Supergirl faced a non-Hobson’s Choice in fighting Reactron (and thankfully not Nuclear Man): melt off lead from a historic bust in order to safely encase Reactron’s nuclear core, so it would not meltdown. Kara had to quickly balance the interests in defacing art against preventing a nuclear incident in National City.
Let’s say she picked the right choice. Art has no value if a city cannot be inhabited for 10,000 years.
Willfully destroying property is vandalism. As one Court explained:
The historical definition of vandalism was derived from the destruction of many monuments of art and literature by the Vandals, who, in the fourth and fifth centuries, overran Gaul, Spain, and northern Africa, and, in 455 A. D., entered Italy and sacked Rome. Webster’s New International Dictionary, 1951 edition. It originally meant the barbaric and reckless destroying or spoiling of something venerable, artistic, or beautiful. However, in ordinary usage the word is not limited to destruction of works of art, but has been broadened in its meaning to include the destruction of property generally.
General Acci. Fire & Life Assurance Corp. v. Azar (Ga.Ct.App. 1961) 119 S.E.2d 82, 84-85, citing Webster’s New International Dictionary, 1951 edition, and 91 C. J. S., Vandalism, p. 802.
Supergirl’s bust melting would fall under the historic definition of vandalism, because a work of art had been destroyed by her actions (not necessarily barbaric or recklessly). Moreover, in the unlikely event National City is in Arkansas, she would have committed a Class D felony for defacing a “work of art on display in any public place” if the bust was worth more than $2,500. A.C.A. § 5-71-215.
No Court in the United States would find Supergirl criminally liable for vandalism. Kara’s actions were justified under the defense of necessity, which requires Supergirl prove:
1) She acted in an emergency to prevent a significant bodily harm or evil to National City, specifically a nuclear incident that could have made the city uninhabitable, massive radiation poisoning, and loss of life;
2) She had no adequate legal alternative, because Reactron was in hot pursuit to kill James Olsen and endangering National City with a nuclear device;
3) Supergirl’s acts did not create a greater danger than the one avoided (melt off some lead from a bust vs nuclear incident);
4) Supergirl actually believed that at the time she acted her actions were necessary to prevent the threatened harm or evil (Reactron was on the warpath, causing property damage and threatening others with a nuclear powered device);
5) A reasonable person would also have believed that the act was necessary under the circumstances; AND
6) The defendant did not substantially contribute to the emergency (Supergirl did not, but there is a good argument Maxwell Lord did by repairing Reactron’s battle armor).
2-3400 CALCRIM 3403
No DA in their right mind would charge Supergirl for melting a bust. Yes, it is vandalism, but these actions were justified given the gravity of the harm posed by Reactron.
I hate watching the law played out on TV, because the law is often exacting and detail oriented. But good stories often require painting with a broad brush. Which means I spend a lot of time saying “You can’t do that” while being shushed by others. But, aside from a few head scratching moments, The Arrow did one of the better jobs I’ve seen. Still, for fun, here’s my favorite pieces of what they got right, and what they got wrong.
Are you required to let your opponent know when you invoke Rule 15?
Absolutely! And a good attorney invokes it as often as needed.
What does Rule 15 do?
In a Federal criminal trial it means someone wants to depose a witness before trial. That helps you figure out how strong your case will be at trial. Both sides get to be there so, yeah, they know when you invoke it.
Under Federal civil rules you invoke Rule 15 to amend a pleading. Which you then serve on your adversary so, yeah, they also know that you invoked it.
Under Starling City rules, apparently, it means you want the death penalty… which you tell opposing counsel about in court… as a professional courtesy? They must invoke the death penalty a lot to give it its own rule. Example: “Your honor, I object! Also, I’d like to invoke Rule 15.”
Can Lead Attorney for the State Laurel be disbarred for talking to Defendant Moria Queen without Moira’s attorney present?
Yes. Will she be? Hard to say, but some kind of reprimand from the legal bar is likely.
The whole point of having a lawyer is to keep you from saying and doing things you’ll regret. Avoiding Moira’s lawyer, so you can talk to Moira alone, and convince her to take a plea deal, instead of going to trial, because you know about her affair with Malcom Merlyn, is bad form. It could screw up your case. It could also get you disbarred. Just a bad idea all around.
Did Moira engage in a Conspiracy to Murder?
Yes.
Conspiracy is an agreement between two or more people to commit a criminal act with an overt act to that end. She agreed to help out Malcom Merlyn with the machines that would destroy the Glades; she gave him access to the materials necessary to build machines; and she intended that the Glades be destroyed by the machines, along with all of its occupants. So, yeah, guilty of conspiracy to murder.
Does she have a defense for withdrawing?
Yes. Assuming her lawyer wasn’t so busy making unnecessary bail motions that she forgot to put on a withdrawal of conspiracy defense for the jury.
Going on TV to tell people you were part of a conspiracy is a pretty clear way to withdraw, especially if your co-conspirator is watching. And seeing as how Malcom waited some time to set off the machines, he had plenty of time to decide if he wanted to withdraw and not destroy the Glades as well. Even in a jurisdiction that requires the individual to stop the crime in order to withdraw, she would be ok because she pled for people to get out of the Glades, and then was prevented from further action by being immediately arrested by the police who would then, presumably, be responsible for stopping the crime. Unless, of course, they would prefer people who join conspiracies to withdraw by putting on a mask and going all vigilante on their former co-conspirators.
Is she responsible for aiding and abetting 503 mass murders?
That depends on how many people Malcom killed before she withdrew from the conspiracy.
She’s accountable for all the crimes that occurred before the she withdrew (including the “dozens” of murders he committed while she was part of the conspiracy) but not the stuff that happened afterwards. So, if we’re talking about the 503 people who died in the Glades after she went on TV, the answer is no.
If she were responsible for those deaths could she use duress as a defense?
No, not even if she met all the elements, which she doesn’t. Let’s run the numbers:
Well-grounded fear? Check!
Imminent threat of death or serious bodily harm? Umm… Probably not. Imminent means now, as in “right now!” Not months or years. A defense using months or years might work for someone chained in a house with no means of escape, but Moira is pretty much free to go wherever she wants and do whatever she wants whenever she wants.
No reasonable opportunity to escape? Well… she does live in her own house, run her own company and have enough money to go anywhere she wants in the world at any time, which would include, I’m assuming, the police station. Or, she could just tell the police when they come to her house. Which they do semi-regularly. So, I’m going to say no.
Even if she could meet all the elements, you’re not allowed to kill one person, or dozens, to save someone else, even if they are your children. Sorry Moira.
Can she be held responsible for jury tampering?
No. Unless Starling City has a special rule for that too.
Jury tampering occurs when an individual, such as Malcom Merlyn, by use of corruption or threats tries to influence the outcome of a trial. Jury tampering is serious business, and the penalties can be pretty severe. Let’s be honest though, if you’re Malcom Merlyn, and you’ve killed hundreds of people, a little jury tampering isn’t going to keep you up at night. But Moira had nothing to do with it so she can’t be held responsible. That’s all on Malcom.
Because the jury was tampered with, can they try her again?
No.
The Fifth amendment of the U.S. Constitution forbids double jeopardy, which means you can’t be tried twice for the same crime. Even if your former co-conspirator comes back from the dead and threatens the jury, once a jury reaches a not-guilty verdict and the judge ratifies it in court, they can’t try her again for that same crime. So, Moira is a free woman, but keeping all those secrets is going to get her killed if she’s not careful. Oh, wait….
Can the Advanced Threat Containment Unit (ATCU) put people exposed to Terrigen Crystals in suspended animation? There are a host of issues with freezing people, but the ATCU has justified the practice on the grounds the Inhumans are “sick,” thus require being placed in suspended animation until they can be cured, out of the need for public safety.
The Marvel Cinematic Universe has a precedent for placing prisoners in suspended animation. The Abomination was frozen, likely given the complexity it would take to imprison him. It was never stated whether the Abomination had a trial, but there was no question he went on a killing spree in New York City.
People exposed to Terrigen Crystals in fish oil are in a very different category. In states such as California, a peace officer must be able to point to specific and articulable facts that a person has a mental disorder and is a danger to themselves or others to place them on an involuntary hold for 72-hours. Cal Wel & Inst Code § 5150.
Placing people with infectious diseases in quarantine is a legitimate exercise of police power. Compagnie Francaise De Navigation A Vapeur v. Louisiana State Bd. of Health,186 U.S. 380, 387-388 (U.S. 1902). However, that requires people have a disease that can be passed on to others. Having super powers is certainly a condition, but not a transmittable disease.
A school can send a student home if the student has lice to prevent the spread of the parasites. Being an Inhuman could be similar, expect instead of bugs living in your hair, you breathe fire. There is no special shampoo for breathing fire.
The ATCU is holding people against their will, without a trial, in suspended animation. The ATCU does have an argument that people who suddenly have powers are a danger to those around them that does require treatment. However, being an Inhuman is neither a disease nor a mental disorder that means they are a danger to others. A new Inhuman might not be able to control their powers, but that does not mean they have engaged in conduct warranting being held against their wills.
Halloween is a time to celebrate all things scary and sugar.
That’s right, the real villain on Halloween is teeth decay. The supporting villains this holiday are vampires, werewolves, zombies, and ghosts.
It is time to put on your best spooky outfit and enjoy some of our supernatural podcasts, because stores are now breaking out the Christmas decorations before Halloween.
Stay safe this October 31 and repress the desire to start caroling while trick or treating.
Supergirl had an excellent premier, with homages to the 1978 Superman, Super-Friends, and honoring past actors who wore the House of El’s iconic symbol of hope. Bravo.
The episode left me wondering…has the government known all along that Kara was from another planet? Just how did Ma and Pa Danvers forge documents creating an identity for a teenager from another planet? Did the government assist with a cover-up of alien life? How did Kara have proof of vaccinations to attend public school?
While these questions highlight that lawyers can suck the fun out of life, they pose interesting issues.
First things first: Kara’s mother Alura In-Ze was a Judge. Rock on.
Kara’s foster parents would have had a far easier time with establishing a life for Kara with the aid of the government. It is unlikely Kara’s mom packed a birth certificate before Krypton exploded, so the Federal government assisting in creating a human identity for Kara would remove a lot of challenges. If not, it is highly likely Kara’s foster parents engaged in computer fraud and identity theft in order to create a new life for their adopted daughter. This would give new meaning to the term “illegal alien.”
The Federal Government (and specifically INS) could have given Kara top-secret refugee status. The law does not currently address a child escaping an exploding planet, but there is no doubt she is a refugee. Moreover, the government would not want to announce to the public the existence of aliens, given the societal and political backlash that would follow.
Supergirl does not exist in the cinematic world of Man of Steel, so the planet has not endured the trillions of dollars of damage from the battle with General Zod. This version of Superman might have the credibility from having saved the Earth multiple times for years, so asking the Government for a “favor” in creating an identity for his refugee cousin would not be asking for much.
Kara’s first act of heroism was saving a plane from crashing. The news coverage is overall positive, but there is criticism calling her a “human wrecking ball.”
Supergirl had no duty to rescue the crashing plane. If she had not taken any action, the plane would have crashed either in or around the city. There would have been 100% loss of life on the plane and mass casualties on the ground, especially if the plane crashed in a residential neighborhood.
Kara’s duty after beginning to rescue the plane was not to put it in a worse situation. She avoided colliding with the bridge, which would have resulted in loss of life and catastrophic property damage. Moreover, she made a successful water landing, thus avoiding injuring people on the ground (there is the matter of jet fuel in water, thus the Coast Guard would be busy with environmental clean-up, but that is better than hitting a building). Whether or not the flight attendants instructed passengers to put on lifejackets before exiting the plane is unknown, but that would fall on the airline’s duty as a common carrier, not Kara.
The more interesting question is whether or not the Government could, or should, keep secret there are alien criminals with super powers roaming the United States, with unknown plans, and hostile intentions towards Earth. Regardless of that answer, I look forward to the rest of the season.
It’s probably safe to say that everyone has been bullied at one time or another in their life. Whether it was in elementary school, high school or at your place of work, someone has pushed you around, berated you, stole your lunch money, made fun of you or called you names. Nationally, more than 13 million American children will be bullied, making it the most common form of violence young people experience. Well, as this October is Anti-Bullying Month and the 30th Anniversary of Back to the Future, the moon and stars have aligned perfectly and provided us with an opportunity to revisit Biff’s Bad Bullying Behavior.
Everyone remembers the movie Back to the Future, right? (How could you not??)
Quick synopsis- In attempt to evade the evil Libyan rebels seeking return of their plutonium from eccentric scientist Dr. Emmett “Doc” Brown, who used the plutonium to power the flux capacitor in his time-traveling DeLorean instead of building them a bomb.
Marty McFly jumps into the Delorean and upon reaching a speed of 88 mph (in the Puente Hills mall parking lot), 1.21 jigawatts of power sends Marty and the car back in time to November 5, 1955- the date parents’ first met. Marty then meets his future parents in high school and accidentally becomes his mother’s romantic interest. In an ensuing caper of errors, Marty must repair the damage to history by causing his parents-to-be to fall in love, and with the help of Doc Brown and find a way to return to 1985.
While helping his to-be father, George McFly, try to woo his to be mother in 1955, Marty inadvertently witnesses several occasions of George being verbally and physically abused by the school bully, Biff Tannen. The most memorable of which is:
This scene, despite Crispin Glover’s adorably dorky demeanor, makes everyone cringe and sink down in their seats. And if you’re like me, it makes you want to jump up and give Biff a swift kick to the boys (if you know what I mean.) However, what is sad is that George takes the knocking on his head, slap and verbal abuse from Biff with a smile and even joins in the laughter when Biff’s friend makes fun of Marty’s “life preserver” jacket. So, would Biff face any repercussions for his bullying behavior in 2015?
Well, what is bullying anyway?
“Bullying” is defined as any severe or pervasive physical or verbal act or conduct, including communications made in writing or by means of an electronic act, and including one or more acts committed by a pupil or group of pupils, directed toward one or more pupils that has or can be reasonably predicted to have the effect of one or more of the following: (A) Placing a reasonable pupil or pupils in fear of harm to that pupil’s or those pupils’ person or property; (B) Causing a reasonable pupil to experience a substantially detrimental effect on his or her physical or mental health; (C) Causing a reasonable pupil to experience substantial interference with his or her academic performance; (D) Causing a reasonable pupil to experience substantial interference with his or her ability to participate in or benefit from the services, activities, or privileges provided by a school. Cal. Educ. Code § 48900.
Bullying is different from harassment because the “bully” is not usually just one person with a grudge but is often a group of schoolmates, or people who were once thought of as friends. Bullying in the modern era is not just a message written on the men’s room wall “for a good time call…”, or name-calling in the schoolyard. Bullying, in the age of social media, is often fairly anonymous and because of the anonymity, typically more vicious and more likely to reach a wider audience, thereby, creating more bullies.
In November 1955, when George and Biff were in high school, bullying existed (obviously), but not much was done by the parents or the schools to deter this kind of behavior. In fact, if you were being bullied, you were likely to be told to turn the other cheek or “man up” and defend yourself (enter the Karate Kid).
However, in the wake of several high-profile suicides among students who were chronically bullied, and after two students, who said they were constantly bullied, attacked and opened fire on their fellow students at Columbine High School in 1999, various states started passing laws to stop bullying behavior among students. In the aftermath of the school shooting and in reaction to a local bullying-related suicide in the state, Georgia became the first state to pass bullying legislation and California followed shortly thereafter. In 2011, California passed the Safe Place to Learn Act located in the California Education Code §234(b) which provides that all students have a right to attend school without discrimination, harassment, violence, intimidation, and bullying and applies to students either at school, at a school function or in transit to or from school. Since then, there have been numerous amendments, revisions and new laws added to the books in California aimed at preventing bullying.
Now, how do these bullying laws affect Biff at all? Well, the answer is, they don’t…(wait for it)…yet. The scene shown above was off campus and while Biff is most definitely committing battery- willful force or violence used against another person, but the likelihood that George is going to go to the police and file a police report is slim to none and slim just left the bar.
Since Biff is basically a giant meathead, we assume that his bullying knows no bounds and would occur on campus and off. In those instances where he is bullying anyone on campus, or in transit to and from campus, the above-mentioned legislation would most definitely get Biff suspended, and eventually, expelled. Moreover, the “Under the Sea” dance is a school function, which would also fall under the above legislation. In addition to the many criminal charges Biff racks up while attempting to rape Lorraine in the car at the dance, Biff also continues his bullying of George and in doing so, almost breaks his arm.
While no one ever saw what happened, except Marty and Lorraine, schools today would have every inch of that parking lot under video surveillance, thus, enabling them to catch Biff in the act of yet more bullying. (With the amount of bullying by Biff just shown during the three days of this movie, I don’t see Biff even graduating from Hill Valley High School.)
Just to throw insult on injury- what does almost every human being on earth have in 2015? A cell phone! If this scenario were to occur today, we all know that Biff, his friends and all of those patrons at the diner would all have their cell phones out taking pictures and videoing George getting bullied by Biff. (Any video would also likely catch that Biff is having George do his work for him, which would lead to other disciplinary issues at school, but one issue at a time.) None of these people videoing the scene would bother to defend George, but all of these videos would wind up on Facebook, You Tube and other social media, leading to George getting ridiculed by even more people at school the next day. Moreover, why waste time bullying someone face to face, when you can do it all day on your cell phone or computer. We all know Biff would be mercilessly bullying George on any social media forum possible (as long as he knows how to work modern technology).
Luckily, thanks to the love of the internet and the cell phone, Biff Tannen and all of those lookie-loos sharing the video could be punished as well. Recently, Assembly Member Christina Garcia proposed AB 881, which becomes a law on January 1, 2015 and centers on protecting children from cyber bullying and reaches beyond the schoolyard to stop bullying wherever it occurs. Previous legislation was written before the explosive growth of electronic devices and instant communication, so AB 881 clarified that an “electronic act” means the creation OR transmission of any communication. This means kids who participate in cyberbullying can now be suspended for cyberbullying even if they were not the one who originated the document. (This bill was supported by the Junior League Long Beach, among others.)
Based on the current laws of California, and those effective in January 2016, Biff Tannen would be suspended…a lot, and most likely, expelled, for his bullying behavior.
Lessons learned here: Justice is sweet. High School sucks. Don’t be a bully, because you could end up in a pile of …
The new Sam Wilson Captain America #1 by Nick Spencer has Captain America sever ties with SHIELD and the Government. Cap is now a free agent fighting for those who ask for help (well, reasonable requests, not flying into sporting events or fighting over cable bills).
Body armor for sidekicks and private jets cost money. Cap stated he was setting up crowdfunding in order to fund his hero activities like a political campaign. Would it be legal to crowdfund crime fighting?
The law does not favor vigilantism. Society does not want people taking the law into their own hands. Starting a crowdfunding campaign to do something illegal is problematic at best and a conspiracy at worst.
Captain America #1 puts two different forms of vigilantism into conflict with Sam Wilson fighting a terrorist-vigilante-border-patrol militia group. It should be noted that boarder security and combating illegal immigration are exclusively Federal responsibilities.
The “Sons of the Serpent” are a terrorist organization engaging in illegal vigilante boarder patrol activities. Their goal was to kill those entering the United States illegally. Captain America goes to Arizona to investigate a missing person who was either killed or kidnapped by the Sons of the Serpent, resulting in a confrontation.
Murder in the name of boarder security is just plain illegal. There is absolutely no argument terrorists could make that they are acting on behalf of the United States. Captain America has a strong argument that his actions were in the defense of others to stop terrorists, because a reasonable person would believe physical force was immediately necessary to protect those illegally crossing the border from being murdered by terrorists in costumes with high-powered weapons. A.R.S. § 13-404.
The issue of whether Captain America can run a Super Pack to crowdfund his super-hero activities presents some funky legal issues. Being a super-hero is not like the Red Cross responding to a natural disaster, but actively seeking out criminals to engage in law enforcement activities. No one can crowdfund an illegal activity. There is a strong argument that raising money to engage in super-hero activity would violate RICO. There is also a chance that if Cap is fighting the government, his crowdfunding is actually a form of insurrection. As such, everyone supporting it would be part of a vast conspiracy.
Should Captain America fight terrorists? Yes. Protecting the poor, huddled masses, from terrorists is something Americans proudly do (responding to illegal border crossings is a different issue for the government, but one that does NOT involve murder by private citizens).
Can Captain America raise money like a political action committee for that purpose? No, but he could if it was for his legal defense or to aid those who were the victims of super-villains, then the crowdfunding would be for a legitimate purpose that would not be vigilantism.
