Could President Ellis have a chance for re-election after his Vice President committed treason AND HYDRA’s helicarriers crashing in the Potomac?
Veteran politic consultant Gerry O’Brien shares his real world experience on the politics of the fictional Marvel Universe.
And both Gerry and Josh are not afraid to geek-out over the new season of Agents of SHIELD.
Oh, Gotham. Thank you for presenting such a wonderful legal issue on whether it is “OK” for the police to beat a confession from someone in order to save 30 kids from being sold overseas to be a meal. Or worse. We never really learned what the Dollmaker had planned for the children.
While the orphans, the public, politicians, and press, would not have a problem with Detective Bullock beating a prisoner with a phone book to find out where kidnapped children were being held, a Court would begrudgingly say, “Don’t Do that Again.” Any thing learned from the suspect would tainted as “fruit from the poisonous tree” and in admissible in Court. The bad guy would walk because of the beating.
Police can conduct a search without a warrant when there are “exigent circumstances,” namely imminent and ongoing danger to life. Additionally, police can question someone arrested without giving them Miranda Rights if there are “overriding considerations of public safety.” New York v. Quarles, 467 U.S. 649 (1984). This generally involves finding bombs left around town or where a loaded gun was left in a field. However, it is rare to find a modern Court giving a judicial thumbs up to police brutality.
Which brings us to Detectives Harvey Bullock and James Gordon. The police arguably did not gain the exact location of the warehouse from the suspect, because Gordon figured out what the images were to identify the company logo. Even if the beaten suspect described the logo, there is an argument the information was available from the original child victims and if Bullock also saw the truck in the gunfight. As such, the information would have been available from independent sources other than the unlawful interrogation.
There is no question Bullock and Gordon had “exigent circumstances” to search the warehouse for the missing children without a warrant. However, there really is no way around a 1983 action against Bullock and the police department for beating someone in custody.
The Horseman of War on Sleepy Hollow is a lawyer. Or pretending to be one. Either way, just lovely for our reputation as attorneys.
The reveal came at the end of The Kindred when Henry visited former Sheriff Frank Irving in a prison psychiatric hospital. The NEW Sheriff in town apparently was pushing the limits on cruel and unusual punishment, seeking not just psych evaluations, but threats of electric shock therapy. “Henry the Lawyer” appeared to put a stop to the tests, which is what a lawyer is exactly supposed to do for his client at object police torture.
However, Henry had Irving sign papers (most likely the engagement letter) that pricked the former sheriff’s finger, in effect making him sign the engagement letter in blood.
This raises many important legal issues. No one should EVER sign a contract of any type without reading it first. God knows what evil clause is in there that could negatively impact Frank Irving. No legal fees or retainer could include someone’s soul, even though not specifically stated in any state’s ethical rules.
Henry might be a powerful warlock, but that does not mean he passed the bar in the late 18th Century. New York does not permit people to engage in the unauthorized practice of law, warlock or not. The law specifically prohibits any “natural” person from holding themselves out to the public to practice law (including appearing in Court and advertising), without having been licensed, admitted to practice law in New York, and taken an oath to the Constitution. NY CLS Jud § 478.
If Henry is a licensed attorney, he has several major breaches of his ethical duties. The first being having his client sign a blood oath that likely goes against his client’s interests. This act would violate his Duty of Loyalty to Frank Irving to not act adversely against his client.
Henry also has a significant conflict of interest with Irving, as Henry’s goal is to bring about the Apocalypse under the direction of Moloch, which goes against Irving’s interests. A lawyer may not represent someone if a lawyer’s professional judgment will be adversely affected by the lawyer’s own business or personal interests. NY CLS Jud Appx R 1.7(a)(2). As Henry wants to destroy the world and use Irving in some way to achieve that goal, this conflict of interest unquestionably would violate Henry’s ethical obligations to Irving.
Henry is also violating his duties to New York State and the US Constitution, with his active criminal conspiracy to kidnap his mother, commit murder, and bring about the end of the world. All of these actions would result in disbarment.
Ninety percent of lawyering is conversation…[The other ten percent is] mostly beating up robots.” Jennifer Walters
Okay, I didn’t get a blood transfusion from Bruce Banner, I’m not green, nor am I that strong, but I am a lawyer! And, like Jennifer Walters (She-Hulk’s alter ego), I left a big firm to go smaller. My departure wasn’t quite as dramatic (no tables were destroyed) and I joined a small boutique firm instead of going solo, but some of the challenges are the same (I just wish I could find some office space as cool as hers!).
The perks of going smaller can be big, as life as an associate in biglaw (as we call life at the big firms) can be a grind, with long hours worked and health destroyed. Like She-Hulk at the beginning of Episode 1, many associates work those long hours in the hopes of getting a big bonus (bonuses are a bit of an obsession for biglaw associates), which they need to pay off their massive law school debt. So leaving biglaw can be a scary but liberating experience.
These similarities were the reason I started reading the new She-Hulk storyline, which I first learned about in the ABA Journal. Josh has already discussed some other She-Hulk issues in the current storyline, but my favorite story to date was right there in the very first episode: the patent lawsuit with Iron Man.
Welcome to the world of IP litigation. While patent troll plaintiffs are a problem, so too are big companies that can overwhelm individual inventors with armies of lawyers (from biglaw!), mountains of motions, and enormous ediscovery productions. Patent litigation is an expensive mess, even as DC tries to correct some of the worst of the problems (with questionable success).
Jennifer Walters, in her patent lawsuit, still had to deal with a creepy defense attorney, overwhelming litigation defense strategies, and other standard legal obstacles. But, unlike most lawyers, she also had to fight Tony Stark’s robots. Of course, she’s She-Hulk so she was able to deal with the robots with minimal problems.
She then circumvented Stark’s counsel by talking to Iron Man directly. While it’s cool that she’s friends with Tony and (spoiler alert!) was able to talk sense into him about her client’s claim to the disputed invention, she violated a California State Bar Rule of Professional Conduct by speaking to directly to the opposing party about the lawsuit. Under California’s rules (and the rules of most – if not all – states), a lawyer can’t speak directly to the opposing party about the lawsuit if the opposing party has an attorney unless the opposing party’s attorney consents to the communication.
I’m pretty certain Stark’s attorney didn’t okay the communication, which means he could file a complaint with the state bar about Walters’ violation of the rules of professional conduct. But, as we know, superheroes don’t always have to follow all the rules we mere mortals are bound by!
She-Hulk is probably the first comic book that I can relate to at least a little, even if (once again) she is a better-dressed lawyer than I am. Now if they just added in some kids so she had to juggle work, family, and being a superhero, I would truly be able to identify with her!
The Doctor Who episode “The Caretaker” ends with the Doctor taking the 14-year-old student Courtney Woods (who called herself “Destructive Influence”) on a trip in the TARDIS to dispose of Skovox Blitzer in deep space.
Could a school janitor take a 14-year-old off school premises in a time machine without a permission slip? The law in most countries would say no.
The state of California is a good example of the requirements for conducting a “field trip.” A school district can conduct ” excursions in connection with courses of instruction or school-related…educational…activities” within the state, outside of the state, or in a foreign country. Trips abroad can be “permitted to familiarize students with the language, history, geography, natural sciences, and other studies relative to the district’s course of study for pupils.” Cal Ed Code § 35330(a)(1).
Legally speaking, leaving planet Earth for a distant section of space would be “outside of the state.” As the Doctor took Courtney just into space, she was not in “a foreign country,” but an interstellar void.
A school district has broad immunity on field trips, because “all persons making the field trip or excursion shall be deemed to have waived all claims against the district for injury, accident, illness, or death occurring during or by reason of the field trip or excursion.” Wolfe v. Dublin Unified School Dist., 56 Cal. App. 4th 126, 128 (Cal. App. 1st Dist.1997), citing Cal Ed Code § 35330.
However, there is one giant requirement with field trips: Students need written parental consent to go on a field trip. This consent is known as a “permission slip.” Generally speaking, students who do not have a signed permission slip remain at a school in an alternative activity. Wolfe v. Dublin Unified School Dist., 56 Cal. App. 4th 126, 128 (Cal. App. 1st Dist.1997).
Some permission slips need to explain what the students are doing and know risks in order for parents to give their informed consent (such as after school sports). As such, parents are giving their express agreement to assume the risk of the activity. Such express agreements are valid if they do not violate public policy. Allan v. Snow Summit, Inc., 51 Cal. App. 4th 1358, 1372 (Cal. App. 4th Dist.1996).
Which brings us to the Doctor and Courtney. It is highly unlikely there was a permission slip signed by Courtney’s parents for her to travel into space. Just imagine what such a permission slip would look like to include known risks. While there would be high educational value in deep space exploration with an alien to dispose of an alien war machine, the risk of doing so would in no way be approved by a school district, even with Ian Chesterton as headmaster.
Jessica Mederson and Josh Gilliland loved the season premiere of Agents of SHIELD. Josh & Jess breaks down how the No Fly List works, Grant Ward’s due process claims for false imprisonment, and just why the heck did Xena grab the 084?
Agents of SHIELD kicked off with a great World War II introduction featuring Agent Carter and the Howling Commandos. I have high hopes for Season 2 and really enjoyed the premiere. However, the episode also had a HYDRA of legal issues, because they kept cutting off heads with two more torts or crimes growing to take its place.
Flying the Friendly Skies
Director Coulson has been flying coach to recruit SHIELD Agents. As “Phil Coulson” is likely on not just the “No-Fly List,” but the FBI most wanted list, Director Coulson has to be traveling under a fake name.
To have an understanding of how air security works, the Federal Bureau of Investigation (FBI) administers the Terrorist Screening Center (TSC), which develops and maintains the government’s Terrorist Screening Database (TSDB). The No-Fly List is a subset of the TSDB. The TSC provides the TSA with the No-Fly List. Latif v. Holder, 2014 U.S. Dist. LEXIS 85450 (D. Or.June 24, 2014).
If Coulson was flying coach, he had to be doing so under a false identity. This would mean he is either committing identity theft or fraud. Moreover, the government would view his recruitment efforts as not one for a cool club, but a terrorist organization.
Is Buddy the Dog Still Howling Agent Ward?
Grant Ward has achieved a new level of creepiness while talking to Skye in his cell. Besides taking obsessive to a new level, Ward actually would have a real legal gripe against Director Coulson: Ward had been falsely imprisoned by a former law enforcement agency without a trial in solitary confinement.
There are very valid reasons Ward should be in prison for all the people he killed, terrorists he aided, and weapons of mass destruction he stole. However, the Constitution guarantees everyone in the United States the right to know why they are arrested, the right to an attorney, the right to a trial, the right to confront witnesses, plus many other “inalienable” rights. There is little question Ward earned a firing squad for his treason, however, he should have had a trial. Moreover, as SHIELD is no more, keeping Ward locked in a high security basement would be false imprisonment.
Assault on the US Military
SHIELD agents kidnapped General Talbot and made an armed assault on a secure military facility to capture government property from the SSR. All of these things are bad from a legal perspective, but there was a significant change in tactics since TAHITI: the SHIELD agents used ICERs (formerly known as “Night Night” Guns) on military personnel. This is a marked improvement since the good guys killed two people without justification to save Skye. As the heroes were not using lethal weapons on US soldiers, this makes the likelihood of pardons for stopping HYDRA more likely in the future.
