has occurred. This is further implied by her statement of “I’m glad you stopped me” after she gets shot but before she dies.

However, because she had made no overt motions, signs, or statements to let Eiling, or others, know she had voluntarily abandoned her course of action, it would probably still be considered self-defense in a court of law. And, it could be argued it wasn’t true abandonment because she only stopped her attack when The Flash intervened to prevent her from completing her crime.

Did Plastique act in self-defense when she attacked Eiling?

No.

She had no reason to think she would be killed or suffer grevious bodily harm in the moment where General Eiling was trying to talk her into coming back. Further, although the soldiers had weapons drawn, they had previously used non-lethal attacks and there was no reason to suspect that had changed.

Even if Eiling was the aggressor, she escalated the situation from words to lethal attacks when she used the explosives, which would disqualify her from a self-defense as an actual defense. Further, he was within his legal rights to attempt to apprehend her based on her being A.W.O.L.

And Dr. Well’s, who put Plastique up to the attack, just rolls away?
No. Talking someone else into committing a crime doesn’t mean your innocent of the crime.

The night before the confrontation occurs, Plastique seemed like she was going to walk away from the fight when she was at S.T.A.R. Labs. Dr. Wells rolls in, gives her the sheep dog speech and, says “Kill Eiling. One last mission and then you go home.” Based on that, she decides that she is going to kill General Eiling so that he will stop “attacking her flock.”

Here’s the thing, “Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” (R.M.C. part 4, Article 77(1)).

What is a principal? That’s any actor who is primarily responsible for the crime being committed.

Dr. Wells counseled her to go out and kill Eiling. Eiling is an active, commissioner officer in the U.S. Military, on military business (tracking down an A.W.O.L. soldier). When Dr. Wells puts the idea in her head, using language she’ll understand, and she then acts upon it, he has induced her into action. When Plastique then acts on that inducement, Dr. Wells can likely be held responsible as a principal in the commission of the act. He didn’t directly try to kill Eiling but he talked Plastique into doing so, and you’re not allowed to do that.

So, Barry’s wrong. It wasn’t murder. Eiling acted in self-defense. But if he’s looking for someone to finger for murder he might want to look a little closer to home.