The Original Sin of Gamma Bombs & Proximate Cause

By

-

July 22, 2014

Marvel’s Original Sin limited series Hulk vs Iron Man has a simple premise: Tony Stark was paid $500,000 (Stark’s Daily Rate) and 2 Bottles of 25 year-old Scotch to conduct a “supervisory examination” of Bruce Banner’s Gamma Bomb to make it more lethal. Because of Stark’s interference, the bomb turned Bruce Banner into the Hulk (plus Rick Jones going into the test area which arguably was a superseding event).

As one can imagine, finding this out rather upset Bruce Banner. And you do not like him when he is angry. However, instead of calling his lawyer cousin Jennifer, he plotted revenge on Tony Stark.

Tony Stark’s sabotage of the bomb creates a huge issue of proximate cause on whether he (and General Ross) are responsible for creating the Hulk and thus enough damage costs to bankrupt Tony Stark.

“Proximate cause” is an act that is “legally sufficient to result in liability.” Black’s Law Dictionary App, 9th Edition. The cause must directly produce an event and would not have occurred “but for” that event. Id. Legal responsibility cannot exist in the air and “must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability.” Id., citing W. Page Keeton et al., Prosser and Keeton on Torts § 41, at 264 (5th ed. 1984).

One element of establishing liability is whether or not the harm was foreseeable. In a case where a plaintiff walked through a Navy test bombing range that was open to the public when not in use, found an unexploded bomb, took it home, struck it on the ground, which caused it to explode, the Court found liability against the Government. Duvall v. United States, 312 F. Supp. 625, 633 (E.D.N.C. 1970). The reasons for liability included that the Navy knew unexploded bombs could be carried off by those who walked through the area and a state law imposed a duty to control explosives from unauthorized possession (the case was brought under the Federal Tort Claims Act which is how the state claim was allowed against the Federal Government). Id. Moreover, New Mexico law imposes absolute liability for any damages proximately caused by explosives, which is where the Gamma Bomb was detonated. N.M. U.J.I. Civ. 13-1627.

If Tony Stark, who acted as an independent contractor hired by General Ross for the the US Government, was the proximate cause for creating the Hulk, both Stark and the US Government could be responsible for Banner’s condition AND all the damage the Hulk had created. The issue would turn on whether or not the Gamma Bomb turning Banner into the “smashing” Hulk was foreseeable. As no one had ever turned into a rampaging grey, green, or red Hulk before from Gamma Radiation, it would be very difficult to argue that Banner’s transformation was reasonably foreseeable from altering the Gamma Bomb.

Bruce Banner was employed by the US Government to build a bomb. While Banner did not want to build a a “continent killer,” General Ross was very interested in Tony Stark’s claim the bomb could be more powerful. Establishing liability for the General retaining Stark to enhance the bomb could be problematic, based on the cases barring property owners from recovering damages against the Federal government for testing nuclear weapons. See, Bartholomae Corp. v. United States, 253 F.2d 716, 718 (9th Cir. Cal. 1957). Moreover, Stark was a $500,000 a day consultant and one of the best weapons designers in the world who did his job: make the bomb more lethal. Federal law would trump any possible state law claims for Tony Stark conducting the work he was hired to perform, barring any Federal statute allowing for claims to be brought against the Government for weapons testing.

However, since Stark’s work was done without Banner’s knowledge, and if Stark’s job was to sabotage the bomb instead of improving it, these facts may negate the nuclear bomb case precedents, because those were controlled tests. If the lead scientist does not know changes had been made, addition risk is created by those altering the bomb. The fact that testing a Gamma Bomb was already an ultra-dangerous activity, making changes in secret could impose absolute liability on Tony Stark and the United States Government.

Now, the unanswered question is how General Ross could retain someone with a $500,000 daily rate without following government bidding requirements.

The Original Sin of "I’m In Charge!"

By

Josh Gilliland

-

July 15, 2014

0

Marvel’s new mini-series Original Sin focuses on who murdered the Watcher and why. After discovering the Watcher’s body on the Moon, Captain America asked Nick Fury to lead the criminal investigation into the Watcher’s death (Issue 1).

Upon landing at a battle between the Thing and Spider-Man against one of the Mindless ones in New York, Nick Fury declared the area was a crime scene and that he was in charge. Id. Moreover, Fury and other super-heroes ultimately lead an assault on the Watcher’s suspected murders (Dr. Midus, Exterminatrix, and the Orb) in New York City, which ended with Nick Fury placing the Orb under arrest (Issues 2 and 3).

There are multiple issues with these facts. First, could Captain America deputize Nick Fury to lead a criminal investigation? Second, could Nick Fury arrest the Orb? Three, could Nick Fury detain the Orb in the Avenger’s Tower?

Captain America may have been legally in the right to appoint Nick Fury to conduct an investigation, much like a private individual can hire a private eye. However, that appointment does not necessary give Fury legal authority to execute law enforcement actions, unless Captain America were acting on behalf of the United States with the powers to deputize others to conduct law enforcement activities. If Captain America did not have such authority, both New York and Federal law would prohibit Nick Fury from representing he was “in charge” and arresting the Orb.

Federal law states that “Whoever falsely represents himself to be an officer, agent, or employee of the United States, and in such assumed character arrests or detains any person or in any manner searches the person, buildings, or other property of any person, shall be fined under this title or imprisoned not more than three years, or both.” 18 USCS § 913.

In New York state, a person is guilty of criminal impersonation when they pretend “to be a public servant, or wears or displays without authority any uniform, badge, insignia or facsimile thereof by which such public servant is lawfully distinguished, or falsely expresses by his words or actions that he is a public servant or is acting with approval or authority of a public agency or department; and (b) so acts with intent to induce another to submit to such pretended official authority, to solicit funds or to otherwise cause another to act in reliance upon that pretense.” This is a class A misdemeanor. NY CLS Penal § 190.25(3)(a) and (3)(b).

Nick Fury’s arrest of the Orb would violate both Federal and New York law, because it is an act implying law enforcement powers, unless there was an off-camera scene with Fury being officially deputized by law enforcement, such as someone like the Governor of New York or the United States Attorney General. Moreover, Fury did not say he was placing the Orb under “citizen’s arrest,” but instead implied that he was a public servant who could conduct arrests. If Fury was acting under actual authority to conduct law enforcement, he did not give the Orb his Miranda rights.

However, the impersonation did not end there, as we later learn that Fury was actually an LMD after the Winter Soldier killed him. Or it. Which raises a whole new level of impersonation, if not identity theft, if there were law over Life Model Decoys.

Second Anniversary Podcast with Kristen Nedopak

By

Josh Gilliland

-

July 15, 2014

0

Jessica and I are extremely proud to celebrate our second anniversary on The Legal Geeks. We have had a wonderful adventure discussing all things geek since July 2012. We were honored to have Kristen Nedopak, creator of The Geekie Awards, join us for a special “cotton” anniversary podcast.

The Legal Geeks Second Anniversary

By

Josh Gilliland

-

July 12, 2014

0

Jessica Mederson and I started our adventure on The Legal Geeks on July 12, 2012. The past two years have been a wonderful experience providing legal analysis of comics, science fiction, and pop culture. Meeting our fellow geek lawyers who love sci fi has been extremely rewarding.

The last twelve months have been incredible, with our Honorable Mention at the 2013 Geekie Awards for our podcast with Judge Sciarrino AND making the ABA Journal Blawg 100.

I want to thank everyone who has supported us. I am always humbled when people come up to me at an event to say they read our blog. We hope you continue to enjoy The Legal Geeks.

The Legal Geeks Year 2

The last year has been a fun time to be a geek. I loved blogging about Agents of SHIELD each week, the fantastic issues in Captain America The Winter Soldier, and I could have taught law school classes from Almost Human. The celebration around the 50th Anniversary of Doctor Who also provided many opportunities to pick up action figures and go full geek at Gallifrey Stands!

I cannot wait for Guardians of the Galaxy, Agent Carter, The Flash, Sleepy Hollow, Gotham and the other wonders awaiting in the fall.

Let’s Get Geekie

One of my ideas of fun is connecting the law to science fiction. For example, if we discovered a colony of dinosaurs, would they be protected by the Endangered Species Act? Moreover, would the Dinobots of Transformers fame qualify as an “Endangered Species”? And the question everyone wants an answer to, could the US Department of Fish and Wildlife STOP Steven Spielberg once and for all from hunting fictional dinosaurs?

Before anyone running for Congress puts out a 7 figure bounty for naked photos of one of the best directors who ever lived for “hunting” a triceratops, let’s break down the legal issues of Dinosaurs and Dinobots:

First, a “species” is “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” 16 U.S. CODE § 1532(16).

Second, a species is “endangered” if it is “in danger of extinction throughout all or a significant portion of its range.” 16 U.S. CODE § 1532(6).

Third, a species is “threatened” if it is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. § 1532(20). Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1202 (D.C. Cir. 2013).

There is no doubt that a dinosaur would qualify as a species. Depending on its food supply and potential interruption of its range would determine if it would be endangered or threatened. It might simply be rare and something to be left alone. Unless you want a 40 foot eating machine to turn you into a snack.

A Dinobot such as Grimlock is a bit more complicated because he is a living alien machine (in the movies). A Dinobot might not qualify as a “species” under the law, because the law is not designed for alien robots. It is still unclear if Transformers breed, because of the line in Age of Extinction about Optimius Prime being created not born, vs the dialog between Megatron and Starscream in Dark of the Moon about the “hatchlings,” implying either procreation or construction.

As for Steven Spielberg who has made going to the movies since 1975 AWESOME, he was sitting next to a prop of an animal that went extinct over 65 million years ago. If one were alive, you know Spielberg would help it go home.

I’ll Be Right Here

I want to thank everyone who has read our blog for the last two years.

The ABA Journal is now accepting “Friend of the Blawg” briefs for the ABA Journal Blawg 100. If you enjoy our blog, we would be honored to have your nomination.

Until then, we will continue to steer for the second star on the right to the future.

In Requiem for the Surf Rider Sonny Miller

By

Josh Gilliland

-

July 10, 2014

0

My cousin Sonny Miller passed away after a heart attack on July 8, 2014. He died six days after his mother died from Dementia. He was one of the most dynamic individuals I have ever known.

Sonny traveled the world making surfing movies. His resume included a long list of surfing classics, including Riding Giants, Searching for Tom Curren, and the James Bond movie Die Another Day. He was also the announcer at the end of Blue Crush. His Instagram photos were always of great adventures across the globe.

My cousin was an amazing photographer. Sonny had worldwide success because he was one of the best photographers on the planet. Part of my love of photography was inspired heavily from him when I was a child.

I would touch base with him and find out he was doing something awesome, like going to Hawaii with the Roxy Girls. That certainly made me re-think my career choices.

Sonny’s company was World Wave Pictures, which made me think: What is the legal definition of a wave? According to case law, “A wave is a naturally occurring phenomenon of the ocean — not a man-made object such as the floating poles, logs, and pilings… A wave may be a dangerous condition of the ocean, but, by its very nature, cannot be an unnatural condition.” Birmingham v. Fodor’s Travel Publications, 73 Haw. 359, 379-380 (Haw. 1992).

Death is like a wave. It is a naturally occurring phenomenon. That does not take away the the fact it can knock someone off their feet.

Sonny was a man of adventure, talent, and great compassion. He dutifully took care of his mother for seven years in the twilight of her life. I know that I will always remember him when looking at the crashing surf.

Red skies and following seas, my cousin.

Please Nominate The Legal Geeks for the ABA Journal Blawg 100

By

Josh Gilliland

-

July 8, 2014

0

The ABA Journal is now accepting “Friend-of-the-blawg briefs” for the 2014 ABA Journal Blawg 100. Jessica and I were deeply honored to make the Blawg 100 in 2013 and humbled to have won the vote for the Fan Favorite. To everyone who voted for us, thank you. Your support really means a lot to us.

We ask for your help once again. If you enjoy The Legal Geeks, please take a minute and let the ABA Journal know how much you like our blog by filling out a “Friend-of-the-Blawg Brief.”

I filmed our latest “campaign” video during the Arkansas Bar Association Annual Conference in Hot Springs. They put me in an amazing suite with a Presidential theme. It was only natural to film this quick video.

Transformers: Age of Criminal Prosecutions

By

Josh Gilliland

-

July 7, 2014

0

The most believable part of Transformers Age of Extinction is the idea of giant alien robots that can transform into different vehicles. The movie went out of its way to say it was legally “O.K.” for a 20 year-old to date (and arguably have sex with) a 17 year-old, and totally ignore the Export Control Licensing Act and Firearm Control Act. Both Shane Dyson and Joshua Joyce would need to live in China at the end of the movie to avoid criminal prosecution in the United States.

Don’t Have Sex With High School Students

Let’s start with Shane Dyson, the 20 year-old who was in a presumed sexual relationship with the 17 year-old Tessa Yeager. While Tessa Yeager could consent to a sexual relationship at age 17, the issue is engaging in sexual activity when Shane was 19 and Tessa 16; or when Shane was 18 and Tessa 15. This would subject Shane Dyson to prosecution for having committed statutory rape. Dyson went so far as carrying the Texas code section in his wallet, as if that would protect him from prosecution for having sexual relations with a high school student who was under the age of consent. Texas law states:

(e) It is an affirmative defense to prosecution under Subsection (a)(2):

(1) that the actor was the spouse of the child at the time of the offense; or
(2) that:

(A) the actor was not more than three years older than the victim and at the time of the offense:

(i) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or
(ii) was not a person who under Chapter 62, Code of Criminal Procedure, had a reportable conviction or adjudication for an offense under this section; and

(B) the victim:

(i) was a child of 14 years of age or older; and
(ii) was not a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.

Tex. Penal Code § 22.011(e).

I hope to God no 20 year-old watched this film and thought they could sleep with girls in high school because the age of consent in Texas is 17. This entire scene is grossly irresponsible and added nothing to the plot.

Texas allowing an affirmative defense to statutory rape does not mean Shane would be free to have sexual relations with Tessa Yeager because she was only three years younger than him. The law takes the view that juveniles “lack the capacity to appreciate the significance or the consequences of agreeing to sex, and thus cannot give meaningful consent.” In re B.W., 313 S.W.3d 818, 820-821 (Tex. 2010), referencing Hazelton, 915 A.2d at 234; Collins v. State, 691 So.2d 918, 924 (Miss. 1997) and Roper v. Simmons, 543 U.S. 551, 569, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).

Texas Penal Code section 22.011 states it a crime to intentionally or knowingly have non-consensual sex with an adult, or sex under any circumstances with a child (a person under seventeen). Id. In situations where the victim is fourteen, a Court would examine the child’s subjective agreement on whether a crime had been committed. In re B.W., 313 S.W.3d 818, 820-821 (Tex. 2010), citing TEX. PENAL CODE § 22.011(e).

Shane could be charged with the strict liability crime of statutory rape. Carrying a copy of Texas law in his wallet will not protect him from a District Attorney charging him with sexual assault under Texas Penal Code § 22.011. Whether or not he has an affirmative defense would turn on the testimony of Tessa on whether she subjectively agreed to have sex with a legal adult (let alone who consented to Tessa participating in high risk driving competitions. Add forgery and child endangerment to the charges in state court).

There could be additional Federal charges against Shane Dyson and Tessa Yeager if photos of a sexual nature were exchanged over webcam (which was alluded to when the two talked over a Skype-like application) or text messages. Both could be subject to having created or stored child pornography under 18 USCS § 2252A. This would result in both having to register as sex offenders.

You Cannot Take Military Technology to China

Joshua Joyce, CEO of KSI, took his Transformers built for the US military to China. This unquestionably would violate the Arms Export Control Act. The purpose of the Act is to keep weapons that could contribute to an arms race, aid in the development of weapons of mass destruction, support international terrorism, increase the possibility of outbreak or escalation of conflict, or prejudice the development of bilateral or multilateral arms control or nonproliferation agreements or other arrangements. 22 USCS § 2778(a)(2).

The President of the United States can control the import and export of defense articles and services in furtherance of world peace, security, and the foreign policy of the United States. Giant weaponized robots build for the US military would fall under the export licensing requirements 22 USCS § 2778(c), because they are “drones,” which are specifically named in the Act. There is simply no way these weapons could be taken to China, which has nuclear missiles aimed at the United States.

A college professor who worked as defense contractor was convicted of violating export control law by emailing a paper on plasma technology used in Drones to a professor in China; taking the same material on a computer to China; and showing two foreign nationals the data in Tennessee. United States v. Roth, 628 F.3d 827, 829 (6th Cir. Tenn. 2011). In another case, two Defendants were convicted of violating exporting laws by shipping military grade electronic components to China. United States v. Zhen Zhou Wu, 711 F.3d 1, 8 (1st Cir. Mass. 2013).

Giant military robots that could be operated by a pilot are a Drone that could not be sent to China without an export license. There is simply no way any President would authorize the transfer of such advanced technology to a country in the “frenemy” category that lends money while performing cyber-acts, contemporaneously building a blue water Navy to challenge the United States, along with a horrid human rights record on its own citizens. Just no way on Earth that would happen.

Joshua Joyce could be charged and convicted of violating the Arms Export Control Act. The punishments are 20 years in prison, $1,000,000 for each violation, or both. Considering that 50 KSI Transformer Drones were sent to China, the billionaire could be fined $50,000,000 and spend 20 years in Federal prison. 22 USCS § 2778(c).

Let’s not forget the criminal conspiracy with the rogue CIA officers to commit treason, which included a plan to detonate a “Seed” in China. That could be considered an act of war or providing China with the raw materials it needed to build its own Transformer Drones. Joyce should strongly consider never returning to the United States, unless the President pardons him for treason and violating the Arms Export Control Act.