Jessica and I are extremely proud to celebrate our second anniversary on The Legal Geeks. We have had a wonderful adventure discussing all things geek since July 2012. We were honored to have Kristen Nedopak, creator of The Geekie Awards, join us for a special “cotton” anniversary podcast.
Jessica Mederson and I started our adventure on The Legal Geeks on July 12, 2012. The past two years have been a wonderful experience providing legal analysis of comics, science fiction, and pop culture. Meeting our fellow geek lawyers who love sci fi has been extremely rewarding.
The last twelve months have been incredible, with our Honorable Mention at the 2013 Geekie Awards for our podcast with Judge Sciarrino AND making the ABA Journal Blawg 100.
I want to thank everyone who has supported us. I am always humbled when people come up to me at an event to say they read our blog. We hope you continue to enjoy The Legal Geeks.
The Legal Geeks Year 2
The last year has been a fun time to be a geek. I loved blogging about Agents of SHIELD each week, the fantastic issues in Captain America The Winter Soldier, and I could have taught law school classes from Almost Human. The celebration around the 50th Anniversary of Doctor Who also provided many opportunities to pick up action figures and go full geek at Gallifrey Stands!
I cannot wait for Guardians of the Galaxy, Agent Carter, The Flash, Sleepy Hollow, Gotham and the other wonders awaiting in the fall.
Let’s Get Geekie
One of my ideas of fun is connecting the law to science fiction. For example, if we discovered a colony of dinosaurs, would they be protected by the Endangered Species Act? Moreover, would the Dinobots of Transformers fame qualify as an “Endangered Species”? And the question everyone wants an answer to, could the US Department of Fish and Wildlife STOP Steven Spielberg once and for all from hunting fictional dinosaurs?
Before anyone running for Congress puts out a 7 figure bounty for naked photos of one of the best directors who ever lived for “hunting” a triceratops, let’s break down the legal issues of Dinosaurs and Dinobots:
First, a “species” is “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” 16 U.S. CODE § 1532(16).
Second, a species is “endangered” if it is “in danger of extinction throughout all or a significant portion of its range.” 16 U.S. CODE § 1532(6).
Third, a species is “threatened” if it is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. § 1532(20). Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1202 (D.C. Cir. 2013).
There is no doubt that a dinosaur would qualify as a species. Depending on its food supply and potential interruption of its range would determine if it would be endangered or threatened. It might simply be rare and something to be left alone. Unless you want a 40 foot eating machine to turn you into a snack.
A Dinobot such as Grimlock is a bit more complicated because he is a living alien machine (in the movies). A Dinobot might not qualify as a “species” under the law, because the law is not designed for alien robots. It is still unclear if Transformers breed, because of the line in Age of Extinction about Optimius Prime being created not born, vs the dialog between Megatron and Starscream in Dark of the Moon about the “hatchlings,” implying either procreation or construction.
As for Steven Spielberg who has made going to the movies since 1975 AWESOME, he was sitting next to a prop of an animal that went extinct over 65 million years ago. If one were alive, you know Spielberg would help it go home.
I’ll Be Right Here
I want to thank everyone who has read our blog for the last two years.
The ABA Journal is now accepting “Friend of the Blawg” briefs for the ABA Journal Blawg 100. If you enjoy our blog, we would be honored to have your nomination.
Until then, we will continue to steer for the second star on the right to the future.
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 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.
My 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.
Sonny’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.
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.
We 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.
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).
I 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.
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.
Magistrate 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.
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“?
The 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)).
The 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.
Ginger 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.