Holy fudge! I’m not surprised but I am thrilled that Marvel’s Agents of S.H.I.E.L.D. was so freakin’ awesome. My first impressions (because I know y’all have been waiting for them!) are as follows:
I thought the premiere was a ton of fun and a great translation of the Marvel universe to the small screen. I don’t care what the New York Times says!
I love that Gunn is the first guy (and first superhero) we see. I guess he’s only guest starring (and I’ve been avoiding all spoilers so I don’t know what the long-term plan is) but I hope to see more of him.
Speaking of Gunn, it’s great how much Joss uses his actors again. I was a big fan of Ron Glass in Firefly and really loved him (and his fashions) in Barney Miller, so I was thrilled to see him show up in the premiere.
And, finally, the ending’s homage to Back to the Future (we’re big fans of that around here) was great. They might as well have said, “Roads? Where we’re going, we don’t need roads.”
Bottom line: I thought the premiere was great and I can’t wait to see how the show develops. My only question is, if Agent Coulson is still alive, is there a chance Anya is too? I still miss her.
Stories of “whistleblowers” exposing government corruption have been popular for as long as there have been governments.
However, to what extent are “whistleblowing” movies within the scope of whistleblowing laws?
Moreover, how do these rules apply when the government’s form of retaliation is to kill the whistleblower?
Whistle While You Work
Whistleblowing is defined under the Black’s Law iPad App as “An employee who reports employer wrongdoing to a governmental or law-enforcement agency. Federal and state laws protect whistleblowers from employer retaliation.”
Here are examples of whistleblower statutes for government employees:
(1) (a) An employer may not take adverse action against an employee because the employee, or a person authorized to act on behalf of the employee, communicates in good faith the existence of any waste of public funds, property or manpower, or a violation or suspected violation of a law, rule or regulation adopted under the law of this state, a political subdivision of this state or the United States. Such communication shall be made at a time and in a manner which gives the employer reasonable opportunity to correct the waste or violation.
Idaho Code § 6-2104 (2012)
An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment:
(1) Because the employee, or a person acting on behalf of the employee, reports or is about to report to a public body, verbally or in writing, a violation which the employee knows or reasonably believes has occurred or is about to occur, unless the employee knows or has reason to know that the report is false; or
(2) Because an employee participates or is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action, in connection with a violation as defined in this chapter; or
(3) Because an employee refuses to commit or assist in the commission of a violation, as defined in this chapter;
(4) Because the employee reports verbally or in writing to the employer or to the employee’s supervisor a violation, which the employee knows or reasonably believes has occurred or is about to occur, unless the employee knows or has reason to know that the report is false. Provided, however that if the report is verbally made, the employee must establish by clear and convincing evidence that such report was made.
19 Del. C. § 1703 (2012)
Here are the basics of whistleblowing: Employers cannot punish an employee who is lawfully reporting to the government or law enforcement of the employer’s wrongdoing. This usually involves unlawful or wasteful government action, but there are private sector examples (think Karen Silkwood).
Let’s review three movies where the heroes “reported” violations of the law:
LA Confidential: On the Q-T And Always Hush Hush
Murder, drugs, vice, blackmail, and police cover-ups in post-World War 2 Los Angeles dominate the classic LA Confidential.
The multiple crimes are as complex as the LA freeway system. However, the goal of the dirty cops was simple: take over Mickey Cohen’s drug racket.
LA Confidential raises several twists with being a whistleblower. One was the DA was being blackmailed, thus destroying his ability to press any charges and making him a de facto co-conspirator by his silence. Second was the corrupt cops were killed in a gunfight while attempting to murder the remaining heroes. The story of how bad their actions were would have destroyed the reputation of the department for decades, so everyone participates in a cover-up.
The good guys win, but not by following the law. The authorities opt for the noble lie opposed to destroying the legitimacy of law enforcement with the truth. While this legally is abhorrent, the Machiavellian reasoning makes sense for the greater good [of the elected officials].
With that said, no Mayor, District Attorney, Police Chief or other elected or appointed government official should think cover-ups are a good idea. It always ends badly.
Blue Thunder: One civilian dead for every ten terrorists. That’s an acceptable ratio.
….Unless you are one of the civilians.
Blue Thunder was the story of the military developing an armed police helicopter prior to the 1984 Olympics in Los Angeles to combat terrorism. No one wanted a Munich repeat.
The political back story was the for the helicopter to be used to put down “civil disobedience” such as riots and eliminate political enemies. Moreover, there are unexplored 4th Amendment issues of the police having a silent helicopter that could record infrared video and audio of an unsuspecting public. Additionally, in the days long before the Internet and Google, the police had access to computer network of home security systems to know if homeowners were home.
The hero Frank Murphy, played by Roy Scheider, uncovered the secret purpose of Blue Thunder on a test flight, plus a conspiracy by Feds to kill him. Murphy’s whistleblowing actions included stealing the helicopter and having his girlfriend deliver an infrared video and audio recording to a news channel with Feds engaged in conspiracy planning. Along the way, the following property damage takes place:
2 Police Helicopters Crashed
1 Police Car Shot in Two
1 Police Motorcycle Crashes
1 BBQ Restaurant Hit by Heat Seeking Missile
One Downtown LA Building Hit by a Missile
1 F-16 (Which had to crash in downtown LA)
1 Military Helicopter
1 Freight Train Runs over Blue Thunder
Blue Thunder itself is Destroyed
Blue Thunder is problematic, because the amount of property damage and threats to life push whistleblowing, the necessity defense and self-defense to new limits (it is worth noting Murphy does not appear to get a police officer or member of the public killed). However, normal whistleblowing reporting was unavailable, due to political assassination of a city council woman, the murder of Murphy’s partner, and the active plot to kill Murphy, extreme measures appeared to be the only option. Time was also of the essence before the recording would be destroyed, resulting in the loss of evidence.
While no one gets killed on screen during Murphy’s flight besides the villain, this whistleblowing would be an insurance nightmare and have an extreme amount of litigation.
Serenity: They Won’t See This Coming
Malcolm Reynolds and the crew of Serenity were whistleblowers, provided the Alliance had allowed a private right of action to report on government corruption.
In the film Serenity, the Parliament experimented on the population of the planet Miranda in an attempt to weed out aggression. It did not work, resulting in 30 million dead and the creation of the Reavers, insane cannibalistic madman lacking any social structure.
The crew’s attempt of broadcasting a report from Miranda that exposed the government wrongdoing is whistleblowing in the purest sense. However, spaceships, gunfights and cannibal rapists on the other hand are generally not involved whistleblowing stories.
Whistleblower movies far exceed the act of simply reporting unlawful activity. With few exceptions, whistleblowing does not have attempted murder of the whistleblower. However, it has someone brave enough to report the violation, which then results in lawyers conducting document review to find out what happened. This is less exciting than spaceships, helicopters and shootouts.
A story slightly closer to the truth on whistleblowing would be Michael Clayton. Granted, this story does involve corporate counsel organizing the murder of trial counsel (which is not the proper response to an attorney violating the duty of loyalty, attorney-client privilege and work product doctrine). However, it does end with the attorney hero getting an incriminating statement from corporate counsel for the police to start arresting corporate counsel and other executives.
As promised, this is a follow up to my earlier post, picking out a dream team for the next time they decided to introduce a legal show. For my last post, everyone was alive. This time, I’m making up the cast from actors who’ve already had their “In Memoriam” moment. .
Judge: The judge from My Cousin Vinny was a close second, but in the end there’s only one person who can be the judge: Judge Smails of Caddyshack fame. Rodney, Bill, and Chevy are Caddyshack’s top stars, but Ted held his own with them. He has just as many great lines, with my favorite (twisted as it is) being:
Defense attorney: This can’t be anyone but Atticus Finch. The book is brilliant and Gregory Peck is fantastic – both in that role and generally.
Prosecutor: Adam Bonner from Adam’s Rib gets to be the district attorney, but only because Spencer Tracy is playing opposite Katherine Hepburn in this fantastic movie.
Bailiff: Selma Hacker from Night Court is my choice for bailiff. She was tough and dry and she was on Night Court, which is still one of my favorite legal shows.
Investigator: I would pick Kalinda again, but given that she’s still alive and kicking, I’ll have to go with my second favorite investigator – Columbo. I think his bumbling facade has become a role model for investigators everywhere, so he gets big points for that. Plus, he was in the Princess Bride, which automatically makes him super-cool.
As this court is clearly criminal, I’m going to add in a police officer who frequently appears to testify: Detective Fish from Barney Miller. (And yes, I know, he’s still alive. But I had to do this because poor Abe has struggled with that problem for decades – people think he’s dead and yet he’s still alive and acting!)
I love Barney Miller. In fact, this whole post is really just an excuse to do two things: (1) quote one of my favorite lines from my all-time favorite movie and (2) discuss my favorite cop show. The actors in Barney Miller were all lovable and the outfits really grew on me. I wish men today wore fantastic fat ties and fabulous plaid pants. And speaking of fabulous men in plaid, I’m was so excited to see Ron Glass, the sexy detective from Barney Miller, become Shephard Book, the sexy preacher on Firefly. Time to go watch Serenity!
Many people hear the call of service and want to wear body armor and a cape. However, this is a profoundly bad idea. The law strongly disfavors ordinary citizens becoming vigilantes. Moreover, we have no known aliens with amazing powers, individuals enhanced by government experimentation or human hybrids with other humanoid species flying around major US cities.
With that said, who doesn’t like comic book super heroes? And for all the super lawyers out there, what legal issues are there in fighting crime after being given a magical amulet?
Vigilantism is defined in Black’s Law Dictionary as, “The act of a citizen who takes the law into his or her own hands by apprehending and punishing suspected criminals.”
“Vigilantism” is also defined under case law as “unreasonable self-help action by citizens that tends to disrupt the administration of the criminal justice system.”State v. Johnson, 1998 NMCA 19, P 15, 124 N.M. 647, 954 P.2d 79.
So, what does this mean for all of our comic book super heroes? Let’s review the different types of heroes to see who is a vigilante vs those engaging in law enforcement.
Criminals Are a Cowardly Lot…
Comic characters who take up arms and hunt criminals are with little question vigilantes. Examples on one extreme would be the Punisher and the other Batman. Both lost family members and took up arms to stop criminals.
There are obvious differences between the two, besides Marvel and DC. Punisher kills, where Batman has rules against killing (unless you are Darkside in Final Crisis). However, while the Punisher is not operating under any color of law besides avenging “justice” by killing criminals, Batman at least has tacit consent by Gotham City’s use of the Bat Signal to call for Batman’s help (perhaps showing Batman is deputized by local law enforcement).
Brilliant, Well-Funded & Armed
Tony Stark and Hank Pym are prime examples of the brilliant scientists who engineer super-human powers for themselves.
Some of these characters are defined in role playing games are “high tech wonders” and others “altered humans.” The key is whether they are using technology or has science changed their bodies.
For Stark his power is an advanced body armor that serves as a weapons platform; Pym his “Pym Particles” who he used to shirk or grew, depending on the decade and which identity Pym was using to fight crime (Ant Man, Giant-Man, Goliath, Yellow Jacket, or Wasp).
Granted, Batman could also fall in this category given his utility belt and advanced weapons. However, Batman uses more of his body through training as a weapon, where heroes such as Iron Man have built full blown body armor.
Iron Man falls in an interesting category, because the character was originally his alter ego’s body guard. Additionally, with Tony Stark being a Cold War weapons manufacturer, Marvel had a character arguably who was different than a vigilante. The issue would turn on whether Iron Man was operating as Stark’s body guard or going beyond such services (or a private citizen developing his own foreign policy arguably during the Armor Wars, something else frowned upon under the 1799 Logan Act).
Granted, Tony Stark eventually went public with his secret identity and held such positions as Secretary of Defense and Director of SHIELD. Under these positions, Stark was acting within the “police powers” of the Government.
Government Sponsored Heroes
The [fictional] United States Government has created and sponsored various super heroes. The most notable of course being Captain America.
Pursuant to Article I, Section 8 of the United States Constitution, Congress can “raise and support armies…” In a world where villains (especially if sponsored by a foreign power) can blow up buildings, Congress raising an army of super humans would not be out of the realm of possibility.
These heroes might have Posse Comitatus Act issues without specific legislation, but if authorized by Congress, would be the most “legal” form for a super hero to be operating within the law.
State-sponsored heroes would also need to follow the US Constitution and our laws on search, seizure and arrest. With that said, how many times in the comics has a super hero read a villain their Miranda rights?
A spin on this would be Green Lantern. While not authorized by Congress, Hal Jordan was selected by a Green Power Ring created by the Guardians of the Universe to protect Sector 2814. In essence, Green Lantern is a cosmic police officer. While the Guardians are free to create whatever selection criteria for the Green Lantern Corps, there would still be jurisdictional issues of a “alien” government setting law enforcement terms within the United States (or any country on Earth).
However, if a giant red alien shows up and starts eating buses with school children, elected officials probably will let that detail slide.
You’re Not Just Anyone
Superman is perhaps the most classic super hero of all time.
Superman arguably started out as a vigilante for a brief period of time, but since he at first represented “truth, justice and the American Way,” he was a symbol of working within the system.
This was also evidenced in such classics as Frank Miller’s The Dark Knight Returns (where Superman worked for the American government, which had banned heroes) and New Frontiers (which also banned heroes).
On the flip side, if a “person” can jump tall buildings in a single bound and is faster than a speeding bullet, society would accept his help. I mean, who would stop him?
If There Were Heroes…
If there were super heroes, the world of Powers probably would be the most on point on what that society would look like, complete with fans treating the “powers” like sports figures or movie stars. There would be regulation if not an outright ban on being a hero, because society would not tolerate mega-humans blowing up schools or throwing cars at people.
However, we will discuss Who Killed Retro-Girl another time.
Firefly was wickedly creative, well-written and had fantastic humor. Spaceships and wardrobe that ranged from Western to Steampunk to Chinese aside, Firefly presented excellent Contract formation issues.
Contract formation consists of 1) Offer; 2) Acceptance; 3) Consideration; and 4) Performance.
In the world of Firefly, it was often 1) Offer 2) Acceptance 3) Gunfight (also known as breach). Let’s review three episodes to examine these contract issues.
Consideration in Contract Law involves something of “value” being given up by a promissor to a promisee in exchange for something of value given by a promisee to a promissor (Nice summary in Wikipedia). In Shindig, the consideration for earning Warrick Harrow’s cattle shipment job was surviving a sword fight with one of Inara’s clients (it also could be a condition precedent, because Mal did have to survive the fight).
Since the old idea that consideration can be a peppercorn, a sword fight does not seem too crazy in a future with space cowboys fighting an oppressive regime.
The Train Job
The Train Job was the second episode in the series. Malcolm Reynolds formed an oral contract with a crime boss named Adelei Niska to steal medical supplies from a train. Niska made a payment for the work to be performed, which involves extracting cargo from a fast-moving train with Alliance soldiers onboard.
The heist was a success, with the exception the Captain and Zoe were stuck on the train and ultimately needed to be “rescued” by Inara after being detained in town.
However, once Mal and Zoe reached the destination of the cargo, they learned the medicine was vital for the survival of a mining town where everyone was suffering from the effects of mining.
Mal’s following actions are best described as contract rescission, which is the unwinding of an agreement. Mal decided to return the stolen medicine to the town and the money back to Niska. Granted, since this was an action show, there was a gunfight and someone sucked through a jet intake before Niska’s men accepted the rescission (non-traditional contract remedies were later sought by Niska in War Stories).
Out of Gas
The contract issues in Out of Gas focused on a salvage ship that found the crippled Serenity with only Mal onboard.
Serenity was heavily damaged from an engine room fire and needed a new compression coil.
The salvage captain boarded Serenity and shot Mal after seeing Mal was telling the truth about Serenity’s damage (this was after Mal offered anything of value in the ship’s hold).
The actions up until the shooting showed the parties went beyond offer and acceptance to performance, because the salvage captain boarded Serenity with the compression coil in hand.
Given the fact payment had not been determined, there was an uncertain term to the contract. However, there was sufficient evidence to show a contract had been formed based upon the conduct of the parties (boarding Serenity with the part Mal requested from the salvage captain).
After being shot, Mal armed himself with the gun from the “Mule” and ordered the captain and crew off his ship. While there was no payment made for the compression coil, the salvage captain breached his agreement when he shot Mal. Keeping the compression coil would have been the proper damage recovery (sure, there is a separate cause of action for shooting someone).
Curse Your Sudden But Inevitable Betrayal
The remedy for a breach of contract is either money damages or equitable remedies. Gunfights in the series aside, Out of Gas focused more on the equitable remedy of specific performance. In the instance of TheTrain Job, returning Niska’s money was designed to put him in the same place as he was before the contract with Malcolm Renyolds.
So let me make this abundantly clear. I do the job and then I get paid.
Captain Malcolm Reynolds
Firefly essentially was about engaging in contract work for payment. Each episode has different themes on issues of formation, breach or remedies. While the show was certainly not a transactional space adventure with cowboys, the contract issues are very prevalent.