Agents of SHIELD is drawing to a great close. “Nothing Personal,” touched on many legal issues from the lawful of the former Agents’ actions, to following orders, Congressional inquiries, and possible violations of the Federal Aviation Regulations.
Congress vs Man-Thing?
Maria Hill showed her disdain for Congress holding hearings on everything from the Fridge to the Man-Thing.
While it is a safe assumption most people rather burn at the touch of the Man-Thing than be grilled by Congress, it is the job of Congress under Article 1 of the Constitution to provide oversight of the Executive Branch.
It is also important to remember Washington, DC is built on a swamp, so the Man-Thing should feel at home in a Congressional hearing.
Moreover, since Congress had to approved secret budgets for building flying aircraft carriers for HYDRA-New-Age-Nazis to kill people [most likely thanks to Senator Stern], questions should be asked who did what by Congress.
I Was Just Following Orders
A theme for the Agents of HYDRA was that their actions were not personal, but simply a matter of following orders.
For the SHIELD Agents, the issue was whether there is there anyone left to give orders. By the end of the episode, the team is held together by a sense of loyalty and duty in a cheap motel. This sense of duty took them from enduring taunting by Colonel Talbot on why they were “valuable” to fighting the US Army with non-lethal weapons in order to stop HYDRA.
Skye had some of her best lines of the season, after enduring a cross-continental flight with Agent Ward, she was able to open up on Ward’s “following orders” with “riot in Hell” for being a Nazi with a high death count.
The SHIELD Agents most likely will have to face the US Government for their actions. Under normal circumstances, they might try a “I was following orders” defense. As many Courts have stated, “[S]ince World War II, the ‘just following orders’ defense has not occupied a respected position in our jurisprudence, and officers in such cases may be held liable under § 1983 if there is a ‘reason why any of them should question the validity of that order.'” O’Rourke v. Hayes, 378 F.3d 1201, 1210 (11th Cir. Fla. 2004), citing Brent v. Ashley, 247 F.3d 1294 (11th Cir. 2001).
The SHIELD Agents know there is no real authority for them to issue or follow lawful orders. However, they are responding to the threat caused by HYDRA, even though SHIELD is viewed as a terrorist organization.
The Agents following Coulson have a small chance to mitigate any charges against them on a narrow view of the “following orders” defense:
“While it is typically no defense for an officer to claim he was simply ‘following orders,’ plausible instructions from a superior or fellow officer can support qualified immunity where, viewed objectively in light of the surrounding circumstances, they could lead a reasonable officer to conclude that the necessary legal justification for his actions exists.”
Wesby v. District of Columbia, 841 F. Supp. 2d 20, 40 (D.D.C. 2012), Harvey v. Plains Twp. Police Dept., 421 F.3d 185, 199 (3d Cir. 2005) (citing Bilida v. McCleod, 211 F.3d 166, 174-75 (1st Cir. 2000)).
The SHIELD Agents could argue that there was necessary legal justification for their actions, because of the fact HYDRA was actively executing a plot that threatened national, if not global, security. Given the events in the Winter Soldier, this argument might carry some weight.
Get Off My Plane
It is very hard not to love a flying car with machine guns. However, taking Lola for an emergency flight raised several issues possible violations of the Federal Aviation Regulations.
Agent Coulson made an emergency in-flight escape from the Bus in Lola. Experiencing engine trouble resulting from a gunfight with Deathlok and Ward, Lola had an emergency landing new the JW Marriott in downtown Los Angeles.
Rules regarding aircraft are very clear: No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another. 14 CFR 91.13. Furthermore, Lola meets the definition of an aircraft as a “device that is used or intended to be used for flight in the air.” 14 CFR 1.1
No one may operate an aircraft in a congested areas below an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft. 14 CFR 91.119(b).
Los Angeles is the poster child of a congested area. However, 14 CFR 91.119(a) does allow for emergency landings in the event of a power failure “without undue hazard to persons or property on the surface.” As Coulson was able to set Lola down in an emergency landing in a parking space, he likely complied with the spirit of the FAR, if not the actual letter of the law.
Now, Agent Ward not checking into airspace on his flight, well, just add that to the growing list of charges…
