Flash’s Liability for Breaking Windows

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November 20, 2014

The Flash is the fastest man alive. What happens when the Flash runs so fast that he shatters windows on cars and houses from his super speed?

The answer is the Flash could be sued in small claims court on a theory of Res Ipsa Loquitur.

Long ago, before the first Crisis on Infinite Earths, a person in New York sued Air France for a total of $127.20 ($333.09 in 2014 adjusted for inflation) for breaking windows on the house from an overflight in small claims court. Faby v Air France, 113 Misc 2d 840, 846 [Civ Ct, Bronx County 1982].

There are cases that impose liability for aircraft exceeding the speed of sound, thus creating a sonic boom, which is a “mechanical phenomenon of the air that consists of pressure and sound waves generated by an object moving through the air at speed equal to or exceeding that of sound.” Faby at *842-843, citing 8 Am Jur 2d, Aviation, § 125, at pp 509-510.

Air France argued that since they were flying below the speed of sound, liability could not be imposed. The Court disagreed, explaining that in negligence the doctrine of res ipsa loquitur (or the thing speaks for itself, for those who do not know Latin) had been applied “frequently in aircraft accident litigation. Faby at *843.

Applying the doctrine of Res Ipsa Loquituri to the Flash, we can see the same logic would hold the Flash responsible for the property damage for his high speed running, with or without exceeding the speed of sound:

(1) Exclusive control and management of Speed Force. Barry Allen can control how fast he runs and where he runs.

(2) Damage would not have occurred in the absence of the negligent operation of the Flash running in Central City. The Flash running around the residential areas of Central City and parked cars results in windows breaking. If the Flash was not running around the cars and homes, there would be no broken glass. Moreover, red light camera footage should be able to capture a “flash” around the breaking windows.

(3) Defendant had superior knowledge or means of information as to the cause of the injury. The Flash would know his high speed running is the cause of window damage around Central City.

(4) The occurrence is not fully explained by the evidence. In explaining and filling the gap between the breaking windows and the Flash’s running, “reliance must be bridged, through use of circumstantial evidence, or through a res ipsa loquitur inference.”

(5) Burden of rebutting inference. There is no evidence the Flash could offer to show some other event was causing windows to explode the same time he was running past the aforementioned property.

[Res Ipsa Loquitur analysis from Faby, at *844-845].

The Flash would have a large number of home and car owners seeking damages from him for broken glass in small claims court. Granted, these parties would have a difficult time with service or process, and likely would need to serve the Flash by publication.

No Going Back for Grant Ward Now

By

Josh Gilliland

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November 19, 2014

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Grant Ward did not just kill his brother; Ward killed a [fictional] United States Senator.

Grant Ward already has a huge list of victims that would be a series of long murder and treason trials. Kidnapping and murdering a United States Senator has its own enhanced punishments in Federal Court. Federal law states that anyone who kidnaps and kills a United States Senator (or member of Congress or the Executive Branch) shall be punished by death or imprisonment up to life. 18 USCS § 351(b)(2).

Grant Ward beat Senator Ward, killed at least two guards, and tortured the Senator with the forced digging up of a buried well, followed by threats to throw the Senator down the well.

Federal Prosecutors could prove beyond a reasonable doubt that Grant Ward killed his brother with malice aforethought that included kidnapping and torture. 18 USCS § 1111.

There is very little a defense attorney could do for Grant Ward, other than try plea-bargaining for life in prison over the death penalty. Given the number of people Ward killed (at least five SHIELD Agents, four soldiers, two guards, and a Senator) plus the charges for treason by working with HYDRA, it is hard to imagine a Prosecutor even entertaining the idea of a plea; the literal bodies of evidence should end a trial with the death penalty for Grant Ward.

Can DA’s Flip Coins? The Ethics of Harvey Dent

By

Josh Gilliland

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November 18, 2014

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Harvey Dent. The District Attorney who will one day be the villain Two-Face. This lawyer and future super-villain is a case study of prosecutorial responsibilities and attorney ethics on Gotham.

Here are the relevant facts: Jim Gordon took Selina Kyle into protective custody as a witness in the Wayne murder. Gordon attempted to keep Kyle off the grid and away from dirty cops, who would leak her whereabouts, thus sequestered her in “stately” Wayne Manor.

Jim Gordon met Harvey Dent outside the courthouse where Dent elected not to prosecute a minor based on a coin toss and a promise to stay out of trouble. During the closed-door meeting, Dent shared his theory on a possible suspect in the Wayne murder, an extremely wealthy (and corrupt) businessman named Dick Lovecraft with an army of lawyers.

Dent’s plan was to leak there was a witness linking Lovecraft to the “secret witness” with no evidence. No charges were to be filed and no names were to be made public, but using the threat of a witness to force confessions or shake out the real party involved in the Wayne murder.

Duties of a Prosecutor

In New York state, since Gotham City looks a lot like New York City in a pre-Rudy Giuliani nightmare, a prosecutor “shall not institute, cause to be instituted or maintain a criminal charge” when they know there is no probable cause to support a charge against someone. NY CLS Jud Appx R 3.8.

The ABA Model Rules of Professional Conduct Rule 3.6 also provide limitations on what lawyers can say to the press (provided the state incorporated the model rules). Lawyers shall NOT “make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” ABA Model Rules of Professional Conduct Rule 3.6(a).

Lawyers can disclose to the press information that is public record, or the matter is in progress, plus information such as whether the accused was arrested, the time of arrest, investigating officers, and length of the investigation. ABA Model Rules of Professional Conduct Rule 3.6(b).

District Attorneys also have “prosecutorial discretion” in “determining when and in what manner to prosecute a suspected offender” People v. Harper, 186 Misc. 2d 750, 755 (N.Y. City Ct.2000), citing People v Di Falco, 44 NY2d 482, 486. Moreover, “almost invariably it is the prosecutor who decides whether a case is to be pressed or dropped and what the nature of the specific offense or offenses to be lodged against a defendant is to be” Harper, at *755, citing People v Zimmer, 51 NY2d 390, 394; see also, Matter of Bytner v Greenberg, 214 AD2d 931).

Did Harvey Dent Violate His Duties as a Prosecutor?

Some lawyers will have to flip a coin on whether Dent violated his duty as a prosecutor. Others see the issues with moral clarity.

It was within Dent’s prosecutorial discretion to not press charges against the youth outside the courthouse. While the Mayor did bring back the 19^th century practice of arresting children for being orphans or vagrants to be interned in “orphan asylum,” there is nothing that said such prosecutions were required to put children in protective custody. (See People ex rel. Horton v Fuller, 41 AD 404, 404 [2nd Dept 1899] and People ex rel. Van Heck v. New York Catholic Protectory, 101 N.Y. 195, 200(N.Y.1886)).

Harvey Dent’s coin toss was merely an act to encourage the youth to go back on the straight and narrow path. Moreover, given the fact the coin had two heads, the odds were in Dent’s favor the youth would act as Dent predicted. Non-conventional, but it does not seem to violate Dent’s duties as a prosecutor.

The same cannot be said for threatening Dick Lovecraft with criminal prosecution. Harvey Dent did not have any probable cause to bring Lovecraft in for questioning, let alone attempting to get him to sign a confession. Furthermore, Dent snapping in rage would have been assault, followed by battery when Dent placed his hands on Lovecraft.

Dent would be pushing his luck with publishing anything beyond there was a witness in the Wayne murder and the investigation was ongoing. Other than that, Dent’s ability to use the press would be limited, without committing defamation on those without any probable cause to suspect them of a crime.

Hit Me With a Bagel and You Can Kiss Me

There are 12-year-old males who would practice throwing bagels (and other Danishes) at targets for a kiss from a girl. While Selina Kyle made an oral contractual offer requiring the condition precedent of Bruce Wayne successfully throwing a bagel at her for a kiss, such a performance contract would be unenforceable and against public policy. Yes, consideration for a contract can be a bagel just as much as it could be a peppercorn, but we just cannot have food fights for kisses that go to court seeking specific performance as a remedy for assault with a bagel.

Sorry guys.

Now, anyone want to place bets whether Sean Pertwee will throw someone over his shoulder like his father used to on Doctor Who?

Who You Gonna Call? 1-800-LawRocks

By

Jessica_alegalgeek

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November 15, 2014

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Lawyers have the best ads. Seriously. And I’m not even talking about the William Shatner ads (although Captain Kirk’s connections to the legal profession are impressive). On a quiet, snowy Friday evening (such as this one), it is a ton of fun to cruise YouTube looking for excellent examples of legal advertising (do I know how to party or what?). And so I decided to share some of my favorites with you, with a brief discussion of a Supreme Court case and a few model rules thrown in to make it look like I’m actually working here.

Before I discuss the Supreme Court’s view on legal advertising, let me share with you one creative lawyer’s ad:

http://youtu.be/5KfACTAOPa0

Yep, that’s a real ad for a real attorney. Possibly one of the most famous legal ads around. And in 1977 the Supreme Court upheld his right to make it. In Bates v. State Bar of Arizona, the Supreme Court held that lawyer advertising was entitled to protection under the First Amendment as commercial speech. Prior to that (at least in the 20th century), it was generally believed that lawyers shouldn’t advertise, although there was some advertising in the 1800s.

Now let’s take a break for a singing commercial…

Most, if not all, states have rules governing these types of communications regarding lawyers’ services. The ABA has provided model rules on these issues that have been used by some states.

The ABA’s Rule 7.1 (Communications concerning a lawyer’s services) says that: A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

And now here’s a lawyer who’s giving you the blunt truth on family law:

ABA Rule 7.2 says that advertising, so long as it complies with the other rules, is okay through written, recorded, or electronic communication, including public media.

So, thanks to the Supreme Court and the state rules, these lawyers can help make the rest of us look as cool on the outside as we feel on the inside!

Stealing Corpses and Obstruction of Justice

By

Josh Gilliland

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November 13, 2014

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Was Skye correct in the Agents of SHIELD episode “The Writing on the Wall,” when she said they broke fourteen laws breaking into the home of a victim? Skye might be right. Let’s count.

Director Coulson and Agent Skye entered the first victim’s upstate New York apartment, which was a crime scene. The act of knowingly entering unlawfully the home would be a trespass. NY CLS Penal § 140.05. However, if they entered the property with the intent to take an item, Skye and Coulson would have committed burglary. NY CLS Penal § 140.25.

If Coulson and Skye took the victim’s artwork any other property, they would have committed burglary. There is no question the act of entering the property was a trespass.

The victim’s home was also a crime scene. The purpose of a crime scene is to maintain evidence. Taking evidence from the crime scene arguably is the obstruction of justice, because it “obstructs, impairs, or prevents” the administration of law enforcement. NY CLS Penal § 195.05.

Mack and Fitz acted under Director Coulson’s instructions and stole the body of the first victim from the morgue. It possible an autopsy had been performed by law enforcement, but that was highly unlikely.

The act of taking the corpse could be trespass into the county morgue and obstruction of justice for taking the victim’s body, because it deprived the police of evidence (in this case, the body with ritualistic markings).

There is a significant amount of case law on handling dead bodies, grave robbing, desecration of corpses, medical experimentation on dead bodies, and unauthorized autopsies.

So the question: can you steal a corpse? The short answer is literally yes, you can take a body, but things get funky fast.

Under common law, the great Lord Coke stated in the 17^th Century that a “corpse has no value.” Colavito v. New York Organ Donor Network, Inc., 8 N.Y.3d 43, 50-51 (N.Y.2006). Moreover, “ancestors, ‘nor can [an heir] bring any civil action against such as indecently at least, if not impiously, violate and disturb their remains, when dead and buried.'” Id.

New York also has cases that address the proper treatment of corpses, specifically that those handling a corpse have a high standard of care “and that breach of the duty of care by one who undertakes to provide care of a corpse is prima facie negligence, and thus tantamount to strict liability.” Whack v. St. Mary’s Hosp. of Brooklyn, 2003 N.Y. Misc. LEXIS 50, 10-11(N.Y. Civ. Ct.Jan. 22, 2003).

The classic case would be a hospital that had a freezer fail, allowing a corpse to rot. However, this is not the exact case with Mack and Fitz. There could be a claim against the morgue for letting the body “disappear,” but the victim did not have any living family members who would sue. Obstruction of justice would be the likely crime for stealing the corpse, followed by an unauthorized autopsy, and desecration of a corpse.

Simmons performed an unauthorized autopsy on the victim, not because she wasn’t a doctor, but because there is no color of law for her to perform an autopsy. Since Simmons knew the body was stolen and SHIELD is acting as vigilantes, albeit aligned with a US Senator in tracking down his brother, Simmons could not argue she performed the autopsy in good faith under the law. NY CLS Pub Health § 4210-b.

There are at least eight or nine charges that could be brought from initially trespassing in the victim’s apartment, depending on whether any art was taken, and the obstruction of justice from stealing a victim’s body from the morgue for an unauthorized autopsy.

A Judge Who Said "Succubus" in a Court Opinion

By

Josh Gilliland

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November 12, 2014

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The Sleepy Hollow episode “Heartless” was a fun monster of the week story where our heroes battled a Succubus. The episode could have been called, “When Trying to Score Goes Horribly Wrong.” For those unfamiliar with Succubi, they are demons who appear as a beautiful woman to seduce men, often resulting in death.

In Sleepy Hollow, the Succubus sucked out the soul of a man, followed by a woman, leaving their bodies burned out shells. It is an excellent warning on avoiding nightclubs and dating apps. Or if you do date, bring Holy Water with you, just in case.

Ironically, there is case law referencing Succubi, and you guessed it, both are from Texas.

The first case was in a dissenting opinion from 1988 in a murder case over the statutory construction imposing punishment in a law that was passed to apply to murder-for-hire cases. The Defendant had murdered her husband and buried his body on the property, which was not discovered for two years. The murder apparently was for life insurance money. The dissenting Judge expressed his thoughts on the Defendant as follows:

I don’t mean to be maudlin about this. Ms. Beets is evidently a greedy and insensitive killer, the kind of succubus who has managed to capture the romantic imagination of Americans in such modern cinematic classics as “Body Heat” and “Black Widow.” I have little sympathy for her, nor would it alarm me overly much if the Legislature had decided that all such criminals should be put to death. What I have difficulty believing is that the Legislature has already decided this in fact.

Beets v. State, 767 S.W.2d 711, 755 (Tex. Crim. App.1988)

The second case is from October 2014 and dealt with the admissibility of Internet search terms in a criminal case. The search terms included, “succubus demon,” plus others that would disturb most people. The Court admitted these Internet search terms over the objection of the Defendant on relevance and the prejudice of the evidence outweighed its prohibitive value. Chandler v. State, 2014 Tex. App. LEXIS 10869(Tex. App. Austin Oct. 1, 2014).

There are plenty of dangerous people to date, whether you think an ex-girlfriend was a succubus or ex-boyfriend an incubus, but no Court will take judicial notice of the existence of such creatures. However, some well-read judges in mythology might use the term “succubus” to express their feelings about a case.

Missy’s Misadventures in Kidnapping and Defiling Graves

By

Josh Gilliland

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November 11, 2014

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The Master has always set a high bar for being evil. I personally preferred the look of Roger Delgado or Anthony Ainley, but Michelle Gomez as an evil Mary Poppins really took cruelty to a new level as the Mistress. Plus she killed Osgood. No spoonful of sugar will make that go away, short of Santa Claus being a Time Lord.

Operation Mindcrime

Missy engaged in kidnapping human minds at the point of death to be stored in a Gallifreyan hard drive, later to be downloaded to corpses that had been upgraded to Cybermen. This unholy mix of Tron and the Matrix creates some strange legal issues.

Can you kidnap someone’s mind at death? “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.

Is uploading someone’s mind at the point of death kidnapping under common law? On one level “sort of.” Taking someone’s mind and uploading them to a hard drive sounds like a form of false imprisonment, just one we have never encountered. Perhaps is the Singularity Movement is successful, we could see courts or legislatures address “mind-napping.”

Missy potentially kidnapped the minds of dying human beings for as long as humans have believed in an afterlife. The number of victims could be in the billions, depending how long she was imprisoning the dead. They would mean anyone who died in the last 5,000 years could be downloaded into a Cyberman and weaponized against the living. Many would agree this is a crime, but not one fully addressed by the law.

Bring Out Your Dead

Missy’s conversion of dead bodies to Cybermen also meant she experimented on dead bodies and defiled graves. There are many laws that prohibit removing a corpse from a grave for medical or surgical study. See, State v. Glass, 27 Ohio App. 2d 214, 222-223 (Ohio Ct. App., Brown County 1971), discussing the Revised Statutes of 1880 as Section 7034. There had to be experiments done to convert corpses to Cyberman that would have violated such laws.

There are other laws specifically designed to protect human remains from being “disturbed,” which means “the excavating, removing, exposing, defacing, mutilating, destroying, molesting, or desecrating in any way of human skeletal remains, unmarked graves, grave artifacts or grave markers.” W. Va. Code § 29-1-8a(6). Converting dead bodies to Cybermen would qualify as “mutilating, destroying, molesting, or desecrating” the dead. This would be an easier case to prove, because there is actual physical evidence, with human remains across the globe.

Now, was Cyber-Brigadier justified in shooting Missy? Yes. Clear and present danger to the entire human race. Good shot, thank you for your service to mankind.