Was it Lawful for Darth Vader to Squeeze Lothal for the Rebels?

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July 6, 2015

Darth Vader does not lack imagination when it comes to targeting civilians and killing Imperial Ministers in order to crash a Rebellion. Were his actions in the Star Wars Rebels season two premier legal?

Lord Vader took the following actions to entrap the Rebels:

Used Minster Tua as bait;

Killed Minster Tua in a shuttle rigged with explosives;

Raided and arrested refugees in Tarkin-town; and

Placed a tracking device on a shuttle to follow the Rebels back to their Fleet.

Law enforcement cannot willfully use murder of suspected traitors as a means to entrap criminal suspects. While Minster TUA had planned to defect to the Rebellion given the threat on her life, killing her without a trial would violate the Fourth Amendment, Seventh Amendment, and Eighth Amendment on Earth (warrant for arrest, right to a speedy trial, and prohibition against cruel and usual punishment). Minster Tua was denied the right to defend herself in court, the right to counsel, a trial by her peers, and executed by explosives without any form of due process.

The Empire clearly views civil rights as an impediment to effective law enforcement. The State certainly has the right to set sting operations to capture criminals, however this does not permit the intention killing of individuals to carry out the arrest of others.

Darth Vader ordered the arrest of refugees in Tarkin-town in order to draw out the Rebels. There are precedents for squatters in public lands being arrested, such as the US Army routing the March of the Bonus Army or police in San Jose clearing out the homeless living in Shanty Towns on public areas. However, these actions are normally taken out of concern for public welfare after reports of high crime or safety concerns. Such police actions are often not taken well by the public, can be viewed as cruel, or in the case of President Herbert Hoover, cost him the 1932 Presidential Election after ordering General MacArthur to use the Army on World War 1 Army veterans. No one wins re-election when there is marshal law and fires burning in the Washington, DC.

Governments have a duty to protect its citizens from public and private nuisances that can originate from Shanty Towns such as Tarkin-town. The Supreme Court of Pennsylvania found that the mayor of Philadelphia was justified in ordering the destruction of a “Shanty Town” that was (1) composed wholly of highly combustible materials, (2) insufficiently provided with chimneys or protected against fire, (3) occupied as a bar-room, (4) the resort of disorderly persons, and (5) located so close to governmental buildings as to imperil them. Fields v. Stokley (1882) 99 Pa. 306, 309.

Vader made MacArthur look like a sissy in the Imperial attack on Tarkin-town. There was no evidence that the refugees in Tarkin-town were squatting on public lands or a danger to public safety with the construction of the village. They might have violated zoning requirements if they were within a city, but Tarkin-town appeared well removed from Capital City on Lothal. Furthermore, the refugees did not appear to pose the public health hazard that would come from living in a Hooverville.

Even if there were public health and safety violations, enforcing those laws with Imperial Storm Troopers, possible airstrikes by Tie Fights, mass arrests, imprisonment in labor camps, or sending refugees to the Spice Mines of Kessel, would be grossly excessive force. What was their crime, not dying in the first place?

The Empire’s Doctrine of Fear takes “laws with teeth” to a new level. Moreover, Darth Vader claimed at the end of Revenge of the Sith that he had “brought peace, freedom, justice, and security to my new Empire.” Executions without trials and military attacks on citizens are a very unique view of “peace, freedom, and justice.” Such extreme uses of force would justify in the words of Thomas Jefferson, “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” A Rebellion is not just very logical result of such tyranny, but the Doctrine of Fear would cause mass recruiting for the Rebellion.

Let’s just hope Ahsoka Tano does not die horribly fighting Darth Vader this season.

Employee Safety at Jurassic World

By

Josh Gilliland

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June 18, 2015

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How can an amusement park with a zoo full of dinosaurs ensure the safety of their employees?

Jurassic World is not just a story of survival for when Man Plays God with Nature, but one of employee safety. This film must be especially freighting for OSHA inspectors.

InGen might have selected Isla Nublar not just for its tropical environment for the genetically engineered dinosaurs, but as a way to escape US laws on employee safety. Shipping companies have registered vessels in foreign ports for decades to avoid US law. US companies open factories in other countries, so they can pay overseas employees a fraction of what they would pay a US employee with none of the strict safety laws. InGen attorneys could have used a similar strategy to limit liability for employees who are killed or maimed by a dinosaur.

All states in the United States have laws on employee safety. California law states:

(a) Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein.

(b) On multiemployer worksites, both construction and nonconstruction, citations may be issued only to the following categories of employers when the division has evidence that an employee was exposed to a hazard in violation of any requirement enforceable by the division:

(1) The employer whose employees were exposed to the hazard (the exposing employer).

(2) The employer who actually created the hazard (the creating employer).

(3) The employer who was responsible, by contract or through actual practice, for safety and health conditions on the worksite, which is the employer who had the authority for ensuring that the hazardous condition is corrected (the controlling employer).

(4) The employer who had the responsibility for actually correcting the hazard (the correcting employer). The employers listed in paragraphs (2) to (4), inclusive, of this subdivision may be cited regardless of whether their own employees were exposed to the hazard.

Cal Lab Code § 6400.

The Jurassic World paddocks were specifically designed for different dinosaurs to keep them from injuring employees and guests. However, the escape of the Indominus Rex, which resulted in the breach of the aviary, thus freeing Pterodactyls and Dimorphodons, which resulted in a mass casualty event for employees and island guests, equivalently highlights the dangers of working at the park.

Employee deaths at Jurassic World included two men at the Indominus Rex paddock, nearly the entire Asset Containment Unit killed by the Indominus Rex, the two ACU team members killed in the helicopter crash (caused by the CEO Simon Masrani, who was not a licensed helicopter pilot, thus recklessly endangering the lives of those flying with him), at least one employee by the old Jurassic Park entrance, and a substantial number of the InGen private security team killed by Raptors.

Masrani’s helicopter flight was the tipping point that put over 21,000 lives at risk. An unlicensed pilot should not have taken off with passengers for a combat mission to kill the Indominus Rex. The engagement ended with driving the Indominus Rex into breaching the aviary, which resulted in the loss of the helicopter after a mid-air collision with a Pterodactyl. The guest and employee casualties from the Pterodactyls and Dimorphodons would not have happened “but for” the crash of Masrani’s helicopter. Calling in additional forces would have been the reasonably prudent decision for keeping everyone at Jurassic World safe.

Perhaps the cruelest employee death was Zara, Claire’s personal assistant who was relegated to keeping an eye on Claire’s nephews Grey and Zach. It is a good bet Zara’s scope of employment did not include playing nanny, which ended with her being abducted by a Pterodactyl, dropped into the Monsasaurus tank, abducted again by a Pterodactyl, and then eaten by Monsasaurus. This highlights Jurassic World was neither “safe” or “healthful” for employees if they could become a hot lunch for escaped dinosaurs. Moreover, Zara might have had a discrimination claim based on national original that British women are inherently nannies.

These deaths and injuries were all connected by the escape of the Indominus Rex. Jurassic World scientists literally and figuratively created the hazard of the Indominus Rex. The hybrid dinosaur would not have existed “but for” Jurassic World creating the creature with unknown physical abilities, heighten intelligence, and increased aggression from both “nature” and “nurture.” The fact the creature existed was a threat to employee safety.

A less dramatic issue of employee safety was the pig wrangler at the Raptor paddock. An employee who attempted to catch a running pig was pulled off a catwalk and landed in the Raptor pen. This entire high-risk activity could have been avoided if the pig wrangler had been clipped to a safety cable above the catwalk with a fall restraint in the event of being pulled over the side. The cost of installing these devices would be insignificant compared to a lawsuit for an employee eaten alive by Raptors.

Strict Liability for Fish Oil Dietary Supplements Tainted with Terrigen Crystals?

By

Josh Gilliland

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May 31, 2015

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The Agents of SHIELD season finale left us with the ultimate cliffhanger: No, not what the heck happened to Jemma Simmons, but what is the products liability for the dietary supplement company whose fish oil product was tainted by Terrigen Crystals?

It would not take the Center for Disease Control long to see there was something fishy about people turning stone-like and crumbling into pieces.

First thing first: Dietary supplements are governed by the Dietary Supplement Health and Education Act of 1994, which has less regulation then real medications or food. According to the Dietary Supplemental Health and Education Act of 1994 , the “Federal Government should not take any actions to impose unreasonable regulatory barriers limiting or slowing the flow of safe products and accurate information to consumers.” Paragraph 13 of DIETARY SUPPLEMENT HEALTH AND EDUCATION ACT OF 1994, 1994 Enacted S. 784, 103 Enacted S. 784, 108 Stat. 4325, 4326. Moreover, the Act also states in paragraph 14 that “dietary supplements are safe within a broad range of intake, and safety problems with the supplements are relatively rare.” Id.

If the FDA Secretary declares an imminent hazard to public health from dietary supplements, the Secretary “shall promptly” hold proceedings to affirm or withdraw the declaration. Section 4 of Act.

Given the number of people who will either turn in rubble or mutate into a drooling dog that can teleport, that hearing should go fairly quickly with bipartisan freak-outs over safety.

People who watched family members turn into dust would sue the fish oil manufacturer on a products liability claim. Many states follow the Restatement of Torts, 2nd § 402A on strict products liability. The rule states:

402A. Special Liability of Seller of Product for Physical Harm to User or Consumer

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) The seller is engaged in the business of selling such product, and

(b) It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

California summarizes the rule as follows: “[a] manufacturer is strictly liable in tort when an article he places on the market … proves to have a defect that causes injury to a human being.” Greenman v. Yuba Power Products, Inc., 377 P.2d 897, 900 (Cal. 1963).

In a 1978 New Mexico case, a Plaintiff failed to prove a can of 7-Up with unknown blood vessels in it was “unsuitable for its intended purpose, but they also had to prove that it was unreasonably dangerous.” Tenney v. Seven-Up Co., 1978-NMCA-090, ¶¶ 7-8 [92 N.M. 158, 160, 584 P.2d 205, 207]. It is a safe bet this case would have a different result today with “blood anything” in a can of soda.

Surviving family members suing the fish oil manufacturer could argue very effectively the fish oil was defective, because taking a fish oil pill should not kill or mutate someone. However, the fact dietary supplements have less regulation thanks to effective lobbying in the 1990s, the dietary company could argue against strict liability for the deaths, because strict liability is not absolute liability.

There is a huge problem for plaintiffs in suing a dietary supplement company that manufacturers fish oil pills: the plaintiffs would have to prove that the risk of the Terrigen Crystals was knowable from currently available scientific knowledge. Just what safety testing does a dietary supplement company have to do on fish oil? Would any anomalies be detectible with the tests the dietary supplement company currently conducts? The answers to these questions could sink the plaintiffs’ case.

Here is a wild idea: If SHIELD did not have a rogue aircraft carrier outside the military chain of command, perhaps reporting to the Secretary of Defense would have alerted the FDA to have all fish products used for human consumption tested. The area could have been quarantined from all commercial fishing given the fact a genetic WMD was lost overboard.

Quick! To the Comic Book Store!

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Josh Gilliland

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May 29, 2015

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What makes comic book stores great? Josh visited with Anna Warren Cebrian, the owner of Illusive Comics & Games in Santa Clara, California, to discuss why comic book stores are special, her favorite super-hero movies, and how she took members of her staff to an advanced screening of Avengers Age of Ultron. Anna also shared her new Kickstarter project, American Bibliodeck, The Wonderful Wizard of Oz Edition.

Regarding Henry: How Could the Flash Legally Get His Dad Out of Prison?

By

Josh Gilliland

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May 22, 2015

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Did Barry Allen save his mother and forever alter the timeline that turned him into The Flash? No, which is a good thing. However, his dad is still left in prison for being wrongfully convicted of killing Norma Allen in The Flash season finale.

How could a good lawyer help The Flash get his father out prison? It’s time to put on a Blue Power Ring, because there is hope of proving Henry Allen’s innocence in court.

States vary on the exact procedure for setting aside a conviction, but one option is to introduce new evidence showing the conviction was wrong. Some states require a new trial after the conviction is set aside.

Ohio law allows a defendant to seek a new trial and set aside a conviction when “When new evidence is discovered material to the defendant, which he could not with reasonable diligence have discovered and produced at the trial.” ORC Ann. 2945.79(F). The defendant must produce “affidavits of the witnesses by whom such evidence is expected to be given,” and the state may produce affidavits to impeach any defense witnesses. Id.

New York permits a Court to vacate a judgment and set aside a sentence if “[n]ew evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant;” NY CLS CPL § 440.10(g). There must be supporting affidavits if the motion to vacate the judgment is based upon the existence of facts. NY CLS CPL § 440.30(a).

How could The Flash get his father out of prison with a similar statute to vacate a conviction based upon new evidence, without causing a paradox to destroy all of reality?

The answer: A Go Pro camera. Or Polaroid Cube. Basically any personal action camera could do the trick.

The issue is having evidence that the Reverse Flash killed Norma Allen. One option for The Flash is to travel back in time before the murder, place an action camera in either the fish tank, or a book shelf, or some other part of the living room that is not visible or easily overlooked. The recording of the high speed blurs slowed down would demonstrate reasonable doubt that Henry Allen killed Norma Allen.

The big challenge is offering the video evidence in court. A Court would be rightfully confused if there was video footage from 2000 on a camera that did not exist in 2000. A District Attorney would rightfully challenge the authenticity of the video. Moreover, it is unlikely The Flash would appear to testify in Court.

One solution to this issue is the fact the police and District Attorney have openly cooperated together with The Flash. Detective Joe West could prepare an affidavit stating the recorded video was given to him by The Flash and that the footage accurately depicts the crime scene from the night Norma Allen was killed. A Judge in Central City, especially if the District Attorney was not contesting the footage, could find the new evidence either would justify a new trial if not outright setting aside Henry Allen’s conviction.

A lawyer from the Blue Lantern Corps could also give Henry Allen hope of proving actual innocence. In New York, new evidence could prove actual innocence if:

(1) The new evidence will probably change the result if a new trial is granted;

(2) It must have been discovered since the trial;

(3) It must be such as could not have been discovered before trial by the exercise of due diligence;

(4) It must be material to the issue;

(5) It must not be cumulative; and

(6) It must not be merely impeaching or contradictory to the former evidence.

See People v Marino, 99 AD3d 726, 730; People v Tankleff, 49 AD3d at 179.

Video evidence of a yellow blur killing Norma Allen would 1) change the result of Henry Allen’s conviction if there is a new trial; 2) the video evidence would be discovered after the trial, since the technology to record it was invented over a decade later and required time travel to use; 3) there was no way the Defense Attorney’s due diligence could have found evidence only available from time travel; 4) the video would be material to the issue of who killed Norma Allen; 5) the evidence is not cumulative; and 6) it is not offered impeach or contradictory to the former evidence, but verifying what Henry and Barry Allen claimed they saw the night Norma Allen was killed by the Reverse Flash.

Didn’t Mr. Hyde Need a Trial Before Being Lobotomized and Made a Veterinarian?

By

Josh Gilliland

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May 20, 2015

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The Agents of SHIELD Season 2 finale contained a happy ending for Calvin “Mr. Hyde” Zabo. After killing his wife who had planned to commit genocide on humanity with Terrigen Crystals as a eugenic weapon, Mr. Hyde had a unique sentence: Memory erased and his own veterinarian clinic to help pets that need love and healing. After all, the world needs professionals who help animals.

Was that legal?

Calvin Zabo had committed multiple counts of murder, illegal human experimentation, and criminal conspiracy in several states. Moreover, the People’s Republic of China would have an interest in prosecuting him for murdering a village in order to “feed” Jiaying their life energies.

Director Coulson unilaterally decided that Zabo would be pardoned for his crimes, but Zabo’s mind would be erased. This decision is problematic, because Zabo had a 7^th Amendment right to a trial for his crimes and a 6^th Amendment right to counsel. Both seemed to have been ignored. Furthermore, conducting a medical experiment without a prisoner’s consent to erase his memory would definitely violate the 8^th Amendment prohibition again cruel and unusual punishment. To be blunt, Court’s just don’t let people get lobotomized.

People who are involuntarily committed have the right to refuse psychosurgery. (See, Cal Wel & Inst Code § 4503, as one state example). This right can only overwritten on a showing of good cause, which includes treating physicians documenting the treatment needed, a review of the patient’s treatment record by two treating physicians who both agree with the recommended treatment, and written consent by the patient or the person’s guardian. Cal Wel & Inst Code § 5326.7.

This process does not appear to have been followed. In theory, Dr. Andrew Garner’s (Agent May’s ex-husband) could have been the treating physician to make the treatment recommendation. No other psychologists are known, but would others have agreed with erasing Calvin’s memories? Skye/Daisy could have provided written consent, but this still would be a grossly invasive procedure to erase someone’s life.

Director Coulson apparently acted as the prosecutor, judge, and jury in determining Zabo’s sentence to a happy life with no memory of crimes. Director Coulson effectively pardoned Zabo for his crimes and then expunged his criminal record. There is just no way Coulson’s actions were legal, but Zabo did help save humanity. That would be worth a limited pardon from a President and multiple governors. Plus the world needs good veterinarians. Just think of all the puppies Cal can help, opposed to being in prison or a mental hospital for the rest of his life.

The Black Widow Should Sue!

By

Jessica_alegalgeek

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May 13, 2015

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Can the Black Widow sue Disney for creating a hostile work environment? And no – I’m not asking because of the movie itself (or the offensive remarks made her co-stars), but the apparently deliberate decision to exclude the Black Widow from the merchandising.

It’s an issue that’s all over Twitter right now (check out #wheresnatasha and #wheresblackwidow): Black Widow is conspicuously missing from the Avengers toys, tee shirts, and other goodies. If you search for Avengers on Target.com, for example, you wouldn’t even know that Black Widow was in the movie (which has caused me to rethink my devotion to all things Target). The Hulk himself even spoke up about this problem on Twitter:

And she isn’t being excluded because she’s not one of the leads. Both the plot and the promotions show that she is on equal footing with the guys (although, as we learned in the Sony hack, her salary may be lower because of her sex). So any argument that the Black Widow isn’t central to the plot of the Avengers movies is both incorrect and just plain offensive. And yet, somehow, she’s excluded from the toy team. And what’s the only difference? She’s not a guy.

And now we learn that it’s not just exclusion but actual outright replacement. The powers that be at Disney and the toy makers have decided to replace Black Widow on her own helicopter with two of the male characters instead. This goes beyond offensive to outrageous. To actually have your history wiped out and replaced is something that has happened to women for centuries but I thought wouldn’t happen in 2015.

But this is why we have labor laws: to prevent these kinds of problems in the real world, because as the outrage on Twitter shows, exclusion hurts. So women (and other protected classes) can bring hostile work environment claims if they haven been excluded, ostracized, or isolated based on their sex (or other protected status, such as race or age). See, e.g., Waldo v. Consumers Energy Co., 726 F.3d 802, 818 (6th Cir. 2013) (recognizing that ignoring and ostracizing a coworker, if based on “gender-based animus,” can give rise to a hostile work environment claim).

Why is it happening right now? The conventional wisdom is that Disney doesn’t think they need to sell to girls because girls buy their princess stuff. And, presumably, because they think girls aren’t into “geek” culture. That second point is demonstrably wrong. And the first point is short-sighted. My daughter, for example, loved Disney princesses when she was younger but lost complete interest in them by the age of five. Now, at eight, she loves the Black Widow and was so happy to see the Scarlet Witch (spoiler!) join the Avengers. She even said, right in the middle of the movie, “now there are two Avengers like me!” As soon as the movie was over she asked for Black Widow and Scarlet Witch action figures to fight with and would gladly wear a tee shirt with either woman on it. My eleven year old son, on the other hand, enjoyed the movie but had no interest in getting any Avengers-branded merchandise.

So Disney’s sexism is not only hurting women of all ages (especially little girls like my daughter), but they’re also losing out on potential customers. The lack of women in action roles on screen, and in toys offscreen, is something I’ve noticed for many years now. Unfortunately, my daughter has now noticed it as well. Fortunately, others have seen this problem too and are speaking up. Hopefully, Disney and Marvel will catch on soon and stop with this (mindless? blatent?) sexism. Otherwise, I’d love to give the Black Widow her day in court against her employer!