People’s Court: Heavenly Edition

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November 9, 2012

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!

Being a Super Hero Only Looks Good in Comic Books

By

Josh Gilliland

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November 5, 2012

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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.

Bam! Kapow! Can Stan Lee (Media) Defeat the Mighty Mouse?

By

Jessica_alegalgeek

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November 2, 2012

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“Disney always wins.” According to my copyright law professor (Hook ‘Em, Horns), that’s the first rule of copyright law. A quick search online shows that there are 188 cases where Disney is a party and copyright issues are mentioned. I haven’t checked all of those cases but I’ll assume that my professor was right and that Disney generally wins.

But now Stan Lee Media, Inc. – the defunct company co-founded by that master of marvels and superheroes – has decided to take on the mighty mouse. I’m currently obsessed with Marvel, thanks to Avengers being released on DVD, the new Iron Man trailer, and the new book on the history of Marvel (which I’ll be discussing next week). So now Stan Lee Media is suing Disney. What’s next?

It looks like a tough case. Stan Lee Media is claiming that, just two weeks before signing a contract with Marvel, Stan Lee himself signed a contract with Stan Lee Media assigning the rights to all of the characters he had created (or would create) to it. So Stan Lee Media is claiming that it – not Marvel – owned the various Stan Lee characters that have made billions for Disney, including Spider-Man, the X-men, and most of the Avengers. It’s claiming that Disney owes it $5.5 billion for copyright infringement as a result of Disney’s use of these characters.

This kind of dispute about who promised what and when is tough enough, but Stan Lee Media faces a bigger hurdle: res judicata. Stan Lee Media has made this claim about Lee assigning his characters to it first before and lost (although that decision is being appealed). The doctrine of res judicata says that parties can’t relitigate issues that were or could have been raised in a previous lawsuit that is final. Because Disney purchased its rights from Marvel, it would stand in Marvel’s shoes and can say that this issue has previously been litigated. As a result, it would argue that Stan Lee Media is barred from pursuing these claims again.

Stan Lee Media is trying to avoid this barrier by claiming that Disney’s own conduct since 2009 is actionable. Stan Lee Media argues that this suit should therefore be able to continue even if Stan Lee Media loses its appeal of the previous case. Disney isn’t scared, though, stating that this lawsuit is without merit. And now, just like in Lee’s own comic books, we’re going to have to wait for the next issue of this comic saga to find out if Disney will prevail once again!

What’s This? What’s This? Jack Skellington and False Impersonation

By

Josh Gilliland

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October 31, 2012

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When it is Halloween and Christmas decorations already up in stores, I cannot help but think of A Nightmare Before Christmas. And when I think of Jack Skellington, I think of false impersonation. And of course this song:

Have I Positively Gone Daffy?

A Nightmare Before Christmas is the classic story of Jack Skellington and other characters from Halloween Town kidnapping Santa Claus, so Jack could assume Santa’s identity for Christmas. There are several huge legal problems that are tough to ignore: 1) Conspiracy. 2) Kidnapping. 3) False Impersonation. 4) Torture at the “hands” of Mr. Oogie Boogie. 5) Breaking and Entering. 6) Assault and battery on an unknown number of families.

Let’s examine false impersonation. California Penal Code section 528.5 states:

528.5. (a) Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable
pursuant to subdivision (d).

(b) For purposes of this section, an impersonation is credible if another person would reasonably believe, or did reasonably believe, that the defendant was or is the person who was impersonated.

(c) For purposes of this section, “electronic means” shall include opening an e-mail account or an account or profile on a social networking Internet Web site in another person’s name.

(d) A violation of subdivision (a) is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.

(e) In addition to any other civil remedy available, a person who suffers damage or loss by reason of a violation of subdivision (a) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief pursuant to paragraphs (1), (2), (4), and (5) of subdivision (e) and subdivision
(g) of Section 502.

(f) This section shall not preclude prosecution under any other law.

What’s This? There’s Lawyers Everywhere?!

It would be extremely difficult to not convict Jack of false impersonation, meaning a fine of $1,000, possible jail time for one year, plus civil liability for the different physical assaults on Santa committed in the furtherance of the conspiracy for Jack to become Santa.

Given the conspiracy and other crimes, Jack would be looking at significant prison time.

Unless there is a Christmas Miracle, the only possible statutory defense for Jack is that his impersonation was not creditable under subsection (b), because the world quickly figured out from the ghoulish toys that Jack was not the true Santa Claus.

With that said, there would still be multiple counts of breaking and entering to leave the inherently dangerous toys that harmed families. Not to mention violating US airspace with said “toys,” arguably an act of war or terrorism by Halloween Town, dependent on whether Halloween-town is a nation-state or not. Regardless, there would be a drone strike on Oogie Boogie and SEALs sent in for Jack.

It is unknown whether there could be any civil or criminal liability for making people break into song throughout the day.

Ghostbusters & False Imprisonment

By

Josh Gilliland

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October 29, 2012

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I ain’t afraid of no ghost, but how about false imprisonment?

The 1984 film Ghostbusters tells the story of private individuals who hunt, trap and “contain” ghosts haunting people.

However, could the Ghostbusters actually be falsely imprisoning formerly living people without any due process in violation of their “civil rights”?

Would there be any liability or the ability for surviving family members to recover on behalf of their deceased and imprisoned family members?

Under New York law, a “person is guilty of unlawful imprisonment in the first degree when he restrains another person under circumstances which expose the latter to a risk of serious physical injury.” NY CLS Penal § 135.10.

Additionally, a “person is guilty of unlawful imprisonment in the second degree when he restrains another person.” NY CLS Penal § 135.05.

By way of comparison, California requires the following to be proven for false imprisonment:

1. A person intentionally [and unlawfully] restrained, confined, or detained another person, compelling [him] [her] to stay or go somewhere;

2. The other person did not consent to the restraint, confinement, or detention; and

3. The restraint, confinement or detention was accomplished by violence or menace.

CALJIC 9.60.

What does this mean for the Ghostbusters?

Both states require a person be restrained in someway without that person’s consent.

The issue is simple:

Is a ghost a person subject to the protections of state and Federal law or a “former person” and thus not subject to being protected from false imprisonment?

Let’s review possible sources of what might give ghosts “personhood”:

The 14th Amendment, Section 1, to the United States Constitution, states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

NY CLS Const Art I, § 11.

No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state.

Does death end citizenship under the 14th Amendment, thus equal protection under the law, in our case specifically the prohibition of false imprisonment of living persons? Or does citizenship and the right to equal protection under the law begin at birth and continue for all eternity? Does the same apply to being a “person” under Article § 11 of the New York State Constitution?

There is no question the framers of the US Constitution, the 14th Amendment or the New York Constitution contemplated the law applying to undead individuals with rights similar to living persons. To be blunt, the dead do not come back to vote, buy property or renew their driver’s license.

With that said, our society does not embrace the idea of deceased citizens no longer being citizens. We have monuments for national heroes, honor those who have passed with folded flags and conduct burial ceremonies for those who have passed.

Death arguably does not end citizenship, however there is an interesting issue with the application of the 14th Amendment because of the text stating “…State wherein they reside.” The word “reside” is defined “to live in a place.” Additionally, Black’s Law Dictionary defines “resident” as “a person who lives in a particular place.” Ghosts, by the very fact they are deceased, do not “live” anywhere, unless one counts where their bodies are buried as residences. That might work for voting in Chicago, but ask yourself, how much mail is delivered to tombstones? Moreover, haunting is fundamentally different than living, because 1) ghosts do not have any basic bodily functions showing life, such as requiring food or oxygen and 2) haunting involves tormenting the living.

This is not to say the dead are without any legal protections, as seen in wrongful death cases brought by a victim’s survivors. However, the spirit of the deceased victim did not retain counsel or file a lawsuit; the living family member brought the lawsuit. Moreover, the dead do not give testimony at a trial, unless it was recorded before death.

Nevertheless, there are laws that apply directly to the dead.

An entire body of law is dedicated to wills and trusts, which focus on the intent of the living for the distribution of their property and assets after their death.

Additionally, there are cases prohibiting the desecration of a corpse. Early New York cases have held living family members have the right to have the corpse of a family buried unmutilated from unauthorized autopsies. Foley v Phelps 1 App Div 551 [1896] and Darcy v Presbyterian Hosp. in City of N.Y., 202 NY 259 [1911].

What do the cases of wills and corpse desecration show us? That there are strong arguments that the Ghostbusters are not violating the civil rights of the dead by imprisoning them.

The law is designed to protect the interests of the living. At best, laws prohibiting the desecration of a corpse are designed to bury the dead intact.

Given the above, it is unlikely there is any argument that trapping and containing ghosts could result in a case of false imprisonment. Moreover, Black’s Law Dictionary defines a “person” as a “human being”; ghosts are no longer human beings. As such, it is a legal impossibility for the Ghostbusters to be falsely imprisoning a ghost (a former human being) under the law. Additionally, there is a strong argument that the Ghostbusters are acting in the defense of others from malcontent spirits and effectively acting as exterminators of life-threatening entities.

Property damage from crossing the streams on the other hand….

Presidential Succession Jack Bauer Style

By

Josh Gilliland

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October 25, 2012

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Presidential Elections make me think of one thing:

The number of fictional US Presidents in 24.

The fictional series 24 covered 8 days over slightly over 14 years. In that time there were 9 Presidents.

Two of them served full terms.

That is like having Presidents Lyndon Johnson, Richard Nixon, Gerald Ford, Jimmy Carter, Ronald Reagan, George H.W. Bush, William Clinton, George W Bush and Barack Obama in 14 years.

Imagine that many Presidents since Clinton’s last two years in office until present day.

The White House having such a fluid number of Presidents would probably put the country on the verge of a nervous breakdown. The United States has never had that level of instability in leadership (And probably a lot of FBI, CIA & Secret Service Directors fired for “losing another one”).

Moreover, seeking the Presidency looks like a bad life choice, given that John Keeler and Wayne Palmer had both assassination attempts and could not complete their term of office (not clear if they actually died).

Or fictional former President David Palmer catching a bullet for preparing to expose the treasonous actions of President Charles Logan (Never mind the legal issues of Jack just executing Palmer’s killer).

Here is the breakdown of the 24 Presidents:

One 4 Year Term: Harry Barnes (Never seen and President on Day 1, so he was at the end of his term)

One 4 Year Term: David Palmer (Acting President James Prescott for a few hours)

One 4 Year Term: John Keeler, Charles Logan (Vice President who becomes President), Hal Gardner (Confirmed as Vice President and becomes President after Logan had David Palmer Assassinated)

One 4 Year Term: Wayne Palmer (for a few months) and Noah Daniels

Partial Term: Allison Taylor (Resigned, who would be followed by her VP)

How could this happen under the US Constitution? Under Section 1, Article II of the Constitution, a US President’s term of office is four years. Pursuant to the 22 Amendment to the US Constitution, a President may only serve two terms. Additionally, no person (the Vice President or if things were really bad, former Speaker of the House), who had acted as President for more than two years of a term, may only be elected to one term themselves. However, the 25th Amendment, followed by the Presidential Succession Act of 1947, are our keys to understanding these hyper-accelerated Presidencies.

The 25th Amendment to the United States Constitution:

1: In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

2: Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

3: Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

4: Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

The line of Presidential succession is defined under the Presidential Succession Act of 1947, which states, in relevant part:

(1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.

(2) The same rule shall apply in the case of the death, resignation, removal from office, or inability of an individual acting as President under this subsection.

(b) If, at the time when under subsection (a) of this section a Speaker is to begin the discharge of the powers and duties of the office of President, there is no Speaker, or the Speaker fails to qualify as Acting President, then the President pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President.

c) An individual acting as President under subsection (a) or subsection (b) of this section shall continue to act until the expiration of the then current Presidential term, except that—

(1) if his discharge of the powers and duties of the office is founded in whole or in part on the failure of both the President-elect and the Vice-President-elect to qualify, then he shall act only until a President or Vice President qualifies; and

(2) if his discharge of the powers and duties of the office is founded in whole or in part on the inability of the President or Vice President, then he shall act only until the removal of the disability of one of such individuals.

d)

(1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is no President pro tempore to act as President under subsection (b) of this section, then the officer of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President shall act as President: Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland Security.

(2) An individual acting as President under this subsection shall continue so to do until the expiration of the then current Presidential term, but not after a qualified and prior-entitled individual is able to act, except that the removal of the disability of an individual higher on the list contained in paragraph (1) of this subsection or the ability to qualify on the part of an individual higher on such list shall not terminate his service.

3) The taking of the oath of office by an individual specified in the list in paragraph (1) of this subsection shall be held to constitute his resignation from the office by virtue of the holding of which he qualifies to act as President.

Luckily, US History is rather dull compared to 24. The 25th Amendment has only been applied a handful of times, such as in President George W Bush’s first and second terms when he had two different medical procedures, making Vice President Cheney the Acting President for a few hours each time.

The big example of the Constitution getting a workout was after Richard Nixon resigned, making Vice President Ford the new President. Ford has the distinction of being the only person who was not elected President or Vice President who ultimately became Commander-in-Chief. Throw in Nelson Rockefeller as Vice President, and from August 1974 to January 1977, neither the President or Vice President had been popularly elected.

There is one odd footnote on Presidential Succession from the 19th Century: On March 4, 1849, President-Elect Zachary Taylor did not get sworn in, because it was a Sunday, thus took the oath of office on March 5 (Until Truman, Presidential terms ended on March 4).

Technically, President James K. Polk’s term ended at noon on March 4. Small problem: Taylor had not yet taken the oath.

The United States Senate website has the odd story that the then Senate president pro tempore, David Atchison, claimed he technically was President for 24 hours (arguably Polk’s term was extended one day). There are problems with “President Atchison’s” claim, because technically Atchison’s term as president pro tempore also should have ended on March 4 (Let alone Atchison taking the oath of office). However, he claimed that not only was he President of the United States for 24 hours, he had “the honestest administration this country ever had.”

In the final analysis, what can we learn from 24? First, while the United States does not go through Presidents like they are wearing Red Shirts, the Constitution does provide for many contingencies if a nightmare situation happens. Or a President needs a root canal.

Second, while the fictional Jack Bauer was great at fighting terrorists, he was no Clint Eastwood when it came to being In the Line of Fire.

Not sure how Bauer is with talking to chairs.