Hansel and Gretel: A Lawyer’s Fairy Tale

January 15, 2013

The fairy tale of Hansel and Gretel is not one that ends with children growing up to be witch hunters, but learning to fight evil with something more powerful than any witchcraft: civil litigation and criminal prosecution.

Hansel and Gretel at its core has more legal issues than candy on a gingerbread house. Let’s follow the legal breadcrumbs.

Counting Pebbles: The Factual Overview

Once upon a time… a father, who was a down on his luck wood cutter, was unable to provide for his children and wife. The step-mother had a creative solution to the family’s financial problems: Leave the Children in the Woods.

“The children must go, we will take them farther into the wood, so that they will not find their way out again; there is no other means of saving ourselves!”

The Step-Mother, Hansel & Gretel

In their quest to be parents of the year, the father gave in to his wife’s demands and left his children in the forest to die, not once, but twice.

The abandoned children’s situation went from bad to worse with the discovery of a gingerbread house occupied by a witch. After being captured, Hansel was kept in a stable to be fattened up for slaughter, while Gretel was fed only crab-shells and exploited for child labor to help murder her own brother.

Gretel killed the Witch, who was planning to bake Gretel, by trapping the Witch in a very large oven, burning the Witch alive.

The siblings escaped with the Witch’s pearls and precious stones, ultimately finding not only their way home to their father. As an added bonus, Hansel and Gretel’s step-mother had died in their absence.

Possible Civil & Criminal Causes of Action Against the Parents

Virtually every state has laws on parents providing for children. California law requires that “the father and mother of a minor child have an equal responsibility to support their child in the manner suitable to the child’s circumstances.” Cal Fam Code § 3900.

Hansel and Gretel’s parents had a legal obligation to support their children. This would require not just feeding the children, but not willfully leaving them in the woods to fend for themselves. Granted, the step-mother might not have legally adopted Hansel and Gretel, but she would be a legal guardian with the duty to not harm the children.

Leaving Hansel and Gretel in the woods overnight with the intent to abandon them would be child endangerment in any state. California defines child endangerment as follows:

(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.

(b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.

Cal Pen Code § 273a.

A District Attorney could prove beyond a reasonable doubt that leaving Hansel and Gretel in the woods would meet every element of California Penal Code § 273a(a) with the many harms that could have befallen the children and ultimately did with the Witch.

At a minimum, Hansel and Gretel’s father and step-mother failed to provide for their children and willfully endangered them by leaving the children in the woods. There is simply no necessity defense to save oneself by leaving offspring to die in the woods. Moreover, civil causes of action against the parents would run the gambit from negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and conspiracy.

Season of the Witch

The old woman had only pretended to be so kind; she was in reality a wicked witch, who lay in wait for children, and had only built the little house of bread in order to entice them there. When a child fell into her power, she killed it, cooked and ate it, and that was a feast day with her.

Hansel & Gretel

A civil litigator would act like a kid who found a candy gingerbread house in bringing a case against The Old Witch. Additionally, a criminal trial would rival that of OJ Simpson, Casey Anthony, and the Lindbergh baby rolled into one on steroids.

The Civil Action

The civil action against the Witch would focus on the following facts:

The Witch Owned a Gingerbread House to Entice Children

The Witch kept Hansel in a stable, well-fed, with the intent of eating him

Gretel was fed only crab-shells

Gretel was forced to work for the Witch

The Witch planned to kill and eat both children

California law does not specifically address cannibalism or attempted cannibalism, however, it is a form of Battery (along with Murder and Desecration of a Corpse if the act is completed). To prove Battery, Hansel and Gretel would have to show that 1) the Witch touched them with the intent to cause harm; 2) that Hansel and Gretel did not consent to the touching; and 3) that Hansel and Gretel were harmed by the Witch’s conduct. 1-13 California Forms of Jury Instruction 1300.

Hansel and Gretel could prove all of the elements for Battery from 1) the Witch captured them; 2) Hansel was forcibly held in a stable; 3) the Witch shook Gretel awake after imprisoning Hansel; and 4) and the Witch’s physical conduct caused harm, not just physical, but likely emotional as well from their imprisonment.

Hansel and Gretel could also prove a claim of Intentional Inflectional of Emotional Distress because of the Witch’s willful conduct. The elements of this claim are:

1. The Witch engaged in a willful violation by kidnapping the children with the intent to eat them;

2. The Plaintiffs suffered serious emotional distress; and

3. The defendant’s willful violation of statutory standards was a cause of the serious
emotional distress.

BAJI 12.80.

The facts to prove the intentional infliction of emotional distress would include the imprisonment in the stable, feeding Gretel crab-shells, various insults and the Witch’s statements on whether Hansel was fat enough to be eaten.

The Criminal Trial

A District Attorney would melt the Witch with a bucket of water for her crimes against the children. The main charges would include Kidnapping, Aggravated Mayhem, Torture, and Attempted Murder.

Kidnapping is defined under California law as follows:

(a) Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.

(b) Every person, who for the purpose of committing any act defined in Section 288, hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any child under the age of 14 years to go out of this country, state, or county, or into another part of the same county, is guilty of kidnapping.

(c) Every person who forcibly, or by any other means of instilling fear, takes or holds, detains, or arrests any person, with a design to take the person out of this state, without having established a claim, according to the laws of the United States, or of this state, or who hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any person to go out of this state, or to be taken or removed therefrom, for the purpose and with the intent to sell that person into slavery or involuntary servitude, or otherwise to employ that person for his or her own use, or to the use of another, without the free will and consent of that persuaded person, is guilty of kidnapping.

(d) Every person who, being out of this state, abducts or takes by force or fraud any person contrary to the law of the place where that act is committed, and brings, sends, or conveys that person within the limits of this state, and is afterwards found within the limits thereof, is guilty of kidnapping.

(e) For purposes of those types of kidnapping requiring force, the amount of force required to kidnap an unresisting infant or child is the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent.

Cal Pen Code § 207.

The Witch purposefully had a gingerbread house with candy to entice unsuspecting to come onto her property to be captured and eaten. This action would fall under subsection (b); holding Hansel in the stable and threatening Gretel would violate subsection (a).

The Witch could also be charged with aggravated mayhem, because of the extreme indifference she showed to the children: Hansel was fattened in a stable to be slaughtered; Gretel was fed only crab-shells and underwent physical and emotional abuse for over a month while in the criminal custody of the Witch.

Aggravated Mayhem is defined as follows:

A person is guilty of aggravated mayhem when he or she unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body. For purposes of this section, it is not necessary to prove an intent to kill. Aggravated mayhem is a felony punishable by imprisonment in the state prison for life with the possibility of parole.

Cal Pen Code § 205.

The State could prove under the facts the Witch’s actions manifested extreme indifference to the physical or psychological well-being of another person and would warrant a guilty verdict.

The same facts that demonstrate Aggravated Mayhem would also support a finding the Witch tortured Hansel and Gretel. Torture is defined as follows:

Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture.

The crime of torture does not require any proof that the victim suffered pain.

Cal Pen Code § 206.

There is no question the Witch planned to murder Hansel and Gretel for food. Thus, this raises the charge of attempted murder.

To prove the Witch was guilty of attempted murder, the State would have to prove that 1) the Witch took at least one direct but ineffective step toward killing Hansel and/or Gretel and 2) the Witch intended to kill both Hansel and Gretel. 1-500 CALCRIM 600.

The jury instructions explain a “direct step” as follows:

A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.

1-500 CALCRIM 600.

The Witch had Hansel imprisoned in a stable and fed him with the intent to kill him as a meal. Additionally, the Witch attempted to physically inspect Hansel to see if he was fat enough to be slaughter.

In the case of Gretel, the Witch started the fire in her oven with the intent to bake Gretel alive. All of these actions demonstrated a definite and unambiguous intent to kill, as required by law to prove attempted murder.

Closing Arguments

Hansel and Gretel is about two witches: One witch is a case study in parental gross negligence and malfeasance where a step-mother convinced her husband to leave his children in the woods; the other witch is the traditional version of evil that eats children.

However, no witch is above the law. All of the wrongs inflicted by the parents and the witch would result in civil litigation and criminal prosecution.

Troubling Tribbles: The Ultimate Invasive Species

Josh Gilliland

January 4, 2013

Just because something is cute and snugly does not mean it isn’t dangerous.

Nothing is better evidence of this then perhaps the most dangerous [fictional] invasive species:

A Tribble from Star Trek.

Tribbles are a purring ball of fur that snuggle and make people feel good, including Vulcans. The creatures were introduced in the Star Trek TOS episode Trouble with Tribbles; returned in the Animated Series episode More Tribbles, More Troubles; had cameos in Star Trek III: The Search for Spock and Star Trek Generations; and appeared again in the Star Trek: Deep Space 9 episode Trials and Tribble-ations.

An invasive species is an animal which is introduced into a completely new environment to the detriment of indigenous species. Examples include Zebra Muscles in the Great Lakes, Asian Carp, or Pythons in Florida.

The US Congress described the dangers caused by invasive species as follows:

When environmental conditions are favorable, nonindigenous species become established, may compete with or prey upon native species of plants, fish, and wildlife, may carry diseases or parasites that affect native species, and may disrupt the aquatic environment and economy of affected nearshore areas;

16 USCS section 4701(a)(2).

Tribbles lack the gross factor of Zebra Muscles or the terror of a 17 foot snake surprising a birthday party in Florida. While it is extremely unlikely Tribbles will play any role in Star Trek Into Darkness, Tribbles would pose a greater environmental threat to an entire planet than any of the current invasive species on Earth.

Tribbles are born pregnant and give birth when fed. While not as messy as getting a Gremlin wet, the mere introduction of a Tribble in an ecosystem would cause an immediate threat to the food supply and cause a Tribble population explosion. Even if hawks, alligators, lions, sharks and every predator on Earth developed a taste for Tribble, they would not be able to keep up with Tribble reproduction.

With that said, Tribbles might be the answer to the problem of world hunger; however, selling humanity on eating cute purring animals would be difficult.

There would also be challenges in mobilizing Tribble slaughterhouses and the industrial capacity to keep up with the rate of reproduction.

The United States Government and States have fought invasive species a number of ways. One is prohibiting conduct that introduces the animals into the ecosystem, such as the discharge of untreated water in the ballast tanks of foreign cargo ships in US waters. Other “hands-on” remedies include adding rotenone (a fish kill agent) to waterways in fighting Asain carp.

The Klingons in Star Trek The Animated Series created a Tribble predator called a Glommer to hunt and eat Tribbles.

Klingons creating a creature to hunt an invasive species carried a fair amount of risk, because they were adding another animal to the environment.

While the Glommer could have been engineered to only eat Tribbles and die when the food supply was exhausted, such a plan is not comparable to adding rotenone to a lake to kill Asian carp. Simply put, there is risk in adding another animal to the mix.

However, the Klingons did send a fleet to destroy the Tribble homeworld (Referenced in Trials and Tribble-ations). This plan for Tribble-cide was more in line with a traditional “fish kill” to eliminate an invasive species…if the invasive species were as cute as baby seals.

The Federation would have several options to control the introduction of Tribbles to Earth.

One option is to outright prohibit ships bringing Tribbles to Earth, much like the United States Congress (and the Coast Guard) prohibiting ballast water from being discharged in US waters from international shipping.

This plan would require Star Fleet’s equivalent of the Coast Guard conducting vessel inspections of star ships in orbit prior to any cargo being sent to the service. There also might be a technical solution of programming transporters to not beam Tribbles to Earth.

Another option is to classify Tribbles as exotic pets that are dangerous wild animals (like a ferret with rabies) and order the animals destroyed. (See, Raynor v. Maryland Dep’t of Health & Mental Hygiene, 110 Md. App. 165, 182 (Md. Ct. Spec. App. 1996)).

The Federation most likely enacted laws prohibiting the introduction of Tribbles to Earth, unless they had been “neutered.” The evidence for this “middle-ground” regulation were 1) the Tribble cameo in Star Trek III on Earth in the bar where McCoy was attempting to book a flight to Genesis and 2) a child is seen with a Tribble when the Enterprise-D is crashing in Star Trek Generations. There was no evidence later in Star Trek III of a Tribble population explosion and remediation efforts or the Enterprise-D survivors cooking Tribbles for food while awaiting rescue.

Further evidence for the “altered” Tribbles theory comes from More Tribbles, More Troubles. Cyrano Jones poorly attempted to genetically alter Tribbles to not reproduce, which ultimately Dr. McCoy corrected to create “safe” Tribbles that reproduced at a much slower rate. While this logic is based on the lack of a Tribble population explosion, it is a logical deduction given the fact a Tribble was present on Earth without incident in Star Trek III: The Search for Spock or Star Trek Generations.

An Attorney’s Christmas Special: Legal Issues in Christmas Movies

Josh Gilliland

December 24, 2012

There is no shortage of Christmas movies that have an overall theme of compassion, giving and showing good will to others.

Many of these films set a high bar for “feel good” family entertainment.

There is also no shortage of lawyers who watch Christmas movies.

And where lawyers are watching movies, they are considering different legal issues.

Let’s review some of the big legal issues in some of the holiday classics.

It’s a Wonderful Life

There is no question It’s a Wonderful Life is one of the best Christmas movies, if not Jimmy Stewart’s finest film.

Here are some of the issues that cause lawyers pause:

Zu Zu’s statement that “teacher says, every time a bell ring, an angel gets his wings” is an alert that the “separation of church and state” may have been violated in a public school.

Mr. Gower’s near miss with manslaughter due to poisoned medication and child abuse by hitting George Bailey.

Young George Bailey would have committed murder if he knowingly delivered poisoned medicine to a sick child.

Just what was Violet’s job?

Mr. Potter kept the $8,000 and avoided getting arrested.

A Christmas Story

There is justified concern a child could hurt themselves with a BB Gun. The safe alternative gift recommended by different characters in A Christmas Story is a football.

However, footballs might be just as dangerous as a Red Rider BB Gun, given the number of concussions professional players have suffered. While there is no totally safe sport, a baseball might have less risk of physical injury, but more risk for broken windows.

ELF

Elf raises many legal issues.

Consider the following:

How was Buddy adopted by Papa Elf?

Was there a claymation judge at the North Pole?

Did the orphanage ever file a missing person report for a baby disappearing ?

How was Buddy legally re-integrated into society after spending 30 years at the North Pole? He should have had a birth certificate, but how did he get a Social Security Number after age 30 without any red flags going off?

The Polar Express

Did any of the parents in The Polar Express teach their kids stranger danger?

How about not getting in a vehicle with a stranger?

This is a disturbing part of an otherwise very sweet story of believing and helping others.

Scrooged

How did the network lawyers handle Elliott Loudermilk’s siege of the control room? Did Christmas cheer keep everyone from filing charges? How about Brice Cummings, who is tied up by Loudermilk and endures unwanted physical advances from the Censor?

Miracle on 34th Street

The single best Christmas courtroom drama is the 1947 Miracle on 34th Street. Moreover, the hero is a lawyer defending Santa Claus, at great personal risk to his own career. The attorney’s duty of loyalty to his client causes him to quit his law firm and consider opening his own practice in order to protect Kris Kringle from being put in an insane asylum.

The film also touches on the difficultly of being the District Attorney and Judge in a high profile case. The Judge quickly learns his own grandchildren and wife are ashamed of him for ordering a lunacy hearing to put Santa Claus in an insane asylum. The DA endures judgmental glares from his wife, including the wife permitting the DA’s son to testify on the child’s belief in Santa Claus, to the harm of his father’s case.

Nothing screams “You’re sleeping on the sofa” on Christmas Eve then committing Santa Claus to an insane asylum. Simply put, there is no judicial relief for any attorney (or judge) who ends up on his wife’s Naughty List for not spreading Christmas cheer.

Where Are You Christmas?

How the Grinch Stole Christmas raises many issues of burglary and identity theft. Additionally, why didn’t the Grinch wear pants?

More importantly, the movie also ends with a touching dedication to Ron Howard’s mother, “who loved Christmas most of all.”

There are mothers across the planet who put their hearts into creating a wonderful Christmas experience for their children. Ron Howard’s tribute spoke for many people and is a very fitting way to end a Christmas movie.

Santa Claus & The Torts of Christmas

Josh Gilliland

December 20, 2012

We all know the song….

He sees you when you’re sleeping,

He knows when you’re awake,

He know if you have been bad or good, so be good for goodness sake…

Could a Plaintiff sue Santa Claus for watching them sleep and all other aspects of their daily life?

What other liability is Father Christmas personally incurring as he decides who is naughty or nice?

For example, how does Santa know if you have been bad or good?

Are there elves remotely forensically imaging computer hard drives and using computer-assisted review to recognize patterns of nice and naughty conduct?

Does Santa have another team of elves running keyword searches over the billions of text messages sent each year? Could a Plaintiff sue Santa Claus for violations of the Stored Communication Act?

Let’s review the possible Torts and Crimes committed annually by Santa Claus.

Invasion of Privacy

Privacy is essentially the right to be left alone. While the word “privacy” does not appear in the US Constitution, there are many common law and statutory remedies for invading someone’s private life. California went so far as to even write a right of privacy into the California Constitution, which states:

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

Cal Const, Art. I § 1.

Santa is watching us all the time, even when we are asleep.

Courts have held to be spied upon while in bed is an invasion of privacy. See, Oziel v. Superior Court, 223 Cal. App. 3d 1284, 1301 (Cal. App. 2d Dist. 1990) & Commonwealth v. Kean, 382 Pa. Super. 587 (Pa. Super. Ct. 1989).

The tort of the intrusion into private affairs requires a Plaintiff prove the following in California against Santa Claus:

John Doe claims that Santa Claus violated his right to privacy. To establish this claim, John Doe must prove all of the following:

1. That John Doe had a reasonable expectation of privacy in sleeping at home in his bed;

2. That Santa Claus intentionally intruded in John Doe’s protected activity by watching John Doe 24 hours a day since Doe’s birth;

3. That Santa Claus’s intrusion would be highly offensive to a reasonable person;

4. That John Doe was harmed; and

5. That Santa Claus’s conduct was a substantial factor in causing John Doe’s harm.

In deciding whether John Doe had a reasonable expectation of privacy in sleeping at home in his bed, you should consider, among other factors, the following:

(a) The identity of Santa Claus;

(b) The extent to which other persons had access to John Doe’s bedroom while Doe slept and could see or hear John Doe; and

(c) The means by which the intrusion occurred.

In deciding whether an intrusion is highly offensive to a reasonable person, you should consider, among other factors, the following:

(a) The extent of the intrusion;

(b) Santa Claus’s motives and goals; and

(c) The setting in which the intrusion occurred.

1-18 California Forms of Jury Instruction 1800

The Trial of Santa Claus for violating John Doe’s privacy rights would raise many interesting questions that would focus on Santa Claus’s abilities to watch others. How does Santa see you when you are sleeping? Does Santa focus on specific individuals to check on behavior? Or, is it something Santa cannot himself focus, like hearing the roar of a crowd at a baseball stadium, instead of one conversation? Simply put, does Santa simply know when everyone is sleeping vs setting up a global camera network to spy on people?

What are John Doe’s damages to Santa knowing when Doe is sleeping? How is Doe harmed by Santa being aware of Doe’s sleep habits? Santa is not publishing Doe’s activities, but merely rewarding good conduct annually with a present under the Christmas Tree. With that said, there is still a creepy factor to knowing a man is watching Doe sleep.

Negligent Infliction of Emotional Distress

There is a good argument that Santa Claus watching John Doe can cause negligent infliction of emotional distress.

Generally, to prove this tort, a party must establish the following:

(1) Defendant’s negligence caused Plaintiff’s emotional distress,

(2) Resulting in physical harm manifested by objective symptomology, and

(3) A reasonable person would have suffered emotional distress under the circumstances.

Kunesch v. Noyes, 29 Mass. L. Rep. 625 (2012).

John Doe would first have to demonstrate negligence on the part of Santa Claus and that Doe suffered physical harm that a reasonable person would also suffer.

Doe cannot simply say he suffered from stress at a deposition. Doe ideally would have physical harm, such as loss of sleep, ulcers, and related harm that can either be confirmed by a medical professional or reported to others to verify the harm.

Trespass of the Bells

Santa Claus is trespassing in homes across the planet. Under California Penal Code section 602(m), a person commits a misdemeanor by “Entering and occupying real property or structures of any kind without the consent of the owner, the owner’s agent, or the person in lawful possession.”

A very good argument can be made that Santa is not trespassing, because he is invited into homes for gifts by the homeowners leaving cookies and milk out for him.

If Santa is invited into homes with the cookie invitation, he technically is an “invitee.” As an invitee, the homeowner would have a duty to Santa Claus to inspect the property for anything dangerous and warn Santa of any dangers (See, Black’s Law Dictionary iPad App). As such, if someone is leaving out cookies and milk, also starting a large fire or leaving toys out as a trip hazard would put Santa at risk of injury.

The Naughty or Nice List

The public has a right to be concerned with someone who can watch the world sleep.

However, if people also leave cookies and milk out to invite Santa Claus into their homes, any claims for invasion of privacy are lost by the implied social contract to be nice in exchanged for gifts.

A Hobbit’s Overview of Property Rights

Josh Gilliland

December 13, 2012

Cue the sweeping music and prepare yourselves for an unexpected journey into property rights.

The Hobbit and The Lord of the Rings are not just epic stories, but ones of basic property ownership.

My first law school reading assignment was for Property and understanding the concept of “a bundle of sticks.” This was not an epic journey across Middle-Earth, but over centuries of how human beings “own” property.

And what is the One Ring? It is a thing. And a thing is something that is owned.

So, who owns the One Ring?

A Timeline for My Precious

Sauron created the One Ring; defeated by Isildur;

Isildur, killed at Battle of the Gladden Fields. The One Ring is lost in the Gladden river for over 2,500 years;

Déagol discovered The One Ring on a fishing trip;

Sméagol murdered Déagol and took the Ring for himself. Sméagol becomes Gollum;

After 500 years in the Misty Mountains, the Ring falls off of Gollum’s finger after killing a goblin;

Ring found by Bilbo Baggins; Subsequently won in a game of riddles from Gollum;

Bilbo gives the One Ring to Frodo Baggins;

Samwise Gamgee takes possession of the One Ring after Frodo is thought dead; returns Ring to Frodo after rescue;

Gollum retakes Ring by biting off Frodo’s ring finger.

(Timeline from Timeline of Arda and The One Ring; it is worth noting that both Gandalf and Tom Bombadil each briefly held the One Ring)

“Short cuts make for long delays.”

As a preliminary matter, let’s review some basics of Property law.

Black’s Law Dictionary iPad App defines “property” as follows:

1. The right to possess, use, and enjoy a determinate thing (either a tract of land or a chattel); the right of ownership <the institution of private property is protected from undue governmental interference>. — Also termed bundle of rights. 2. Any external thing over which the rights of possession, use, and enjoyment are exercised

Black’s Law Dictionary iPad App defines “lost property” as “Property that the owner no longer possesses because of accident, negligence, or carelessness, and that cannot be located by an ordinary, diligent search.”

Generally speaking, and this will vary state to state, someone who finds mislaid property has no right to it; a finder is entitled to possession of lost property against everyone except the true owner; and a finder is entitled to keep abandoned property. Wikipedia, citing Michael v. First Chicago Corp., 139 Ill. App. 3d 374, 382, 487 N.E.2d 403, 409 (1985).

“The road goes ever on and on”

Sauron was unquestioningly the original owner of the One Ring as its creator. This gave him the right to possess, use and enjoy The One Ring. However, during the final battle with the Elves and Man, Isildur cuts off Sauron’s finger, thus destroying Sauron’s physical form.

Isildur became the rightful owner of the One Ring after Sauron’s defeat as a “spoils of war,” which is property taken from the enemy in wartime operations. (See, Black’s Law Dictionary).

The One Ring is lost for over 2,500 years after Isildur’s death. Given that amount of time and no rightful heirs looking for the One Ring, Déagol became the owner of the One Ring once he found it in on his ill-fated fishing trip as a treasure trove or abandoned property.

Sméagol’s murder of Déagol did not make Sméagol the owner of the One Ring. One cannot benefit lawfully from committing a crime. While Sméagol was in possession of the One Ring for 500 years, he was never the lawful owner due to the murder.

Even if one can argue there was an undue influence over Sméagol from the evilness of the One Ring, Sméagol still killed Déagol to get the Ring. While the “control” of the Ring might not make Sméagol guilty of murder based on an insanity defense similar to the Twinkies Defense, it does not make him innocent of killing Déagol. A Court would be hard pressed to somehow have Sméagol inherit the Ring from Déagol based on the influence of the One Ring to drive Sméagol to kill, even if it was mutual combat from both Hobbits being corrupted by the One Ring.

Things get tricky with Bilbo acquiring the Ring. Technically, the One Ring was no longer in Gollum’s possession, as it had slide off Gollum’s finger. This raises issues of whether the Ring was lost or abandoned. The answer may turn on how much time had passed since the Ring had fallen off of Gollum’s finger on whether it was “lost” or “abandoned.”

Arguably, Bilbo found “lost” or abandoned property that was never lawfully Gollum’s. However, if the Ring was not considered abandoned, Bilbo’s games of riddles with Gollum would show a lawful transference of ownership, if Gollum had perfected title somehow (Gollum did have the Ring for 500 years without being challenged).

This theory is problematic, because it would require 1) murder being cured for ownership; and 2) Bilbo found the Ring before encountering Gollum while navigating his way through a pitch black tunnel. One could argue the Ring appeared abandoned to Bilbo, opposed to simply misplaced. However, if Bilbo was on notice the Ring belonged to Gollum, Bilbo could have problems with unlawfully taking the Ring. With that said, since Gollum planned to kill and eat Bilbo, Bilbo arguably took the Ring out of self-defense.

Bilbo made a direct gift of the Ring to Frodo. As such, the Ring properly belonged to Frodo as a gift and in his possession for 17 years [in the book; the filmed moved a lot faster]. However, after Gandalf’s return and the Ring is placed in fire, the text on the Ring was arguably a 3,000 year old mark of appropriation by Sauron.

A mark of appropriation is a way of showing ownership over an item with an identifying marking.

In the classic case of Ghen v Rich, a whaler was held to be the owner of a finback whale he harpooned because of the distinguishing markings of the bomb-lance. In effect, Ghen marked the whale as his own.

Arguably, Sauron had a mark of appropriation on the Ring showing he was the owner. Additionally, if Middle-Earth, and the Shire specifically, had laws like California that prohibit the appropriation of lost property when there are clues to the proper owner (CA Penal Code 485), Frodo would have to make reasonable efforts to notify Sauron that he (Frodo) had the Ring.

However, the mark of appropriation arguably would not be a valid claim of ownership due to the fact 3,000 years had past and that Sauron lost the One Ring when he was defeated by Isildur.

Assuming that Frodo was the proper owner, Sam briefly was the bailee of the Ring when Frodo was injured by the spider Shelob. While Sam first thought Frodo was killed (and thus took the Ring to keep it out of the enemy’s hands), Sam’s duty was to keep the Ring safe until he could return the Ring to Frodo as a bailee.

In the final battle at Mount Doom, Gollum once again steals the Ring by biting it off Frodo’s ring finger (raising many issues of intentional torts and criminal liability). However, this criminal possession is short lived as the Ring and Gollum fall into lava.

There And Back Again

Property rights give the owner the right to enjoy property and exclude others from using it. J.R.R. Tolkien may not have intended for his epic story of good vs evil to highlight issues of property rights, but Hobbits are not the only ones who take unexpected journeys.

Catch You Later: The Serenity of Being a Whistleblower

Josh Gilliland

December 4, 2012

Stories of “whistleblowers” exposing government corruption have been popular for as long as there have been governments.

However, to what extent are “whistleblowing” movies within the scope of whistleblowing laws?

Moreover, how do these rules apply when the government’s form of retaliation is to kill the whistleblower?

Whistle While You Work

Whistleblowing is defined under the Black’s Law iPad App as “An employee who reports employer wrongdoing to a governmental or law-enforcement agency. Federal and state laws protect whistleblowers from employer retaliation.”

Here are examples of whistleblower statutes for government employees:

(1) (a) An employer may not take adverse action against an employee because the employee, or a person authorized to act on behalf of the employee, communicates in good faith the existence of any waste of public funds, property or manpower, or a violation or suspected violation of a law, rule or regulation adopted under the law of this state, a political subdivision of this state or the United States. Such communication shall be made at a time and in a manner which gives the employer reasonable opportunity to correct the waste or violation.

Idaho Code § 6-2104 (2012)

An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment:

(1) Because the employee, or a person acting on behalf of the employee, reports or is about to report to a public body, verbally or in writing, a violation which the employee knows or reasonably believes has occurred or is about to occur, unless the employee knows or has reason to know that the report is false; or

(2) Because an employee participates or is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action, in connection with a violation as defined in this chapter; or

(3) Because an employee refuses to commit or assist in the commission of a violation, as defined in this chapter;

(4) Because the employee reports verbally or in writing to the employer or to the employee’s supervisor a violation, which the employee knows or reasonably believes has occurred or is about to occur, unless the employee knows or has reason to know that the report is false. Provided, however that if the report is verbally made, the employee must establish by clear and convincing evidence that such report was made.

19 Del. C. § 1703 (2012)

Here are the basics of whistleblowing: Employers cannot punish an employee who is lawfully reporting to the government or law enforcement of the employer’s wrongdoing. This usually involves unlawful or wasteful government action, but there are private sector examples (think Karen Silkwood).

Let’s review three movies where the heroes “reported” violations of the law:

LA Confidential: On the Q-T And Always Hush Hush

Murder, drugs, vice, blackmail, and police cover-ups in post-World War 2 Los Angeles dominate the classic LA Confidential.

The multiple crimes are as complex as the LA freeway system. However, the goal of the dirty cops was simple: take over Mickey Cohen’s drug racket.

LA Confidential raises several twists with being a whistleblower. One was the DA was being blackmailed, thus destroying his ability to press any charges and making him a de facto co-conspirator by his silence. Second was the corrupt cops were killed in a gunfight while attempting to murder the remaining heroes. The story of how bad their actions were would have destroyed the reputation of the department for decades, so everyone participates in a cover-up.

The good guys win, but not by following the law. The authorities opt for the noble lie opposed to destroying the legitimacy of law enforcement with the truth. While this legally is abhorrent, the Machiavellian reasoning makes sense for the greater good [of the elected officials].

With that said, no Mayor, District Attorney, Police Chief or other elected or appointed government official should think cover-ups are a good idea. It always ends badly.

Blue Thunder: One civilian dead for every ten terrorists. That’s an acceptable ratio.

….Unless you are one of the civilians.

Blue Thunder was the story of the military developing an armed police helicopter prior to the 1984 Olympics in Los Angeles to combat terrorism. No one wanted a Munich repeat.

The political back story was the for the helicopter to be used to put down “civil disobedience” such as riots and eliminate political enemies. Moreover, there are unexplored 4th Amendment issues of the police having a silent helicopter that could record infrared video and audio of an unsuspecting public. Additionally, in the days long before the Internet and Google, the police had access to computer network of home security systems to know if homeowners were home.

The hero Frank Murphy, played by Roy Scheider, uncovered the secret purpose of Blue Thunder on a test flight, plus a conspiracy by Feds to kill him. Murphy’s whistleblowing actions included stealing the helicopter and having his girlfriend deliver an infrared video and audio recording to a news channel with Feds engaged in conspiracy planning. Along the way, the following property damage takes place:

2 Police Helicopters Crashed
1 Police Car Shot in Two
1 Police Motorcycle Crashes
1 BBQ Restaurant Hit by Heat Seeking Missile
One Downtown LA Building Hit by a Missile
1 F-16 (Which had to crash in downtown LA)
1 Military Helicopter
1 Freight Train Runs over Blue Thunder
Blue Thunder itself is Destroyed

Blue Thunder is problematic, because the amount of property damage and threats to life push whistleblowing, the necessity defense and self-defense to new limits (it is worth noting Murphy does not appear to get a police officer or member of the public killed). However, normal whistleblowing reporting was unavailable, due to political assassination of a city council woman, the murder of Murphy’s partner, and the active plot to kill Murphy, extreme measures appeared to be the only option. Time was also of the essence before the recording would be destroyed, resulting in the loss of evidence.

While no one gets killed on screen during Murphy’s flight besides the villain, this whistleblowing would be an insurance nightmare and have an extreme amount of litigation.

Serenity: They Won’t See This Coming

Malcolm Reynolds and the crew of Serenity were whistleblowers, provided the Alliance had allowed a private right of action to report on government corruption.

In the film Serenity, the Parliament experimented on the population of the planet Miranda in an attempt to weed out aggression. It did not work, resulting in 30 million dead and the creation of the Reavers, insane cannibalistic madman lacking any social structure.

The crew’s attempt of broadcasting a report from Miranda that exposed the government wrongdoing is whistleblowing in the purest sense. However, spaceships, gunfights and cannibal rapists on the other hand are generally not involved whistleblowing stories.

Whistleblower Ballads

Whistleblower movies far exceed the act of simply reporting unlawful activity. With few exceptions, whistleblowing does not have attempted murder of the whistleblower. However, it has someone brave enough to report the violation, which then results in lawyers conducting document review to find out what happened. This is less exciting than spaceships, helicopters and shootouts.

A story slightly closer to the truth on whistleblowing would be Michael Clayton. Granted, this story does involve corporate counsel organizing the murder of trial counsel (which is not the proper response to an attorney violating the duty of loyalty, attorney-client privilege and work product doctrine). However, it does end with the attorney hero getting an incriminating statement from corporate counsel for the police to start arresting corporate counsel and other executives.

Lawyers & Pop Music: Would the Police Open Fire on Ke$ha?

Josh Gilliland

November 30, 2012

Lawyers and pop music rarely mix.

Jackson Brown’s Lawyers in Love is Exhibit A of the musical challenge in writing legally themed songs.

Moreover, attorneys frequently expect lyrics that include “whereas” and “herein after,” which cause challenges for most vocal artists.

Additionally, attorneys will kick into issue spotting mode while watching music videos.

I befell that curse and endured a serious migraine from the legal issues presented in Ke$ha’s Die Young music video.

I am sure English teachers had similar freak out nosebleeds from the use of the non-word “childs” in the song.

Here are legal issues depicted in the Die Young video:

Trespassing on a church (possibly abandoned or condemned)

Probable cultist activity evidenced by pentagrams

Engaging in conduct that Professor Charles Whitebread said would never be on a bar exam and surely vindicates Tipper Gore’s views on music warning labels

Disturbing the peace

Possible permit issues on holding a public concert/dance/parade/protest

Let’s explore the trespassing in the church and the ultimate police involvement.

Under California Penal Code section 602(m), a person commits a misdemeanor by “Entering and occupying real property or structures of any kind without the consent of the owner, the owner’s agent, or the person in lawful possession.”

Ke$ha’s kicking down the door clearly demonstrates entering an area without the consent of the owner.

Moreover, the property is then occupied by her gang of back-up dancers, meeting the “entering and occupying” requirements of the statute.

What is unclear is whether the pentagrams were added by Ke$ha’s followers or already existed in the church. If added by the “Ke$hans,” there would be additional vandalism charges.

Arguably placing pentagrams in a church could be a hate crime under California Penal Code 422.6, because the pentagrams 1) defaced the church property and 2) the placement of the pentagrams would cause intimation or interference with the church parishioners’ Constitutional right to practice their religion under the First Amendment.

However, if the property was condemned or otherwise deemed unusable, there probably was not a hate crime, due to the lack of individuals using the church, thus no one to intimidate. However, there was still no legal right for the dance trope to enter the property, thus meaning there was still a trespass. Simply put, if the state condemns property for habitation, you have no legal right to enter it.

Disturbing the peace (also known as breach of the peace) is the criminal offense of creating a public disturbance or engaging in disorderly conduct, such as making a distracting noise. (See, Black’s Law Dictionary). California Penal Code section 404(a) states:

Any use of force or violence, disturbing the public peace, or any threat to use force or violence, if accompanied by immediate power of execution, by two or more persons acting together, and without authority of law, is a riot.

California Penal Code section 405 states:

Every person who participates in any riot is punishable by a fine not exceeding one thousand dollars, or by imprisonment in a county jail not exceeding one year, or by both such fine and imprisonment.

Would the Ke$hans’ actions be considered a riot under California law? This would require the kicking in of a door, followed by dancing, music and criminal congress to be either be 1) through force or violence, or 2) disturbing the peace, to qualify as a riot under California law. The facts do not support “through force or violence,” (besides kicking down one door), so the issue turns on disturbing the peace. The answer may turn on one simple issue: how loud were they?

The biggest oddity was the arrival of the police (who appeared to have been Mexican Federal Police), who opened fire on the Ke$hans.

The crime of trespassing is a misdemeanor (and unlikely a “shoot first” crime in Mexico). Moreover, loud parties normally do not end in police gunfire without a public threat.

While it is highly appropriate for the police to break up a breach of the peace and arrest trespassers, shooting at everyone appeared to have no legal justification.

Unless these were the grammar police and the use of the non-word “childs” is all that is required for lethal force.

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