What’s Wrong with Super-Heroes Having Secret Prisons?

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June 2, 2015

Both Arrow and The Flash have the good guys imprisoning super-villains from meta-humans to highly skilled assassins in secret prisons. There are strong arguments these civil rights violations are born out of necessity, because trials for meta-humans can be problematic if jails and the court system cannot contain people who can teleport, control the weather, or shoot energy out of their eyes.

The Flash actually addressed this issue in the penultimate episode of the season. Joe West challenged Barry about moving meta-humans from one black site to another. West further went to the District Attorney for help, only to have her expression best be described as an ulcer exploded while speaking with Detective West about unlawfully imprisoning super-villains.

Here is what is wrong with both Green Arrow and The Flash holding people prisoner in a secret prison: the heroes commit a total denial of due process of law in total violation of the Constitution. This is actually worse for Barry Allen, since he works for the police department.

Let’s explore the different legal challenges for our heroes.

False Imprisonment

Assuming Starling City is in Northern California and Central City is somewhere in Oregon (thus 600 miles apart and coastal cities), we will use both California and Oregon law.

For the Arrow, False Imprisonment is “the unlawful violation of the personal liberty of another.” Cal Pen Code § 236. Furthermore, the law does allow for private citizens to make arrests, however the private citizen must take the arrested person before a magistrate or turn them over to a peace officer without “unnecessary delay.” Cal Pen Code § 847.

The Arrow (and those on Team Arrow) have turned criminals over to the police, but super-villains still end up on Lian Yu without a trial. There is no legal way to justify false imprisonment committed by the Arrow.

The Flash has a similar issue with imprisoning meta-humans at S.T.A.R. Labs. Oregon has very similar laws on citizen’s arrests based on probable cause; however, Barry Allen’s job a forensic examiner for the police makes him a peace officer. ORS § 133.225. Those imprisoned at S.T.A.R. Labs could sue Barry Allen on a 1983 Action for depriving them of their civil rights, including the right to counsel, Miranda warnings, a speedy trial, and all other protections offered by the Constitution.

Kidnapping

Everyone taken to a secret prison has been kidnapped. The Arrow committed kidnapping by taking Slade Wilson by arresting him in Starling City and then transporting him to Lian Yu. See, Cal Pen Code § 207(a).

Barry Allen has committed kidnapping because in the second degree because he intentionally took multiple meta-humans to S.T.A.R Labs with the intent to “interfere substantially with another’s personal liberty, and without consent or legal authority” and secretly confined them where they would not likely be found. ORS § 163.225(1)(b).

Legends of Civil Rights Violations

There is no question that Green Arrow and The Flash are the good guys. However, their knowledge of Constitutional Criminal Procedure has a lot of room for improvement. If only they knew a District Attorney who could give them pointers on the law.

Strict Liability for Fish Oil Dietary Supplements Tainted with Terrigen Crystals?

By

Josh Gilliland

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May 31, 2015

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The Agents of SHIELD season finale left us with the ultimate cliffhanger: No, not what the heck happened to Jemma Simmons, but what is the products liability for the dietary supplement company whose fish oil product was tainted by Terrigen Crystals?

It would not take the Center for Disease Control long to see there was something fishy about people turning stone-like and crumbling into pieces.

First thing first: Dietary supplements are governed by the Dietary Supplement Health and Education Act of 1994, which has less regulation then real medications or food. According to the Dietary Supplemental Health and Education Act of 1994 , the “Federal Government should not take any actions to impose unreasonable regulatory barriers limiting or slowing the flow of safe products and accurate information to consumers.” Paragraph 13 of DIETARY SUPPLEMENT HEALTH AND EDUCATION ACT OF 1994, 1994 Enacted S. 784, 103 Enacted S. 784, 108 Stat. 4325, 4326. Moreover, the Act also states in paragraph 14 that “dietary supplements are safe within a broad range of intake, and safety problems with the supplements are relatively rare.” Id.

If the FDA Secretary declares an imminent hazard to public health from dietary supplements, the Secretary “shall promptly” hold proceedings to affirm or withdraw the declaration. Section 4 of Act.

Given the number of people who will either turn in rubble or mutate into a drooling dog that can teleport, that hearing should go fairly quickly with bipartisan freak-outs over safety.

People who watched family members turn into dust would sue the fish oil manufacturer on a products liability claim. Many states follow the Restatement of Torts, 2nd § 402A on strict products liability. The rule states:

402A. Special Liability of Seller of Product for Physical Harm to User or Consumer

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) The seller is engaged in the business of selling such product, and

(b) It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

California summarizes the rule as follows: “[a] manufacturer is strictly liable in tort when an article he places on the market … proves to have a defect that causes injury to a human being.” Greenman v. Yuba Power Products, Inc., 377 P.2d 897, 900 (Cal. 1963).

In a 1978 New Mexico case, a Plaintiff failed to prove a can of 7-Up with unknown blood vessels in it was “unsuitable for its intended purpose, but they also had to prove that it was unreasonably dangerous.” Tenney v. Seven-Up Co., 1978-NMCA-090, ¶¶ 7-8 [92 N.M. 158, 160, 584 P.2d 205, 207]. It is a safe bet this case would have a different result today with “blood anything” in a can of soda.

Surviving family members suing the fish oil manufacturer could argue very effectively the fish oil was defective, because taking a fish oil pill should not kill or mutate someone. However, the fact dietary supplements have less regulation thanks to effective lobbying in the 1990s, the dietary company could argue against strict liability for the deaths, because strict liability is not absolute liability.

There is a huge problem for plaintiffs in suing a dietary supplement company that manufacturers fish oil pills: the plaintiffs would have to prove that the risk of the Terrigen Crystals was knowable from currently available scientific knowledge. Just what safety testing does a dietary supplement company have to do on fish oil? Would any anomalies be detectible with the tests the dietary supplement company currently conducts? The answers to these questions could sink the plaintiffs’ case.

Here is a wild idea: If SHIELD did not have a rogue aircraft carrier outside the military chain of command, perhaps reporting to the Secretary of Defense would have alerted the FDA to have all fish products used for human consumption tested. The area could have been quarantined from all commercial fishing given the fact a genetic WMD was lost overboard.

Quick! To the Comic Book Store!

By

Josh Gilliland

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May 29, 2015

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What makes comic book stores great? Josh visited with Anna Warren Cebrian, the owner of Illusive Comics & Games in Santa Clara, California, to discuss why comic book stores are special, her favorite super-hero movies, and how she took members of her staff to an advanced screening of Avengers Age of Ultron. Anna also shared her new Kickstarter project, American Bibliodeck, The Wonderful Wizard of Oz Edition.

Regarding Henry: How Could the Flash Legally Get His Dad Out of Prison?

By

Josh Gilliland

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May 22, 2015

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Did Barry Allen save his mother and forever alter the timeline that turned him into The Flash? No, which is a good thing. However, his dad is still left in prison for being wrongfully convicted of killing Norma Allen in The Flash season finale.

How could a good lawyer help The Flash get his father out prison? It’s time to put on a Blue Power Ring, because there is hope of proving Henry Allen’s innocence in court.

States vary on the exact procedure for setting aside a conviction, but one option is to introduce new evidence showing the conviction was wrong. Some states require a new trial after the conviction is set aside.

Ohio law allows a defendant to seek a new trial and set aside a conviction when “When new evidence is discovered material to the defendant, which he could not with reasonable diligence have discovered and produced at the trial.” ORC Ann. 2945.79(F). The defendant must produce “affidavits of the witnesses by whom such evidence is expected to be given,” and the state may produce affidavits to impeach any defense witnesses. Id.

New York permits a Court to vacate a judgment and set aside a sentence if “[n]ew evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant;” NY CLS CPL § 440.10(g). There must be supporting affidavits if the motion to vacate the judgment is based upon the existence of facts. NY CLS CPL § 440.30(a).

How could The Flash get his father out of prison with a similar statute to vacate a conviction based upon new evidence, without causing a paradox to destroy all of reality?

The answer: A Go Pro camera. Or Polaroid Cube. Basically any personal action camera could do the trick.

The issue is having evidence that the Reverse Flash killed Norma Allen. One option for The Flash is to travel back in time before the murder, place an action camera in either the fish tank, or a book shelf, or some other part of the living room that is not visible or easily overlooked. The recording of the high speed blurs slowed down would demonstrate reasonable doubt that Henry Allen killed Norma Allen.

The big challenge is offering the video evidence in court. A Court would be rightfully confused if there was video footage from 2000 on a camera that did not exist in 2000. A District Attorney would rightfully challenge the authenticity of the video. Moreover, it is unlikely The Flash would appear to testify in Court.

One solution to this issue is the fact the police and District Attorney have openly cooperated together with The Flash. Detective Joe West could prepare an affidavit stating the recorded video was given to him by The Flash and that the footage accurately depicts the crime scene from the night Norma Allen was killed. A Judge in Central City, especially if the District Attorney was not contesting the footage, could find the new evidence either would justify a new trial if not outright setting aside Henry Allen’s conviction.

A lawyer from the Blue Lantern Corps could also give Henry Allen hope of proving actual innocence. In New York, new evidence could prove actual innocence if:

(1) The new evidence will probably change the result if a new trial is granted;

(2) It must have been discovered since the trial;

(3) It must be such as could not have been discovered before trial by the exercise of due diligence;

(4) It must be material to the issue;

(5) It must not be cumulative; and

(6) It must not be merely impeaching or contradictory to the former evidence.

See People v Marino, 99 AD3d 726, 730; People v Tankleff, 49 AD3d at 179.

Video evidence of a yellow blur killing Norma Allen would 1) change the result of Henry Allen’s conviction if there is a new trial; 2) the video evidence would be discovered after the trial, since the technology to record it was invented over a decade later and required time travel to use; 3) there was no way the Defense Attorney’s due diligence could have found evidence only available from time travel; 4) the video would be material to the issue of who killed Norma Allen; 5) the evidence is not cumulative; and 6) it is not offered impeach or contradictory to the former evidence, but verifying what Henry and Barry Allen claimed they saw the night Norma Allen was killed by the Reverse Flash.

Didn’t Mr. Hyde Need a Trial Before Being Lobotomized and Made a Veterinarian?

By

Josh Gilliland

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May 20, 2015

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The Agents of SHIELD Season 2 finale contained a happy ending for Calvin “Mr. Hyde” Zabo. After killing his wife who had planned to commit genocide on humanity with Terrigen Crystals as a eugenic weapon, Mr. Hyde had a unique sentence: Memory erased and his own veterinarian clinic to help pets that need love and healing. After all, the world needs professionals who help animals.

Was that legal?

Calvin Zabo had committed multiple counts of murder, illegal human experimentation, and criminal conspiracy in several states. Moreover, the People’s Republic of China would have an interest in prosecuting him for murdering a village in order to “feed” Jiaying their life energies.

Director Coulson unilaterally decided that Zabo would be pardoned for his crimes, but Zabo’s mind would be erased. This decision is problematic, because Zabo had a 7^th Amendment right to a trial for his crimes and a 6^th Amendment right to counsel. Both seemed to have been ignored. Furthermore, conducting a medical experiment without a prisoner’s consent to erase his memory would definitely violate the 8^th Amendment prohibition again cruel and unusual punishment. To be blunt, Court’s just don’t let people get lobotomized.

People who are involuntarily committed have the right to refuse psychosurgery. (See, Cal Wel & Inst Code § 4503, as one state example). This right can only overwritten on a showing of good cause, which includes treating physicians documenting the treatment needed, a review of the patient’s treatment record by two treating physicians who both agree with the recommended treatment, and written consent by the patient or the person’s guardian. Cal Wel & Inst Code § 5326.7.

This process does not appear to have been followed. In theory, Dr. Andrew Garner’s (Agent May’s ex-husband) could have been the treating physician to make the treatment recommendation. No other psychologists are known, but would others have agreed with erasing Calvin’s memories? Skye/Daisy could have provided written consent, but this still would be a grossly invasive procedure to erase someone’s life.

Director Coulson apparently acted as the prosecutor, judge, and jury in determining Zabo’s sentence to a happy life with no memory of crimes. Director Coulson effectively pardoned Zabo for his crimes and then expunged his criminal record. There is just no way Coulson’s actions were legal, but Zabo did help save humanity. That would be worth a limited pardon from a President and multiple governors. Plus the world needs good veterinarians. Just think of all the puppies Cal can help, opposed to being in prison or a mental hospital for the rest of his life.

Blizzard Bans Bots: 100,000 Accounts Suspended for Violating Terms of Use in WoW

By

Roger Quiles

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May 18, 2015

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Blizzard Entertainment, creator of World of Warcraft (“WoW”), banned over 100,000 accounts for violations of the game’s Terms of Use. These accounts were engaged in “botting,” which is the practice of using third party programs to automate gameplay. Although botting had always been present in WoW, and similar such games, it had become a substantial issue of late. Bots were reportedly being used for repetitive, mundane tasks and also to farm player vs. player “honor points” in order to purchase better equipment. The botting problem was so prevalent in farming “honor points” that player vs. player arenas were reportedly filled with these bots, making the game very frustrating for actual players attempting to gain “honor points” legitimately. Fortunately, Blizzard has confronted botting before, and has established protective measures in its Terms of Use agreement.

WoW’s Terms of Use specifically states “You agree that you will not, under any circumstances: (A) use cheats, automation software (bots), hacks, mods or any other unauthorized third-party software designed to modify the World of Warcraft experience.” Additionally, Blizzard expressly reserved the right to ban accounts for any reason. However, the Terms of Use states that “most account suspensions, terminations and/or deletions are the result of violations of the Terms of Use.” Such clear language in the Terms of Use easily grants Blizzard the authority to take action as necessary when players are found to be botting. Although it is safe to assume that most gamers do not read the Terms of Use for the games they play, it is well known within the WoW community, and gaming community at large, that the use of bots could result in an account ban.

Blizzard has long opposed botting, and has even taken legal action against companies that make botting software used in its games. In 2006, MDY Industries LLC, the creator of a WoW botting software, sought a declaratory judgment against Blizzard that it did not infringe on Blizzard’s copyrights (2008 U.S. Dist. Lexis 53988). However, Blizzard asserted counterclaims under the Digital Millenium Copyright Act and tortious interference with contract. Although Blizzard’s counterclaims were successful at the district court level, the Ninth Circuit reversed. Ultimately, after five years of litigation, the case was settled in favor of Blizzard.

Blizzard recently attempted to sue the creator of Honorbuddy, a popular third party botting software, in Germany. However, Blizzard was unsuccessful in this case, and withdrew its application for an injunction earlier this month. Honorbuddy had prided itself on being undetectable by Blizzard. However, it is thought that the very recent failure in Court against Honorbuddy was the motivation behind finding a method of detecting the botting software, and the subsequent, massive ban of many Honorbuddy users. With the ban of a substantial number of its users and narrowly escaping litigation, the creator of Honorbuddy has effectively shut down the application for the time being.

Apparently, Blizzard’s mighty ban hammer may be enough to stem the tide of botting villainy. Although 100,000 accounts is a substantial number to ban by any means, WoW maintains a subscriber base of 7.1 million people. Banned accounts will be able to access the WoW servers in six months, so the countless hours that players have put in to creating their characters will not all be for naught. Hopefully these players have learned that violations of WoW’s Terms of Use will result in punishment, and not seek to gain a competitive advantage through any illicit means.

Roger Quiles is an attorney from New York City with a practice focusing in business, entertainment, and eSports law. A die-hard gamer since Super Mario Bros., Roger now represents professional gamers, tournament producers, and the businesses that serve them. Up, up, down, down, left, right, left right, B, A, Start.

The Black Widow Should Sue!

By

Jessica_alegalgeek

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May 13, 2015

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Can the Black Widow sue Disney for creating a hostile work environment? And no – I’m not asking because of the movie itself (or the offensive remarks made her co-stars), but the apparently deliberate decision to exclude the Black Widow from the merchandising.

It’s an issue that’s all over Twitter right now (check out #wheresnatasha and #wheresblackwidow): Black Widow is conspicuously missing from the Avengers toys, tee shirts, and other goodies. If you search for Avengers on Target.com, for example, you wouldn’t even know that Black Widow was in the movie (which has caused me to rethink my devotion to all things Target). The Hulk himself even spoke up about this problem on Twitter:

And she isn’t being excluded because she’s not one of the leads. Both the plot and the promotions show that she is on equal footing with the guys (although, as we learned in the Sony hack, her salary may be lower because of her sex). So any argument that the Black Widow isn’t central to the plot of the Avengers movies is both incorrect and just plain offensive. And yet, somehow, she’s excluded from the toy team. And what’s the only difference? She’s not a guy.

And now we learn that it’s not just exclusion but actual outright replacement. The powers that be at Disney and the toy makers have decided to replace Black Widow on her own helicopter with two of the male characters instead. This goes beyond offensive to outrageous. To actually have your history wiped out and replaced is something that has happened to women for centuries but I thought wouldn’t happen in 2015.

But this is why we have labor laws: to prevent these kinds of problems in the real world, because as the outrage on Twitter shows, exclusion hurts. So women (and other protected classes) can bring hostile work environment claims if they haven been excluded, ostracized, or isolated based on their sex (or other protected status, such as race or age). See, e.g., Waldo v. Consumers Energy Co., 726 F.3d 802, 818 (6th Cir. 2013) (recognizing that ignoring and ostracizing a coworker, if based on “gender-based animus,” can give rise to a hostile work environment claim).

Why is it happening right now? The conventional wisdom is that Disney doesn’t think they need to sell to girls because girls buy their princess stuff. And, presumably, because they think girls aren’t into “geek” culture. That second point is demonstrably wrong. And the first point is short-sighted. My daughter, for example, loved Disney princesses when she was younger but lost complete interest in them by the age of five. Now, at eight, she loves the Black Widow and was so happy to see the Scarlet Witch (spoiler!) join the Avengers. She even said, right in the middle of the movie, “now there are two Avengers like me!” As soon as the movie was over she asked for Black Widow and Scarlet Witch action figures to fight with and would gladly wear a tee shirt with either woman on it. My eleven year old son, on the other hand, enjoyed the movie but had no interest in getting any Avengers-branded merchandise.

So Disney’s sexism is not only hurting women of all ages (especially little girls like my daughter), but they’re also losing out on potential customers. The lack of women in action roles on screen, and in toys offscreen, is something I’ve noticed for many years now. Unfortunately, my daughter has now noticed it as well. Fortunately, others have seen this problem too and are speaking up. Hopefully, Disney and Marvel will catch on soon and stop with this (mindless? blatent?) sexism. Otherwise, I’d love to give the Black Widow her day in court against her employer!