What If Every Radio Shack was a HYDRA Outpost?

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March 4, 2015

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.

Debriefing Agent Carter

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Josh Gilliland

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March 2, 2015

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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?

A Judicial Footnote with Captain Picard

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Josh Gilliland

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March 2, 2015

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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.

Thank You, Leonard Nimoy

By

Josh Gilliland

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February 27, 2015

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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.

Burning the Midnight Oil of Liability

By

Josh Gilliland

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February 25, 2015

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Thank you Agent Carter for one heck of a great geek ride on television. What an amazing fight scene between Agent Carter and Dottie to cap off the series. Dottie hitting Peggy with a baseball bat. Peggy knocking Dottie a window. Just a well done battle royal.

We also learned little things, like Agent Thompson voted for Thomas Dewey or was deployed in November 1944, since Thompson said “I will vote for him next time,” when told President Truman wanted to meet him.

Let’s not forget that Howard Stark had one of the most amazing hangers EVER. Airplanes AND classic cars? Well done. Howard Hughes would be jealous. Then buy a casino.

Now, where can we get SSR walkie-talkie iPhone cases?

Stark Liability as a Weapons Manufacturer

Is Howard Stark responsible for the deaths at the Battle of Finow? The Midnight Oil gas was originally intended to keep soldiers awake and instead turned people in rampaging monsters. One would think Howard Stark would be responsible for the deaths caused by the “defective” product.

However, they would be wrong.

Surviving family members of those killed at the “Battle of Finow” and in the movie theater in New York City would not be able to sue Howard Stark for the “defective” Midnight Oil.

The US Army stole the Midnight Oil and used it on Finow. It is unclear if the Army had a horrific “friendly fire” incident from the gas or if an American military general should be tried as a war criminal for bombing an alley with a chemical weapon. Regardless of why the gas was used at Finow, Howard Stark could not be sued for the Army’s use of the gas, because the Army stole the Midnight Oil.

Howard Stark would also be protected by the “government contractor defense” which immunizes contractors from state tort liability for activities that they are required to perform pursuant to federal contracts. Bentzlin v. Hughes Aircraft Co. (C.D.Cal. 1993) 833 F.Supp. 1486, 1488-1489.

The gas was developed for the Army to keep soldiers awake. While Midnight Oil did not function as designed, the gas was developed pursuant to a government contract for the Army. As such, lawsuits based on state tort law would be barred, because of the Federal interests during war would be frustrated by allowing a state lawsuit based on defective design or manufacturing. Bentzlin v. Hughes Aircraft Co. (C.D.Cal. 1993) 833 F.Supp. 1486, 1492.

Howard Stark could also not be sued for the attack on the movie theater, because the actions by Dr. Fennhoff and Dottie Underwood clearly would be the actions of terrorists, where Howard Stark was the victim of his inventions being stolen by foreign spies.

As the Lambs Still Screaming Dottie?

Could Dr. Fennhoff be gagged indefinitely while imprisoned without violating the 8^th Amendment or Excessive Force Claims?

Maybe.

There are cases where Courts have ordered defendants gagged to maintain order in the courtroom. McKinney v. Newlin (11th Cir. 2013) 520 F.App’x 903, 905-906. These cases involve defendants who are highly disruptive to judicial proceedings.

Dr. Fennhoff is a different case. The evil doctor had an unnatural ability to make people bend to his will and commit acts of treason or murder. Fennhoff entranced one SSR Agent to violate his duties and commit suicide, followed by Chief Dooley betraying his duties, and even a police officer to murder other police officers. To put it mildly, under no circumstances could Dr. Fennhoff be in a position to speak to a prison guard, fellow prisoners, or anyone else.

This raises an interesting issue whether Dr. Fennhoff even spoke with his own attorneys during his trial. Dr. Fennhoff also would have been prohibited from testifying on his own behalf out of the danger he could control a judge or jury.

Dr. Fennhoff should have been placed in solitary confinement and denied any human contact. Putting him in a cell with a HYDRA mad scientist was extremely poor prison management for a mind-controlling-mass-murderer. A firing squad would have been a more just punishment given the body count amassed from his crimes.

But then we would not have seen Zola.

From a historical standpoint, putting a Nazi and a Russian together made NO sense. Yes, Zola was Swiss, but HYDRA was a rogue Nazi advanced weapons organization. The Germans and Russians had extreme hatred for each other from the body count on the Eastern Front. Putting two men from different sides of a war with a high level of hate is asking for a cage match to the death.

Unless that was the plan.

Property and Civil Procedure Lessons from Thor and Ant-Man

By

Josh Gilliland

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February 24, 2015

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Jessica Mederson and I are really enjoying the new Thor. We share our thoughts on who is the true owner of Thor’s Hammer based on different property law theories. We also discuss the Civil Procedure issues in Ant-Man issue 2.

The New Thor: Who Owns Mjölnir?

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Jessica_alegalgeek

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February 22, 2015

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Way to go, Marvel! I know there may have been some controversy, but by giving us a new – and female – Thor, they’ve finally made the character interesting to me. As much as I loved Norse mythology growing up, Thor always bored me (although Chris Hemsworth certainly piqued my interest in the movies).

But now, Marvel has taken Thor and made it their most compelling storyline. Nick Fury said something to make Thor Odinson drop his hammer and then he was unable to pick it back up. In the new Thor storyline, a mysterious woman could pick up the hammer and is now Thor.

In Issue 4, the original Thor came back to reclaim Mjölnir. He was furious, of course, and fought the new Thor. It got me thinking about what Thor could have done if he used lawyers instead of resorting to physical violence. I checked Minnesota’s laws to find an answer, because it’s the home of so many vikings (and Vikings), so there’d probably be venue there.

Under Minn. Stat. sec. 609.52, subd. 2(6), theft of lost property is against the law. That statute makes it a theft to find “lost property and, knowing or having reasonable means of ascertaining the true owner, appropriates it to the finder’s own use or to that of another not entitled thereto without first having made reasonable effort to find the owner and offer and surrender the property to the owner.”

In this case, the new Thor knew that the hammer belonged to Thor but made no effort to surrender it to him. So Odinson could have a good case for theft against the new Thor. On the other hand, given Mjölnir’s ability to decide who can hold it, new Thor could argue that the hammer had decided she was its true owner – at least for now.

[SPOILER ALERT] By the end of that issue, however, the case was settled when Thor Odinson became convinced that Mjölnir belonged to new Thor, even relinquishing his name to her so that there would be no question as to who was now Thor. This didn’t make Odin happy, however, which we’re getting a feeling for in Issue 5. Odin is ticked – he caused Mjölnir to be created and even gave it some of his power – and he doesn’t like the new Thor (he’s definitely a misogynistic pig in this storyline).

As a gift, however, Odin can’t claim that he’s entitled to its return. In general, giving a gift is an absolute move that can’t be taken back. Some courts have applied a conditional gift rule, however, where gifts may have to be returned to the donor. A conditional gift is one conditioned on a donee’s performance of an act and if the condition is not fulfilled then the donor may recover the gift. See Benassi v. Back & Neck Pain Clinic, Inc., 629 N.W.2d 475, 484 (Minn.App.2001). That rule is generally limited to gifts of engagement rings or other gifts given in contemplation of marriage, where the engagement is called off. See Otis v. Conway, No. A04-1699, 2006 WL 44234, at *1 (Minn. Ct. App. Jan. 10, 2006). In Texas, even under the conditional gift rule, the ring only needs to be returned if the recipient is at fault in terminating the engagement. See McLain v. Gilliam, 389 S.W.2d 131 (Tex.Civ.App.-Eastland 1965, writ ref’d n.r.e.).

So Odin has little legal recourse. Of course, Odin doesn’t seem interested in using lawyers to resolve this matter. Odin’s aligning himself with some much more unsavory characters, instead. Fortunately, Thor is starting to get some some allies herself. I can’t wait to see what happens in the new issue!