Olivia Youngers is one of the most dynamic individuals I have had the pleasure of meeting. Olivia has been a reader of The Legal Geeks since nearly the beginning of our blog. She contacted me after The Geekie Awards saying, “I was there too, wish I’d known you were there I would have told you I love the Legal Geeks!”
Olivia was on stage twice in an amazing dress to help presenters with the awards.
Olivia is on the far right with the cards identifying the sponsors during the musical number at The Geekie Awards.
Olivia is a scientist, cancer researcher, chef, cosplayer, actress, geek and a fellow UC Davis alumni. We met to record three video podcasts. She actually baked me a torte, as we discussed torts. That was her wickedly creative idea.
I was in awe of her attention to detail, whether it was in recording a video on how to bake a torte, discussing Star Trek or describing what exactly are genetically modified foods.
I hope you enjoy our video podcasts. We discussed comic books, science fiction and torts vs tortes.
The Adventure Begins
Defending The New Dark Knight
Way Beyond Easy Bake Ovens
Olivia’s blog is Rollings Reliable. Be sure to check out her musings on cooking, geeks and science.
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.
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.
As already established, I love Joss Whedon. While Buffy will always be my first love, I think everything he does is great, each in its own special way. Dr. Horrible’s Sing-Along Blog is fantastic for so many reasons, including: (1) its inspiration in the 2007-08 Writers Guild Strike; (2) its music; (3) its use of Neil Patrick Harris; and (4) Joss’s classic move of turning convetion on its head, in this case, by making the hero an insufferable stuffed shirt. (Nathan Fillion is great as Captain Hammer but he’ll always be Johnny from Two Guys, a Girl, and a Pizza Place to me, while Ryan Reynolds will always be Berg.)
In addition to a reputation for excellence, Joss also has a well-deserved rep for killing off beloved characters. In Dr. Horrible, of course, [SPOILER ALERT!] he killed the adorable, sweet, much loved Penny. And while he killed her by impalement (a possible MO, per Josh, my partner in geekdom), it was as a result of the misfire of the Death Ray created by Dr. Horrible, although it was Captain Hammer who pulled the trigger. Nevertheless, Dr. Horrible got the credit, in the eyes of the Evil League of Evil, for murdering Penny. The question for The Legal Geeks, however, is what would the courts say about Dr. Horrible’s liability for Penny’s death?
In this situation, Dr. Horrible’s role would be similar to that of a gun manufacturer. He created the Death Ray but he didn’t pull the trigger. Indeed, he didn’t want Captain Hammer to pull the trigger, probably because the Death Ray was pointed directly at him at the time. (Captain Hammer’s willingness to fire on a clearly-vanquished enemy can be compared to Captain Mal Reynold’s shooting of unarmed opponents. This unusual willingness to have heroes act in morally grey ways is another Joss trademark, and one Josh and I discussed in comparison to George Lucas’s redo of Han Solo’s cantina gun shot.)
Dr. Horrible could argue that, as a gun manufacturer, he’s covered under the Protection of Lawful Commerce in Arms Act (the “PLCAA”), enacted by Congress in 2005. This Act was passed in part to prevent lawsuits against manufactures of firearms “for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed or intended.” This statute, which exempts manufacturers of legal, nondefective firearms from liability in products liability actions for criminal use of the firearms, would presumably not apply here for two reasons. First, while semiautomatic assault weapons may be legal, a “death ray” is probably not a legal firearm. Second, the death ray was presumably defective, as it misfired dramatically after a mere drop to the floor (Dr. Horrible wasn’t the best at making these weapons – the Freeze Ray didn’t work consistently either).
Assuming the PLCAA doesn’t protect him from liability, the question is whether Dr. Horrible can be held liable for the product he created. Dr. Horrible lives in California, where the general rule is that a manufacturer can be held liable for dangerous products, although there is no duty to warn of a product’s known risks or obvious dangers. With regard to the Death Ray, the dangers of firing it are obvious, although death by impalement would not be an obvious danger, so Dr. Horrible couldn’t use that general rule to protect him from a suit by Penny’s family.
A key question for the jury in a case brought against Dr. Horrible by Penny’s family would be whether the Death Ray failed to perform as safely as an ordinary consumer would expect when the product is used in an intended or reasonably foreseeable manner. Firing the weapon at a bad guy (by a hero, no less) is arguably a reasonably foreseeable use of the death ray. That same gun exploding into deadly shrapenel, however, would not be an example of a gun performing as safely as an ordinary consumer would expect, thereby making Dr. Horrible liable.
If a negligence claim was brought in addition to a products liability test, the issues would be the same, although Penny’s family would also have to prove that the defect in the death ray was caused by Dr. Horrible’s negligence. Again, a death ray that explodes after being dropped once is a poorly designed death ray and Penny’s family would have a strong argument that Dr. Horrible was negligent in designing the death ray.
Of course, this entire discussion may be moot because, as a result of Penny’s death, Dr. Horrible became a powerful evil leader. Captain Hammer, meanwhile, was reduced to many hours in intensive therapy and was unable to stop Dr. Horrible. So the courts may not have the capability to impose a judgment against Dr. Horrible — making him truly judgment-proof.