It is the time of year again, when attorney bloggers start barnstorming across Iowa and New Hampshire to win the hearts of readers at pancake breakfasts and state fairs.
Nominations for the ABA Journal Blawg 100 are now open. If you enjoy our blog, we would be honored if you took two minutes and “cast a vote” for us.
You can cast your vote to nominate The Legal Geeks by visiting the ABA Journal and submitting 1) your name and email; 2) our website www.thelegalgeeks.com; 3) a link to your favorite recent post; and 4) say why you like our blog with up to 500 words.
I am a huge fan of Monster Party. I have known Matt Weinhold since my mother owned Rooster T. Feathers back in the mid-1990s. We caught up at San Diego Comic Con and I was able to join Matt, Larry Strothe, James Gonis, and Shawn Sheridan, for their special Monster Party Comic Con podcast.
Getting to podcast with the Monster Party team was like getting invited to the “grown-ups table” at Thanksgiving. These guys (along with their awesome wives) set a high bar for being a geek, having dedicated their lives too all things Godzilla, Star Trek, comic books, aliens, and monsters. It was truly an honor to hang out with them and “talk geek.”
I hope you enjoy the podcast. It was a blast to record and I wear my Monster Party hat with pride.
Cassie Lang has a very special pet at the end of Ant-Man: An ant that is larger than a Rough Collie. Would she be legally able to have such an exotic pet in San Francisco?
The state of California and cities have very specific rules on the kinds of animals that can be pets. California prohibits a long list of animals from being imported, possessed, or released live in the state without a revocable, nontransferable permit, including any animal from Manatees to all species of Crocodilidae. Cal Fish & G Code § 2118. This list does not include any inspects.
The City and County of San Francisco prohibit animal owners from letting animals run at large around the city, other than domestic cats. San Francisco Health Code section 41.12. It is illegal to sell wild or dangerous animals in San Francisco, which are defined as animals that are “wild by nature and not customarily domesticated in the City and County of San Francisco and which, because of its size…that could constitute a danger to human life.” San Francisco Health Code section 51. These animals include wolves, jaguar, elephant, orangutan, Gila monster, and others, to name a few. Id. Moreover, wild animals must have a permit, or be taken by animal control up to 14 days before being sold or destroyed. San Francisco Health Code section 65.
San Francisco’s laws do not specifically address insects. By way of comparison, Alameda pet restrictions include insects. Alameda, California Code of Ordinances Sec. 7-9.6.
Pet ordinances are not designed for insects to be artificially enlarged. The City and County of San Francisco would likely require a license for a giant ant based on its “size” as a wild animal that could pose a danger to a person.
There is not a rich body of law for “ant farm” liability. At common law, an owner of a wild animal is absolutely liable for any injuries caused by that animal. By way of comparison, owners of domesticated such as dogs or cats are not subject to liability under common law unless the owner knew the animal was abnormally dangerous. Drake v. Dean (1993) 15 Cal.App.4th 915, 935. However, California statute states that dog owners are liable for damages if a dog bites someone if the victim is in a place where they can lawfully be, regardless of knowledge of whether or not the dog is vicious. Cal Civ Code § 3342.
Would the same be true of a giant pet ant? Most likely yes, given the exotic nature of the pet and an active plaintiff’s bar if the ant bites anyone. Moreover, ants can lift 1000% their weight. As such, “Antie” should be able to overturn cars, rip doors off hinges, and cause general mayhem on a rampage. However, it seems highly unlikely Cassie would employ her pet ant to terrorize first graders. That being said, it is a good thing Cassie has a police officer as a soon-to-be step-father to help with the permitting process.
Politics has a history of being ugly. In the election of 1828 John Quincy Adam’s campaign published the “Coffin Hand Bill,” which outlined people that candidate Andrew Jackson had killed in dueling; President Lyndon Johnson’s “Daisy Ad” nuked Senator Barry Goldwater in 1964; and the election of 1860 outright had threats against Abraham Lincoln.
While giving out the personal cell phone number of an opponent is nothing like dueling, it is a brutal way to reach out and touch someone. Just how many calls did Senator Graham have after Donald Trump’s sideshow antics? Moreover, what are the Senator’s possible legal actions (besides having a sense of humor and destroying his flip phone in a YouTube video)?
A creative Federal Prosecutor would analyze whether or not Donald Trump could be charged with violating 18 USCS § 351(e), which states “Whoever assaults any person designated in subsection (a) of this section [a Member of Congress, President, or member of the Executive Branch] shall be fined under this title, or imprisoned not more than one year, or both; and if the assault involved the use of a dangerous weapon, or personal injury results, shall be fined under this title, or imprisoned not more than ten years, or both.” 18 USCS § 351(e).
Case law has held that intentionally spitting on or throwing eggs at individuals covered by the law is sufficient to sustain a conviction. See, United States v Masel (1977, CA7 Wis) 563 F2d 322, cert den (1978) 435 US 927, 55 L Ed 2d 523, 98 S Ct 1496 and United States v Calderon (1981, CA10 Colo) 655 F2d 1037.
Giving out someone’s personal cell phone would not be assault under the plain text of current law, but it arguably is harassment. In South Carolina, harassment in the second degree is defined as “a pattern of intentional, substantial, and unreasonable intrusion into the private life of a targeted person that serves no legitimate purpose and causes the person and would cause a reasonable person in his position to suffer mental or emotional distress. Harassment in the second degree may include, but is not limited to, verbal, written, or electronic contact that is initiated, maintained, or repeated.” S.C. Code Ann. § 16-3-1700(B).
A lawyer could argue that intentionally giving out a United States Senator’s personal cell phone number is harassment, because it encouraged others to be the agent of a political candidate in making unwanted phone calls to a political opponent. While the political candidate himself is not making any phone calls, his actions arguably encouraged others to do so on his behalf.
South Carolina also prohibits assaulting or intimidating citizens based on their political beliefs. S.C. Code Ann. § 16-17-560. One can argue that giving out a cell phone number is a form of intimidation, depending on the nature and number of phone calls Senator Graham received based on his political opinions.
Could a Federal Prosecutor or District Attorney charge Donald Trump for harassing Senator Graham in either Federal Court or South Carolina? Unknown, but is something the FBI would be investigating if the Senator got any threatening phone calls.
Senator Graham potentially has a very strong invasion of privacy case by Trump giving out the Senator’s phone number. To prevail on such a theory, Senator Graham would have to prove:
An Intrusion, which can include watching, spying, prying, besetting, overhearing, or other similar conduct;
Into that which is private. The intrusion on the plaintiff must concern those aspects of himself, his home, his family, his personal relationships, and his communications which one normally expects will be free from exposure to the defendant; and
Substantial and unreasonable enough to be legally cognizable.
Intentional. The defendant’s act or course of conduct must be intentional.
Invasion of privacy requires that the defendant’s conduct would cause mental injury to a “person of ordinary feelings and intelligence in the same circumstance.” Id.
Most people would suffer mental injury if their cell phone exploded with adversarial calls and text messages. We do not know how many calls Senator Graham received because of Donald Trump’s disclosure of Senator Graham’s private phone number. Could the Senator have a civil case? Maybe, but there would have to be far more legal research and analysis of the number of calls the Senator received to determine if a lawsuit could be filed in South Carolina.
It is a good bet that there will be no legal action over this “political question.” Instead, the court of opinion that decides this case will be by the good people of Iowa, New Hampshire, and South Carolina.
I can safely say who I am not voting for in the primary.
Ant-Man is a very fun Marvel movie. The atomic structure of the film has a perplexing nucleus: Can a super-hero commit a criminal conspiracy for burglary and the willful destruction of property in order to stop international terrorism (specifically HYDRA)? Why not just let the FBI handle enforcement for a change?
Hank Pym’s goal throughout the story is for his Pym Particles to not be turned into a weapon of war by by anyone from SHIELD to Howard Stark to Darren Cross. Pym served as a SHIELD Agent for decades and quit after learning SHIELD was trying to replicate his Pym Particles in 1989. This shrinking technology was unquestionably Pym’s personal intellectual property. Pym had successful kept the technology secret for 26 years until Darren Cross had weaponized the technology into the Yellowjacket suit.
Enter Scott Lang, recruited by Pym to steal the Yellowjacket suit from Pym Technologies. Would Hank Pym, Scott Lang, Hope Van Dyne, and the rest of the Ant-Gang have a valid necessity defense for their theft from Pym Industries and resulting property damage?
It is no small legal matter. A fictional version of me in the Marvel Cinematic Universe would take the case and argue as follows for the Defendants:
California law (since the film is based in San Francisco) defines the necessity defense as follows for the use of force:
Any necessary force may be used to protect from wrongful injury the person or property of oneself, or of a wife, husband, child, parent, or other relative, or member of one’s family, or of a ward, servant, master, or guest.
Cal Civ Code § 50.
California case law requires the following elements to be met for a defendant to have the defense of necessity for violating the law:
(1) [Law was broken] to prevent a significant and imminent evil;
(2) With no reasonable legal alternative;
(3) Without creating a greater danger than the one avoided;
(4) With a good faith belief that the criminal act was necessary to prevent the greater harm;
(5) With such belief being objectively reasonable; and
(6) Under circumstances in which she did not substantially contribute to the emergency.
People v. Kearns (1997) 55 Cal.App.4th 1128, 1135 [64 Cal.Rptr.2d 654].
Hank Pym’s primary goal was to keep his technology from being turned into a Weapon of Mass Destruction that would horrifically alter warfare. Dr. Pym actions were consistent with ensuring Restricted Data under the Atomic Energy Act of 1946 would not fall into the hands of a foreign power. Darren Cross openly stated his intention to sell the Yellowjacket technology. As such, there was a threat that could have caused significant harm. However, there is a strong argument the threat was not imminent.
A lawyer could argue that the threat of selling the Pym technology was imminent because the technology itself was secret. The Cold War missions of the “Ant-Man” were classified from the days when SHIELD actually did good, such as stopping a nuclear attack on the United States. With the fall of SHIELD after The Winter Soldier, and known HYDRA operatives after the technology, there was no way to engage the FBI or other Federal law enforcement agency to comply with the warrant requirements of the Fourth Amendment.
Darren Cross committed multiple acts of murder, cruelty to animals with his experiments on lambs, and had contracted to sell the Yellowjacket technology to HYDRA. Cross knowingly provided material support to a foreign terrorist organization under 18 USCS § 2339A and 18 USCS § 2339B. These crimes are punished by imprisonment for 20 years or life if the terrorist support had caused the loss of life.
Pym’s legal team could argue that the unlawful entry into Pym Technologies was to prevent the significant and imminent evil of selling advanced weapons to HYDRA; that there was no reasonable legal alternative given the classified nature of the information and unavailability of law enforcement; the act of breaking into Pym Technologies and destroying the building did not create a greater harm then arming a genocidal Neo-Nazi terrorist organization; Pym had an objective good faith belief that breaking into Pym Technologies would prevent greater harm then the Yellowjacket weapons system being sold to terrorists; and the planned heist did not substantially did not contribute to the emergency.
The last element would need to be shrunk down in argument, because the Ant-team did blow up, and then miniaturize, Pym Technologies.
Jessica and I are deeply honored to be nominated for Best Podcast by The Geekie Awards. Our podcast Property Lessons from Thor and Civil Procedure from Ant-Manare tales to astonish law professors and legal geeks who love the law. We are simply thunderstruck to be recognized by The Geekie Awards one week after our first San Diego Comic Con panel. This summer has been one excellent adventure for Jessica and I. Thank you everyone who has joined us.
Our podcast journeyed into mystery on whether ownership of Mjolnir could be contingent on being worthy, based on the events in Jason Aaron’s excellent Thor series after the events of Original Sin. Jess and I then geeked out over Civil Procedure in discussing Nick Spencer’s awesome Ant-Man series on whether Tony Stark could sue Scott Lang in California or Florida.
We look forward to the awards show on October 15 at Barker Hanger in Santa Monica. I greatly enjoyed the innovation and fun of the first two Geekie Awards shows. I am very excited to see the new venue for a simple reason: I love airplanes. Having both a grandfather and father who were aeronautical engineers whose careers spanned from Amelia Earhart to the Space Shuttle, it will be a lot of fun to see the Geekie Awards in Barker Hanger.
Voting for the Best Podcast is now live at http://vote2015.thegeekieawards.com/ until August 31. Please vote once a day for The Legal Geeks and help keep civil procedure and property cool.
We invite all of the candidates running for President of the United States to share their geekiness over “fictional” legal issues in a guest post. We want to hear your legal analysis on one topic from comic books or science fiction.
Here are the campaign guest post rules: 1) Posts must be submitted by the candidate and verified that they are actually from the campaign; 2) Posts should be at least 500 words; 3) The campaign should supply at least one supporting image and headshot of the candidate by email after the post submission; 3) The guest post must respond to one of the below questions; and 4) Each campaign may only address one topic.
1. What is the point when super-heroes go from rescuing those in danger from others to vigilantism?
2. Should super-heroes be required to register with the government and make their secret identities know to that government?
3. Can the government conscript superheroes and force them into government service?
4. How would you advise a super-hero on estate planning? What contingencies should be included for possible resurrection? How should assignment of rights for another to become that hero be planned for?
5. Do super-heroes have a duty to rescue those in peril?
6. Can city zoning prohibit super-hero headquarters in populated areas as a matter of public safety?
7. Do you consider Superman an illegal alien? How would your administration deal with extraterrestrials who arrive on Earth?
8. If there is a mass casualty event from an alien invasion, would it be necessary to declare martial law? How long would martial law need to be in effect?
9. Which super-heroes who were originally super-villains would you pardon for their past crimes and why?
10. What are the Probate and Tax Law ramifications of dead super-heroes coming back to life?
11. Under what conditions could Artificial Intelligence, such as an android, qualify as a “person” under the law?
12. How can super-heroes from other planets legally become a permanent resident in the United States? Does being a super-hero count as employment?
13. What is the role of the Federal government in rebuilding massive property damage from events such as an alien attack or Godzilla rampage?
14. What steps must be taken for super-villains have a fair trial?
15. What provisions must be put in place to incarcerate super-villains without violating cruel and unusual punishment?
16. What is, or is not, the equal protection argument for a human to marry an android, alien from another planet, or inter-dimensional being?
17. How can super-human individuals be regulated without violating their civil rights?
18. What changes must be made to immigration law in order for a being from another planet to become a U.S. citizen?
19. What factors would determine whether an alien from another planet is a political refugee?
20. Where would SHIELD fall in the US Military chain of command? Is SHIELD primary a law enforcement agency, espionage agency, or branch of the military?
21. Which episode from any of the Star Trek TV series had the best trial, including legal issue and best trial advocacy skills?
22. What are the best civil rights issues presented in all of the Star Trek TV series?
23. What are the legal risks of providing lightsabers to Padawans?
24. What are the main differences in legal arguments between the 1964 Outer Limits episode “I, Robot,” to the 1995 version? Which had the better argument and why?
25. What treaty agreements would need to be in place for International Rescue from the Thunderbirds to operate legally around the world?
