The First Amendment to the United States Constitution states, “Congress shall make no law respecting an establishment of religion,” United States Constitution, Amendment I, Clause 1.
What does this mean for a “alien” that historically was thought to be a god who conducts law enforcement activity or national defense? Would offended atheist or religious groups have a cause of action to sue to prohibit the US Government, SHIELD or the Avengers from working with Thor as a First Amendment violation? Would they even have standing to sue the Federal government?
The test whether the Establishment Clause has been violated is whether, “the government practice has the effect, intentionally or unintentionally, of communicating a message of government endorsement or disapproval of religion would there be a violation of the Establishment Clause.” Rosa-Ruiz v. Gonzalez-Galoffin, 2007 U.S. Dist. LEXIS 69905, at *10 (D.P.R. Sept. 20, 2007).
The “Lemon test” requires Courts to determine whether the challenged law or conduct has a secular purpose, whether its primary purpose is to advance or inhibit religion, and whether it creates an excessive entanglement with religion. Rosa-Ruiz, at *10-11.
Thor working with SHIELD or the Avengers (assuming they are state sponsored) is nothing like a courthouse with the 10 Commandments or Christmas decorations in a public park. You actually have a “person” with extraordinary powers. Would such partnerships for law enforcement or national defense amount to a state-endorsement of religion that violates the “Lemon Test”?
As to the first element, Thor fighting invading alien armies has the secular purpose of stopping a US city from being destroyed and the enslavement of the human race. The purpose of Thor’s actions is clearly defensive in nature for the protection of all of mankind, thus promoting a secular purpose.
Thor’s actions of protecting Midgard do not have a primary purpose of advancing or inhibiting religion. Thor demands no offerings from the US government, nor are temples being built for him. All US citizens still enjoy the freedom of religion. This is purely a strategic defensive relationship to ensure the safety of all of the Nine Worlds.
As to the final element, SHIELD, the Avengers or local police working with Thor do not pose an excessive entanglement with religion. There are no worship services taking place or the Secretary of Defense making sacrifices to appease the God of Thunder. If anything, this is a diplomatic relationship to combat mutual threats.
The US Government should be able to conduct law enforcement activities or national defense with Thor without violating the First Amendment. Any such partnerships are within the police powers of the state and do not endorse the view that Thor is a god, but a strategic ally in times of crisis.
“FZZT” was one of the best Agents of SHIELD yet. The big legal issue presented was the legality of quarantining someone with an infectious disease that could cause a pandemic.
The Quarantine Zone
Agent Coulson had firemen and Simmons each put into quarantine over the course of the episode.
Case law going back over 100 years validates the practice of doing so to avoid a pandemic.
As United States Supreme Court Justice White said in 1902:
That from an early day the power of the States to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants has been recognized by Congress, is beyond question.
Compagnie Francaise De Navigation A Vapeur v. Louisiana State Bd. of Health, 186 U.S. 380, 387-388 (U.S. 1902).
However, there are limits.
One quarantine in San Francisco that was supposed to stop the spread of the bubonic plague covered 12 city blocks where 10,000 people lived. The area happened to be populated by Chinese-Americans. Jew Ho v. Williamson, 103 F. 10, 21-24 (C.C.D. Cal. 1900).
Circuit Judge William Morrow struck down the quarantine as “unreasonable, unjust, and oppressive” and in violation of the 14th Amendment to the United States Constitution. Jew Ho, at *26.
It must necessarily follow that, where so many have been quarantined, the danger of the spread of the disease would not diminish. The purpose of quarantine and health laws and regulations with respect to contagious and infections diseases is directed primarily to preventing the spread of such diseases among the inhabitants of localities. In this respect these laws and regulations come under the police power of the state, and may be enforced by quarantine and health officers, in the exercise of a large discretion, as circumstances may require. The more densely populated the community, the greater danger there is that the disease will spread, and hence the necessity for effectual methods of protection.
///
It must necessarily follow that, if a large section or a large territory is quarantined, intercommunication of the people within that territory will rather tend to spread the disease than to restrict it. If you place 10,000 persons in one territory, and confine them there, as they have been in prisons and other places, the spread of disease, of course, becomes increased, and the danger of such spread of disease is increased, sometimes in an alarming degree, because it is the constant communication of people that are so restrained or imprisoned that causes the spread of the disease.
///
The next most dangerous thing to do was to quarantine any considerable portion of the city, and not restrict intercommunication within the quarantined district.
Jew Ho, at *27, 35.
Jew Ho v. Williamson is a very good civil rights case that covers what is, and what is not, a proper exercise of police power in quarantining people to stop the spread of disease.
Agent Coulson’s actions in quarantining the firemen and Simmons were proper exercises of such police power.
The firemen total number of firemen quarantined was a dozen at most. This was done for not just their safety in being able to develop a cure for anyone infected, but to keep the disease from becoming a pandemic. This would meet the well-established reasons to quarantine a group of people.
Agent Coulson sealing Simmons in the science lab of the cargo bay would also have been a valid exercise of police power in quarantining someone. It was not done with “evil intent,” but because she was infected with an alien virus.
Agents of SHIELD has been a fun ride so far and continues to touch on solid legal issues. Let’s see what happens with the Thor 2 cross-over.
I love Doctor Who. A large number of people have loved the show for 50 years. Just look how Western Civilization on Twitter slowed to a crawl for the announcement of Peter Capaldi as the next Doctor.
There is one thing people have forgotten about the show: An Unearthly Child begins with three separate legal issues.
Get Off My Lawn!
The first legal issue is Ian and Barbara forced their way onto the TARDIS.
They entered uninvited in a borderline home invasion.
Trespassing is the wrongful entry on the property of another person. Westlaw Black’s 9th Law Dictionary App.
Ian and Barbara did not have permission to enter the TARDIS, making them trespassers.
As such, the Doctor owed them no duty of care, but the Doctor’s following actions would not be a valid response to trespassing.
How to End Up on a Milk Carton
The second legal issue is the Doctor kidnapping Ian and Barbara back to the Stone Age.
Kidnapping at common law was “the crime of forcibly abducting a person from his or her own country and sending the person to another.” Westlaw Black’s 9th Law Dictionary App. Effectively, the crime was false imprisonment and taking the victim to another country. Id.
This also gives new meaning to the phrase “alien abduction.”
The Doctor started the TARDIS with Ian and Barbara locked onboard with the intent of taking them out of London. Going back to the Stone Age would certainly qualify as taking Ian and Barbara out of Great Britain.
No One Should Have a Charles Dickens Childhood
Now for the third legal issue: Ian and Barbara arguably stalked Susan.
Stalking is the following of another by stealth. Westlaw Black’s 9th Law Dictionary App.
Ian and Barbara waited for Susan at her known address, entered the junkyard and hid behind some objects when the Doctor entered the yard. These actions meet the elements of stalking.
However, since Ian and Barbara were teachers who were looking out for the well-being of their student, they would have a strong defense. They were concerned she was living in a junkyard. If only Harry Potter had teachers like that for the first decade of his life, he would not have been in a cardboard under the stairs with emotionally abusive guardians.
The Day of the Doctor
Doctor Who is an extremely beloved show. I am counting down to The Day of the Doctor. However, it is rather unearthly that the first episode touched on stalking a 15 year old girl, trespassing and kidnapping.
Doctor Who The Web of Fear is one of two recently long lost Doctor Who stories featuring the Second Doctor. All but one episode was recovered from the ashes of history.
The story is noteworthy because it was the introduction of Colonel (but future Brigadier) Alistair Gordon Lethbridge-Stewart.
The villain was the Great Intelligence, who used robotic Yeti that Professor Travers brought back to England from Tibet in the 1930s in the The Abominable Snowmen. This is the second appearance of the Great Intelligence, who would reappear to battle the Eleventh Doctor in the Snowmen,TheBells of Saint Johnand The Name of the Doctor.
Most of the story took place in the London Underground. The British Army (not UNIT) fought Yeti and a big white foaming lethal fungus spreading beneath the city controlled by the Great Intelligence.
One “soldier,” purely in the academic sense, was “Driver Evans.” Evans had the unique ability to stay alive, usually by avoiding anything dangerous. This included challenging Colonel Lethbridge-Stewart’s orders with personally less hazardous suggestions. He let others volunteer for dangerous assignments so he would not be in harm’s way. Evans even stood on a chair as a control sphere rolled by so he could have a higher “vantage point.” While Lethbridge-Stewart and the other soldiers were off fighting Yeti with small-arms, grenades and bazookas, Evans was safe and sound.
Evans conduct bordered on desertion and outright cowardice. How would a soldier be court-martialed for such conduct?
It is long stand policy in the US military’s Articles of War, with its British originals, that desertion and cowardice are serious offenses. Swaim v. United States, 28 Ct. Cl. 173, 233 (Ct. Cl. 1893). Moreover, Article of War 61 prescribes that “any officer who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service,” and Article 100, that “when an officer is dismissed from the service for cowardice or fraud, the sentence shall further direct that the crime, punishment, name and place of birth of the delinquent shall be published in the newspapers in and about the camp, and in the State from which the offender came, or where he usually resides.” In re Carter, 97 F. 496, at *498 (C.C.D.N.Y. 1899) and Carter v. McClaughry, 183 U.S. 365, 395 (U.S. 1902)
Getting thrown out of the military for cowardice in the late 19th and early 20th Centuries included full on public-coward-shaming.
Circuit Judge Field summed up the 19th Century view as “desertion is the highest, and with cowardice, the basest of offenses which can be committed by men in the naval service…” Montgomery v. Bevans, 17 F. Cas. 628, 634 (C.C.D. Cal. 1871). For the sake of argument, Judge Field would likely extend that belief to the Army.
So, what do we do about Driver Evans? British Soldiers and members of UNIT seemed to have about as likely a chance to survive on Doctor Who as a Red Shirt on Star Trek.
The fact all the other soldiers get killed EXPECT Evans and the Colonel Lethbridge-Stewart highlighted this point.
Still, that does not excuse avoiding risk or being willing to sell-out others for his own safety.
Even the Doctor jumped on the back of a Yeti in a failed attempt to save a soldier.
Men in bow ties are willing to take such heroic actions.
The fact that Evans’ conduct came close to desertion while discussing escaping with Jamie and leaving the others behind, to avoiding hazardous missions, to an outright willingness to turn the Doctor over to the Great Intelligence, demonstrated cowardice numerous times. Throwing him out of the Army would be a good idea after a court-martial. Those on the front lines need to be willing to actually do their job in defending their country, not seeking self-preservation at the cost of others.
A government employee sued the Federal government because of Halloween decorations. The Plaintiff was a Pentecostal Christian and found decorations of witches offensive, because the decorations celebrated Paganism. Rosa-Ruiz v. Gonzalez-Galoffin, 2007 U.S. Dist. LEXIS 69905, at *3 (D.P.R. Sept. 20, 2007) The Plaintiff complained that the decorations in a government building violated the Establishment Clause of the First Amendment of the United States Constitution.
The First Amendment states, “Congress shall make no law respecting an establishment of religion,” United States Constitution, Amendment I, Clause 1. Rosa-Ruiz, at *9-10.
The test whether the Establishment Clause has been violated is whether, “the government practice has the effect, intentionally or unintentionally, of communicating a message of government endorsement or disapproval of religion would there be a violation of the Establishment Clause.” Rosa-Ruiz, *10.
The “Lemon test” requires Courts to determine whether the challenged law or conduct has a secular purpose, whether its primary purpose is to advance or inhibit religion, and whether it creates an excessive entanglement with religion. Rosa-Ruiz, at *10-11.
The Court held that the display of cats, goblins or a screeching mat did not convey the endorsement of a religion. The Court stated:
Such decorations, like Halloween costumes and parties, are linked to the seasonal celebration of a fun-loving tradition in which children are particularly involved in classrooms, neighborhood gatherings and trick or treating. Halloween decorations, like valentines, Easter bunnies, and egg hunts are all secular displays and activities that neither convey religious messages nor constitute religious symbols.
Halloween lost its religious and superstitious overtones long ago. It has become instead a commercial holiday enjoyed by communities in its many forms of entertainment.
The Plaintiff’s claim that the decorations violated the Establishment Clause failed, because there was nothing else to support it. Rosa-Ruiz, at *12.
Granted, if the Secretary of Health & Human Services suddenly demands tribute of the first born of each household in order for health insurance websites to work, we would have multiple legal challenges beyond the First Amendment.
Moral of the story: Having decorations or giving out candy to kids on Halloween does not make you a Pagan/Devil worshiper/foot soldier in the Army of Darkness. It might make you an enabler or tooth decay, so tell Trick or Treaters to brush their teeth.
Judges have referenced Star Trek, Star Wars and classic science fiction in court opinions for years. However, Judges are not limited to being science fiction fans. Here are several opinions where Judges looked to the spirit world for spectral jurisprudence.
I just pray none are Team Edward or Team Jacob.
Judging Intertextuality
Some Judges hauntingly command the English language:
Although a residential subdivision proposed for construction in a bucolic Rhode Island town never saw the light of day, its ghost continues to haunt the parties. But apparitions rarely have substance, and this one is no exception. After careful consideration of the plaintiff’s complaint and the district court’s order of dismissal, we lay the ghost to rest.
Marek v. State, 702 F.3d 650, 651 (1st Cir. R.I. 2012).
Discrediting a Witness
One spirit made a courtroom appearance as a admission why a witness opened a door….
Finally, in a move intended to cast doubt on Tackett’s credibility generally, the defense elicited an admission about Tackett’s initial reaction to the knock on her door at 3 a.m. Tackett confirmed a prior statement to police in which she reported that she first thought the ghost of a former occupant had made the knocking sound.
Haunted houses may be full of ghosts, goblins, and guillotines, but it’s their more prosaic features that pose the real danger. Tyler Hodges found that out when an evening shift working the ticket booth ended with him plummeting down an elevator shaft. But as these things go, this case no longer involves Mr. Hodges. Years ago he recovered from his injuries, received a settlement, and moved on. This lingering specter of a lawsuit concerns only two insurance companies and who must foot the bill. And at the end of it all, we find, there is no escape for either of them.
Western World Ins. Co. v. Markel Am. Ins. Co., 677 F.3d 1266, 1267 (10th Cir. Okla. 2012).
Ghosts of the Confederacy
Another reason why people fear jury duty: Is it wrong to tell a jury that there is the ghost of a Confederate soldier in the courthouse?
Next, Shuff argues that the district court erred in informing the jury pool during the voir dire proceeding about a legend that the ghost of a Confederate soldier haunted the courthouse. Although we ordinarily would review for abuse of discretion the manner in which the district court conducted the jury voir dire, United States v. Hsu, 364 F.3d 192, 203 (4th Cir. 2004), because Shuff did not object to the court’s telling of the legend, we review this claim for plain error only. Robinson, 627 F.3d at 953-54.
After review of the record, we conclude that Shuff fails to establish any plain error that affected his substantial rights. During the voir dire proceeding, when counsel for Shuff and the Government were deciding whether to exercise any strikes against potential jurors, the district court gave a lengthy discourse in which it described the history of the courthouse and the land on which it was situated. As part of the narrative, the court mentioned that a building on the land had been seized by the Confederacy in 1861 and that there existed a legend that a “Confederate ghost” roamed the courthouse hallways. In Shuff’s view, it was error for the court to mention the legend because, in so doing, the court necessarily conveyed to the jury pool that “someone or something [was] watching and interested in the outcome” of the trial and that the “desired outcome [of the trial was] not the freedom of a black man.” Shuff, however, fails to point to anything in the record that would support these imaginative assertions. Further, after a review of the transcript of the jury voir dire, we are satisfied that no reasonable observer would conclude that there was even the appearance that Shuff’s race played a role in the proceeding. See United States v. Kaba, 480 F.3d 152, 156-57 (2nd Cir. 2007). This claim is therefore without merit.
United States v. Shuff, 470 Fed. Appx. 158 (4th Cir. N.C. 2012).
Comic book fans around the world have been geeking out over the preview for Captain America: The Winter Soldier. The movie looks fun.
The Winter Soldier story arc in the Captain America comic was one of the best written. I normally do not care for the resurrection of characters, but this one worked. Ed Brubaker did an amazing job turning Marvel history on its head.
Captain America is one of my favorite characters. Captain America: The First Avenger is the best stand-alone comic book movie in my opinion.
Captain America represents all the positive qualities about the United States. That we are the good guys; that we stand for justice; that we do the right thing.
Cap stands in extreme contrast to Nick Fury’s shades of grey and secret wars. This nobility of purpose gave Steve Rogers the “worthiness” to use Thor’s Hammer in battle in Thor #390 (Besides Beta Ray Bill and a teenager named Dargo in story that took place in 2587 in Thor #384).
I am expecting that to happen in Avengers 3.
Since It Is a Comic…
When Captain America joined the Avengers in the 1960s, his sidekick Bucky had been killed trying to stop a drone with a warhead on it in the final days of World War II. Captain America fell into the icy waters to be frozen for decades until the Sub-Mariner threw the block of ice with Cap into the ocean to be found by the Avengers in the 1960s (which tends to get updated every 20 years, so our heroes are not in their 70s to 90s). Bucky did not let go did not let go of the drone and was killed.
Winter Soldier re-wrote what was established comic book history.
The story centered on former Soviet General Alexander Lukin. Lukin is not happy the Soviet Union lost the Cold War.
Lukin ran a global company named Kronas Corporation as a front for his plans of domination by killing the Red Skull whose spirit was in a clone of Steve Rogers to get an artificial Cosmic Cube.
Lukin was a boy during World War II in the Russian town of Kronas. The town was destroyed in a battle between the Red Skull and the Invaders. Lukin was rescued by Vasily Karpov, who ran Soviet assassinations with advanced weapons during the Cold War.
Karpov was in a stealth Soviet submarine when Cap and Bucky were “killed.” Karpov recovered Bucky’s heavily injured frozen body missing his left arm.
The Soviets kept Bucky in suspended animation and added a bionic left arm. The Soviets would awaken Bucky over 60 years, and due to memory loss from his injuries, reprogram him with orders to kill political targets. Bucky killed the following under the code name Winter Soldier:
November 5, 1954: Three US soldiers in Berlin as a field test;
January 11, 1955: Entire UN Diplomatic Negotiation Team in Cairo;
May 14, 1955: NATO General James Keller;
January 1, 1956: British Ambassador Dalton Graines in Madripoor;
April 1, 1956: French Defense Minister Jacques Dupuy;
May 12, 1956: Algerian Peace Conference Envoy in Paris;
February 17, 1957: US Colonel Jefferson Hart in Mexico City; and
March 12, 1973: US Senator Harry Baxtor
Later comics tell of other operations, but those are the initial ones in the original story. The following comics include the Winter Soldier training the Black Widow and a relationship with her.
The Winter Soldier story arc is heavy on espionage with Nick Fury, Sharon Carter and SHIELD. The story began a several years arc, including Civil War and its aftermath.
Cap’s morality is highlighted in Winter Soldier. Instead of thinking he had to kill the Winter Soldier, the issue was how to rescue Bucky from being the Winter Soldier.
Now That You’re Rescued…
Bucky’s decades of killings as a Soviet agent raises many legal issues.
Could Bucky be convicted for crimes he committed as the Winter Soldier? This would become a big issue when Bucky as Captain America was put on trial.
As discussed in Skye Fall, treason is crime of treason as “levying War against them [The United States], or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” United States Constitution, Article III, Section 3.
A Prosecutor could argue that Bucky as the Winter Soldier physically did commit acts of treason against the United States. The death toll includes soldiers, allied statesmen, a US Senator and a large number of people in Philadelphia to use death to fuel a Cosmic Cube.
Bucky would have a solid insanity defense against charges of treason and murder. The California Jury Instructions state the following on the determining whether a Defendant is legally insane:
The defendant was legally insane if:
1. When (he/she) committed the crime[s], (he/she) had a mental disease or defect;
AND
2. Because of that disease or defect, (he/she) was incapable of knowing or understanding the nature and quality of (his/her) act or was incapable of knowing or understanding that (his/her) act was morally or legally wrong.
None of the following qualify as a mental disease or defect for purposes of an insanity defense: personality disorder, adjustment disorder, seizure disorder, or an abnormality of personality or character made apparent only by a series of criminal or antisocial acts.
2-3400 CALCRIM 3450.
Bucky’s higher brain functions were destroyed in the closing days of World War II. The Soviets reprogrammed him each time he was awaken from suspended animation. He was literally a blank slate. It was not until Captain America used the Cosmic Cube to restore Bucky’s memory that he remembered who he was. As such, Bucky was incapable of knowing his actions were murderous treason.
Bucky should be able to afford a very good defense team. He would have an excellent argument that he was a POW held by the Soviets since 1945 (or was MIA). As such, he would be entitled to back-pay under the Missing Persons Act, 37 U.S.C. §§ 551-558.
How will the movie Captain America: Winter Soldier play out? I do not know. Let’s wait to April 4, 2014 and enjoy the movie.
The “Lemon test” requires Courts to determine whether the challenged law or conduct has a secular purpose, whether its primary purpose is to advance or inhibit religion, and whether it creates an excessive entanglement with religion. Rosa-Ruiz, at *10-11.
As to the first element, Thor fighting invading alien armies has the secular purpose of stopping a US city from being destroyed and the enslavement of the human race. The purpose of Thor’s actions is clearly defensive in nature for the protection of all of mankind, thus promoting a secular purpose.
