Major Spoilers!
Jessica Mederson and Josh Gilliland discuss Captain America The Winter Soldier. The discussion focuses on treason, the necessity defense, insanity defense, how SHIELD could be organized, following unlawful orders and geeking out over Captain America.
Captain America Winter Soldier was my favorite comic book movie to date. Excellent storytelling, with the not so subtle warning of a massive police state. It also highlights how freedom is best destroyed from within through fear.
It is the best comic book action adventure political thriller for attorneys ever.
[Limited] Spoilers Ahead!
SHIELD’s Organization
We learned SHIELD is headquartered in Washington, DC with a view of the Mall. Moreover, the building is over 41 stories tall, breaking the rule that no building in DC shall be over 5 stories.
SHIELD appeared to be funded by the United States Government with a four person World Council for oversight and project approval. SHIELD had the ability to use data from traffic cameras, access the cellular communication network and online surveillance on the US population. Predictive analytic software was developed to determine who SHIELD should kill from the air prior to an attack being made by the possible threat.
If you do not like Drones, you would really not like Project Insight.
Following Unlawful Orders
Without trying to give away major plot elements, there was a faction within SHIELD trying to achieve goals that would not only be treason, but world domination. There was a significant divide between those following the treasonous orders and those saying “No.”
DC Circuit Judge Washington in 1813 put it the best on being required to follow illegal orders with, “It is repugnant to reason, and to the positive law of the land. No military or civil officer can command an inferior to violate the laws of his country; nor will such command excuse, much less justify the act.” United States v. Jones, 26 F. Cas. 653, 657-658 (C.C.D. Pa. 1813).
No one can be convicted for NOT following an illegal order. United States v. Jordan, 7 U.S.C.M.A. 452, 456 (C.M.A. 1957).
The SHIELD Agents who openly disobeyed illegal orders when confronted with the truth of SHIELD’s plans were in their legal right to do so. Moreover, those who opened fire on the rogue agents properly did so in defense of those they were supposed to protect.
Necessity Defense & Whistle-blowing
Captain America, Black Widow and Falcon committed multiple felonies in their efforts to stop the evil elements within SHIELD. These actions include destruction of public property, use of weapons in public, stealing government equipment, burglary from a museum, publishing classified material and the destruction of three helicarriers.
All of these actions were done in the defense of the world to stop at least the deaths of 20 million people. Captain America, Black Widow & Falcon could argue everything they did was done out of “necessity.”
The necessity defense may be asserted “only by a defendant who was confronted with . . . a crisis which did not permit a selection from among several solutions, some of which did not involve criminal acts.” United States v. Holmes, 311 Fed. Appx. 156, 164 (10th Cir. Kan. 2009). The necessity defense has a three part test:
(1) There is no legal alternative to violating the law;
(2) The harm to be prevented is imminent; and
(3) A direct, causal relationship is reasonably anticipated to exist between defendant’s action and the avoidance of harm.
Holmes, at *164 citing United States v. Benally, 233 F. App’x 864, 868 (10th Cir. 2007).
For our heroes, there was no legal alternative to violating the law; the harm to be prevent was imminent and there was a casual relationship between their actions and the harm to be avoided.
Treason & Insanity Defense
The Winter Soldier’s story had heavy elements from the comic book, minus any references to Soviet General Alexander Lukin, the Kronas Corporation, or the Cosmic Cube.
The Winter Soldier had a 50 year history of being the used for political assassinations, having his mind erased, and put in suspended animation. Could James Buchanan Barnes be put on trial for treason and acts of war on foreign countries?
The United States Constitution defines the crime of treason as “levying War against them [The United States], or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” United States Constitution, Article III, Section 3.
The Winter Soldier without question committed many acts of treason. However, James Barnes would successfully be able to argue the insanity defense. A defendant is legally insane if:
1. When (he/she) committed the crime[s], (he/she) had a mental disease or defect;
AND
2. Because of that disease or defect, (he/she) was incapable of knowing or understanding the nature and quality of (his/her) act or was incapable of knowing or understanding that (his/her) act was morally or legally wrong.
None of the following qualify as a mental disease or defect for purposes of an insanity defense: personality disorder, adjustment disorder, seizure disorder, or an abnormality of personality or character made apparent only by a series of criminal or antisocial acts.
2-3400 CALCRIM 3450.
The Winter Soldier had his mind erased each time he was deployed. James Barnes was not in control of his own actions, because he was suffering from medical experiments (what looked like high electric shock therapy) and mental conditioning. Barnes was literally a blank slate. It was not until Captain America was able to connect with Bucky’s long buried memories that he started exercising free will. As such, Bucky was incapable of knowing his actions were acts of treason.
Senator Stern on the other hand would get a firing squad after being expelled from the Senate.
There is a Reason Spy Agencies Do Not Do Law Enforcement
SHIELD is part military operation and part spy agency. Those two should never go together and neither does well conducting law enforcement. This was very clear from the warrantless wiretapping of Steve Rogers to Secretary Pierce declaring war on Captain America for “lying” to him.
The 4th Amendment requires a warrant based on probable cause for electronic monitoring of their home. Moreover, what is at best an HR violation is not grounds to mobilize an army to kill one person.
Who Cleans Up the Potomac?
Washington, DC was an environmental mess after three helicarriers crashed landed in the Potomac. Ideally, the ships ran on Stark Arc Reactors instead of nuclear power. Nevertheless, there would be massive amounts of jet fuel, explosives, chemicals and the broken hulls of three aircraft carriers that briefly flew. Who cleans it up?
FEMA and the US military (and specifically Navy Explosive Ordinance Disposal teams) would have to kick into high gear to clean up the hazards. Since the equipment was government owned, the Feds would have to face the clean up bill. Moreover, the damage was so massive only the Federal government would have the resources to handle the clean-up.
Jessica Mederson and Josh Gilliland discuss Agent of SHIELD episodes TRACKS, TAHITI, how awesome Lady Sif is, the Constitution, following the 4th Amendment, Marvel Civil War, Nick Fury, Ex-Agent of SHIELD and a whole bunch of other geek issues.
The Agents of SHIELD episode “The Beginning of the End” was a fantastic joyride for comic book fans. The set-up for Captain America 2 and the battle for the soul of SHIELD were geektastic. The only thing the story was lacking was telling Thomas Nash “you’re under arrest” and giving him his Miranda Rights.
Ward killing the paralyzed Nash armed with a tube in his mouth is also extremely problematic.
Let’s break down the legal issues:
Was the Clairvoyant Lawfully Arrested?
Thomas Nash apparently communicated through his computer “I surrender” to Agents Coulson and Garrett after they entered his room with weapons drawn after exchanging fire with Deathlok (whether or no it was Nash operating the computer was not determined). No member of SHIELD actually told Nash “you are under arrest.”
Someone is under arrest when they are kept in custody by legal authority in response to a criminal charge. See, Black’s Law Dictionary, 9th Edition.
We have a little rule called Miranda that states:
Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.
Miranda v. Ariz., 384 U.S. 436, 471-472 (U.S. 1966).
As such, when some is “arrested,” they must be given their Miranda Rights.
Had Nash been arrested? Were the Agents required to give Nash his Miranda Rights?
There is an argument that the Agents finding the paralyzed Nash in the bed were only conducting an interview of the suspect. For example, a Court held that a bomb maker interviewed in a hospital bed after an explosion was not in custody, because the officers did not keep the suspect in the hospital. Things could have been different if the police had transported the suspect, stationed guards, monitored his health or showed restraint amounting to custody. Gonzalez v. Sisto, 2010 U.S. Dist. LEXIS 48812, 28-29 (C.D. Cal. Jan. 13, 2010) citing United States v. Martin, 781 F.2d 671, 672-73 (9th Cir. 1985).
Nash was in a very similar position, in that he was confined to a hospital bed, unable to speak without a computer. The SHIELD Agents did not put him in his near vegetative state, but were questioning a possible suspect.
However, there were at least half a dozen armed SHIELD Agents around Nash with weapons drawn. Moreover, he surrendered. These are facts supporting he was under SHIELD custody and lawfully arrested. As such, Miranda Rights should have been given.
There is a “Public Safety” Exception to Miranda where “overriding considerations of public safety” could justify a failure to provide Miranda warnings before initiating custodial interrogation. New York v. Quarles, 467 U.S. 649, at 651 (1984). Moreover, law enforcement could question someone under arrested without giving Miranda Rights when the “officers have a reasonable belief based on articulable facts that they are in danger.” United States v. Talley, 275 F.3d 560, 563 (6th Cir. 2001). These situations have included looking for explosives and guns left out. See, United States v. Williams, 483 F.3d 425, 428 (6th Cir. 2007) and United States v. Hodge, 2013 U.S. App. LEXIS 7848, at *14 (6th Cir. Mich. 2013).
Deathlok running free with the ability to launch small missiles, enhanced strength, and bullet proof, would give the Agents a reasonable belief that they were in danger. This would justify the questioning of Nash without giving his Miranda Rights.
Ward Committed Murder (Again)
Thomas Nash was either being interviewed or under arrested when Agent Ward shot him. There is no way around the fact Ward committed murder, arguably worse than his visit to the Guest House. At least those guys could defend themselves.
The execution of a Canadian citizen in the United States by US law enforcement would be controlled by US law. SHIELD operates within the US Government (don’t forget Agents Hand and Blake being picked up on the USS John C Stennis, CVN 74 at the beginning of the episode. Nimitz class carriers are not coffee shops for hanging out). As such, Ward SHOULD be both subject to a 1983 action by Nash’s family and charged for murder.
Captain America The First Avenger features Hydra under the leadership of the Red Skull as the principal World War II villains. Hydra begins as Nazi Germany’s advanced weapons division/cult, which then commits mutiny and declares war on the world.
What is Hydra’s Legal Status? Is it a nation-state? A terrorist organization? Is Germany responsible for any post-war activities of Hydra?
There is no question that [fictional] World War II Era Germany was responsible for all actions done under the direction of Hitler and the 3rd Reich. The Nazis built the first bases, funded the research and provided the troops to support Hydra’s operations. All of these actions could be the subject of a war crimes trial.
Things become legally cloudy after the Red Skull murdered the visiting 3rd Reich officers. Hydra made a total break with the Reich, including plans to destroy Berlin, and their own creepy “Hail Hydra” salute.
There is a strong argument that Hydra post-mutiny would be a terrorist organization, because it was no longer sponsored by a nation (in this case, Germany).
Applying the current law to the World War II Era, the Secretary of State could designate Hydra as a terrorist organization because:
1) Hydra is a foreign organization (formerly German);
2) Hydra engaged in terrorist activity 22 U.S.C. 2656f(d)(2)) in that it conducted premeditated, politically motivated violence perpetrated against noncombatant targets (though not completed thanks to Captain America);
3) Hydra’s activities threatened the security of the United States.
8 USCS § 1189(a)(1)(A) to(C).
Hydra’s actions included building advanced weapons in secret bases across war torn European countries with the intent to destroy the world, starting with the United States. Hydra’s flying wing bomber mother ship was launched with the purpose of destroying the eastern United States within an hour. These actions would violate US law and would constitute terrorist activity to “affect the conduct of a government by mass destruction” 22 U.S.C. 2331(A)(1).
Germany and the United States had mutual declarations of war against each other. Hydra no doubt would have been included under the US declaration of war as a German military unit. However, after Hydra went rogue from Germany, Hydra legally was a terrorist organization, because it was no longer sponsored by Germany and enacted their own political agenda.
Hydra’s post mutiny actions would subject it to legally be treated under anti-terrorism laws, especially if they continued terrorist activity after World War II. Germany would be responsible for any war crimes Hydra committed before the mutiny, but unless attacking the United States was part of Germany’s plan, Hydra was no longer part of the German military and a terrorist organization.
Josh Gilliland has an important personal announcement.
The comic series Serenity Leaves on the Wind continues both the story of our favorite Firefly class ship AND lessons in contract law.
The basics of contract formation is offer, acceptance, consideration and performance.
Contracts cannot be for an illegal activity, which would be substantive unconscionability, or formed under duress, which would be procedural unconscionability. See, Falls v. 1CI, Inc., 208 Md. App. 643, 664-665 (Md. Ct. Spec. App. 2012) and Rivera v. Rivera, 149 N.M. 66, 72-73 (N.M. Ct. App. 2010).
So, virtually all of Malcolm Reynolds contractual agreements would be unenforceable in Court. Let’s overlook those issues for purposes of understanding formation or the Parol Evidence Rule on the assumption Murray on Contracts did not make it off Earth.
Jayne’s Got a Gun
The contractual issues of Leaves on the Wind begin with Jayne’s cousin offering to tell Bea, the leader of the New Resistance, Jayne’s location in order for Bea to find Serenity. This agreement does have offer, acceptance and performance, but the negotiations were also at gunpoint.
Bea entered into a contract with Jayne Cobb to find Malcolm Reynolds on behalf of the New Resistance after a short negotiation at the Cobb family “estate.” The time between offer and acceptance was extremely short, consisting only of “We need to find Malcolm Reynolds” and presenting Jayne with a briefcase of money when questioned on why.
A contract is not enforceable if it fails to specify all material terms. Sanderford v. Duplin Land Dev., Inc., 531 Fed. Appx. 358, 362 (4th Cir. N.C. 2013). The negotiations between Bea and Jayne contained the specific performance of finding Malcolm Reynolds as a requirement for payment. These conditions for payment would be specific enough to define material terms.
Jayne accepted the verbal terms of finding Mal and visual offer presentation of money with “Well, what are we waiting for?” Jayne accepted Bea’s offer, even though he accepted with a question, because the manner of acceptance demonstrated an intent to accept Bea’s performance contract. This demonstrates mutual assent between the parties, even if acceptance is implied-in-fact from Jayne’s actions instead of an express contract. Murray on Contracts, section 38, citing Day v. Caton, 119 Mass. 513 (1876).
Jubal Early and a Bounty Hunter’s Performance
Early from the episode Objects in Space is once again a threat to the crew as a bounty hunter acting on behalf of the Alliance to capture the crew of the Serenity.
“Bounty hunters” are known as “runners” under some code sections for “someone who hunts another person in return for the payment of a bounty if they succeed in finding and returning them.” Carson v. Vance, 326 S.C. 543, 546 (S.C. Ct. App. 1997), citing S.C. Code Ann. § 38-53-10 (9) (1989). Bounty hunters are generally employed by bail bondsmen. See, S.C. Code Ann. § 38-53-10(10).
Ironically, Early’s contract with the Alliance might be the only legal one in Leaves on the Wind. However, the contract would require “complete performance” in order for Early to be paid, so no Mal, no duty for the Alliance to pay.