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In Requiem for the Surf Rider Sonny Miller

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My cousin Sonny Miller passed away after a heart attack on July 8, 2014. He died six days after his mother died from Dementia. He was one of the most dynamic individuals I have ever known.

Sonny-Josh-2012Sonny traveled the world making surfing movies. His resume included a long list of surfing classics, including Riding Giants, Searching for Tom Curren, and the James Bond movie Die Another Day. He was also the announcer at the end of Blue Crush. His Instagram photos were always of great adventures across the globe.

Sonny&JoshMy cousin was an amazing photographer. Sonny had worldwide success because he was one of the best photographers on the planet. Part of my love of photography was inspired heavily from him when I was a child.

I would touch base with him and find out he was doing something awesome, like going to Hawaii with the Roxy Girls. That certainly made me re-think my career choices.

BigSurSurf_9646Sonny’s company was World Wave Pictures, which made me think: What is the legal definition of a wave? According to case law, “A wave is a naturally occurring phenomenon of the ocean — not a man-made object such as the floating poles, logs, and pilings… A wave may be a dangerous condition of the ocean, but, by its very nature, cannot be an unnatural condition.” Birmingham v. Fodor’s Travel Publications, 73 Haw. 359, 379-380 (Haw. 1992).

Death is like a wave. It is a naturally occurring phenomenon. That does not take away the the fact it can knock someone off their feet.

Sonny was a man of adventure, talent, and great compassion. He dutifully took care of his mother for seven years in the twilight of her life. I know that I will always remember him when looking at the crashing surf.

Red skies and following seas, my cousin.

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Please Nominate The Legal Geeks for the ABA Journal Blawg 100

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The ABA Journal is now accepting “Friend-of-the-blawg briefs” for the 2014 ABA Journal Blawg 100. Jessica and I were deeply honored to make the Blawg 100 in 2013 and humbled to have won the vote for the Fan Favorite. To everyone who voted for us, thank you. Your support really means a lot to us.

Josh_CampaignHat2014We ask for your help once again. If you enjoy The Legal Geeks, please take a minute and let the ABA Journal know how much you like our blog by filling out a “Friend-of-the-Blawg Brief.”

I filmed our latest “campaign” video during the Arkansas Bar Association Annual Conference in Hot Springs. They put me in an amazing suite with a Presidential theme. It was only natural to film this quick video.

 

Transformers: Age of Criminal Prosecutions

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The most believable part of Transformers Age of Extinction is the idea of giant alien robots that can transform into different vehicles. The movie went out of its way to say it was legally “O.K.” for a 20 year-old to date (and arguably have sex with) a 17 year-old, and totally ignore the Export Control Licensing Act and Firearm Control Act. Both Shane Dyson and Joshua Joyce would need to live in China at the end of the movie to avoid criminal prosecution in the United States.

Don’t Have Sex With High School Students

Let’s start with Shane Dyson, the 20 year-old who was in a presumed sexual relationship with the 17 year-old Tessa Yeager. While Tessa Yeager could consent to a sexual relationship at age 17, the issue is engaging in sexual activity when Shane was 19 and Tessa 16; or when Shane was 18 and Tessa 15. This would subject Shane Dyson to prosecution for having committed statutory rape. Dyson went so far as carrying the Texas code section in his wallet, as if that would protect him from prosecution for having sexual relations with a high school student who was under the age of consent. Texas law states:

(e) It is an affirmative defense to prosecution under Subsection (a)(2):

(1) that the actor was the spouse of the child at the time of the offense; or
(2)  that:

(A) the actor was not more than three years older than the victim and at the time of the offense:

(i) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or
(ii)  was not a person who under Chapter 62, Code of Criminal Procedure, had a reportable conviction or adjudication for an offense under this section; and

(B) the victim:

(i) was a child of 14 years of age or older; and
(ii)  was not a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.

Tex. Penal Code § 22.011(e).

OptimusPrime_PardonI hope to God no 20 year-old watched this film and thought they could sleep with girls in high school because the age of consent in Texas is 17. This entire scene is grossly irresponsible and added nothing to the plot.

Texas allowing an affirmative defense to statutory rape does not mean Shane would be free to have sexual relations with Tessa Yeager because she was only three years younger than him. The law takes the view that juveniles “lack the capacity to appreciate the significance or the consequences of agreeing to sex, and thus cannot give meaningful consent.” In re B.W., 313 S.W.3d 818, 820-821 (Tex. 2010), referencing Hazelton, 915 A.2d at 234; Collins v. State, 691 So.2d 918, 924 (Miss. 1997) and Roper v. Simmons, 543 U.S. 551, 569, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).

Texas Penal Code section 22.011 states it a crime to intentionally or knowingly have non-consensual sex with an adult, or sex under any circumstances with a child (a person under seventeen). Id. In situations where the victim is fourteen, a Court would examine the child’s subjective agreement on whether a crime had been committed. In re B.W., 313 S.W.3d 818, 820-821 (Tex. 2010), citing TEX. PENAL CODE § 22.011(e).

Shane could be charged with the strict liability crime of statutory rape. Carrying a copy of Texas law in his wallet will not protect him from a District Attorney charging him with sexual assault under Texas Penal Code § 22.011. Whether or not he has an affirmative defense would turn on the testimony of Tessa on whether she subjectively agreed to have sex with a legal adult (let alone who consented to Tessa participating in high risk driving competitions. Add forgery and child endangerment to the charges in state court).

There could be additional Federal charges against Shane Dyson and Tessa Yeager if photos of a sexual nature were exchanged over webcam (which was alluded to when the two talked over a Skype-like application) or text messages. Both could be subject to having created or stored child pornography under 18 USCS § 2252A. This would result in both having to register as sex offenders.

You Cannot Take Military Technology to China

Joshua Joyce, CEO of KSI, took his Transformers built for the US military to China. This unquestionably would violate the Arms Export Control Act. The purpose of the Act is to keep weapons that could contribute to an arms race, aid in the development of weapons of mass destruction, support international terrorism, increase the possibility of outbreak or escalation of conflict, or prejudice the development of bilateral or multilateral arms control or nonproliferation agreements or other arrangements. 22 USCS § 2778(a)(2).

The President of the United States can control the import and export of defense articles and services in furtherance of world peace, security, and the foreign policy of the United States. Giant weaponized robots build for the US military would fall under the export licensing requirements 22 USCS § 2778(c), because they are “drones,” which are specifically named in the Act. There is simply no way these weapons could be taken to China, which has nuclear missiles aimed at the United States.

BumbleBee_ExportChina

A college professor who worked as defense contractor was convicted of violating export control law by emailing a paper on plasma technology used in Drones to a professor in China; taking the same material on a computer to China; and showing two foreign nationals the data in Tennessee. United States v. Roth, 628 F.3d 827, 829 (6th Cir. Tenn. 2011). In another case, two Defendants were convicted of violating exporting laws by shipping military grade electronic components to China. United States v. Zhen Zhou Wu, 711 F.3d 1, 8 (1st Cir. Mass. 2013).

Giant military robots that could be operated by a pilot are a Drone that could not be sent to China without an export license. There is simply no way any President would authorize the transfer of such advanced technology to a country in the “frenemy” category that lends money while performing cyber-acts, contemporaneously building a blue water Navy to challenge the United States, along with a horrid human rights record on its own citizens. Just no way on Earth that would happen.

Joshua Joyce could be charged and convicted of violating the Arms Export Control Act. The punishments are 20 years in prison, $1,000,000 for each violation, or both. Considering that 50 KSI Transformer Drones were sent to China, the billionaire could be fined $50,000,000 and spend 20 years in Federal prison. 22 USCS § 2778(c).

Let’s not forget the criminal conspiracy with the rogue CIA officers to commit treason, which included a plan to detonate a “Seed” in China. That could be considered an act of war or providing China with the raw materials it needed to build its own Transformer Drones. Joyce should strongly consider never returning to the United States, unless the President pardons him for treason and violating the Arms Export Control Act.

Judge John Facciola on the Judiciary & Independence Day

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facciola2Magistrate Judge John Facciola is an awe inspiring person. Jessica and I were honored to have the Judge join us for a discussion on Independence Day and the importance of the Judiciary in upholding inalienable rights.  We hope you enjoy our 4th of July special podcast with a very remarkable Judge.

Gilligan's Island of Liability

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Oh That Gilligan, It’s All His Fault.

It is time we talk about Gilligan’s Island. With a last name like Gilliland, I am the third generation to hear my last name mispronounced “Gilligan.” Being a sailor and hanging out with a guy called Skipper also does not help.

The story of Gilligan’s Island is one of a common carrier that went on a three hour cruise, only to end with the passengers stranded on a tropical island.

What duties did Skipper Jonas Grumby and First Mate Gilligan owe to the passengers? Given the number of times Gilligan sabotaged opportunities for escape, would the Skipper be liable for damages based on respondent-superior? Did the Skipper have a legal duty to protect the passengers from Gilligan’s destructive tendencies?  Did Skipper and Gilligan hold true to the legal obligation of the song to “do their very best, to make the others comfortable in their tropic island nest“?

Skipper_Duty_Gilligan_6658The S.S. Minnow is a “common carrier” with its island charter business and subject to Federal law for carrying passengers for hire. A “common carrier” is defined under case law as “one who undertakes for hire or reward, to transport the goods of such as choose to employ him from place to place.” Babcock & Beene v. Herbert, 3 Ala. 392, 396-397 (Ala. 1842).

Judge David A. Depue stated the following about common carriers in 1869:

By law, common carriers are held to the strictest kind of accountability. They are absolute insurers of the safety of all property entrusted to them for the purpose of transportation, and can only discharge themselves from that liability by showing that the loss was occasioned by the act of God or public enemies.

Stephens & Condit Transp. Co. v. Tuckerman, Milligan & Co., 33 N.J.L. 543, 561 (E. & A. 1869).

The duties of a common carrier are to “highest degree of care and prudence” for the safety of its passengers, as well as the “utmost human skill and foresight.” Carlos v. MTL, Inc., 77 Haw. 269, 276 (Haw. Ct. App. 1994), citing Fuller v. Honolulu Rapid Transit & Land Co., 16 Haw. 1, 9 (1904) (quoting Coddington v. Brooklyn Ry. Co, 102 N.Y. 66, 5 N.E. 797 (1886).

It should be noted that a “common carrier is not an insurer of the safety of its passengers, and it has no duty to avoid all dangers which could not reasonably be foreseen.” Carlos v. MTL, Inc., 77 Haw. 269, 276 (Haw. Ct. App. 1994), citing Fuller, 16 Haw. at 9-10.

As such, the Skipper & Gilligan had a duty to protect the passengers from unreasonable risk of physical harm, provide first aid if injured, and to care for them until they could be cared for by others. See, Winfrey v. GGP Ala Moana LLC, 130 Haw. 262, 274 (Haw. 2013), citing Section 314A of the Restatement [(Second) of Torts].

The Shipwreck of the SS Minnow

The SS Minnow was shipwrecked after a storm at sea. The vessel was beached with multiple hull breaches in its wooden planking. While repairs to the hull might have been possible, the volume of water that penetrated the hull would have flooded the engines. This would make restoring the vessel impossible. There would have been no way to drain the oil and water out of the engines and restore the vessel to operation, because there was no replacement oil for the engines. The propulsion system would have been a giant rusting paperweight.

Was the storm reasonably foreseeable? Maybe. It would depend on weather reports, the accuracy of the weather reports, and whether there was time to respond. If the storm had been foreseeable, the crew of the SS Minnow did not act reasonably in ensuring the safety of the vessel and passengers. If the storm was an act of God, there would have been no liability for becoming shipwrecked. (See, MCARTHUR & HURLBERT v. SEARS, 21 Wend. 190, 200 (N.Y. Sup. Ct. 1839) and Stephens & Condit Transp. Co. v. Tuckerman, Milligan & Co., 33 N.J.L. 543, 561 (E. & A. 1869)).

Gilligan_Prudence_7368The Skipper and Gilligan in the first episode made a raft with the intention of sailing for Hawaii and launching a rescue. Gilligan ate most of the food based glue and varnish during the construction of the raft. Gilligan also functions with diminished mental capacity to the point a Court might find him legally incompetent based upon expert testimony.

Given Gilligan’s self-destructive behavior, should Skipper Jonas Grumby have employed Gilligan in building the raft and rescue mission?

A Court would likely find Gilligan caused delays, if not outright sabotaged, rescue efforts. As such, it was unreasonable for the Skipper to have Gilligan help prepare the raft for the voyage to Hawaii.

Headhunting Torts

Gilligan scared his fellow castaways in the final moments of the first episode by climbing out of a cave and rubble in a headhunter’s outfit. This intentional act would constitute the intentional infliction of emotional distress. Upon their return to Hawaii, the castaways could sue the SS Minnow for Gilligan’s conduct, and Gilligan directly, by showing 1) Gilligan acted intentionally; 2) that the act of impersonating a headhunter was unreasonable; and 3) that Gilligan should have recognized that the act of dressing as a headhunter would have resulted in illness. Hac v. Univ. of Hawai’i, 102 Haw. 92, 105 (Haw. 2003), citing to Fraser v. Morrison, 39 Haw. 370 (1952), based upon the Restatement (First) of Torts, section 312 (1934).

The castaways would need to demonstrate they suffered bodily harm from Gilligan’s headhunter masquerade under the law in the 1960s. Gilligan did not physically harm anyone, so the case would be dissimilar than baseball players who dressed as a vampire and leather-clad warrior who attacked patrons in a club. Canseco v. Cheeks, 939 So. 2d 1122, 1123 (Fla. Dist. Ct. App. 3d Dist. 2006). The castaways would need to show they suffered nightmares or other physical manifestations of Gilligan’s assault in order to recover for damages.

Gilligan the Destroyer

The second episode of the Gilligan’s Island centered on building huts for the castaways. As expected, Gilligan injured the Skipper and Professor during the community hut construction. In the case of the Skipper, a lid was left off a barrel of water (known as a scuttlebutt among sailors) which the Skipper fell into. Gilligan also pulled a ladder out from under the Professor, causing both a fall and head injury. Mr. Howell also suffered battery from Gilligan.

Gilligan literally could not interact with others without causing physical injury or destruction of materials being built for the safety of the castaways. As such, the Skipper should have prohibited Gilligan from interacting with others, as terminating his employment was not an option on the island. This should have been done to protect the passengers from Gilligan and to avoid Gilligan having an “accident” at the hands castaways angry over another rescue attempt being destroyed.

50 Shades of Ginger

Ginger attempted to seduced Gilligan to achieve her goals on multiple occasions. One example is in the second episode in order to acquire tools to build a hut. Another is kissing Gilligan in order for Mary-Ann to place a jet pack on Gilligan. The women planned to launch Gilligan as a missile to Hawaii in order to save themselves.

Gilligan_Consent_7448Ginger was not above seduction with someone who might not have been legally competent to 1) agree to lend tools (and exploited for manual labor) and 2) trick into being launched into a sub-orbital flight. Ginger would argue that Gilligan consented to her advances, but the “consent defense” would fail if a) Gilligan were legally incompetent to authorize the conduct alleged; or b) Gilligan by reason of mental disease, disorder, or defect, was unable to make a reasonable judgment as to the nature or harmfulness of the conduct alleged. HRS § 702-235.

Expert testimony would be required to determine if Gilligan were legally competent. However, given his decision making skills and lack of impulse control with coconut cream pies, there is a strong argument Ginger unlawfully took advantage of Gilligan.

 

Stand-up comedians and copyright law: Who gets the last laugh?

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Stand Up ComicI love stand-up comedians.  And I geek out over several actresses who have created and star in their own sitcoms.  I’ve talked about both on this blog, yet somehow I’ve never mentioned the great Roseanne Barr.  She is a brilliant stand-up comedian and her eponymous sitcom was brilliant and actually very edgy.  Plus, it introduced the amazing John Goodman to a broader audience.  And yet, until today, I haven’t talked about her.

To be fair, Roseanne hasn’t been around much lately so it was easy to forget about her for a while.  But she’s back now, on Last Comic Standing, with Russell Peters and Keenan Ivory Wayans (I’ve had a crush on him ever since In Living Color).  Last Comic Standing originally ran on and off between 2003-2010 and then restarted again this past year, with the brilliant Wanda Sykes as executive producer and JB Smoove as host (I loved him on Curb Your Enthusiasm!).  After listening to Roseanne on Stern the other day, which was a great interview, I realized that I needed to start watching Last Comic Standing.

Applause SignIt’s a fun show – the comics are pretty good and at least Keenan gives some decent criticism.  But, like most other reality shows, the producers spend too much time on back stories and not enough time on their routines.  On the other hand, over the years this show has helped the careers of some of my favorite stand-up comedians, including Kathleen Madigan, John Heffron, and Amy Schumer.

Meanwhile, from a legal standpoint, the show is interesting because it addresses part of an ongoing problem for stand-up comedians: protecting their artistic expression.  Over the years, the problem of comics stealing jokes from other comics has been a common problem, with the Joe Rogan vs. Carlos Mencia feud on this issue the most public airing of this problem.  Such behavior is unethical but difficult to stop.  I’ve heard comedians talk about tricks they’ve used to prevent such theft from happening.  For example, if a comedian with a reputation for stealing jokes enters a comedy club, the other comedians there will often flash the stage light to alert the comedian on stage, so that she doesn’t use her best material when a plagiarist is in the crowd.

Legally, is there a right comedians would have against such plagiarism? Yes.  Under copyright law they can sue somebody who infringes upon their copyrighted material.  The trick, however, is that copyright law only protects that artistic expression that has been fixed in some media.  So jokes written down or recorded are protected.  But if you come up with a great one-liner in a club some night and no one is recording it, then that joke isn’t protected and it’s up for grabs.  The same is true if you don’t write down all of your material.

TelevisionStudioControlRoomAnd this is where Last Comic Standing comes in.  By recording and broadcasting the comedians’ routines, their artistic creations are fixed and can therefore be protected.  There are other issues and challenges, however, with comedians copyrighting their material.  And some would argue that what’s important about a joke isn’t the words but the delivery, which can’t be copyrighted.

Ultimately, however, despite the challenges and questions comedians face in protecting their work, some comedians have decided to assert their legal rights over their creations.  For example, Abbott and Costello copyrighted their famous “Who’s on First?” routine.  And Jeff Foxworthy sued to protect his “You  might be a redneck” line.  Copyright may only be an option for the biggest comedians and routines, but at least comedians should know they have that legal option the next time someone steals their joke (which is never funny).

Batman 1989

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June 23, 1989: The date the super-hero movie genre was reborn thanks to Tim Burton’s Batman. The movie overcame jokes of “Mr. Bat-Mom” and that Michael Keaton did not have the chops to be the Caped Crusader.

The naysayers were wrong. Keaton did a great job, just as Ben Affleck will do a great job.

Batman_TellYourFriendsI saw the movie opening day with my brother and good buddies. We arrived at the Century 10 theater in Mountain View two hours early for the first show. There was already a line of people who had spent the night to see the film that went deep into the parking lot. One attendee dressed for the occasion with horned Viking helmet.

The Century 10 (now Century 16) theater had six ticket counters at the box office. Everyone had lined up behind one window on the far left. Our group lined up at the one at the far right. We stood our ground, because the theater operated all of the windows, not just one ticket counter.

There were mild shouts of anger when the window we were standing by opened first. My brother, friends, and I were the first ones in the theater.

Lessons Learned: Do not have a line mentality. Look around and get in the one that makes sense. It’s what Batman would do.