In Requiem Tom Clancy

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October 2, 2013

Tom Clancy was an amazing author whose books made the US military and espionage services look like the heroes they always were. I wish his family the deepest respects and condolences on his passing.

I read the Hunt for Red October while in elementary school in the 1980s. I had a “recovery goal” of seeing the film in 1990 after being hospitalized for an extended period. My desire to see the film was a significant motivator in recovering from major surgery and a near fatal medical condition. I am not ashamed to say the 15 year old version of me wanted to stay alive to see The Hunt for Red October.

I just wish they could have had Red October ram the V. K. Konovalov like in the book. Or the Russians crying over watching E.T.

I read Clear and Present Danger while in a hospital bed for a month. I had a much happier time reading Without Remorse during the summer of 1993, despite the serious due process issues presented in the story.

Tom Clancy will live on in his many good books. Thank you sir for inspiring those who serve our country and showing them as heroes.

Attorneys of S.H.I.E.L.D.

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Josh Gilliland

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September 30, 2013

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Jessica Mederson and Josh Gilliland geek out and talk about the Agents of S.H.I.E.L.D. pilot. Josh discusses comics in the 1980s, plus other classic story lines. Jess shares a theory on Buffy the Vampire Slayer and Josh maintained his desire to keep geek universes separate.

Amber Schroader Gets Her Geek on for PFIC 2013

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Josh Gilliland

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September 27, 2013

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Amber Schroader, CEO of Paraben Corporation, sat down with Josh Gilliland to talk about the Paraben Forensic Innovation Conference, eDiscovery, computer forensics and being a geek.

Agents of S.H.I.E.L.D. Is a Joy Ride, Just Not For The Constitution

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Josh Gilliland

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September 25, 2013

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It is time to take your Infinity Serum and put on your eyepatch. Agents of S.H.I.E.L.D. is an absolute delight to have on TV.

Just one little thing: those spies had no clue about upholding the Constitution. They need a lawyer on the team. I have a law degree, bow tie and eyepatch if you need me.

I have loved S.H.I.E.L.D. since there were two Germanys and the fear of a nuclear war. Back in the “good old days,” S.H.I.E.L.D. villains included Hydra, AIM, terrorists and…..Godzilla.

No, seriously, in the 1970s S.H.I.E.L.D. fought Godzilla. I have the comics. Honest.

S.H.I.E.L.D. has also been its own worse enemy, such as in Nick Fury, Ex-Agent of S.H.I.E.L.D.; to Fury’s private little war that branded him a traitor; to going in the wrong direction in Marvel’s Civil War; to being heavily compromised in Secret Invasion; and to being the tool of Norman Osborn’s police state in Dark Reign.

Let’s get back to the TV show.

Agents of S.H.I.E.L.D. is one heck of a fun ride. However, I was rather concerned with the lack of any respect for the US Constitution in the first episode.

Here is what bothered me:

Skye is exercising her First Amendment rights to blog/podcast about her concerns of the treatment of “super-heroes” in what she called the “Rising Tide.”

Agents Coulson and Ward find Skye’s location in a parked van, place a bag over her head and take her into custody. No mention of whether they had a warrant to track her.

There was no, “you are under arrest” or even a hint of what laws she violated. Furthermore, Miranda Rights were not read to her.

Skye’s arrest looked more like a kidnapping by a government spy agency for a citizen exercising her First Amendment rights.

The ACLU, Libertarians, and anyone with a law degree should be saying, “WWWWWAIIIITTT a minute.”

No one in the United States is arrested with a bag over their head, no statement on why they are being arrested and no mention of rights. That is how the KGB and Gestapo used to do business.

Coulson and Ward could have properly arrested Skye for hacking into S.H.I.E.L.D., obtaining classified information and possibly broadcasting that information.

Hacking into a top secret government agency would justify an arrest for violating a phone book worth of laws. S.H.I.E.L.D. had valid reasons for arresting Skye, but the arrest instead had all the hallmarks of a kidnapping that violated the 4th, 5th and 6th Amendments to the US Constitution.

S.H.I.E.L.D. [in the TV show] stands for Strategic Homeland Intervention, Enforcement and Logistics Division. If S.H.I.E.L.D. is a law enforcement agency, they need to comply with getting search warrants on US Citizens and must conduct proper arrests pursuant to the US Constitution. If S.H.I.E.L.D. is functioning more as a the spy agency, that raises all sorts of issues of domestic espionage.

By way of comparison, the CIA is specifically prohibited from conducting domestic spying. Here is the statement from the CIA website:

CIA’s mission is to collect information related to foreign intelligence and foreign counterintelligence. By law, the CIA is specifically prohibited from collecting intelligence concerning the domestic activities of U.S. citizens. By direction of the President in Executive Order 12333, as amended, and in accordance with procedures approved by the Attorney General, the CIA is restricted in the collection of intelligence information directed against U.S. citizens. Collection is allowed only for an authorized intelligence purpose; for example, if there is a reason to believe that an individual is involved in espionage or international terrorist activities. The CIA’s procedures require senior approval for any such collection that is allowed, and, depending on the collection technique employed, the sanction of the Director of National Intelligence and Attorney General may be required. These restrictions on the CIA, or similar ones, have been in effect since the 1970s.

Level 7 Clearance and the Constitution

I absolutely loved the first episode of S.H.I.E.L.D. Great pace, fun characters and it is a treat to see a comic book come to life. The fanboy in me believes that Agent Coulson is really a Life Model Decoy (LMD), but we will see how that plays out.

More importantly, we had the classic Nick Fury flying car, which I believe long predates Doc Brown’s in Back to the Future by 20 years.

Just please, have the good guys follow the Constitution. I will waive my hourly rate and sign an NDA if you want to bounce a Con Law question off of me.

Doc Brown & Train Wrecking in Back to the Future Part 3

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Josh Gilliland

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September 23, 2013

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There will always be a place in my heart for Back to the Future. Who doesn’t like saying “88 miles per hour,” or “1.21 gigawatts”?

But Great Scott, Doc Brown would be a wanted man in at least two different centuries. Blowing up trains and promising terrorists you will make a nuclear bomb have substantial legal consequences. There is no “science experiment” defense.

Old California Justice is Really Heavy

There is little doubt that California Governor George Stoneman would have sent troops to capture Doc Brown after stealing and blowing up a train in the name of science.

There were just too many witnesses in Hill Valley who watched Marty & Doc flee the scene after the fight with Mad Dog Tannen to not connect the train robbery to them. Exhibit A to the fact people knew Marty McFly was involved was the fact that Shonash Ravine was renamed Eastwood Ravine (Marty McFly’s alias in 1885). Connecting the dots to Doc Brown would not be hard, especially if anyone found Doc’s not-to-scale model in his shop.

The most on point California law to prosecute Doc Brown was not enacted until 1891, six years after the destruction of Locomotive 131 at Eastwood Ravine. California Penal Code § 218 specifically addresses “train wrecking” and “acts intended to wreck.” The law states:

Every person who unlawfully throws out a switch, removes a rail, or places any obstruction on any railroad with the intention of derailing any passenger, freight or other train, car or engine, or who unlawfully places any dynamite or other explosive material or any other obstruction upon or near the track of any railroad with the intention of blowing up or derailing any such train, car or engine, or who unlawfully sets fire to any railroad bridge or trestle, over which any such train, car or engine must pass with the intention of wrecking such train, car or engine, is guilty of a felony, and shall be punished by imprisonment in the state prison for life without possibility of parole.

Cal Pen Code § 218.

There is no question that Doc Brown and his co-conspirator Marty McFly threw the train switch with the intent of destroying Locomotive 131 at Shonash Ravine. If Cal Pen Code § 218 had been in effect in 1885, Doc and Marty both would have been charged under this statute.

In 1885, Doc Brown would have been charged under California Penal Code § 587, which prohibits injuries to railroads and railroad structures. The code states:

Every person who maliciously does either of the following is punishable by imprisonment pursuant to subdivision (h) of Section 1170, or imprisonment in a county jail not exceeding one year:

(a) Removes, displaces, injures, or destroys any part of any railroad, whether for steam or horse cars, or any track of any railroad, or any branch or branchway, switch, turnout, bridge, viaduct, culvert, embankment, station house, or other structure or fixture, or any part thereof, attached to or connected with any railroad.

(b) Places any obstruction upon the rails or track of any railroad, or of any switch, branch, branchway, or turnout connected with any railroad.

The law was enacted in 1872 and is still in effect in 2013. The annotated code further states:

Under Pen C § 587, making it a crime for any person to maliciously place an obstruction on the rails or track of any railroad, the intent required for a violation is the intent to place an obstruction on the rails or tracks of the railroad, and the malice required is that which would negate an accidental and unintended obstruction. Thus, in a prosecution for violation of the statute, the court’s refusal to instruct that violation required specific intent was not error. People v. Bohmer (1975, Cal App 4th Dist) 46 Cal App 3d 185, 120 Cal Rptr 136, 1975 Cal App LEXIS 1765, cert den (1975) 423 US 990, 46 L Ed 2d 308, 96 S Ct 402, 1975 US LEXIS 3463.

Point of No Return to Court

Doc Brown and Marty McFly placed the DeLorean on the train tracks with the intention of pushing the Time Machine to the uncompleted tracks at Shonash Ravine. These facts should be enough to warrant charges under Cal Pen Code § 587. While this 1872 statute is not as on point as Cal Pen Code § 218 for the offense of train wrecking, Doc Brown could be charged and convicted of violating § 587 in 1885.

Double Back to 1985

The DeLorean’s destruction by the freight train creates a legal paradox that spins “proximate cause” in Palsgraf v Long Island Railroad right on its turntable.

Here are the legally relevant, and temporal, facts:

Marty McFly & Doc Brown placed the DeLorean on the train tracks in 1885

Marty & Doc intended to destroy Locomotive 131 in 1885

Marty returned to 1985 on same train tracks after the destruction of Locomotive 131

DeLorean destroyed by freight train in 1985

Would there be criminal liability in 1985 for the DeLorean being run over the freight train? Was there any danger of a train derailment or explosion? Cal Pen Code § 218 and § 587 are still in effect, thus creating interesting legal analysis.

The issue comes down to intent on whether Marty McFly could be charged under Cal Pen Code § 218.

Marty and Doc had the intent to destroy Locomotive 131 in 1885. They did not the malicious intent for the DeLorean to be hit by a train in 1985.

Would the intent of the 1885 conspiracy transfer to 1985 as one continuous event under the law for violating Cal Pen Code § 218?

The Hill Valley District Attorney could legally argue yes, since time was relative to Marty.

McFly was traveling in a fusion powered time machine on train tracks. It is foreseeable that a train could also be traveling on the same train tracks as the DeLorean at the same time.

However, there would be a very strong statute of limitations defense against § 218, because the events of 1885 were 100 years in the past, long past the time to prosecute Doc & Marty for the destruction of Locomotive 131 (Never mind the fact the witnesses were all dead and the DA would have to rely on 100 year old documents). There was no intent to derail a train in 1985, thus making the issue one of reckless driving, negligence by placing a car with a fusion powered device from the future on active railroad tracks, or possibly a violation of § 587(b) by placing the DeLorean on train tracks as an obstruction, if malice could be implied by the act of placing the car on the train tracks.

George McFly & the Defense of Others in Back to the Future

By

Josh Gilliland

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September 19, 2013

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Hey you, get your damn hands off her.

I think you got the wrong car McFly.

No Biff, you leave her alone.

George McFly knocking out Biff Tannen during the rescue of Lorraine Baines is one of the most memorable scenes in Back to the Future.

George represented the quintessential wimp who found his backbone against his tormentor when the girl of his destiny was in danger.

DeLoreans and gigawatts aside, it is time to go where Doc Brown never traveled to: inside a courtroom at the Courthouse.

Was George McFly in the legal right to knock out Biff Tannen? Could Biff press charges because George was the aggressor for throwing a punch at Biff? Did George violate California Penal Code section 242 by committing battery on Biff?

The answer is No.

Moreover, Biff should be tried as an adult and go to prison.

Make Like a Tree & Go to Jail

George McFly has an extremely powerful legal defense against Biff Tannen: George saved Lorraine Baines from Biff committing sexual battery on her.

George interrupted Biff’s sexual battery of Lorraine (if not outright attempted rape). A Court would find under California law that 1) Biff intended to cause a harmful contact with Lorraine’s body that resulted in sexually offensive contact; 2) that Lorraine did not consent to the touching; and 3) that Lorraine was harmed by Biff’s conduct. California Jury Instructions 1306 Sexual Battery–Essential Factual Elements.

The facts clearly show Biff was caught committing sexual battery on Lorraine. Biff had his hand up Lorraine’s skirt to engage in inappropriate touching. Lorraine did not consent to the touching, as evidence from her physically resisting Biff and asking George for help; and Lorraine was harmed by Biff, again evidence by the struggle in the car.

All of these facts show Biff Tannen was engaged in criminal conduct causing actual harm Lorraine Baines.

The Power of Love (And the Defense of Others)

The law does not require anyone to rescue another. There are no hue and cry laws in the United States compelling anyone to take action when a crime is in progress.

If George McFly was either prosecuted or sued for being the aggressor in the attack on Biff Tannen, his attorney would effectively be able to argue George acted in the defense of Lorraine Baines. The “defense of others” defense is part of the concept of self-defense, which dates back to 1872 and the passage of California Civil Code § 50. The Code states:

Any necessary force may be used to protect from wrongful injury the person or property of oneself, or of a wife, husband, child, parent, or other relative, or member of one’s family, or of a ward, servant, master, or guest.

As a preliminary matter, would the defense of others apply to George and Lorraine? Yes, even though they were only classmates and not yet married in 1955. The jury instructions and case law do not require a family relationship. For example, in the 1986 case of People v. Kirk, 192 Cal. App. 3d Supp. 15, (Cal. App. Dep’t Super. Ct. 1986), a man who thought a woman was being raped in a car was entitled to argue he acted in defense of others for drawing a gun on the possible rapist to allow the woman to get away.

To prove George acted in the defense of Lorraine, George must prove that he 1) reasonably believed that Lorraine was in imminent danger of being touched unlawfully; 2) George reasonably believed that the immediate use of force was necessary to defend against that danger; and 3) George only used the amount of force that was reasonably necessary to protect Lorraine and himself. 2-3400 CALCRIM 3470.

George witnessed Biff engaged in the act of committing sexual battery on Lorraine. George could reasonably believe that Lorraine was in danger based on what he witnessed and Lorraine specifically requesting help.

The physical altercation between Biff and George was immediately after George told Biff to “leave her alone.” While Biff did tower over George, it was George who threw the first [failed] punch.

The situation slightly shifts from defense of Lorraine to self-defense as Biff started twisting George’s arm around his back. Lorraine’s action of jumping upon Biff and hitting him would also be in the defense of others defense, because Lorraine was attempting to rescue her rescuer. The shifting fight does not degrade into mutual combat, because of the timing from George’s first demand on Biff to not harm Lorraine to the final punch.

George’s knock out blow to Biff would squarely fall under the defense of others jury instructions, because the entire encounter centered on protecting Lorraine from Biff’s battery. While there were times when George was the one in danger, this was all because he was trying to save Lorraine. The entire sequence of events must be viewed as one event, which all relates back to George acting in defense of Lorraine from Biff.

George only used the force necessary to stop Biff, as evidenced by George taking Lorraine to the safety of the Enchantment Under the Sea Dance after knocking out Biff. This would meet the final requirement of the jury instructions.

The police should have been called by the school and Biff arrested. However, the amount of time it would have taken for George and Lorraine to give their witness statements would have precluded them from going to the dance, having their first kiss and falling in love. This would have caused Marty McFly to cease to exist, which possibly would have caused a universe ending paradox because of his involvement in the events leading up to George knocking out Biff.

The Flux Capacitor of Justice

Back to the Future is perhaps the only family comedy that involves a character being rescued from sexual battery. It is almost like viewers recognize the extreme wrong that is happening, but our only acknowledgement of it is wanting George to save Lorraine.

The severity of Biff’s criminal conduct truly makes George’s actions all the more important. George did not turn and run. He recognized the look of terror on Lorraine’s face and stopped Biff from doing more harm.

There is no question George McFly did the right thing in knocking out Biff.

The character’s actions were not just morally right, but no judge or jury would let Biff prevail in a case against George McFly.

That being said, it is very odd that the George & Lorraine McFly ever employed Biff to work on the family’s cars.

One would expect Biff to have a lifetime restraining order to stay away from the McFlys.

However, there is a special justice to a bully’s life reduced to waxing cars.

Constitution Day

By

Josh Gilliland

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September 17, 2013

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September 17, 2013 marks the 226 anniversary of the United States Constitution. Every President, Congressman, Senator, Judge, Soldier, Sailor, Civil Servant and Attorney has taken an oath to uphold and defend this document.

I always stand a little taller whenever I hear:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Constitution Day is just as important and the 4th of July. The Declaration of Independence was the kick-off to our country becoming the United States of America, but we would not be the United States of America without the Constitution. It is literally the document that binds us together, ensuring each of us are protected under the laws of the United States.

We also should never forget those who paid with their lives to defend our Constitution.

The History Geek

We briefly experimented with the Articles of Confederation after the Revolutionary War. It was a long lesson of how not to have a government. The Articles of Confederation were a failed experiment due to the inability to have any sort of national unity, the ability to tax or pay off debt. If left in place would have caused nothing by disunity, as states became their own nation-states.

Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint.

Alexander Hamilton, The Federalist Papers, No 15, December 1, 1787

We Americans are a funny lot. The Constitutional Convention gathered with the intent to fix the Articles of Confederation, not draft a new Constitution. The fact this was pulled off is an impressive testimonial to James Wilson, James Madison and the other Founding Fathers. Somehow, Ben Franklin did not leak the Convention’s plans while drinking.

Nothing in America gets done without debate and usually name-calling. James Madison, Alexander Hamilton and John Jay wrote the Federalist Papers arguing for the Constitution under the pen name Publius. Ironically, one of the complaints was the fact the Constitution’s preamble said “We the People” and not “We the States.”

What is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.

James Madison, The Federalist Papers, No. 51, February 6, 1788

The ratification battle was won, but the first order of business for the first Congress was establishing the Bill of Rights to ensure greater protection of personal liberty.

The Legal Geek

Why should we celebrate Constitution Day? Because many of our rights as US citizens are completely misunderstood by many of our countrymen. There is also the very real fear many of our rights are being eroded.

Justice is indiscriminately due to all, without regard to numbers, wealth, or rank.

Chief Justice John Jay, Georgia v. Brailsford, 1794

Case in point: After the Boston Bombing, a self-identified liberal told me that “foreigners” do not deserve the right to counsel or a trial. She did not care the suspect in the attack was a naturalized US citizen. The Constitution should not apply to “them” in her worldview.

No, No and No. The Constitution protects everyone in the United States. Even the people we do not like that are charged with crimes. You have the right to be protected from unlawful searches; the right against self-incrimination; the right to counsel if charged by the state or Federal government; and the right to a trial. These rights are not simply suspended out of anger or fear. These rights must be applied to all, to ensure that no one is denied the equal protection and due process of law.

There is another issue: the expanding powers of the Government in the name of law enforcement and security. We have seen government agencies, both Federal and state, decide for themselves that the 4th Amendment does not apply to them. These cases include: U.S. v Pineda-Moreno 2010 U.S.App. Lexis 16708 (Aug. 12, 2010), where a GPS tracking device was put on a car parked by the police on a driveway without a warrant; the DEA’s Hemisphere Project, where AT&T employees paid by the DEA turn over call history via an administrative subpoena issued by the DEA, not a judge; to 1.5 million Americans being subject to a single search warrant issued by a secret court.

I did alright in both Criminal Procedure & Constitutional Law. I always thought the text of the 4th Amendment was pretty clear when it came to probable cause and warrants:

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.

If law enforcement has probable cause, then get a warrant. That being said, I am still stunned there was one warrant to cover 1.5 million U.S. citizens.

Our Constitution is supposed to protect every US Citizen and those in the United States. It is not selectively applied. We attorneys have a duty to help educate the public on our rights. We also have a lot of work to do ourselves in ensuring all of our rights are protected. We do not want to wake up one morning to see our justice system has mutated into the Cyber-Star Chamber that would fit better in Oceania and not America.

So, my fellow attorneys sing the praises of our Constitution to your friends and neighbors. Never be afraid to fight for the Constitution. After all, we took an oath to uphold and defend it.

Back to the History Geek

September 17 is of historical note for the Civil War battle Antietam; Operation Market Garden in World War II; and the roll out of the Space Shuttle Enterprise. Of less historic note is it is also my birthday.