Category: The Law Is A Ass

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #365: TV COPS PUT A HOLD ON THE CONSTITUTION

chief_wiggumIf I’ve heard it once, I’ve heard it … Okay, I didn’t actually count how many times I’ve heard it. But I’ve heard it a lot. In cop shows. In police movies. In crime novels. In detective comics, and probably Detective Comics. Pretty much any gendarme genre. Those immortal words spoken by police officers everywhere, “We can hold you for 72 hours without charging you.”

Actually, the police can’t. But they do it anyway

What the oft-heard line is referring to is the policy of an investigatory hold . Under the practice, the police would place someone in custody without charging him or affording him bail – assuming he could afford bail in the first place – for a period of time. During this time, the police would investigate the crime more fully. At the end of the investigatory hold period, the person being investigated would either be formally charged or released.

Under the 14th Amendment right to liberty, people can only be denied their right to liberty if they are afforded full due process – you know; formal arrest, formal charges, bail hearing, trial. That whole megillah. Without those things, there’s a 800-pound gorilla in the room. A gorilla called the Constitution. (What, you thought I was going to say the gorilla was called Magilla?)

In some jurisdictions, the investigatory hold period is 20 hours. In some it’s 24 hours. In others, it’s 48 hours. In some – such as in Cleveland, Ohio until an administrative judge ended the practice in 2012 – it was 72 hours.

Investigatory holds happen for a couple of reasons, both of which are unconstitutional and illegal. The first is that if person is taken into custody and held pending an investigation, it usually takes between 48 and 72 hours for a lawyer to be able to get a writ of habeas corpus before a judge who can rule that the detainee be freed. That’s one origin for the incorrect police notion that they can hold suspects for 72 hours withoug charging them.

It should be noted, as well, that this paragraph applies to regular people who have been taken into custody. So-called military detainees or prisoners of an undeclared war who are rotting away in military prisons such as Quantanamo Bay need not apply. For a habeas corpus, that is, because they won’t get one.

The other reason for the investigatory hold is that the police misinterpret certain laws to claim that the laws give them the statutory authority to conduct investigatory holds. They don’t. But the police claim, incorrectly, that they do.

What frequently happens is that a state will pass a law requiring that when a person is arrested without a warrant, that person must be formally charged or released within some period of time. The statute will then set a time period which it intended to be the maximum period. Prisoners could always be charged or brought before a magistrate in less time than the statutory maximum, but it couldn’t happen in more than the maximum time set by the law. That statutory time limit varied from state to state. It could be 20 hours, 24 hours, 48 hours, or 72 hours depending on the state and the statute. (Do those numbers look familiar? They should.)


These statutes were intended to benefit people who has been arrested. They were meant to guarantee that those being arrested be formally charged or brought before a judge for a probable cause hearing and bail within a set time. They were meant to insure that people were not being held in custody indefinitely. The statutes were created, because formal charges and judges aren’t always available as soon as a person is arrested.

The police can arrest people, but the police can’t charge them with a crime. Only a prosecutor’s office can bring formal charges. In addition, the police can’t set bail or determine whether there is probable cause that those being arrested committed the crime for which they were arrested. That power belongs only to judges or magistrates. However, people aren’t always arrested when the prosecutor’s office is open or when court is in session.

People are frequently arrested at night. Or on the weekends. I represented a lot of people who had been arrested. (In fact, I’ll bet I only represented people who had been arrested.) So I can tell you from personal experience – not the experience of my having been arrested but the experience of talking to clients who had been arrested – a good number of them are arrested at night or on the weekend. That’s because a lot of crimes are committed at night or on the weekend.

Here’s the thing about prosecutor and courts. They have regular office hours. 9 to 5 type hours. Prosecutor’s offices and courts aren’t usually open for business at night or on the weekends. So people being arrested at those times can’t be brought before a judge or formally charged as soon as they’re arrested. They have to wait until the prosecutor’s office is open or court is in session.

The statutes I talked about earlier were adopted to make sure that people arrested after hours were brought before a magistrate or formally charged as soon as possible. So they’d set a time limit in the statute, mandating that charges be filed or magistrates be faced within that time limit.

Many police departments started using the statutes as a weapon against the people who were arrested, even though the statutes were intended to be a shield for the people being arrested. The police started interpreting the statutes as something that authorized them to take people into custody, while they investigated the crimes. They’d say, the statute permits us to hold suspects for what ever period of time is put into the statute without charging them or taking them before a judge. So the police would arrest a person to investigate a crime further, and hold the person in custody for the maximum time the statute allowed pending the results of that further investigation.

The practice is questionable. At best. At worst it’s unconstitutional and illegal. As I’m a glass-half-empty kind of guy, I’m going with the worst-case scenario. I say investigatory holds are unconstitutional and illegal.

I’m not alone in saying this.

Some District attorney offices have been polled as to whether they believe the practice of investigatory holds is legal. The district attorney offices polled routinely concluded it wasn’t.

The Supreme Court of the United States has held on numerous occasions that investigatory detentions are illegal. The court found such detentions to be arrests, and arrests which are made as a pretext for finding evidence violates the 4th Amendment protection against unreasonable seizure.

Courts also hold that detaining a person for investigation for a period of time longer than the earliest practical time that person could be brought before a magistrate is unconstitutional. So if a statute requires that the detainee be brought before a magistrate within 48 hours, but the police could have brought the detainee before a magistrate within 24 hours, the extended investigatory detention was unconstitutional.

Investigatory holds still exist. They shouldn’t. They violate the 4th Amendment because they’re unreasonable seizures. They violate the 6th Amendment, because police say the right to counsel doesn’t begin until formal charges are filed, so we can question this detainee without an attorney present as long as charges haven’t been filed. They violate the 8th Amendment, because they perform an end around to the Amendment’s requirement that people who are arrested are entitled to bail. They violate the 14th Amendment, because every one of the problems I just listed denies the detainee of liberty without due process of law. And they violate any concept of decency.

So the next time you hear the line, “We can hold you for 72 hours without charging you,” on TV, remember doing that wrecks and violates the Constitution. And there’s already too much wrecks and violates on television.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #364: THE BLACK HOOD-WINKS MIRANDA

STK670116I really want to see that handbook. Or technical manual. Or whatever it is that sets the procedures and policies fictional police operate under. Because the police in comic books, movies, and television are constantly talking about procedures – things they claim they get to do – that are simply wrong. Like the totally outlandish statement in the recent The Black Hood #4.

We interrupt our dissertation on the law for a dissertation on history. The Black Hood dates back to the 40s and was published by MLJ Comics; the company which later became Archie Comics. The character has kicked around since then, being revived several times to varying degrees of success. It varies from very little to none at all. The current Black Hood comic is published by Dark Circle Comics, a sub-imprint that Archie Comics created so its super heroes weren’t constrained by the kid-friendly books Archie publishes.

Not constrained is something of an understatement. The Black Hood drops more F bombs than Lewis Black in a Scorsese movie. The Black Hood was the first comic book published by Archie that used that particular word. (First comic, but not the first Archie character. I’m looking at you, Miss Grundy!)

In the grim and gritty world of The Black Hood, there are cops and there are bad guys and cops who self-identify as bad guys. But what’s important to us, is that the cops shown in The Black Hood # 4 were sitting around a table while the comic’s first-person narrative captions read, “Technically, cops can hold a suspect for six hours before having to read them Miranda. Nobody likes it much, but that’s the law.”

No, that’s not the law.

The caption used the word, “Technically.” That implies the technical manual or handbook I mentioned earlier; a book that must have more errors than the ’62 Mets . Any book that can muck up something so simple as when Miranda warnings should be read must be like one of those puzzle pictures in the Highlights for Children Magazine. You know: How many things can you find wrong in this picture?

The Miranda warnings – which are not an advisory that Turner Classic Movies is about to air a frothy musical starring a Brazilian fruit fancier – are actually an advisory created by the Supreme Court of the United States in Miranda v. Arizona. The Miranda court noted the long history of coercive interrogation tactics that the police employed over the years. Tactics called the third degree. No one seems to know where that name came from, but I think we can assume it wasn’t because the interrogators had a B.A., an M.B.A, and a Ph.D. No, we’re talking enhanced interrogation including physical torture, mental torture, and even multiple screenings of the Tommy Wiseau movie The Room. Remember this is interrogation we’re talking about not punishment, “cruel and unusual” doesn’t apply.

In order to stop the police’s pervasive use of enhanced interrogation techniques, the Miranda court imposed a requirement on the police. Before the police conduct a custodial interrogation, they must advise the detainees that they have the right to remain silent, that anything they say can be used against them, that they have the right to an attorney, and that if they can’t afford an attorney one would be appointed for them. If the police don’t give prisoners their Miranda rights before they begin custodial interrogation, then anything the prisoners say cannot be introduced against them in a court of law.

So is it true that “technically” the police don’t have to read prisoners their Miranda rights for the first six hours of custody? Is the Pope Jewish?

Miranda doesn’t set actually any time limit. The police don’t have someone playing The Minute Waltz 359 times, so they know when to give the warnings. Miranda warnings aren’t triggered by time but by interrogation.

Miranda warnings must be given before any custodial interrogation begins. If the police want to interrogate someone in custody right away, then they must give the Miranda warnings right away. They can’t start questioning the detainee then give the Miranda warnings six hours later. The only way the police can wait six hours before giving a suspect in custody the Miranda warnings is if the police wait six hours before questioning the suspect. There’s no six-hour Don’t-Get-Out-Of-Jail-Free card associated with Miranda. Not “technically” and not actually.

That’s one example of something this technical police procedure handbook got completely wrong. It’s not the only one. There are others. Lots of others. Over the next few weeks, I’m going to examine some more of these procedures that fictional police officers talk about all the time. Things they say they get to do which they actually don’t get to do.

So stick around. It should be at least as much fun as reading about what nonsense Batman was up to this week.

The Law Is A Ass


backgroundWell, at least this time the judge had a reason for getting the law completely wrong.

We’re talking The Amazing Spider-Man #16.1 (16.1? Seriously? What’s with the odd-ball numbering in comics nowadays? We’ve had zero issues. Millionth issues. Fractional issues. Now decimal point issues? I should adapt Life of Pi to a comic book mini-series and number the issues 3.1, 3.14, 3.141, 3.1415, and so on.)

In the aforementioned and strangely numbered Spider-Man comic, Detective Teddy Rangel obtained a search warrant for a building based on a tip he received that it was a hideout of wanted crime boss Lonnie Thompson Lincoln, a.k.a. Tombstone. The New York Police Department, with the help of Spider-Man – because, after all, it was his comic – executed said warrant and arrested Tombstone and his men. Had this been Hawaii Five-O, the story would have ended when Danno booked em. It wasn’t Hawaii Five-O. It wasn’t even the revival. So the story didn’t end there.

Eight days later, Judge Anson Howell– who was to judges what Thurston was to millionaires– granted Tombstone’s motion to suppress the evidence. He ruled the search warrant was defective so the search was invalid and all the evidence obtained during said search was inadmissible.

As decisions go, that one was more questionable than “Put Your Daughters to Work Day,” which never really caught on the way that other day did. It’s true that ever since 1961 and Mapp v. Ohio, the states have lived under the exclusionary rule; a rule created by the Supreme Court that says when police obtain evidence in violation of the Fourth Amendment, that illegally seized evidence must be excluded from trial. One would think that evidence seized under a defective search warrant would be suppressed. And one would be right, if the world had stopped in 1961. It didn’t. I know because I’m waaay older than nine.

Since it’s inception, the exclusionary rule has been less popular than Justice Scalia at a gay pride parade. Over the years, the Supreme Court chipped away at the exclusionary rule by creating exceptions to it. Lots of exceptions. Ever since 1984, the year not the novel, when the Supreme Court decided United States v Leon, the country has had a “good faith” exception to the exclusionary rule.

The good faith exception says that if the police execute a search warrant in good faith and later it turns out that the search warrant was defective, then the evidence obtained during the search should not be excluded from trial. The Leon court reasoned that the exclusionary rule exists to prevent the police from violating the Fourth Amendment, because they know evidence won’t be admissible, if they do violate it. However, if the police believe in good faith that they obtained a valid warrant, then they didn’t violate the Fourth Amendment. It wasn’t their fault that a neutral and detached magistrate issued the warrant in error. So suppressing the evidence would not further the the exclusionary rule’s purpose of preventing police misconduct, because there was no police misconduct. For that reason, evidence obtained by good faith reliance on a search warrant that turned out to be defective should not be suppressed.

In the case of The People v Tombstone – yes, I know it’s actually The People of New York v. Lonnie Thompson Lincoln, but who wants to keep typing The People of New York v. Lonnie Thompson Lincoln? – Judge Howell should not have suppressed the evidence seized from Tombstone’s hideout. Even though the search warrant to have been defective, the police executed it in good faith and the good faith exception required that the evidence be admissible.

There are some exceptions to the good faith exception. One is if the police lie in their application for a search warrant and mislead the magistrate who issued it, then they know that warrant was defective They knowingly got the warrant in bad faith so can’t rely on its validity in good faith

So, did Detective Rangel obtain the warrant in bad faith by lying to the magistrate? Possibly. In fact, I’ll say probably. Detective Rangel’s source was the super villain crime boss Mr. Negative. It’s not likely that either the law or the order part of the criminal justice system would put much stock in what Mr. Negative said, as it would rather put Mr. Negative in the stocks. So it is likely that Detective Rangel claimed his source was an anonymous informant who had supplied him with reliable information in the past rather than admitting it was Mr. Negative. Judges routinely issue search warrants based on similar reliable anonymous informant representations.

If the basis of Tombstone’s motion to suppress the evidence was that the source who tipped Detective Rangel wasn’t reliable, Rangel would have had to testify at the hearing to vouch for the reliability of his source. I suspect that was the basis of the motion, as Judge Howell based his ruling on the fact that Rangel – who had been shot in the line of duty, was in a coma, and ultimately died – couldn’t testify and verify his source’s reliability.

If Rangel did lie about his source and misled the judge who issued the search warrant then he acted in bad faith. That bad faith would be imputed to the rest of the police department. So, if Judge Howell ruled that the good faith exception didn’t apply, he would have been correct.

But Judge Howell was still incorrect in suppressing the evidence.

Remember how I said that Detective Rangel was shot in the line of duty? Well, like Rangel himself, I was guilty of leaving out an important detail or two. What I didn’t tell you was that Rangel was shot by one of Tombstone’s men, when Tombstone and his men opened fire on the police officers who were executing the warrant. (Important safety tip, when the police are executing a search warrant, you don’t get to execute the police.) As soon as Tombstone and his men started shooting police officers, they broke several New York state laws. Not the least of which was NY Penal L § 120.11, aggravated assault upon a police officer.

The police had probable cause to arrest Tombstone and his men for their crimes. The police didn’t need an arrest warrant because they saw the offenders committing the crimes. When the police see people committing crimes, they have probable cause to arrest the offenders immediately and don’t need to obtain an arrest warrant first.

The police had the right to arrest Tombstone and his men for shooting the police. Tombstone and his men were in their hideout when they were arrested. That means the police were entitled to search the hideout as part of a search incident to arrest.

Search incident to an arrest, that’s another one of those numerous exceptions to the exclusionary rule I talked about earlier. When the police make an arrest, they are allowed to search the surrounding area for their own protection. So when the police arrested Tombstone, they were allowed to search the hideout incident to that arrest to make sure that there were neither more people nor more weapons in it. Judge Howell erred when he granted Tombstone’s motion to suppress. It didn’t matter that the search warrant was defective, the search didn’t violate the Fourth Amendment because it was as a lawful search incident to arrest.

So why did I say that the judge had a reason for getting the law completely wrong, if he suppressed evidence that should never have been suppressed? Because Judge Howell was corrupt. Tombstone was bribing him. And that was his reason for getting the law completely wrong.

Hey, I never said the judge had a good reason.

Bob Ingersoll: The Law Is A Ass #362: THE PHANTOM MENACE

He’s the Ghost Who Walks. And recently he’s been walking a fine line between right and wrong. Mostly wrong.

As a regular readers of ComicMix, you probably already know the eponymous star of the comic strip The Phantom. But just in case, the Phantom – real name Kit Walker – is the latest crime fighter in a family of crime fighters. The first Phantom appeared in Bangalla, Africa in the year 1536 and made the solemn oath, “I swear to devote my life to the destruction of piracy, greed, cruelty, and injustice, in all their forms! My sons and their sons, shall follow me.”

In every generation since, the oldest Walker son, upon the death of his father, dons the costume of the Phantom – a skin tight purple body suit that’s about as practical for running around in hot tropical jungles as a suit of armor would be for swimming the English Channel – and fights crime. The Phantom is also the commander of the Jungle Patrol, a Bengalli police force which, unless it was really bad at names, operates in the jungle.

For 21 generations the Phantom has fought crime. Now he’s committing them.

Recently, the Phantom chased a murderer named Barker through the junglecontent-1

As Barker ran, he wiped his fingerprints off his gun then threw the murder weapon into the brushcontent

The Phantom found the gun, brought it back, and placed it in Barker’s hand so that his finger prints would be on it when the Jungle Patrol found him. content-2

This was wrong. The Phantom planted evidence. He moved it from the bushes to Barker’s hand, where it needed it to be for a conviction. Yes, I know he was putting it back where it had been, so it wasn’t like he planted evidence that was never there to obtain a conviction. Still planting evidence is illegal and wrong. Apparently 21 generations of getting his own way spoiled the Phantom rotten.

By putting Barker’s fingerprints on the gun, after Barker had wiped it clean, the Phantom also falsified evidence. He placed incriminating evidence on the gun which wasn’t there when he found it. Again, the Phantom restored the gun to the condition it had been in before Barker doctored it, but you know the old saying about two wrongs not making a right. Everybody knows it’s three lefts that make a right.

Don’t worry about how Barker’s trial turned out. When the Jungle Patrol showed him the gun found in his hand, he said, “In my hand!? B-but I tossed the gun!” content-3

Barker stupidly admitted the murder weapon was his gun and that he had possessed it; thereby killing any chance he might have had to challenge the evidence as planted.

Actually, there was a third reason why what the Phantom did was wrong. When the Phantom retrieved the gun, a viper bit his armcontent-4

The Phantom didn’t know what kind of viper it was, so he gave himself a broad spectrum treatment of anti-venom, which had the adverse side effect of giving him amnesia. What followed was several months of story where the amnesiac Phantom joined the Jungle Patrol, because he instinctively knew that was where he belonged.

What the Phantom did was wrong, because we endured what may have been the most boring Phantom story ever written; a story that ended exactly as we knew it would, as everyone knew the Phantom would get his memory back eventually. Note to the Phantom: don’t plant evidence again. Apparently Karma doesn’t like it when you do. And while it may seek to punish you, we’re the ones who end up suffering for it.

Even more recently – as in earlier this month – the Phantom broke into a condominium in a Bangalli city. He opened a wall safe and ransacked it for incriminating paperwork. Then the Phantom waited for the condo’s owner to return.

The Phantom beat the condo owner senseless, or more senseless than he already was considering he bought a condo in Africa in today’s housing market. The Phantom took the man into the building’s fire stairs. He did this because the police in Bangalla, which has a constitution very similar to that of the United States, didn’t have a warrant to search the condo and find the incriminating papers. The Phantom dumped the incriminating papers on the man content-5

 and left them in a public area of the condo building, where the police could find them in plain view.

Apparently the Bangalli constitution is so similar to our own, that it also recognizes a Plain View exception to the Exclusionary Rule. So if the police are some place where they can lawfully be, say the public stairs of a condo building, they can seize incriminating evidence found in plain view without a search warrant. The Bangalli Plain View doctrine might even be a little more liberal than the one we have in the United States. In our Plain View doctrine, the incriminating nature of the evidence must be immediately apparent. Marijuana, for example, can be seized, because police can tell by looking at it that it’s contraband. But if the police see something like expensive stereo equipment which seems out of place in a squalid apartment, they can’t move the stereo equipment and check the serial numbers, because the criminal nature of the stereo equipment wasn’t immediately apparent to the naked eye. It required further examination to determine it was criminal in nature.

The criminal nature of the papers wouldn’t be immediately apparent, either. Someone would have to read them to determine they were incriminating. If the Phantom’s staged scene put the papers under the Plain View Doctrine, it’s a more expansive Plain View Doctrine than ours. That or some writer threw a out legal term without knowing what it meant. But writers wouldn’t do that, would they? As a writer myself, I’ll give writers the benefit of the doubt and say Bangalla’s Plain View Doctrine is broader. (See, who says I can’t play nice?)

The Phantom is a member of the Jungle Patrol. Hell, he’s it’s commander. He’s a Bangalli police officer. His actions are, therefore, subject to the limitations that the Bangalli constitution imposes on the police. When the Phantom broke into the condo and took the incriminating papers from the wall safe, he committed illegal search and seizure. He also committed aggravated burglary. Then the Phantom assaulted the condo owner, who had a perfect right to defend himself against a masked and armed trespasser. Finally, the Phantom planted evidence again, when he left the man and the incriminating papers in a public stairwell rather than in the condo where they had been. It’s all very enterprising, but it’s not in the least bit admirable.

Next the Phantom called the police to the building so they could find the criminal and his papers. Did the Phantom make an anonymous call to the cops? Nope. He discharged his .45 several times in order to wake up the innocent people who lived in the building and scare them half to death so they’d call the cops.

Not a very nice thing to do. But this Phantom has no qualms about planting evidence or aggravated burglary. What’s terrorizing a little old lady or two to him?

You can call me old-fashioned, if you want. You’d be wrong – at 62 I’m certainly old enough, but anyone who’s met me knows I have no sense of fashion. However, I do admit to holding to the old-fashioned concept that heroes, the good guys, shouldn’t commit crimes in order to fight crime. They should be better than what they fight.

The Phantom. Also called “The Ghost Who Walks.” And now we know the real reason he earned that nickname. Because when the Phantom walks, he walks all over the Constitution.

Bob Ingersoll: The Law Is A Ass #361: JERK ASSHAT WORLD

Spoiler Warnings are for sissies!

That’s why I’m not going to give you any, even though I’m going to write all about Jurassic World. First, the movie broke both the United States and the global records for opening weekend box office, so there’s a good chance that you’ve already seen it and don’t need no stinkin’ spoilers. Second, everything I’m about to tell you has already appeared in the trailers, which have been appearing before every movie being shown for the past several months. So even if you haven’t seen the movie, you’ve seen what I’m about to tell you. Third, even if you haven’t seen the trailers, it’s fourth installment in the Jurassic Park series; telling you there’s this amusement park with dinosaurs and some of the dinosaurs break out of their cages and run around eating people isn’t telling you something you don’t already know. That’s pretty much a given in a Jurassic Park movie, because it’s pretty much all the Jurassic Park movies have given.

Twenty years after the events of the first movie, John Hammond’s dream of a dinosaur theme park has been realized. According to Simon Masrani, the current CEO of Jurassic World’s parent corporation InGen, when John Hammond, the original head of InGen and the originator of Jurassic Park, was on his death bed, Hammond made Masrani promise to fulfil the dream of Jurassic Park.

Bunk! The last line of dialog from the original Jurassic Park, after the T-Rex and the raptors chased Hammond’s grandchildren all around Isla Nublar, was John Hammond saying even he no longer endorsed his own park. I doubt he had a change of heart on his death bed.

The movie may want us to believe it was Hammond’s last wish, but I think there was some other reason that Masrani wanted to make his corporation the little InGen that could. Greed. Greed and the fact that Masrani, InGen’s scientists, and Jurassic World’s management were a bunch of jerk asshats. “Hey, let’s recreate the amusement park that failed and almost bankrupted our company once and then failed again when we tried to set it in San Diego and almost bankrupted our company again. I mean, third time’s the charm, right?” Listen up, it’s comedy that works in threes.

Anyway, now appearing on Isla Nublar is the full-blown theme park Jurassic World. (InGen called it Jurassic World, because it decided after what happened on Isla Nublar the first time, calling the place Jurassic Park would be tacky. So InGen did learn something from the first movie, just not the right something.) Jurassic World had been up and running for ten years. Which means attendance was down, because jaded park goers always want some new attraction. Every time Jurassic World introduced a new attraction, attendance spiked. Masrani ordered the genetic engineers of Jurassic World to create a new attraction. Something with a “Wow!” factor. Something bigger, faster, stronger. The Six-Million Dollar Dinosaur.


The geneticists complied and created Indominus rex, a hybrid dinosaur that was part … Well, that would be telling. Exactly what species comprised Indominus is one of the few things the trailers didn’t tell you about Jurassic World and I don’t want to ruin the surprise. I can say – because the pre-movie publicity already said – that Indominus is part T-Rex, part cuttlefish, and part tree frog. Oh, and part hubris. No, make that all hubris. It’s a veritable hubris hybrid.

Indominus is big, strong, fast. And very intelligent. So intelligent that, despite the fact that it would have no way of knowing exactly what technology is or how it works, it devised a plan to escape its compound by using the park’s own technology against it.

Now Indominus was running around loose on Isla Nublar injuring people. The people it didn’t outright kill, that is. And it managed to free a bunch of pterosaurs from their locked aviary. So soon, there was an Idominus running around injuring and killing people and pterosaurs flying around injuring and killing people. (Honest, none of this is spoilers, everything that I’ve described was shown in the movie’s trailers. Hell, you didn’t even have to watch the trailers, they showed the pterosaur attacks in a Dairy Queen ad for its new Jurassic Smash Blizzard . )


But this is where I stop relating the plot. We’ve finally moved into the part of the movie that the trailers didn’t show us beforehand and the part of the column where I start analyzing some law.

There’s a scene in the movie that occurs after “all the dinosaurs are running wild” where Vincent D’Onofrio’s character said to B. D. Wong’s character something like, “By Monday morning this park will be in Chapter 11.” Meaning that the park is going to have to file for Chapter 11 bankruptcy protection to try to survive all of the lawsuits that will be coming from either all the people who survived the attacks or the families of all the people killed in the attacks.

That’s when I thought to myself – a silly phrase, we’re not comic books, when we think little bumpy balloons containing our thoughts don’t appear above our heads so that other people can read them, so who else could we be thinking to but ourselves – I thought, “More than just the park’s going to be in Chapter 11.”

Jurassic World’s scientists didn’t just build the Indominus on a whim. They built it on a budget. A budget approved because of the specific instructions of InGen’s CEO to make an new attraction that was bigger, stronger, scarier and wowier. In other words, they used InGen’s money to follow the specific orders of InGen’s CEO to build a new dinosaur that proved to be beyond their control. A new dinosaur that was highly dangerous, that escaped, that released other highly dangerous prehistoric creatures, and that caused massive amounts of big-budget, special effect-laden death and destruction.

The lawyers representing the injured parties should sue more than just Jurassic World. They should also sue InGen, which is more than a little bit responsible for Indominus and all the death and destruction she caused either. “More than a little bit” being lawyerly weasel words for “directly.”

In law school we were always taught to sue the deepest pockets. Why? Because when you sue for damages you’re looking for monetary compensation from the people you’re suing. If you’re looking for money, you go after the deepest pockets, because that’s where the most money is. If we use a real-world analogy, who has deeper pockets, Disneyland or the Walt Disney Company? Considering The Walt Disney Company is the world’s second largest broadcasting and cable company after Comcast and owns ABC, ESPN, Marvel Comics, Walt Disney Studios. Disneyland just owns Disneyland, which also happens to be owned by the Walt Disney Company. So, I’m going with the company not the park, itself.

Which means any lawyer worth his assault suits would sue not only Jurassic World but the parent corporation InGen, which funded Jurassic World, funded its research, and ordered the park to create the big bad dinosaur in the first place. Given the evidence the lawyers would have against InGen, the lawyers could be worth less than actual salt and still be good enough to sue the jerk asshats Jurassic assets off.

The Law Is A Ass


I’ll bet Matt Murdock wishes he hadn’t screwed up and gotten disbarred in New York. Because now’s when he could cash in.

It’s all because of what happened in Spider-Woman v5 #5, when Jessica Drew heard a woman screaming for help. She changed into her Spider-Woman costume and answered the call. She found a woman fleeing down an alley being chased by a huge, hulking costumed villain of some sort. Just as the bad guy was about to grab the woman, Spider-Woman leapt into action. Literally.

Spider-Woman-5-spoilers-preview-8 copyAnd, no, I didn’t say literally, when I meant figuratively. Spider-Woman leapt off a rooftop and dropped down between the attacker and the woman. She kicked the bad guy away from the woman and followed up by delivering one of her bio-electric venom blasts to his chest. After this, she flipped the attacker with a judo throw and threw him into a wall. Physical but efficient. After all, this wasn’t the story’s main obligatory fight scene, it was just the set-up.


When Jessica went to secure the baddie to a lamp post and call the police, she didn’t have to call the police. The assailant wasn’t a super villain. It was a police officer dressed up as a super villain. And the alley was already full of other police officers. Why even the damsel in distress was a police officer, pretending to be a scream queen. Who says there’s never a cop around when you need one?

Turns out Spider-Woman interrupted a how-to-fight-super-villains training exercise the NYPD was conducting. (And now we know why they say there’s never a cop around when you need one; they’re all in some rain-soaked alley somewhere taking down pretend super villains.)

Cut to the next day: Jessica Drew was in a holding cell in a NYPD precinct, where she’d been for twelve hours after being arrested for assaulting a police officer. She was playing Charades with the other women in her cell when Ben Urich, reporter for the Daily Bugle who learned of Jessica’s arrest on the Internet, got her released. Wasn’t too hard, Ben didn’t even have to post bail. Turns out NYPD didn’t even book Jessica.

Ben explained that the police “knew none of their charges would stick to Spider-Woman. They arrested her and kept her in general lockup all night so that they could post pictures of the super hero under arrest on the Internet and humiliate Jessica. “Sad fact of life: Cops don’t like super heroes as much as super heroes like to think.”

Here’s another sad fact of life: Stupidity like these cops engaged in is costly; to careers and to pocketbooks. As I said earlier, New York disbarred Matt Murdock, so he can’t handle the case. Too bad, too, as this case is a slam dunk. What case? Why Jessica’s lawsuit against New York City for wrongful arrest.

Wrongful arrest? How can it be wrongful arrest, Jessica kicked a police officer. Then she hit him with a venom blast and, finally, judo threw him into a wall. Any one of these would constitute assaulting a police officer by itself. All three of them is multiple counts of assault of a police officer; redundant and proof that super heroing, like comedy, subscribes to the rule of three.

Problem is, they don’t. Not one of the three acts of physical violence actually constituted assault of a police officer. Not kicking him. Not venom blasting him. Not judo throwing him.

There’s a New York statute which defines the crime of assault of a police officer. It’s New York Penal Law § 120.08. No, I didn’t know this off the top of my head. I can’t know all of the criminal statutes of the states, cities, and municipalities in this country. There’s a googolplex of them. So, I Googled it.

NY Penal L § 120.80 says someone commits the crime assault of a police officer when, “with intent to prevent a … police officer … from performing a lawful duty, he causes serious physical injury to such … police officer…”

Ordinarily, this might raise the question: Did Jessica cause serious physical injury to the police officer? In this case, it doesn’t. It doesn’t matter how seriously the police officer was harmed; although it didn’t appear he was hurt too bad. The fact is, Jessica could have ripped off one of his legs and she still wouldn’t have committed assault on a police officer.

Look at the elements of the crime again. Study them. There’ll be a test later.

Okay, it’s later. (Hey, I never said how much later.) So, here’s the test.

“Jessica Drew didn’t commit assault on a police officer. Explain.”

Right. The statute requires that she must cause the injury “with intent to prevent a police officer from performing a lawful duty.” Jessica didn’t intend to prevent any police officer from doing anything. She honestly and reasonably believed a hulking somebody was attacking a woman in an alley. Her intent was to stop a crime, not to interfere with a police officer.

Remember, Ben Urich told Jessica – and, thus, told us – that the police knew the charges wouldn’t stick. How did they know? They knew because they knew Jessica reasonably believed she was preventing an attack, not interfering with a police officer.

However, that means that the police arrested Jessica knowing full well that she didn’t commit any crime so they didn’t have probable cause to arrest her. They arrested her for the express purpose of posting pictures of her arrest on the Internet and embarrassing her. That’s what’s sometimes called a bad faith arrest. Not to be confused with pinching Buffy’s slayer friend for theft. That’s a Faith’s bad arrest.

When the police made a bad faith arrest without probable cause just so they could embarrass Jessica, they broke the law themselves. It’s NY Penal L § 195, official misconduct. It happens when a public servant, such as a police officer, knowingly commits an unauthorized act relating to his office with the intent to deprive a person of a benefit. Falsely arresting a person so as to embarrass her, would deprive that person of the benefit of her right to liberty under the Fourteenth Amendment. And by these actions, the police committed a crime, they also opened the city of New York up to a false arrest lawsuit.

Earlier this year, a law student in Brooklyn was parked in a bus stop. Two police officers chased him out of the spot, not because he was parked illegally but because they wanted to park there themselves so that they could go to a nearby food truck. When the student confronted the cops about their abuse of power, they cited the student with two counts of disorderly conduct. The student sued New York City for false arrest and reached an out-of-court settlement that netted him some money. And netted his attorney even more money in legal fees.

If that law student could successfully sue the city because the police cited him to make him stop busting their chops about their parking in a bus stop, imagine what a bona fide super heroine and former member of the Avengers could do with the police illegally arresting her for the specific purpose of embarrassing her. Hell there’s probably even be a federal civil rights lawsuit under 42 U.S.C. § 1983 lurking around in there somewhere.

And if the law student’s lawyer got an even bigger award in legal fees than the student won, there’s money to be had for some lawyer. Matt Murdock can’t take the case. Maybe Jennifer Walters will take Jessica’s case. And if Jen’s too busy being She-Hulk, I might consider getting my law license reinstated – I let it it go inactive after I retired from the public defender office – so I could have a crack at it.

On second thought, no. Jessica is a fictional character and her case a fictional case. So any damage awards or attorney fees would also be fictional. While the joys of being retired from the practice of law are all too real.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #359: MIDNIGHT AT THE GAOL PLACES

What is it about super heroes and prisons? First Ben (The Thing) Grimm went breaking bad by breaking out of jail. Then the good guys warehoused super villains in less-than-legal lock-ups on the TV shows Arrow and The Flash. The Thing, Green Arrow, and the Flash. These are long-time, venerable, white-hat heroes, not your new-fangled heroes of questionable pedigree and even more questionable morality. These were the types of heroes who stood for something. Something noble.

Another in that long line of long-lived, white hat heroes was Captain Midnight. Captain Midnight started on the radio in the fall of 1938. So he’s older and more venerable than any the comic-book super heroes except Superman and, maybe, the Crimson Avenger. And he was just as white-hat as any of them.

Sure his cowl was a dark blue. But let’s face it, neither Green Arrow nor the Flash sport headgear that’s regulation ivory, either. When you’re talking about white-hat heroes, it isn’t the actual color, it’s the attitude. And in attitude, Jim Albright, genius inventor and secretly the costumed hero Captain Midnight, was as white-hat as they come.

Then, after he was transported through time from 1944 to the present, Captain Midnight went to a twenty-first century prison. And like the other heroes before him, he lost his way.


In Dark Horse’s current Captain Midnight series, the good Captain is fighting the secret super villain the Archon, “the most sinister threat [Captain Midnight has] ever faced.” In Captain Midnight #20, Captain Midnight realized that in order to get information necessary for his fight, he had to steal it from the shadowy government organization Black Sky. (Of course it’s a shadowy government organization. In comic books, all government organizations are shadowy. Except for the ones that are just flat-out evil.)

Steal information from the government? We’re not even to the prison yet and already Midnight’s white hat has become a shade of grey. (Only 49 more to go).

In order to steal the information, Captain Midnight enlisted the aid of Helios, an assassin who used teleportation technology pirated from Albright Industries to port to and from his mercenary pursuits with a minimum of danger. Because Midnight created the teleportation technology that Helios uses, Midnight could hijack it by remote control. Midnight used his remote control to override Helios’s suit and jump him from a hit in Moscow to the secret Midnight base. Then Midnight used his remote control and teleported the two of them into Block 13, a Black Sky prison in New Mexico. Both acts done to Helios and against his will.

Did I say “enlisted?” Let me rephrase that. capheliostension

Captain Midnight grabbed Helios against Helios’s will in order to accomplish his theft plan. That’s kidnap. And broke into a secret government prison. Would you call that criminal trespass? I wouldn’t. Neither would New Mexico. In New Mexico, it’s aggravated burglary. That’s shades of grey two and three.

Because Black Sky was is a comic-book shadowy government organization, it was something real government organizations aren’t; efficient. Armed Black Sky agents were waiting for Captain Midnight and Helios. Which meant that Captain Midnight and Helios had to fight their way through the Black Sky agents.

There were seven agents, so that would be seven counts of assault upon a peace officer. At first. Lots more Black Sky agents showed up while Midnight was downloading the information he needed from the Black Sky computers. Agents Helios shot said agents with deadly force. How do I know it was deadly force? Because Helios told Captain Midnight he was going to have to use deadly force and Midnight said “Fine.” That gives us a dozen or so counts of aggravated assault upon a peace officer or murder, depending on whether Helios actually killed any of the Black Sky operatives. (And considering the bullets to the heads and chest that several of them took, I’m guessing he did.)

After Captain Midnight finished downloading the information, he activated his escape plan. It was literally an escape plan. Midnight hadn’t just downloaded information from the computers, he had also uploaded a virus into the computers. He used that virus to open up all the cell doors on Block 13. Suddenly, like the dinosaurs on Jurassic Park, all the inmates were running wild. Then, while the Black Sky agents were capturing the escaping prisoners, Midnight and Helios teleported to the base’s hanger and commandeered one of the Black Sky jets to make good their own escape. (Because of a plot contrivance, Helios could teleport a short distance inside the base, couldn’t teleport out of the base. Hence the whole stealing a jet plane gambit.) Meanwhile, an explosion that Captain Midnight triggered created an additional distraction to cover their escape.

And that brings us up to god knows how many counts of aiding and abetting escape from a penitentiary by unlocking all those Block 13 cell doors. Several counts of conspiracy. One count of computer abuse. One count of unlawful assault on a jail. One count of larceny. One count of unlawful taking of a vehicle. One count of criminal damage to property. And, if any of the Black Sky agents were hurt in the explosion – I’m guessing yes – even more counts of aggravated assault upon a peace officer. That’s quite the laundry list of felonies. Even Al Capone was telling Captain Midnight to take it easy.

And that’s just from a quick perusal of New Mexico’s criminal statutes. I’ll bet I could find a lot more offenses, if I really delved into New Mexico’s criminal statutes. But why bother? Captain Midnight has so many more than fifty shades of grey on his white hat, it’s not funny.

Seriously, it’s not funny. We used to call our favored reading material funny books. Not any more. Turning super heroes – especially the super heroes of old who were classic white-hat heroes – into people who are every bit as bad – if not worse – than the villains they fight is many things. But it’s not funny.

The Law Is A Ass


A Mr. Richard Feder of Fort Lee, New Jersey writes in and says… Something completely off-topic. This is “The Law Is a Ass,” not Roseanne Roseannadanna. However, a Mr. Ronald Byrd writes in and says, “Hi. Wondering, did you pay much attention to the X-Men/Utopia storyline? Because it seemed to me that, by declaring Utopia to be a sovereign nation (whether or not Cyclops’s actions conformed to real-world laws on how to declare a sovereign nation isn’t presently the point), Cyclops unilaterally declared everyone on Utopia to be citizens of that nation and thus unilaterally stripped them of their (for the most part) American citizenship. Without asking. Which struck me as, I don’t know, inappropriate? Did I misunderstand that part? Thanks for your time.”

cyke3Is that what happened in Utopia? I’m afraid my memory is like fine wine. It did get better with age. Then it was exposed to oxygen and turned into vinegar. So, if that’s what happened in Utopia, I kinda forgot about it. (Forgetting was kind of a defense mechanism.) But if that’s what happened, then here’s why Cyclops didn’t do the bad thing you thought he did. (Which would be the first time in a long time that Cyclops, as currently written, didn’t do a bad thing.)

American citizenship is guaranteed in the United States Constitution. The first sentence of the Section One of the Fourteenth Amendment to the United States Constitution says, “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.” It’s called the “Citizenship Clause,” which is a bit grandiose considering it’s only a sentence, not a whole clause. The Citizenship Clause was written to undo the infamous United States Supreme Court ruling in the Dred Scott, about which the less said the better, because Dred Scott held African Americans were not, and could not become, United States Citizens.

The Citizenship cemented the right of all United States citizens to be citizens. Which wasn’t always the slam dunk you’d think it would be.

American citizens have a constitutional right to be American citizens. Seems rather basic. But in 1940, Congress adopted a bleach to basic attitude. Remember, this was in the days and years leading up to World War II, when our relations with several foreign countries – such as Germany, Japan, and Russia – were as strained as Spanx on Honey Boo Boo’s Mama June. Back then, the United States motto was “For every action there is an equal and opposite overreaction.” Japanese interment camps, anyone? One of the biggest overreactions was the Nationality Act of 1940.

Among the many provisions of the Nationality Act of 1940 was Section 401, which created many ways in which citizens could lose their citizenship. Naturalized citizens, for example, could lose their citizenship, if they lived abroad. (Ruled unconstitutional in the case Schneider v. Rusk under the Equal Protection Clause.)

All citizens could lose their citizenship if convicted of military desertion during a time of war. (Ruled unconstitutional in the case Trop v. Dulles as a violation of the Eighth Amendment’s protection against cruel and unusual punishment.)

Other provisions of the Nationality Act said citizens could lose their citizenship if they performed military or government service for another country when coupled with citizenship of that country. Or if they lived in a foreign country to evade military service. Or if they served in the armed forces of a foreign state, voted in a foreign election, or acquired the nationality of a foreign state. And that would be the type of expatriation concerning us today; loss of citizenship when one becomes a citizen of a foreign country, like the mutant country of Utopia.Utopia_(X-Men_Base)_from_New_Avengers_Vol_2_28

Most mutants didn’t ask to become citizens of Utopia. They became Utopians when Cyclops claimed them. Did they lose their citizenship because of what Cyclops did? The short answer is “no.” The long answer is, “No and here’s why.” Because the core function of this column – to inform you of how the law works – requires exploring the “here’s why” part, we’ll go with the long answer.

American citizens cannot lose their citizenship unless they commit a voluntary act which is inconsistent with citizenship. In Nishikawa v. Dulles, a natural-born citizen of Japanese descent moved back to Japan with his family. While living in Japan, he was involuntarily conscripted into the Japanese army. The Supreme Court ruled that he could not be deprived of his citizenship under the Nationality Act, unless his act was voluntary. Because Nishikawa was involuntarily conscripted, his service in the Japanese army could not be used to expatriate him.

The Nishikawa case has a direct bearing on the Utopia matter. If Cyclops unilaterally declared all mutants to be citizens of Utopia, then they didn’t become citizens of a foreign country voluntarily. They became citizens by the high-handed actions of Utopia’s government. Under Nishikawa, all mutants who became involuntary citizens of Utopia by Cyclopean fiat could not have their citizenship taken away. They also can’t have their Fiats or Toyotas taken away. But that’s another matter.

X-Force-1-coverBut what about those mutants who did something in service of Utopia? Like Wolverine, who headed up X-Force, the Utopian mutant covert-ops squad. (And why would a place called Utopia need a covert-ops squad in the first place?) Would those mutants lose their citizenship for voluntary actions which were inconsistent with American citizenship? Again, the answer is no.

In Afroyim v. Rusk, a naturalized citizen who voted in an Israeli election was being expatriated. The Supreme Court held the Citizenship Clause of the Fourteenth Amendment dictates that U.S. citizens cannot be striped of their citizenship involuntarily. A citizen may only lose citizenship if he or she voluntarily renounces it. The government may not take citizenship away. Thus, even if citizens commit a voluntary act which is inconsistent with American citizenship, they may not lose their citizenship involuntarily.

So it looks like none of the mutants on Utopia would lose their citizenship simply because they became citizens of Utopia. It’s a win for all mutant kind.

However, the fallout of the Afroyim case is that the U.S. government, which strongly opposed the concept of dual citizenship, has not grown to accept it. That means that the Utopians were citizens of both the United States and Utopia. And had to pay taxes to both of them. So maybe we should reexamine that whole win for all mutant kind notion.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #357: NEWS, FLASH: YOU CAN’T DO THAT WITH THE BAD GUYS

Okay you’ve got them, now what are you going to do with them?

By “them” I mean super villains. So it shouldn’t be much of a leap to conclude that “you” means super heroes. Certainly a lot less than a tall building.

Doesn’t matter where you are – comic books, movies, television, or even cosplay – if you have super heroes, you’re going to have super villains. And if you have super villains, you’re going to have the problem of what to do with them after they’ve been caught. I realize that in today’s comics, catching the bad guys isn’t always a foregone conclusion, but for the sake of argument let’s assume that the super heroes actually do catch the super villains So, then what to do with them?

In comic books, it’s not a problem. Comic-book universes all seem to have some sort of power dampening technology. Turn it on and the super villains powers go away. That way they can’t use their super powers to break out of the prison.

Movies don’t seem to have much of a problem, either. Mostly because super villains in movies die at an alarming rate. Joker, Penguin, Two-Face (Tommy Lee Jones and Aaron Eckhart), Bane, Green Goblin, Doctor Octopus, Venom, Electro, Iron Monger, Whiplash, The Mandarin, Red Skull, Malekith, General Zod (Michael Shannon version definitely and possibly Terence Stamp version) all appeared to die at the end of their movies. And I probably forgot one or two along the way. What to do with super villains after they die isn’t much of a problem. You just wait for them to turn up, not dead after all, in the sequel.

Television is where the heroes have the most problems with what to do with the bad guys. It started as far back as 1952 and the first season of Adventures of Superman. You remember “The Stolen Costume?” Two crooks learned Clark Kent was Superman and Superman left them on the top of a mountain so that they couldn’t tell anyone what they knew. When they tried to climb down, because they didn’t believe Superman would come back with food for them, they fell to their deaths. And Superman’s reaction was to say they fell off a cliff about as casually as he might say, “Lois? Oh she fell out the window.”

The problem got worse with the 60s Batman TV series. Oh, Batman knew what to do with the super villains he caught. It was Gotham City that didn’t know what to do with the super villains; other than let them escape. 1109514I swear Gotham Pen was built with unreinforced cardboard and doors locked on the honor system.

But in the new millennium, things have gotten really out of hand vis-a-vis captured super villains and what do with them. Especially in the shared TV universe of Arrow and The Flash.

In The Flash, the Flash and his team from S.T.A.R. Labs capture a super villain every few weeks. When they do they put said villain in The Pipeline,Particle-Accelerator-The-Flash their private a prison inside the tube of the S.T.A.R. Labs particle accelerator, quicker than you can say, “Jail, jail, the gang’s all here.” What the heck do we care? I don’t know about the you part of “we,” but the me part cares quite a bit. Putting the super villains in the Pipeline is problematic.

Yes, I know the S.T.A.R. labs group think that Central City and it’s ordinary prison for ordinary prisoners, Iron Heights, can’t handle the metahumans. Guess the all-S.T.A.R.s thought Iron Heights had incorporated all those prison reforms that Warden Crichton used in Gotham City . And, yes, S.T.A.R. Labs may think the metahumans are their responsibility, what with their particle accelerator having created the metas and all, but they can’t just round up all the metacriminals and put them in S.T.A.R.’s own private Ida-hole.

See Missouri – and according to the Flash episode “The Man in the Yellow Suit,” Central City is in Missouri – has a law. Missouri has lots of laws actually, but we’re only concerned with one; MO Rev Stat § 565.130.This laws says a person commits the crime of false imprisonment if he “restrains another unlawfully and without consent so as to interfere substantially with his liberty.”

The S.T.A.R. Lab Rats have definitely interfered with the liberty of the evil metahumans in a substantial way. They’ve locked them up in a private prison. Was it unlawful? Do pigeons poop in the park?

These villains haven’t been found guilty of anything. Hell, they haven’t even been put on trial. S.T.A.R. Labs just decided they were too dangerous to run around loose, so locked them up. And while S.T.A.R. Labs may be correct in its assessment, it’s wrong in its solution. You can’t go around locking up the people you think are dangerous. The government can’t do it without first affording due process of law. And private citizens can’t do it at all.

Don’t go crying PATRIOT Act to me, the metahumans aren’t foreign national enemy combatants. They’re just American criminals. Criminals with those annoying little things called constitutional rights.

As to S.T.A.R. Lab’s claim ordinary prisons can’t handle the metahumans, sez who? The Pipeline handles them all right. S.T.A.R. Labs developed some sort of power dampening technology that it uses to keep the metahumans under control in their private prison. In the episode “Rogue Air,” the dampeners even kept the metahumans under control outside of the Pipeline, when S.T.A.R. Labs and the Flash were trying to transport the metahumans to a different prison. If S.T.A.R. Labs has technology that it uses to keep the metahumans under control, why couldn’t it share the technology so that Iron Heights could use it to keep the metahumans under control?

If your answer was, “I don’t know,” don’t worry; so was mine. But I do know this, “I don’t know,” isn’t a good enough answer to justify not sharing it. Or for locking up metahumans in a private prison without any legal authority.

Now over in Arrow, there aren’t as many metahuman villains. Most Arrow baddies are held in the handy hoosegow. But there are a couple– Slade (Deathstroke) Wilson Slade_Wilson_imprisoned_under_Lian_Yuand Digger (Captain Boomerang) Harkness – who weren’t sent to the standard stockade. These two were locked up in a secret black box prison on the island of Lian Yu. Lian_YuThe only difference is that it wasn’t Arrow who locked up the bad guys there, it’s A.R.G.U.S.

A.R.G.U.S. (or the Advance Research Group United Support) is a secret organization. In the DC comics, A.R.G.U.S. is a federal agency. Arrow has been a little sketchy with it’s background for A.R.G.U.S. but on the show the organization has enough governmental ties for it to be either an actual agency or a quasi-agency of the US government. It’s certainly enough of a governmental agency that the Fourteenth Amendment – the one that guarantees the government cannot deprive citizens of their liberty without due process of law – would apply to it. So because A.R.G.U.S. has both Deathstroke and Boomerang locked up in its secret island prison without either of them having had the benefit of due process or a trial, it’s violating their constitutional rights. It may not be against the law of any state – Lian Yu is somewhere in the South China Sea and not in any state – but it’s still illegal. What with it violating the Constitution and all.

So, to repeat the question with which we opened: You’ve got them, now what are you going to do with them? I don’t know. You don’t know. Maybe even the super heroes don’t know. But whatever’s done them, it shouldn’t be what’s being done with them now.

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #356: RICK CASTLE HAS A SEIZURE

127956_9905Aced her Captains Exam, my ass! Based on the level of knowledge Kate Beckett showed this week, she couldn’t have aced a Poker hand with a stacked deck.

The May 11th episode of Castle was a fairly typical episode of the show. I’m not saying that like it’s a bad thing. A fairly typical episode of Castle is entertaining and doesn’t insult your intelligence over much. A fairly typical episode of Castle, also means New York City homicide detective Kate Beckett and her husband, mystery writer Rick Castle, were investigating a murder.

The episode started with a Jane Doe running through some remote woods in upstate New York then out onto a road, where she was hit by a truck, and died. Someone had carved crosses onto the woman’s face, so the state troopers believed she had been attacked in the woods then chased until she was hit by the truck. The truck driver saw a dark figure wearing a mask emerge from the woods. Based on this, the state troopers classified the case as a homicide. There was a recent receipt from a Manhattan coffee shop on the victim, so the troopers called Beckett hoping she could help them track down the victim’s identity.

Accidental death by truck during a brutal assault, however, is too ordinary a case for a police procedural show like Castle. There had to be a complication. Something to give the case that audience-grabbing oomph just before the show broke away for the opening credits.

There was. First Castle recognized the facial cross carvings and the truck driver’s description of the assailant’s mask. Then Castle gave us that extra oomph.

When he was a boy, Castle chanced upon a murder in progress while walking through some woods. Castle saw the killer had carved crosses onto the victim’s face and that the killer wore a distinctive mask; the same crosses and same mask from the current Jane Doe case. Castle realized that the Jane Doe was the work of a serial killer who had been operating for thirty years.

The detectives determined that their killer du semaine must have hidden his victims’ bodies so none were ever found. They were classified as missing persons. No one knew they murder victims, let alone that there was a TV-styled serial killer involved.

No one, that is, until Castle put the pieces together. When Castle saw the killer the first time, the killer, for reasons known only to no one, didn’t kill the only person who knew about his mask and his penchant for carving facial crosses. The killer simply warned Castle not to tell anyone about what he saw. Because that’s what you want to do if you’re a serial killer who operates in such secrecy that no one even knows you exist; you leave the only person who knows you exist alive to talk to the police. Oops, let me rethink that whole not insulting your intelligence thing.

In the course of their investigation, Castle and Beckett end up interviewing a person and Castle immediately recognized that person’s voice as being the murderer’s voice. So with about ten minutes to go in the episode, Castle and Beckett knew who the murderer was.

Problem was they had no proof.

Then Beckett learned the murderer’s dead parents had owned a remote farm in upstate New York near where the Jane Doe died. The farm was now held in trust now and their suspect was the trustee. Castle and Beckett realized that this remote farm was a perfect place for hiding bodies.

Problem was they still had no proof.

Beckett knew she could never get a warrant to search the farm based solely on Castle’s thirty-year-old voice recognition. “And if I searched it without one, then any evidence I would find would be inadmissible.” Okay, so far so good. Beckett showed an understanding of search and seizure law that was more than good enough to you ace a captains exam.

Then Beckett proved she actually understood search and seizure about as well as Cookie Monster understands good eating habits. “But you’re not [a cop],” Beckett said to Castle. “It would be trespassing. You would be breaking the law. But if you found something… And I know how much this means to you. So whatever you decide, I will back your play.”

The show broke for commercial. But rather than watch AT&T’s Lilly profess her love of bedazzling again, I took the opportunity to start writing this column in my head.

Detective Beckett was correct, the Fourth Amendment did prevent her from searching the farm without a warrant. Beckett was also correct that the Fourth Amendment doesn’t cover the actions of private citizens and that if a private citizen searched the farm without a warrant then gave any evidence he found to the police, that evidence would be admissible, because there was no state action involved – state action being actions by any government, either state or federal. It’s called the Silver Platter Doctrine, a term first used in Lustig v. United States, 338 U.S. 74.

Where Beckett went wrong was classifying Castle as a private citizen.

If a private citizen conducts a search while acting as a government agent, then state action does exist. United States v. Jacobsen 466 U.S. 109. If the private citizen is working with the police, than anything the private citizen finds during an illegal search is every bit as inadmissible as evidence found by an actual police officer, because, in essence, the police did find it.

So the question is: Was Castle acting as a private citizen or as a government agent when he searched the farm? The answer is plain. But to make it plainer, let’s look at the test most federal courts use to determine whether a person is acting as a private citizen or a government agent.

It’s a two-prong test, because courts would never make anything so simple that it could be answered with only one prong. The prongs are “ 1) whether the government knew of and acquiesced in the intrusive conduct, and 2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends.” U.S. v. Walther 652 F.2d 788, 791 (9th Cir. 1981).

Here Detective Beckett not only knew of and acquiesced in Castle’s warrantless search, she actually suggested that Castle commit criminal trespass in order to search the farm for the evidence to convict the murderer. Under the Walther test, there wasn’t enough doubt that Castle was acting as a police agent to give Thomas the Apostle pause.

And even Thomas would have stopped doubting when the show came out of commercial break. Castle didn’t drive up to the farm alone. Castle and Beckett drove up to the farm together. Beckett stayed in the car which was parked just on the other side of the farm’s property line and watched through binoculars, while Castle searched the farm’s barn. But Beckett didn’t want Castle “going in alone.” She instructed him to put his cell phone on speaker. Ever the dutiful husband, Castle gave Beckett a step-by-step account of what he found over his cell. At one point, Beckett even told him, “you’re gonna need more than that to call the police. Look around he may have keep trophies from his victims.” Beckett may not have been physically conducting the search, but she was directing it from long distance.

Was there state action? Hell yes! Castle’s search had more state than the 114th Congress. In fact, considering current gridlock, Castle’s search had a more government action than the 114th Congress. A lot more.

Beckett’s suggested plan of attack was one that guaranteed none of the evidence found on the farm would be admissible. Her plan actually jeopardized their chance of catching the killer. Unless, of course, she and Castle planned to lie on the witness stand about how Castle found the evidence.

But they wouldn’t do that, would they? Not even I am so cynical as to suggest that “Effective Perjury” is covered in the captains exam.