Daredevil Into the Ring (and Confession)

By

-

April 10, 2015

Daredevil is here on Netflix, and man, do we have great legal issues just in the first episode.

As a preliminary matter, that toxic waste company should have given the Murdock family one heck of a check for blinding Matt Murdock. Granted, there would be significant issues for a trial on who was at fault in an accident, which would determine which driver’s insurance company would pay the different victims, but it is hard to escape liability for toxic chemicals, especially if the truck driver was at fault.

Forgive Me Father I am GOING to Sin

Matt Murdock asked a Priest for forgiveness for a sin he was going to commit. This clearly demonstrated Charlie Cox’s emotional acting skills and raised an issue: could the Priest go to the police if he believed Murdock was going to commit a crime?

New York defines the Clergy Privilege as follows:

Unless the person confessing or confiding waives the privilege, a clergyman, or other minister of any religion or duly accredited Christian Science practitioner, shall not be allowed disclose a confession or confidence made to him in his professional character as spiritual advisor.

NY CLS CPLR § 4505.

In order for a communication to be protected by the clergy privilege, the communication must: 1) it must be confidential; 2) it must be made to a minister or clergy member acting in a professional character as a spiritual advisor; 3) it must be made for the purpose of seeking spiritual advice or religious counsel; and 4) it must not be waived by the person making the confidential statement. People v. Harris (Sup.Ct.) 934 N.Y.S.2d 639, 645.

Murdock’s “confession” seems to meet all four elements.

First things first: Confession usually is about seeking forgiveness for PAST sins. Alternatively, many seek spiritual guidance on difficult choices they have to make. Matt Murdock’s visit to confession falls into both categories, because he effectively was seeking advice for actions he was going to take as a vigilante. As such, the Priest could not disclose communications made to him from someone seeking spiritual advice.

If Matt Murdock went and sought forgiveness for beating up four men who were kidnapping women to be sold into slavery overseas, the Priest should give the lawyer a high five in the confessional booth. While Romans 12:19 in he Bible states, “Vengeance is mine, I will repay,” there is the brutal reality that the law allows for the defense of others. Saving people from slavery should not involve any feelings of guilt.

Saving Others from Slavery

Daredevil saved four women from being sold overseas into slavery for $1,000 a head. This rescue involved seeking out those in danger and engaging four men in brutal hand-to-hand combat. Was this legal in New York?

New York allows for the defense of others:

A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:

(a) The latter’s conduct was provoked by the actor 1 with intent to cause physical injury to another person; or

(b) The actor was the initial aggressor; except that in such case 1 the use of physical force is nevertheless justifiable if 2 the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or

(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.

NY CLS Penal § 35.15.

A District Attorney might argue that Daredevil was the initial aggressor in the fight. This argument would fail. The female victims were clearly kidnapped, physically harmed, and about to be locked in a shipping dark shipping container with a bucket for a bathroom. Daredevil entered the scene well after the first “aggression” had taken place. As such, a person could reasonably believe that the mobsters were using unlawful physical force on the women by kidnapping them. Daredevil’s actions were thus legally justified.

Just the Beginning

Those were the legal issues in just the opening minutes of the show. There are many other significant legal issues, from bribing police officers with cigars, being retained as counsel by a criminal defendant, the state holding someone without pressing charges, Whistle Blower Protections, the duty of loyalty to a client, extortion, fraud, money laundering, drugs, conspiracy, and likely a growing list of high crimes.

There are also many issues with setting up a law practice, from what kind of entity to form, advantages of a Partnership vs Limited Liability Partnership, rental agreements, insurance requirements for employees, HR compliance for employees, malpractice insurance, legal research accounts, a matter management tool, and a discovery management application. However, law office management is not really that exciting on a super-hero TV show.

The first episode of Daredevil opened with a bang. Great job and looking forward to binge watch the rest.

Which SHIELD is the Real SHIELD?

By

Josh Gilliland

-

April 8, 2015

0

Answer: Neither.

The reason neither SHIELD is legal is simple: Neither Director Coulson nor Commander Gonzales are operating under authority of the United States Government. No one is working with the Attorney General for law enforcement operations in the United States or the Secretary of Defense for the USS Iliad, possibly the last helicarrier at sea. Certainly no one is following the President’s orders. In short, Commander Robert Gonzales’ SHIELD operates like a military junta outside of the US chain of command.

The Day SHIELD Fell

The US military, under the command of Air Force General Talbot led an assault on the SHIELD Hub after the events of Captain America The Winter Soldier. As seen in the last episodes of season one of Agents of SHIELD, SHIELD was ordered to surrender. Multiple non-fatal confrontations have taken place between Coulson’s SHIELD Agents and the Talbot’s troops. A détente has been reached between Coulson’s SHIELD and Talbot, giving Coulson the air of legitimacy as quasi-government contractors conducting military activities.

The same cannot be said of Robert Gonzales. It is tempting to compare the Iliad to the Battlestar Galactica, but that comparison would be in error. Admiral Adama had President Laura Roslin and ultimately a new Quorum of Twelve. The stands in total contrast to the surviving SHIELD Agents onboard the Iliad, who apparently are not in communication with the United States Government. The Iliad seems to have more in common with the CSS Shenandoah, the last Confederate warship that unknowingly continued raiding Union shipping for months, unaware the Civil War was over. All of those Confederate sailors should have been hung for piracy. [Last Flag Down by John Baldwin and Ron Powers is a great telling of the CSS Shenandoah’s story].

Commander Gonzales and his SHIELD Agents recaptured the Iliad after HYDRA came out of the shadows and into the light. However, the fact Gonzales told Agent May that he had been “out voted” is evidence that Gonzales is not taking orders from the President, Secretary of Defense, Attorney General, or anyone in the military chain of command. This means a nuclear powered flying aircraft carrier with WMD is cruising the Seven Seas on their own orders.

This would not be acceptable after the events of Captain America The Winter Soldier. If a helicarrier were “lost” and not responding to orders, the Navy would have orders to sink the Iliad. There is too much risk in having a rogue flying ship that can level cities at sea that is outside of the military chain of command.

The “Real” SHIELD Would Follow the Constitution

The fact Gonzales’ SHIELD Agents captured Coulson’s SHIELD base without any other Federal law enforcement agencies, that no one was arrested was given Miranda Rights, and the total subversion of the Writ of Habeas Corpus, is further evidence that Gonzales’ SHIELD is not the “real SHIELD.”

There is another issue with the SHIELD Junta onboard the Iliad: they are violating the Posse Commitatus Act, 18 USCS § 1385. The Army and Air Force is expressly prohibited from conducting law enforcement. The Navy and Marine Corps are bound by the Posse Comitatus Act, pursuant to Department of Defense regulations promulgated under 10 USCS § 375, DOD Directive 5525.5(c), SECNAVINST 5820.7B. However, the Navy can provide passive participation to the Coast Guard in conducting drug boardings, arrests, interrogations and ensuing investigations. United States v Mendoza-Cecelia (1992, CA11 Fla) 963 F2d 1467, cert den (1992) 506 US 964.

SHIELD is a strange comic book agency where law enforcement is merged with espionage and military operations. These functions are separate in the real world. Commander Gonzales could argue his assault on Coulson’s SHIELD was a military operation on US soil, however this argument would fail. Claiming law enforcement activities are military operations to get around the Posse Commitatus Act would not fly, because that violates the entire purpose of prohibiting the military from conducting law enforcement.

There is no doubt that the attack and capture of Coulson’s SHIELD was done without warrants, reading Miranda Rights to those arrested, and ignored the Writ of Habeas Corpus. All of these events demonstrate the “real SHIELD” is not operating legally. Gonzales’ SHIELD agents are mutineers at best for not following orders after SHIELD fell and pirates at worse for illegally abducting Hunter and May to the Iliad.

[Noted: Corrected on April 15]

Big Wow ComicFest Panel on Agents of SHIELD AND Agent Carter!

By

Josh Gilliland

-

April 7, 2015

0

I am extremely excited to be speaking at Big Wow Comic Fest on April 18, 2015, at 3pm, room 231B.

I have attended Big Wow the last two years and am thrilled to have a panel this year. I am also looking forward to seeing Jim Steranko, other guests, exhibitors, and cosplayers at the show.

I will be speaking on the legal issues from Agents of SHIELD, Agent Carter, and Captain America The Winter Soldier. Here is the complete description:

Lawyers of SHIELD: The Level 7 Hornbook to Criminal & Constitutional Law

Agents of SHIELD and Captain America The Winter Soldier were Constitutional joyrides. Joshua Gilliland, one of the two attorney bloggers from The Legal Geeks, will break down the legal issues from both seasons of Agents of SHIELD, Agent Carter and Captain America The Winter Soldier.

The presentation will address what is known about the legal structure of SHIELD, the lawfulness of resurrecting Agent Coulson, whether SHIELD violated the 4^th Amendment with their computer searches, the legality of the SSR operating in the United States after World War 2, and whether the Winter Soldier could be convicted of treason. The material will also discuss how drones can be used in law enforcement and due process issues from Agents of SHIELD.

The session will cover the numerous legal issues from Agent Carter and season two of Agents of SHIELD. If you are going to Big Wow, I hope you can join me on April 18th at 3pm. Tickets can be purchased online at Big Wow Comic Fest.

Can Matt Murdock be Disbarred for Vigilantism?

By

Josh Gilliland

-

April 3, 2015

0

Daredevil the Series is nearly here. Finally: a lawyer who is a super-hero. Many geeks, and geeky lawyers, will be binge-watching Netflix starting on April 10, 2015.

Heck, Jessica and I would love to be extras if the producers need opposing counsel at a depo or a hearing in season 2.

The big question: Can Matt Murdock be disbarred for being a vigilante? Yes, one can argue it is very creative pro bono work. Moreover, who are others to judge how Matt Murdock does his community service?

Well, for one, the state of New York. Matt Murdock is a [fictional] licensed attorney in New York, so the state bar has specific rules of professional conduct.

An attorney can be suspended from the practice of law, censured, or removed from office, if the attorney is “guilty of professional misconduct, malpractice, fraud, deceit, crime or misdemeanor, or any conduct prejudicial to the administration of justice.” NY CLS Jud § 90(2).

A lawyer who is convicted of a felony will cease to be an attorney or competent to practice law in New York. NY CLS Jud § 90(4)(a) and (4)(e).

If Daredevil were arrested, unmasked, and ultimately convicted for assaulting criminals, would that be a felony that would disbar Matt Murdock?

That answer is YES. Assault in the second degree is a class D felony in New York. Matt Murdock would be guilty if he 1) intentionally causes serious physical injury to another person or third person; or 2) intentionally causes injury to a person or third person by means of a deadly weapon or dangerous instrument. NY CLS Penal § 120.05(1) and (2).

Seeking out Kingpin’s thugs to engage in combat would definitely be assault.

Why would a Court disbar Matt Murdock for conducting what he thinks is his civic duty? Because lawyers are supposed to uphold the law, not break it. As New York Judge Vito Titone stated in a case with an prosecutor who abused his power:

A person charged with or suspected of the most heinous of crimes is still entitled to the fundamental fairness encompassed by the notion of due process. “Vigilante Justice” is abhorrent to our concept of jurisprudence whether the end product be a body dangling from a rope, or a person charged with a crime as a result of lawless conduct on the part of an overzealous prosecutor. The latter indeed is reprehensible since both society and the accused are victimized by one sworn to uphold the law.

People v. Rao (App.Div. 1980) 73 A.D.2d 88, 100 citing People v Isaacson, 44 NY2d 511, p 524.

Lawyers are not supposed to take the law in their own hands. Granted, this would make a TV show (or comic) about a blind ninja lawyer with super radar senses extremely boring. Moreover, Matt Murdock has no fear of the rules of professional conduct, because he is after all Daredevil.

So Daredevil, we look forward to you doing justice on Netflix.

Does Lance Hunter Have a Valid Employment Contract with Director Coulson?

By

Josh Gilliland

-

April 1, 2015

0

Cocktail napkin on wood — Paper bar towel coaster

Agent Lance Hunter signed a cocktail napkin and gave it to Director Phil Coulson as acceptance of Coulson’s offer to join SHIELD. Does Hunter have a valid employment contract with Director Coulson’s SHIELD?

YES, with some creative lawyering.

Silicon Valley has been the home of deals written on cocktail napkins for decades. In fact, the earliest California case where parties first put a deal on a napkin, which was a signed contract by the next morning, was in 1953 for purchasing 800 head of cattle. H. Moffat Co. v. Rosasco (1953) 119 Cal.App.2d 432, 436 [260 P.2d 126].

In Hunter’s case, Director Coulson made a verbal offer for Hunter to join SHIELD. Hunter was abducted by Mack and Mockingbird and taken to the SHIELD Helicarrier Elliott before he could accept Coulson’s offer. After escaping and finding Director Coulson, Hunter simply signed the cocktail napkin and stated he was accepting the job offer.

There are several significant problems with Hunter having a valid employment contract. First, the cocktail napkin only has his signature. It does not contain the scope of employment, job duties, pay, vacation time, medical coverage, date of signature, or anything required terms for there to be a valid contract.

These defects are fatal to any contact. However, if Hunter had been given a written contract prior to his abduction that contained the required terms, a valid contract might be possible if the napkin is considered a separate signature page to a written contract. This would require the napkin being attached to a written employment agreement once Coulson can recapture his office or print a new contract.

Another option is to view Hunter’s signature as a manifestation of his intent to accept Coulson’s offer. The terms of the contract would need to be fully defined over drinks with umbrellas and codified in a final written agreement.

Any oral terms discussed between Coulson and Hunter not included in a final written agreement could be excluded under the Parole Evidence Rule, which states that any prior oral agreements cannot contradict a final written agreement. Cal Code Civ Proc § 1856(a).

There is a very strong argument that Hunter has an implied in fact contract. Such a contract is one where the existence and terms are manifested by conduct. Cal Civ Code § 1621.

Hunter’s conduct has demonstrated he is working for SHIELD since being abducted to the Elliott, demonstrating he accepted Director Coulson’s offer. Hunter’s conduct demonstrating an agreement to work for SHIELD include:

1) Hunter resisted the interrogation by Commander Robert Gonzales and the “Hufflepuff” leaders;

2) Hunter fought to escape Elliott;

3) Hunter found Director Coulson after getting to shore; and

4) Hunter immediately signed a cocktail napkin for Coulson after ordering a drink.

All of these actions demonstrate Hunter accepted Coulson’s original offer.

There is also the reality that Director Coulson’s SHIELD is an illegal operation, thus the contract would be void. However, assuming there are Presidential Pardons or Congressional Amnesty Acts in the near future, Hunter can consider himself employed by Director Coulson’s SHIELD. That, or they just formed a terrorist conspiracy.

Bases Loaded: Baseball Patents and Player Contracts in the 19th Century

By

Josh Gilliland

-

March 31, 2015

0

Baseball. There is something magical about watching a game. The crack of a bat hitting a ball; the tactics for the defense; and the fact the game is both a team and individual sport simultaneously. Hard not to love it.

I have great childhood memories of playing catch with my grandfather as a boy. I still have the glove from those evenings we would throw the ball around after he got home from work.

My grandfather played baseball in his youth in Iowa. Even in his 90s, he still has a good arm to the delight of dogs that play fetch. Back in 2005 he demonstrated he was still the “natural” at a Giants and Rockies game where he caught a foul ball launched into the upper deck bare handed. A hush fell over AT&T Park for all of those who witnessed the 84 year old’s “play” on the Jumbotron.

They even sent a camera crew up to get footage of him holding the baseball.

I also love the law. I was curious about what the cases from the 19^th Century involving America’s favorite pastime. There are many contract and a few patent cases.

Patenting the Double Herring-Bone Stitch

The first up to bat is a case from 1884 over an action for a failed injunction over the reissue of a patent for the leather covers of baseballs in Mahn v. Harwood.

We need baseballs in order to play baseball. On May 21, 1872, John Osgood was issued a patent relating to “base-balls and other similar articles.” Mahn v. Harwood (1884) 112 U.S. 354, 355. Osgood assigned his rights to Louis H. Mahn, who was reissued the patent on April 11, 1876. Id.

Problem: the patents descriptions and drawings were identical. The only reason Mahn sought a reissue of the patent was to enlarge the claims of invention. Mahn, at * 357.

The Court stated that it was contrary to law to reissue of a patent for the purpose of enlarging claims, especially after a four-year gap, and not even by the inventor. Mahn, at * 360-361. As such, the Court held the reissue of the patent was void, and dismissed the claims against the alleged infringer. Mahn, at * 363-364.

What is very interesting is the original patent describing the process how a baseball is made:

1. A ball exterior, composed of two crimped hemispherical covers, A and B, having their respective seams x and y break joints, substantially as set forth.

2. In combination with a ball whose exterior is composed of two hemispherical covers A and B, with their respective seams x and y breaking joints, I claim the double herring-bone stitch formed of two threads, in the manner herein set forth.

Mahn, at * 365.

Pitching a Preliminary Injunction on Negative Rights

Next up, a baseball club that tried to get an injunction against a baseball player from playing ball for the entire season of 1890 with any club but the plaintiff.

The New York Base-Ball Club and John M. Ward had a contract for Ward to play baseball for the 1889 season. The contract included a provision to “reserve” Ward for the 1890 season. Metropolitan Exhibition Co. v. Ward (Sup.Ct. 1890) 9 N.Y.S. 779, 779. The case turned on the definition of the word “reserve.”

The relevant contract provision stated:

It is further understood and agreed that the said party of the first part shall have the right ‘to reserve’ said party of the second part for the next season ensuing, the term mentioned in paragraph 2 herein provided; and said right and privilege is hereby accorded the said party of the first part, upon the following conditions, which are to be taken and construed as conditions precedent to the exercise of such extraordinary right or privilege, namely: First. That the said party of the second part shall not be reserved at a salary less than that mentioned in the 20th paragraph herein, except by consent of the party of the second part. Second. That the said party of the second part, if he be reserved by the said party of the first part for the next ensuing season, shall be one of not more than fourteen players then under contract.”

Metropolitan Exhibition Co., at *781-782.

The Court did NOT enjoin the Defendant from playing baseball in 1890. The contract only had a reserve clause; this did not include required contractual terms such as payment. The Court explained the issue of seeking an injunction for undefined contractual rights:

As before said, this is a suit in equity wherein the court has no power to enforce the affirmative covenant claimed to exist, which would compel the defendant to play ball with plaintiff; but the court is asked, in effect, to decree the specific performance of a negative covenant, claimed to have been made by the defendant that he should not play ball with others.

Metropolitan Exhibition Co., at *781.

The Court denied the Plaintiff’s preliminary injunction, because it effectively would have been a final verdict for the Plaintiffs. The Court instead ordered a trial to determine the rights between the parties before the start of baseball season.

Who’s On First?

The final case up to bat is from 1885 and concerned the 1883 baseball season. A player sued his employer for breach of contract and recovered damages of $431.12. Oberbeck v. Sportsman’s Park & Club Asso. (1885) 17 Mo.App. 310, 311. The Defendant appealed.

The parties contracted for the Plaintiff’s services to play baseball in 1883 for $785 to be paid semi-monthly. The Defendant effectively fired the Plaintiff in June of that baseball season by prohibiting him from playing. The breach of contract suit followed. Oberbeck, at *311-312.

The original contract between the parties contained terms of payment and performance. The Defendants claimed that the first contracted needed to be approved by American Association of Base Ball Clubs, which never approved the contract. The Defendants produced a second contract that contained a clause the Defendant could terminate the Plaintiff at anytime. The Plaintiff claimed he nevered signed the second contract. Oberbeck, at *312.

The jury found for the Plaintiff. The Defendant’s appeal was rejected and the judgment affirmed. The evidence was on the side of the Plaintiff and the appellate held he was “safe” on appeal.

Take Me Out to the Ballgame

Baseball is a field of dreams. It is a game of strategy, supreme concentration, and some interesting off the field lawsuits. There is adventure in going to the games or watching it from the comfort from home. In the end, I just really loved playing catch with my grandfather.

General Talbot Should Not Grab a Major’s Face

By

Josh Gilliland

-

March 28, 2015

0

Pretty sure General Talbot on Agents of SHIELD will be subject to an internal affairs investigation due to 1) rounding up all the female officers and enlisted service members and 2) unwanted facial touching of a servicewoman. Let’s discuss the legal issues from “Love in the Time of HYDRA.”

The General likely would be cleared of charges, but his wife being angry for not being diverted away from a dangerous situation, followed by the General pulling a gun on her and told to lie on the floor with lunch, would seem mild compared to what the Air Force would do to him.

The face-changing Agent 33 had invaded General Talbot’s base. Talbot recognized his base had been compromised after waiving Agent 33 impersonating his wife passed security (a violation of National Security Protocol) and then being called by his wife on the phone.

Note to all spouses: If your life partner makes you realize a face-changing spy has invaded your office, warn them to stay away. No one should die on Taco Tuesday.

Talbot’s solution to a female spy being on base was to sequester all of the women in order to find the spy. After interrogating each woman in public, Talbot grabbed the cheek of a Major, thinking that Air Force officer was the spy.

Bad, bad, bad, idea.

The spy actually had killed a male soldier her height and taken his uniform. There was no reason to round up only women, when the search should have focused on height and weight of people: Agent 33 could change her face; she was not a shape-shifter would could increase or decrease her mass.

Could the Air Force Major prevail in a hostile work environment claims against General Talbot? She would have to prove the following:

(1) That she belongs to the protected group;

(2) That she was subject to unwelcome sexual harassment;

(3) That the harassment complained of was based on sex; and

(4) That the harassment complained of affected a term, condition, or privilege of employment in that it was sufficiently severe or pervasive to alter conditions of her employment and create an abusive working environment.

Maddin v. GTE, Inc. (M.D.Fla. 1999) 33 F.Supp.2d 1027, 1031, citing Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1557 (11th Cir.1987).

The Major could prove 1) she is a woman and thus belongs to a protected class based on gender; 2) she was subjected to unwelcome sexual harassment by the cheek grabbing (definitely battery); and 3) the harassment was because she was a woman.

The second element is somewhat problematic: the General definitely violated her person by grabbing her cheek, thinking it was a mask. Trying to unmask a spy is not on its face sexual harassment of a possible suspect, but it is definitely battery.

As one case explained, face touching “is not the type of physical conduct that is so egregious that even one instance would make a reasonable woman experience her workplace as hostile.” EEOC v. Int’l Profit Assocs. (N.D.Ill. 2009) 654 F.Supp.2d 767, 809.

It would appear the hostile work environment claims would fail because one incident of face touching (in order to unmask a spy) would not be egregious conduct to create a hostile work environment given the extreme situation.

This would not mean the General is safe from a Congressional Investigation. The military and Congress take a dim view on assault of service members, so the General better be prepared to explain how he was trying to find a spy that had killed two other military personnel.