Can You Have Werewolf Traps in Your Front Yard?

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September 3, 2019

What We Do in the Shadows is wicked fun if you have an offbeat sense of humor and enjoy comedy-horror shows. In “Werewolf Feud,” S1, E3, the vampire Lasslo Cravensworth placed werewolf traps in the front yard of the vampire house after he has discovered a werewolf has been urinating on the front lawn. Would these traps be legal?

This raises a sticky issue: is a werewolf an animal or human being?

Rules if Werewolves are Human

When it comes to human beings, nonlethal physical force can be used to prevent larceny or criminal mischief with respect to property other than premises. N.Y. Penal Law § 35.25. A trespass is committed when someone knowingly enters or remains unlawfully in or upon premises. N.Y. Penal Law § 140.05 A person commits criminal trespass in the third degree when they knowingly enter fenced real property. N.Y. Penal Law § 140.10.

The law does not favor traps set out for children. In cases where a property owner has set out traps to deter children for trespassing, a child trespasser could only recover damages if “a dangerous condition was maintained upon the premises with the intention of inflicting injury on anyone trespassing thereon or with what is the equivalent of intention, reckless and wanton disregard of the consequences.” Brzostowski v. Coca-Cola Bottling Co., 226 N.Y.S.2d 464, 469-70 (App. Div. 1962)

Rules if Werewolves are Animals

New York law on cruelty to animals applies to anyone who intentionally causes serious physical injury to a companion animal with justifiable purpose. N.Y. Agric. & Mkts. Law § 353-a(1). However, the law does not prohibit dispatching rabid animals or ones that are a threat to human safety or other animals. N.Y. Agric. & Mkts. Law § 353-a(2).

There Wolf Lies the Problem

Those suffering the curse of the werewolf are both human and animal potentially at the same time. If those who turn into wolves have no control or intellect, they would appear to be more of an animal. However, if they retain intellect while in their wolf form, they could be more human than animal. Given the fact combat with a werewolf was settled with a squeaky toy, someone who is a werewolf has diminished capacity at best.

If a werewolf is a “companion animal,” then Lasslo could face cruelty to animal charges for his trap in the front yard. However, given the threat that werewolves pose, they would not be classified as a companion animal. However, Lasslo is not someone who has a permit or is acting under color of law to remove werewolves with traps.

A werewolf is certainly not a child, but Lasslo’s traps clearly were intended on inflicting injury on anyone trespassing on the front lawn. Given the harm caused by the traps, a werewolf suing for injuries likely would prevail, if a judge would give both a werewolf and vampire a day in court.

Stealing Corpses and Obstruction of Justice

By

Josh Gilliland

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November 13, 2014

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Was Skye correct in the Agents of SHIELD episode “The Writing on the Wall,” when she said they broke fourteen laws breaking into the home of a victim? Skye might be right. Let’s count.

Director Coulson and Agent Skye entered the first victim’s upstate New York apartment, which was a crime scene. The act of knowingly entering unlawfully the home would be a trespass. NY CLS Penal § 140.05. However, if they entered the property with the intent to take an item, Skye and Coulson would have committed burglary. NY CLS Penal § 140.25.

If Coulson and Skye took the victim’s artwork any other property, they would have committed burglary. There is no question the act of entering the property was a trespass.

The victim’s home was also a crime scene. The purpose of a crime scene is to maintain evidence. Taking evidence from the crime scene arguably is the obstruction of justice, because it “obstructs, impairs, or prevents” the administration of law enforcement. NY CLS Penal § 195.05.

Mack and Fitz acted under Director Coulson’s instructions and stole the body of the first victim from the morgue. It possible an autopsy had been performed by law enforcement, but that was highly unlikely.

The act of taking the corpse could be trespass into the county morgue and obstruction of justice for taking the victim’s body, because it deprived the police of evidence (in this case, the body with ritualistic markings).

There is a significant amount of case law on handling dead bodies, grave robbing, desecration of corpses, medical experimentation on dead bodies, and unauthorized autopsies.

So the question: can you steal a corpse? The short answer is literally yes, you can take a body, but things get funky fast.

Under common law, the great Lord Coke stated in the 17^th Century that a “corpse has no value.” Colavito v. New York Organ Donor Network, Inc., 8 N.Y.3d 43, 50-51 (N.Y.2006). Moreover, “ancestors, ‘nor can [an heir] bring any civil action against such as indecently at least, if not impiously, violate and disturb their remains, when dead and buried.'” Id.

New York also has cases that address the proper treatment of corpses, specifically that those handling a corpse have a high standard of care “and that breach of the duty of care by one who undertakes to provide care of a corpse is prima facie negligence, and thus tantamount to strict liability.” Whack v. St. Mary’s Hosp. of Brooklyn, 2003 N.Y. Misc. LEXIS 50, 10-11(N.Y. Civ. Ct.Jan. 22, 2003).

The classic case would be a hospital that had a freezer fail, allowing a corpse to rot. However, this is not the exact case with Mack and Fitz. There could be a claim against the morgue for letting the body “disappear,” but the victim did not have any living family members who would sue. Obstruction of justice would be the likely crime for stealing the corpse, followed by an unauthorized autopsy, and desecration of a corpse.

Simmons performed an unauthorized autopsy on the victim, not because she wasn’t a doctor, but because there is no color of law for her to perform an autopsy. Since Simmons knew the body was stolen and SHIELD is acting as vigilantes, albeit aligned with a US Senator in tracking down his brother, Simmons could not argue she performed the autopsy in good faith under the law. NY CLS Pub Health § 4210-b.

There are at least eight or nine charges that could be brought from initially trespassing in the victim’s apartment, depending on whether any art was taken, and the obstruction of justice from stealing a victim’s body from the morgue for an unauthorized autopsy.

What We Learned from T.A.H.I.T.I. on Agents of S.H.I.E.L.D.

By

Josh Gilliland

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March 5, 2014

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We have two very big take aways from the Agents of SHIELD episode T.A.H.I.T.I.:

1) Skye did not have an Advanced Health Directive;

2) Agents Coulson, Ward, Fitz & Garrett murdered two men without any legal justification in order to save Skye.

Skye’s Treatment

Medical experiments cannot be performed on someone without informed consent (See, Playing Doctor on Agents of SHIELD, which addressed the experiments on Coulson).

Skye was incapacitated from her soon-to-be-fatal gunshot wounds from Quin. Agent Coulson took it upon himself to ignore orders to transfer Quin and chase down the drug GH325 used to bring himself back from the dead.

These actions could make Coulson the Boss of the Year for his willingness to save a teammate, but whether he had any legal right to order such extra-ordinary medical treatment is questionable, unless Skye had given Coulson the power of attorney to make such medical decisions.

The Good Guys Committed Murder

The two men guarding T.A.H.I.T.I., GH325 and the other wonder drugs in the mad scientist treatment lab were killed without any legal justification. First off, SHIELD forced their way onto the property with force, which is a trespass with the intent to use lethal force. This would have justified the guards to protect themselves with lethal force from SHIELD.

The SHIELD Agents could argue the “necessary defense,” in that they had to break into the lab, and kill those who were defending themselves and the base, in order to save Skye, who had vital knowledge about Deathlok. This argument would fail.

The necessity defense may be asserted “only by a defendant who was confronted with . . . a crisis which did not permit a selection from among several solutions, some of which did not involve criminal acts.” United States v. Holmes, 311 Fed. Appx. 156, 164 (10th Cir. Kan. 2009). The necessity defense has a three part test:

(1) There is no legal alternative to violating the law;

(2) The harm to be prevented is imminent; and

(3) A direct, causal relationship is reasonably anticipated to exist between defendant’s action and the avoidance of harm.

Holmes, at *164 citing United States v. Benally, 233 F. App’x 864, 868 (10th Cir. 2007).

The Agents were trying to keep Skye from dying, which could be classified as either imminent or near-imminent. This would meet the second element of the rule.

The Agents might be able to argue breaking into the secret lab was done out of necessity, but that cannot be an excuse for killing the guards. Moreover, the Agents have no right to argue self-defense, because they caused the actual danger by attacking in the first place. You cannot break into property with weapons drawn and claim those on the property were the aggressors for defending themselves. Moreover, why is Skye’s life worth killing two unknown guards who were simply doing their duty?

The situation might have been different if the Agents were armed with “night-night guns,” but they were not. There is no nice way to say it: Coulson, Ward, Garrett & Fitz killed the two guards without justification.

Smart Houses & Lethal Defense of Property on Almost Human

By

Josh Gilliland

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February 19, 2014

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Self-defense laws a very clear on when lethal force can be used. Despite the well-armed Smart Houses on the Almost Human episode “Disrupt,” the lethal defense of property is never justified. What was surprising was the homeowners who were sued for a teenager killed trespassing in their property were not liable for the victim’s death.

The law does not allow homes to be protected by landmines and spring rifles. California Courts instruct juries when the defense of property is at issue with the following jury instruction:

When conditions are present which, under the law, justify a person in using force in defense of property, that person may use that degree and extent of force as would appear to a reasonable person, placed in the same position, and seeing and knowing what the resisting person then sees and knows, to be reasonably necessary to prevent imminent injury threatened to the property. Any use of force beyond that limit is excessive and unjustified, and anyone using excessive force is legally responsible for the consequences thereof.

CALJIC No. 5.43.

There is a difference with self-defense, which can allow the use of lethal force to defend a person when a person is facing death, serious bodily injury, forcible rape or kidnapping. See, Model Penal Code § 3.04(2)(b)(i).

There are situations where personal self-defense and defense of property overlap. However, this is not meant to be a green light for murdering people who trespass on property. As one Court explain by citing a text on criminal law: if the defender’s reasonable force in protection of his property is met with an attack upon his person, he may then respond by defending himself and then may be entitled to use force. Commonwealth v. Young, 271 Pa. Super. 59, 64-65 (Pa. Super. Ct. 1979), citing W. LaFave and A. Scott, Handbook on Criminal Law, § 55, at 400 (1972).

Such a situation would be fact specific, however opening fire at an unarmed trespasser would be unreasonable.

A homeowner with a home defense system that shot a teenager who jumped a fence would have no right to argue defense of property or self-defense. It would make more sense for AI Home Defense Systems to have speakers that yell “get off my lawn” then automatic weapons for fence hopping.

The trespasser in “Disrupt” had committed a crime by entering the homeowner’s yard, however the Artificial Intelligence home defense system shot the youth. As such, the homeowners would be legally responsible for the excessive and unjustified use of lethal force on the trespasser.

Could such defense systems be armed for those who are targets for kidnapping and receiving death threats? Yes, but the system would need to be able to recognize when someone trespassing actually had the intent to commit murder, serious bodily injury, forcible rape or kidnapping of the homeowner, meeting the specific requirements for “defense of others” vs the force necessary to remove someone property. That would be a very dynamic operating system that decides life or death. It would be….almost human.

Santa Claus & The Torts of Christmas

By

Josh Gilliland

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December 20, 2012

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We all know the song….

He sees you when you’re sleeping,

He knows when you’re awake,

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

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

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

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

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

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

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

Invasion of Privacy

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

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

Cal Const, Art. I § 1.

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

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

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

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

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

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

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

4. That John Doe was harmed; and

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

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

(a) The identity of Santa Claus;

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

(c) The means by which the intrusion occurred.

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

(a) The extent of the intrusion;

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

(c) The setting in which the intrusion occurred.

1-18 California Forms of Jury Instruction 1800

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

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

Negligent Infliction of Emotional Distress

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

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

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

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

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

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

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

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

Trespass of the Bells

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

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

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

The Naughty or Nice List

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

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

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

By

Josh Gilliland

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November 30, 2012

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Lawyers and pop music rarely mix.

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

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

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

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

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

Here are legal issues depicted in the Die Young video:

Trespassing on a church (possibly abandoned or condemned)

Probable cultist activity evidenced by pentagrams

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

Disturbing the peace

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

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

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

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

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

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

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

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

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

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

California Penal Code section 405 states:

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

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

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

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

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

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