A Hobbit’s Overview of Property Rights

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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

By

Josh Gilliland

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December 4, 2012

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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;

or

(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?

By

Josh Gilliland

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November 30, 2012

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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.

Battlestar Galactica: Lawyers & Frakking Toasters

By

Josh Gilliland

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November 20, 2012

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Battlestar Galatica, both the first and second series, highlighted an usual theme in military discipline: NOT following orders.

Funny thing, it was great at saving the human race. And no one got a court-martial for saving humanity.

A constant in both series is reflecting values of the late 1970s and 2000s respectively, illuminating political and legal issues like the Eye of Jupiter.

Both also have Starbuck saying frak.

Let’s spin up the FTL and jump into the legal, political and historical issues of Battlestar Galactica.

Battlestar Galactica: 1978

The original Battlestar Galactica appeared on my birthday in 1978. The show had an Anti-Detente theme, evidenced in the Colonial Fleet on its way to a peace summit to end a war, instead resulting in the genocide of the human race. The Colonial President was both ignorant of warning signs and unable to respond when attacked. Humanity survived because of military officers recognizing warning signs and ignoring Presidential orders.

As further evidence of Cold War realities of the time, in the episode Experiment in Terra, Apollo states that there could only be “peace through strength” to a nation of humans in a Cold War about to go nuclear after their Neville Chamberlain-esq president signed a “peace for our time” treaty with the East.

Shortly after the dovish president gave his speech, nuclear missiles were launched by the opposing fascist country.

Full nuclear war follows through an automated response system (highlighting mutually assured destruction only works when both sides do not want war).

Luckily for the planet Terra, the Galactica was in orbit and shot down the ICBMs, perhaps showing a rejection of President Richard Nixon’s ABM Treaty with the Soviet Union.

Despite being written when Jimmy Carter was President of the United States, you cannot help but wonder if there were Ronald Reagan or Senator Henry “Scoop” Jackson supporters on the show.

Saga of a Star World

In the Saga of a Star World, civilian leaders had a plan for extreme appeasement, thinking that if they totally disarmed, they would show the Cylons that humanity was not a threat to the Cylon Empire, thus resulting in peace.

It was a bad plan.

The Fleet survived because the military leaders (Commander Adama and Colonel Tigh), secretly refused to follow orders and kept the pilots on the ready to counter an expected surprise attack. Commander Adama even went so far to comment on discussing “discipline in the ranks” while defending the Fleet that otherwise would have been destroyed if they had followed civilian orders.

Lost Planet of the Gods, Parts 1-3

As the series progressed, the stories addressed recruiting new Viper pilots. While the Galactica had female bridge officers (including Adama’s daughter, who did not exist in the second series), the fighter pilots were all male at the beginning, but quickly became co-ed. This parallels the US military, which did not have a female carrier-based fighter pilot until Kara Spears Hultgreen in 1993.

Apollo married a female pilot named Serina (played by Jane Seymour), who was also a single mother of a boy named Boxey. Pro forma, she is killed within one episode. Apollo adopted the son with no mention of any adoption proceedings, hinting that a second marriage included adoption rights (or Serina was very prompt at filing out a will).

There is also a noticeable legal issue of the Boxey being left in the company of the male fighter pilots while drinking and gambling way past bedtime, raising potential delinquency of a minor issues.

Murder on the Rising Star

The original Battlestar Galactica had one “courtroom” episode where Starbuck was on trial for murder of a rival Triad player. It was interesting to see in BSG that the “defense attorney” was called a “protector.” The story briefly touched on ethical issues of the DA commenting on a case to the press. There was also one tortured witness scene where Boomer made a poorly executed, but correct, “facts not in evidence” objection.

Skinjobs & Toasters: A Battlestar Galactica for the 21st Century

The 21st Century retelling of Battlestar Galactica provided leaders who attempted to see the world black and white as they would have in the Cold War.

However, post-War on Terror, the enemy could look like anyone (something that eventually happened in Battlestar Galactica 1980).

Moreover, think about what would happen in the United States if our population was reduced to enough people to fill a baseball stadium. Society’s values would be put through a meat grinder. People would focus more on loyalty to each other for survival and less on the rule of law. That is effectively what happened in Battlestar Galactica.

There are dozens of potential legal issues in BSG, Caprica, Razor and Blood & Chrome. Caprica went so far as having Adama’s father bribing judges, something never legal. The prequel even included group marriages, which legally would get complicated during a divorce in a community property state.

Focusing on Battlestar Galactica, several issues immediately jump out:

Presidential Succession: Roslin was sworn in by Priest, showing no separation between church and state;

Commander Adama attempted a coup d’état against President Roslin;

Admiral Cain on the Pegasus had her men torture & rape the Cylon Number 6 “Gina Inviere”;

Commander Adama planned to have Starbuck kill Admiral Cain; Admiral Cain had planned for her Executive Officer Jack Fisk to kill Adama;

President Roslin attempted to steal a Presidential Election;

Colonel Tigh used suicide bombers on New Caprica;

Commander Lee Adama violated Admiral Adama’s orders during the rescue of New Caprica (which saved the day);

Coup d’état by the Vice President Tom Zarek, complete with assassinating political leaders and attempted forced confession of Admiral Adama;

Execution of Vice President Tom Zarek and mutineers (most likely without a trial);

Admiral Adama drinking and taking pills while giving orders.

There are many, many, more legal issues in the series. For example, the co-ed bathrooms showed the employment lawyers had probably all been killed early in the war. Alternatively, the ship was built quickly for the Cylon War for an all male crew and later integrated.

Crossroads Parts 1 & 2

The trial of former President Baltar addressed many trial advocacy issues. The charges against Baltar focused on his surrender on New Caprica to the Cylons and the following collaboration with the enemy, including death orders signed under duress.

The defense strategy focused heavily on witness impeachment, which included Colonel Tigh being drunk on the stand, admitting to the use of suicide bombers and murder of his wife for collaboration.

Further witness impeachment included President Roselyn admitting her cancer returned and admitting she was being treated with drugs that caused an altered mental state.

There are also perjury issues with Lt. Felix Gaeta’s testimony, omitting that Baltar had a gun to his head when he signed a death order.

Lee Adama was called as a witness for Baltar to impeach Admiral Adama sitting as a who judge had already determined Baltar was guilty. This legal strategy was problematic, due to Lee Adama also being one of two defense attorneys and the Admiral also being Lee’s father. The ABA Rules of Professional Conduct Rule 3.7, say the following on attorneys serving as witnesses:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services rendered in the case; or

(3) disqualification of the lawyer would work substantial hardship on the client.

(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9 [both address conflicts of interest].

There is a good argument that disqualifying Lee Adama from testifying about a biased judge would cause “substantial hardship” on Baltar, because it went to the heart of whether the accused could have a fair trial.

Lee Adama’s testimony focused on his opinion that the Fleet was a gang on the run, no longer a society, that had forgiven everyone else of all crimes that had been committed, such as his father’s military coup d’état and numerous other examples.

However, with Baltar, the Fleet wanted blood for his Cylon collaboration when the other option was extermination.

Baltar was correctly acquitted on the collaboration after surrender chargers, but he could have been convicted of treason for giving a nuclear weapon to the Cylon Number 6 Gina Inviere, which she used to blow up the vessel Cloud Nine and several other ships.

Giving Inviere a nuclear weapon that resulted in the loss of hundreds, if not thousands, would have been an impeachable act of treason. Additionally, the radiation allowed the Cylons to find New Caprica, which could have been added to the treason charges.

So Say We All

Science Fiction always reflects the times in which it is written.

Battlestar Galactica is no exception, whether it was made during the Cold War or War on Terror.

Both series demonstrate a frequent lack of following usually civilian orders, which were necessary to save humanity from extinction.

However, the lawsuit that Battlestar Galactica infringed on Star Wars will be discussed another time…

There Will Always Be Heroes: Thoughts on Veterans Day

By

Josh Gilliland

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November 11, 2012

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We have no shortage of heroes to honor on Veterans Day. So on this eleventh day of the eleventh month, I always think of the two greatest men I have known who served our country: My grandfathers.

Grandfathers-ParentsWedding — My grandfathers at my parents wedding.

Both of my grandfathers served their country in very different ways during World War II: My maternal grandfather in the Navy; my paternal grandfather at Lockheed.

Gramps

My material grandfather was a dentist, who married a beauty queen and adopted two daughters. He worked his way through dental school at a candy shop.

The son of an Iowa farmer, he served as a corpsman on the USS Boxer during World War II. She was a brand new aircraft carrier built for the invasion of Japan.

Shortly before my grandfather’s 90th Birthday, he shared with us his life story. Below he discussed his service during World War II.

One day on duty in the sick bay, my grandfather treated the CAG. In their discussion, my grandfather expressed his desire to go for a flight off the USS Boxer. The CAG offered a flight to pick-up mail the next morning and for my grandfather to meet him on the flight deck at 0800.

My grandfather found himself helping in a late night surgery to save a sailor’s life. Since the surgery went past 0200, the medical team was allowed to sleep in. My grandfather missed his flight.

The CAG had a power failure on take off. He crashed in the ocean, body never recovered.

Papa

My paternal grandfather was Harold William Lowe Gilliland. People called him Gill. I called him Papa.

Papa was born in 1912, the son of the Sheriff in Ventura, California.

Papa-FlightSuit-A — My grandfather at Cal Poly in 1932.

When my grandfather was 20 years old at Cal Poly, he served in what was an early version of the California Air National Guard. While working the flight line, he went to set the propeller on the training plane. The last pilot left the ignition engaged. As Papa set the propeller into position, the engine started and struck him.

Papa was cut into two uneven pieces. He described the experience to me when I was a boy: Knocked to the ground in a blur, seeing his left arm flaying around wildly.

The doctors did not expect him to live.

Harold William Lowe Gilliland recovered fully from what should have been a fatal injury. However, his dreams of being a pilot ended in the blur of a propeller blade.

Papa went on to become an aeronautical engineer. He was Amelia Earhart’s mechanic who specialized on the fuel system for her around the world flight. “Gill” was also given the honor of pushing the gangway to the side of the Lockheed Electra for Earhart.

Howard Hughes had a direct line to my grandfather’s house. Hughes’ phone calls in the middle of the night drove my grandmother crazy.

Papa met Orville Wright on Wright’s last flight. The pilots on the flight were Hughes and the president of TWA.

My grandfather was in charge of nighttime B-17 production at Burbank during World War II. Papa befriended the janitor at the Burbank B-17 factory.

I always found it impressive that the man who was on a first name basis with the president of Lockheed was a buddy with the young man who swept the floors.

The young janitor turned 18 and enlisted in the Army. He came back to the Burbank plant to show his pride in wearing his country’s uniform. He wanted to say good-bye to his friend before shipping out.

The guard at the front gate did not let the young soldier in the plant, because of the color of his skin.

The young soldier died liberating Europe.

My grandfather regretted not saying good-bye until the end of his life.

Papa&B17 — My grandfather looking at a B17 he most likely built.

In 1985, Papa and I toured an old B-17 at the Oshkosh Airshow. There was an old pilot in the cockpit that engaged my grandfather in deep conversation about the Flying Fortress. The pilot asked my grandfather how he knew so much about the plane. My grandfather’s answer was very short: “I built them.”

I will never forget the pilot’s response: “Then thank you for getting me home.”

It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced.

President Abraham Lincoln, Gettysburg Address

The United States is a great country because of the Americans who have made it great. My grandfathers were just two men in the long line of people who served their country to help make our nation great.

Many who did the fighting and dying never had the opportunity to go home; they never had a chance to enjoy a long life. We cannot forget those who never got to go home, whether they crashed in the sea or died liberating another country.

The United States will always have those who threaten our freedom and way of life. And we will always have those who take an oath to uphold and defend the Constitution. When you see one has served, or is serving, thank them.

Being a Super Hero Only Looks Good in Comic Books

By

Josh Gilliland

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November 5, 2012

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Many people hear the call of service and want to wear body armor and a cape. However, this is a profoundly bad idea. The law strongly disfavors ordinary citizens becoming vigilantes. Moreover, we have no known aliens with amazing powers, individuals enhanced by government experimentation or human hybrids with other humanoid species flying around major US cities.

With that said, who doesn’t like comic book super heroes? And for all the super lawyers out there, what legal issues are there in fighting crime after being given a magical amulet?

Vigilantism is defined in Black’s Law Dictionary as, “The act of a citizen who takes the law into his or her own hands by apprehending and punishing suspected criminals.”

“Vigilantism” is also defined under case law as “unreasonable self-help action by citizens that tends to disrupt the administration of the criminal justice system.” State v. Johnson, 1998 NMCA 19, P 15, 124 N.M. 647, 954 P.2d 79.

So, what does this mean for all of our comic book super heroes? Let’s review the different types of heroes to see who is a vigilante vs those engaging in law enforcement.

Criminals Are a Cowardly Lot…

Comic characters who take up arms and hunt criminals are with little question vigilantes. Examples on one extreme would be the Punisher and the other Batman. Both lost family members and took up arms to stop criminals.

There are obvious differences between the two, besides Marvel and DC. Punisher kills, where Batman has rules against killing (unless you are Darkside in Final Crisis). However, while the Punisher is not operating under any color of law besides avenging “justice” by killing criminals, Batman at least has tacit consent by Gotham City’s use of the Bat Signal to call for Batman’s help (perhaps showing Batman is deputized by local law enforcement).

Brilliant, Well-Funded & Armed

Tony Stark and Hank Pym are prime examples of the brilliant scientists who engineer super-human powers for themselves.

Some of these characters are defined in role playing games are “high tech wonders” and others “altered humans.” The key is whether they are using technology or has science changed their bodies.

For Stark his power is an advanced body armor that serves as a weapons platform; Pym his “Pym Particles” who he used to shirk or grew, depending on the decade and which identity Pym was using to fight crime (Ant Man, Giant-Man, Goliath, Yellow Jacket, or Wasp).

Granted, Batman could also fall in this category given his utility belt and advanced weapons. However, Batman uses more of his body through training as a weapon, where heroes such as Iron Man have built full blown body armor.

Iron Man falls in an interesting category, because the character was originally his alter ego’s body guard. Additionally, with Tony Stark being a Cold War weapons manufacturer, Marvel had a character arguably who was different than a vigilante. The issue would turn on whether Iron Man was operating as Stark’s body guard or going beyond such services (or a private citizen developing his own foreign policy arguably during the Armor Wars, something else frowned upon under the 1799 Logan Act).

Granted, Tony Stark eventually went public with his secret identity and held such positions as Secretary of Defense and Director of SHIELD. Under these positions, Stark was acting within the “police powers” of the Government.

Government Sponsored Heroes

The [fictional] United States Government has created and sponsored various super heroes. The most notable of course being Captain America.

Pursuant to Article I, Section 8 of the United States Constitution, Congress can “raise and support armies…” In a world where villains (especially if sponsored by a foreign power) can blow up buildings, Congress raising an army of super humans would not be out of the realm of possibility.

These heroes might have Posse Comitatus Act issues without specific legislation, but if authorized by Congress, would be the most “legal” form for a super hero to be operating within the law.

State-sponsored heroes would also need to follow the US Constitution and our laws on search, seizure and arrest. With that said, how many times in the comics has a super hero read a villain their Miranda rights?

A spin on this would be Green Lantern. While not authorized by Congress, Hal Jordan was selected by a Green Power Ring created by the Guardians of the Universe to protect Sector 2814. In essence, Green Lantern is a cosmic police officer. While the Guardians are free to create whatever selection criteria for the Green Lantern Corps, there would still be jurisdictional issues of a “alien” government setting law enforcement terms within the United States (or any country on Earth).

However, if a giant red alien shows up and starts eating buses with school children, elected officials probably will let that detail slide.

You’re Not Just Anyone

Superman is perhaps the most classic super hero of all time.

Superman arguably started out as a vigilante for a brief period of time, but since he at first represented “truth, justice and the American Way,” he was a symbol of working within the system.

This was also evidenced in such classics as Frank Miller’s The Dark Knight Returns (where Superman worked for the American government, which had banned heroes) and New Frontiers (which also banned heroes).

On the flip side, if a “person” can jump tall buildings in a single bound and is faster than a speeding bullet, society would accept his help. I mean, who would stop him?

If There Were Heroes…

If there were super heroes, the world of Powers probably would be the most on point on what that society would look like, complete with fans treating the “powers” like sports figures or movie stars. There would be regulation if not an outright ban on being a hero, because society would not tolerate mega-humans blowing up schools or throwing cars at people.

However, we will discuss Who Killed Retro-Girl another time.

What’s This? What’s This? Jack Skellington and False Impersonation

By

Josh Gilliland

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October 31, 2012

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When it is Halloween and Christmas decorations already up in stores, I cannot help but think of A Nightmare Before Christmas. And when I think of Jack Skellington, I think of false impersonation. And of course this song:

Have I Positively Gone Daffy?

A Nightmare Before Christmas is the classic story of Jack Skellington and other characters from Halloween Town kidnapping Santa Claus, so Jack could assume Santa’s identity for Christmas. There are several huge legal problems that are tough to ignore: 1) Conspiracy. 2) Kidnapping. 3) False Impersonation. 4) Torture at the “hands” of Mr. Oogie Boogie. 5) Breaking and Entering. 6) Assault and battery on an unknown number of families.

Let’s examine false impersonation. California Penal Code section 528.5 states:

528.5. (a) Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable
pursuant to subdivision (d).

(b) For purposes of this section, an impersonation is credible if another person would reasonably believe, or did reasonably believe, that the defendant was or is the person who was impersonated.

(c) For purposes of this section, “electronic means” shall include opening an e-mail account or an account or profile on a social networking Internet Web site in another person’s name.

(d) A violation of subdivision (a) is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.

(e) In addition to any other civil remedy available, a person who suffers damage or loss by reason of a violation of subdivision (a) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief pursuant to paragraphs (1), (2), (4), and (5) of subdivision (e) and subdivision
(g) of Section 502.

(f) This section shall not preclude prosecution under any other law.

What’s This? There’s Lawyers Everywhere?!

It would be extremely difficult to not convict Jack of false impersonation, meaning a fine of $1,000, possible jail time for one year, plus civil liability for the different physical assaults on Santa committed in the furtherance of the conspiracy for Jack to become Santa.

Given the conspiracy and other crimes, Jack would be looking at significant prison time.

Unless there is a Christmas Miracle, the only possible statutory defense for Jack is that his impersonation was not creditable under subsection (b), because the world quickly figured out from the ghoulish toys that Jack was not the true Santa Claus.

With that said, there would still be multiple counts of breaking and entering to leave the inherently dangerous toys that harmed families. Not to mention violating US airspace with said “toys,” arguably an act of war or terrorism by Halloween Town, dependent on whether Halloween-town is a nation-state or not. Regardless, there would be a drone strike on Oogie Boogie and SEALs sent in for Jack.

It is unknown whether there could be any civil or criminal liability for making people break into song throughout the day.