The Original Sin of Gamma Bombs & Proximate Cause

Marvel’s Original Sin limited series Hulk vs Iron Man has a simple premise: Tony Stark was paid $500,000 (Stark’s Daily Rate) and 2 Bottles of 25 year-old Scotch to conduct a “supervisory examination” of Bruce Banner’s Gamma Bomb to make it more lethal. Because of Stark’s interference, the bomb turned Bruce Banner into the Hulk (plus Rick Jones going into the test area which arguably was a superseding event).

Hulk_ProximateCause_ForeseeabilityAs one can imagine, finding this out rather upset Bruce Banner. And you do not like him when he is angry. However, instead of calling his lawyer cousin Jennifer, he plotted revenge on Tony Stark.

Tony Stark’s sabotage of the bomb creates a huge issue of proximate cause on whether he (and General Ross) are responsible for creating the Hulk and thus enough damage costs to bankrupt Tony Stark.

“Proximate cause” is an act that is “legally sufficient to result in liability.” Black’s Law Dictionary App, 9th Edition. The cause must directly produce an event and would not have occurred “but for” that event. Id. Legal responsibility cannot exist in the air and “must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability.” Id., citing W. Page Keeton et al., Prosser and Keeton on Torts § 41, at 264 (5th ed. 1984).

Hulk-v-IronMan_CoversOne element of establishing liability is whether or not the harm was foreseeable. In a case where a plaintiff walked through a Navy test bombing range that was open to the public when not in use, found an unexploded bomb, took it home, struck it on the ground, which caused it to explode, the Court found liability against the Government. Duvall v. United States, 312 F. Supp. 625, 633 (E.D.N.C. 1970). The reasons for liability included that the Navy knew unexploded bombs could be carried off by those who walked through the area and a state law imposed a duty to control explosives from unauthorized possession (the case was brought under the Federal Tort Claims Act which is how the state claim was allowed against the Federal Government). Id. Moreover, New Mexico law imposes absolute liability for any damages proximately caused by explosives, which is where the Gamma Bomb was detonated. N.M. U.J.I. Civ. 13-1627.

If Tony Stark, who acted as an independent contractor hired by General Ross for the the US Government, was the proximate cause for creating the Hulk, both Stark and the US Government could be responsible for Banner’s condition AND all the damage the Hulk had created. The issue would turn on whether or not the Gamma Bomb turning Banner into the “smashing” Hulk was foreseeable. As no one had ever turned into a rampaging grey, green, or red Hulk before from Gamma Radiation, it would be very difficult to argue that Banner’s transformation was reasonably foreseeable from altering the Gamma Bomb.

Hulk_ForeseeabilityBruce Banner was employed by the US Government to build a bomb. While Banner did not want to build a a “continent killer,” General Ross was very interested in Tony Stark’s claim the bomb could be more powerful. Establishing liability for the General retaining Stark to enhance the bomb could be problematic, based on the cases barring property owners from recovering damages against the Federal government for testing nuclear weapons. See, Bartholomae Corp. v. United States, 253 F.2d 716, 718 (9th Cir. Cal. 1957). Moreover, Stark was a $500,000 a day consultant and one of the best weapons designers in the world who did his job: make the bomb more lethal. Federal law would trump any possible state law claims for Tony Stark conducting the work he was hired to perform, barring any Federal statute allowing for claims to be brought against the Government for weapons testing.

However, since Stark’s work was done without Banner’s knowledge, and if Stark’s job was to sabotage the bomb instead of improving it, these facts may negate the nuclear bomb case precedents, because those were controlled tests. If the lead scientist does not know changes had been made, addition risk is created by those altering the bomb. The fact that testing a Gamma Bomb was already an ultra-dangerous activity, making changes in secret could impose absolute liability on Tony Stark and the United States Government.

Now, the unanswered question is how General Ross could retain someone with a $500,000 daily rate without following government bidding requirements.Hulk_Smash_IronMan_1


Hiking the Appalachian Trail (No! Really!)

(Editor’s Note: First, sorry for the title, I just couldn’t resist.  Ever since Gov. Sanford’s little excursion I’ve been waiting to use that line!  Second, I need to explain this guest post.  Cary Segall is a friend of mine who is currently hiking the Appalachian Trail – for real.  During his hike he’s run into some interesting people but the dispatch below is the most fascinating and I couldn’t resist sharing this family’s story with a broader audience.  Plus, Cary qualifies as an honorary legal geek.  He’s a former lawyer and reporter who is also a running and hiking geek.  And, as I’ll cover in future posts, there are legal issues tied up in both running and hiking but, for now, you just need to read this piece about a mom and her two amazing kids.)

Twin Pic1Somewhere on the Appalachian Trail, July 2014, by Cary Segall: When hikers see Lisa Murray and her 4-year-old twins on the Appalachian Trail, they smile. Then, they gape in astonishment when they learn that Murray and the twins, who were 3 when they started their hike on May 4, are backpacking nearly 1,020 miles from Springer Mountain, Georgia, to Harper’s Ferry, W.V.  “So many people  will say, ‘You’re just out for a day hike.’ They’re seeing me from the front and not seeing my pack,” Murray says. I say, ‘No, not actually, we’ve come from Springer.’ Then, there’ll just be silence. They’re like, ‘Oh, really?’ I always hear in the distance: ‘Did you hear how far that woman came?!”  On Wednesday, Murray, 46, of Naples, Fla. and her fraternal twins, Tess and Cole, who are quickly becoming legends on the trail, had come about 724 miles, and were approaching the city of Daleville, in southwest Virginia. This reporter, who’s also backpacking the trail, hiked with them for two days to see them in action for himself.

Murray, who’s 5-foot-10 and weighs about 145, says she doesn’t know, or want to know, how much her backpack weighs. But she’s carrying equipment and supplies for three, and her pack is obviously one of the heaviest, if not the heaviest, on the trail.

After she bought five days worth of food from a grocery store, and somehow crammed the supplies into her pack, it was hard to even budge off the ground. The pack seemed to weigh more than twice as much as the 30 to 35 pounds of a typical fully-loaded pack on the trail. And it will be even heavier, if Murray needs to carry another gallon of water, which weighs 8.34 pounds, because many of the water sources in Virginia are drying up.

But, she says: “My pack doesn’t bother me — the weight of it. It’s manageable. Only on extreme uphills; then it bothers me. Or when carrying an extra gallon of water swinging on the back.”

Tess, who weighs 37 pounds, and Cole, who weighs 40, wear daypacks that weigh about five pounds each. They carry sleeping pads; water; the blankets they’ve slept with since they were babies; two toy cars for Cole; and an “Aristocat” doll for Tess.

The twins celebrated their fourth birthdays a day late on May 20 at the Nantahala Outdoor Center in North Carolina, 137.3 trail miles from Springer. Murray says they all had two full meals in the center’s restaurant; then dessert with candles, and everyone in the place sang “Happy Birthday.”

Twin Pic3Tess and Cole seem to be having a great time and hike quickly over a trail that’s often rocky and has steep climbs and descents; up and down mountains. So, even though their feat seems incredible, when they’re seen in action, it’s easy to understand how they and their mom, who all wear running shoes, usually hike 10 to 14 miles a day.      “Up and down, up and down. Rock steps,” Tess says with a lilt in her voice.  “Tunnel,” they both say, when the trail is enclosed by rhododendrons. “Slide,” they yell, when one or the other occasionally slips and falls backward onto the trail. Then, they get up and happily hike onward. They often stop for the butterfly wings and bird feathers they collect, and stuff them in the back of their packs.

Tess says her favorite part of the trip has been “seeing the horses” at Grayson Highlands State Park in Virginia, where there are wild ponies.  Cole says he loves “the flat,” referring to the few times when the trail’s not going either up or down.”  Lisa says all three of them like the open spaces when they hike through an occasional pasture, prairie, or mountain bald.  Cole, who walks with kid-size hiking poles, “must fall 20 times a day,” says Murray. “Cole’s always falling, because he has to look at everything else but where he’s going, but never hurts himself.”

Tess, who doesn’t use poles, falls about twice a day, Murray says.  “They just kind of bounce because they’re so low to the ground,” she says. But she adds that Tess did get hurt once when she banged her lip while she was scrambling over rocks on a strenuous mountain climb and somersaulted backward before Murray caught her.  “They’re little daredevils,” says Murray, who keeps them well back from cliffs that provide beautiful views, and is afraid of heights herself.

That fear, though, as well as the age of the twins and the many people who advised her not to attempt the trip, didn’t keep her from trying to tackle the trail she was inspired to hike after seeing a National Geographic special about six years ago on the AT, which stretches 2,185.3 miles from Springer to Katahdin in Baxter State Park in northern Maine. It runs through 14 states and is administered by the Appalachian Trail Conservancy for the National Park Service.  “I filed it in the back of my mind that that was something I wanted to so someday,” says Murray, a single mom who has a master’s degree in education, but cleans houses, instead of teaching, because she wants to care for her kids full time. She brings them with her on the job.  She says she thought of hiking the entire trail this year after seeing how much the twins loved hiking many miles along the Gulf Coast beach in Naples, in southwest Florida. Murray says she brought Tess and Cole hiking with her because they got too heavy to push in a stroller, and she needed exercise. They did six miles at first; when they started doing 10, she says, she started thinking  of taking them on the trail.  “That’s how I judged that it was a rational thing that could happen,” she says. “Then, we would walk in dry sand to make it more intense. We did six, and then ten. It was still working.  Murray, who had camped with the twins, but never backpacked, says that in February she called the conservancy, which is headquartered in Harpers Ferry, to get the names of parents who had hiked the trail, or large parts of it, with young children, so that she could get their advice. She says all of the children had been 10 to 12, except for one 8-year-old who had hiked the entire trail in one year, which is called thru-hiking.

Murray says she didn’t know then about the youngest person to thru-hike the trail. He’s Christian “Buddy Backpacker” Thomas, of Crested Butte, Colorado, who was 5 when he hiked the trail with his parents from April of last year to January. He and his parents hiked the trail in a variety of directions for the best weather, called flip flops. But, unlike Murray, they didn’t always carry all of their equipment in backpacks. The parents used their Jeep Cherokee to move some camping equipment and food to the many spots where the trail crosses a road.

Laurie Potteiger, information service manager at the conservancy, said last week that she knows of no children as young as the twins who have hiked a large section of the trail.

“It’s certainly quite unusual,” Potteiger says.

She says two-6-year-old boys have also hiked the entire trail in a year, as part of a family.

But she says the conservancy doesn’t publicize such young hikers or promote such hikes because it doesn’t want to encourage people who might be unprepared to try the same thing.

“It should only be undertaken by parents who are very experienced in backpacking,” Potteiger says. “With children, you don’t want to take the same risks that adults would take. We encourage families with young children to explore the AT, but start off small with day hikes.”

Potteiger says the trail can be dangerous for young children and for anyone who isn’t prepared for the weather, the rugged terrain and the remoteness of some sections.

“It’s remarkable how many people hike the AT with no experience,” she says.

Potteiger says 2,500 people who planned to hike from Springer to Katahdin started the trail this year and that 1,194 had reached Harpers Ferry by July 8. About half of those are expected to make it to Katahdin. A much smaller number hike southbound from Katahdin and others do a variety of flip-flops.

Many who plan to start at Springer quit on the strenuous 8.8-mile approach trail from Amicalola Falls State Park, says Dave Levy, who drives people who fly into Atlanta to the park in northwest Georgia, and drives them back to the airport when they drop out. About 20 percent quit after climbing and descending the eight mountains in the 31.7 miles between Springer Mountain and Neel Gap, Levy says.

Murray says nearly everyone she called for advice told her not to do it.  “When I told the people I called the ages of my children, all of them, except one, expressed major doubt about 3-year-olds on the trail,” she says.  The one is Dennis Pendleton, of Delray Beach, Fla. who thru-hiked the AT with his son when he was 10, Murray says.

“He was super positive,” she says. I think he’s just that way. He really encouraged us to give it a whirl. ‘What do you have to lose?’ he asked. ‘You can always come back.’ ”      She says Pendleton became her mentor and advised her on every detail during several phone conversations. In April, she says, she decided for sure to do the hike, despite the doubts of her friends and relatives.  “I had a bunch of doubters,” she says. “They already knew I was out-of-the box. I’ve always surprised people with my choices. The one who was most worried was my 20-year-old son.”  But they couldn’t dissuade her, she says, and she bought a backpack, sleeping bags and pads, a tent, backpacking stove and other necessary equipment.

Twin Pic4Then, she convinced her ex-husband, who was also worried, to let their 10-year-old son, Tuck, hike with her and the twins until he had to start a sailing camp taught by his dad. The twins’ father is out of the picture.

Chad, the 20-year-old, drove the four of them, along with Murray’s two chihuahua-mix mutts to the Springer trailhead, on a remote National Forest Service road, so they didn’t hike the approach trail. He then hiked with them for three days to Neel Gap before hiking back for the car, and then meeting the hikers to get the dogs.

Tuck hiked 467 miles to Damascus, Va., and was upset when he had to leave, Murray says.  “Tuck was crying when he left us,” she says. “He didn’t want to go. He could go the whole way. He was slowed down by us.”

She says there were about 20 people planning to thru-hike who left Springer with them, and they didn’t expect them to keep hiking and make it to the next shelter, often about eight to 10 miles apart along the trail. Many of the hikers stop each night to either sleep in a three-sided shelter, or in a tent or hammock nearby. There are more than 250 shelters along the trail and nearly all of them are close to a water source, such as a spring or stream.

Twin Pic2“At the end of every day, they were surprised that we would make it again. They were astonished,” she says. “A lot of them were college kids who were kind of surprised we were still hanging with them. Humbling, I guess. Starting in mid-May, I think they expected us to show up every day. But then they got their trail legs and took off.”     Nearly all of the hikers either give themselves a trail name, or are given one by others. Hikers dubbed her “Mama Bear” and the twins the “Cubs.”Cole named himself Strong Man, while Tess chose “Little Butt,” before recently changing it to “Strawberry Shortcake” because she loves the character, and strawberries, too.   Murray says one hiker she met at Springer, called “Puddin,” “had a belly like Santa Claus.”

“He said he was going all the way and we said we were out here for at least a few months,” Murray says. “We sized each other up the first day.  We looked at each other and thought, no way.”  When  they all reached Damascus together, after seeing each other nearly every day on the trail, Puddin’s belly was mostly gone, she says, and they laughed about their initial impressions.  She had planned to go all the way with the twins, too, she says, and figured she could make it by mid-October, when all but the last of the thru-hikers have climbed Katahdin, by averaging 15 miles a day on days the trio hiked, and also taking occasional days off, what hikers call zero days.  “In theory, the math makes sense,” she says. “But, in reality, when you’re on the trail, you realize how hard it is, at least for us, to keep that pace day after day.”  So she’s set her sights on Harpers Ferry and says she’s enjoying the experience.

“It’s a challenge,” Murray says. “I enjoy seeing new things every day and not knowing what the day will bring. I enjoy meeting the people and the small towns.”  She also says she thinks the hike has been great for the twins and she doesn’t think it’s been dangerous.

“Really, when you think about it,” she says, “it’s more dangerous when you put kids in a car and take them to a mall, or on vacation.”

And she says she thinks the twins will remember the hike, despite  their age.    “I think they’ll remember, only because it’s such a large chunk of time; and the photos; and people will talk about it,” she says.  “It teaches the children that they can experience things that aren’t the norm, and persevere.”

Tracy Morgan v. Walmart: A Primer

I usually love it when my obsession with Hollywood collides with my chosen profession.  Most of the time, like when Justin Bieber gets deposed, the results are tragically funny.   Other times, the results are just tragic.  Such is the case with the recent collision between the Wal-Mart truck and the bus carrying several comedians, including Tracy Morgan and James McNair (who was killed in the crash).

Tracy Morgan and some of the other passengers in the bus have now sued Wal-Mart — both the corporation (Wal-Mart Stores, Inc.) and its trucking company (Wal-Mart Transportation, LLC) — for negligence as well as reckless or intentional conduct.  By alleging that Wal-Mart engaged in reckless/intentional activities that led to Tracy Morgan’s injuries (and the injuries of the other plaintiffs), the plaintiffs can seek punitive damages.

Morgan and the other plaintiffs are claiming that the driver of the Wal-Mart truck was seriously fatigued and had violated federal rules on maximum allowable hours driving per day and driving without rest.  According to their complaint, the driver actually commuted from his home in Georgia all the way up to Delaware to pick up the semi-truck he was driving when he collided with Morgan’s bus in New Jersey.  The complaint also alleges that the semi-truck had automatic collision-avoidance features that didn’t work the night of the collision.

As the driver’s employer (assuming he actually is employed by Wal-Mart — sometimes there can be fights over that basic question), Wal-Mart is liable for the driver’s negligence if it happened during the time he was driving for Wal-Mart.  This is based on a legal theory known as “respondeat superior,” which holds that an employer can be held liable for an employee’s negligence if the negligence occurred when the employee was acting within the scope of his employment.  See Murphy v. City of Rochester, 986 F.Supp.2d 257 (W.D.N.Y. 2013).

Punitive damages, like those sought here, are damages that don’t compensate plaintiffs for the harm they’ve suffered (e.g., medical bills, pain and suffering, etc.).  Instead, the point of punitive damages is to punish the defendant for behaviors that we, as a society, have decided are seriously wrong.  See ExxonShippingCo. v. Baker, 554 U.S. 471, 492 (2008) (where the Supreme Court explained that punitive damages are “aimed not at compensation but principally at retribution and deterring harmful conduct.”).  As a result, the general rule is that punitive damages are only available where a defendant’s conduct has been “outrageous,” due to gross negligence, reckless indifference to the rights of others, or even more “deplorable” behavior (as opposed to those cases in which a defendant caused harm through simple negligence).  Id. at 493.  When an action is taken or omitted by a defendant in order to increase their profits, that is another reason for increased punitive damages.  Id.

Presumably, negligence in the current case will be relatively easy to prove, although it is possible that the defense will have evidence showing that, even using reasonable care, the driver would not have been able to avoid the accident.  The bigger issue, of course, will be whether Wal-Mart knew (or should have known) that its drivers were driving too much, were too fatigued, and that the automatic features on the truck weren’t working.  This could be a major battle and these types of fights often involve massive amounts of e-discovery because knowledge (or willful ignorance) can frequently be found in an email exchange.

Unfortunately, thousands of people die each year in accidents involving semi-trucks.  This accident and the subsequent lawsuit, of course, are receiving more attention than usual because of Tracy Morgan’s involvement.  While nothing will bring back James McNair, and Tracy and the others may have lifelong issues to deal with as a result of this accident, it will be interesting to see what happens with this lawsuit.  Selfishly, I hope Tracy is able to return to comedy one of these days.  He will always be Tracy Jordan to me and I hate to think we’ll never get to see his talent at work again.

The Original Sin of “I’m In Charge!”

Marvel’s new mini-series Original Sin focuses on who murdered the Watcher and why. After discovering the Watcher’s body on the Moon, Captain America asked Nick Fury to lead the criminal investigation into the Watcher’s death (Issue 1).

Josh_OriginalSin_Watcher_InvasionUpon landing at a battle between the Thing and Spider-Man against one of the Mindless ones in New York, Nick Fury declared the area was a crime scene and that he was in charge. Id. Moreover, Fury and other super-heroes ultimately lead an assault on the Watcher’s suspected murders (Dr. Midus, Exterminatrix, and the Orb) in New York City, which ended with Nick Fury placing the Orb under arrest (Issues 2 and 3).

There are multiple issues with these facts. First, could Captain America deputize Nick Fury to lead a criminal investigation? Second, could Nick Fury arrest the Orb? Three, could Nick Fury detain the Orb in the Avenger’s Tower?

CaptainAmerica_NickFury_Murder_TreasonCaptain America may have been legally in the right to appoint Nick Fury to conduct an investigation, much like a private individual can hire a private eye. However, that appointment does not necessary give Fury legal authority to execute law enforcement actions, unless Captain America were acting on behalf of the United States with the powers to deputize others to conduct law enforcement activities. If Captain America did not have such authority, both New York and Federal law would prohibit Nick Fury from representing he was “in charge” and arresting the Orb.

Federal law states that “Whoever falsely represents himself to be an officer, agent, or employee of the United States, and in such assumed character arrests or detains any person or in any manner searches the person, buildings, or other property of any person, shall be fined under this title or imprisoned not more than three years, or both.” 18 USCS § 913.

In New York state, a person is guilty of criminal impersonation when they pretend “to be a public servant, or wears or displays without authority any uniform, badge, insignia or facsimile thereof by which such public servant is lawfully distinguished, or falsely expresses by his words or actions that he is a public servant or is acting with approval or authority of a public agency or department; and (b) so acts with intent to induce another to submit to such pretended official authority, to solicit funds or to otherwise cause another to act in reliance upon that pretense.” This is a class A misdemeanor. NY CLS Penal § 190.25(3)(a) and (3)(b).


Nick Fury’s arrest of the Orb would violate both Federal and New York law, because it is an act implying law enforcement powers, unless there was an off-camera scene with Fury being officially deputized by law enforcement, such as someone like the Governor of New York or the United States Attorney General. Moreover, Fury did not say he was placing the Orb under “citizen’s arrest,” but instead implied that he was a public servant who could conduct arrests. If Fury was acting under actual authority to conduct law enforcement, he did not give the Orb his Miranda rights.

However, the impersonation did not end there, as we later learn that Fury was actually an LMD after the Winter Soldier killed him. Or it. Which raises a whole new level of impersonation, if not identity theft, if there were law over Life Model Decoys.

The Legal Geeks Second Anniversary

Josh_LegalGeeks_2ndAnniversaryJessica 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?

Grimlock_TRex_LegalIssuesBefore 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.

In Requiem for the Surf Rider Sonny Miller

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

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

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

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

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

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

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

Red skies and following seas, my cousin.


Please Nominate The Legal Geeks for the ABA Journal Blawg 100

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

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

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


Transformers: Age of Criminal Prosecutions

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.

OptimusPrime_LawyersDon’t Have Sex With High School Students

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

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

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

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

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

(B) the victim:

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

Tex. Penal Code § 22.011(e).

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

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

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

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

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

You Cannot Take Military Technology to China

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

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


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

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

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

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

Judge John Facciola on the Judiciary & Independence Day

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