What Did We Learn About Fear on Gotham?

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February 3, 2015

The Gotham episode “The Fearsome Dr. Crane,” had several important life lessons on fear.

Don’t Play “Tell Me a Secret” With a Mob Boss in the Woods

Sal Maroni, a large, strong man, with very fast hands, took Penguin into the woods to share secrets in a remote cabin. The fact pattern alone embodied every nightmare 1980s PSA with victims who ended up on milk cartons. Penguin, don’t go on car rides to someone’s cabin in the woods.

Men Who Wear Bow Ties Are Not Afraid of Baby Pigs

Wearing a bow tie takes confidence. Those of us who wear bow ties are used to those with knot envy mocking us. But we all know the truth: Bow Ties Are Cool.

Any man confident enough to wear a bow tie would not be afraid of a baby pig.

Now, being tied up in a slaughterhouse with pigs, complete with a creepy butcher wearing a pig mask who is preparing to slaughter you like an animal, screaming out in terror is totally normal in those circumstances.

Anyone who was “this little piggy went to the slaughterhouse” would have serious civil and criminal claims against Dr. Crane and his Pig-Butcher henchman. The butcher’s bill of crimes would include kidnapping, attempted murder, torture, assault, battery, intentional inflection of emotional distress, possibly cruelty to animals, and a host of other issues a district attorney would list in a criminal complaint.

Dr. Crane Has Seriously Violated the Hippocratic Oath

Doctors today do not swear to Apollo they will not cause hurt or damage to the sick, but they nearly take an oath to do no harm.

Dr. Crane went out of his way to cause harm, by inflicting the worst fears a victim had before killing them. In New York, this would be first-degree murder by torture, which is defined when a defendant acts in “an especially cruel and wanton manner pursuant to a course of conduct intended to inflict and inflicting torture upon the victim prior to the victim’s death.” NY CLS Penal § 125.27(x). Torture is “the intentional and depraved infliction of extreme physical pain” and “depraved” means the Defendant relished inflicting the pain upon the victim. Id.

Pretty sure a DA could prove Dr. Crane’s actions of hanging a man off a roof, who was afraid of heights, was murder by torture. Removing the victim’s adrenal glands would add desecration of a corpse to the list of crimes. Moreover, the attempts to kill the man afraid of pigs and drown a woman afraid of drowning were both attempted murder by torture (and conspiracies involving third parties).

Now, it was good to see Jim Gordon overcome his fear of an emotional connection with Dr. Leslie Thompkins, empowering him to grow beyond the toxic behavior of Barbara’s drug use and wildly inconsistent personality. Marry Dr. Thompkins and have a daughter named Barbara for a variation of comic canon. We are not afraid of that.

Just Who is the Legal Owner of Mjolnir?

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Josh Gilliland

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February 2, 2015

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Who owns Mjolnir? The fact there is a new Goddess of Thunder in Marvel comics causes pause over property rights. Let’s begin our journey into legal mystery on how worthiness is a condition for property ownership.

Thor’s Hammer technically should be personal property that an individual would own. As the Hammer was constructed by the dwarf Eitri in the comics (Sindri and Brokkr in Norse Mythology), then given to Odin by Eitri, and then given to Thor Odinson by Odin, Mjolnir should be the personal property of Thor Odinson as a gift from his father (Wikipedia has a summary of the Hammer’s creation).

However, as fast as you can say Beta Ray Bill, Mjolnir is inscribed with, “Whosoever holds this hammer, if he be worthy, shall possess the power of Thor.” As such, Mjolnir requires someone to be “worthy” in order to even lift the Hammer.

The requirement of “worthiness,” as judged by a sentient super weapon, creates a situation where the owner of the property could not use the property (Mjolnir), if the property deemed its owner “unworthy.” As such, Thor Odinson’s ownership in Mjolnir is conditional and can be revoked by the Hammer itself based on the user’s worthiness (Or in the case of Beta Ray Bill, someone who is worthy can have a competing ownership interest in Mjolnir).

There are no epic legends of lawyers in Norse Mythology, but this is legally odd. Normally a revocable transfer of property would allow the transferor to recover the property. In the case of Mjolnir, the Hammer was not transferred back to Odin (who the Hammer also deemed unworthy), but (apparently a human) woman who has yet to be identified. The fact the Hammer effectively selected its own new owner is outside the norms of existing property ownership laws.

In Thor #4, Thor Odinson confronted the new Thor to recover Mjolnir. There is a strong argument that Odinson had a valid claim to recover the Hammer. After all, the Hammer is personal chattel that Odinson had owned for centuries. However, as Mjolnir deemed Odinson unworthy after Nick Fury whispered something damning to Odinson in a fight above the Moon, the Hammer summarily revoked Odinson’s ownership interest. As such, ownership transferred to the yet to be identified new Thor based solely on worthiness (and her ability to travel to the Moon and without the need to wear a spacesuit).

What is legally unknown, is why Thor Odinson is no longer worthy to wear a shirt. The Tetsuo Shima look is a bold choice, but not proper courtroom attire.

Give the Nazi a Death Mint

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Josh Gilliland

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January 29, 2015

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Agent Carter presented interesting issues over negotiating deals with people in custody. In the “Blitzgrieg Button,” Agent Dooley traveled to Germany to question the convicted Nazi war criminal Colonel Mueller on the Battle of Finow.

Dooley’s offer to get the Nazi awaiting the gallows to talk? A purported cyanide pill, so Colonel Mueller could have a dignified death, opposed to being hung.

HYDRA_Dummkopf_2890 — Shirt available from http://www.neatorama.com

Bet the Nazi was surprised the cyanide pill was actually a breath mint. At least Herr Colonel could burn in Hell with minty fresh breath.

Could Dooley lawfully offer Mueller an alternative form of execution in exchange for information? This seems legally problematic, as Nazis convicted during the Nurenberg Trials were done under international law, with cases adjudicated between the United States, the United Kingdom, and the Soviet Union.

Colonel Mueller was likely convicted for what Justice Robert Jackson outlined in the Prosecution’s Closing Argument in the Nuremberg Trials as Preparation and Waging of Wars of Aggression; Warfare in Disregard of International Law; and possibly Enslavement and Plunder of Populations in Occupied Countries. We do not know Colonel Mueller’s exact war record, but that is an educated guess for Herr Mueller to have a death sentence in 1946.

Given the fact Dooley was able to see Colonel Mueller on short notice, Dooley had the legal authority to interview the Colonel. It is difficult to imagine any legal authority for Dooley to lawfully offer Mueller an alternative form of death. An international tribunial found Mueller guilty and imposed execution by hanging for the Nazi’s crimes against humanity.

Colonel Mueller, if he had been tried in the United States, could have challenged his method of execution as being cruel and unusual punishment (today such a challenge would be brought as a 1983 action). Beardslee v Woodford, 395 F3d 1064 (2005). However, Courts have held that executions by hanging do not violate the 8^th Amendment. Campbell v Wood 18 F3d 662 (1994).

That being said, one could argue that Dooley’s “death mint” was cruel and unusual punishment. Dooley fraudulently got information from Mueller with the promise of a cyanide pill, so Mueller could avoid a possibly prolonged death by hanging. Once Mueller ingested the mint, and realized he had been lied to, the Colonel arguably would have had mental suffering awaiting his public execution. Assuming the Nazi had human feelings.

Regardless of those facts, the fictional Nazi had a trial, the right to confront witnesses, present evidence in his favor, and was convicted of his crimes. That is significantly more “Due Process” than the real Nazis gave any of their victims. As such, no one would care if a Nazi who killed women and children had his feelings hurt.

Dooley did the right thing.

Can Daredevil Sue Iron Man on Behalf of the FDA?

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Josh Gilliland

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January 22, 2015

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Superior Iron Man #4 had the bombshell that Tony Stark had poisoned everyone in San Francisco by contaminating the water supply with Extremis 3.0. This makes sense, because how could an app physically change people?

Tom Taylor gave every geek lawyer a wonderful gift with Stark adding Extremis 3.0 to what had to be the Hetch Hetchy Regional Water System. It is fun to imagine Stark drones dumping 55-gallon drums of Extremis into Pilarcitos Reservoir in a toxic tort case. Moreover, it is very easy to envision Matt Murdock re-enacting A Civil Action to take on Tony Stark.

Daredevil confronted Tony Stark and threatened to represent the FDA in a case against Stark for adding an untested virus to San Francisco’s water supply?

Could Matt Murdock represent the FDA in such a case?

No, for a variety of reasons.

First, the FDA would have government lawyers represent the Government. Secondly, Murdock could not sue on behalf of the FDA on a private right of action for violating FDA regulations. (See, generally, Talbott v C.R. Bard, Inc., 865 F Supp 37, 39-40 [D Mass 1994]). Third, the fact Murdock heard the app trigger the virus makes Murdock a witness to the crime that would require testimony. Lawyers are not supposed to be their own witnesses in a lawsuit.

However, there is an interesting theory with state law. California law is specifically designed to give legal effect to the Nuremberg Code of Ethics in Medical Research and Declaration of Helsinki to prohibit unethical experiments on living human beings. Cal Health & Saf Code § 24171. A lawyer could successfully argue that adding an untested virus to the water supply violated the California statute incorporating the Nuremberg Code of Ethics in Medical Research and Declaration of Helsinki.

Could Murdock bring a private right of action against Stark for violating the Nuremberg Code of Ethics in Medical Research for conducting nonconsensual medical experiments?

Most likely no, but there is a small “maybe.”

Federal law likely would preempt California law if the focus of the case was on FDA violations. Moreover, no Federal Court has found a private right of action exists for violating the Nuremberg Code and international law. See, Abdullahi v. Pfizer, Inc., 562 F.3d 163, 175-176 (2d Cir. N.Y. 2009) and Robertson v. McGee, 2002 U.S. Dist. LEXIS 4072, 9-10 (N.D. Okla. Jan. 28, 2002).

No California Court has found a private right of action for violating Nuremberg Code of Ethics in Medical Research and Declaration of Helsinki, as given force by Cal Health & Saf Code § 24171. As one California Court stated on private rights of action:

The issue in a case such as this is primarily one of legislative intent. If the Legislature intended a private right of action, that usually ends the inquiry. If the Legislature intended there be no private right of action, that usually ends the inquiry. If we determine the Legislature expressed no intent on the matter either way, directly or impliedly, there is no private right of action… with the possible exception that compelling reasons of public policy might require judicial recognition of such a right.

Animal Legal Defense Fund v Mendes, 160 Cal App 4th 136, 142, [2008].

Would a California Judge find “compelling reasons of public policy,” that would require recognition of a private right of action? Most likely no, but if a Judge was ticked off enough by the population of San Francisco being infected with a virus on purpose, it certainly is possible for a Judge to empower Matt Murdock sue Tony Stark for playing Dr. Mengele on a private right of action.

Just because Matt Murdock cannot sue on behalf of the US Government or (most likely) the State of California, does not mean Tony Stark gets to infect people with a virus. The US Government and the State of California can prosecute Stark for violating the different state and Federal laws. Moreover, Matt Murdock can represent victims from San Francisco in what would be one of the biggest class actions ever.

Tony Stark would also have more to worry about then the FDA. The Environmental Protection Agency does not look kindly on chemicals being dumped in drinking water. Fish and Wildlife would also likely take aim for potentially infecting fish and animals with Extremis. The FBI would likely consider poisoning the water supply with an addictive virus an act of terrorism. That is just the beginning of Federal Agencies that would go after Stark in what would be one of the largest mass tort case against one person in fictional history.

No Mining Rights on Lothal

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Josh Gilliland

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January 20, 2015

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Let’s face it, no one is as smooth talking with the ladies as Lando Calrissian. Despite Lando’s ability to impress a woman with, “You truly belong here with us among the clouds,” Lando’s sweet talk is not enough charm to the Empire into permitting mining rights on private property on Lothal.

Mining (on Earth) is a regulated activity, even on private property. There is substantial legislation about applying for permits to mine on public land or how to establish a claim.

On Lothal, the Empire continues to endear itself to the population by prohibiting mining on private property. In the United States, mining on private property (that is supposed to be a mine) does require permits in virtually every state. Moreover, the regulation of mining activities, such as requiring a permit, is not a “taking” of private property under the Fifth Amendment. M & J Coal Co. v United States, 47 F3d 1148, 1149 [Fed Cir 1995].

Why does the government regulate mining on private property? Health and public safety are obvious concerns. Neighbors are not thrilled when potentially hazardous materials become airborne and land on surrounding private property. Moreover, no one wants their neighbor blasting a new mine in a residential neighborhood on the argument, “It’s my property, I do what I want with TNT.”

Lothal provides a very different case study where the Empire has outright prohibited all mining on private property. If there had been existing mines that were prohibited from operation, suspending those pre-existing mining rights would be a “taking” of private property in the United States. Those miners should have been entitled to just compensation for their lost property rights. However, filing any such claims likely would have been treason, resulting in the property owner being sent to the Spice Mines of Kessel.

That being said, let’s not forget the important thing: We got to hear Billy Dee Williams voice Lando Calrissian. You old space pirate, it was good to see you.

Someone to Watch Over the SSR

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Josh Gilliland

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January 14, 2015

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The Agent Carter episode “Time and Tide” carried a rising tide of legal issues, from a woman being evicted from an all female apartment for having a man over (who did scale the building), to custodial interrogation of Jarvis without an arrest, to charges of treason for Jarvis forging a general’s signature to help his future Jewish wife escape before World War 2, and threats of deportation.

On a very welcome note, Agent Carter conducts an investigation in coveralls. This is a welcome break from comics where female characters often fight evil in Kevlar lingerie. Bikinis are not bulletproof and provide minimal protection from the environment (Even the Sub-Mariner has ditched his green speedo for the 1970s costume). Coveralls make a heck of a lot more sense for climbing down a sewer.

And Agent Carter’s coveralls do not get ripped in the fight.

Does the SSR Conduct Law Enforcement?

The Strategic Scientific Reserve (SSR) in Agent Carter conducts domestic law enforcement with searches of property and arrests of individuals. In the real world, investigating Howard Stark and foreign spies would have been under the purview of the Federal Bureau of Investigation.

The SSR conducting law enforcement is a huge shift from its role in Captain America The First Avenger. In the agency’s original form, it was clearly a branch of the Army to develop advanced weapons to fight the Axis powers in World War 2 and fighting HYDRA. In Marvel’s version of 1946, we see SSR Agents in a secret New York office, arresting people, conducting interrogations, and throwing around the need to get search warrants. These actions are clearly law enforcement responsibilities that would be subject to judicial oversight to ensure compliance with the Constitution.

There is a huge issue with the military conducting law enforcement. Congress enacted the “Posse Comitatus Act,” to specifically prohibit the military conducting law enforcement. The Act states:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

18 USCS § 1385.

It is highly likely that the fictionalized President Truman and post-World War 2 Congress re-purposed the SSR to deal with the “wonder threats” directly threatening the United States. While it is very odd to see a law enforcement agency also conducting espionage, this is the likely structure for the SSR’s operation.

That being said, the fact the SSR Agents boarded the tugboat Heartbreak without a search warrant would be an Unconstitutional search. Getting a tip from “a pal” is not exactly enough of a reason to side step complying with the 4^th Amendment. One could argue there was an Exigent Circumstance because someone called a secret phone number for a secret law enforcement agency that the public was not supposed to know about. While that definitely is something to consider, there was no visible evidence from seeing the docked tugboat of any danger of sinking or possible destruction of evidence. A SSR lawyer could argue that the danger of Stark’s missing weapons justified such a search without a warrant, however, it would be a very problematic argument.

And suppressing any evidence against Howard Stark from the tugboat would be a real heartbreak for the SSR.

2014: The Year of the Geek

By

Josh Gilliland

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January 12, 2015

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We live in an age of miracles: 2014 was a fantastic time to be a geek. Jess and I sat down with some of our great friends to discuss Scandal, the Marvel Cinematic Universe, the best action scenes from 2014, and Star Wars Rebels.

Join us as we visit with Vivian O’Barski from The Learned Fangirl, Political Consultant and Novelist Gerry O’Brien, Jessica Bennett, stunt woman, actor, and educator, and Judge Judge Matthew Sciarrino, on all things geek in 2014.