Judge Matthew Sciarrino, Gerry O’Brien, and Joshua Gilliland, Esq., “go full geek” over the Agents of SHIELD episode “Who You Really Are?”
We discussed the history of the Kree in Marvel comics, whether Vin-Tak’s appearance is a means to introduce Captain Mar-Vell later, and thoughts on how the Captain America Civil War Registration Act could apply to Inhumans. Plus the super wild idea of whether Simmons could become Madam HYDRA because of her opposition to Inhumans.
Is the Kree Empire financially responsible for the damaged caused by people exposed to the Terrigen Mist? Can those exposed to the Mist sue the Kree for damages?
The Agents of SHIELD episode “Who You Really Are?” set the stage for these questions with the Kree Vin-Tak’s visit to Earth. Let’s summon our Cosmic Awareness to answer can the Kree be sued on Earth?
Jurisdiction in the United States
The Commonwealth of Puerto Rico, a territory of the United States, would be the proper venue to hear any cases pertaining to Terrigen Mist exposure, because the Kree city is located below Puerto Rico. The fact the Kree used that area as a base for their experiments should meet jurisdictional requirements for damages resulting from exposure to the Terrigen Mist. Additionally, wherever an Inhuman or Deviant causes property damage or injuries people would be the proper place to sue the Kree based where that injury occurred.
However, suing an alien empire from another planet is legally untested. While litigation in the United States has been against foreign countries hostile to the United States, those normally end in frozen bank accounts or garnishing payments made to companies doing business with said hostile nation. The Kree not participating in the global economy, let alone any embassies on Earth, would make judgment enforcement extremely difficult.
Can the Kree Empire Even be Sued?
A human attorney retained by the Kree Empire, or a Kree lawyer seeking pro hac vice status in a US Court, would argue that the Foreign Sovereign Immunities Act protects the Kree Empire as a foreign state would be immune from the jurisdiction of the courts of the United States under 28 U.S.C.S. § 1604.
There are exceptions to the Foreign Sovereign Immunities Act which could subject the Kree to jurisdiction in a US Court. The first is the rights in property in the United States acquired by succession under 28 USCS § 1605(4) or when money damages are sought against a foreign state for personal injury or death under 28 USCS § 1605(5).
The United States acquired Puerto Rico from the Spanish Empire after the Spanish-American War in 1898. The Kree had abandoned their outpost several hundred, or thousand, years earlier (which raises a question of whether the Kree have a document retention policy of only 7 years or if 5,000 year old Kree data could be translated into a reasonably useable form for a review application). An argument could be made that the Kree outpost is a toxic danger from how it can turn people into killing mind-controlled puppets; convert human with Inhuman DNA beings into non-humans; and the Terrigen Mist is fatal to humans without Inhuman ancestry.
Toxic tort cases can trace property ownership back for decades in order to determine liability for different insurance policies. In the case of the Kree, this would be a first going back for potentially to the time of the Pyramids, but causation could be traced back the Kree Empire’s experiments ages ago when the environmental damage was done to the soil in Puerto Rico. This would put Terrigen Mist in a similar position to Agent Orange, asbestos in shipyards, or toxic waste litigation, where individuals who suffered harm as an exception to foreign sovereign immunity.
The Foreign Sovereign Immunities Act specifically includes a terrorist act exception to immunity from suit. 28 U.S.C.S. § 1605(a)(7). It will be difficult to charge the Kree Empire with terrorism for abandoning Diviners on Earth, however the fact there has been loss of life from those transformed should be enough to meet the personal injury exception.
Superseding Events Limiting Kree Liability
The Kree have a strong argument that they left their outpost sealed and but for HYDRA locating the Diviners, there is nothing to subject the Kree to liability.
Engaging in ultra hazardous activities carry strict liability. As the Kree were turning humans into living weapons centuries ago, leaving devices that would either kill or transform humans into weapons is like a country denying liability for land mines left after a war.
A lawyer could argue the Kree violated the “Bombing Convention” which makes it a crime to bomb public places with the intent to cause death or serious bodily harm. Almog v. Arab Bank, PLC (E.D.N.Y. 2007) 471 F.Supp.2d 257, 277; 18 USCS § 2332f. However, the Kree lacked the intent to cause such harm after several thousand years, so the issue may turn to negligence, opposed to acts of terrorism.
Those who would be subject to charges of terrorism would be the humans using the Diviners and Terrigen Mist to kill or transform people. The best causes of action against the Kree would include toxic torts, environmental damage, and deaths resulting from negligence for leaving ultra-hazardous materials on Earth.
There is a strong argument that people who willingly enter the Terrigen Mist do so at their own risk and would excuse the Kree Empire from any liability for personal injury. Such individuals need to understand that they are making a “life long” choice that could turn someone who is a fashion model into a giant teleporting dog. Given the fact that the Mist is a real crapshoot that can turn a person into a giant fish, such individuals could not turn around to sue an Empire that purposefully stopped such experiments centuries ago.
The real question is who can effectively serve the Kree Empire? SETI might be able to provide alternative service of process.
(I was sad – surprisingly sad – when I heard today that Sir Terry Pratchett had passed away. It wasn’t completely unexpected. I’d been preparing for this day ever since he announced that he had Alzheimer’s — and he made clear his intention to die with dignity.
Even with that preparation, however, it was sad news to hear. He’s been one of my favorite authors for many years (as seen from this photo of part of my Pratchett collection) and I’ve written about him and his work on this blog before. I still remember the short story he wrote that made me fall in love with him: it was a story about a group of chickens just trying to cross the road…but that road was a busy LA highway (and the story included the greatest throwaway line about Captain Kirk ever!).
So to lose him — an author that not only meant so much to me but was also one of the world’s most poignant, insightful, and wittiest observers — is tough. He took on everything from torture and religion (in Small Gods, the first Discworld novel I read), to removing a monetary system from the gold standard (in Making Money), to Death taking over for Santa Clause (in Hogfather). And, of course, he took on the apocalypse with Neil Gaiman in Good Omens. Along the way, he created witches who were special because they could see things as they actually were (Tiffany Aching), the funniest wizard ever (Rincewind), vampire lawyers, troll guards, and the best suitcase in the entire world (the Luggage). Not to mention turning death itself into a lovable character that we often rooted for (although not in this case). (Plus, he used footnotes — often and well. And footnotes are the way to this legal geek’s heart!)
And he did all of this in a world very similar to ours, except it was flat, carried on the back of four elephants, all of whom rode on the back of a giant turtle swimming through space. In addition to making me laugh and look forward to every page, Sir Terry also exemplified the idea that fantasy and science fiction are often the best tools authors have to hold up a mirror to the world — to show us who we really are.
Thank you, Sir Terry. You will be missed.
I have to say for the record that I always liked going to Radio Shack. However, what if the one line from Agents of SHIELD was true in the Marvel Cinematic Universe: Is every Radio Shack a HYDRA outpost?
This would be a complex issue for the FBI. First off, there are approximately 4,297 Radio Shack stores in the United States, plus another 900 operated by independent owners in the US (according to Wikipedia).
How would law enforcement respond to a store chain with over 5,000 stores possibly being a technology support network for an international terrorist group?
That large number of Radio Shack locations certainly would explain the HYDRA “blimps” we saw on the global map in the first half of Agents of SHIELD.
If the MCU’s version of the FBI were to launch simultaneous raids at every Radio Shack in the United States, they would need to secure search warrants for each store. That is approximately 5,197 warrants (and a lot of busy Assistant US Attorneys and Magistrate Judges across the country). The probable cause would need to be more than Sunil Bakshi saying HYDRA uses Radio Shack, given the number of individuals who would be impacted. While that would be the first step, there would have to be surveillance of each store to build a case.
A national raid would take a significant amount of resources. Assuming each location is raided by only 10 FBI agents, that is over 50,000 Federal Agents who would seize property, files, computers, and smartphones (by way of comparison, the number of American forces at Normandy totaled 73,000). Conducting mirror images of hard drives and phones would be no easy task. The analysis could easily involve Petabytes or Exabytes of data. Predictive coding, visual analytics, and other search technology would need to be leveraged to identify HYDRA operations.
Lord knows how the criminal investigation would impact the Chapter 11 Bankruptcy (assuming the MCU Radio Shack is also in Chapter 11).
This would be an extremely complex law enforcement raid. Let’s hope HYDRA has not taken over Starbucks, because they have over 7,300 company-operated stores and another 4,600+ licensed stores. I am not sure the FBI has enough agents for “Operation Pumpkin Spice.”
Hail Mocha.
We loved Agent Carter and hope it gets a second season. Jess and I sat down to discuss what we enjoyed about Peggy’s adventures, the SSR, Jarvis, Howard Stark, and a few of the big legal issues in the series, namely did Peggy and Angie sign a lease for Howard Stark’s mega-apartment?
We can take judicial notice that Judge Eduardo C. Robreno is a Trekkie.
In a case with RICO charges against six police officers, the Court held that a Federal statute was clear that a person would be criminally charged for “knowingly making an omission with the intent to impede the investigation.” United States v. Norman, 2015 U.S. Dist. LEXIS 21660, at *16 (E.D. Pa. Feb. 23, 2015).
As soon as you can say, “There…are…five…footnotes,” Judge Robreno beamed the following down to the opinion to highlight the point:
As illustrated by Captain Jean-Luc Picard’s reprimand of Cadet Wesley Crusher in Star Trek: The Next Generation, The First Duty (syndicated television broadcast Mar. 30, 1992): “You told the truth up to a point, but a lie of omission is still a lie.”
Norman, at 17-18, footnote 5.
Judge Robreno has an incredible life story of escaping Castro’s Cuba, years of hard work, and becoming a Federal judge who has overseen the complex Multi-District Asbestos Litigation that has over 10,000 claims. The fact the Judge can incorporate a Star Trek The Next Generation quote into a footnote only makes him more impressive.
We know there are hundreds of Judges who love Star Trek. The number of judicial opinions quoting this nearly 50-year-old series only highlights the stories have meaning to many people. There are the cases that seem like a no win scenario; there are times lawyers have to communicate by metaphor to the jury; there are moments in the arena when an attorney has to make an argument by hand out of bamboo, sulfur, charcoal, and potassium nitrate; and then there are the others where lawyers can channel their inner Samuel T. Cogley and argue to Court, “I speak rights!”
I think it is safe to say that Judges will be quoting Star Trek in “infinite diversity in infinite combinations,” well into the 23 Century.
Judge Robreno, keep boldly going.
There are no words for the heartbreak I feel at the news of Leonard Nimoy’s passing.
Leonard Nimoy was an amazing human being. When I was 15, I was deathly ill and hospitalized for nearly a month due to a ruptured bowel from Crohn’s Disease. Unpleasant does not begin to describe the experience.
Nimoy sent me a get well card, long before the days of social media. My godmother contacted her sister in Beverly Hills who was florist for the stars. My godmother’s sister contacted Nimoy’s assistant (either Nimoy was a client or my godmother’s sister earned her sainthood tracking down his office), who took my story to him. Nimoy was very kind and took a few moments to send a note before leaving on a business trip.
Kindness matters. Nimoy took the time to be kind.
In 2009, Nimoy gave the keynote at Guidance’s CEIC after the release of Star Trek. I was near the front of the line after the keynote and was able to thank him for sending me a get well card in 1990. He smiled and humbly said, “I am very glad I did that.”
The man stopped me three times with questions as I tried to step away, since I did not want to hold up the 900 people behind me. At that moment, the needs of the one outweighed the needs of the many as he inquired about my life.
Nimoy will be missed. Thank you for being a wonderful person.
Live Long and Prosper.
