What are the Possible Legal Ramification of Giving out Senator Graham’s Cell Phone Number?

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July 23, 2015

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.

Snakenberg v. Hartford Casualty Ins. Co. (Ct.App. 1989) 299 S.C. 164, 166 [383 S.E.2d 2, 3].

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.

Can Ant-Man Commit a Heist to Stop International Terrorism?

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Josh Gilliland

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July 20, 2015

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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.

Thrilled to be Nominated for Best Podcast by The Geekie Awards

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Josh Gilliland

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July 18, 2015

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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-Man are 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.

Thank you all for enjoying The Legal Geeks.

How Geeky are the Presidential Candidates?

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Josh Gilliland

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July 15, 2015

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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?

The Law Awakens at San Diego Comic Con 2015!

By

Josh Gilliland

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July 13, 2015

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We had an AMAZING time at our first San Diego Comic Con. There were fantastic panels, cosplayers who created costumes with awesome detail, and attendees who represented the joy of being a geek. We were truly honored to celebrate the third anniversary of The Legal Geeks at San Diego Comic Con.

I cannot say enough nice things about US Magistrate Judge Paul Grewal. The Judge might be the first Federal Judge to present at SDCC. Judge Grewal rocked on stage, gave one heck of a presentation, and truly loved Comic Con. I cannot thank him enough for joining Jessica and I on this adventure. Plus he asked to take a selfie with us. Jess and I were truly honored.

Tatooine Law

We were ecstatic that our Star Wars panel filled the room. I estimate that we had between 250 to 300 people in the room. We had a giant line outside the door and filled every seat. My only regret is not everyone was able to get in.

Our audience truly made our presentation experience excellent. We had Star Wars fans of all ages who really love the story, laughed at the humor on the slides, and asked very thoughtful questions on the law.

Our session highlighted to me that discussing legal issues through popular culture is an excellent way for community outreach. Many members of the public do not understand “The Law” and others are afraid of “the Courts.” Going over property rights by studying the ownership history of R2D2 and C-3PO, or Darth Vader modifying the deal with Lando, are great ways to illustrate legal issues for people who would like to know more on how “The Law” works.

I also was very happy that my brother and his fiancé attended our panel. As children we played with Star Wars toys for hours, having dog-fights with X-Wings and Tie Fighters and shootouts with action figures. It was awesome he could join us for our Comic Con debut.

A very dear friend from my volunteer work and her husband also joined us for SDCC. Both are Naval Officers and I was glad we were able to get active duty military personnel to the show as our guests.

Just a Few Panels

I was able to see multiple panels, including one on Marvel’s Secret Wars with Tom Brevoort, Harbro’s Star Wars team, and an interview with Jack Kirby that originally aired on public access TV in the early 1980s that had not been seen in over 30 years. There were tons of just excellent panels.

Marvel_SecretWars_3562 — The Marvel Secret Wars panel with Charles Soule speaking.

I was very impressed with Comics for Impact: Healing Wounds of War. The panelists discussed how comics can be used to help our vets with PTSD using different authoring tools. The two of the three methodologies empowered vets to tell their stories of to others by creating a comic. The third focused on a story of a Sargent tell his troops the story of the Odyssey and returning from war.

The Exhibit Hall

Millennium_Falcon_3476 — Who really needs space for a dining room table?

“Mind-blowing” is a accurate description of the Exhibit Hall. Booths ranged from vintage comics to TV shows, movies, and stunning models. I was especially impressed with Sideshow Collectibles. I have no idea where I would put a 1/6 scale Millennium Falcon cockpit or 5-foot Tie Fighter, but strangely want both.

Tom Hiddleston also walked by me, so that was pretty cool.

Tom_Hiddleston-_3612 — Rare moment of right place at the right time.

It was a Monster Party

I was very happy to catch up with my old friend Matt Weinhold and the team from Monster Party. I first met Matt back in the mid-1990s when my family owned Rooster T. Feathers Comedy Club. It was a joy to met his wife in person and go to dinner with Larry, Shawn, and James from Monster Party. It was very cool to join them for their SDCC podcast and I look forward to hearing it.

MonsterParty_3669 — James Gonis, Shawn Sheridan, Larry Strothe, and Matt Weinhold doing their magic.

2016?

We had an absolutely amazing time at San Diego Comic Con. A huge thank you to Mike Towrey from San Diego Comic Fest for all of his help in getting us a panel at SDCC. I hope we can present again next year, perhaps to honor the legal issues in Star Trek for the 50th Anniversary.

Spider-Kagan?

By

Josh Gilliland

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July 7, 2015

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It is nice to see Justice Kagan is also a Legal Geek. The Friendly Neighborhood Justice spun a web of geekdom in following stare decisis over payments for an expired patent for toy Spider-Man web slingers. If the Justice wants to rival the late Chef Justice Rehnquist’s strips on his robe, we have an idea on a new judicial look a la Spider-Gwen (and the talented Jesse Toves).

Here are the basic facts of the case: the patent holder developed a Web Blaster toy and sued Marvel in 1997. The parties settled with Marvel purchasing the patent holder’s patent for a lump sum of about a half-million dollars and a 3% royalty on future sales of the toy. Kimble v. Marvel Entm’t, LLC, 2015 U.S. LEXIS 4067, *6 (U.S. June 22, 2015). In the words of the Court, “The parties set no end date for royalties, apparently contemplating that they would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can).” Id.

Prior cases hold that patent laws prevent patentees from getting royalty sales after the expiration of the patent. Id. Marvel sought and won declaration judgment that they did not need to continue payments after the 20-year period.

The Supreme Court held for Marvel following decades of case law. Justice Kagan concluded the opinion with the following:

What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “Spider-Man,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”). Finding many reasons for staying the stare decisis course and no “special justification” for departing from it, we decline Kimble’s invitation to overrule Brulotte.

Kimble, at *31.

My compliments to Justice Kagan in letting her Geek Flag fly in the opinion. Uncle Ben would be proud. The Justice has a standing invitation if she ever wants to write a guest post on The Legal Geeks.

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

By

Josh Gilliland

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July 6, 2015

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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.