The Legal Geeks recently invaded Nerd Nite in Bethlehem, PA. Check out my entire talk on Star Wars & the law below!
Mutant Refugees Fleeing to Canada
Canada. Oh Canada. As Canadians, we have gained a reputation for welcoming refugees. In the movie Logan, we see how Laura aka X-23 and the mutant children flee to Canada from a dystopian United States where mutants are persecuted. But what would actually happen if these mutants were to all of a sudden show up at the Canadian border seeking asylum as American refugees?
Crossing the Border and Making a Refugee Claim
We’ll start with the assumption that the children’s contact in Canada intends for them to legally claim asylum. At the Canada Border Services Agency office where the children would report to and make their refugee claims, officials would do background checks on the children, take prints and biometric data. Since they’re minors, they could become wards of the state or the people who helped them cross the border might be able to apply for guardianship.
They would then have to fill out the requisite paperwork to make their refugee claims, according to Kathy Drouin-Carey, a Canadian lawyer who practises in the area of refugee claims in Canada. Drouin-Carey believes that these mutant children would make their applications on both grounds of protection available under Canada’s Immigration and Refugee Protection Act being a “Convention refugee” (in reference to the United Nations Convention Relating to the Status of Refugees) and a “Person in need of protection”. Below is an excerpt of those provisions in the Act [my emphasis added]:
“Arguably, the children would qualify under reasons of race or membership in a particular social group,” says Drouin-Carey. For reasons of race, “I would say that the mutants could claim they are being persecuted due to ‘race’ because they were born with the mutant genes in their DNA.” Although genes do not define “race”, mutants’ genetic differences from ordinary humans do make them distinct. As for being a member of a particular social group, mutants are an identifiable group being persecuted in the U.S., so Drouin-Carey believes this enumerated group could apply to these mutant children as well.
The “Person in need of protection” ground under Section 97 is a much more personal ground and Drouin-Carey believes that there would be merit for the mutant children claiming on this ground as well because, “Staying or returning to the United States would subject them to danger, risk to their lives and possibly to cruel and unusual punishment.” Further, we can infer from Logan that, “the mutants are not able to seek protection from the state (i.e. government) and the risk is not to everyone else in the U.S. And from what we know, they’re at risk everywhere in the U.S.”
Refugee Protection Division and Criminality
After submitting their paperwork, the children would have to get past the Refugee Protection Division, which is an administrative tribunal and the division of the Immigration and Refugee Board of Canada that hears and decides claims for refugee protection.
“One of the biggest hurdles they would have to pass is whether the children would be inadmissible based on criminality”, says Drouin-Carey. In Logan, we saw how Laura killed many times over in brutal fashion and how the children together killed at least one Transigen thug near the end of the movie. Let’s then assume that the U.S. government has labelled Laura and the other children as extremely dangerous because they have mutant abilities and have killed, even though they have not been convicted for their alleged crimes. Let’s also assume that this information has been shared with the Canadian government.
Under Section 36 of the Act, the Refugee Protection Division may have grounds to deem the children as inadmissible based on having committed a criminal or serious criminal act outside of Canada that would be indictable offences in Canada. “The tribunal wouldn’t even need a conviction, it looks like they’d just need some evidence of ‘committing an act’ of criminality,” says Drouin-Carey. Counsel for the children might be able to make submissions to justify or excuse the alleged killings based on, among other things, self defence and age (all of them appear under 16 years old).
Whoever is helping the mutants cross the border hopefully has legal counsel or has funding for legal counsel to assist the children complete their claim forms and represent them before the Refugee Protection Division, especially given the element of criminality that would likely pose a challenge for their claims. If they don’t, then the children might be able to apply for legal aid.
To add complexity to this, Laura may also have a colourable claim to Canadian citizenship which could possibly aid her refugee claim or perhaps bypass it altogether.
Conclusion
While Canada may have made itself known as welcoming to refugee claimants, we don’t just let anyone in who arrives at the border. These processes and bureaucracy are in place to protect the country and its citizens, while balancing it against our humanity to protect people fleeing persecution and danger. Even mutants.
Special thanks to Kathy Drouin-Carey from Edmonton, Alberta-based firm Insight Law LLP for her time spent with me being interviewed for this post.
Is it in the Best Interests of Your Children to Leave Planet Earth?
If you are not watching Netflix’s Lost in Space, stop reading and go watch the first episode “Impact.” The episode story structure is told in “present” events and flashbacks where the Robinsons decide to leave Earth for the 24th colony to Alpha Centauri.
John Robinson was a Navy SEAL and deployed somewhere in a global conflict. The Earth was hit was by an unknown celestial object on Christmas Day 2044, resulting in nuclear winter conditions on the planet. Maureen applied to take the family of three children as colonists to escape Earth. After acceptance, Maureen sent her husband an “Assignment of Child Custody” for John to sign in order for them to leave for the program in a month.
Ouch.
States across the country have procedures for the assignment of guardianship of children. In the episode “Impact,” the California form used is FL-311 for Maureen’s custody petition, which is under Cal. Fam. Code § 6200, the Domestic Violence Prevention Act.
As there are no allegations of domestic violence, it would have made more sense for Maureen to use form FL-260, which is for an independent action for exclusive custody of children without the dissolution of marriage. The relevant code section is Cal. Fam. Code § 3120, which states:
Without filing a petition for dissolution of marriage or legal separation of the parties, a spouse may bring an action for the exclusive custody of the children of the marriage. The court may, during the pendency of the action, or at the final hearing thereof, or afterwards, make such order regarding the support, care, custody, education, and control of the children of the marriage as may be just and in accordance with the natural rights of the parents and the best interest of the children. The order may be modified or terminated at any time thereafter as the natural rights of the parties and the best interest of the children may require.
Fathers and mothers of minor children have equal responsibilities to support their children. Cal. Fam. Code § 3900. Both Maureen and John clearly have the best interests of their children in mind. Given the fact the Earth was on its way to looking like Venus, Maureen seeking custody of the children in order to leave the planet was arguably in the best interests of the children. However, the fact Maureen and the children would be leaving the planet forever would eliminate John’s reasonable visitation rights. While staying on Earth would be detrimental to the best interests of the Robinson children, there was no evidence seeing their father was in any way harmful. See, Cal. Fam. Code § 3100. As Maureen and John’s estrangement did reach an uneasy détente, we do not know how they decided it was in the best interests of the children for all to join the 24th Colonists short of John refusing to sign away his parental rights.
Are Human Sacrifices Protected by the Attorney-Client Privilege?
Catherine Wilder on Hulu’s Runaways is a case study in attorney ethics. She met her future husband Geoffrey while representing him in jail. She is the mother of Alex Wilder, the teenager who is arguably the glue that holds the teenage “Runaways” together as a team.
Catherine and Geoffrey are members of Pride, a civic group connected to the cult/church Givborim, which conducted ritualistic human sacrifices to prolong the life of Jonah, a supernatural villain. Making matters worse, these sacrifices were done at the Wilder property.
Alex Wilder expressed concern over his mother’s impressive skill as an attorney. However, what are the legal ethical issues with Catherine Wilder participating in human sacrifices as part of a quasi-religious ceremony wearing red robes?
Representation of Geoffrey Wilder while Incarcerated
Catherine met her future husband Geoffrey while he was awaiting trial for murder. After a discussion with Jonah, Geoffrey asked a friend Darius Davis to admit to the murder for which Geoffrey was arrested.
While it was clear Geoffrey was attracted to Catherine, there was no evidence to suggest they had a sexual relationship while Catherine represented Geoffrey. Such representation could have been improper, if it caused Catherine to perform legal services incompetently. Cal. Rules of Prof’l Conduct, Rule 3-120(B)(3). This rule does not apply to spouses where the relationship predates representation. Rule 3-120(C).
The problem for Catherine is she willingly assisted in a fraud upon the Court in offering Darius Davis as the shooter for Geoffrey’s crime. This is the very essence of an act of “moral turpitude, dishonesty or corruption,” which would be cause for disbarment or suspension. Cal. Bus. & Prof. Code § 6106.
Human Sacrifices are Not Protected by the Attorney-Client Privilege
Catherine Wilder has no way to argue the sacrifices committed on her property are in any way protected by the attorney-client privilege. As a preliminary matter, the California attorney-client privilege states that a client has the right to refuse from disclosing any confidential communications with their attorney. Cal. Evid. Code § 954. This would require Catherine to represent every member of Pride individually, which has significant legal issues as to potential conflicts between Pride members, such as those who had knowledge of another member’s child being killed. Moreover, the attorney-client privilege does not apply if a lawyer’s services were sought to enable or aid anyone to commit a crime. Cal Evid Code § 956(a). As the members of Pride were killing teenagers, there is no way for Catherine to provide legal advice on how to murder children.
Catherine could not argue Pride had any religious freedom to perform the “energy transference” of runaway teenagers in some quasi-religious ceremony for Givborimism. As has been held in case law:
The devotee of a religious cult that enjoins polygamy or human sacrifice as a duty is not thereby relieved from responsibility before the law. In such cases the belief, however false according to our own standards, is not the product of disease. Cases will doubtless arise where criminals will take shelter behind a professed belief that their crime was ordained by God, just as this defendant attempted to shelter himself behind that belief. We can safely leave such fabrications to the common sense of juries.
People v. Schmidt, 216 N.Y. 324, 339-40, 110 N.E. 945, 949-50 (1915), citing Guiteau’s Case, 10 Fed. Rep. 161, 175, 177; Parsons v. State, 81 Ala. 577 at 594; Reynolds v. U. S., 98 U.S. 145; People ex rel. Hegeman v. Corrigan, 195 N. Y. 1, 13.
Killing runaway teenagers is murder. Lawyers are supposed to uphold and defend the Constitutions of the United States and their state, not be willing participants in the deaths of children. The actions of the members of Pride could not hide behind the attorney-client privilege. Catherine should be disbarred for the [fictional] deaths and tried for conspiracy to commit murder.
Lethal Force on Krypton
In the Krypton episode “The Rankless Initiative,” Lyta-Zod has taken the command of the 4th Squad of the Military Guild.
Zod’s troops arrested civilians en mass in a military crackdown in the search for domestic terrorists.
Kol-Da, one of the Sagitari officers, shot a handcuffed civilian under the claim she feared for her safety.
Zod promptly arrested Da for murder, telling her she would have a trial to defend herself, something Da denied the summarily executed prisoner.
It is not surprising a science fiction show is not afraid to tackle the issue of police shooting unarmed prisoners. If Krypton had a Constitution similar to that of the United States, Zod was absolutely correct to arrest Kol-Da for murder.
All people in the United States have a Fourth Amendment right to be free of the use of excessive force by the police. The use of lethal force is a “seizure” under the Fourth Amendment, because taking a life is a “seizure.” As such, the test for whether a reasonable officer may use deadly force is if under the totality of the circumstances, the officer “had probable cause to believe that there was a threat of serious physical harm to [himself] or to others.” McHenry v. City of Ottawa, 2017 U.S. Dist. LEXIS 157369, at *16 (D. Kan. Sep. 26, 2017).
There is also a larger issue: the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. Tennessee v. Garner, 471 U.S. 1, 11, 105 S. Ct. 1694, 1701 (1985).
Kol-Da claimed she feared for her safety as the reason to shoot a “Rankless.” The fact the person was unarmed and handcuffed clearly shows her actions were unreasonable, because there was no threat of serious physical harm. Moreover, the victim was a prison who was not even trying to escape, let alone arrested for any “felony” other than being Rankless. There was no probable cause for a reasonable belief the prisoner was a danger to others. Murdering him was a gross violation of his civil rights.
Lyta-Zod was justifiably enraged by the conduct of Kol-Da and right to arrest her. Whether a future episode include the trial of the officer remains to be seen.
Does the Insanity Defense Apply to Attempted Human Genocide?
Treason is too light a word to describe Dr. Newton Geiszler’s plan to destroy humanity in Pacific Rim Uprising. The issue for Dr. Geiszler is whether the his attorneys could successfully argue the insanity defense. The Kaiju in the room is whether the good Doctor was under the control of “Alice” or if his recreational Kaiju brain drifting was done by his own free will. The answer would determine if Geiszler did not understand the wrongfulness of his actions, thus not guilty by reason of insanity or guilty.
Dr. Newton Geiszler planned the destruction of humanity by using Jäger drones fused with cloned Kaiju brains to open multiple breaches to allow for a Kaiju invasion of Earth. Phase two of the plan was to ignite the Ring of Fire to cause an extinction level event.
Dr. Geiszler collaborated with hostile aliens that resulted in the massive property damage in Tokyo. Geiszler could be charged with collaboration, treason, and attempted genocide.
The insanity defense requires the defense to prove by clear and convincing evidence that Dr. Geiszler was unable to appreciate the nature and quality or the wrongfulness of his actions because of a severe mental disease or defect. 18 U.S.C.S. § 17. It should go without saying that hijacking building-sized robots to open an inter-dimensional portal for giant monsters to destroy all of humanity is a “wrongful act” that Dr. Geiszler should have understood.
The issue for Dr. Geiszler is whether he suffered from a mental defect due to his Kaiju drifting; if he was addicted to drifting with Alice; or if he purposely acted to destroy humanity.
Mental Defect from Drifting
The Defense could argue that Dr. Geiszler suffered brain damage from drifting with Alice, thus he could not understand the wrongfulness of destroying humanity. This would require expert testimony to explain how drifting works, how there is access to memories of both individuals, and how one can get lost in the drift. In the Defense’s favor is the fact Alice is the brain of an alien monster. An MRI could show the impact of drifting with Alice on Dr. Geiszler and possible brain damage. Moreover, Dr. Geiszler’s spooky Kaiju voice could be medical evidence of a mental disease from Alice. However, if there is no brain damage from the Kaiju drifting, there are still other options for the Defense.
The more challenging argument is that Alice was exerting some form of mind control over Dr. Geiszler. Cases where defendants attempt to offer expert testimony that a defendant was under the control of a cult, thus could not form the required mental intent for a crime, usually end with the expert’s testimony being excluded. See, People v. Vieira, 35 Cal. 4th 264, 266, (2005). The reason this sort of testimony is barred, is because the alleged mental disease would go the issue of the defendant’s mental intent, which is prohibited under California law. See, Vieira v. Chappell, 2015 U.S. Dist. LEXIS 14130, at *340-41 (E.D. Cal. Feb. 5, 2015), citing Cal. Penal Code § 28. This is different than a defendant not understanding the wrongfulness of his actions due to a mental disease, because intent goes to an element of a crime, not capacity to understand the act is wrong.
The issue of whether someone can be a victim of “mind control” is not one with case law helpful to Dr. Geiszler. In the writ of habeas corpus by the murderer of Senator Robert F. Kennedy, the Court analyzed the murderer’s claim of “hypnotic programming.” The Court noted that the theory someone could be hypnotized to commit murder and then to lose his or her memory of committing that murder was scientifically credible, but the petitioner did not provide any reliable evidence that actually happened. Sirhan v. Brazelton (C.D.Cal. 2013) 76 F. Supp. 3d 1073, 1123-1124. In the case of Dr. Geiszler, evidence would need to be offered that the “hypnotic programming” caused him to design and build one rogue Jäger; design drone Jägers programmed to launch an alien invasion; hundreds of DNA splicing micro-Kaiju; and wage war on humanity.
Not the easiest defense.
Addicted to Drifting
The Defense could argue that Dr. Geiszler had become addicted to drifting with Alice as a form of the insanity defense. Drug addiction can be argued as a form of the insanity defense if the drug addiction had 1) destroyed the defendant’s ability to distinguish between right and wrong; or 2) has made him act under a delusional compulsion. Mincey v. Head, 206 F.3d 1106, 1120 n.19 (11th Cir. 2000), citing Shirley v. State, 149 Ga. App. 194, 253 S.E.2d 787, 788 (1979). Drug addiction can also be a “psychiatric disorder” that can justify the involuntary commitment of “mentally ill” persons. Jackson v. Indiana, 406 U.S. 715, 722-23, (1972).
Medical expert testimony would be need to be offered to demonstrate Dr. Geiszler either had his ability to know right from wrong destroyed from recreational Kaiju drifting or was acting under a delusional compulsion. Considering Dr. Geiszler went home, talked to a giant brain in a jar in his bedroom he named Alice before drifting, “delusional compulsion” sounds like a good argument. Moreover, the fact the Defendant secretly built a drone army with cloned Kaiju brains would take obsessive-compulsive behavior to a new level.
World on Fire
There is the possibility that Dr. Geiszler knew right from wrong and simply turned evil. This is most disturbing possibility, because it would mean that a hero turned into a villain. Eradicating all live on Earth is not something one does lightly. Dr. Geiszler spent ten years on his plan, which included acquiring a Kaiju brain, having a custom tank for it installed in his apartment, and building drift technology so he could commune with Alice. Those look like intentional actions, some of which were either done to develop a connection with Alice or feed an addiction to drifting with Alice.
Defending the an Indefensible Act
There is no defense for the attempted genocide of humanity. However, that does not mean Dr. Geiszler should be denied a right to an attorney and a fair trial for his actions. The hallmark of a civil society is that the legal system treats anyone accused of a crime with due process of law. Granted, there is a Category 5 amount of evidence against Geiszler, but he deserves his day in court.
Sedition on Krypton
Superman’s Great-Great-Grandfather Val-El was sentenced to death for sedition in the pilot of Krypton. Val-El’s “crime” was stating that there was other life in the universe. Val-El walked a plank to free-fall into a snowstorm of oblivion. His family was also stripped on status, showing a legal system that issued punishments based on family associations and not actions.
The legal system on Krypton is the opposite of “truth, justice, and the American Way.” The show depicts a harsh police state where the population lives under the heel of repression. By way of comparison, Sedition laws in the United States can easily run in opposition to the First Amendment. The original Sedition Act in 1798 allowed for the punishment of those who made “false, scandalous and malicious writings against the government, either house of Congress or the President, if published with intent to defame any of them or to excite against them the contempt or hatred of the people.” Chicago v. Tribune Co., 307 Ill. 595, 603, 139 N.E. 86, 88 (1923). This did not last long and ensured John Adams would be a one term President.
There have been other Sedition laws over the centuries, such as the Smith Act, which was intended to protect the government from violence, revolution, and terrorism. Dennis v. United States, 341 U.S. 494, 501, 71 S. Ct. 857, 863 (1951). Moreover, for those in the military, it is punishable by death to create a revolt to overthrow the government. 10 U.S.C.S. § 894.
Val-El’s “speech” that there was other life in the universe would not even violate the Unconstitutional language of the Sedition Act of 1798, because the position does not even rise to the level of “false, scandalous and malicious writings.” Moreover, Val-El was not advocating the violent overthrow of the government on Krypton. Val-El was murdered by the state for having a belief that was in conflict with religious leaders, which is not a capital offense.
Val-El’s execution would have violated the prohibition on cruel and unusual punishment. The law prohibits executions that:
1) Presents a substantial risk that a prisoner will suffer unnecessary and wanton pain in an execution;
2) Violates the evolving standards of decency that mark a mature society, and
3) Minimizes physical violence and mutilation of the prisoner’s body.
State v. Mata, 275 Neb. 1, 48, 745 N.W.2d 229, 266 (2008).
Walking a plank that ended with Val-El falling hundreds, if not thousands of feet, would violate all three tenants on the prohibition of cruel executions. Nothing about that execution method is remotely decent of a mature society, would result in Val suffering unnecessary plain, and maximized physical violence and mutilation with death by impact. That form of execution was solely designed as a deterrent for anyone who dared to challenge the state.
Krypton depicts a police state with a repressive legal system that runs counter to our own. How Kal-El’s grandfather leads the planet out of this Dark Age will have this lawyer watching this season.