Burning the Midnight Oil of Liability

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February 25, 2015

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?

By

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!

Focus: Release the Leviathan

By

Josh Gilliland

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February 18, 2015

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Dr. Ivchenko and Dottie Underwood either are terrorists or committed an act of war in the penultimate episode of Agent Carter. The title of the episode “Snafu” highlights that things did not go well for our heroes, but wow, what a great episode. Definitely not a “snafu.”

At least Chief Dooley went out with a bang.

Leviathan is Coming

Here are the key distilled facts for our legal analysis: Dr. Ivchenko and Dottie Underwood steal Howard Stark’s Item #17 from the SSR Lab, which had already been stolen once presumably by Dottie, then recaptured by Agent Carter, and then taken into custody by the SSR after Jarvis’ “anonymous” tip.

Item 17 was a poison gas that caused people to become enraged and go on a murder rampage. Underwood placed a weaponized version of the gas in a baby carriage and left it in a movie theater. Ivchenko barred the one exit to the theater, leaving the movie goers to butcher each other with their bare hands.

If Leviathan was part of the Soviet Union’s espionage service, their movie theater attack by itself would be an act of war. If Leviathan was a stand-alone organization like HYDRA, then the movie theater attack is an act of terrorism.

When Leviathan Rises Up, the Mighty are Terrified; They Retreat before his Thrashing

Job 41:25

In 1946, we did not use the term “Weapon of Mass Destruction.” At that time, the United States was the only country with atomic weapons. The Soviet Union would not test their first nuclear weapon until 1949. However, by today’s definition, a “Weapon of Mass Destruction” is any weapon that is “is designed or intended to cause death or serious bodily injury through the release, dissemination, or impact of toxic or poisonous chemicals, or their precursors.” 18 USCS § 2332a(2)(B), emphasis added. WMD’s are also defined as “any explosive, incendiary, or poison gas device that is designed, intended, or has the capability to cause a mass casualty incident.” 50 USCS § 1801(p)(1), emphasis added.

The “Gas 17” was intended to cause serious bodily injury that resulted in a mass casualty event. There is no question the gas would be classified as a WMD by today’s laws.

The world of 1946 had a different view of terror. That world had its examples of “poison gas” from both World War Wars. The Geneva Protocol of 1925 was the first to ban the use of gas and bacteriological weapons in war (and ratified by the United States in 1974). 1925 U.S.T. LEXIS 4, 1.

Just because terrorism is different in the 21^st Century, does not mean people did not fear terrorism in the first half of the 20^th Century. A Defendant was convicted in California in 1920 for “criminal syndicalism and sabotage,” which included disseminating a pamphlet entitled, “Poison Gas and Violence,” plus many other Communist propaganda articles, calling for the violent overthrow of the government with instructions. People v. Malley (1920) 49 Cal.App. 597, 600-6001, 609.

Cases with “poison gas” in the criminal context are limited, but there is an interesting case from 1927. Two criminals in Georgia added a “smoke screen” device to their getaway car. They used this device while a police officer was in pursuit of them. The police officer was poisoned by the carbon monoxide the smoke device emitted and was killed during the pursuit in a crash. Andrews v. State (1927) 37 Ga.App. 95, 96-97 [138 S.E. 923, 923-924].

The Court found that the Defendants were unaware of how much carbon monoxide would be emitted by the smoke-screen device, thus did not have the knowledge that their actions would have been fatal to the police officer, thus they did not have the required “intent to kill” for a murder conviction. Id.

That is not the case for Dr. Ivchenko and Dottie Underwood. The Battle of Finow must have been a field test of the gas. As such, both knew the result would be the victims killing each other.

If Leviathan was operated by the Soviet Union and Stalin issued orders to conduct an attack on the United States, that would be “armed conflict between two or more nations” under 18 U.S. Code § 2331(B). The Soviet Agents had captured weapons of mass destruction, conducted operations to kill Federal Agents, and used said WMD’s on the US population.

A fictional Hawkish President Harry Truman would be within his right to ask the Democratic Congress for a declaration of war in response to these attacks. The US military was at peak strength and the only country with atomic weapons. The Soviet’s mainline of defense was still winter and a disregard for human life. If there was to be a war, this would have been the right time from a strategic view.

It would also have been a bad idea after one already long and bloody war. No question it would end badly for both sides. Just ask President Woodrow Wilson how his invasion of Russian did with the Polar Bear Expedition.

The alternative approach would be to give the SSR the mission to seek out and destroy Leviathan. It would be a war between militarized intelligence agencies, but Leviathan had conducted a chemical attack on New York City, which could not go unanswered.

There is the chance that Leviathan is a rogue Soviet Agency. The fact there had been an attack on the Soviets during World War II is evidence that someone killed Russians with either the same or similar gas. Leviathan is a possible suspect of the attack. However, history does remember Stalin murdering his own people.

If Leviathan was indeed a rogue Soviet espionage agency, mandating the SSR combat Leviathan would be a sound policy decision. Forming SHIELD with the mission to defend the United States from Leviathan is also a logical result.

The 4th Amendment in Hot Pursuit of Agent Carter

By

Josh Gilliland

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February 11, 2015

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What did we learn on the Agent Carter episode “A Sin to Err”? First, Howard Stark has a serious addiction to women. A psychologist could have a field day analyzing what failed emotion connection Howard had with his mother that turned him into a serial womanizer. Jarvis should have a workers comp and hostile workplace complaints against Stark for all the slapping he endured from jaded lovers.

The second big take away is the Constitution had a very big role in the episode.

Agent Sousa actually tried arresting Agent Carter by specifically stating charges against her: Treason, Espionage, and Adding and Abetting “Public Enemy Number 1” Howard Stark.

All of those charges would be supported by probable cause, plus a few other charges, such as kidnapping, obstruction of justice, and battery of a government agent. A Federal Prosecutor could probably tack a few more onto the criminal complaint.

The SSR’s failed attempt to capture Peggy Carter landed multiple agents in the hospital (plus probably a lot of bruised misogynist egos for being beat up by a “woman”). Agent Carter also effectively emasculated Agent Sousa, which might impact their future working relationship.

Now for the big question: Could the SSR Agents conduct a warrantless search of Agent Carter’s apartment after the failed arrest?

The answer is YES.

The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

USCS Const. Amend. 4.

The SSR went after Agent Carter in what was a traditional “hot pursuit” with a suspect fleeing law enforcement.

Revel in the geek irony of US v Carter, where the Court summarized that exceptions to the warrant requirements of the Fourth Amendment include: consent searches, searches incident to an arrest, searches concomitant to the “hot pursuit” of a felon, emergency searches for the protection of an arresting officer, and searches to prevent the imminent destruction or removal of evidence. United States v. Carter (D.C.Cir. 1975) 522 F.2d 666, 673.

The search of Agent Carter’s apartment would be considered an “exigent circumstance” and thus a reasonable exception to the Fourth Amendment.

The SSR was in an active pursuit by someone suspected of multiple crimes, who could take out a diner full of Federal Agents. Moreover, the concern whether Agent Carter had any of Howard Stark’s advanced weapons would be a concern for public safety. Furthermore, there was a legitimate concern to preserve evidence pertaining to national security from being lost or destroyed.

What would not be ok was detaining the landlord Miriam Fry. There was no evidence that Fry was involved in any wrongdoing. It is a huge stretch for the SSR Agents to argue that Fry being “annoying” to them was obstructing justice. While removing Fry for safety reasons would be a plausible argument, this really did look like a civil rights violation.

Other takeaways: Professionals who practice the healing arts took two black eyes in the episode. First, Dr. Ivchenko gave psychologists a bad name in that he exploited those who need mental health treatment. Second, people are already afraid of the dentist, so making one a sexual predator conducting illegal job interviews will not encourage people to get a teeth cleaning.

Professional reputations for psychologists and dentists aside, the episode closely followed the Constitution. Agent Carter is building to a great conclusion. Keep up the good work.

Tony Stark vs Ant-Man: Battle Over Advertising Using Iron Man’s Likeness Without Consent

By

Josh Gilliland

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February 10, 2015

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Marvel’s Ant-Man by Nick Spencer is giant size fun that packs the strength of a comic 100 times it size.

Scott Lang takes on his greatest challenge as Ant-Man: starting a security business. Ant-Man had to face bankers to get a loan, followed by a Nazi Atomic Robot from World War II that turned its victims to gold: the Midasbot.

Actually, the Robot was the easiest challenge Ant-Man had to face in the story. Securing a loan for his business, not so much.

After successfully securing a loan from a private investor, Ant-Man launched his advertising campaign with a roadside billboard that included Iron Man giving a thumbs-up with the quote, “I’d hire him.”

No amount of Pym Particles can shrink the big issue Scott Lang created for himself: Ant-Man did not get Tony Stark’s permission to use Iron Man’s likeness to market Ant-Man’s new business. We actually see Tony Stark tell a lawyer, “Sue.”

Tony Stark’s lawyers have multiple options to sue Ant-Man. The options include suing in California, or Florida, or in Federal Court on a Federal Question, or in Federal Court on Diversity Jurisdiction. The likely choice would be a hybrid.

California Dreaming

There is a very strong argument that Ant-Man violated California’s prohibition on using someone’s likeness without their consent, even though Ant-Man is in Miami.

California’s “long arm statute” states that a California Court “may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” Cal Code Civ Proc § 410.10.

Is a single roadside sign in Miami enough to establish personal jurisdiction over Ant-Man in California? One of Tony Stark’s lawyers would argue yes, because Ant-Man 1) knew Iron Man was in California and 2) had interviewed for a job with Tony Stark in San Francisco. This should be enough evidence to show Ant-Man purposefully available himself to the laws of California by using Iron Man’s likeness in Florida (at least according to Tony Stark’s lawyers). This is a very difficult argument to make successfully based on one sign in Miami.

Going Back to Miami

The better argument would be to sue in Federal Court either on diversity or Federal Question. Tony Stark has an excellent Federal Question: Copyright violation by using the image of Iron Man.

If in Federal Court based on copyright violation, a Federal Judge in Florida could hear the Florida state false advertising claims based on supplemental jurisdiction, because the claim is related to the copyright violation for using the image of Iron Man on the billboard, thus making it the same case or controversy under 28 USCS § 1367.

Tony Stark’s lawyers would likely prefer using California law prohibiting the use of someone’s likeness in advertising over Florida’s false advertising laws. This would require either suing in California, or going to Federal Court based on Diversity Jurisdiction, or suing over the copyright claims in Federal Court with the California claims being pendent to the copyright jurisdiction.

If a Federal Court were applying California law, or if California somehow had personal jurisdiction over Ant-Man, the relevant California law states:

(a) Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to present proof only of the gross revenue attributable to such use, and the person who violated this section is required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney’s fees and costs.

Cal Civ Code § 3344(a).

Tony Stark could prove that 1) Iron Man’s likeness was used by Ant-Man in marketing Ant-Man’s services and 2) Ant-Man did not get Tony Stark’s consent to use Iron Man’s likeness. What is interesting would be the actual damages, which might not meet dollar requirement to be in excess of $75,000 for diversity jurisdiction to get Stark into Federal Court in Florida.

Tony Stark could at least seek the statutory amount of $750 from Scott Lang. Given Stark’s wealth and the cost of litigation that would be simple damages for the sake of revenge on a financially bankrupt Scott Lang, who is living in a toy house to save money.

If Stark could prove his actual damages for appearing on one roadside sign in Miami, the amount of damages could go up. If Stark could prove Ant-Man’s profits were attributable to the use of Iron Man’s likeness, that amount would be in addition to the damages award, minus Ant-Man’s deductible expenses.

Could Stark claim his damages to be in excess of $75,000 for Diversity Jurisdiction? Unknown, but an Extremis powered lawyer from a Big Law Firm would sure try.

One option is to focus primarily on the violation of Tony Stark’s copyright in the Iron Man armor being used on the billboard. As Federal Courts have exclusive jurisdiction over copyright claims, a Federal Court could allow the California claims as being part of the same case. (See, Fed. Treasury Enter. Sojuzplodoimport v Spirits Int’l N.V. (2010, CA2 NY) 623 F3d 61, 96 USPQ2d 1906 for exclusive jurisdiction). In Astor–Honor, Inc. v Grosset & Dunlap, Inc., it was held a Federal court had the power to hear a complaint over the alleged conspiracy to infringe on a copyright, despite there being no diversity, because it was joined with copyright claims that had a common nucleus of facts. As such, claims can be joined if “one would ordinarily be expected to try them all in one judicial proceeding.” Astor–Honor, Inc. v Grosset & Dunlap, Inc. (1971, CA2 NY) 441 F2d 627, 170 USPQ 65, 14 FR Serv 2d 1502.

In a case with copyright and contract claims where the contract claim did not meet the amount in controversy to provide diversity jurisdiction, the Federal Court could hear the contract claims because the copyright claims gave the court jurisdiction based on a Federal Question (copyright) and pendent jurisdiction over the contract claim under 28 USCS § 1338(a). Powell v Green Hill Publishers, Inc. (1989, ND Ill) 719 F Supp 743, 14 USPQ2d 1760.

Based on the above, there is a strong chance the Invincible Iron Man would be able to sue the Astonishing Ant-Man in Federal Court, in Florida, with both copyright claims and seeking relief over using Iron Man’s likeness in advertising without Tony Stark’s permission.

There are many unanswered questions regarding Ant-Man’s new business. Did he incorporate in Florida? If so, what kind of corporate entity? What kind of business insurance does a security firm require? Does Ant-Man have the required OSHA postings for his single employee? How does the Affordable Care Act impact Ant-Man’s new business? Does Ant-Man get a tax break for hiring an ex-con?

Regardless of those answers, keep up the great work Nick Spencer.

Vice Presidential Charm School for Agent Carter

By

Josh Gilliland

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February 5, 2015

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The Agent Carter episode “The Iron Ceiling,” was a joyride of a Cold War spy story. Let’s fire up the spy typewriter to decode the legal issues.

The SSR Does Law Enforcement

Agent Carter declared to Jarvis, “I am a Federal Agent.”

This statement was very important, because it demonstrated that the SSR is conducting law enforcement in the United States. While we have not seen the SSR’s post-war charter from Congress, this statement supports what we have seen so far in the series: SSR Agents responding to cases beyond the scope of the FBI.

Who Was Agent Dooley Talking To?

Chief Dooley claimed the Vice President of the United States was calling him and demanding answers on Howard Stark. One very big problem with this part of the story: the United States did NOT have a Vice President in 1946.

Harry Truman assumed the Presidency upon President Franklin Roosevelt’s death in April 1945. At that time, there was no mechanism to install a new Vice President. As such, pursuant to the Presidential Succession Act of 1886, Secretary of State James F. Byrnes would become the President, in the event of President Harry Truman’s demise. Upon President Truman’s re-election in 1948, Alben W. Barkley would become Truman’s only Vice President on Inauguration Day 1949.

The United States would have to endure the loss of President Kennedy before the 25th Amendment was ratified, allowing a President to nominate someone to hold the office of Vice President in the event of a vacancy, which then requires a majority vote in Congress to confirm that individual.

The Soviet Charm School

Agent Carter, the SSR, and the Howling Commandos, led an incursion into the Soviet Union in their pursuant of Leviathan.

The SSR found the equivalent of a spy school for little girls. It was very reminiscent of Nelson DeMille’s book “The Charm School,” where US POW’s from Vietnam were used to train Soviet spies to be Americans. The school had the same theme, except instead of using US POW’s, the girls were forced to watch and repeat Snow White.

This should serve as a warning about women who speak like Snow White.

No one likes the idea of going to boarding school, but this place would violate so many child protection laws it is not funny. You cannot 1) handcuff children to beds or 2) teach the children to snap a classmate’s neck. Definitely sent the message, “In Mother Russia, Boarding School Boards You.”

The operation in the Soviet Union was not exactly “legal.” Sending the US military into a foreign country would be an act of war. This kind of mission would royally tick off Joseph Stalin. However, given this is a spy story, this sort of “black op” mission that risks starting a war in order to avoid starting a war is truly the stuff of Cold War spy stories.

Which brings us to a graduate of the Soviet Charm School for Black Widows: Is Dottie “Fatal Attraction” Crazy? Is Dottie a rogue spy? Is Dottie working for Levithan? How did she get rid of that dude’s body under her bed?