Wanda’s Restraint on Westview: A Review Under NJ’s False Imprisonment Laws

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March 6, 2021

As WandaVision was coming to a close, the latter episodes delved into the the history of Wanda Maximoff and her traumatic past. However, while we learned more and more about the Sokovian Avenger, the original concern for the residents of Westview, NJ remains. Although we can certainly sympathize with the emotional trauma Wanda is grappling with, this doesn’t necessarily give her a free pass for her actions. At the end of the day, Wanda may be liable for some serious charges brought by the state of New Jersey on behalf of its citizens.

Liability for False Imprisonment

New Jersey criminal code recognizes the law of False Imprisonment. The relevant statute states:

N.J.S. § 2C:13-3. False imprisonment

A person commits a disorderly persons offense if he knowingly restrains another unlawfully so as to interfere substantially with his liberty. In any prosecution under this section, it is an affirmative defense that the person restrained was a child less than 18 years old and that the actor was a relative or legal guardian of such child and that his sole purpose was to assume control of such child.

Ignoring the possibility of affirmative defenses regarding the children in the Hex, it seems fairly clear that Wanda has interfered substantially with the liberty of the residents of Westview, NJ. The question comes down to whether or not Wanda did this “knowingly.” As the word knowingly implies that there is some level of intent required with false imprisonment, Wanda must have intended to interfere with the liberty of Westview residents.

An argument can be made that initially Wanda was unaware of what she was doing when the Hex was made. However, we know that Wanda was in control of the Hex, and she at some point became aware of what she was doing to the Westview residents. In episode three when she ejected Captain Monica Rambeau from the Hex, she demonstrated that she could manifest the ability to release people from the confines of the Hex. This acknowledgement and understanding that there were “outsiders” that could be ejected from the Hex by her own doing could satisfy the knowing element of the false imprisonment statute. However, a prosecutor would have to prove that Wanda was aware at that time that she was the one keeping Captain Rambeau in Westview, NJ and it’s not clear from the ejection alone that this was the case.

False Imprisonment is a disorderly persons offense which comes with a potential of six months in jail, and a fine of up to $1,000 per person. According to Jimmy Woo, the town has a population of 3,892 (this analysis does not include any SWORD agents subsequently caught in the Hex). Assuming Wanda would only be charged with counts of false imprisonment, and all of the town’s residents were present when Wanda created the Hex, she could be facing approximately 1,946 years in jail and a fine of $3,892,000. Given that it is unclear what income she has, if any, trying to make restitution may be a bit of a problem for her.

Liability for Kidnapping

In New Jersey, the Criminal Code defines Kidnapping as follows:

N.J.S. § 2C:13-1. Kidnapping.

A. Holding for ransom, reward or as a hostage. A person is guilty of kidnapping if he unlawfully removes another from the place where he is found or if he unlawfully confines another with the purpose of holding that person for ransom or reward or as a shield or hostage.

B. Holding for other purposes. A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period, with any of the following purposes:

(1) To facilitate commission of any crime or flight thereafter;

(2) To inflict bodily injury on or to terrorize the victim or another;

(3) To interfere with the performance of any governmental or political function; or

(4) To permanently deprive a parent, guardian or other lawful custodian of custody of the victim.

Kidnapping in New Jersey comes with significant penalties ranging from five to thirty years in state prison per offense, depending on the violent nature of the offense. In this context, it seems unclear whether Wanda would be responsible for any counts of kidnapping. Although Tyler Hayward stated that she “took an entire town hostage” in episode five, there is no evidence that Wanda has been holding the Westview residents as some sort of ironic “shield” in the face of S.W.O.R.D.

Interestingly, there is a potential argument that Wanda committed the act of kidnapping for other purposes, specifically to inflict bodily injury on or terrorize the victim or another. Vision’s interactions with the Westview residents, outside the presence of Wanda, demonstrate that even under her spell they have some awareness of what is happening to them and are plainly terrified. A prosecutor could easily gather statements from the Westview residents to substantiate the sheer terror they felt while being trapped in their own town, forced to play along in Wanda’s fantasy. However, Wanda would only be found guilty if it’s determined that her holding of a town resident for a substantial period was for the purposes of injuring or terrorizing them. Based on what we know, this entire event is likely born from Wanda’s grief and the town of Westview was simply swept up in Wanda’s powers, without her intending to harm anyone.

Although there is a chance she could be found guilty of kidnapping, it is much more likely that a prosecutor would push for conviction of the lighter charges of false imprisonment since the standard for conviction is marginally more attainable.

Pardon or Prosecution

At this point the events of WandaVision have wrapped up and Wanda’s future seems uncertain. The seventh episode certainly provided some context for Wanda’s grief and how her powers came to engulf the town of Westview. Given her seeming confusion as to how the town’s residents came to be under the influence of her powers, this may provide a defense to any charges of false imprisonment or kidnapping. However, it will remain to be seen how those same residents, and the state of New Jersey, view Wanda now that they have been released from her spell.

Neglect on Navarro: Charges Against the Empire for the Abuse of The Child

By

Kean Zimmerman

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January 7, 2020

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29-The-Mandalorian-Scout-Troopers — Photo Credit: Disney+, The Mandalorian

The finale of The Mandalorian contained twists, turns, and a fair share of action to send off the series’ characters at the end of their first season. However, much of the action centered around the Mandalorian’s small travel companion and his pursuit by the remnants of the Empire. Despite the innumerable atrocities committed by the Empire, none were more prevalent in this chapter than the abuse suffered by Baby Yoda (we use this name for convenience and acknowledge that the life form may have no relation to Yoda whatsoever). So how exactly could the New Republic hold the Empire accountable in this scenario?

** Spoilers for The Mandalorian Ahead**

From the very first chapter, the Empire has been on an intense man(baby?)hunt for the young bounty. However, it was not until this chapter that they took him into their custody. At the end of the seventh chapter, we see two scout troopers gun down Kuiil before making off with Baby Yoda. This is in itself likely constitutes a crime.

Reckless Endangerment

Connecticut defines reckless endangerment as when a person, with extreme indifference to human life, recklessly engages in conduct which creates a risk of serious physical injury to another person. C.G.S. § 52a-63(a). Given that we see smoke rising from Kuiil’s body at the end of the seventh chapter it’s safe to assume that the scout troopers fired on him while he was attempting to get Baby Yoda back to the Razor Crest. The shots surely created a risk of serious physical injury to Baby Yoda as it clearly resulted in the death of Kuill. Not only could one of the shots have hit Baby Yoda, but the resulting crash (unseen, but assumed since Baby Yoda was found on the ground) could also have caused serious physical injury.

Risk of Injury to a Minor

It is not as clear if the scout troopers could be charged with risk of injury to a minor. Connecticut’s charge for risk of injury to a minor makes it a crime to place a child under the age of 16 in a situation where that child is at risk of life endangerment, injury to health or moral impairment, or to otherwise do anything likely to cause impairment to that child’s health or morals. C.G.S. § 53-21(a)(1). From chapters one and two, we know that the bounty was originally described to the Mandalorian as being 50 years old. Despite the fact that Baby Yoda objectively acts like a child, there is little question that he does not fit the age requirement under this law. As a result, and even though the shots fired at Kuiil could represent a risk of life endangerment to Baby Yoda, it is unlikely that the scout troopers could be charged with risk of injury to a minor.

Kidnapping

The more obvious charge here would be kidnapping as it was the scout trooper’s clear intent to whisk Baby Yoda back to the clutches of the Empire. Kidnapping in the first degree and the second degree both require the abduction of another person. C.G.S. §§ 53a-92a – 53a-94. However, to be kidnapping in the first degree the abduction has to be for a ransom, for inflicting physical injury or sexual abuse, for accomplishing the commission of a felony, or for terrorizing the victim or a third person. Id. It is clear from the troopers’ actions that Baby Yoda was abducted, as we see in the opening minutes of the eighth chapter. In that scene we see the scout trooper played by Jason Sudekis (now disowned by Second City Theater for his reprehensible actions) physically punch Baby Yoda.

At this point, not only can we establish the assault of Baby Yoda (the cause of physical injury to a person with the intent to cause such harm see C.G.S. § 53a-61), but this also satisfies the second element of kidnapping in the first degree since Baby Yoda certainly suffered from physical abuse. In fact, given that this kidnapping occurred with the use of firearms (regardless of how inaccurate any of the shots may be), this would constitute kidnapping in the first degree with a firearm. C.G.S. § 53a-92a. This charge carries a mandatory one year sentence that cannot be reduced.

Liability for the Empire

There is little doubt that the scout troopers could be held criminally liable for their actions against Baby Yoda. Were it not for the actions of the recommissioned nurse droid IG-11 those scout troopers would still be at large. As a result, they cannot be held responsible for their crimes. However, the Empire, or its remnants, may also be held liable for those same actions. Although most jurisdictions hesitate to extend vicarious liability to employers for the criminal acts of their employees, individual employers can still be held liable on conspiracy charges in certain circumstances. Conspiracy is described as follows:

A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy. C.G.S. § 53a-48.

Presuming the scout troopers were acting under the orders of Moff Gideon when they absconded with, and subsequently held Baby Yoda, then it could be presumed that Moff Gideon had agreed with them to commit the kidnapping. In fact, although we do not see this in the show, it can be presumed that Moff Gideon ordered the scout troopers to obtain Baby Yoda. Given that the scout troopers were successful in their attempt to whisk away Baby Yoda, this would suffice in committing an overt act in pursuance of the kidnapping of Baby Yoda. Likewise, Moff Gideon, or anyone directing the actions of the scout troopers, could be held liable for conspiracy of other criminal acts of the scout troopers if it can be shown that persons supervising the scout troopers agreed to engage in such conduct. For example, since the scout trooper (Jason Sudeikis) only hit Baby Yoda in retaliation for being bitten (understandably), no one else in the Empire had conspired with the scout trooper to commit that act. Thus the elements for conspiracy to commit battery would not be met.

While Baby Yoda is safe, at least for the moment, we cannot ignore the great harm he was subjected to in the season finale at the hands of the Empire. It will be up to the New Republic to hold the last remnants of the Empire responsible for their actions. Even if Baby Yoda’s age doesn’t make him a child according to the risk of injury to a minor statute, the public will still not stand for this travesty.

Tale as Old as Crime: Maurice’s False Imprisonment

By

Kean Zimmerman

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April 25, 2017

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While Beauty and the Beast is a tale as old as time, the fact is Beast may have violated some historically recognized criminal law. Most jurisdictions recognize claims for false arrest, also referred to as false imprisonment. For those familiar with the 1991 Disney animated film, Beast goes through a journey of self-discovery that ends with him becoming a much better person at the end. This change in character doesn’t absolve him of his earlier crimes though.

As you will recall, when Maurice, Belle’s father, was traversing the forest he fled to the safety of Beast’s castle to escape the wolves chasing him. Although he alerted the residents to his presence, Beast chose not to reveal himself at first. Lumiere, Mrs. Potts, and Chip, against the advice of Cogsworth, proceed to provide Maurice with shelter and tea. It is at this point that Maurice comes face to face with Beast. Promptly afterward he is thrown into a dungeon with as much thought as Lumiere put into dating a presumably flammable feather duster.

Falsely Imprisoning Maurice

By detaining Maurice, Beast may be guilty of what Connecticut calls false imprisonment. False imprisonment is the unlawful restraint by one person of the physical liberty of another. Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 499, 101 A.2d 500 (1953). To prove a claim of false imprisonment, the Plaintiff must be able to show, (1) that his or her physical liberty has been restrained by the defendant, and (2) that the restraint was against his or her will. Lo Sacco v. Young, 20 Conn. App. 6, 19 (1989).

As to the first point, it shouldn’t be too hard for Maurice to show that his physical liberty was restrained. A quick look to his predicament after entering the castle shows him confined behind bars in one of the castle’s holding cells (which should call into question how often this was occurring). As to the second point, whether or not this was against his will, this is evidenced in the conversation Belle had with Beast to release her father. Belle asks Beast to release him, and Beast promptly accuses Maurice of trespassing. Beast then refers to Maurice as his prisoner. It’s apparent at this point that Maurice was being held against his will.

Potential Claims Against Maurice

However, Beast may have a point in calling out Maurice for his trespass. Since Maurice clearly went past a gate which was designed to exclude intruders, and he remained in the castle without being licensed or privileged to do so, he may be liable for trespass. Connecticut General Statutes 53a – 107 to 109. However Connecticut General Statutes 53a-110 provides for affirmative defenses to criminal trespass, which include that “the actor reasonably believed that the owner of the premises, or a person empowered to license access thereto, would have licensed him to enter or remain.” The tricky issue here is whether or not Lumiere, or anyone in the castle could have given Maurice license to be in the castle. Even more of an issue is that, at that point per the power of the witch, no one in the castle was actually a “person” so Maurice’s defense may fall flat.

Beast could also claim that Maurice is guilty of violating statutes for home invasion or burglary. This would seem apropos as both would involve Maurice entering, or remaining unlawfully in a dwelling, with the intent to commit a crime therein; burglary would have the added element of Maurice coming under the cover of night. See Connecticut General Statutes 53a-100aa; see also Connecticut General Statutes 53a – 101. The entering element would certainly be satisfied, as would the “at night” element. However, Maurice would have to have intended to commit a crime. He would likely not be found to have the proper mens rea for this, as he himself thought he was being properly invited in by the staff of the castle. Without establishing the requisite intent to commit a crime, Maurice would not succumb to these claims.

A Defense of Citizen’s Arrest

Even if Maurice were found guilty of criminal trespass, this does not mitigate charges against Beast for false imprisonment. Beast may think that he was somehow able to perform a citizen’s arrest for Maurice’s wrongdoing, but he would be mistaken. The law for a citizen’s arrest is clear under Connecticut General Statutes 53a-22. Pursuant to the statute a private citizen may use reasonable force in arresting an individual whom he reasonably believes has committed an offense. State v. Smith, 63 Conn. App. 228, 238 (2001). Here Maurice would have committed an offense, however the statute also requires that the offense constitute a felony. Under Connecticut law though, all forms of trespass are misdemeanors; thus, even if Maurice committed trespass against Beast, Beast would still not be justified in detaining Maurice.

Conclusion

As a result, Beast would be susceptible to Maurice making a claim of false imprisonment. False imprisonment is an intentional tort, the remedy for which is an action for trespass. Green v. Donroe, 186 Conn. 265, 268 (1982). Ultimately, Maurice may be able to claim trespass against Beast, as a remedy for his false imprisonment, despite the fact that Maurice himself may be guilty of trespass. The fact that Maurice was later released does not extinguish the liability Beast would have for any term of imprisonment. Sure Belle and Beast may live happily ever after, but that won’t necessarily stop Maurice from taking Beast to court. In the grand scheme of things, having to pay out a settlement or even a jury verdict because of how you treat the people that come to your door for help is probably a lot easier to stomach than some quasi-botanical curse.

The Custody Conundrum of X-23

By

Kean Zimmerman

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March 4, 2017

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With the movie Logan already making its mark, it’s no secret that X-23 (a.k.a. Laura Kinney) is one of the main characters. As Professor Xavier states, this girl is “a lot like [Logan].” The intricate relationship between Logan (Wolverine) and X-23 has been extensively covered in the comic books, but that does not make it any less convoluted.

[SPOILER WARNING]

In the after credit scene of X-Men Apocalypse we see individuals from Essex Corp collecting Wolverine’s blood at the Weapon X facility. This scene is likely the connecting factor between the new X-Men timeline and the events of Logan. The inference is that somehow, Nathaniel Essex, or at least his corporation, somehow had a hand in the making of X-23. In the comic books, X-23 gets her name because the DNA sample from Wolverine is damaged. The only part they are able to successfully recover is his X chromosome. As a result, any successful attempt at cloning him was restricted to female clones. X-23 was the 23rd attempt at creating such a clone. So, unbeknownst to Wolverine, he has a clone running around with his DNA. The question is, does he have custody over this clone like a child? Or does he have any legal basis to claim paternity?

Property over Parenthood

The first hurdle is whether or not X-23 can be considered a person. In the case of Toybiz Inc. v. United States the United States Court of International Trade ruled that the X-Men were considered “nonhuman creatures.” No. 96-10 (Ct. Int’l Trade 2003). In this sense there may be an argument that no mutant actually has “human rights.” This case however, was not about civil rights and focused on whether or not the X-men action figures were classified as “toys” or “dolls” for import duty purposes.

Specific to X-23, the fact is that Essex Corp created her in a lab, not as an instance of an in vitro fertilization procedure or surrogacy agreement, but with specific DNA to create a specific result. In some jurisdictions the courts have allowed for the patenting of a specific DNA strain to create a specific result. The best example is the Oncomouse. The Oncomouse, or Harvard Mouse, is a laboratory mouse that was genetically modified by Harvard University professors to make it more susceptible to getting cancer. In this way, the mouse had been used for multiple research experiments since the 1980’s. However, Harvard was not always successful in getting its patent.

While the patent application was granted in the United States without ever having to go to Court, there was significantly more fanfare in the Canadian patent system. Originally, the Canadian Court’s denied the patent application in the case of Harvard College v. Canada (Commissioner of Patents), [2002] 4 SCR 45 Docket No. 28155. In that case the Court held that a higher life form could not be patentable because it was not a “composition of matter” in the definition of invention under the Patent Act. After the ruling by Canada’s Supreme Court, the patent application was granted after it was amended to exclude the “composition of matter” claims.

In this vein of thought, some courts may not consider mutants to be human per se. As a result, Wolverine would not be afforded any parental rights in regards to X-23. Instead Wolverine, and any other mutant, would be categorized as property. To give him rights within the pretext of the Oncomouse case law would be akin to granting property rights to property.

Custody of Clones

Assuming that mutants in general, including X-23, are afforded human rights, then the next question revolves around the custody of cloned individuals. As you can imagine, at present, there is very limited case law on cloned individuals. After the now famous cloning of Dolly the sheep in 1996, President Clinton ordered for a multidisciplinary panel of experts to study the ethics of cloning and identify the potential implications. As part of this, Nanette Elster wrote an article for the Hofstra law review entitled Who is the Parent in Cloning?. (1999) Hofstra Law Review: Vol. 27: Iss. 3, Article 6. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol27/iss3/6 . The article ultimately concludes that modern laws are not yet equipped to handle the complex questions involved in the custody of clones. Rather than the two parent model, clones could ostensibly have as many as four, or as few as one parent. Since the time this article was written many states have evolved beyond the presumed two parent model.

Intending Parents

Recent Connecticut case law has highlighted the importance of “intended parent,” or parents who sign a valid surrogacy agreement, but have no genetic link to the resulting child. The case of Raftopol v. Ramey, established that in Connecticut, two parents who have a signed surrogacy agreement, thus representing their intention to be parents, can put their names on a child’s birth certificate, even if they have no genetic link to that child. 299 Conn. 681, 12 A.3d 783 (2011). The case of X-23 might be much simpler than this though.

In the case of X-23, there is no surrogacy agreement. In fact, Wolverine was completely unaware that his DNA was being used to create a clone. In the story of X-23: Innocence Lost, the revitalized Weapon X project involved Wolverine’s DNA being taken, unbeknownst to him, and being generated into a viable sample. This sample was then placed in the uterus of Dr. Sarah Kinney to act as the surrogate for X-23. The comic is unclear on whether the fertilized egg belonged to Dr. Kinney, but for the sake of simplicity, we can assume that it was. With these facts, the only two parents X-23 has are Wolverine, and Dr. Kinney. Even without this information, Connecticut law creates the presumption of parental rights with the birth mother, so Dr. Kinney would not have to do anything more to secure her parental rights to X-23.

Wolverine’s Paternity

In the comic books, Dr. Kinney is killed by her own daughter as a result of a triggered rage, planned by the very people Dr. Kinney worked with in order to create X-23. As a result, Wolverine is the only parent left. He must establish his paternity though, as he presumably is not on X-23’s birth certificate (realistically since she is part of a secret quasi-government experiment, she may not even have a birth certificate since a paper trail would defeat the purpose of keeping it a secret). To claim paternity for X-23 Wolverine has two options. One would be to file an Acknowledgment of Paternity with Dr. Kinney, while the other option would be to file an action claiming paternity in Connecticut Superior Court. If Wolverine does not know of X-23’s existence until after Dr. Kinney’s death, then option one is out. To complete option two, Wolverine would file a paternity action, and then secure a DNA test.

The DNA test presents another unique problem. X-23’s name comes from the fact her DNA is made up of two of Wolverine’s X chromosomes. As a result, any DNA test will result in a 100% match with her “father.” In all actuality then, Logan’s parents, Elizabeth Howlett and Thomas Logan, would be more like her parents. However, since they have long since been dead, her closest living relatives are Wolverine and interestingly enough, Dog Logan, Thomas Logan’s other son. Despite the fact Wolverine and X-23 would be more like twins, the law does not recognize this as granting Wolverine any more rights than Dog when it comes to custody.

Best Interests of X-23

Ultimately, if Wolverine and Dog Logan both applied to get custody of X-23, the Court would have to take into consideration the best interests of the child. Fish v. Fish, 285 Conn. 24, 28 (2008). The bests interests of the child includes an analysis of 16 factors which the court can consider under Conn. Gen. Stat. sec. 46b-56(c), The eleventh factor in that analysis happens to discuss the stability of the child’s proposed residences. If Wolverine and Dog Logan had competing applications for custody, then a Court might be compelled to analyze each applicant’s current residence. For Wolverine, this would be the Jean Grey School for Higher Learning, while Dog Logan is the physical education teacher at the Hellfire Academy. Absent a compelling reason otherwise, a court might have a difficult time determining that either one of those residences may be suitable for a young child. For one thing, the Hellfire Academy potentially has on its list of faculty persons with criminal records. A Court could find that this does not present a stable environment.

The Jean Grey School for Higher Learning may not be much better. Although this is the new name of the school, it is still premised on Charles Xavier’s original school, which was a part of X-Mansion. As any Marvel fan knows, X-Mansion has not only been infiltrated on numerous occasions, but it has also been razed more than once. It would be hard for the Court to consider this a stable environment, despite the staff’s uncanny speed and efficiency in reconstruction.

Conclusion

Overall, if X-23 were to be considered a human and not property, it is not clear that Wolverine would be able to get custody of her. In fact, he and his half brother Dog Logan may have the same legal rights to any claim over their “biological sister.” At that point, a court would have the unenviable position of having to decide whether it would be in X-23’s best interests to live in an Academy full of super villains, or to live in a Mansion which tends to implode every other Tuesday. In the grand scheme of things, either option may be preferable to being held captive by a quasi-government organization, so the court would likely have to weigh the factors carefully. I do not envy the Court tasked with this analysis.

The Case for Boba Fett as a Bail Bondsman

By

Kean Zimmerman

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December 12, 2016

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darth-vader-and-boba-fett-wide-wallpaper-26691 — Image Source: The Empire Strikes Back

Fans across the world were filled with outrage and astonishment as they watched their hero Han Solo get carted off in Boba Fett’s Slave I at the end of The Empire Strikes Back. Who would be so evil as to turn in a hero of the rebellion to the Empire, just to have him frozen in carbonite? What if I told you that Boba Fett may not have been so evil? In fact, Boba Fett may have simply been carrying out a perfectly legitimate aspect of his employment as a bounty hunter.

Bounty Hunting Law

Bounty hunting is a profession which most people are most likely to hear about in movies or T.V.. However, bounty hunting is still a very real profession. The concept of bounty hunting people are familiar with is very different than actual bounty hunting. The idea that someone can abscond with a person after a price is put on his or her head sounds more like kidnapping than bounty hunting. The actual laws that govern bounty hunting in the United States date back well over 100 years. In 1872, the United States Supreme Court decided the case of Taylor v. Taintor. 83 U.S. 366 (1872). As a part of that decision, the Court determined that the person to whom an accused is remanded as part of his or her bail has sweeping rights to the accused. This essentially gave bounty hunters carte blanche to do as they wanted.

Today, those sames laws are not necessarily held as precedent. In fact, as is the case for all bounty hunting laws, each individual state determines the powers and authority a bounty hunter has within its jurisdiction. The common core to all of these laws though, revolves around the idea of bails. Not to be confused with the hay variety, bails are executed in criminal cases when a bail bondsperson or an agent acts as a surety and pledges money or property as a promise for an accused person to appear in court. Typically the accused executes a contract with the bondsperson whereby they are obligated to pay the bondsperson the premium amount on the bond, while in exchange they get the freedom to leave police custody.

Ultimately, the government of any jurisdiction determines when a bond can issue, as well as what the terms are for retrieving someone who jumps on the bond. Not all states require that something be done. In fact, in 2007 four states banned the process for commercial bail bonds altogether (Illinois, Kentucky, Oregon, and Wisconsin). However, it would appear that that same ban did not reach the jurisdiction of the Empire.

Securing the Bounty

In the Empire Strikes Back, Darth Vader contacted bounty hunters in an effort to track down Han Solo and the crew of the Millennium Falcon.The likely motivation was to capture those close to Luke Skywalker so the Empire could eventually trap him. Darth Vader goes on to say that he wants the crew captured by any means necessary as long as they’re alive, “no disintegrations.” Contrary to what Bon Jovi would have you believe, not every fugitive is wanted dead or alive. Boba Fett made this distinction clear when he raised his concerns on carbonite freezing to Darth Vader. He made it clear that he could not bring Han Solo back to Jabba the Hutt unless he was alive. Thankfully, this is how actual bounty hunters operate, although the rules governing this can vary.

Although jurisdictions differ on bounty hunting regulations, Connecticut General Statutes Sec. 29-152o-1 is clear on the application process for becoming what the state calls a “bail enforcement agent.” Assuming the Empire has similar regulations, the bounty hunters called by Darth Vader would need a license to enforce the bail laws set by the Empire, within the Empire’s jurisdiction.

Han Solo’s Bail Agreement

The first question is whether or not Han Solo had executed a bail agreement. Without a bail agreement, and without “skipping” on that agreement, then there would be no reason to apprehend Han Solo. It was made clear in A New Hope that Jabba was angered by Han Solo after he jettisoned cargo while his ship was threatened to be boarded by Imperial Authorities. Afterward, Jabba sent “bounty hunters” after him. Eventually, when Han Solo brokered a deal with Jabba to pay him back, plus interest, Jabba agreed to let Han Solo leave on his own recognizance. Ostensibly, Jabba is acting in his capacity as a crime lord, and is using Boba Fett to capture Han Solo so that he can “shake him down” for the money he owes him. Arguably though, if Boba Fett is acting as a government body on Tatooine, then he may have been tracking Han Solo in the capacity of a bail enforcement agent.

Since the Desilijic clan seems to be the only acting authority on Tatooine (other than the Empire), they may be a legitimate government entity, which can set bail. If Han Solo’s actions were viewed as a crime, which I’m sure in Jabba’s eyes they were, then allowing Han Solo to leave and pay him back more money acts as a kind of bail. This makes sense as after Jabba learns that Han Solo joined the Rebel Alliance, he sets another bounty on Han Solo because he has “skipped” on his bail. In this instance, the government entity would set the bail, as well as provide the bond. While this may seem unusual in the United States, the only countries that use a commercial bail bond system are the United States and the Philippines. In a global sense, other countries do not have privatized bail bonds, so Jabba’s issuance of a bond would not be that unusual.

Executing a Bond in a Different Jurisdiction

The problem then arises as to whether or not Boba Fett could have legally gone to Cloud City to apprehend Han Solo. Depending on the laws of Bespin, unless Boba Fett was properly licensed to act as a bail enforcement agent, then his actions would have amounted to criminal abduction. The Virginia Supreme Court recently decided this issue in Collins v. Commonwealth of Virginia, 720 S.E.2d 530 (2012). In that case, a bounty hunter from North Carolina travelled to Virginia to apprehend someone skipping bail. The Court determined that a bail bondsman licensed in another state does not have the authority to apprehend a fugitive bailee in Virginia. Similarly, Boba Fett may not have been licensed to operate in Bespin, and thus was not authorized to apprehend Hans Solo in Cloud City.

However, since Bespin, like Tatooine, is an Outer Rim planet, and the Empire was exerting control over those territories, it serves to reason that if we are assuming Boba Fett is licensed as a bail enforcement agent under the jurisdiction of the Empire, then he legally had the ability to apprehend Han Solo on any of those planets.

At the end of the day, Jabba’s “bounty” on Han Solo may have simply been a crime lord trying to collect the money owed to him. However, if we conclude that Jabba was in fact operating as part of a governmental entity on Tatooine, then Boba Fett may have been justified in bringing the criminal Han Solo to justice. Whether or not we conclude any actions by the Empire to be “just” is an argument for another post.

The Unlucky Story of Bucky, the World’s Oldest Prisoner of War

By

Kean Zimmerman

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May 2, 2016

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With Captain America: Civil War coming out, Cap fever is in high gear. The movie will hopefully answer many of the questions we still have on exactly what happened to Bucky during the events between Captain America: The First Avenger, and Captain America: The Winter Soldier. One such question will be whether or not Bucky is viewed as a prisoner of war, or a feared terrorist. While it became fairly clear during the events of CATWS that Bucky was under some form of control by Hydra, this is a presumption conveniently presented to the audience. In the Marvel Universe however, Bucky’s culpability for his actions is a very contested issue. While there are likely few witnesses who can attest to Bucky’s good character, there are dozens that could attest to seeing the Winter Soldier attacking Captain America, Falcon, Black Widow, and multiple S.H.I.E.L.D agents. To even begin to answer this, we must first decide what Bucky’s military status is.

What is a POW?

POW, or “prisoner of war,” is a term that has been around since the 17th century. In many instances, enemy combatants were simply executed. However, although some countries were already holding prisoners, more countries began utilizing the POW model after the promulgation of the Geneva Convention. A POW is defined under the convention as a member of the armed forces who has fallen into the power of the enemy. Under the convention, POWs have certain rights and their captors are obliged to provide a certain level of humanitarian care.

In a deleted avengers clip, Steve Rogers comes across Bucky’s personnel file, which indicates that he was considered MIA, or “missing in action.” Given that the last time Bucky was seen he was falling off a moving train into an icy ravine, it’s almost surprising that he was listed as MIA and not killed in action (KIA). MIA still seems like a fitting description. Normally most soldiers listed as MIA have their designation changed to KIA after a certain amount of time has passed. Bucky would be among the 73,000 Americans reported as unaccounted from World War II.

Photo found at http://marvelcinematicuniverse.wikia.com/wiki/Winter_Soldier.

No one would think he was a POW without having some knowledge as to where he went. He was not reported as being seen by anyone before he was taken in by the former Soviet Union, who at the time of World War II was our ally. At the time of the war, the Soviet Union was not an enemy, but Hydra certainly was. If the Soviet Union government, commingled with Hydra, took possession of Bucky, then there might be an argument that Bucky was a POW being held by an enemy combatant. This becomes less of a sticking point during the Cold War, when the Soviet Union would be our enemy. According to the Defense POW/MIA Accounting Agency, there are still 126 service members who are unaccounted for from the Cold War. There is no legal distinction for allies that become enemy combatants, that then become allies again. This might not matter though if we consider that Bucky is being held by Hydra as part of the Soviet Union.

Unlawful Combatant v. Enemy Combatant

The United States has been fighting Hydra since World War II. Although the United States (including Steve Rogers and the Howling Commandos) were fighting them, Hydra itself does not exist as a nation state, thus the laws of the Geneva Convention are not applicable. This means that soldiers fighting under Hydra would be considered unlawful combatants, or people engaged in armed conflict in violation of the laws of war. In this way, soldiers being held by Hydra would still have POW status, while the same would not be said of Hydra soldiers held by the United States. Bucky would have the protections of humane treatment under the Third Geneva Convention, but Hydra soldiers being held would not be afforded those same protections.

Although Hydra had infiltrated the Soviet government (and many other governments for that matter) the choice to hold him was one made by that government. As such, they would be responsible for the humane treatment of Bucky while holding him. It is probably a safe assumption that forced brainwashing, electrocution, and repeated freezing do not constitute “humane” treatment.

Russia would also be responsible for violating Article 118 of the Geneva Convention for not releasing and repatriating Bucky “without delay after the cessation of active hostilities.” President George H. W. Bush and Mikhail Gorbachev declared the Cold War over on December 3, 1989 at the Malta Summit. The fact that Bucky was not repatriated from 1989 to 2014 would suggest there was definitely some delay.

Was Bucky a Prisoner?

Obviously a significant issue with Bucky is whether or not he actually was a prisoner in the true sense of the phrase. Arguably, he was not since he was only confined for certain periods of time. He left his cryogenic chamber intermittently to carry out missions for Hydra. This does not make him seem like a prisoner, but at this time he was also being brainwashed and subject to electrocution if he disobeyed orders. This is analogous of prisoners whom are instructed to read propaganda messages for terrorist groups. The POWs usually comply to this to prevent personal harm unto themselves. Bucky was arguably complying with Hydra’s demands in order to prevent himself from receiving continued torture.

Certainly then someone will argue that he had the training (he was a highly skilled assassin) in order to leave Hydra and escape, but at this point he was brainwashed such that he didn’t even know who he was. The necessary free thought to escape would have been beyond his capabilities. In this sense, he was a prisoner to Hydra and the Soviet Union both physically and mentally.

Can Bucky Sue?

After all of this, we would wonder whether or not Bucky can recover at the hands of the Russian government, as successors to the Soviet Union. Since the United States government is likely not going to back Bucky in this endeavor, he will do the most American thing he can. Sue them! In a courtroom version of the miracle on ice, he will try to defy the odds and best the successors of the Soviet Union. This may prove to be more difficult than it seems.

Take for example the hostages from the Iran hostage crisis. According to CNN, most of those individuals have yet to see any money from their endeavor, despite this having occurred over 30 years ago. This is in part due to treaties which indemnify Iran from legal suits. Previously a bill in congress is being pushed along which would grant some relief to these captives. The legislation did successfully pass and was signed into law on December 18, 2015. The only reason such a bill exists is because the government foreclosed those victims from the ability to seek relief through suit. Even if the hostages wanted to sue the Iranian government, they would be unable to because of the treaties. Although Bucky may want to sue the more visible Russian government (as successor to his Soviet Union captors) the United States government does not often back these suits since they might interfere with current foreign policy relations. This is already seen in the case of POW forced labor suits against private Japanese corporations. Although the soldiers who provided forced labor to these corporations are not actually suing the Japanese government, United States courts still hold that these suits are impermissible as violative of the peace treaty with Japan.

Even without those treatises, bringing suit can still be difficult. In the case of terrorist suits, there is no direct person to serve. In lieu of that, some parties have resorted to suing banks with funds tied to terrorists, reported Israel National News. It will be interesting to see how this plays out. Technically Bucky could try to sue parties which provided funding to Hydra (such as national banks), but that inquiry would be heavily burdened by discovery given the deep infiltration of Hydra.

Photo found at http://screenrant.com/wp-content/uploads/Captain-America-2-Official-Photo-Winter-Soldier-Sebastian-Stan-close-up.jpg.

Conclusion

In the end Bucky is in the unenviable position that even on the off chance he is considered a POW, and his Soviet/Hydra captors are considered enemy combatants, foreign relations interests may prevent him from recovering after his half-century long torture debacle. Even if he could recover, Bucky has gone from being imprisoned behind the Iron Curtain, to going toe-to-toe with the Iron Man. In no short order, Bucky will leave his imprisonment only to be “reigned in” by another group. Not only is Bucky certainly unlucky, but his circumstances are downright oppressive. At this rate, the Winter Soldier is in for a cold reception both from team Iron Man, and the United States Justice system.

Leia’s Lightsaber? A Question of Loss and Larceny

By

Kean Zimmerman

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December 2, 2015

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As the time for the premier for The Force Awakens draws near, excitement is brewing for those new and familiar with the series. For decades many fans have speculated on the comings and goings of the characters from the original Star Wars Trilogy. With the canon now being rewritten, The Force Awakens hopes to take us to places in the galaxy far far away that have never been seen before. Screen shots from the movie trailers hint at the return of many familiar characters. Of course this just leads to more questions, but one question that has been left unanswered for decades deals with an object rather than a character. That object is the lightsaber wielded by Luke and Anakin Skywalker. Yes, fans might want to know where that lightsaber is, but for that matter, who actually owns the lightsaber? For that answer the lightsaber must be analyzed through the intricate lense that is property law.

As you might recall this was the second lightsaber Anakin built. His first lightsaber was destroyed on Geonosis during the events of Attack of the Clones. From the Clone Wars series there is no depiction of him making the new lightsaber, but there was an episode showing younglings crafting their own Jedi weapons. For the sake of this analysis, we will assume that Anakin made his second lightsaber in a similar matter. However, this does not mean that the Jedi Order may claim ownership over the weapon (think crafts that you bring home from summer camp, but more dangerous). This would mean the lightsaber is Anakin’s personal property. This means that Anakin has the true legal title to the lightsaber.

After Anakin and Obi-Wan’s battle on Mustafar, Obi-Wan took the lightsaber with him before entering into a self-imposed exile on Tatooine. At no point does Anakin give the lightsaber to Obi-Wan, therefore Anakin still retained rightful title in the lightsaber. It is not clear if Obi-Wan meant to take it for himself or if he knew that he would give it to either Luke or Leia. Either way, this was arguably still an act of larceny. Connecticut law defines larceny as:

A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Conn. Gen. Stat. § 53a-119 (2015).

Since Obi-Wan cut off Anakin’s legs and arm immediately before taking the lightsaber, it seems a likely conclusion that Obi-Wan intended to deprive Anakin of the lightsaber by taking it and leaving Anakin to smolder in the lava of Mustafar.

Meanwhile, Obi-Wan has been exerting dominion and control over the lightsaber. He kept it with him on Tatooine during his exile, and nineteen years after the events of Revenge of the Sith, Obi-Wan presented the lightsaber to Luke Skywalker, saying that it belonged to his father. At this point, Luke was under the impression that his father was already dead. To his knowledge then, there was no other owner of the lightsaber still living. He took the lightsaber from Obi-Wan as a gift, not knowing that the true title of the lightsaber still resided with his living father. Connecticut defines a gift as follows:

A gift is the transfer of property without consideration. It requires two things: a delivery of the possession of the property to the donee, and an intent that the title thereto shall pass immediately to him. Coppola v. Farina, 50 Conn. Sup. 11, 13, 910 A.2d 1011 (2006).

There are two elements that must be satisfied. First, that the possession of the lightsaber transfer to Luke, and second, the intent that the title immediately transfer to Luke. While the first element was satisfied, the second could not be fulfilled as Obi-Wan never had the title to the lightsaber. As such the gift fails, however, Luke is still in (unlawful) possession of the lightsaber.

Fast forward to the events of the Empire Strikes Back in which Luke has his hand cut off by Darth Vader (Anakin Skywalker) and is deprived of the lightsaber. However, shortly after this he learns that Darth Vader is his father. Upon this revelation, he is aware that his father, the true owner of the lightsaber, is alive. Darth Vader has a valid claim against Luke for the return of the lightsaber. In terms of criminal conduct though, it is unlikely that Luke could be charged with receipt of stolen property. In the state of Connecticut “a person is guilty of larceny by receiving stolen property if (he/she) receives stolen property knowing that it has probably been stolen or believing that it has probably been stolen.” Conn. Gen. Stat.§ 53a-119(8). In this instance, Luke had no reason to think that the lightsaber had been stolen since he was convinced that his father was dead. Granted Luke probably should have asked a few more questions regarding the provenance of the lightsaber, but this does not make him liable. As a result, though Darth Vader would have had a claim, there would likely not have been a criminal claim against Luke.

Regardless of the claims against him, Luke lost the lightsaber in an undisclosed location on Cloud City. If he was still exerting dominion and control over the lightsaber, he would be on notice to return it to its true owner. Luke, however, was not in possession of the lightsaber after learning that his father was still alive. As such, he was not necessarily responsible for returning it at that point.

Moving then to the events of Return of the Jedi. After the death of Darth Vader, Connecticut intestacy law suggest that his personal property would then belong to his living heirs. In this case, the two living heirs would be Luke and Leia Skywalker (since Padme, their mother, is also deceased). See Conn. Gen. Stat.§ 45a-438. However, there is an argument to be made that Luke contributed to the death of Darth Vader by weakening him before his confrontation with Emperor Palpatine. Albeit Darth Vader acting on his own to save his son, this does not change the fact that Luke intentionally acted to harm his father. But for Luke’s lightsaber duel, Darth Vader may have been able to fend off Emperor Palpatine. More importantly, after the exchange Luke drags his father’s body to a hangar in an effort to leave the second Death Star. In the end, Darth Vader asks Luke to help him take off his mask. Luke acknowledges that this will kill Darth Vader. Although Darth Vader claims that this is inevitable, Luke still takes off the mask knowing that it would lead to Darth Vader’s death. While some jurisdictions recognize “right-to-die” legislation, Connecticut is not one of them. As a result, Luke may be charged with murder. In Connecticut, “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception . . . .” Conn. Gen. Stat.§ Sec. 53a-54a.

The reason Luke’s actions are relevant to the lightsaber ownership is due to the fact that Connecticut has a slayer law. A slayer law prevents certain individuals from inheriting property if they caused the death of the person leaving the estate. In Connecticut, if Luke is found guilty of murdering his father (or being an accessory to his father’s murder) then he is prohibited from inheriting or receiving part of the estate from the victim (i.e. his father). Conn. Gen. Stat.§ Sec. 45a-447(c)(1). According to Connecticut law, the residual estate would then pass to Anakin’s other heirs. Conn. Gen. Stat.§ Sec. 45a-447. This means that the Connecticut Superior Court could determine he is guilty of murder, but a conviction would not bar him from inheriting the lightsaber. Only when he exhausts all of his appeals would he be barred from inheriting. Sulser v. Winnick, Conn. Super. LEXIS 2137 (2007).

If Luke were to be found responsible for Darth Vader’s death, then the statute would leave Leia Skywalker, Darth Vader’s only other living heir, to inherit their father’s entire estate (which may consist of shares in a now imploded Death Star). Whether or not Leia is aware of this, the true title to Darth Vader’s lightsaber would go to Leia. The unique nature of the lightsaber may prohibit Leia from wielding it like her brother or father. Certain laws may require the lightsaber to be registered for Leia to possess it, or the law could require Leia to have a permit for the lightsaber. This is likely not the case as it would equate lightsabers to handguns under Connecticut law. However, Connecticut still finds a knife with an automatic spring release from the handle with a blade longer than one and one-half inches to be a dangerous weapon. See Conn. Gen. Stat.§ Sec. 29-38. A lightsaber surely has a similar release function with a saber length of longer than one and one-half inches. While this law does not make mere possession of the lightsaber illegal, carrying the lightsaber in a vehicle or on one’s person would certainly be illegal with few exceptions. Although Leia may have title to the lightsaber, she could be prevented from taking it with her for weekend getaways in the Millennium Falcon.

[SPOILERS AND SPECULATION]

This leads us to Star Wars VII. While images show Finn (John Boyega) holding what looks to be the lightsaber in question this has not been definitively confirmed. How he received or acquired the new lightsaber will impact the necessary legal analysis. In the hands of Finn, we see the memorable blue glow of the lightsaber that has not been seen (in the film timeline) since Luke learned of his parentage in The Empire Strikes Back. While the lightsaber’s current location is yet to be seen, its fate will likely play some role in the plot of The Force Awakens. Leia has the legal title to that fabled piece of property, but she may not even realize it. In the end, no one can legally obtain ownership of the lightsaber in question without Leia transferring title.