The Doctor’s Right to Self-Defense…With a Spoon

September 10, 2014

It’s all fun and games until Robin Hood shoots an arrow at you, draws a sword, and demands your TARDIS. While not as dramatic as Han shooting Greedo, the Doctor had a right to defend himself. Using a spoon is a non-traditional choice, but well within the Doctor’s legal right.

Let’s break down the facts:

The Doctor steps out of the TARDIS

An arrow is shot at the TARDIS, going into the TARDIS about an inch

Robin demands the Doctor’s “Magic Blue Box”

The right to self-defense has existed in Common Law since the days of the fictional Robin Hood. The principle of the doctrine is described as follows:

“It is an elementary principle in criminal law that the person assaulted is justified in using so much force as is necessary to his defense. To repel a slight assault the person assaulted is not authorized to resort to measures of great violence. He will not be justified in doing those acts that are calculated to destroy the life of the assailant unless the assault is of such a character as to endanger his life or inflict on him great bodily injury, or to excite his fears as a reasonable man that such would be the result of the assault. The law limits him to such acts as are necessary to self-defense. The law does measure the degree of the force that may be used to repel the assault; and although it will not make the measurement with a nice hand and hold the person assaulted to accountability for force slightly disproportioned to the assault, yet it will hold him responsible for a clearly marked excess.”

People v. Shimonaka,16 Cal. App. 117, 126 (Cal. App.1911), citing People v. Campbell, 30 Cal. 312 (Cal.1866).

The elements of traditional self-defense are, “where from the nature of the attack, the assailed person believes, on reasonable grounds, that he is in imminent danger of losing his life or of receiving great bodily harm from his assailant, he is not bound to retreat, but may stand his ground, and, if necessary for his own protection, may take the life of his adversary.” People v. Zuckerman, 56 Cal. App. 2d 366, 374 (Cal. App.1942).

The original view of self-defense required the victim to “retreat to the wall.” However, jurisdictions modified the rule that if the victim is without fault and in a place they legally have a right to be, they could stand their ground and not need to retreat. Id.

If Sherwood Forrest was public land, the Doctor would have had a legal right to be there. Moreover, the Doctor had a right to not be TARDIS-jacked by the Prince of Thieves.

The Doctor technically did have his back to the TARDIS after having an arrow fired at him. Moreover, Robin Hood did draw his sword before the Doctor drew his spoon. Both of Robin’s actions would have been considered cause for imminent danger, whether it is being shot with an arrow or stabbed with a sword.

The Thirteenth Doctor physically confronting Robin Hood was very reminiscent of the Third Doctor’s use Venusian Aikido to throw someone over his shoulder. However, the Doctor’s use of a spoon against a sword does highlight how an ordinary object can be a weapon. That being said, a spoon is not as deadly as a sword or arrow. It’s not even a proportional response, even with a spoonful of sugar.

The Doctor was legally justified to defend himself with the appropriate force to stop the assault, and in the end, did not actually harm Robin Hood.

There is NO Way for She-Hulk NOT to Know Who Opposing Counsel is in Trial

Josh Gilliland

September 4, 2014

She-Hulk issue 8 ends with our legally green hero walking into a Los Angeles Courtroom to find opposing trial counsel is a Matt Murdock. [Nevermind the fact trial is starting within weeks of a complaint on facts from 70 years ago, skipping CMC’s, meet & confers, written discovery, depositions, motion practice, and a mandatory settlement conference. A wrongful death case would take months, if not years, to get to trial.]

Problem with Daredevil being opposing counsel: EXTREMELY unlikely to walk into Court and not know who trial counsel is on a case. You might be surprised at a Case Management Conference if a Big Law firm sent one of its many attorneys to cover a hearing, but every legal form in California requires a lawyer’s name and bar number on it. There has to be an Attorney of Record. Every pleading has at least one lawyer’s name and bar number at the top of the first page and ends with the lawyer’s signature. Complaints, Discovery Requests, Motions, Trial Briefs, all of those filings with a Court, are signed by an attorney. Lawsuits do not have ghost lawyers.

This issue is a tad troubling because She-Hulk does find an attorney licensed in California, as she is a New York attorney, so she could appear Pro Hac Vice, in her defense of Captain America in a wrongful death case from 1940 (the story even addresses the statute of limitations issue). We have the comic go out its way to find another California attorney for this legal requirement. The story does a good job on this point, going so far as having Jennifer Walters call Matt Murdock for help, only to have him decline without disclosing his client is the Plaintiff.

For Jennifer Walters to appear in a California Court, she would need the following, per California Rules of Court Rule 9.40, for a Court in its discretion to admit her to appear:

1. Jennifer Walters is a member in good standing and eligible to practice law in New York (CRC Rule 9.40(a))

2. She-Hulk files a verified application with proof of service per CA Code of Civil Procedure section 1013a on all parties in the case and the California State Bar Office in San Francisco (CRC Rule 9.40(c)(1).

3. The Application must contain the following:

(1) The applicant’s residence and office address;

(2) The courts to which the applicant has been admitted to practice and the dates of admission;

(3) That the applicant is a member in good standing in those courts;

(4) That the applicant is not currently suspended or disbarred in any court;

(5) The title of court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and

(6) The name, address, and telephone number of the active member of the State Bar of California who is attorney of record.

CRC Rule 9.40(d).

I am interested to see how the story plays out in the next issue. And just for the record, I would have been happy to have been attorney of record for Captain America if She-Hulk needed a California lawyer for her application per California Rules of Court Rule 9.40.

Boston Metaphysical Society Kickstarter Interview

Josh Gilliland

September 3, 2014

Madeleine Holy-Rosing, author of the Boston Metaphysical Society (and nominated for a 2014 Geekie Award), has a Kickstarter campaign to fund issues 5 and 6 of her steampunk ghostbusting mini-series. Madeleine sat down to talk about her campaign, what is happening in BMS without any spoilers, and her upcoming convention schedule.

The Duty to Treat Rusty the Dalek POW

Josh Gilliland

August 31, 2014

Doctor Who’s “Into the Dalek” presented wonderful legal issues from treatment of prisoners to the necessity defense. The episode also has huge shout-outs to Star Trek: The Next Generation, Star Wars, and Fantastic Voyage.

If they ever do another Sea Devils story, I would not be surprised if there is a Voyage to the Bottom of the Sea homage.

Rights of Prisoners’ of War to Medical Treatment

An injured Dalek the Doctor names “Rusty” had been damaged to the point of becoming good. Rusty requested a doctor for medical treatment after being captured by the “rebel” ship Aristotle.

After seeing the birth of a star, Rusty realized that “resistance is futile” to life. Dalek’s are driven by genocidal fascism to kill anything different from them, so making the leap to stargazing and the meaning of life is a very big leap. Especially without feet.

The Geneva Convention requires that a prisoner of war suffering from a “serious disease, or whose condition necessitates special treatment, a surgical operation or hospital care, must be admitted to any military or civilian medical unit where such treatment can be given…” Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949, Article 30.

Prisoners of War also have the right to seek medical attention. Id.

Rusty had the right to request treatment, given the fact he is a uniformed soldier (considering he is part biologic life form fused with a mini-tank), and a prisoner of the “rebels.” As such, treating would have been required under the rules of warfare.

Alternatively, there is another theory to treat Rusty: Prisoners with a serious mental illness can be treated with antipsychotic drugs against their will if the inmate is dangerous to himself or others. Ashby v. Schneck, 1995 U.S. App. LEXIS 17154, 3-4 (8th Cir. Minn. July 17, 1995).

Dalek’s are mentally altered by their computer programing to hate and exterminate others. The fact their computer program keeps their biological minds from growing, having memories, and learning, could be a condition that makes them dangerous to others, thus justifying treatment.

The Necessity Defense

A mildly troubling scene included using a human soldier as bait to save the rest of the team who had traveled into the Dalek. The ill-fated soldier shot anchors for repelling equipment into the deck of the Dalek, promoting antibodies to attack (very much like in Fantastic Voyage, instead with lasers instead of absorbing like the Blob).

The Doctor throw an item to the soldier and said, “Swallow this.” After which the Dalek Antibodies killed the soldier. When questioned by Clara, the Doctor responded, “He was already dead. I was saving us.”

Using the soldier as bait for the antibodies would have been legally justified, while emotionally traumatic, based on the necessity defense.

A law school example of the necessity defense is you are on a runaway trolley, headed down the hill, to crash into station. Pulling out a gun to shoot a bystander to use as a break would save yourself and everyone on the trolley, but would be unjustified murder. You cannot kill an innocent to save yourself.

In the case of our soldier, there was no way for him to escape the Dalek, or the antibodies seeking his immediate destruction. The Doctor giving him a tablet that focused the antibodies solely on the soldier saved everyone else and limited the attack to the target soldier. While extremely cold, it was the right tactical decision to save everyone else and legally justified.

Doctor Who Special with Matt Weinhold

Josh Gilliland

August 27, 2014

We were privileged to have longtime Doctor Who fan Matt Weinhold join us for a special podcast on the Season 8 Premier of Doctor Who.

Jessica asked enough Doctor Who questions to qualify Matt as an expert witness on the Doctor under Federal Rule of Evidence Rule 702.

Matt and I discussed the episode Deep Breath, our thoughts on the 13th Doctor (we both count the War Doctor as the Doctor), and hopes for Season 8.

Want to hear more of Matt Weinhold? Check out his podcast Monster Party on iTunes or follow him on Twitter @MattWeinhold.

Restaurant Safety on Doctor Who

Josh Gilliland

August 25, 2014

Doctor Who is back! And this time, with great lessons in restaurant safety!

The Doctor’s 13th Regeneration exploded in Deep Breath with a dinosaur, the names of the Dwarves from Snow White, and a huge homage to the Brigadier’s final line in Planet of the Spiders. Adding to the coolness, Jenny had a steampunk looking device on her hand to detect time travel. Moreover importantly, the Doctor recognized his reflection and asked himself “Why did I choose this face?”

How to Serve Human

Let’s talk about Mancini’s Family Restaurant: The restaurant served liver for starters, brain stem and lungs for the main course, and sides of eyes and spleen. Skin for dessert, naturally.

The first law of restaurants: do not kill your guests; second rule, do not harvest their organs; third rule, do not use guests to make robots more human.

The goal of having a restaurant is winning new customers repeat business to be profitable. Homicide is an extreme deterrence to both of those goals.

A restaurant is “any eating establishment which offers food for sale to the public.” Colony Nat’l Ins. Co. v. Hing Wah Chinese Rest., 546 F. Supp. 2d 202, 207 (E.D. Pa. 2008). Moreover, a “retailer who sells unwholesome food for human consumption is liable to the consumer for the consequences under an implied warranty imposed by law as a matter of public policy, even though . . . the retailer has no means of knowing that the contents are unfit for human consumption.” Ayala v. Bartolome, 940 S.W.2d 727, 729 (Tex. App. Eastland 1997).

Someone who runs a public business like a restaurant is “subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent or intentionally harmful acts of third persons . . . and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.” Lopez v. McDonald’s Corp., 193 Cal. App. 3d 495, 506 (Cal. App. 4th Dist. 1987), citing Peterson v. San Francisco Community College Dist., 36 Cal.3d at p. 807, quoting Rest.2d Torts, § 344.

In a nightmare case where a massacre took place at a restaurant, summary judgment was granted for the restaurant, because the “restaurant’s duty to take reasonable precautions to protect patrons from reasonably anticipated criminal conduct of unknown third parties did not encompass the burden to protect against once-in-a-lifetime massacres. The likelihood of the unprecedented murderous assault was so remote and unexpected that, as a matter of law, the general character of the restaurant’s nonfeasance in not providing security did not facilitate its happening.” Lopez v. McDonald’s Corp. (1987, Cal App 4th Dist) 193 Cal App 3d 495, 238 Cal Rptr 436, 1987 Cal App LEXIS 1913.

Mancini’s is not a case where a third party caused harm to someone going out for lunch, but an elaborate trap to murder people for their organs. It is not a restaurant, but a criminal enterprise organized by Clockwork robots from the 51st Century that crash landed on Earth over 65 million years ago on the Marie Antoinette. While tacking health and safety code violations to the criminal complaint would be gravy (provided late 19th Century England had such laws), the Clockwork Robot’s plan is like a criminal conspiracy to commit murder (if a robot can be charged with murder).

Now, did the Doctor push the Clockwork Robot out of the escape pod? This would make the Thirteenth Doctor (Counting the War Doctor) a lot like the Sixth Doctor, who killed the Androgum Shockeye in the Two Doctors. If the Doctor did push the Robot out of the escape pod, it was done under the defense of others to save his Companions from being killed. Moreover, killing a robot arguably is not the same as killing a person, thus not murder, but destruction of property.

Unless all robots go to Heaven, which makes our Clockwork Robot a lot of Pinocchio.

California is in a Drought: Why I am Declining Dumping a Bucket of Water on Myself

Josh Gilliland

August 24, 2014

I want to thank Scott Murray from Assembly of Geeks for nominating Jessica and I for the ALS Ice Bucket Challenge. However, I am declining the ice bucket challenge for one big reason: California is in a drought. I think it is a bad example when we are encouraging people to conserve water to dump a bucket of water over myself.

However, I will up the ante: I am going to Tahoe very soon. Lake Tahoe is colder than any ice bucket. I will take a swim.

[Provided there are not six foot seas and high winds]

The issue of water conservation is a good way to introduce the two views on water law: Riparian Rights (in the Eastern States) and Prior-Appropriation (in the Western States).

Riparian Rights are the rights of a landowner whose property is by a body of water to make reasonable use of the water. See, Black’s Law Dictionary App, 9th Edition.

The Prior-Appropriation Doctrine is slightly different, stating that the earliest users of those who boarder water have the right to “take all they can use before anyone else has a right to it.” See, Black’s Law Dictionary App, 9th Edition. As the United States Supreme Court explained:

Under that doctrine [prior-appropriation], one acquires a right to water by diverting it from its natural source and applying it to some beneficial use. Continued beneficial use of the water is required in order to maintain the right. In periods of shortage, priority among confirmed rights is determined according to the date of initial diversion.

Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 805 (U.S. 1976).

California has codified this rule of water use with a very blunt statute: As between appropriators, the one first in time is the first in right. Cal Civ Code § 1414.

Why did the Western states take the view of Prior-Appropriation over Riparian Rights? Because water is more scarce here.

And while we are in a drought I just do not feel right dumping a bucket of water over myself.

1...697071...104 Page 70 of 104