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.

The Crimes of Ygor

By

Josh Gilliland

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October 25, 2020

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Bela Lugosi’s role of Ygor in Son of Frankenstein and Ghost of Frankenstein is a character study in evil. Not just run of the mill random acts of ill will, but cold and calculated malice to kill all of the jurors who had originally convicted Ygor for death.

Profile in Deceit

In Son of Frankenstein, “Old Ygor” is introduced lurking around the town of Frankenstein. Yes, that means “Frankenstein” is used interchangeably with a person, a town, and the Creature. Ygor introduced himself to Baron Wolf von Frankenstein by spying on him. These acts would be an invasion of privacy, which is when a person physically and knowingly, “enters onto the land or into the airspace above the land of another person without permission…or familial activity and the invasion occurs in a manner that is offensive to a reasonable person.” Cal. Civ. Code § 1708.8(a).

Ygor appealed to Dr. Wolf von Frankenstein’s ego in securing the doctor’s help in reviving the comatose Creature. Ygor represented only that the Creature “does things for me.” The specific definition of “things” was killing the jurors who had convicted Ygor. By the time of Dr. Frankenstein’s entrance, the Creature had killed six out of eight jurors by striking them so hard their hearts burst.

The failure to define “things” was fraud in convincing Dr. Frankenstein to heal the Creature. Ygor suppressed the fact that the Creature had committed six murders, which was material information that Dr. Frankenstein should have known about before reviving the Creature. See, Cal. Civ. Code § 1710(3).

A Conspiracy for Murder

Ygor and the Creature worked together in performing three additional murders. These murders included Frankenstein’s butler and the two remaining jurors. Ygor played music where he was publicly visible, giving himself an alibi for the deaths.

A conspiracy is when two or more people conspire to commit a crime. Cal. Pen. Code § 182(a). Coconspirators can be responsible for the criminal harms “they have naturally, probably and foreseeably put in motion.” People v. Luparello, 187 Cal.App.3d 410, at p. 439 (Cal. Ct. App. 1986). For Ygor and the Creature, they intended the two jurors to be killed. The Creature even went so far to make one of the murders look like an accident (which goes to show the Creature understood the wrongfulness of his actions).

The death of the butler was not planned by Ygor working with the Creature, so at best, Ygor could be charged with second degree murder.

Kidnapping of Children

The children Peter Frankenstein (Son of Frankenstein) and Cloestine Hussman (Ghost of Frankenstein) were placed in mortal danger by the Creature. The facts for each are radically different.

The Creature kidnapped Peter Frankenstein (Wolf’s young son) after Wolf had shot Ygor. Ygor was believed dead, as the way the story ended showed there were no plans for a sequel. Kidnapping is the forcible taking of a person. Cal. Pen. Code § 207(a). The Creature picking up Peter and carrying him to the lab meets the required acts for conviction. However, as Ygor was incapacitated and had not planned a kidnapping with the Creature, the kidnapping is not a natural and probable consequence of their conspiracy.

The Creature took Cloestine Hussman from her room and wanted her brain put in his body. Ygor stated that the Creature taking the child was something he could not stop the Creature from doing. While Ygor and the Creature were clearly collaborators, Ygor is best classified as an accessory-after-the-fact. Nothing was done to return Cloestine to her family, meaning everyone in on the plan to give the Creature a new brain had assisted in the kidnapping of a child.

If I Only Had a Brain

Dr. Ludwig von Frankenstein planned to transfer the brain of his slain associate Dr. Kettering to the Creature’s body. This would have been cosmic justice, with the victim taking the body of his killer. However, Ygor convinced Dr. Theodore Bohmer (Dr. Frankenstein’s colleague who had once been his professor) to switch Dr. Kettering’s brain with Ygor’s brain. This would be the worst case scenario of the amoral murderer getting an undying body.

The musical brains are again fraud. Dr. Frankenstein was intentionally misled to place Ygor’s brain in the Creature’s body. Unfortunately for Ygor, his blood type was not compatible with the Creature’s body and he immediately went blind.

Ygor’s Opus

All of Ygor’s actions were based on revenge for those who had sentenced him to death. His ability to hoodwink both sons of Frankenstein was impressive, since one would have expected Ludwig to have learned from both his father’s and brother’s mistakes.

Mothra Soars with Legal Analysis

By

Josh Gilliland

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May 21, 2020

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The 1961 Mothra has a giant moth size of legal issues in this classic Toho film. Nari Ely and I sat down to discuss a wide range of issues including kidnapping, self-defense, angry mobs, and human rights presented in the first movie where Mothra took flight.

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.

Can the First Order Be Charged with Piracy for the Kidnapping of Torra Doza?

By

Josh Gilliland

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February 1, 2019

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The First Order in the Star Wars Resistance episode “The Doza Dilemma,” hired interstellar pirates to kidnap Torra Doza. Could the First Order and pirates be charged with conspiracy to commit piracy and piracy?

Looking to international and United States law for guidance, the answer unquestionably is YES. US law states:

“Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.”

18 U.S.C.S. § 1651.

The “high seas” are defined as “open waters of sea or ocean, as distinguished from ports and havens and waters within narrow headlands on coast.” United States v Rodgers 150 US 249 (1893).

Looking to international law, the Convention of the High Seas states that piracy includes, “Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed.” 1958 U.S.T. LEXIS 31, Article 15, section 1.

The Colossus is an operational refueling station on the ocean planet Castilon. The Colossus is either adrift or holding station in open waters, far out of sight from any ports or harbors. The location of the Colossus meets the statutory requirements of being on the “high seas” given the nature of Castilon being an ocean planet.

The pirates Valik and Drell were smuggled aboard the Colossus in a shipping container. They were released from the container and gained access to the Aces’ Tower with the assistance of Synara San in order to kidnap Torra Doza. International law recognized piracy as “any illegal acts of violence.” Kidnapping is an act of violence that is recognized as one form of piracy, along with being held hostage, tortured, or murdered. See, United States v. Said, 798 F.3d 182, 199-200 (4th Cir. 2015).

Valik and Drell forcibly took Torra Doza from her quarters. Doza was then transported by over the Castilon Ocean in a small vessel to the pirates’ mother ship. These actions would constitute an act of violence on the high seas. As such, all of the elements of piracy are met in the kidnapping of Torra Doza.

The First Order cannot escape liability by claiming their retention of the pirates never placed them on the high seas, because the prohibition against piracy on the high seas has universal jurisdiction. Those who stay ashore who are part of a conspiracy cannot escape liability for the actions of co-conspirators on the high seas. See, United States v. Ali, 718 F.3d 929, 937 (D.C. Cir. 2013).

The issue of the First Order double-crossing the pirates does not absolve the First Order of being an active participant in the conspiracy to kidnap Torra Doza. It is merely a lesson that there is no honor among thieves.

Yondu Was Right to Not Give Star-Lord to Ego in 1988

By

Josh Gilliland

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May 12, 2017

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The first Guardians of the Galaxy film established that the Ravager Yondu was hired by Peter Quill’s father, to bring the young Peter to his biological father, after the death of Peter’s mother. Yondu admitted he breached his contract with Quill’s father on the grounds the father was a “jackass.” No rules on anticipatory breach of contract have a “jackass” exception, but Yondu was correct to do so on other grounds.

As we learned in Guardians of the Galaxy Vol 2, there were other reasons for Yondu to not return Peter to his father. Spoilers ahead, so do not read further if you have not seen Guardians of the Galaxy Vol 2.

Meredith Quill stated on her deathbed that she intended Peter to live with his grandfather until Peter’s father returned for the boy. Meredith was not married to Ego the Living Planet, and it is not clear if Ego ever met Meredith’s friends or family. Moreover, it is unstated whether Meredith listed Ego on Peter’s birth certificate. As Meredith had sole custody of Peter, it is reasonable she could have stated in a will her intent that Peter’s father should have custody of Peter. However, if Meredith had known the truth about Ego, she would not have ever intended Peter live with his biological father.

The Uniform Child Custody Jurisdiction Act is enacted in every state in the United States. As Peter was born and raised in Missouri, The Show Me State would have been Peter’s “home state” for a court to decide who had custody of Peter. Mo. Rev. Stat. § 452.445(4).

Ego would have had multiple challenges in bringing a petition to assert his parental rights over Peter. First, hiring mercenaries to kidnap a child from Earth would qualify as “reprehensible conduct,” and a court would decline to exercise jurisdiction over Ego’s case. Mo. Rev. Stat. § 452.475(1). Moreover, courts will not give a person custody of a child if they have caused the death of another child through abuse or neglect. See, CA Welf. & Inst. Code, § 300(f). The mass grave of intergalactic children would be Exhibit A to Ego’s unsuitability as a parent. Additionally, a Missouri Court would not be obligated to recognize an “out-of-state” decree from Ego himself, as the United States does not have any treaties or formal relations with the Living Planet. Mo. Rev. Stat. § 452.500. As there were limited legal means for Ego to take custody of Peter, Ego resorted to hiring Yondu to kidnap Peter from the lawful care of his grandfather.

Yondu had been hired multiple times by Ego to bring Ego’s children to his planet. Ego further represented that the children would not suffer; as such, Yondu arguably did not have actual notice that all of the children he brought to Ego the Living Planet were going to be killed. However, kidnapping children was one of the forbidden crimes for any Ravager (and parents in the United States). Moreover, Yondu should have been alerted that something was wrong with delivering multiple children to never be seen again to Ego. While Yondu could have justified to himself he was helping reunite children with their father, at the end of the day he was wrongly kidnapping children.

Yondu arguably had constructive notice that Ego’s children were being killed, because of the number of children who disappeared after being delivered to Ego. If Yondu suspected that Peter Quill was going to be killed, not delivering Peter to Ego was the correct action. Furthermore, there is a legal exception to kidnapping if a person takes or conceals a child in order to protect that child from “imminent danger.” See, CA Pen. Code, § 207, subds. (f)–(f)(1). Yondu could have reasonably believed he was in a better position to protect Peter from Ego than Peter’s grandfather, because Ego was an “imminent danger” to Peter’s life. However, no Missouri judge would ever rule in favor of a child being raised by a space pirate instead of a grandfather, in order to avoid the child being used by the biological father to conquer the universe, who also murdered the mother of the child in the custody dispute.

Yondu made the right decision in breaching his contract [criminal conspiracy] with Ego the Living Planet, albeit extremely late after multiple other crimes had been committed. Despite those shortcomings and teasing the Ravager crew wanted to eat Peter, Yondu seemed to be a good dad for a space pirate.

What’s Wrong with Super-Heroes Having Secret Prisons?

By

Josh Gilliland

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June 2, 2015

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Both Arrow and The Flash have the good guys imprisoning super-villains from meta-humans to highly skilled assassins in secret prisons. There are strong arguments these civil rights violations are born out of necessity, because trials for meta-humans can be problematic if jails and the court system cannot contain people who can teleport, control the weather, or shoot energy out of their eyes.

The Flash actually addressed this issue in the penultimate episode of the season. Joe West challenged Barry about moving meta-humans from one black site to another. West further went to the District Attorney for help, only to have her expression best be described as an ulcer exploded while speaking with Detective West about unlawfully imprisoning super-villains.

Here is what is wrong with both Green Arrow and The Flash holding people prisoner in a secret prison: the heroes commit a total denial of due process of law in total violation of the Constitution. This is actually worse for Barry Allen, since he works for the police department.

Let’s explore the different legal challenges for our heroes.

False Imprisonment

Assuming Starling City is in Northern California and Central City is somewhere in Oregon (thus 600 miles apart and coastal cities), we will use both California and Oregon law.

For the Arrow, False Imprisonment is “the unlawful violation of the personal liberty of another.” Cal Pen Code § 236. Furthermore, the law does allow for private citizens to make arrests, however the private citizen must take the arrested person before a magistrate or turn them over to a peace officer without “unnecessary delay.” Cal Pen Code § 847.

The Arrow (and those on Team Arrow) have turned criminals over to the police, but super-villains still end up on Lian Yu without a trial. There is no legal way to justify false imprisonment committed by the Arrow.

The Flash has a similar issue with imprisoning meta-humans at S.T.A.R. Labs. Oregon has very similar laws on citizen’s arrests based on probable cause; however, Barry Allen’s job a forensic examiner for the police makes him a peace officer. ORS § 133.225. Those imprisoned at S.T.A.R. Labs could sue Barry Allen on a 1983 Action for depriving them of their civil rights, including the right to counsel, Miranda warnings, a speedy trial, and all other protections offered by the Constitution.

Kidnapping

Everyone taken to a secret prison has been kidnapped. The Arrow committed kidnapping by taking Slade Wilson by arresting him in Starling City and then transporting him to Lian Yu. See, Cal Pen Code § 207(a).

Barry Allen has committed kidnapping because in the second degree because he intentionally took multiple meta-humans to S.T.A.R Labs with the intent to “interfere substantially with another’s personal liberty, and without consent or legal authority” and secretly confined them where they would not likely be found. ORS § 163.225(1)(b).

Legends of Civil Rights Violations

There is no question that Green Arrow and The Flash are the good guys. However, their knowledge of Constitutional Criminal Procedure has a lot of room for improvement. If only they knew a District Attorney who could give them pointers on the law.