There are More Villains than Heroes on The Gifted

By

-

December 7, 2018

It is really hard to find any “heroes” on The Gifted. In this fictional world, the United States has enacted harsh anti-mutant laws after a mass fatality incident known as “7-15.” The event was a mutant rights protest that devolved into a riot with thousands killed in Dallas on July 15, 2013. Flash forward to present day where the X-Men are in hiding and the following events are transpiring:

The United States hunts and imprisons mutants based more on their DNA than on their actual crimes with an agency known as Sentinel Services;

The Inner Circle is executing a violent conspiracy to overthrow of the US Government to establish a Mutant Homeland;

A hate group known as the Purifiers call themselves patriots, while marching yelling “You will not replace us,” and engaging in domestic terrorism and armed attacks against mutants; and

The Mutant Underground has gone from a group trying to keep mutants safe to kidnapping and torturing people in order to stop the Inner Circle.

There are no heroes, just those who are committing the least Constitutional violations, crimes, or torts.

The United States Government

Any agency with the initials “SS” will never be on the right side of history. Arresting people for their race and not because of any actual crimes, is a big jump into tyranny. The theme since the first episode is that Mutants were called dangerous and immediately lost their rights. Laws in this world are designed to protect humans from Mutants, automatically removing any sense of humanity from those being persecuted.

Mutants arrested wear collars that inflict pain if the mutant attempts to use their powers. There is a good question on how to imprison someone who has super-human abilities, but pain compliance easily invokes issues of torture.

The exact legal arguments are not clearly stated, but there is the undercurrent that Mutants are not human. If that position was taken beyond racism to enacting laws, the Government could argue that Mutants are not “persons” under the 14^th Amendment, thus have no legal rights. Provided that human beings and Mutants can have children together, claiming they are two separate species runs into big scientific challenges.

The Government’s treatment of Mutants on its face is race-based discrimination because of the Mutants’ DNA, not because of any actions they have committed. These sorts of laws should not survive strict scrutiny. Moreover, imprisoning Mutants based on race would be a gross violation of the 14th and 5^th Amendment Rights to not deprive any of their life without due process of law; a violation of the 4^th Amendment warrant requirement for probable cause; a violation of the 6^th Amendment right to a trial in any criminal prosecution; and the use of shock collars a violation of the 8^th Amendment right against cruel and unusual punishment.

The Inner Circle

The Inner Circle’s superpower is proving every negative thing said about them by their enemies right.

Magneto’s influence is heavily seen in the Inner Circle. The Inner Circle had an impressive body count that took a very public increase when one teenage mutant went rogue and killed 37 people. By turning the victims inside out. The Inner Circle was playing a PR game with a forced video confession to expose a discriminatory bank. Unfortunately, that message was totally lost when an angry child soldier put human beings through a blender.

Mass murder aside, the Inner Circle is planning to overthrow the US Government. Every member of that group could be charged with Treason 18 USCS § 2381; Domestic Terrorism 18 USCS § 2331(5); Murder 18 USCS § 1111; Rebellion or Insurrection 18 USCS § 2383; and Enlistment to Serve Against the United States 18 USCS § 2390.

These are not the good guys.

The Purifiers

These guys are REALY not the good guys. The Purifiers are a heartbeat away from chanting with Tiki Torches and wearing white hoods. Ironically, the Purifiers and Inner Circle are committing murder in the name of self-preservation. The Purifiers are racists who attack others, deploy Klan-style tactics to instill fear, and engage in open hostilities against US Citizens because they do not think law enforcement is protecting the human race. The FBI should be hunting these guys down, because they are the monsters of the story.

The Mutant Underground

These are supposed to be the good guys, who have turned from helping people escape oppression to kidnapping and torture. These actions are the definition of “means justify the ends” in order to stop both the Purifiers and Inner Circle.

The Mutant Underground kidnapped a security expert with physical force, teleportation, and then a getaway car. Prosecuting them for these crimes would test the issue of how teleportation would apply to the definition of kidnapping. The Federal law is broad and includes seizes, confines, inveigles, decoys, abducts, or carries away in the definition. Forcing someone through a teleportation portal would meet the definition of kidnapping as a form of carrying someone away or abduction. See, 18 U.S.C.S. § 1201(a). Physically restraining the detainee and threatening him for compliance would be torture.

With all of these bad acts, who should the audience cheer for? Who isn’t a “bad guy” in this series?

The lesson from The Gifted is how cruelty and discrimination is fundamentally wrong. Those who are persecuted naturally want to protect themselves from those who will do them harm. This raises the immediate issue of two wrongs do not make a right. Moreover, might does not make right. What this fictional world needs is Professor X, because where everyone is going is down a dark path.

Mutant Refugees Fleeing to Canada

By

Gregory Pang

-

April 19, 2018

0

Canada. Oh Canada. As Canadians, we have gained a reputation for welcoming refugees. In the movie Logan, we see how Laura aka X-23 and the mutant children flee to Canada from a dystopian United States where mutants are persecuted. But what would actually happen if these mutants were to all of a sudden show up at the Canadian border seeking asylum as American refugees?

Crossing the Border and Making a Refugee Claim

We’ll start with the assumption that the children’s contact in Canada intends for them to legally claim asylum. At the Canada Border Services Agency office where the children would report to and make their refugee claims, officials would do background checks on the children, take prints and biometric data. Since they’re minors, they could become wards of the state or the people who helped them cross the border might be able to apply for guardianship.

They would then have to fill out the requisite paperwork to make their refugee claims, according to Kathy Drouin-Carey, a Canadian lawyer who practises in the area of refugee claims in Canada. Drouin-Carey believes that these mutant children would make their applications on both grounds of protection available under Canada’s Immigration and Refugee Protection Act being a “Convention refugee” (in reference to the United Nations Convention Relating to the Status of Refugees) and a “Person in need of protection”. Below is an excerpt of those provisions in the Act [my emphasis added]:

Sections 96 and 97, Immigration and Refugee Protection Act (Canada)

“Arguably, the children would qualify under reasons of race or membership in a particular social group,” says Drouin-Carey. For reasons of race, “I would say that the mutants could claim they are being persecuted due to ‘race’ because they were born with the mutant genes in their DNA.” Although genes do not define “race”, mutants’ genetic differences from ordinary humans do make them distinct. As for being a member of a particular social group, mutants are an identifiable group being persecuted in the U.S., so Drouin-Carey believes this enumerated group could apply to these mutant children as well.

The “Person in need of protection” ground under Section 97 is a much more personal ground and Drouin-Carey believes that there would be merit for the mutant children claiming on this ground as well because, “Staying or returning to the United States would subject them to danger, risk to their lives and possibly to cruel and unusual punishment.” Further, we can infer from Logan that, “the mutants are not able to seek protection from the state (i.e. government) and the risk is not to everyone else in the U.S. And from what we know, they’re at risk everywhere in the U.S.”

Refugee Protection Division and Criminality

After submitting their paperwork, the children would have to get past the Refugee Protection Division, which is an administrative tribunal and the division of the Immigration and Refugee Board of Canada that hears and decides claims for refugee protection.

“One of the biggest hurdles they would have to pass is whether the children would be inadmissible based on criminality”, says Drouin-Carey. In Logan, we saw how Laura killed many times over in brutal fashion and how the children together killed at least one Transigen thug near the end of the movie. Let’s then assume that the U.S. government has labelled Laura and the other children as extremely dangerous because they have mutant abilities and have killed, even though they have not been convicted for their alleged crimes. Let’s also assume that this information has been shared with the Canadian government.

Under Section 36 of the Act, the Refugee Protection Division may have grounds to deem the children as inadmissible based on having committed a criminal or serious criminal act outside of Canada that would be indictable offences in Canada. “The tribunal wouldn’t even need a conviction, it looks like they’d just need some evidence of ‘committing an act’ of criminality,” says Drouin-Carey. Counsel for the children might be able to make submissions to justify or excuse the alleged killings based on, among other things, self defence and age (all of them appear under 16 years old).

Whoever is helping the mutants cross the border hopefully has legal counsel or has funding for legal counsel to assist the children complete their claim forms and represent them before the Refugee Protection Division, especially given the element of criminality that would likely pose a challenge for their claims. If they don’t, then the children might be able to apply for legal aid.

To add complexity to this, Laura may also have a colourable claim to Canadian citizenship which could possibly aid her refugee claim or perhaps bypass it altogether.

Conclusion

While Canada may have made itself known as welcoming to refugee claimants, we don’t just let anyone in who arrives at the border. These processes and bureaucracy are in place to protect the country and its citizens, while balancing it against our humanity to protect people fleeing persecution and danger. Even mutants.

Special thanks to Kathy Drouin-Carey from Edmonton, Alberta-based firm Insight Law LLP for her time spent with me being interviewed for this post.

Xavier’s Ailing Mind: A Study Into Intent

By

Brendan Bishop

-

September 21, 2017

0

Introduction

“As I live and breathe, the Wolverine!”

The movie “Logan” has already had a number of articles on this site devoted to it. After watching it a second time I realized someone could easily fill a book with the legal analysis of this movie. One of the biggest legal questions to me however is what, if anything would Charles Xavier be guilty of after the Westchester incident. This article will examine laws in the state of New York as well as some federal law.

In the movie the audience is given snippets of something referred to as the “Westchester Incident” this is when Charles has a seizure which causes his psychic abilities to lash out and paralyze anyone within close proximity to him. In his first attack he injured over 600 people and kills seven mutants, though unmentioned this is believed to be the X-Men.

Intent

Causing the death of anyone in the United States causes the court to examine the situation surrounding these events and determine intent. In New York Murder in the first degree has such a requirement (PEN § 125.27 Murder in the first degree). This aspect of intent is also present in second degree and aggravated murder. A seizure caused the death and injury there has no aspect of intent as such this eliminates every class of murder under the New York penal code. Further a defense of mental disease or defect is a defense to all classes of murder as well.

Mental Disease or Defect

Mental Disease or Defect Under New York Penal Code (New York Penal § 40.15 – Mental Disease or Defect) the defense of Mental Disease or Defect is what is known as an affirmative defense. The defendant is saying “yes, I did this act but there is a reason that I should not be held accountable for that.” The prosecution then no longer must prove that the defendant committed the crime but they were not suffering from a mental disease or defect. The most common example being an “Insanity” plea. Charles would undergo both mental and physical examinations and it would show that he did suffer from seizures and when the seizures happened his powers would lash out in destructive manner.

Manslaughter

Without intent there can be no murder but could it be manslaughter? Under New York Penal code (PEN § 125.15 Manslaughter in the first degree) there is also a matter of intent. The actions of the person charged must have been of a negligent or intended act that will normally cause harm but not kill. Once again, because the act was of mental disease or defect he is not guilty of manslaughter.

Criminally Negligent Homicide

New York has another offense that may fit. Criminally Negligent homicide lacks the intent requirement of the aforementioned crimes. For this charge to stand the prosecution would have to prove the incident was caused by Xavier’s negligence and normal use of such would have the expectant result of damage. Thinking does not normally result in damage to others and even in a powerful mind such as Xavier’s the usual result is communication not paralysis and death. From the films and comic books we know Xavier does not have a history of seizures so the court would likely find that because he had no prior history he could not be criminally negligent.

Weapons of Mass Destruction

Weapon of Mass Destruction We learn that Charles Xavier’s brain is considered a weapon of mass destruction by the HSI. The HSI is the investigative branch of the Department of Homeland Security. Under Federal Law a weapon of mass destruction is defined as:

(2) the term “weapon of mass destruction” means—
(A) any destructive device as defined in section 921 of this title;
(B) any weapon that is designed or intended to cause death or serious bodily injury through the release, dissemination, or impact of toxic or poisonous chemicals, or their precursors;
(C) any weapon involving a biological agent, toxin, or vector (as those terms are defined in section 178 of this title); or
(D) any weapon that is designed to release radiation or radioactivity at a level dangerous to human life;

This is a federal offense under Use of a weapon of mass destruction (18 U.S. Code § 2332a).
Section 921 lists explosive devices and section 178 lists many toxins such as animal venom and poison. Under the federal code Charles Xavier could not be charged with use of a weapon of mass destruction because a human being cannot be defined as a weapon of mass destruction. The incident however could lead to a new addendum adding a mutant component to the definition which would mean any time Xavier used his powers he was committing this federal offense. Without knowledge of any changes to the law in X-Men universe we must consider this akin to a suspect being considered armed and dangerous. This effect has no true legal recourse however it tells any authority to approach with caution as well as increasing the priority of answering such a call.
Civil Remedies

Could the victims and families of the victims gain any level of compensation for the incident? Here there is some possibility though when comparing having a seizure to other potentially hazardous activities such as driving we find that the court is reluctant to rule against those that have suffered a seizure if there is no history of them. However due to the power of Xavier’s mind those victims could potentially win damages in a court setting. This is entirely due to the standard of proof going from beyond a reasonable doubt to on the preponderance of evidence.
So it looks like Xavier would be free and clear as long as he maintains his medication regimen and keeps his doctor’s appointments… or is it?

Typhoid Mary

If you are not familiar with the story of Mary Mallon, who later became known as Typhoid Mary, this was the first known case of an asymptomatic carrier of the virus that causes typhoid fever. However, she was the cause of at least six deaths in New York in the 1920’s because she worked as a cook. Though she was not subject to criminal prosecution she was medically quarantined twice for a period of 26 years until she died. It is not clear under what authority the state of New York had to quarantine Ms. Mallon though. How does this have anything to do with Xavier?

Doctors could rule that Xavier is a threat to the public health and be placed under medical quarantine because of this. Under modern medical practices this could be done through psychological commitment. In a way Logan did exactly what the authorities of New York would have been able to do had they captured him.

Conclusion

Though legally Xavier likely would not have been found guilty of any crime he could have faced potential damages in lawsuits and possible quarantine or psychological commitment. The important acts of intent and negligence are absent, despite his innocence on a legal basis he is punished by his knowledge that it happened because of him and he feels responsible.

What Countries Can X-23 Claim Citizenship?

By

Josh Gilliland

-

April 10, 2017

0

Logan is an excellent X-Men movie. One basic human question in the film is the legal status of the “new mutants” that were born in Mexico. The multi-national company Transigen genetically engineered these children. The children were conceived from the DNA of other mutants and born to mothers of Mexican women. Just what is their citizenship?

Laura, aka X-23, had a Mexican mother and her father genetically was James “Logan” Howlett, who was born in Canada in 1832. While she might have been conceived through genetic engineering, there is no doubt her father’s DNA was Logan.

Laura can claim citizenship in Mexico, because she was born in Mexico City, pursuant to the 30^th article of the Constitution of Mexico. However, Laura’s options do not end there.

The Canadian Citizenship Act allows for citizenship by descent to the first generation of a Canadian parent born abroad, pursuant to paragraph 3(1)(b). Logan technically is a Canadian citizen by birth (arguably the oldest one at 197 years old by the time of Logan). As such, Laura has a colorable claim to being a Canadian citizen due to her father.

There is also the possibility Laura could be a US Citizen. Logan served in the US military in the Civil War, World War I, World War II, and Vietnam (it is unclear if Logan also fought in the Spanish-American War or the Korean Conflict). Logan would have qualified for US Citizenship because of his military service dating back to at least World War I.

Logan could have been a naturalized citizen if (1) at the time of enlistment, reenlistment, extension of enlistment, or induction such person shall have been in the United States, the Canal Zone, American Samoa, or Swains Island, or on board a public vessel owned or operated by the United States for noncommercial service, whether or not he has been lawfully admitted to the United States for permanent residence, or (2) at any time subsequent to enlistment or induction such person shall have been lawfully admitted to the United States for permanent residence. 8 U.S.C.S. § 1440.

If Logan was a naturalized US Citizen, Laura could claim she is a “natural born” US Citizen, because her father was a naturalized citizen from his military service spanning 1861 to 1970.

Transigen argued that the “new mutants” were patents and copyrights, thus property, and ignoring their humanity. The United States fought a war over the belief that people could be property, which is effectively Transigen’s position. The 13^th Amendment to the United States Constitution specifically prohibits slavery and involuntary servitude. Slavery was abolished in Mexico in 1824 and Canada in 1833 by British Parliament across the entire United Kingdom. As such, no country in North America would recognize human children being “property” as patents and copyrights.

Laura has colorable claims to have dual citizenship with Mexico and either the United States or Canada. Logan did fight in over 90 years of wars for the United States and was eligible for citizenship, but it is not clear if he ever because an US Citizen. As such, the most likely scenario is Laura having dual citizenship with Mexico and Canada.

The Custody Conundrum of X-23

By

Kean Zimmerman

-

March 4, 2017

0

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.

SDCF X-Men Mock Hearing Injunction Arguments!

By

Josh Gilliland

-

February 14, 2017

0

The countdown is on the for X-Men mock hearing at San Diego Comic Fest! Below is the Plaintiffs’ Motion to Enjoin the fictional Executive Order and the Defendant’s Opposition Motion. Join us at San Diego Comic Fest on February 18 at 300pm for oral arguments and the Court’s ruling.

Plaintiffs’ Motion

Plaintiffs_Motion_for_Premliniary_Injunction

Government Opposition

Defendant_Mutant_TRO_Opposition

Calling Law Students for X-Men Mock Hearing at San Diego Comic Fest

By

Josh Gilliland

-

December 18, 2016

0

We are proud to announce our second mock trial for San Diego Comic Fest, to be held over President’s Day weekend, February 17-20, 2017, at the Four Points by Sheraton. Our new program is a mock hearing to bring an injunction to prohibit the use of Sentinels against US Citizens. We are seeking two law students to represent a Mutant Rights Group and two law students arguing for the US Government’s use of Sentinels.

X-Men Days of Future Past depicted the US Government creating Sentinels that could identify US Citizens who were “Mutants” based on their DNA. The Sentinels would then immediately kill anyone who was a mutant.

The fictional President of the United States has issued Executive Order 09101963 after a terrorist attack by the Brotherhood of Mutants:

Authorizing the Secretary of Defense to Prescribe Mutant Areas

Whereas the successful defense of the United States against the Mutant Threat requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities.

Now, therefore, by virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of Defense, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of Defense or the appropriate Military Commander may impose in his discretion. The Secretary of Defense is hereby authorized to provide for residents of any such area who are excluded therefrom, such transportation, food, shelter, and other accommodations as may be necessary, in the judgment of the Secretary of Defense or the said Military Commander, and until other arrangements are made, to accomplish the purpose of this order. The designation of military areas in any region or locality shall supersede designations of prohibited and restricted areas by the Attorney General.

I hereby further authorize and direct the Secretary of Defense and the said Military Commanders to take such other steps as he or the appropriate Military Commander may deem advisable to enforce compliance with the restrictions applicable to each Military area hereinabove authorized to be designated, including the use of Sentinels, Federal troops and other Federal Agencies, with authority to accept assistance of state and local agencies.

I hereby further authorize and direct all Executive Departments, independent establishments and other Federal Agencies, to assist the Secretary of Defense or the said Military Commanders in carrying out this Executive Order, including the furnishing of medical aid, hospitalization, food, clothing, transportation, use of land, shelter, and other supplies, equipment, utilities, facilities, and services.

This order shall not be construed as limiting or modifying the duty and responsibility of the Federal Bureau of Investigation, with respect to the investigation of alleged acts of sabotage or the duty and responsibility of the Attorney General and the Department of Justice, prescribing regulations for the conduct and control of Mutant enemies, except as such duty and responsibility is superseded by the designation of military areas hereunder.

The Secretary of Defense designated that anyone who has the Mutant gene be registered to ensure national security in compliance with Executive Order 09101963. All unregistered Mutants are deemed a threat to the United States. Sentinels have shoot to kill orders for all unregistered mutants in order to protect national defense.

Attorneys representing a Mutant Rights Group have brought an injunction in Federal Court to prohibit the registration of Mutants and the use of Sentinels to kill US Citizens pursuant to Federal Rule of Civil Procedure Rule 65. The Mutant Rights Group must show: (1) they are likely to succeed on the merits; (2) they plaintiffs are likely to suffer irreparable harm in the absence of injunctive relief; (3) the balance of the equities tips in its favor; and (4) an injunction is in the public interest.

The Plaintiffs arguments can include that the use of Sentinels:

1) Is race-based discrimination because of the Plaintiffs’ DNA and will not survive strict scrutiny;

2) Is a gross violation of the 5^th Amendment Right to not deprive anyone of their life without due process of law;

3) Is a violation of the 4^th Amendment warrant requirement for probable cause;

4) Is a violation of the 6^th Amendment right to a trial in any criminal prosecution; and

5) Is a violation of the 8^th Amendment right against cruel and unusual punishment.

The Government argument is that the Constitution does not apply to Mutants, because they are not Homo sapiens, thus not “persons” under the law. Human beings do not have wings, fur, blue skin, or fangs. Even if Homo superiors were “human” to be considered a person under the law, strict scrutiny has been met, because of the dangers Mutants pose to national security. Mutants have the power to control minds, destroy buildings, and are a clear and present danger to all human life. Many mutants are indistinguishable from human beings, thus justifying the need to register Mutants for the safety of the humanity. The only reason for a Mutant to not be registered is that they are an enemy of the state.

Format of argument: the Plaintiffs will have 20 minutes to make their arguments. The law students should divide the work 50/50 between registration of mutants and use of Sentinels. Arguments can focus on the text of Executive Order authorizing the Sentinel program and the elements to grant an injunction. A motion will be due on February 1, 2017 outlining the student arguments with any case or statutory authority. The Plaintiffs can file a reply brief by February 15, 2017.

The Government will also have 20 minutes for their arguments on the Constitutionality of the Sentinel program and that the Plaintiff’s motion should be denied.The law students should divide the work 50/50. One law student should defend the registration of Mutants and the other the right to use Sentinels on Mutants. The Government’s opposition brief is due on February 8, 2017.

The Plaintiffs will have a five-minute rebuttal to the Government’s arguments.

Errata or supplemental material will be issued based on requests from the law students for support of factual arguments or supporting case law.

All motions will be posted on The Legal Geeks prior to the hearing at San Diego Comic Fest.

We currently have four law students signed up to participate. Others are welcome to sign up as an alternate in the event a student cannot participate.

Loading...